PRICE v. WARREN et al
OPINION. Signed by Judge Robert B. Kugler on 6/25/2015. (drw)N.M.
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 12-2238 (RBK)
CHARLES WARREN, et al.,
ROBERT B. KUGLER, U.S.D.J.
Petitioner is a state prisoner and is proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury on multiple counts
including kidnapping, burglary, robbery, terroristic threats and unlawful possession of a weapon
amongst others. He is currently serving a life sentence with a forty-year parole disqualifier.
Petitioner raises several claims in his habeas petition. For the following reasons, the habeas
petition will be denied.
FACTUAL AND PROCEDURAL BACKGROUND 1
Following a reversal and remand resulting from plain error as to
the questioning of a discharged juror, defendant Alonzo Price was
convicted by a jury on two counts of first-degree kidnapping; two
counts of second-degree burglary; one count of third-degree
burglary; two counts of first degree robbery; two counts of thirddegree terroristic threats; one count of third-degree possession of a
weapon for an unlawful purposes; one count of fourth-degree
unlawful possession of a weapon; one count of theft as a disorderly
persons offense; and one count of third-degree theft. The court
sentenced defendant as a persistent offender, to a discretionary
extended term of life imprisonment with a twenty-five year parole
The factual background is taken from the Superior Court of New Jersey, Appellate Division
opinion on petitioner’s direct appeal that was decided on November 15, 2006. (See Dkt. No. 98.)
disqualifier on count six (robbery of Sadie Hamer). It also
imposed a consecutive thirty-year term with a fifteen year parole
disqualifier on count two (kidnapping of Mary Perez), and the
following concurrent terms; thirty years with a fifteen-year parole
disqualifier on count one (kidnapping of Hamer), twenty years
with a ten-year parole disqualifier on count seven (armed robbery
of Perez), ten years with a five-year parole disqualifier each on
counts three and four (second-degree burglary of Hamer and
Perez), and five years with a two-and-one-half-year parole
disqualifier on count five (third-degree burglary of Perez) . . . .
The convictions arose in connection with two residential burglaries
in Woodbine, which occurred one week apart, one involving Sadie
Hamer on June 22, 2000, and the other involving Mary Perez on
June 29, 2000. In both instances, the women were sleeping in their
bedrooms when someone broke into their respective houses,
threatened them, and bound and robbed them.
Hamer testified that a man straddled her, told her not to look at
him, and put something flat, sharp and cold to the right side of her
neck. She heard the sound of bedding being torn, and her assailant
tied her hands behind her back and put a pillowcase over her head.
He then put what Hamer thought to be a wood handle of a knife
into her side and asked where she kept her money. Hamer heard
the man open her drawers and search through her room for
valuables. He then told Hamer he was leaving, and if she
screamed, he would kill her. After she heard the front door open
and close, Hamer shook the pillowcase off her head. She then
went to her son’s room and woke him, and called the police. The
police untied Hamer when they arrived. The screen to the living
room window had been cut, and Hamer reported that she was
missing a watch and bracelet, each estimated to be worth $50, as
well as $100 in cash.
Hamer could only see her assailant’s silhouette as he initially came
at her and she described him as “appear[ing] to be tall.” When he
had Hamer lie down, his cheeks touched hers, and she could not
feel any facial hair. She also thought he had close, short hair and
had a dark complexion.
Perez testified that her attacker directed her to turn onto her
stomach and straddled her on the bed. He then placed a sharp
object against her neck and told her not to move. She heard the
sound of bedding being torn, and the assailant gagged her and
bound her hands behind her back. Perez pleaded with her attacker
just to take her money and jewelry, and informed him she had
money in her car. He said that if she was lying about the money in
her car, he would come back and hurt her. The attacker left the
house with Perez’s car keys, which she had dropped on the living
room carpet. She was able to dislodge the gag and called the
While resisting the attack, Perez felt her attacker’s hair and face.
She described him as “approximately five foot ten” with “African
American” hair and informed the police he had been wearing a
grey shirt and smelled of cigarettes. Perez also told them she
believed she recognized her attacker’s voice as that of defendant,
who was a customer at the pharmacy where she worked, which
was located in the building underneath her apartment. Perez
reported that she was missing various pieces of jewelry and $200
taken from the wallet in her car.
A screen had been cut in Perez’s living room and a cigarette butt,
containing saliva that matched defendant’s DNA, was located on
the pharmacy roof outside Perez’s window. The police also found
a ladder placed against the pharmacy building, which the attacker
had apparently used to climb onto the roof and into Perez’s
apartment. Detective Ulbrich testified that based on the space
between the last rung of the ladder and the flat part of the roof, the
attacker would have had to pull himself over the wet, wooden
shingles onto the roof, which would have left dark-colored residue
on his clothing. Pursuant to a search warrant of defendant’s room,
the detectives seized a damp gray t-shirt with staining on the front
that appeared to be residue from the shingles. Defendant’s jean
shorts also contained similar staining, and in the pocket were some
strands of “purplish” carpeting that were the same color as the
carpet in Perez’s living room.
Detective William Scull testified as follows regarding the
similarities between the two crimes:
With respect to date and time, both, both of these
crimes were in the early-morning hours on a
Thursday. They happened to be on subsequent
Thursdays. One was approximately 2:20 and one
was around 3:00 a.m. . . . And the Thursday
happens to be the day after Alonzo Price’s payday
which he indicates on payday, on Wednesdays, he
gets a bottle and gets drunk. . . . They were both
within a close proximity to each other in Woodbine
which also happens to be in close proximity to the
They were both locations that were primarily
housed by a woman . . . without the typical
male/man/husband figure in the house as a . . .
known thing, I believe, throughout the Town of
Woodbine. Woodbine’s very small, and people
know each other. . . . Both of them are known to
primarily have residing with them a minor child.
[B]oth crimes were committed via entry of a,
screen-through a window. Both of them happened
to have screen windows on the outside. Both of
these screen windows happened to be cut in a very
similar fashion, as they were cut right along the
bottom of the screen.
I have investigated other burglaries and such
throughout my, my time, and I believe in my
opinion from my experience, that it’s more common
that if a screen’s taken out, either the frame’s ripped
out or the screen’s ripped out. Both of these were
cut horizontally along the bottom. Both of them
had the screens lifted up, not taken from their track,
and both of them had then subsequent entry in
through the window.
And both of these crimes had exit through the
primary entrance door or exit door. Both of them .
. . were residences that had the television on. . . .
The detective further testified that normally, to avoid
confrontation, burglars do not wake sleeping victims. In both
instances here, however, the perpetrator initiated contact with the
victim. Detective Scull also noticed there were other items
available to take, such as Perez’s car which the attacker had the
keys to, but instead, in both instances, he took only money and
(Dkt. No. 9-8 at p. 2-3.)
After petitioner was convicted and sentenced at his retrial, he appealed to the Superior
Court of New Jersey, Appellate Division. The Appellate Division affirmed except for reversing
a conviction on one count and remanding for resentencing on an issue not relevant to this
Opinion. The New Jersey Supreme Court denied certification on March 20, 2007. (See Dkt. No.
Petitioner subsequently filed a petition for post-conviction relief (“PCR”) in the Superior
Court of New Jersey, Cape May County in April, 2007. That court denied the PCR petition on
January 14, 2009. (See Dkt. No. 9-18.) The Appellate Division affirmed that denial on March 8,
2011. (See Dkt. No. 9-22.) The New Jersey Supreme Court denied certification on the PCR
petition on July 22, 2011. (See Dkt. No. 9-25.)
Petitioner then initiated this federal proceeding by filing a petition for writ of habeas
corpus in April, 2012. Petitioner was then given the requisite notice pursuant to Mason v.
Meyers, 208 F.3d 414 (3d Cir. 2000). He informed the Court that he wanted his petition to be
ruled upon as filed. (See Dkt. Nos. 2 & 3.) The respondent filed his response on June 20, 2012.
Petitioner then filed his original traverse in September, 2012. Subsequently, petitioner has filed
numerous updates and amendments to his traverse. He has also filed a motion to compel.
HABEAS CORPUS LEGAL STANDARD
An application for writ of habeas corpus by a person in custody under judgment of a state
court can only be granted for violations of the Constitution or laws or treaties of the United
States. See Engle v. Isaac, 456 U.S. 107, 119 (1982); see also, Mason v. Myers, 208 F.3d at 415
n.1 (citing 28 U.S.C. § 2254). Petitioner filed this petition for writ of habeas corpus after April
24, 1996, thus, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L.
104-132, 110 Stat. 1214 (Apr. 24, 1996), applies. See Lindh v. Murphy, 521 U.S. 320, 326
(1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the
merits in state court proceedings unless the state court’s 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 state court. See 28 U.S.C. § 2254(d).
As a threshold matter, a court must “first decide what constitutes ‘clearly established
Federal law, as determined by the Supreme Court of the United States.’” Lockyer v. Andrade,
538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). “‘[C]learly established federal law’
under § 2254(d)(1) is the governing legal principle set forth by the Supreme Court at the time the
state court renders its decision.” Id. (citations omitted). A federal habeas court making an
unreasonable application inquiry should ask whether the state court’s application of clearly
established federal law was “objectively unreasonable.” See Williams v. Taylor, 529 U.S. 362,
409 (2000). Thus, “a federal court may not issue a writ simply because the court concludes in its
independent judgment that the relevant state court decision applied clearly established federal
law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411.
The AEDPA standard under § 2254(d) is a “difficult” test to meet and is a “highly
deferential standard for evaluating state-court rulings, which demands that state-court decisions
be given the benefit of the doubt.” Cullen v. Pinholster, - U.S. -, 131 S. Ct. 1388, 1398 (2011).
The petitioner carries the burden of proof and with respect to review under § 2254(d)(1), that
review “is limited to the record that was before the state court that adjudicated the claim on the
In applying AEDPA’s standards, the relevant state court decision that is appropriate for
federal habeas corpus review is the last reasoned state court decision. See Bond v. Beard, 539
F.3d 256, 289-90 (3d Cir. 2008). Furthermore, “[w]here there has been one reasoned state
judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting
the same claim rest upon the same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
Additionally, AEDPA deference is not excused when state courts issue summary rulings on
claims as “[w]hen a federal claim has been presented to a state court and the state court has
denied relief, it may be presumed that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles to the contrary.” Harrington v.
Richter, 562 U.S. 86, 99 (2011) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
Petitioner raises multiple claims in his habeas petition; specifically:
1. The evidence did not support his conviction concerning the charges involving Sadie
Hamer and did not support the kidnapping convictions as to both women.
2. Prosecutorial misconduct by the prosecutor injecting his personal feelings into the case
and by utilizing a Power Point presentation that included a “mug shot” of petitioner for
the jury to see.
3. The prosecutor elicited improper testimony when Detective Scull told the jury that Hamer
informed him that perpetrator had inappropriately touched her breast such that a mistrial
should have been granted.
4. Trial court error by essentially permitting Scull to provide expert testimony “connecting
the dots” between the Hamer and Perez crimes.
5. Trial court error by failing to declare a mistrial when Ulbrich made two improper
references to petitioner’s prior incarceration.
6. Trial court error in failing to suppress petitioner’s statement to police.
7. Trial court should have granted petitioner’s motion for a change of venue or ordered a
foreign jury penal because of pre-trial publicity.
8. Trial Court error in denying petitioner’s motion for recusal.
9. Ineffective assistance of counsel for failing to move to suppress the cigarette butt or make
an argument to the jury based on a lack of chain of custody.
10. Ineffective assistance of counsel for failing to move to suppress the voice identification
11. The arrest warrant issued for defendant did not comply with the statutory requirements
for a valid arrest warrant and counsel was ineffective for failing to suppress the evidence
that followed that illegal arrest.
12. The PCR petition was improperly denied as petitioner is entitled to an evidentiary
These claims will be considered in turn.
A. Claim I – Insufficiency of the Evidence
Petitioner makes two arguments with respect to claiming that there was insufficient
evidence to support his convictions. First, he claims that there was insufficient evidence to
support his convictions on the charges involving Sadie Hamer. Second, he claims that there was
insufficient evidence to support the kidnapping convictions. The last reasoned decision from the
state courts on this claim was from the Appellate Division on direct appeal. That court analyzed
these issues as follows:
In deciding a motion for a judgment of acquittal, the trial judge
must review the sufficiency of the evidence and determine whether
the evidence is sufficient to warrant a conviction. R. 3:18-1; State
v. Reyes, 50 N.J. 454, 458-59 (1967); State v. Kluber, 130 N.J.
Super. 336, 341 (App. Div. 1974), certif. denied., 67 N.J. 72
(1975). The trial judge must determine whether the State has
presented sufficient evidence, viewed in its entirety, and giving the
S tate the benefit of all its favorable testimony and reasonable
inferences, to enable a jury to find the essential elements of the
offense beyond a reasonable doubt. State v. Martin, 119 N.J. 2, 8
(1990); State v. Reyes, supra, 50 N.J. at 458-59. Here, in denying
defendant’s motion, the trial judge correctly concluded a rational
jury could find substantial evidence of guilt of the offenses charged
as to both victims, stating:
The state has presented the direct evidence by virtue
of the testimony of Mary Helen Perez that she
recognized the defendant’s voice, when joined with
what little she could glean of the appearance of the
defendant at the time of the arrest and the
photograph that’s been shown [and] admitted into
evidence, certainly, the appearance of his hair for
Miss Perez testified that the assailant smelled,
whom she believed to be the defendant, strongly of
cigarette[s]. A cigarette butt is found outside of the
window which happens to contain the defendant’s
A pair of scissors is found in a car.
The-there is a piece of carpeting found in the
defendant’s short pocket. And there is testimony
that her keys had been lying on the floor and that
there were bits of carpeting scattered throughout her
The similarities between the details of the assault
upon Miss Perez and that of the Sadie Elizabeth
Hamer incident truly are striking: The hour of the
night; the manner in which they were bound; the
fact very nominal items were taken as opposed to,
say, electronics; that the women were similarly
situated that they had only a young child, a
comparatively young child with them; the manner
of entry; the fact that the defendant in one case
didn’t go to work at all; in another, the second
instance, went to work an hour late; the testimony
about the bicycle; his own statements about his
whereabouts and his knowledge of rumors, both of
which, there was ample testimony rebutting his
We find meritless defendant’s argument that the trial court should
have dismissed the kidnapping charges as to both victims or that
there was insufficient basis to support these convictions. The
record does not demonstrate that Hamer or Perez were restrained
just so their assailant could commit the robbery of their respective
residences, i.e., that the confinement was “merely incidental to the
underlying substantive crime.” State v. La France, 117 N.J. 583,
The cases where the kidnapping charge is based on confinement
focus on the enhanced risk of harm, not the duration of the
confinement. State v. Soto, 340 N.J. Super. 47, 74 (App. Div.
