EGIPCIACO v. WARREN et al

Filing 19

OPINION. Signed by Judge Noel L. Hillman on 2/24/2015. (dmr)(n.m.)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Audberto Egipciaco,
Petitioner,
v.
Charles Warren, et al.,
Respondents.

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Civil Action No. 12-4718(NLH)

OPINION

APPEARANCES:
Audberto Egipciaco
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625-0861
Petitioner pro se
Nancy P. Scharff
Assistant Camden County Prosecutor
25 North Fifth Street
Camden, NJ 08102-1231
Counsel for Respondents

HILLMAN, District Judge
This matter is presently before the Court pursuant to the
submission of a Petition for a Writ of Habeas Corpus under Title
28 U.S.C. § 2254 [Doc. No. 1], by the Petitioner Audberto

Egipciaco (“Petitioner”).

For the reasons stated below, the

Petition will be denied.
I.

Procedural History and the Present Petition

Petitioner is presently confined at New Jersey State
Prison, in Trenton, New Jersey.

(Pet. at 1.)

He is imprisoned

after conviction by a jury in the Superior Court of New Jersey,
Camden County on May 6, 2003, for:

three counts of armed

robbery (first degree), in violation of

N.J.S.A. 2C:15-1; one

count of aggravated assault (third degree), in violation of
N.J.S.A. 2C:12-1b(2); one count of burglary (second degree), in
violation of N.J.S.A. 2C-18(2); two counts of aggravated assault
(fourth degree), in violation of N.J.S.A. 2C:12-1b(4); two
counts of endangering the welfare of a child (third degree), in
violation of N.J.S.A. 2C:24-4a; and three counts of criminal
restraint (third degree), in violation of N.J.S.A. 2C:13-2a.
(Pet. at 4; Answer at 2-3 [Doc. No. 9.])
On June 20, 2003, Petitioner was sentenced to an aggregate
65-year sentence with a parole ineligibility term of 29 years, 9
months and 3 days.

(Answer at 3; June 20, 2003 Sentencing

Transcript (“Rta11”) at 25 [Doc. No. 10-11]; Judgment of
Conviction (“Ra3”) [Doc. No. 9-5.]

Petitioner filed a direct

appeal, and his conviction was affirmed on February 7, 2006, but

2

(Pet., ¶ 9.) 1

the case was remanded for resentencing.

Petitioner appealed to the New Jersey Supreme Court, and it
denied certification on November 2, 2007.

(Pet., ¶ 9(d),

Answer, ¶ 9.)
Petitioner filed a petition for post-conviction relief in
the Superior Court of New Jersey, Camden County (“PCR Court”),
alleging the following:
1A “Trial Counsel failed to call essential
witnesses to testify at trial; (B) Trial Counsel
failed to cross examine in an effective manner; (C)
Trial Counsel failed to object to the jury charge on
accomplice liability; (D) trial Counsel failed to hire
an appropriate expert witness to testify at trial; (E)
Trial counsel failed to consult with [Defendant]; (F)
Trial Counsel was ineffective for not properly
advising Defendant on his right to testify; (G) Trial
Counsel failed to prepare for trial. (2) Trial Counsel
was ineffective for failing to use evidence of Carmen
Garcia’s convictions to impeach her credibility. (3)
the Trial Court erred [when it] admitted the
impermissibly suggestive out of Court and tainted in
Court identifications of Defendant, which violated
Defendant’s due process U.S.C.A. Const. Amends. 5, 14.
(4) The Prosecutor’s failure to provide Defense
Counsel with the new incriminating testimony of the
eyewitnesses was a discovery violation, and therefore
the Trial Judge, in denying the Defendant’s Motion for
a Mistrial following surprise incrimination testimony
which had not been disclosed to the defense, and
deprived the Defendant of his constitutional rights to
[due] process and a fair trial. U.S. Const. Amends.
VI, XIV. (5) Trial Counsel was ineffective for
failure to object, and file any Limine Motion prior to
trial, or at the end of the State’s case to have
1

Upon resentencing on April 28, 2006, the court determined the
sentence imposed would not change under intervening law.
(Answer, ¶ 9.) Petitioner appealed the sentence, and the New
Jersey Superior Court Appellate Division (“Superior Court”)
denied the appeal on July 24, 2007. (Id.)
3

counts seven and eight dismissed, because the verdicts
as to endangering the welfare of a child, contrary to
counts seven and eight was against the weight of the
evidence and denied Defendant a fair trial on all
other counts. (6) Because of Trial Counsel’s
ineffective assistance the Court denied Defendant due
process of law and a fair trial by restricting his
counsel’s opening statements. (7) Trial Counsel was
ineffective for failure to object to a jury
instruction which amounted to an ultimatum. (8)
Cumulative errors by Trial Counsel amounted to
ineffective assistance of Counsel. (9) The Defendant
was denied the effective assistance of Counsel on
direct appeal in violation of New Jersey Const. Art. 1
Par. 10, as well as the United States Constitution
Amendment 6. (10) The cumulative effect of the Trial
Court’s error violated the Common Law of New Jersey
and the due process [clause] of the United States
constitution. (11) Defendant is entitled to an
evidentiary hearing in support of his Petition for
Post-Conviction Relief. Petitioner was denied a fair
trial with effective assistance of counsel.