2001). For a defendant to be convicted of first-degree kidnapping,
as defendant was in this case, the confinement must have
substantially increased the risk of harm beyond that which was
inherent in the crime itself. State v. Lyles, 291 N.J. Super. 517,
526 (App. Div. 1996). Defendant could have stolen the items
without having wakened the sleeping women, just as he was able
to complete the burglary of Hamer’s home without ever waking
her son. Instead, he confined and threatened their lives, which
presented a substantial risk of emotional distress and physical
injury to the victims. Defendant appeared in each of their
bedrooms in the middle of the night and awakened them, straddled
them on their beds, bound their hands behind their backs and also
gagged Perez, and placed a sharp object against their throats and
threatened to hurt them. Moreover, there is no evidence defendant
released either victim “unharmed and in a safe place prior to
apprehension.” N.J.S.A. 2C:13-1c(1); State v. Johnson, 309 N.J.
Super. 237, 265 (App. Div. 1998). Defendant did not release the
victims from their confinement. He left both women bound on
their beds, with a pillowcase over Hamer’s head and a gag in
Perez’s mouth. The victims, with the police, removed the material
which they were bound.
(Dkt. No. 9-8 at p. 2-3.)
The Due Process Clause of the Fourteenth Amendment “protects the accused against
conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the
crime for with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). There is
sufficient evidence to support a conviction, if “after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). A
petitioner raising an insufficiency of the evidence claim faces a “’very heavy burden’ to overturn
the jury’s verdict for insufficiency of the evidence.” United States v. Root, 585 F.3d 145, 157
(3d Cir. 2009) (citing United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998)). In analyzing a
sufficiency of the evidence claim, a court examines both the direct and circumstantial evidence
in their totality. See United States v. Pavulak, 700 F.3d 651, 668 (3d Cir. 2012) (citations
Sadie Hamer Incident
Petitioner’s first insufficiency of the evidence claim is that there was insufficient
evidence presented to establish that he was perpetrator with respect to the Hamer incident. In
analyzing this claim, the Appellate Division relied on the circumstantial similarity evidence
between the Hamer incident and the Perez incident in which there was more direct evidence
connecting petitioner to that crime (in the form of voice identification and forensic evidence).
Indeed, the court noted the similarity in time, the manner of entry, the items stolen, the nature of
the victims and the fact that the petitioner either did not go to work or appeared for work late the
next day with respect to the two incidents. Thus, in denying this claim, the Appellate Division in
effect held that the Hamer and the Perez incidents had similar modus operandi. The Court finds
that this was not an unreasonable application of clearly established federal law, because, as stated
above, in analyzing a sufficiency of the evidence claim, a court needs to examine not only the
direct evidence, but also the circumstantial evidence in their totality. See Pavulak, 700 F.3d at
668; see also United States v. Cobb, 397 F. App’x 128, 135-36 (6th Cir. 2010) (denying
insufficiency of the evidence claim for Huntington Bank robbery where the robbery had a similar
modus operandi to robbery of Chase Bank where DNA evidence supported the conviction);
Dixon v. Tampki ns, No. 12-2821, 2013 WL 1246751, at *9 (C.D. Cal. Feb. 11, 2013) (“Based
on modus-operandi evidence from Petitioner’s other convictions, a rational fact finder could
have inferred that he committed the four crimes in question.”) (citing United States v. Momeni,
991 F.2d 493, 494 (9th Cir. 1993); United States v. Hirokawa, 342 F. App’x 242, 248-49 (9th
Cir. 2009)); report and recommendation adopted by, 2013 WL 1245981 (C.D. Cal. Mar. 27,
2013). Therefore, petitioner is not entitled to federal habeas relief on this insufficiency of the
Petitioner also argues that there was insufficient evidence to find him guilty on the two
kidnapping charges. “When assessing such claims on a petition for habeas relief from a state
conviction, the sufficiency of the evidence standard ‘must be applied with explicit reference to
the substantive elements of the criminal offense as defined by state law.’” Robertson v. Klem,
580 F.3d 159, 165 (3d Cir. 2009) (quoting Jackson, 443 U.S. at 324 n.16). In New Jersey,
kidnapping is defined as follows:
A person is guilty of kidnapping if he unlawfully removes another
from his place of residence or business, or a substantial distance
from the vicinity where he is found, or if he unlawfully confines
another for a substantial period, with any of the following
(1) To facilitate commission of any crime or flight
(2) To inflict bodily injury on or to terrorize the
victim or another;
(3) To interfere with the performance of any
governmental or political function; or
(4) To permanently deprive a parent, guardian, or
other lawful custodian of custody of the victim.
N.J. STAT. ANN. § 2C:13-1b. Additionally, the kidnapping statute provides that kidnapping is a
first-degree offense, but that it is a crime in the second-degree if the actor releases the victim in a
safe place prior to apprehension. In this case, petitioner argues that there was insufficient
evidence to sustain both the kidnapping charge in and of themselves as well as a finding of a
first-degree kidnapping charge in both incidents.
In a case such as this that involves confinement, the Appellate Division noted in New
Jersey that the restraint must not merely be incidental to the underlying substantive crime, but
must substantially increase the risk of harm beyond that necessarily present in the crime itself.
See State v. La France, 117 N.J. 583, 587 (1990). The Appellate Division then explained that
the restraint in this case was not incidental because petitioner could have stolen the items without
having awoken Hamer or Perez, and without threatening their lives. Thus, it certainly increased
the risk of harm beyond that necessarily present in the crime itself through petitioner’s additional
actions. Additionally, as noted by the Appellate Division, petitioner did not release the victims
from their confinement, but, instead, left both of them bound in their beds. Under such
circumstances, this Court finds that the Appellate Division did not unreasonable apply clearly
established federal law or deny this claim based on an unreasonable determination of the facts.
Accordingly, habeas relief is not warranted on Claim I.
B. Claim II – Prosecutorial Misconduct by Injecting Personal Opinion and Presenting “Mug
Shot” Photo of Petitioner
Petitioner makes several distinct arguments within Claim II. First, he asserts that the
prosecutor impermissibly injected his own personal opinion in his opening statement. Second,
petitioner claims that the prosecutor improperly invoked sympathy for the victims during his
closing argument. Third, petitioner asserts that the prosecutor impermissibly used a Power Point
Petitioner argued as follows in the state courts with respect to the prosecutor purportedly
impermissibly injecting his personal opinion in his opening remarks to jury:
During opening, the prosecutor injected his personal views into the
matter, telling the jury about waking up with the television on, “I
know myself included.” He stated, “I suspect” the “worst concern”
of the victims was only having a bad dream. When describing the
evidence he intended to present, the prosecutor stated, “I can tell
yo u that,” injecting his views into the case. Nothing in the
evidence supported these statements.
The prosecutor improperly invited sympathy for the victims,
telling the jury, “You can imagine, I suspect, some measure of fear
and terror that enveloped [the victims] . . . I’m not sure any of us
who have never experienced anything like that can truly
understand and appreciate what a circumstance like that would
create, but I suggest we all have a good idea of what she was going
through at that point in time” “Whatever terror preceded that
moment, I suggest to you, it just went through the roof. The
absolute terror that she then was under is unimaginable.” In
closing, the prosecutor continued to invoke improper sympathy for
the victims with the repeated use of “atrocity.”
(Dkt. No. 9-3 at p. 40-41 (internal citations omitted).) Petitioner also claims that the prosecutor
committed misconduct by continuing to use the word atrocities to enlist the jury to his cause
without offering any evidence and that a Power Point presentation that the prosecutor used
improperly included a “mug shot” of the petitioner for the jury to see. The last reasoned decision
on these prosecutorial misconduct issues was from the Appellate Division on petitioner’s direct
appeal which analyzed them as follows:
We find no error, let alone plain error, in the cited comments made
by the prosecutor during opening and closing arguments, to which
defendant did not object, which defendant now contends
improperly injected the attorney’s personal views into the case and
improperly invited sympathy for the victims. There is no
indication in the record the prosecutor’s conduct in his comments,
eliciting testimony from Detective Scull or in using visual aids
substantially prejudiced defendant’s fundamental right to have a
jury evaluate the merits of his defense. See, e.g., State v.
Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S.
858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). The State’s
comments did not exceed the bounds of proper argument or
express a personal belief as to defendant’s guilt. See State v.
Staples, 263 N.J. Super. 602, 606-07 App. Div. 1993); State v.
Kounelis, 258 N.J. Super. 420, 429 (App. Div.), certif. denied, 133
N.J. 429 (1992). Nor were any of the comments “plainly designed
to impassion the jury” and to divert its attention from the facts of
the case. State v. Harvey, 121 N.J. 407, 425 (1990), cert. denied,
499 U.S. 931, 111 S. Ct. 1336, 113 L. Ed. 2d 268 (1991).
Moreover, the prosecutor’s “striking similarities” Power Point
presentation was accurate and was confined to the “evidence
revealed during the trial and reasonable inferences to be drawn
from the evidence.” State v. Smith, 167 N.J. 158, 178 (2001). The
presentation did not bootstrap physical evidence from the Perez
incident to the Hamer incident and did not misrepresent Hamer’s
inability to identify defendant, although she knew him, or the lack
of physical evidence tying defendant to the Hamer break in.
(Dkt. No. 9-8 at p. 6.)
A criminal defendant’s due process rights are violated if prosecutorial misconduct
renders a trial fundamentally unfair. See Darden v. Waingright, 477 U.S. 168, 182-83 (1986). A
habeas petition will be granted for prosecutorial misconduct only when the misconduct “so
infected the trial with unfairness as to make the resulting conviction a denial of due process.” Id.
at 181 (internal quotation marks and citation omitted). A prosecutorial misconduct claim is
examined in “light of the record as a whole” in order to determine whether the conduct “had a
substantial and injurious effect or influence” on the jury’s verdict. See Brecht v. Abrahamson,
507 U.S. 619, 638 (1993). A “reviewing court must examine the prosecutor’s offensive actions
in context and in light of the entire trial, assessing the severity of the conduct, the effect of the
curative instructions, and the quantum of evidence against the defendant.” Moore v. Morton, 255
F.3d 95, 107 (3d Cir. 2001).
Prosecutor’s Opening Statement Remarks
Petitioner’s first argument is that the prosecutor improperly injected his personal views in
his opening statement. Petitioner’s main complaint is with the beginning of the prosecutor’s
opening statement and his use of “I” within the opening statement. The relevant portion
complained of by petitioner is italicized below:
In 2000, two women, residents of Woodbine, New Jersey, a small
borough where virtually everyone is, to some degree, familiar with
everyone else, these two women had their routine, ordinary lives
forever changed in the most cruel and heinous manner one might
imagine by this man, Alonzo Price.
Exactly one week from each other, these two women
independently fell victim to his cruelty. Each had gone to bed late
that night or, in one instance, just after midnight – having gone
through whatever routines their lives had leading up to going to
bed, they went to bed those nights with no more or less concern
than any others. Perhaps, I suspect, maybe their worst concern, if
any, might be the potential of a bad dream or nightmare of some
sort. But beyond that, they each felt that they were comfortable
and secure in the sanctity of their own home.
Each of them was in bed alone and had fallen asleep with no lights
in their respective homes on with the exception of the dull glow
from a TV screen that was left on as they had each gone to bed.
They didn’t intend to drift off to sleep as they were watching TV
their respective late nights or early mornings. But perhaps like
many of us – I know myself included – well, we oftentimes do that,
nonetheless, and find ourselves sometime later waking up to the
glow of the TV screen in the early morning hours. These two
women, however, awoke under far more disturbing circumstances.
Each of them found, suddenly, out of the depths of their sleep, that
someone was in their bed with them. In the case of Sadie Hamer,
the woman who was the first victim of this misconduct, she had
two sons in her home at that point in time and, perhaps
understandably, expected when she felt that somebody had sat
down on the edge of the bed beside her while she was under her
covers asleep, that it was one of her sons who had, for whatever
reason, gotten up and come into her room for some purpose. She
quickly realized otherwise.
She was immediately instructed by a stranger – as she’s shaking
loose the grogginess of being awakened from a deep sleep, she
confronted a stranger instructing her, in the virtual darkness, to not
scream, “Don’t make a noise. Lay back and don’t look at me,”
commanding instructions from these individual – from this
individual. She followed those instructions.
When told, “Don’t look at me,” though in the darkness, even with
the slight glow from the TV because the TV was back behind
where this person was not illuminating the features of his face, she
didn’t know who this person was at that point in time. She,
nonetheless and understandably, followed that instruction and
turned her face – her head away from looking at his at the time
while she lay on her back on her bed and this man then climbed on
top of her.
You can imagine, I suspect, some measure of the fear and terror
that enveloped her at that point. I’m not sure any of us who have
never experienced anything like that can truly understand and
appreciate what a circumstance like that would create, but I
suggest that we all have a good idea of what she was going
through at that point in time.
(Dkt. No. 10-6 at p. 24-25.) The state courts determined that the prosecutor’s statements during
his opening statements did not so infect the trial to prejudice the defendant from receiving a fair
trial. After reviewing the record as cited above with respect to the prosecutor’s opening
statement, the Court concludes that the state court’s denial of this claim was not an unreasonable
application of clearly established federal law. First, the prosecutor is entitled to considerable
latitude to argue the evidence and reasonable inferences that can be drawn from that evidence.
See United States v. Werme, 939 F.2d 108, 117 (3d Cir. 1991). Indeed, the evidence cited by the
prosecutor was based on evidence that he intended to, and in fact did produce at trial such as, the
fact that the TV was left on and the nature of the attack. Furthermore, as noted by the Appellate
Division, the prosecutor did not state his personal opinion or belief in the petitioner’s guilt. See
Fahy v. Horn, 516 F.3d 169, 203 (3d Cir. 2008) (noting that a prosecutor cannot express his
personal belief in the credibility of a witness or the guilt of a defendant). Finally, it is worth
noting that the jury was specifically instructed that the prosecutor’s opening statement was not
evidence, (see Dkt. No. 10-6 at p. 19.) and that it needed to base its decision on the evidence in
the case. (See Dkt. No. 10-12 at p. 5-9.) The jury is presumed to have followed the instructions
given to it by the trial judge. See Weeks v. Angelone, 528 U.S. 225, 234 (2000). Accordingly,
under such circumstances, the Court finds that petitioner is not entitled to habeas relief on this
prosecutorial misconduct claim. 2
Prosecutor’s Closing Argument Remarks
Petitioner next argues that he is entitled to habeas relief because the prosecutor invoked
sympathy for the victims by repeatedly using the term “atrocity” during his closing argument.
The denial of this claim by the state courts was not an unreasonable application of clearly
established federal law, nor based on an unreasonable determination of the facts. Indeed, the
description of the crimes as atrocities where the victims were bound, threatened with a sharp
object, and the robbed was based upon the evidence presented at trial. Accord Lopez v. Folino,
No. 09-0975, 2012 WL 3777444, at *10 (E.D. Pa. Aug. 30, 2012) (“The prosecutor’s description
of the murder as an execution and Lopez as the executioner can also be argued based upon the
evidence presented at trial. The shooter fired into the victim with a handgun which was placed
directly against the back of his head.”). Thus, petitioner is also not entitled to federal habeas
relief with respect to this argument.
Power Point Presentation
To the extent that petitioner argued that the prosecutor also committed misconduct in his
opening by stating, “I can tell you that,” as noted by respondent, the petitioner misquotes the
prosecutor. Indeed, the prosecutor reference to “I” was quoting what he intended Mary Perez to
state during her testimony. (See Dkt. No. 10-6 at p. 32-33 (“First is the voice recognition by
Mary Perez that we spoke of. And she can – will admittedly say ‘Look, can I say with absolute
certainty from that voice alone that it had to have been him? No. I mean he’s who I recognize it
to be but I suppose, you know, there could’ve been someone else of similar physical appearance
and statute and – with a similar, if not, you know, altogether identical voice who was involved in
Petitioner also objects to the prosecutor’s Power Point presentation entitled, “A Tale of
Two Atrocities,” that was used at his trial. Petitioner claims that the Power Point presentation
improperly bootstrapped evidence from the Perez incident into the Hamer incident. Finally,
petitioner claims that the power point presentation should have been excluded because it glossed
over elements of the kidnapping charges.
The last reasoned decision on the prosecution’s use of the Power Point presentation was
from the Appellate Division on petitioner’s direct appeal. That court found that the use of the
power point presentation did not so prejudice petitioner that prevented him from having a fair
trial. (See Dkt. No. 9-8 at p. 6 (“There is no indication in the record the prosecutor’s conduct . . .
in using visual aids substantially prejudiced defendant’s fundamental right to have a jury
evaluate the merits of his defense.”).)
This argument is not cognizable on federal habeas review to the extent petitioner asserts
that the state court erred as a matter of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68
(1991) (stating that “it is not the province of a federal habeas court to reexamine state-court
determinations of state-law questions”). The due process inquiry that is applicable to this issue is
whether the state court’s ruling was so arbitrary or prejudicial that it rendered the trial
fundamentally unfair. See Romano v. Oklahoma, 512 U.S. 1, 12-13 (1994); see also Keller v.
Larkins, 251 F.3d 408, 413 (3d Cir. 2001) (noting that to show that an evidentiary error rises to
the level of a due process violation, a petitioner must show “that it was of such magnitude as to
undermine the fundamental fairness of the entire trial”). The United States Supreme Court has
“defined the category of infractions that violate ‘fundamental fairness’ very narrowly.” Dowling
v. United States, 493 U.S. 342, 352 (1990).
Petitioner is not entitled to federal habeas relief on this claim. First, petitioner’s
argument that he is entitled to federal habeas relief because the Power Point presentation glossed
over the kidnapping charges is without merit. Indeed, the state court instructed the jury on the
elements that made up the kidnapping charges in its jury charge. (See Dkt. No. 10-12 at p. 1112.) The jury is presumed to have followed this instruction during its deliberations. See Weeks,
528 U.S. at 234. Second, as the state court noted, the Power Point presentation did not bootstrap
evidence from the Perez incident into the Hamer incident. Indeed, the striking similarities charge
had separate columns for what transpired with respect to the two crimes. (See Dkt. No. 9-4 at p.
32.) This was merely an argument that there were reasonable inferences to be made from the
evidence produced at trial. This did not make petitioner’s trial fundamental unfair such that the
denial of this claim was not an unreasonable application of clearly established federal law.
Finally, the use of petitioner’s photo in the Power Point presentation and its subsequent
use at trial does not entitle petitioner to federal habeas relief. Respondent asserts that there is no
indication that the picture itself was a “mug shot” as the picture was redacted. The quality of the
copy of the photo that respondent submitted to this Court is extremely poor. (See Dkt. No. 9-4 at
p. 29.) Indeed, the copy of the photo respondent submitted is extremely blurry. While the Court
can barely make out that it is a picture of a person, beyond the silhouette, no other identifiable
features of the photo are clear. Nevertheless, the quality of the picture submitted by the
respondent does not affect this Court’s analysis of this Claim. Testimony revealed at trial
indicates that petitioner was wearing normal clothes and not in prison garb in the picture. (See
Dkt. No. 10-8 at p. 40 (“I don’t remember what color his clothes were, although the photograph
that you showed me would show what shirt he was wearing.”).) This is important because some
courts have noted that failing to remove the reference to a prison in a photo may constitute an
error. See Peace v. Hendricks, No. 03-5987, 2005 WL 3406405, at *6 (D.N.J. Dec. 12, 2005).
Thus, it appears that the photo itself was not a “mug shot” per se, but instead an “arrest photo.”
See Crawford v. United States, No. 06-0265, 2008 WL 1775260, at *5 (W.D.N.C. Apr. 15, 2008)
(distinguishing arrest photos from mug shots as arrest photographs “did not contain references to
prison dates or incarceration.”)
Respondent argues that petitioner’s argument is without merit because, “[w]hile the
photograph of Petitioner, S-22, was taken at the time of Petitioner’s arrest, the redacted version
of the photograph that the State of New Jersey showed to the jury did not give any indication of
that fact.” (Dkt. No. 9 at p. 42.) While perhaps technically true, respondent’s argument fails to
place into context how (in part) the photograph was discussed at trial. Indeed, as petitioner
notes, when Detective Ulbrich was specifically questioned about the photograph, he noted that it
was taken on June 30, 2002, or the day petitioner was taken into custody. (Dkt. No. 10-7 at p. 90
(“The photo was taken when he was lodged in the county jail which was on an unrelated
issue.”).) Thus, as this Court reads petitioner’s arguments, the photograph, when combined with
Ulbrich’s testimony, shows that the photograph deprived him of a fair trial by the prosecutor’s
actions because it introduced evidence of petitioner’s prior bad character. 3
The state court determined that the use of the Power Point presentation did not prejudice
the petitioner. To reiterate, to grant federal habeas relief, it is not enough for this Court to find
that the state court’s determination was incorrect, but rather, whether its determination was
unreasonable which is a substantially higher threshold. See Schriro v. Landrigan, 550 U.S. 465,
473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410)). The use of the photograph coupled
with Detective Ulbrich’s statement that it was taken when he was placed in the jail on an
The separate issue of whether petitioner is entitled to federal habeas relief due to Ulbrich’s
statement of petitioner’s “prior” incarceration is discussed infra Part IV.E.
unrelated issue does give rise to the potential of prejudice towards petitioner. However, this
Court notes that petitioner’s identification at the time of the crimes was clearly at issue in that
neither victim could visually identify the culprit, but did notice several of the culprit’s features.
Furthermore, in light of the deferential standard of review that this Court must apply under
AEDPA to the state court’s denial of this Claim, this Court finds that the state court’s finding of
no prejudice was not an unreasonable application of clearly established federal law. Indeed, the
evidence against petitioner included DNA and forensic evidence which tied petitioner to the
Perez crime scene. Furthermore, petitioner’s voice was identified by Perez as her attacker on the
night in question. Accordingly, this Court finds that the state court’s denial of this claim based
on a failure to show prejudice was not an unreasonable application of clearly established federal
law. Thus, petitioner is not entitled to federal habeas relief on this claim.
C. Claim III – Improper Testimony necessitated a mistrial
In Claim III, petitioner argues that Detective Scull contributed to the unfair trial when he
testified with respect to the Hamer incident that the perpetrator laid on top of her and
inappropriately touched one of her breasts. Petitioner notes that in his first trial that he was
charged with aggravated criminal sexual assault with respect to this touching, but that the charge
was dismissed without prejudice and was not part of the second trial that is relevant to this
habeas action. Petitioner claims that the trial court should have granted his motion for a mistrial
which was made later on by petitioner’s trial counsel during Scull’s testimony. Petitioner further
claims that the trial court agreed to give a curative instruction regarding Scull’s comment but
none was ever given. Relying on the New Jersey Rule of Evidence 403(b), petitioner argues that
this added to the prejudice and made it more likely that the jury would use this improper
reference to convict petitioner on an improper basis.
Neither the New Jersey Supreme Court nor the Appellate Division provided a reasoned
decision on this claim on the merits. Therefore, the last reasoned decision on this claim is from
the trial court which denied petitioner’s motion for a mistrial in light of Scull’s comment. In
denying petitioner’s motion for a mistrial, that court stated as follows:
[I]n light of the fact both victims testified that they awakened in
the middle of the night to find a strange man in their bedrooms
who straddled them during the course of binding their arms, who
put pillowcases over their heads and threatened their lives, that’s, I
think, compared to the touching that’s been testified to far more
significant conduct on the part of the defendant. The incident as
described by Detective Scull is minimal compared to that.
Miss Hamer testified that she felt a sharp object, that she felt a
wooden handle, believed that the assailant had a knife, believed
that he was going to kill her. When she initially got up and he
returned, she believed she was going to be killed then. She was so
fearful of the assailant that even though she thought she heard the
person leave the house, when she went into her son’s room, she
spoke to her son in a soft voice, not being willing to have the
chance, to take the chance that the assailant would come into her
son’s bedroom and harm him and her.
Miss Perez also testified about being afraid.
I don’t think it makes any difference, frankly, in light of the
context, the greater context and circumstances both victims have
testified to, that this piece of information was supplied to the jury.
There’s also no dispute that that’s what Miss Hamer reported not
just to the police but in her statement which was maintained.
There is no particular prejudice that can inure to the defendant that
Miss Hamer in the first trial did not – was not willing, I guess, to
describe anything of that nature. That was a choice that she made
and the State reacted appropriately then.
I don’t believe that Detective Scull gratuitously mentioned it.
Even if he did, given the other things that Miss Hamer testified and
Miss Perez testified to, it pales by comparison.
And there’s no manifest injustice in proceeding. I’ll give an
instruction if counsel wants me either now or at the end of the trial.
There is nothing about that statement that is inflammatory such as
to warrant a mistrial.
(Dkt. No. 10-9 at p. 67.)
At the outset, this Claim is not cognizable on federal habeas relief to the extent that it
asserts that the state court erred as a matter of state law in permitting this evidence from Scull to
be admitted. See Estelle, 502 U.S. at 67-68 (stating that “it is not the province of a federal
habeas corpus to reexamine state-court determinations of state-law questions”); see also Keller v.
Larkins, 251 F.3d 408, 416 n. 2 (3d Cir. 2001) (“A federal habeas court . . . cannot decide
whether the evidence in question was properly allowed under the state law of evidence.”). In
terms of a federal due process claim, to prevail, petitioner must prove that he was deprived of
fundamental elements of fairness in his criminal trial. See Glenn v. Wynder, 743 F.3d 402, 407
(3d Cir. 2014) (quoting Riggins v. Nevada, 504 U.S. 127, 149 (1992)). As previously noted, the
Supreme Court has “defined the category of infractions that violate ‘fundamental fairness’ very
narrowly based on the recognition that [b]eyond the specific guarantees enumerated in the Bill of
Rights, the Due Process Clause has limited application.” Medina v. California, 505 U.S. 437,
443 (1992). “In order to satisfy due process, [petitioner’s] trial must have been fair; it need not
have been perfect.” Glenn, 743 F.3d at 407 (citing United States v. Hasting, 461 U.S. 499, 508
The trial court decided that in light of the other facts surrounding both the Hamer
incident, for example, the binding and use of a sharp object to threaten her, the fact that Scull
testified that the perpetrator inappropriately touched Hamer’s breasts did not so prejudice the
trial so as to make it fundamental unfair. This was not an unreasonable application of clearly
established federal law on whether petitioner’s fundamental fairness rights were violated.
Accordingly, federal habeas relief is not warranted on this claim.
D. Claim IV – Purported Improper Expert Testimony from Scull
In Claim IV, petitioner argues that the trial court erred by permitting Scull to provide
expert testimony by allowing him to “connect the dots” between the Hamer and Perez crimes.
Petitioner asserts that this connection was for the jury to make, not the detective’s to make. The
last reasoned decision on this claim was from the Appellate Division on petitioner’s direct appeal
which analyzed this claim as follows:
The trial court correctly overruled defendant’s objection to
Detective Scull’s testimony “connecting the dots” between the two
crimes, stating the detective was entitled to explain his decision to
charge defendant for both crimes. The similarities between the
two crimes – their locations the times they were committed, the
choice of victims, and the assailant’s conduct before and after each
of the incidents, is not “expert” testimony beyond the
understanding of the average juror. See N.J.R.E. 703. Rather, it is
the kind of factual testimony that a police officers would typically
provide based on his or her perception of the evidence obtained in
(Dkt. No. 9-8 at p. 6.) Thus, the Appellate Division found that the testimony of Scull was proper
as a matter of state law. It is not the province of this Court on federal habeas review to reexamine state court determinations on state law questions. See Estelle, 502 U.S. at 67-68.
Therefore, petitioner is not entitled to federal habeas relief on this claim. Accord Stidham v.
Varano, No. 08-3216, 2009 WL 1609423, at *20 (E.D. Pa. June 9, 2009) (where state court
found that witnesses did not testify as experts but rather that such lay opinion testimony was
admissible as a matter of state law, federal court on habeas review must accept state court’s
determination as it “would be in no position even to consider whether the Superior Court
correctly ruled that the testimony was admissible as a matter of state law”).
E. Claim V – Statements of Petitioner’s Prior Incarceration
In Claim V, petitioner argues that the trial court erred in denying his request for a mistrial
in light of Detective Ulbrich’s references to his prior incarceration. The first occurred in
discussing petitioner’s appearance on direct:
Q: And what were your observations of Mr. Price at the time of
A: He had a day’s growth, a stubbly beard and his hair was unkept
like it was a little bit long enough to, to grab.
Q: I show you a photo that’s been marked S-22 for identification.
Do you recognize what that photograph is?