(Pet., ¶ 11); see also briefs submitted to PCR Court, Ra11-Ra15
[Doc. No. 9-14 through 9-18.]

An evidentiary hearing was held,

and the Petition was denied on July 17, 2009.

(Answer, ¶ 11.)

Petitioner appealed but the Superior Court affirmed the PCR
Court on September 26, 2011.

(Id.)

The New Jersey Supreme

Court denied certification on April 9, 2012.

(Id.; Pet., ¶ 11.)

In the present Petition, Petitioner raised all of the same
grounds that he raised in his post-conviction brief, using the
same numbering.
II.

(Pet., ¶ 12, Ground One).
Response to the Petition and Replies

Respondents asserted two affirmative defenses in their
Answer:

(1) Petitioner failed to establish a prima facie case
4

of ineffective assistance of counsel; and (2) Petitioner’s
claims in Ground One, Subpoints 1C, 3, 4, 5, 6, 7, 8 and 10 are
procedurally defaulted.

(Answer at 13.)

Petitioner filed a reply entitled “Petitioner Audberto
Egipciaco’s Memorandum in Support of Habeas Corpus Relief.”
(“Petr’s Mem.”)[Doc. No. 14].

Petitioner reasserted his claims

and contended he had set forth an ineffective assistance of
counsel claim upon which relief may granted:
because the decision rendered on his appeal
was contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court of
the United States and resulted in a decision
that was based on an unreasonable
determination of the facts in light of the
evidence presented in the State court
proceeding. Harrington v. Gillis, 456 F.3d
118 (2006); Williams v. Taylor, 529 U.S.
362, 146 L.Ed.2d 389; 120 S.Ct. 1495.
(Id. at 4.)
Petitioner also asserted a claim of ineffective assistance
of appellate counsel, claiming that counsel was ineffective for
failing “to raise the important issues raised in the PCR
Petition filed by Petitioner.”

(Id. at 20-21.)

Finally,

Petitioner challenged his sentence as excessive, and imposed in
violation of Apprendi v. New Jersey, 530 U.S. 466 (2000).
at 23.)

Respondents objected to Petitioner raising a new

sentencing claim in his reply.

(Letter)[Doc. No. 15].

5

(Id.

Petitioner then submitted additional evidence in support of his
claims (Letter)[Doc. No. 16.]
Respondents objected to Petitioner’s submission of evidence
outside of the state court record, including a cover letter from
the prosecutor regarding discovery information, and a letter to
an investigator from Petitioner’s co-defendant’s counsel.
(Letter at 2)[Doc. No. 17.]

“[R]eview under § 2254(d)(1) is

limited to the record that was before the state court that
adjudicated the claim on the merits.”
S.Ct. 1388, 1398 (2011).

Cullen v. Pinholster, 131

This Court will not consider the new

evidence.
III.
A.

ANALYSIS

Procedural Default
A state prisoner must exhaust the remedies available in

state courts before bringing his federal habeas petition, unless
“there is an absence of available state corrective process[] or
. . . circumstances exist that render such process
ineffective.”))

The exhaustion requirement gives the state

courts “̔the opportunity to pass upon and correct alleged
violations of its prisoners’ federal rights.’”

Collins v. Penn.

Sec. of Dept. of Corr., 742 F.3d 528, 542 (3d. Cir.
2014)(quoting Baldwin v. Reese, 541 U.S. 27, 29 (2004)(quoting
Duncan v. Henry, 513 U.S. 364, 365 (1995)(per curiam)); 28
U.S.C. § 2254(b)(1).
6

A habeas petitioner exhausts his state court remedies by
presenting his federal constitutional claims at each level of
state court empowered to hear such claims, including direct
appeal and post-conviction proceedings.

28 U.S.C. § 2254(c);

Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004)(citing
O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)).

A claim

is not only unexhausted but is also procedurally defaulted if
state procedures prohibit the petitioner from later presenting
the unexhausted claim in state court.

Id. (citing Jimenez v.

Walker, 458 F.3d 130, 149 (2nd Cir. 2006).
Procedural default may be excused and a federal habeas
court may address the claim if the petitioner shows cause and
prejudice for the default or that a fundamental miscarriage of
justice will occur if the claim is not addressed.

Id. at 542,

n. 8 (citing Jimenez, 458 F.3d at 149) (citing Murray v.
Carrier, 477 U.S. 478, 495-96 (1986)).

“The existence of cause

for procedural default must ordinarily turn on whether the
prisoner can show that some objective factor external to the
defense impeded counsel’s efforts to comply with the State’s
procedural rule.”

Murray, 477 U.S. at 488.

The prejudice

required to excuse procedural default is more than the
possibility of prejudice, but that the trial errors “worked to
his actual and substantial disadvantage, infecting the entire
trial with error of constitutional dimensions.”
7

Albrecht v.

Horn, 485 F.3d 103, 124, n. 7 (3d Cir. 2007)(quoting Murray, 477
U.S. at 494)).
Procedural default may also be excused if a “fundamental
miscarriage of justice” will occur if the habeas court does not
address the merits of the claim.
722, 750 (1991).