A: Yes. It’s a photograph of Alonzo Price. This was taken on
June 30, 2002 in conjunction with him being placed in the county
Q: And that was – the photo was taken with regard to his arrest for
A: I believe that photo was taken when he was lodged in the
county jail which was on a unrelated issue.
(Dkt. No. 10-7 at p. 90.) The second reference occurred later on during the direct examination of
Ulbrich when he discussed the buccal swab that was taken from petitioner; specifically:
Q: What is a buccal swab? How do –
A: It’s a –
Q: How do you go about –
A: It’s a cotton swab –
Q: -- obtaining –
A: A buccal swab really is the buccal region of your mouth which
is inside your jaw between your check and your gum. And it’s a –
it’s a process that you use a cotton swab to obtain epithelial cells,
like, from your mouth, some skin cells from the buccal region
that’ll be used for DNA purposes that are contained within the
saliva. [¶] And it’s the – that’s the preferred method to send in a
DNA sample as opposed to, say, something like a blood sample.
Q: Directing your attention to the, to the second of those two
envelopes, what’s that?
A: The second envelope is marked with the same case number.
It’s A05000531, Lab. No. 14003999. This says, “Two buccal
swabs (saliva) taken from Alonzo Price, Sr., suspect. Date, 1/9 of
2001, time 10:02 a.m. location Cape May County Jail, nurse’s
office,” my name, Detective Karl Ulbrich with my badge number.
And it contains Items 14 and 14A, KEU14 and KEU14A.
(Dkt. No. 10-7 at p. 94-95.) At the close of testimony that day, petitioner’s counsel moved for
mistrial arguing that these two references were unduly prejudicial. The trial court denied the
motion for a mistrial and stated as follows:
And, in fact, an instruction can be fashioned to be given to the jury
tomorrow if you want or at the end of the case if you prefer to the
effect that the officer when reading off the place where the buccal
swab was taken made reference to the nurse’s office at the county
jail, and that is because that’s where the buccal swabs are taken in
Cape May County Prosecutor’s Office cases and leave it at that.
So there just is – the first comment, honestly, this officer has a
tendency to mumble. It’s almost as if he has marbles in his mouth,
and I had difficulty following his testimony and just barely heard
I’ll make – I’ll fashion an instruction, review any you can propose,
gladly give it to the jury if you want. I really don’t have a concern
that the jury could possibly have heard what he said or understand
what it meant if they did. But I extend to you the opportunity to
give me an instruction.
The jail reference, I do feel obliged to address. I think that can be
done very readily. And I don’t think any prejudice in this case
flows from either situation in a case where the charges include two
first-degree kidnappings and two burglaries. Obviously, the
defendant’s going to be processed. The county resources are going
to be involved in the investigation of the case. And I think we can
just leave it at that.
There is no, in my opinion, undue prejudice flowing from these.
Obviously, it would have been cleaner if they hadn’t but they
(Dkt. No. 10-7 at p. 99-100.) The trial court’s denial of this claim is the last reasoned decision
for purposes of this Court’s review as the Appellate Division denied this claim without
discussion. See Ylst, 501 U.S. at 803.
The disclosure of petitioner’s incarceration “may, in certain circumstances, violate a
defendant’s due process right to a fair trial.” United States v. Faulk, 53 F. App’x 644, 647 (3d
Cir. 2002). For example, a panel of the Third Circuit in Faulk, using Estelle v. Williams, 425
U.S. 501, 512-13 (1976), noted that “a defendant’s Fourteenth Amendment rights are violated if
compelled to stand before a jury while dressed in identifiable prison clothes.” Faulk, 53 F.
App’x at 647 (citation omitted). In Estelle, “[t]he Supreme Court emphasized that ‘the constant
reminder’ to the jury over the course of a trial that the defendant is a prisoner may impair the
presumption of innocence.” Id. (citing Estelle, 425 U.S. at 504). Nevertheless, many courts have
noted that the “the mere utterance of the word [jail, prison, or arrest] does not, without regard to
the context or circumstances, constitute reversible error per se.” United States v. VillanbonaGarnica, 63 F.3d 1051, 1058 (11th Cir. 1995) (quoting United States v. Veteto, 701 F.2d 139-40
11th Cir. 1983) (quoting United States v. Barcenas, 498 F.2d 1110, 1113 (11th Cir. 1974))); see
also United States v. Atencio, 435 F.3d 1222, 1237 (10th Cir. 2006) (“The rule of Estelle does
not apply, to every mere utterance of the words [jail, prison, or arrest], without reference to
context or circumstances.”) (internal quotation marks and citation omitted); Faulk, 53 F. App’x
at 648; United States v. Alsop, 12 F. App’x 253, 258 (6th Cir. 2001); United States v. Henry,
Crim. No. 06-33-02, 2012 WL 5881848, at *6 (E.D. Pa. Nov. 21, 2012) (noting that courts from
outside the Third Circuit have held, in line with Faulk, that mere utterance of words jail, prison
or arrest does not amount to a constitutional violation). As some courts have explained, this
distinction “is because ‘the impact of referring to a defendant’s incarceration is not constant as it
is with prison garb.’” United States v. Falciglia, No. 09-120, 2010 WL 2408153, at *9 (W.D.
Pa. June 7, 2010) (quoting United States v. Washington, 462 F.3d 1124, 1136-37 (9th Cir.
2006)). Thus, isolated or brief references to a defendant’s incarceration during trial do not
necessarily amount to a due process violation. See Atencio, 435 F.3d at 1238 (prosecutor’s
single reference that defendant was in jail did not impair presumption of innocence since it was
isolated and not a continuing occurrence); United States v. Allen, 425 F.3d 1231, 1236 (9th Cir.
2005); Faulk, 53 F. App’x at 647-48 (“[W]e find that the prosecutor’s brief (albeit repeated)
mention of Faulk’s imprisonment in a single short series of questions did not serve as a ‘constant
reminder’ to the jury of defendant’s condition so as to impair the presumption of innocence.”);
Falciglia, 2010 WL 2408153, at *10 (witnesses two references to defendant being an “inmate”
did not impair the presumption of innocence because it did not constitute a “constant reminder”
that defendant had been incarcerated).
In this case, references to petitioner’s incarceration were brief and in passing. They did
not serve as a “constant reminder” to the jury that petitioner had been incarcerated and did not
impair his presumption of innocence. See Faulk, 53 F. App’x at 647. Additionally, the trial
court gave petitioner the opportunity to come up with a curative instruction. 4 Furthermore, the
second reference by Ulbrich did not even necessarily implicate that petitioner was in jail, only
that the buccal swabs were taken from petitioner at the Cape May County Jail. Under these
circumstances, and when viewed in context, the Court finds that the state court’s denial of this
claim was not an unreasonable application of clearly established federal law and the decision was
not based on an unreasonable determination of the facts. Accordingly, this claim does not
warrant granting federal habeas relief.
F. Claim VI – Failure to Suppress Statement
In Claim VI, petitioner argues that the trial court erred in refusing to suppress his
statement to the police. He claims that the State failed to prove that his statements were
voluntarily given after waiving his Miranda rights. He states that he was interviewed by two
detectives at once and was handcuffed and placed in a holding cell before the interrogation. The
It does not appear that petitioner elected to create such an instruction for the trial court’s
last reasoned decision on this claim was from the trial court which denied petitioner’s motion to
suppress his statement to police. In denying the motion to suppress, the trial court stated as
Clearly, the burden is on the State. Equally, clearly, the standard
of proof is beyond a reasonable doubt. This being a 104 hearing
outside the presence of the Jury to determine whether or not the
defendant’s statements will be admissible at trial whether or not
the requirements of Miranda were complied with.
The testimony is that the defendant had an outstanding bench
warrant. Once the officers learned of the existence of the bench
warrant, they sought him out and took him into custody and took
him back to the station. The testimony of Detective Scull is that at
the time the defendant was interviewed in essentially the
Municipal Courtroom was not even in handcuffs although he had
been told what was going to be the subject of the discussion and
obviously of the existence of the bench warrant on an unrelated
At the time he was interviewed, the witness has testified he was
seated essentially at the head of a table with an officer on either
side. All were seated when the conversation took place. The
Miranda card was displayed. It was read to the defendant. He was
asked if he understood what his rights consisted of. He responded,
yes. And he in fact signed the card which was also signed, dated
and a time noted by the officers who interviewed him.
The question then becomes since the only proofs that I have from
which conclusions of fact can be drawn are from the State and the
proofs are that the defendant in a non-coercive atmosphere had his
rights explained to him, said he understood them and then signed
the card. Was whether or not there was anything whatsoever in
the statements he made in the circumstances thereafter that
somehow made this voluntary, knowing and intelligent waiver of
his Miranda rights improper from the inception of the waiver or
thereafter and there simply isn’t.
This was a relatively brief interview. The fact that it was not
taped, given that the interview occurred four years ago, in
particular establishes nothing. The officers did not anticipate that
the defendant would make a full confession despite of his waiver
of his Miranda rights as acknowledged on the car and by his verbal
statements. Clearly, the facts that support the voluntariness of a
waiver or the non-coercive atmosphere down to not having him
cuffed, the brevity of the interview, the context of the interview,
the fact that a defendant, although he had been in a holding cell,
was alone. There were no weapons being shown, et cetera.
That it was a knowing and intelligent as established from the fact
that the defendant didn’t even ask questions about it is a person
actually with a prior criminal history of which the officers were
aware. He said he understood what his rights were and that he
would take to the officers and he signed an acknowledgement
thereof on the Miranda card.
It is certainly unrebutted that the defendant made a knowing and
intelligent waiver of his rights. When discussing the cases, he did
specify his whereabouts on a particular night. It turned out
thereafter to be very significant. But as the officer stated, at that
point in the investigation, they had spoken to several individuals
including the defendant. The investigation was evolving and it
was not until some time later that they understood the significance
of the statements the defendant had made in which he claimed that
he had basically been on his, in his room and intoxicated the entire
night of the Maria Perez incident.
The State has met its burden of proof.
(Dkt. No. 10-3 at p. 21-22.)
The United States Supreme Court decision in Miranda v. Arizona, 384 U.S. 436 (1966)
“held that ‘[t]he defendant may waive effectuation’ of the rights conveyed in the warnings
‘provided the waiver is made voluntarily, knowingly, and intelligently.’” Fahy, 516 F.3d at 194
(quoting Miranda, 384 U.S. at 444). This inquiry has two dimensions as explained by the
Supreme Court; specifically:
First, the relinquishment of the right must have been voluntary in
the sense that it was the product of a free and deliberate choice
rather than intimidation, coercion, or deception. Second, the
waiver must have been made with a full awareness of both the
nature of the right being abandoned and the consequences of the
decision to abandon it. Only if the “totality of the circumstance
surrounding the interrogation reveal both an uncoerced choice and
the requisite level of comprehension may a court properly
conclude that the Miranda rights have been waived.
Moran v. Burbine, 475 U.S. 412, 421 (1986). “The ultimate question in the voluntariness
calculus is ‘whether, under the totality of the circumstances, the challenged confession was
obtained in a manner compatible with the requirements of the Constitution.’” Fahy, 516 F.3d at
194 (quoting Miller v. Fenton, 474 U.S. 104, 112 (1985)).
In this case, the state court analyzed the totality of the circumstances in determining
whether petitioner’s waiver of his Miranda rights was violated in the context of denying the
motion to suppress after conducting an evidentiary hearing. The state court’s decision was not
an unreasonable application of clearly established federal law. Furthermore, upon reviewing the
suppression hearing transcript, its decision holding that the Miranda waiver was knowing and
intelligent was not based on an unreasonable determination of the facts. Accordingly, petitioner
is not entitled to federal habeas relief on this claim.
G. Claim VII – Change of Venue
In Claim VII, petitioner argues that the trial court should have ordered a change of venue
or empaneled a foreign jury because of undue pretrial publicity that failed to ensure that he
received a fair trial by an unbiased jury. While the habeas petition states that the trial court
should have granted his motion for a change of venue, it appears that no such motion was ever
made by petitioner. Indeed, petitioner’s direct appeal brief to the Appellate Division argued as
follows, “[w]hile defendant did not specifically request a change of venue or foreign jury, the
trial court had an independent duty to act swiftly and decisively to overcome the potential bias of
the jury from outside influences.” (Dkt. No. 9-3 at p. 55-56.) Nevertheless, there was some
discussion of the pretrial publicity of the case in the lead up to the retrial. Indeed, immediately
prior to jury selection, the following colloquy took place between the trial court, Mr. Michael J.
Catanese, Esq. (petitioner’s trial counsel) and Mr. David J. Meyer (assistant county prosecutor):
MR. CATANESE: Judge the only other issue, as we discussed in
chambers, would be –
THE COURT: Oh yes.
MR. CATANESE: I have here a copy of – actually not the copy.
It’s actually the original article taken out of Sunday’s – or
Saturday’s Atlantic City Press, dated August 7th, 2004. There was
an article in the Region Section regarding this matter. The
headline reads, “Retrial of Woodbine Man on Kidnapping and
Robbery Charges Set to Begin.” If I can have it marked, Your
Honor, and –
THE COURT: Yes, please.
MR. CATANESE: Is it D-1 for identification? I’m going to show
it to Mr. Meyer. May I approach the bench, Your Honor?
THE COURT: Yep. Prior to the notorious trials from Timothy
McVeigh to O.J. Simpson to – of course, I can never think of
notorious trials when I need to. Prior to those types of trials,
articles such as this one seemed to have far greater significance
than they do now.
I absolutely will ask each and every Juror if they have read
anything about this case and I will ask them at sidebar if, as a
result of reading that case, they have an opinion and, if so, can they
set that opinion aside and honestly decide the case on its merits. It
may make Jury Selection extremely difficult, but there it is and
we’ll just deal with it as best we can and, hopefully, not run out of
Jurors, which is the main thing I’m concerned about. If too many
people, as result of reading this article, have formulated opinions,
it will be a problem.
But, like I said, folks have been asked in all kinds of contexts if
they can be open minded, have indicated that they can. Hopefully,
we’ll end up with 16 people who are qualified in every respect,
including that one. But believe me I will ask the Jurors about it
because I share your concern that some folks may be tainted.
Are there any other Jurors available, Ms. Payne, for tomorrow?
THE JURY ATTENDANT: I don’t believe so, Your Honor.
THE COURT: So – okay.
MR. CATANESE: Judge, if I may just briefly follow up on Your
Honor’s comments. This was obviously, I don’t – well, it’s getting
rather old. I don’t believe it has been the subject of extensive
pretrial publicity. There has been some.
THE COURT: This is –
MR. CATANESE: The problem –
THE COURT: This is pretty serious.
MR. CATANESE: Well, the problem with this article, Judge –
and I don’t know if you could – anyway, if there’s any Jurors that
would, you know – I suppose we can’t really deal with it until we
see what happens, but the concern that I would have, Your Honor,
is that – that the defense would have would be that any potential
Juror who read that specific article is going to be aware of the fact
that Mr. Price was convicted by a prior Jury. And it would seem to
me that any person who would know that someone’s been through
a full-fledged trial and convicted – it even references the fact that it
was a problem with Jury Selection, as opposed to, like, some sort
of error in the trial itself, that that – even though a person may
indicate, “I could keep an open mind,” I don’t know how a human
being could not take that and give that weight in their deliberation.
In other words, that individual – any – I would submit, Your
Honor, just as a carte blanche, any individual who read that article
as a potential Juror should be dismissed for cause, Your Honor.
THE COURT: Well, I will absolutely –
MR. CATANESE: Well, yeah, we’ll deal with that when it –
THE COURT: We’ll deal with it –
MR. CATANESE: There may not be anybody. Maybe we’ll have
a Jury Panel – a bunch of people who went out and went fishing or
went to the beach on Saturday and never read the Press, but –
THE COURT: Thank goodness it was good weather.
MR. CATANES: And we’ll see what happens. Exactly.
THE COURT: Yeah, All right.
(Dkt. No. 105- at p. 9-10.)
The Appellate Division summarily denied petitioner’s claim on direct appeal that the trial
court should have sua sponte transferred venue of this case. However, petitioner’s burden “still
must be met by showing there was no reasonable basis for the state court to deny relief.”
Harrington, 562 U.S. at 98. “[A] habeas court must determine what arguments or theories . . .
could have supporte[d] the state court’s decision; and then must ask whether it is possible
fairminded jurists could disagree that those arguments or theories are inconsistent with the
holding in a prior decision of this Court.” Cullen, 131 S. Ct. at 1402 (internal quotation marks
and citation omitted).
The Fourteenth Amendment guarantees a criminal defendant a right to a trial by an
impartial jury free from outside influences. See Sheppard v. Maxwell, 384 U.S. 333, 362 (1966).
In some cases, a court may presume prejudice to the defendant such as “[w]here media or other
community reaction to a crime or a defendant endangers an atmosphere so hostile and pervasive
as to preclude a rational trial process[.]” Rock v. Zimmerman, 959 F.2d 1237, 1252 (3d Cir.
1992) (citing Sheppard, 384 U.S. 333; Estes v. Texas, 381 U.S. 532 (1965); Rideau v. Louisiana,
373 U.S. 723 (1963)), overruled on other grounds by, Brecht, 507 U.S. 619; see also Campbell v.
Bradshaw, 674 F.3d 578, 593 (6th Cir. 2012) (“‘Presumptive prejudice from pretrial publicity
occurs where inflammatory, circus-like atmosphere pervades both the courthouse and the
surrounding community[.]’”) (quoting Foley v. Parker, 488 F.3d 377, 287 (6th Cir. 2007)).
“[T]he community and media reaction, however, must have been so pervasive as to make it
apparent that even the most careful voir dire process would be unable to assure an impartial
jury.” Rock, 959 F.2d at 1252-53 (citations omitted). Nevertheless, the United States Supreme
Court has explained that the presumption of prejudice from pretrial publicity “attends only in the
extreme case.” United States v. Skilling, 561 U.S. 358, 381 (2010); see also Campbell, 674 F.3d
at 593 (noting that presumptive prejudice from pretrial publicity is rarely presumed); Rock, 959
F.2d at 1252 (cases of presumed prejudice from pretrial publicity “are exceedingly rare.”).
In Skilling, 561 U.S. at 379-81, the Supreme Court traced the history of its cases with
respect to presumed prejudice due to pretrial publicity by citing to its opinions in Rideau v.
Louisiana, 373 U.S. 723 (1963), Estes v. Texas, 381 U.S. 532 (1965) and Sheppard v. Maxwell,
384 U.S. 333 (1966):
Wilbert Rideau robbed a bank in a small Louisiana town, kidnaped
three bank employees, and killed one of them. Police interrogated
Rideau in jail without counsel present and obtained his confession.
Without informing Rideau, no less seeking his consent, the police
filmed the interrogation. On three separate occasions shortly
before the trial, a local television station broadcast the film to
audiences ranging from 24,000 to 53,000 individuals. Rideau
moved for a change of venue, arguing that he could not receive a
fair trial in the parish where the crime occurred, which had a
population of approximately 150,000 people. The trial court
denied the motion, and a jury eventually convicted Rideau. The
Supreme Court of Louisiana upheld the conviction.
We reversed. “What the people [in the community] saw on their
television sets,” we observed, “was Rideau, in jail, flanked by the
sheriff and two state troopers, admitting in detail the commission
of the robbery, kidnapping, and murder.” Id., at 725, 83 S. Ct.
1417. “[T]o the tens of thousands of people who saw and heard
it,” we explained, the interrogation “in a very real sense was
Rideau's trial—at which he pleaded guilty.” Id., at 726, 83 S. Ct.
1417. We therefore “d[id] not hesitate to hold, without pausing to
examine a particularized transcript of the voir dire,” that “[t]he
kangaroo court proceedings” trailing the televised confession
violated due process. Id., at 726–727, 83 S. Ct. 1417.
We followed Rideau 's lead in two later cases in which media
coverage manifestly tainted a criminal prosecution. In Estes v.
Texas, 381 U.S. 532, 538, 85 S. Ct. 1628, 14 L. Ed. 2d 543 (1965),
extensive publicity before trial swelled into excessive exposure
during preliminary court proceedings as reporters and television
crews overran the courtroom and “bombard[ed] ... the community
with the sights and sounds of” the pretrial hearing. The media's
overzealous reporting efforts, we observed, “led to considerable
disruption” and denied the “judicial serenity and calm to which
[Billie Sol Estes] was entitled.” Id., at 536, 85 S. Ct. 1628.
Similarly, in Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507,
16 L. Ed. 2d 600 (1966), news reporters extensively covered the
story of Sam Sheppard, who was accused of bludgeoning his
pregnant wife to death. “[B]edlam reigned at the courthouse
during the trial and newsmen took over practically the entire
courtroom,” thrusting jurors “into the role of celebrities.” Id., at
353, 355, 86 S. Ct. 1507. Pretrial media coverage, which we
characterized as “months [of] virulent publicity about Sheppard
and the murder,” did not alone deny due process, we noted. Id., at
354, 86 S. Ct. 1507. But Sheppard's case involved more than
heated reporting pretrial: We upset the murder conviction because
a “carnival atmosphere” pervaded the trial, id., at 358, 86 S. Ct.
In each of these cases, we overturned a “conviction obtained in a
trial atmosphere that [was] utterly corrupted by press coverage”;
our decisions, however, “cannot be made to stand for the
proposition that juror exposure to ... news accounts of the crime ...
alone presumptively deprives the defendant of due process.”
Murphy v. Florida, 421 U.S. 794, 798–799, 95 S. Ct. 2031, 44 L.
Ed. 2d 589 (1975). See also, e.g., Patton v. Yount, 467 U.S. 1025,
104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984). Prominence does not
necessarily produce prejudice, and juror impartiality, we have
reiterated, does not require ignorance. Irvin v. Dowd, 366 U.S.
717, 722, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961) (Jurors are not
required to be “totally ignorant of the facts and issues involved”;
“scarcely any of those best qualified to serve as jurors will not
have formed some impression or opinion as to the merits of the
case.”); Reynolds v. United States, 98 U.S. 145, 155–156, 25 L. Ed.
244 (1879) (“[E]very case of public interest is almost, as a matter
of necessity, brought to the attention of all the intelligent people in
the vicinity, and scarcely any one can be found among those best
fitted for jurors who has not read or heard of it, and who has not
some impression or some opinion in respect to its merits.”). A
presumption of prejudice, our decisions indicate, attends only the
Skilling, 561 U.S. at 379-81 (footnote omitted). With these cases as a backdrop, in Skilling the
Supreme Court found a number of considerations to be relevant in determining whether there is
presumed prejudice, such as: (1) the size and characteristics of the community in which the
crime occurred; (2) the content of the media coverage; (3) the timing of the media coverage; and
(4) the existence of media interference with court proceedings. See 561 U.S. at 382-84.
Petitioner never presented before the state courts evidence with respect to the size and
characteristics of the community in Cape May County 5, nor does he present such evidence
before this Court. Furthermore, even if petitioner had presented such evidence with respect to
the size and characteristics of Cape May County in his habeas petition, it is improper for this
Court to receive such evidence when analyzing this Claim under the AEDPA standard of review.
See Cullen, 131 S. Ct. at 1398, 1400 (noting that federal habeas review under § 2254 “is limited
to the record that was before the state court that adjudicated the claim on the merits” and “that
Petitioner’s direct appellate brief to the Appellate Division referenced the “small community”
of Woodbine and Cape May County itself. (See Dkt. No. 9-3 at p. 62.) However, petitioner
provided the state court with no figures or evidence to support this statement.
evidence introduced in federal court has no bearing on” such review). As such, this Court cannot
say that this factor weighed for or against a finding of presumed prejudice. 6
The second factor requires a court to examine the content of the news coverage. As
previously noted, petitioner’s conviction arose from a second trial after the first trial was
reversed and remanded due to the statements of a discharged juror. Before the trial court,
petitioner’s counsel expressed concern about an Atlantic City Press article that was issued a few
days prior to the re-trial that discussed the prior trial and conviction. Petitioner’s appellate brief
on direct appeal also referenced another article that purportedly showed petitioner being led into
the courtroom in handcuffs and referenced the prior trial and conviction.
Accordingly, the purported pretrial publicity as petitioner asserted in the state courts with
respect to petitioner’s re-trial amounted to two newspaper articles. Petitioner’s trial counsel even
admitted that the pretrial publicity for this case was not “extensive.” While the first article was
purportedly from the Atlantic City Press, it is unclear where the purported second article came
from. For the most part, petitioner did not show the state courts that these articles were anything
more than factual in nature that petitioner was being retried on kidnapping charges. As best this
Court can determine since the two articles are not included in the record, the two articles
mentioned by petitioner to the state courts may be far different than the type and content of pretrial publicity that arose with the defendant’s confession in Rideau or the type of “bedlam”
coverage in Sheppard. Indeed, in Skilling, 561 U.S. at 383, the Supreme Court cited to United
States v. Chagra, 669 F.2d 241, 251-52 n. 11 (5th Cir. 1982), which noted that, “[a] jury may
have difficulty in disbelieving or forgetting a defendant’s opinion of his own guilt but have no
Even if this Court were to find that this factor weighed in favor of changing venue, the state
court’s denial of this Claim was not an unreasonable application of clearly established federal
law based on the remaining factors as discussed infra.
difficulty in rejecting the opinions of others because they may not be well founded.” As one
court has noted, “the highly factual nature of the media coverage, coupled with the fact that the
news stories contain no confessions by Defendants, weigh against a finding of presumed
prejudice.” United States v. Savage, Crim. Nos. 07-550-03, 07-550-04, 07-550-05, 07-550-06,
2012 WL 2376680, at *5 (E.D. Pa. June 25, 2012) (citing United States v. Lindh, 212 F. Supp. 2d
541, 549 (E.D. Va. 2002)). In this case, petitioner’s statements to the state courts regarding the
pretrial publicity in the form of two newspaper articles immediately prior to his second trial did
not weigh in favor of transferring trial of this case to another venue.
The third factor to consider is the timing of the media coverage. The incidents giving rise
to the charges in this case took place in 2000. Petitioner vaguely alluded to widespread
dissemination of publicity of petitioner’s first trial in his appellate brief to the Appellate Division
on direct appeal. However, he only mentioned two articles that were issued immediately prior to
his re-trial in 2004. In the absence of evidence that showed a high level of media interest
continuing up to petitioner’s re-trial, this factor also does not weigh in favor of a transfer. See
Hertzel v. Lamas, 372 F. App’x 280, 284 (3d Cir. 2010) (“The passage of time and the sporadic
nature of the coverage in the months proceeding the trial suggest that any prejudice that may
have been presumed around the time of Guzman’s death and Hetzel’s arrest may have dissipated
by the next year); see also United States v. Matusiewicz, Crim. Nos. 12-83-1, 12-83-2, 13-83-3,
2014 WL 2446084, at *4 (D. Del. May 29, 2014) (“In the absence of evidence that a high level
of media interest had continued since the shootings, the court concludes that a period of more
than a year is a sufficient cooling off period.”) (citation omitted).
The fourth factor to consider is the extent to which there has been media interference
Maybe I’ll come downMMwith the actual courtroom proceedings. See Skilling, 561 U.S. at 382
n.14; see also Savage, 2012 WL 2376680, at *4 (citing United States v. Diehl-Armstrong, 739 F.
Supp. 2d 786, 793 (W.D. Pa. 2010)). In this case, there was nothing before the state courts to
suggest media interference with the courtroom proceedings. Therefore, this factor also did not
weigh in favor of a transfer.
Applying the factors outlined above, petitioner did not show that the state court’s denial
of his claim of presumed prejudice necessitating a transfer was an unreasonable application of
clearly established federal law or the result of a decision based on an unreasonable determination
of the facts. This conclusion, however, does not end the analysis on this claim as this Court must
next analyze whether actual prejudice infected petitioner’s jury. See Skilling, 561 U.S. at 385;
see also Savage, 2012 WL 2376680 at *3 (noting distinction between presumed prejudice and
actual prejudice with respect to changing venue based on pretrial publicity).
Where there is an absence of facts demonstrating presumed prejudice, a petitioner must
show actual prejudice such that those who served on the jury could not reach an impartial verdict
based solely on the evidence produced at trial. See Patton v. Yount, 467 U.S. 1025, 1035 (1984),
citing Irvin, 366 U.S. at 723); see also Rock, 959 F.2d 1237 (“In the absence of a showing of an
‘utterly corrupt’ trial atmosphere, the defendant, in order to demonstrate a violation of his right
to an impartial jury, must establish that those who actually served on his jury lacked a capacity to
reach a fair and impartial verdict based solely on the evidence they heard in the courtroom.”)
(citations omitted). As the Supreme Court has noted:
It is not required, however, that the jurors be totally ignorant of the
facts and issues involved. In these days of swift, widespread and
diverse methods of communication, an important case can be
expected to arouse the interest of the public in the vicinity, and
scarcely any of those best qualified to serve as jurors will not have
formed some impression or opinion as to the merits of the case.