Coleman v. Thompson, 501 U.S.

“To establish a miscarriage of justice

excusing a procedural default a habeas petitioner must
‘persuade[] the district court that, in light of the new
evidence, no juror, acting reasonably, would have voted to find
him guilty beyond a reasonable doubt.’”

Cristin v. Brennan, 281

F.3d 404, 420 (3d Cir. 2002)(quoting Schlup v. Delo, 513 U.S.
298, 329 (1995).

Thus, “[a]n allegation of ‘actual innocence’

if credible, is one such ‘miscarriage of justice’ that enables
courts to hear the merits” of otherwise procedurally defaulted
habeas claims.

Hubbard v. Pinchak, 378 F.3d 333, 338 (3d Cir.

2004).
Respondents contended Petitioner’s claim that trial counsel
was ineffective for failing to object to a jury instruction
(Ground One, 1C) is procedurally defaulted under state law.
When Petitioner raised the issue in the PCR Court, the court
found the claim was procedurally defaulted, because Petitioner
could have raised it on direct appeal without expanding the
record.
14].

(PCR Motion Transcript (“Rta14”) at 40-41 [Doc. No. 10-

New Jersey Court Rule 3:22-4 bars from post-conviction
8

proceedings grounds for relief not raised in appeal of
proceedings resulting in the conviction (with limited exceptions
not applicable here).

The Superior Court affirmed on appeal.

(State v. Egipciaco, A-003812-09T1 (Sept. 26, 2011) (“Ra21”) at
7) [Doc. No. 9-24.]
Indeed, Petitioner could have raised the claim on direct
appeal without expanding the record.

He was present at trial

and knew counsel had not objected to the jury instruction.
Therefore, the claim is procedurally defaulted under N.J.Ct.R.
3:22-4.

This Court will deny Ground 1C.

Respondents contended that Ground One, Subpoint 4, whether
the trial court erred by failing to grant a mistrial based on an
alleged discovery violation, is also procedurally defaulted
albeit for a different reason.

The Superior Court denied the

claim on direct appeal, and the PCR Court thus ruled the claim
was procedurally defaulted under state law, pursuant to
N.J.Ct.R. 3:22-5.
appeal.

(Rta14 at 41.)

The PCR Court was affirmed on

(Ra21 at 11.)

New Jersey Court Rule 3:22-5, governing post-conviction
relief, provides:
A prior adjudication upon the merits of any
ground for relief is conclusive whether made
in the proceedings resulting in the
conviction or in any post-conviction
proceeding brought pursuant to this rule or
prior to the adoption thereof, or in any
appeal taken from such proceedings.
9

Thus, this habeas claim is procedurally defaulted because the
state appellate court reviewing the PCR petition dismissed the
claim on a state procedural ground.

The Court will deny Ground

One, Subpoint 4.
In Ground One, Subpoint 3, Petitioner alleged the trial
court erred by admitting improper identification evidence.
Respondents argued the claim is procedurally defaulted because
Petitioner could have brought the claim in his direct appeal but
did not.

Petitioner was, of course, aware of the

identification evidence that was admitted at trial, and he could
have raised any constitutional claims regarding admission of the
evidence on direct appeal.

This claim is procedurally

defaulted, pursuant to N.J.Ct.R. 3:22-4.

The Court will also

deny Ground One, Subpoint 3.
Petitioner has not asserted an external cause that
prevented him from bringing Ground 1C or Ground One, Subpoint 3
at the appropriate time in the state courts, nor has he offered
new evidence to show actual innocence that would excuse
procedural default of these habeas claims.

Thus, none of his

procedurally defaulted habeas claims discussed above will be
addressed on the merits.
Respondents contended the claims Petitioner raised in
Ground One, Subpoints 5, 6, 7, 8 and 10 are claims about trial
10

court rulings which Petitioner should have brought on direct
appeal, but he instead brought the claims under the guise of
ineffective assistance of counsel in the PCR Court.

Respondents

asserted the claims are procedurally defaulted because
Petitioner could have proceeded on direct appeal and failed to
do so.
It is true that Petitioner brought these claims as
ineffective assistance of counsel claims in a post-conviction
proceeding.

(Supp. Brief in Further Supp. of Audberto Egipciaco

Application for Post-Conviction Relief (“Ra12”) at 4)[Doc. No.
9-15.]

The PCR Court did not find the claims procedurally

barred, however, and addressed the claims on the merits,
although only to state that they would be dismissed because they
were no more than bald assertions.

(PCR Court Order, July 17,

2009 (“Ra16”)[Doc. No. 9-19]; Ra21 at 44-45).

The claims might

have been stated differently and brought on direct appeal, but
the PCR Court addressed the merits of the claims, and this Court
will do the same, giving proper deference to the PCR Court
decision under § 2254.

See Jones v. Phelps, 2015 WL 394625, at

*2 (3d Cir. 2015)(addressing potentially defaulted claims that
were addressed on the merits by the state post-conviction
court).
B.

Ineffective Assistance of Counsel
1.