This is particularly true in criminal cases. To hold that the mere
existence of any preconceived notion as to the guilt or innocence
of an accused, without more, is sufficient to rebut the presumption
of a prospective juror's impartiality would be to establish an
impossible standard. It is sufficient if the juror can lay aside his
impression or opinion and render a verdict based on the evidence
presented in court.
Irvin, 366 U.S. at 722-23 (citations omitted); see also Rock, 959 F.2d at 1253 (“The fact that jury
members may have been exposed to press reports or other community reaction concerning the
case and even the fact that they may have formed a tentative opinion based on that exposure will
not establish a constitutional violation if the trial court has found, with record support, that each
of the jurors was able to put aside extrinsic influences.”).
A review of the voir dire indicates that the state court’s denial of this claim did not run
afoul of § 2244(d)(1) or (2). One potential juror indicated at sidebar that he had read in the paper
that this case was a retrial. (See Dkt. No. 10-5 at p. 15.) That juror was promptly excused. (See
id. at p. 16.) Another juror indicated at sidebar that she had prior knowledge of what occurred.
(See id. at p. 18.) It is unclear whether this prior knowledge was from the pretrial publicity or
from another source. However, this juror too was also promptly excused. (See id.)
Subsequently, the trial judge made sure during voir dire that the remaining jurors did not have
prior knowledge of this case on at least two occasions. First, the trial judge asked the potential
jurors as follows, “[B]ut any of you, presently seated in the box, familiar with this case because
of anything they’ve heard outside the courtroom? Anything at all outside the courtroom?
Anybody know anything about this case because of anything they’ve heard outside the
courtroom?” (Dkt. No. 10-5 at p. 45.) No prospective juror in the box responded in the
affirmative according to the transcript. Subsequently, the trial judge was even more specific later
on when he questioned the prospective jurors as follows:
Do any of you have any prejudice against the defendant merely
because he is a defendant in this case or for any other reason,
including anything you might know about the case from outside
the courtroom, media accounts, if any, discussions with friends – is
there any reason whatsoever why anyone presently seated in the
box could not serve as an open-minded and impartial Juror in this
(Dkt. No. 10-5 at p. 58.) No one responded in the affirmative to the trial judge’s inquiry.
Accordingly, a review of the voir dire transcript reveals that petitioner failed to show actual
prejudice based on the pretrial publicity of his case. See Stevens v. Beard, 701 F. Supp. 2d 671,
726-27 (W.D. Pa. 2010) (reviewing voir dire transcript and finding no actual prejudice where
only three prospective jurors were dismissed for cause because they had a fixed opinion about
the case based on the media coverage). Therefore, the denial of this claim by the state courts was
not an unreasonable application of clearly established federal law nor was the decision based on
an unreasonable determination of the facts as petitioner failed to show presumed prejudice and/or
actual prejudice to the state courts based on pretrial publicity. Accordingly, petitioner is not
entitled to federal habeas relief on this claim.
H. Claim VIII – Failure to Recuse
In Claim VIII, petitioner argues that the trial court erred in denying his motion to recuse.
The Appellate Division denied this claim without discussion. Therefore, the last reasoned
decision on this claim for purposes of AEDPA review is from the trial court.
At petitioner’s retrial, the trial court issued a mistrial during the course of the voir dire of
the first jury to be empaneled due to statements that one prospective juror made. More
specifically, one prospective juror in that first jury pool on retrial stated that, “I got mugged by a
nigger a couple of years ago, and if I get a chance to put a nigger away, I will.” (Dkt. No. 10-4 at
p. 32.) Subsequently, petitioner moved for a mistrial which was granted such that a new separate
second jury was empaneled a week later. The trial judge stated the following in granting the
motion for a mistrial due to this prospective juror’s statements from the first jury that was
Folks, an application for a mistrial has been made in this matter
because of the unforeseeable misconduct of a potential juror that at
some point certainly warrants contempt proceedings against that
individual for his conduct.
I guess this defect is curable by an instruction. Most – not most,
but all reasonable persons can agree that the conduct was so
outrageous in nature that it would not influence an individual to be
prejudiced against the defendant or persons of color as much as to
cause a reaction in the contrary direction, to bend over backwards
to the detriment of the State, frankly.
The standard for the grant of a mistrial is the same as that for a
new trial motion, whether or not the error is such that manifest
injustice would result from the continuance. Frankly, it is my
intellectually, honest opinion that it would not, that the error can be
But the reversal in this case in my opinion was not grounded in
reason initially. The situation in that case was if error readily
correctable and not ultimately not error at all.
To try cases because of the fear that the Appellate Division will
disagree with the body of law that exists or the decisions that exist
are made at the trial level to me is to bring the practice of law to a
pretty low point.
But I guess, given the reversal in this case, which is one I will
certainly be mindful of the rest of my judicial career, I will declare
a mistrial in this instance. I do not think it’s an error that cannot be
corrected, but I cannot with confidence believe that the corrective
measure that would be taken would satisfy others.
The proofs in this case are quite significant. They’re – there’s
every reason to believe that there will be a second conviction and a
review. I mean, we’ll try again next Monday.
(Dkt. No. 10-4 at p. 44-45.) After the second jury was empaneled the following week, petitioner
argued that the trial judge should recuse herself based on the statements she had made in granting
the mistrial the previous week. Indeed, petitioner’s counsel argued as follows:
MS. PFEIFLE: . . . . Your Honor, first, as we discussed
previously, at this point, on behalf of Mr. Price, I’m making a
motion for recusal. Your Honor, I’m basing that request of asking
that you recuse yourself from hearing this case based primarily on
your comments made last Monday, while you were ruling on the
mistrial. You indicated specifically that there had been convictions
in the previous case, you anticipated convictions in this case and
you commented, I felt with some specificity, on the weight and
credibility of the evidence presented.
Mr. Price does have a right for these proceedings to be unbiased
and I believe your remarks call into question your ability to be
open minded in this proceeding. Therefore, we’re moving that you
(Dkt. No. 10-5 at p. 4.) In denying petitioner’s motion for recusal, the trial judge stated as
Not only do judges who are reversed routinely retry cases, judges
in most counties are assigned matters for purpose of pretrial
motions, bail hearings and, ultimately, trial, as a result of which
you acquire an intimate knowledge of the proofs the State has.
The proofs in this case involved two victims testifying, one of
whom said she specifically recognized the defendant’s voice. It’s
not surprising that I would have characterized the proofs in the
manner that I did and I do anticipate the same outcome. That’s
what happens when proofs are strong.
Does that constitute a basis for recusal? If I were the factfinder,
absolutely. In Family Court, for example, it often happens that
judges request some other judge to resolve a dispute because he or
she is the factfinder and he or she has opinions. It’s a little
different in a criminal matter. I’m basically the ump.
I have the good fortune that this case will be tried by experienced,
competent and capable attorneys. I have the good fortune that we
again have a large Jury panel. We are going to seat 16 in the box
and the decisions as to whether the State has met its burdens of
proof will rest entirely on them. Whatever my personal opinion
may be as to this matter is irrelevant, will not be disclosed to the
Jury, obviously, and I know that the attorneys will do their part, as
officers of the Court, to ensure that the process is fair. Therefore,
the application is denied.
(Dkt. No. 31-1 at p. 1.) In state court, petitioner argued that the trial judge was required to recuse
herself based on New Jersey Court Rule 1:12-1 which requires recusal if the judge gives an
opinion upon a matter in question in the action, is interested in the action or where there is any
other reason which might preclude a fair and unbiased hearing and judgment, or which might
reasonably lead counsel or the parties to believe so. However, as described previously, it is not
the province of this Court to examine state court determinations of state law. See Estelle, 502
U.S. at 67-68.
Nevertheless, “[a] fair trial in a fair tribunal is a basis requirement of due process.” In re
Murchison, 349 U.S. 133, 136 (1955). However, ‘“most matters relating to judicial
disqualification d[o] not rise to a constitutional level.’” Martinez v. Stridiron, 538 F. App’x 184,
188 (3d Cir. 2013) (quoting FTC v. Cement Institute, 333 U.S. 683, 702 (1948)). “Due process
requires recusal only when a judge ‘has a direct, personal, substantial, pecuniary interest in a
case’ or when there are ‘circumstances in which experience teaches that the [objective]
probability of actual bias on the part of the judge or decisionmarker is too high to be
constitutionally tolerable.’” Id. (quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 87677 (2009)).
In this case, the denial of this claim by the state courts was not an unreasonable
application of clearly established federal law nor was the decision based on an unreasonable
determination of the facts. In Liteky v. United States, 510 U.S. 540 (1994), the Supreme Court
noted that, “opinions formed by the judge on the basis of facts introduced or events occurring in
the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias
or partiality motion unless they display a deep-seated favoritism or antagonism that would make
fair judgment unfair.” Id. at 555 (emphasis added). Indeed, the Supreme Court further noted in
Liteky that “judicial remarks during the course of a trial that are critical or disapproving of, or
even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality
challenge. They may do so if they reveal an opinion that derives from an extrajudicial source;
and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair
judgment impossible.” Id. Furthermore, and perhaps most relevant to this case, the Supreme
Court explained that, “[a]lso not subject to deprecatory characterization are ‘bias’ or ‘prejudice’
are opinions held by judges as a result of what they learned in earlier proceedings. It has long
been regarded as normal and proper for a judge to sit in the same case upon its remand, and to sit
in successive trials involving the same defendant.” Id. at 551. In Liteky, the Supreme Court
gave an example of what kind of statement by a judge would require his recusal. The Court’s
example was a District Judge’s statement in a World War I espionage case against GermanAmerican defendants that, ‘“One must have a very judicial mind, indeed, not [to be] prejudiced
against the German Americans’ because their “hearts are reeking with disloyalty.’” Id. (citing
Berger v. United States, 255 U.S. 22, 28 (1921)).
In this case, the trial judge’s statement in granting the motion for mistrial was based on
facts introduced in the prior trial. They did not display a deep-seated favoritism or antagonism
that would make fair judgment impossible or unfair. Indeed, the trial judge noted that she would
not make such an opinion known to the newly empaneled jury, and noted that it was the jury, and
not her who was the ultimate factfinder. Accordingly, based on these circumstances, petitioner
has failed to show that he is entitled to federal habeas relief on this claim.
I. Claim IX – Ineffective Assistance of Counsel for Failure to Seek Suppression of
In Claim IX, petitioner argues that trial counsel was ineffective for failing to seek
suppression of the cigarette butt that contained his DNA evidence. He asserts as follows in his
The cigarette butt was allegedly located some 16 hours after the
crime scene investigator. There is no evidence that this evidence
was ever lodged into evidence prior to police searching the
defendant’s home and admitting to coming into contact with
cigarette butts that were known to belong to the defendant. The
cigarette butt that was reportedly located at the crime scene was
found to have the defendant’s DNA on it. Counsel was ineffective
for failing to challenge the chain of custody regarding this crucial
and prejudicial piece of evidence.
(Dkt. No. 1 at p. 8.) Thus, petitioner’s claim on habeas review appears to be that the cigarette
butt was not found at the crime scene, but instead was a cigarette butt that the police found when
they subsequently searched petitioner’s dwelling.
In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the
Supreme Court articulated the test for demonstrating an ineffective assistance of counsel claim.
First, the petitioner must show that considering all of the circumstances, counsel's performance
fell below an objective standard of reasonableness. See id. at 688; see also Ross v. Varano, 712
F.3d 784, 798 (3d Cir.2013). Petitioner must identify acts or omissions that are alleged not to
have been the result of reasonable professional judgment. See Strickland, 466 U.S. at 690. The
federal court must then determine whether in light of all of the circumstances, the identified acts
or omissions were outside the wide range of professional competent assistance. See id.
Second, a petitioner must affirmatively show prejudice, which is found where “there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” See id. at 694; see also McBride v. Superintendent, SCI Houtzdale,
687 F.3d 92, 102 n. 11 (3d Cir.2012). “With respect to the sequence of the two prongs, the
Strickland Court held that ‘a court need not determine whether counsel's performance was
deficient before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course should be followed.’” Rainey
v. Varner, 603 F.3d 189, 201 (3d Cir.2010) (quoting Strickland, 466 U.S. at 697).
Additionally, in assessing an ineffective assistance of counsel claim under AEDPA, the
Supreme Court has noted that:
The pivotal question is whether the state court's application of the
Strickland standard was unreasonable. This is different from
asking whether defense counsel's performance fell below
Strickland's standard. Were that the inquiry, the analysis would be
no different than if, for example, this Court were adjudicating a
Strickland claim on direct review of a criminal conviction in a
United States district court. Under AEDPA, though, it is a
necessary premise that the two questions are different. For
purposes of § 2254(d)(1), an unreasonable application of federal
law is different from an incorrect application of federal law. A
state court must be granted a deference and latitude that are not in
operation when the case involves review under the Strickland
Harrington, 562 U.S. at 101 (internal quotation marks and citation omitted) (emphasis in
Petitioner raised this claim in his post-conviction relief (“PCR”) petition. The last
reasoned decision on this Claim was from the Appellate Division during petitioner’s PCR
proceedings. The Appellate Division analyzed this Claim as follows:
A prima facie claim of ineffective assistance of counsel requires
defendant to show (1) counsel's performance was deficient; and (2)
but for counsel's deficient performance, the outcome of the trial
would have been different. Strickland v. Washington, 466 U.S.
668, 687-88, 104 S. Ct. 2052, 2064-65, 80 L. Ed. 2d 674, 693
(1984); State v. Fritz, 105 N.J. 42, 52, 519 A.2d 336 (1987).
Adequate assistance of counsel should be measured by a standard
of “reasonable competence.” Fritz, supra, 105 N.J. at 60, 519
A.2d 336. That standard does not require “the best of attorneys,”
but rather requires that attorneys be not “so ineffective as to make
the idea of a fair trial meaningless.” State v. Davis, 116 N .J. 341,
351, 561 A.2d 1082 (1989), superseded by statute on other
grounds as recognized by State v. Cruz, 163 N.J. 403, 411, 749
A.2d 832 (2000). “[T]he defendant must overcome a ‘strong
presumption’ that counsel exercised ‘reasonable professional’
judgment and ‘sound trial strategy’ in fulfilling his
responsibilities.” State v. Loftin, 191 N.J. 172, 198, 922 A.2d 1210
Defendant argues he made a prima facie showing that police
fabricated evidence, specifically that detectives switched a
cigarette butt found on the roof of the second crime scene with one
from his ashtray. We find this argument to be without merit and
rely substantially on the reasons stated by Judge Batten on the
record on January 14, 2009.