Standard of Review
11

28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus
on behalf of a person in custody pursuant to
the judgment of a State court shall not be
granted with respect to any claim that was
adjudicated on the merits in State court
proceedings unless the adjudication of the
claim­­
(1) resulted in a decision that was
contrary to, or involved an
unreasonable application of, clearly
established Federal law, as determined
by the Supreme Court of the United
States; or
(2) resulted in a decision that was
based on an unreasonable determination
of the facts in light of the evidence
presented in the State court
proceeding.
“Contrary

to clearly established Federal law” means the

state court applied a rule that contradicted the governing law
set forth in Supreme Court precedent or that the state court
confronted a set of facts that were materially indistinguishable
from Supreme Court precedent and arrived at a different result
than the Supreme Court.

Eley v. Erickson, 712 F.3d 837, 846 (3d

Cir. 2013)(citing Williams v. Taylor, 529 U.S. 362, 405 (2000)).
An “unreasonable application” of clearly established federal law
is an “objectively unreasonable” application of law, not merely
an erroneous application.

Id. (quoting Renico v. Lett, 130

S.Ct. 1855, 1862 (2010)).

Where a state court has summarily

denied a claim, § 2254(d) still applies.
at 1402.

12

Pinholster, 131 S.Ct.

When this occurs, the habeas petitioner can only satisfy
the “unreasonable application” clause of § 2254(d) by showing
that “there was no reasonable basis” for the state court’s
decision.

Id. (quoting Harrington v. Richter, 131 S.Ct. 770,

784 (2011)).

A state court's determination that a claim lacks

merit precludes federal habeas relief so long as “fairminded
jurists could disagree” on the correctness of the state court's
decision.

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

Alvarado, 541 U.S. 652, 664 (2004)).
Here, Petitioner has not presented any Supreme Court cases
that are materially indistinguishable from his own case and were
wrongfully applied.

Petitioner acknowledged the state courts

correctly identified Strickland v. Washington, 466 U.S. 668
(1984), as the Supreme Court case that governs his ineffective
assistance of counsel claims.

(Petr’s Mem. at 9.)

Additionally, Petitioner has not alleged any particularized
claim that the state court’s determination of the facts was
unreasonable.

The Court, therefore, will address only the

“unreasonable application” prong of § 2254(d)(1).
2.

State Court Factual Findings

The facts, as stated by the Superior Court on direct
appeal, are as follows.

In the evening of January 23, 2001, 2

2

The PCR Court found that the crime occurred at approximately
7:15 p.m. (Rta14 at 35.)
13

Carmen Garcia, her husband Julio Vasquez, their friend Norma
Garcia, and several of Norma’s children, including 16-year-old
Catherine Morales (“Catherine”), were at Carmen Garcia’s home in
Camden when two masked men entered their apartment.

State v.

Egipciaco, 2006 WL 2668530 (N.J.Super.A.D. Feb. 7, 2006);
(Appellate Division Order (“Ra9”)[Doc. No. 9-12.]

Catherine

later testified that she recognized one of the men as a family
friend.

Id. at *1.

Catherine ran upstairs, and the man she had

identified followed her.

Id.

The other man stayed downstairs

and put a gun to Norma’s head, demanding money and jewelry.

Id.

In the meantime, upstairs, Petitioner threw Carmen to the
floor, hit her, and took her jewelry.

Id.

Reyes, the co-

defendant, went upstairs, and Petitioner directed him to look
for jewelry in the closet.

Id.

Carmen recognized Petitioner’s

voice, his eyes, and his ponytail.
twenty years.

Id.

Id.

She had known him for

Julio, who was also upstairs, recognized

Petitioner’s voice and ponytail.

Id.

When Julio ran to

Carmen’s defense, Petitioner hit him on the right side of his
head with the gun.

Id.

Maria Morales (“Morales”) was on her way to visit Julio and
Carmen, and Carmen yelled out the window of the apartment that
they had just been robbed and the robbers were leaving the
building.

Id. at *2.

Morales saw two masked men leaving the

building, and they pulled their masks up, allowing her to see
14

their faces.

Id.

She recognized Petitioner and Reyes, but

identified them only by their nicknames.
and called 9-1-1.

Id.

Morales went home

Id.

Petitioner was a longtime friend of Carmen and Julio, and
had been at their apartment earlier on the day of the robbery,
as had Morales.

Id.

Officer Alicea, a relative of Reyes,

responded to Morales’ call and went to the scene of the crime.
Morales told the Officer that Reyes robbed her aunt.

Id.

was brought in as a suspect and Morales identified him.

Reyes
Id.

Several days later, Morales happened to see Petitioner in a
courtroom, and she told the Sheriff who was present about the
robbery.
Id.

Id.

Petitioner was immediately arrested as a suspect.

A few months later, Morales identified Petitioner in a

photo array, and she later made an in-court identification of
him.

Id.
Another officer, Frank Colon, was also dispatched to the

scene of the crime, and Carmen and Julio told him they had
recognized Petitioner’s voice.

Id.

This information was not

contained in the report of the first officer to arrive at the
scene, Officer Alicea.

Id.

Detective Finneman also went to the

scene of the crime and wrote a report indicating that he briefly
interviewed Carmen and Julio, and that they had not identified
the suspects.

Id.

Carmen and Julio later identified Petitioner

from a photo array in the prosecutor’s office, on March 22,
15

2001.

Id.

They also identified Petitioner in the courtroom.

Id.
At trial, Petitioner presented testimony from an alibi
witness, Maria Concepcion (“Concepcion”).

Id.

She said she was

with Petitioner at the time of the robbery on January 23, 2001.
Id.

Petitioner had picked her up from work at Virtua Hospital,

they went to a Pathmark store, and then spent the evening in her
home.
Id.

Id.

A video from the Pathmark store was shown at trial.

It showed Concepcion walking with someone, whom she

identified as Petitioner.

Id.

The date and time of the video

was January 23, 2001 at 6:35 p.m.

Id.

Petitioner moved for a mistrial based on surprise testimony
by Carmen, Julio, and Officer Colon, that Carmen and Julio
identified Petitioner on the night of the crime.
motion for a mistrial was denied.

Id.

Id.

The

The trial judge denied

the motion because the defense received discovery indicating
that Carmen would testify at trial that she identified
Petitioner by his hair and his eyes.

Id. at 3.

On appeal, Petitioner argued he had relied on the police
reports in forming the misidentification defense.

Id. at 4.

The Superior Court held the discovery violation did not deprive
Petitioner of a fair trial, because the testimony that had not
been produced to the defense before trial only went to the
timing of when Carmen and Julio first identified Petitioner.
16

Id. at *5-6.

The Superior Court also acknowledged Petitioner’s

sentencing claims but did not address the merits of those claims
because the case was remanded for resentencing due to an
intervening change in the law, and Petitioner would be able to
raise his claims upon resentencing.

Id. at 7.

A PCR hearing was held on July 17, 2009, and the court read
its findings into the record at the end of the hearing.
at 26-50.)

(Rta14

The Superior Court affirmed the PCR Court, and held:
To the extent that [Petitioner’s
contentions] were or could have been raised
on direct appeal, they are barred by Rule
3:22–4 and Rule 3:22–5. Those arguments not
barred by the Rules are without sufficient
merit to warrant discussion in a written
opinion. R. 2:11–3(e)(2). Having reviewed
the record, including the original trial
transcript, we affirm substantially for the
reasons stated in Judge Natal's opinion. We
add the following comments.

(Ra21 at 11.)
The Superior Court added that Judge Natal, who conducted
the PCR hearing, did not find Petitioner to be a credible
witness, and there was no basis in the record to disturb this
finding.

Id. at *5.

The court also agreed with Judge Natal’s

finding that Petitioner’s allegations of ineffective assistance
of counsel were no more than bald assertions.

Id.

For example,

Petitioner alleged counsel failed to cross examine Carmen Garcia
about her criminal record, but Petitioner did not produce any

17

evidence about her prior convictions or explain how the
convictions would have affected her credibility.

Id.

The court

also addressed Petitioner’s ineffective assistance of appellate
counsel claim, finding that none of the claims Petitioner
alleged appellate counsel should have raised on direct appeal
would have succeeded.
3.

Id.

Merits of the Remaining Habeas Claims

The test announced by the Supreme Court in Strickland, 466
U.S. at 687, governs claims that a Petitioner was denied a fair
trial because his counsel provided ineffective assistance.

See

Lafler v. Cooper, 132 S.Ct. 1376, 1384-85 (2012)(applying
Strickland test in habeas case where petitioner challenged
counsel’s deficient performance in advising the petitioner to
reject plea offer and go to trial).

The Strickland test has two

prongs:
First, the defendant must show that
counsel’s performance was deficient. This
requires showing that counsel made errors so
serious that counsel was not functioning “as
counsel” guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance
prejudiced the defense. This requires
showing that counsel’s errors were so
serious as to deprive the defendant of a
fair trial, a trial whose result is
reliable.
Strickland, 466 U.S. at 687.

18

The first prong of the test “requires a defendant to show
‘that counsel’s representation fell below an objective standard
of reasonableness.’"

Lafler, 132 S.Ct. at 1384 (quoting Hill v.

Lockhart, 474 U.S. 52, 57 (1985)).

There is “a strong

presumption that counsel's conduct falls within the wide range
of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.”
Strickland, 466 U.S. at 689.

“The Sixth Amendment guarantees

reasonable competence, not perfect advocacy judged with the
benefit of hindsight.”

Yarborough, 540 U.S. at 8 (citing Bell

v. Cone, 535 U.S. 685, 702 (2002); Kimmelman v. Morrison, 477
U.S. 365, 382 (1986); Strickland, 466 U.S. at 689; United States
v. Cronic, 466 U.S. 648, 656 (1984)).
In cases where the record does not explicitly disclose
trial counsel's actual strategy or lack thereof . . . the
presumption may only be rebutted through a showing that no sound
strategy posited [by the Respondent] could have supported the
conduct.

Thomas v. Varner, 428 F.3d 491, 500 (3d Cir. 2005)

(citing Yarborough v. Gentry, 540 U.S. 1, 8 (2003)(per curiam)).
“[The Antiterrorism and Effective Death Penalty Act’ requires
that [habeas courts] ‘determine what arguments or theories
supported . . . or could have supported, the state court’s

19

decision.’”