[p]etitioner now asserts that trial counsel was
ineffective in not moving for suppression to the
cigarette butt on a chain of custody theory or in the
alternative, failing to discredit that evidence through
cross-examination or by jury argument because
competent counsel would have done either or both
of these things.
These arguments, while interesting and while the
subject of extensive dialogue between counsel and
the Court when last we convened on this-is
nonetheless denied and for the following reasons.
The cigarette butt found by [the victim] was taken
into evidence by Detective [Scull] before the
defendant's room was searched.... The defense
argument, therefore, that the police switched or
planted the cigarette butt with one they obtained
from his room is not borne by the evidence and
certainly not supported. There is no evidence that
[the victim] or the two individuals at the home with
[the victim] at the time Detective [Scull] arrived had
access to the defendant's room prior to the cigarette
butt being found. As a result, this argument lacks
As to petitioner's assertion that trial counsel failed
to discredit the argument on cross-examination, or
when making arguments to the jury, the assertion
also lacks merit as specific portions of the trial
We note that the court critically addressed defendant's argument
concerning police fabrication of evidence in exhaustive detail. The
court fully reviewed the record in search of credible evidence to
support defendant's claims and determined the claims lack
sufficient merit. Our review of the record supports the court's
findings that defendant's characterization of the events regarding
the discovery of the cigarette butt is factually inaccurate and
unsupported by the record. Furthermore, the court pointed to
numerous instances in the record, contrary to defendant's
argument, where his counsel attempted unsuccessfully to discredit
the cigarette butt's chain of custody.
(Dkt. No. 9-22 at p. 2-3.)
The denial of this claim by the state courts was not an unreasonable application of clearly
established federal law. The Appellate Division cited to and applied the Strickland test to
determine whether the PCR court properly denied this Claim. It specifically relied on the
reasons given by the PCR court. That Court also stated the correct Strickland standard. It then
painstakingly cited to the trial transcript with respect to the cross-examination of Detective Skull.
This was the Detective who was called to Perez’s dwelling where the cigarette butt was
discovered. Skull testified that it was these witnesses who discovered and subsequently turned
over the cigarette butt to him. As the PCR court noted, there was nothing to suggest that these
witnesses had access to petitioner’s cigarette butts in his dwelling prior to turning the cigarette
but over to Skull. Accordingly, as there was a lack of evidence suggesting that the witnesses had
access to petitioner’s cigarette butts from another location, the denial of this claim was not based
on an unreasonable application of Strickland since there was no reasonable probability that the
outcome of the trial would have been different had such an argument been made by trial counsel.
Furthermore, petitioner fails to show that the denial of this claim was based on an unreasonable
determination of the facts as the record does not suggest that these witnesses had access to
petitioner’s cigarette butts, other than that which was found on Perez’s roof. Therefore,
petitioner is not entitled to federal habeas relief on this claim.
J. Claim X – Ineffective Assistance of Counsel for Failure to Move to Suppress Voice
In Claim X, petitioner argues that trial counsel was ineffective for failing to suppress the
voice identification of petitioner by Mary Perez. More specifically, petitioner argues as follows:
The detective conducting the voice identification of the defendant
did so by engaging him in conversation with the victim standing
outside of the holding cell door where the defendant was being
detained reportedly on an unrelated arrest warrant. The detective
accused the defendant of lying about his alibi, and asserted that a
witness stated that he was out of his home at the time that the
crime was committed against Mary Perez. The defendant
reportedly responded by screaming that he did go out but that he
was home well before midnight, well before the crime was
allegedly committed. This procedure was extremely prejudicial.
The victim asserted that the voice “sounded” like that of her
assailant but that she could not be sure. It should be noted that this
same victim gave a taped statement earlier this same day and was
asked if she could learn anything from the suspects voice, she did
not mention the defendant despite knowing him. By the time trial
came around, the victim was convinced that she had previously
named the defendant as the perpetrator of the crime against her.
Clearly this is the result of the impermissibly suggestive voice
(Dkt. No. 1 at p. 8-9.)
It appears that the Appellate Division denied this specific claim without discussion.
Therefore, the last reasoned decision on this Claim for purposes of this Court’s AEDPA review
is from the PCR court which denied petitioner’s PCR petition. That Court stated as follows in
denying this Claim:
The Court now considers the second point raised by PCR counsel,
specifically, that defense counsel was ineffective for failing to
move to suppress the voice identification authored by Mary Perez.
Again, Mr. Patrick in the first trial represented – represented the
defendant in the first trial and specifically moved to bar any
testimony concerning the voice identification of Ms. Perez. The
motion was dated September 8 of ’01.
The State responded that it was not seeking to introduce the voice
identification of the defendant at the police barracks – only
identification that Ms. Perez at the scene . . . .
The three different police reports all pertaining to statements of
Mr. Perez prior to the identification or confirmation of her
assailant which took place at the police barracks, Ms. Perez states
that the voice of her assailant was that of Lonny Price –
specifically, Anthony [sic] Price.
For example, at page 18 of Exhibit M of the defendant exhibit
Detective Albrich explained quote, “She explained her familiarity
with Lonny Price’s voice by telling Albrich that she works in the
pharmacy that is located beneath her apartment. She knows Lonny
Price and has spoken with him on the telephone on numerous
occasions while working at the pharmacy.”
“She stated that over time she’s become familiar with the sound of
people’s voices to the extent that she often knows who the caller is
without their identifying themselves. She said this is the type of
situation as with Lonny Price. She said that he has called the
pharmacy on a number of occasions and that she has also become
familiar with his voice as well to the extent that she can recognize
a telephone call from him without him identifying himself.” close
The State is correct in its assertion that trial counsel on behalf of
the petitioner did, in fact, file a motion to suppress the voice
identification. That motion was dated July 8th of 2004, filed with
the Court July 9, of 2004 and, in fact, motion trial counsel made
almost verbatim – in places, in fact, it is verbatim for paragraphs at
a time – the same argument that PCR counsel is making as to why
the voice identification should be suppressed. Same facts and
cases are used in the motion to suppress and the PCR brief.
The State responded to this motion to suppress by advising the
Court that the State would not present evidence in its case in chief
regarding the voice identification that occurred at the police
barracks and that it would only present evidence as to the
identification of the defendant at the scene of the crime. The same
exchange took place before the first trial of the defendant when
Mr. Patrick represented the petitioner.
Again, the record before this Court is less than clear as to the trial
court’s ultimate disposition of that motion although it is not
relevant for purposes of this PCR application because of the
appellate reversal. Not having the entire trial transcript of the
second trial of the defendant, among the petitioner’s excerpts are
excerpts of the trial transcript and from pieces of the transcript that
have been presented, it appears that the voice identification at the
police barracks was not used at trial.
The following excerpt, part of trial counsel’s closing argument
illustrate this apparency.
Quote, “Those of you who hold uncertainties must find Alonzo
Pri” – “must ultimately find Alonzo Price not guilty. Look at the
State’s proofs in light of its burden. The one piece of direct
evidence that was presented was Mary Helen Perez’s voice
identification. She thought the voice sounded like the voice of
Alonzo Price,” close quote.
“Mary Helen Perez was not certain. She told us that. Mary Helen
Perez,” – excuse me – “Mary Helen Perez was not certain. She
told us that. Mary Helen Perez didn’t want to rule anyone out.
She told us that. She wasn’t sure about the voice. She was so
uncertain, she didn’t tell the 911 operator she was so unsure. She
didn’t scream it out the window at the fleeing assailant. Said –
testified that she knows Alonzo Price. She knows him from
around town. She’s had contact with him. He’s been in the
pharmacy where she’s worked 25 years as a customer.”
“Camden County is small. Woodbine is smaller still. She knew
Alonzo Price. She knew him. She could identify him. She knew
him from their contacts from a coming to a place open to the
public. And for all that, she wasn’t certain from the voice. She
told Detective Albrich she wasn’t certain. Detective Albrich took
a statement – formal taped statement meant to be a record of
everything relevant, everything important that she remembered
while still fresh in her mind. That’s why it was tape recorded to
create a record.”
“In that statement, she described the attack. She described the
voice she heard, the tone, the volume. She didn’t say anything
about Alonzo Price in that statement because she wasn’t certain. It
is admittedly a statement of uncertainty of Mary Helen Price (sic).
She didn’t report the voice to the 911 operator because she wasn’t
sure. She left it out of the taped statement because she wasn’t
certain. Is that enough? . . . .
Later in the closing, trial counsel stated – argued, quote “What else
happened with the voice? The detectives on the scene, Detective
Albrich says it’s reported to him. This was initially reported to
troopers. It’s not called in. It wasn’t given a lot of weight. It
wasn’t given a lot of credibility. I guess that mistake thing was
still coming into play.”
“But no detective says, none of the eight troopers say, ‘Let’s call it
in. Let’s find out what his address is. Let’s see if we can go check
on this because she gave us a name.’”
“No one gets that information and walks the block and a half or
two blocks over to 514 Madison, the defendant’s address and
knocked door.”. . . .
As a result, trial counsel did file a formal motion to suppress the
voice identification which occurred at the police barracks and that
the State apparently did not use that identification and instead
presented evidence and relied only on the initial voice
identification at the scene of the crime on the morning of the
As a result, petitioner’s argument that the voice I.D. was
inadmissible under Johnson – Madison (phonetic) fails. The
petitioner’s claim that counsel was ineffective for failing to
suppress the voice identification also must fail and therefore must
(Dkt. No. 10-16 at p. 24-27) (internal citations omitted).
As noted by the Superior Court, petitioner did in fact file a motion to suppress the voice
identification at the police barracks. Thus, counsel was not ineffective since a motion to
suppress was actually made. Furthermore, it appears as if there was an agreement not to refer to
the voice identification by Perez at the police barracks. Petitioner does not note that the voice
identification at the police station was used at trial. Accordingly, the state court’s denial of this
claim was not an unreasonable application of Strickland nor was the denial of this claim based on
an unreasonable determination of the facts. Therefore, petitioner is not entitled to federal habeas
relief on this Claim.
K. Claim XI – Ineffective Assistance of Counsel for Failing to Request Suppression of
Evidence Following Illegal Arrest Because Arrest Warrant was Invalid
In Claim XI, petitioner claims that his trial counsel was ineffective for failing to seek to
suppress the evidence that was obtained after he was arrested since the arrest warrant was
invalid. More specifically, he argues:
The state conceded that this arrest warrant was indeed invalid. The
state then asserted that they did not obtain any evidence from the
defendant as a result of this illegal arrest. Instead of the trial judge
conducting an evidentiary hearing to ascertain for himself what
was obtained as a result of this illegal arrest of the defendant, he
went along with the state’s claim that nothing was obtained as a
result of the illegal arrest, and subsequently denied the defendant
the ability to make a clear and concise record regarding the facts
surrounding his illegal arrest and all that was obtained as a result of
(Dkt. No. 1 at p. 9.) The Appellate Division denied this claim during the PCR proceedings by
stating as follows:
Defendant also argues counsel was ineffective for failing to contest
the legality of his arrest and failing to move to exclude the “fruits”
of the victim’s voice identification. However, as the PCR court
correctly found, defendant’s claim that trial counsel was
ineffective for not moving to suppress fruits of the arrest warrant is
meritless. Although the State in its PCR argument conceded the
arrest warrant was invalid, this fact did not have the potential to
affect the outcome of the trial, because defendant was already a
(Dkt. No. 9-22 at p. 5.) Indeed, the Superior Court laid out the factual and legal underpinnings
giving rise to the Appellate Division’s affirmance for denying this Claim by stating the
PCR counsel is somewhat that brief on this point, but it appears
that PCR counsel is attempting to argue that trial counsel should
have filed a motion to suppress the jean shorts, gray shirt and
carpet finders (sic) – carpet fibers – excuse me – found in the
shorts as fruit of the poisonous tree. It should be initially noted
that the State concedes that the arrest warrant in this matter – that
issued June 29 of 2000 – was invalid.
Even had a motion to suppress the incriminating evidence obtained
from petitioner’s home been filed on the theory that the evidence
obtained was fruit of an illegal arrest, the motion would more
likely than not, in this Court’s view, have been denied as a result
the failure to make the motion does not warrant a finding of
ineffective assistance of counsel for the following reasons.
The police obtained a voice identification from Mr. [sic] Perez
shortly after the crime on June 29 occurred . . . sometime after
As such, the petitioner was already on the detective’s radar,
figuratively speaking, as a suspect. Initially, the police did not
follow up on the petitioner because they believed Ms. Perez was
referring to Lonny Price, Jr. who was incarcerated on the night in
question. After they interviewed Ms. Perez at approximately 9:40
a.m., they learned that there was an Alonzo Price, Sr. and looked
into his criminal record.
They spoke with an Ocean County police officer regarding an
arrest of the petitioner in Ocean City in 1989 and learned that the
crime committed in 1989 was similar to the crimes committed on
June 22nd and 29th. The defense – the defendant allegedly broke
into the apartment of a female neighbor after posing as a police
officer, sexually assaulting her, tying her up and then stealing her
After learning this, detectives proceeded to proceed and interview
Christopher Turner, a person named as Ms. Hamer as a possible
suspect. He was questioned as to the assault on Ms. Hamer and
stated that he heard rumors that Lonny Price was a suspect though
denied any direct knowledge.
The petitioner was thereupon arrested on June 29 of 2000. As a
result, even before the arrest, the police had information which led
them to suspect the petitioner as the perpetrator of this offense.
And even without the arrest, p – law enforcement would mostly
have undertaken the same investigation and proceeded – as
proceeded after the interview with the petitioner. Specifically,
attempt to speak with Pat Jones, the petitioner’s landlord at that
time, which led to their interview of Lisa Jones, which then led the
police speaking et cetera.
As petitioner was already was already on the police radar – again,
figuratively speaking – they probably would have located his
residence and begun speaking with him and others about his
whereabouts on the night in question just as they did with
Christopher Jones. . . .
[H]ere the subsequent search of petitioner’s home was not
undertaken pursuant to an exception to the warrant requirement
and subsequent search therefore was not tainted by illegal arrest.
Here, the search of the petitioner’s home appears to have been
undertaken following an application for a search warrant was made
This occurred after the illegal arrest with the affidavit with in
support of the search warrant was not based on anything obtained
from the petitioner as a result of his illegal arrest. The search
warrant that was issued and which lead to the discovery of the jean
shorts, gray tee shirt, carpet threats was based on the following.
First, details of the crime committed on June 22, 2000.