Collins, 742 F.3d at 547 (3d Cir. 2014)(quoting

Richter, 131 S.Ct. at 786).
The second prong of the Strickland test, prejudice,
requires a defendant to “show that there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.”
(quoting Strickland, 466 U.S. at 694).

Id.

The “ultimate focus” of

the prejudice inquiry is on the fundamental fairness of the
proceeding.
U.S. at 696).

Lafler, 132 S.Ct. at 1394 (quoting Strickland, 466
“A reasonable probability is one ‘sufficient to

undermine confidence in the outcome.’”

Collins, 742 F.3d at 547

(quoting Strickland, 466 U.S. at 694).

“Prejudice is viewed in

light of the totality of the evidence at trial and the testimony
at the collateral review hearing.”

Id. (citing Rolan v. Vaugh,

445 F.3d 671, 682 (3d. Cir. 2006)).
a.

Ground 1A, Alibi Witnesses

Respondents contended the PCR Court properly applied the
Strickland test in denying Petitioner’s ineffective assistance
of counsel claims for the following reasons.

Regarding Ground

1A of the habeas petition, Petitioner was allowed to present
evidence in the PCR Court concerning his claim that counsel
failed to secure the testimony of his alibi witnesses.
at 5-7, 11-14, 19-25.)

(Rta14

Petitioner testified at the hearing, but

he did not call his alibi witnesses.
20

(Id.)

Petitioner admitted to the PCR Court that he was really
only concerned with trial counsel’s failure to call two of his
alibi witnesses, Michael and Luciano Concepcion.
24.)

(Rta14 at 23-

However, Petitioner admitted they were not with him at the

Pathmark store, which was the alibi he presented at trial.
at 21-22.)

(Id.

He wanted to establish he was with them later that

evening, because an investigator told the jury Petitioner would
have had time to commit the robbery after he left the Pathmark
store.

(Id. at 22.)

The PCR Court found these witnesses would

not have provided an alibi because they were not with Petitioner
in the Pathmark store, therefore, Petitioner failed to establish
a prima facie claim of ineffective assistance of counsel.

(Id.

at 38-39, 45-47.)
The Superior Court affirmed, noting Petitioner testified in
the PCR hearing that he told his counsel about Michael and
Luciano Concepcion, but counsel told him their testimony was not
necessary, and Petitioner did not dispute this at the time.
(Ra21 at 5.)

Petitioner said he was not thinking straight

because he was on medication, but the Superior Court noted he
did not produce any evidence that he was on medication.

(Id.)

Petitioner contended the state court decision was based on
an unreasonable application of the test announced by the Supreme
Court in Strickland, although he offered little in the way of
explanation.

(Petr’s Mem. at 7-10.)
21

He generally asserted that

counsel failed to call alibi witnesses who were prepared to
testify he was with them at the time of the crime.

(Id. at 10.)

Regarding prejudice, Petitioner asserted that if counsel had
subpoenaed the additional witnesses to testify, counsel would
have proceeded differently at trial.

(Id.)

Petitioner

contended the harm of failing to call these witnesses is
compounded by the fact that witnesses who testified at trial
gave conflicting testimony, although he did not fully explain
this contention.

(Id. at 11.)

Petitioner alleged that trial

counsel failed to prepare for trial because he did not interview
these essential witnesses.

(Id. at 12.)

When counsel focuses on some issues to the exclusion of
others, “there is a strong presumption that he did so for
tactical reasons rather than through sheer neglect.”
Yarborough, 540 U.S. at 8.

Such a presumption has “̔particular

force where a petitioner bases his ineffective-assistance claim
solely on the trial record, creating a situation in which a
court “may have no way of knowing whether a seemingly unusual or
misguided action by counsel had a sound strategic motive.’”

Id.

(quoting Massaro v. United States, 538 U.S. 500, 505 (2003)).
Petitioner did not present testimony from his trial counsel
at the PCR hearing, thus, the Court has only the trial record
from which to glean counsel’s trial strategy.

Petitioner’s

trial counsel presented an alibi defense that he was with Maria
22

Concepcion in a Pathmark store at the time of the robbery.
(Trial Transcript (“Rta8”) at 32-33, 40-44)[Doc. No. 10-8.]
Counsel may well have chosen to pursue this alibi because it was
supported by video evidence, purporting to show Petitioner was
with Maria Concepcion at the Pathmark store very close to the
time of the robbery.

Any alibi without corroborating evidence,

such as Michael and Luciano’s testimony that they were with
Petitioner later that night, would force the jury to weigh the
credibility of the multiple eyewitnesses to the crime against
the credibility of the alibi witnesses, whom had a relationship
with Petitioner, giving them a motive to lie to protect him.
Ms. Concepcion’s testimony was that Petitioner was with her
all night, and he stayed overnight at her house because she was
too tired to drive him home, and she needed him to drive her to
work the next morning, since he was going to borrow her car
during the day.
[Doc. No. 10-7.]

(Trial Transcript (“Rta7”) at 26-37, 46-51, 66)
Also, because one of her sons was using her

other car, she and Petitioner had to share the one car.

(Id.)

This testimony would conflict with Petitioner’s proposed alibi
testimony, that Michael and Luciano Conception were with
Petitioner the rest of that evening in Maria Concepcion’s home.
The jury might have concluded that if they had been there, one
of them could have driven Petitioner home that night or driven

23

Maria to work the next morning, calling her testimony into
question.
There is, therefore, a sound strategy that might have
supported trial counsel’s decision to call only Maria
Concepcion; she could provide the strongest possible alibi
defense, corroborated by video evidence.

This Court, therefore,

finds the state courts did not unreasonably apply Strickland in
determining that counsel’s performance was not deficient.
Moreover, even if counsel had presented testimony from
Michael and Luciano Concepcion, the jury may not have found the
testimony credible, given that they rejected Maria Concepcion’s
testimony that he was with her all night.

The jury had to

choose between the credibility of multiple eyewitnesses, at
least one of whom knew Petitioner very well, and his alibi
witness, and they chose to believe the eyewitnesses.

The Court

cannot conclude that if Michael and Luciano also testified they
were home with Maria and Petitioner later that evening, the
outcome of the trial would have been different.

Therefore, this

Court will deny Petitioner’s ineffective assistance of counsel
claim based on failure to call additional alibi witnesses
(Ground 1A).
b.

Ground 1F, Petitioner’s Right to Testify

The PCR Court found that Petitioner’s remaining claims,
Grounds 1A, 1B, 1D, 1E, 1F, 1G and Subpoints 5, 6, 7, 8, 9, and
24

10 of the habeas petition, were no more than bald assertions,
unsupported by affidavits or certifications.

(Rta14 at 44-45).

Nonetheless, the PCR Court addressed Petitioner’s claim that
counsel did not allow him to testify in court.

(Ground 1F of

the habeas petition).
When Petitioner testified at the PCR hearing, he admitted
that his trial counsel warned him that if he testified the jury
would learn about his prior convictions and choose not to
believe him.

(Rta14 at 8-9, 15-18.)

The PCR Court noted it was

Petitioner himself who told the trial court he did not wish to
testify.

(Id. at 49.)

The Superior Court affirmed, noting the

trial judge properly found Petitioner had voluntarily and
knowingly waived his right to testify.

(Ra21 at 12.)

These

circumstances suggest it is only in hindsight that Petitioner
wished he had testified.

At the time, however, he relied on the

reasonable advice of counsel that he would open himself up to
impeachment by his criminal record.

These circumstances do not

reflect a deficient performance by Petitioner’s trial counsel.
Thus, Ground 1F of the petition will be denied.
c.

Ground 1E, Trial Counsel’s Failure to Consult

With respect to Ground 1E of the petition, Petitioner’s
trial counsel failed to consult with him, Petitioner testified
at the PCR hearing that trial counsel met with him a few times.
(Rta14 at 7-8.)

Petitioner did not feel this was sufficient,
25

particularly because he was on medication at the time and was
confused.

(Id.)

Petitioner admitted he did not tell his

counsel he was on medication and was confused.
The PCR Court denied the claim summarily.

(Id. at 14.)

Here, Petitioner has

not alleged what matters counsel failed to consult him about
would have made any difference in the outcome of the trial.
Thus, the Court will deny Ground IE of the petition because it
was reasonable for the state court to conclude that Petitioner
failed to satisfy the prejudice prong.
d.

Ground 1.2, Ineffective Cross-Examination

In Ground One, Subpoint 2 of the petition, Petitioner
alleged trial counsel was ineffective for failing to crossexamine Carmen Garcia, for the purpose of impeaching her
testimony based on her prior convictions.

Petitioner also

alleged in Ground 1B that trial counsel generally failed to
cross-examine effectively.
The Superior Court noted Petitioner had not offered any
support for his post-conviction claim that counsel should have
impeached Carmen Garcia with her prior convictions. (Ra21 at
12.)

Respondents argued Petitioner made contradictory

statements in his brief, alleging ineffective assistance for
failure to cross-examine Carmen Garcia, but also acknowledging
that his trial counsel vigorously cross-examined the State’s
witnesses.

(Answer at 40)(citing Ra12 at 36, 40-50.)
26

With

regard to the prejudice prong of the Strickland test,
Respondents noted Carmen Garcia was only one of four
eyewitnesses who identified Petitioner as one of the robbers.
(Id.)

Petitioner did not elaborate on his general claim that

trial counsel failed to cross-examine effectively.
In this case, even if trial counsel could have impeached
Carmen Garcia based on her prior convictions, the outcome of the
trial would not likely have been different because Carmen Garcia
was not the only eyewitness who identified Petitioner as one of
the robbers; there were several other eyewitnesses who
identified Petitioner.

(Rta8 at 51-70.)

Therefore, the jury

was not as likely to discredit her identification of Petitioner
based on her criminal record, and the outcome of the trial was
not likely to have been different if counsel had attempted to
impeach the witness.

Additionally, given the deference owed to

state court decisions on habeas review, even when the state
court summarily denied a claim, Petitioner cannot establish
trial counsel was generally ineffective in cross-examination
without explaining how counsel was deficient.

For this reason,

this Court will deny Ground 1B, and Ground One, Subpoint 2 of
the petition.
e.