Second, information provided to Detective Skull by Michael Tony,
Ms. Hamer’s adult son. That Alonzo or Lonny Price was a
possible suspect because he knew Price and felt that he fit the
Three, the details of the second crime committed on Jun 29, 2000
including Ms. Perez’s identification of the voice as that of
Alonzo/Lonny Price and her reasons for believing the voice was
that of the defendant and the fact that despite her believe, quote,
“She could not definitely,” -- “She could not say definitely that
she was positive that it was Alon” – “that it was Alonzo Price.”
Fourth, a recitation of the use of police dogs to follow the
assailant’s trail and the conclusion that based on the way the dogs
followed the trail, the assailant had been riding a bike.
Fifth, the similarity between the two crimes as specifically relates
to the method of entry, actions, comments made by the suspect,
tying up of both victims in almost the same way.
Sixth, a check of the criminal background of the defendant which
revealed he had 12 arrests including kidnap, sexual assault,
burglary, theft, weapons offenses and drug offenses.
Seventh, a description of the defendant’s appearance as the
detectives were arresting him. The defendant had very short facial
and head hair, strong odor of cigarettes, all consistent with Mrs.
Finally, the interview with Lisa Jones who also rents a room in the
same home as the defendant which revealed that she had lent the
defendant her bike sometime after midnight on June 28th and that
the bike was returned sometime before she woke up on the 29th.
Further described was Ms. Jones’ statements regarding a robbery
in Woodbine where a woman had been tied up and that she had
heard that the defendant was responsible of this crime though she
could not say what the source the information was or if it were
true, but she became concerned because she knew the defendant
was out of his apartment using her bike during the time the second
All but the last of these items, the interview with Ms. Jones, was
evidence obtained by the police before they arrested the defendant.
And it is therefore clear that the voice identification at the police
barracks was not part of the facts used in the affidavit for the
search warrant. The suppression of the search – of the fruits of the
search warrant – even if one disregarded the interview with Ms.
Jones – sufficient, in this Court’s view, to have supported a finding
of probable cause as was the case.
The Court in State v. Worthy set forth the following regarding
illegal searches and the exception to the exclusionary rule.
And I quote at 100 N.J. Reports at pages 238, a 1985 decision
specifically, “In State v. Sugar,” – cited omitted – “this Court
adopted an inevitable discovery exception to the judicially created
exclusionary rule applicable to an unreasonable search and seizure.
The exception applied when: 1. Proper, normal and specific
investigatory procedures would have been pursued in order to
complete the investigation of the case; 2. Under all of the
surrounding relevant circumstances, the pursuit of those
procedures would have inevitably resulted in the discovery of the
evidence; and 3. The discovery of the evidence through the use of
such procedures would have occurred wholly independently of the
discovery of such evidence by unlawful means.”
“The Court ruled in Sugar that the State must show by clear and
convincing evidence that had the illegality not occurred, it would
have pursued established investigatory procedures that would have
inevitably resulted in the discovery of the controverted evidence
wholly apart from its unlawful acquisition.” . . . .
The Court in Worthy held that the inevitable discovery exception
did not apply to the facts of that case noting, quote, “Courts must
be extremely careful not to apply the inevitable discovery rule
upon the basis of nothing more than a hunch or speculation as to
what otherwise might have occurred.”
Prior to the April 19 of 1991 conversation, there was no indication
that any other independent investigative process would have
resulted in the interception of the conversations and the result of
the – and the arrest – excuse me – of the defendants in the hotel in
Vineland on June 12. It was during the course of the illegally
recorded conversations that Worthy and the informant agreed on
the essential elements of the transaction; quantity, price, method of
payment and the tentative dates the deal would be completed.
As the trial court noted, the State, quote, “may have gotten John
Worthy on something, someday, somewhere if they continued
investigating him, but I’m not convinced that they would have ever
gotten to this deal with these 30 pounds of marijuana in this hotel
room on June 12, 1991, and I’m not thoroughly convinced of that,”
The case here is unlike those facts in Worthy. As I’ve pointed out,
even without the illegal arrest of the defendant, the factors the
State concedes, defendants [sic] would have questioned the
defendant and others connected to the defendant as they questioned
Christopher Turner and Mr. Turner’s girlfriend after Mr. Turner
was named as a possible suspect. . . .
Further, even without the interview of Lisa Jones, there was
enough in the affidavit, in this Court’s view, to support a finding of
probable cause. As such, the evidence obtained as a result of the
valid search warrant is not tainted by the illegal arrest.
As petitioner has therefore failed to show, there is a reasonable
property [sic] that but for trial counsel failing to move to suppress
the fruits of this search, is tainted by the illegal arrest or to
challenge the validity of the arrest that the outcome of the case
would have been different.
(Dkt. No. 10-16 at p. 27-31 (internal citations omitted).)
The state court’s denial was not an unreasonable application of Strickland. The state
court determined that the motion to suppress would have been denied such that there was no
reasonable probability that the outcome of the proceeding would have been different. Indeed, as
the state court noted, much of the evidence giving rise to the search of petitioner’s dwelling (in
which key evidence used at trial was seized) was discovered before and independent of
petitioner’s subsequent arrest. Accordingly, petitioner failed to show to that the state court
unreasonable applied Strickland’s prejudice prong by finding that petitioner had failed to show to
a reasonable probability that the outcome of his proceeding would have been different. Thus,
this Claim does not merit granting federal habeas relief.
L. Claims XII & XIII – Failure to Conduct Evidentiary Hearing During PCR Proceedings
In Claims XII and XIII, petitioner asserts that the PCR court erred in denying his PCR
petition without first conducting an evidentiary hearing. According to petitioner, he made a
prima facie showing that his Fourteenth Amendment right to a fair trial was violated.
Furthermore, petitioner claims that he should have been awarded an evidentiary hearing during
the PCR proceedings because trial counsel failed to suppress the cigarette butt due to a lack of
chain of custody and because the detective lied about what he did with this evidence. (See Dkt.
No. 1 at p. 9.)
As previously noted, petitioner is entitled to federal habeas relief for violations of the
Constitution, laws or treaties of the United States. See 28 U.S.C. § 2254(a). Thus, claims based
on state law error are not cognizable. See Estelle, 502 U.S. at 67-69. Furthermore, “the federal
role in reviewing an application for habeas corpus is limited to evaluating what occurred in the
state or federal proceedings that actually led to the petitioner’s conviction; what occurred in the
petitioner’s collateral proceeding does not enter into the habeas calculation.” Hassine v.
Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998); see also Lambert v. Blackwell, 387 F.3d 210, 247
(3d Cir. 2004) (“[H]abeas proceedings are not the appropriate forum for Lambert to pursue
claims of error at the PCRA proceeding.”). Thus, petitioner’s claim that he should have obtained
an evidentiary hearing in his PCR proceedings before the state courts is not properly before this
Court as a habeas claim. Accord Davis v. New Jersey, No. 12-5748, 2014 WL 2615657, at *17
(D.N.J. June 12, 2014); Vreeland v. Warren, No. 11-5239, 2013 WL 1867043, at *4 n.2 (D.N.J.
May 2, 2013). Accordingly, petitioner is not entitled to federal habeas relief on this claims that
the PCR court should have conducted an evidentiary hearing.
M. Petitioner’s Traverse
Petitioner appears to raise a new claim in his Traverse. He asserts in his traverse that the
search warrant issued lack probable cause. At the outset, the propriety of petitioner bringing this
new claim in his traverse which was filed more than one year after the New Jersey Supreme
Court denied certification on his PCR petition is questionable. See Ryan v. Hendricks, No. 044447, 2014 WL 268578, at *3 n.4 (D.N.J. Jan. 23, 2014) (explaining court will not consider new
claims brought in reply in support of habeas petition where petitioner was provided with required
Mason v. Myers, 208 F.3d 414 (3d Cir. 2000) notice made no effort to timely amend the
petition). However, even if such a claim was properly before this Court, petitioner still would
not be entitled to federal habeas relief on this issue. In Stone v. Powell, 428 U.S. 465 (1976), the
United States Supreme Court held that, “where the State has provided an opportunity for full and
fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas
corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was
introduced at trial.” Id. at 494. This bar applies whether or not the claim is potentially
meritorious. See Deputy v. Taylor, 19 F.3d 1485, 1491 (3d Cir. 1994).
Petitioner gives no indication that he did not have a full and fair opportunity to litigate
this Fourth Amendment claim in the state courts. Thus, he fails to show that he is entitled to
federal habeas relief on this claim, even if it is was properly raised before this Court.
N. Request for a Stay
Petitioner has also filed a request for a temporary stay of these proceedings. (See Dkt.
No. 18.) The entirety of his request is as follows:
I would like to request that I be allowed a Temporary Stay
regarding your pending decision on my petition for writ of habeas
corpus. There are several issues that I have failed to address on the
trial level, and I would appreciate the chance to have them heard in
the appropriate court. [¶] I am referring to a fourth amendment
violation, discovery violation, identification issue, and an illegal
(Id.) Thus, it appears as if petitioner seeks a stay so that he can exhaust unexhausted claims.
A state prisoner applying for a writ of habeas corpus under § 2254 in federal court must
first “exhaust[ ] the remedies available in the courts of the State,” unless “(i) there is an absence
of available State corrective process; or (ii) circumstances exist that render such process
ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1); see also Rose v.
Lundy, 455 U.S. 509, 515 (1982). A petitioner must exhaust state remedies by presenting his
federal constitutional claims to each level of the state courts empowered to hear those claims,
either on direct appeal or in collateral post-conviction relief proceedings. See, e.g., O’Sullivan v.
Boerckel, 526 U.S. 838, 847 (1999) (announcing the rule “requiring state prisoners to file
petitions for discretionary review when that review is part of the ordinary appellate review
procedure in the State”); see also 28 U.S.C. § 2254(c) (“An applicant shall not be deemed to
have exhausted the remedies available in the courts of the State, within the meaning of this
section, if he has the right under the law of the State to raise, by any available procedure, the
Recognizing the complexities that face prisoners who must exhaust state remedies while
complying with the one-year statute of limitations period for § 2254 habeas petitions as set out in
§ 2244(d)(1), the United States Court of Appeals for the Third Circuit has held that “[s]taying a
habeas petition pending exhaustion of state remedies is a permissible way to avoid barring from
federal court a petitioner who timely files a mixed petition [containing both exhausted and
unexhausted claims].” Crews v. Horn, 360 F.3d 146, 151 (3d Cir. 2004). Indeed, the Third
Circuit has stated that “when an outright dismissal could jeopardize the timeliness of a collateral
attack, a stay is the only appropriate course of action.” Id. at 154.
Since Crews, however, the United States Supreme Court has explained when a stay
should be issued; specifically:
stay and abeyance should be available only in limited
circumstances. Because granting a stay effectively excuses a
petitioner’s failure to present his claims first to the state courts,
stay and abeyance is only appropriate when the district court
determines that there was good cause for the petitioner’s failure to
exhaust his claims first in state court. Moreover, even if a
petitioner had good cause for that failure, the district court would
abuse its discretion if it were to grant him a stay when his
unexhausted claims are plainly meritless. . . .
[I]t likely would be an abuse of discretion for a district court to
deny a stay and to dismiss a mixed petition if the petitioner had
good cause for his failure to exhaust, his unexhausted claims are
potentially meritorious, and there is no indication that the
petitioner engaged in intentionally dilatory litigation tactics.
Rhines v. Weber, 544 U.S. 269, 277-78 (2005).
In this case, petitioner’s request for a stay is devoid of any argument illustrating “good
cause” for why he has failed to exhaust these general admittedly unexhausted claims.
Furthermore, his stay request is completely lacking with respect to the specifics of these claims
to show that they are potentially meritorious. Therefore, this Court will deny petitioner’s request
for a stay.
O. Petitioner’s Request to Amend Habeas Petition
Petitioner has also filed a motion to amend his habeas petition. (See Dkt. No. 24.) In the
request, petitioner seeks to add a claim that counsel was ineffective in failing to object to a jury
instruction given by the trial judge. The jury instruction given to the jury that is at issue was as
As you know, Mr. Price elected not to testify at trial. It is his
constitutional right to remain silent. You must not consider for any
purpose or in any manner in arriving at your verdict the fact that he
did not testify. That fact should not enter into your deliberations or
discussions in any manner at any time. Mr. Price is entitled to
have the Jury consider all the evidence presented at trial. He’s
presumed innocent even if he chooses not to testify.
(Dkt. No. 10-12 at p. 5.) While Federal Rule of Civil Procedure 15 states that leave to amend
should be freely given, the motion may be denied where there is undue delay, bad faith, dilatory
motive, unfair prejudice, or futility of amendment. See Grayson v. Mayview State Hosp., 293
F.3d 103, 108 (3d Cir. 2002) (citing Foman v. Davis, 371 U.S. 178, 182 (1962); In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)).
Generally, claims involving jury instructions in state criminal trials are matters of state
law and are cognizable only if the instructions are so fundamentally unfair that they deprive a
petitioner his rights to a fair trial and due process. See Henderson v. Kibbe, 431 U.S. 145, 154
(1977). Petitioner appears to argue that the above listed jury instruction left the jury with the
impression that the petitioner had an obligation to answer to the charges by testifying in his own
defense. However, this Court gleans nothing from the jury instructions, when read in full, that
would give the jury such an impression. Indeed, the trial court specifically instructed the jury
that petitioner had the right to remain silent and that his choice to remain silent should not enter
into their deliberations in any way whatsoever. Accordingly, as the proposed claim by petitioner
is meritless, his request to amend his habeas petition to add this claim would be futile such that
the request to amend will be denied.
P. Petitioner’s Motion to Compel
Petitioner has filed a renewed motion to compel. (See Dkt. No. 29.) In the motion,
petitioner requests that the Court order respondent to supply a copy of petitioner’s arrest warrant.
Petitioner previously sought to have this Court compel respondent to produce the arrest warrant.
In denying that first motion to compel without prejudice, this Court stated that respondent
admitted that the arrest warrant was invalid. Furthermore, the Court explained it appeared that
the actual arrest warrant would not be necessary to decide petitioner’s claims. (See Dkt. No. 28
at p. 1.) The same holds true now for the reasons discussed supra why petitioner’s ineffective
assistance of counsel claims related to the arrest warrant do not merit federal habeas relief.
Accordingly, the renewed motion to compel will be denied.
Q. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken from a final order in a proceeding under 28 U.S.C. §
2254. A certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies
this standard by demonstrating that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). Applying this standard, this Court finds that a certificate of appealability shall not issue
in this case.
For the foregoing reasons, petitioner’s habeas petition will be denied and a certificate of
appealability shall not issue. Furthermore, petitioner’s request for a stay and motion to compel
will be denied. An appropriate order will be entered.
DATED: June 25,2015
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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