Ground 1D, Failure to Hire an Expert

Petitioner also claimed counsel should have hired an expert
witness (Ground 1D), and the PCR Court dismissed this claim.
27

(Petr’s Mem. at 14-15.)

The Superior Court affirmed the PCR

Court’s dismissal of this claim, noting Petitioner failed to
provide any affidavit describing the proposed expert testimony.
(Ra21 at 7-8.)
Here, Petitioner alleged an expert witness could have
undermined certain of the eyewitness identifications of
Petitioner by attacking the identification procedures used by
police.

(Petr’s Mem. at 14.)

Petitioner did not further

describe the proposed expert testimony or how it would have
undermined the identifications; therefore, he did not establish
that counsel’s performance was somehow deficient for failing to
obtain an expert.

Even if the jury called into question the

identification procedures used by police, several eyewitnesses
identified Petitioner as the robber in the courtroom, and they
testified that they recognized his voice, eyes and ponytail.
(Rta8 at 51-70.)

Thus, the outcome of the trial would not

likely have been different if expert witness testimony had been
presented.

The Court will deny Ground 1D of the petition.
f.

Ground 1D, Failure to Investigate and Prepare

Petitioner also claimed trial counsel failed to investigate
and prepare for trial, and that counsel failed to consult with
Petitioner.

(Ground 1G of the habeas petition.)

The PCR Court

rejected Petitioner’s claim, noting Petitioner had not
established what additional investigation would have revealed.
28

(Rta14 at 43, 45.)

Here, Petitioner has likewise failed to

establish how counsel’s pretrial investigation was deficient or
why the result of the proceeding might have altered if counsel
had prepared for trial any differently.
On habeas review, it is not enough to generally allege that
if things had been done differently, the outcome might have been
affected.

It is clear from the trial court record that counsel

conducted an investigation that included Petitioner’s alibi,
corroborated with video evidence, and that counsel had knowledge
of the content of the police records.

Petitioner has not

established that the state court decision unreasonably applied
the Strickland test in finding trial counsel adequately
investigated and prepared for trial.

Therefore, this Court will

also deny Ground 1G of the petition.
g.

Ground 1.5, Failure to Object

Respondents argued Ground One, Subpoints 5, 6, and 7 are
without merit, as found by the PCR Court without further
discussion.

When a state court summarily denies a claim “a

habeas court must determine what arguments or theories ... could
have supporte[d] the state court's decision; and then it 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.”

29

Cullen v.

Pinholster, 131 S.Ct. at 1402 (quoting Richter, 131 S.Ct. at
786)).
In Ground 1, Subpoint 5, Petitioner alleged counsel should
have objected to evidence regarding endangering the welfare of a
child or counsel should have sought dismissal of these counts,
as contrary to the weight of the evidence and prejudicial to
Petitioner.

The evidence showed Petitioner robbed the

inhabitants of an apartment at gunpoint, an apartment that
contained several minors.

(Rta8 at 56-57.)

Trial counsel would

very likely have been unsuccessful in dismissing these counts.
“[C]ounsel cannot be deemed ineffective for failing to raise a
meritless claim.

Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir.

2000)(citing Com v. Carpenter, 725 A.2d 154, 161 (Pa. 1999)
(citation omitted)).

Therefore, the state court could

reasonably have determined that counsel was not deficient for
failing to try to limit the evidence or dismiss the counts.
h.

Ground 1.6, Opening Statement

In Ground 1, Subpoint 6, Petitioner alleged trial counsel
was deficient for not mentioning in opening statements that the
defense would present videotape evidence establishing
Petitioner’s alibi.

Respondent correctly asserted that the

videotape had not been ruled admissible at the time of opening
statements because the court did not have the special equipment
needed to view it at the pretrial conference.
30

(Answer at 43,

citing Transcript of Pretrial Conference (“Rta3”) at 7-8.)
Defense counsel stated he was aware that mentioning the
videotape in opening statements would be done at his own peril,
given there was no ruling on its admissibility.

(Rta3 at 7.)

The Pathmark video was shown to the jury during trial, in
support of Petitioner’s defense that he was in the store with
Maria Concepcion at the time of the robbery, and counsel
discussed the video in closing arguments.

(Rta7 at 26-27, 46-

51, Rta8 at 32-33, 40-44.)
There are many reasons why trial counsel may have decided
to hold that argument until closing including: a) it was not
deemed admissible before opening statements; b) presenting the
evidence in a manner consistent with the burden of proof; c) not
promising too much since the video only showed a person and
relied on supplemental testimony to prove it was petitioner; and
d) holding the evidence to the end might maximize its impact on
deliberations.

Under the circumstances, it was reasonable for

the state court to conclude Petitioner did not show the outcome
of the trial would likely have been different if counsel had
also mentioned the video in opening statements or that the
decision to hold it to the end was an unreasonable decision.
i.

Ground 1.7, Jury Instruction

In Ground One, Subpoint 7, Petitioner claimed that counsel
should have objected to a jury instruction that constituted an
31

ultimatum.

In his PCR brief, Petitioner explained that during

jury deliberations, the judge received a note from the jury,
asking to watch the Pathmark video and the direct and cross
examinations of Maria Morales, Julio, Carmen, Norma, and Officer
[Ruben] Alicea.

(Ra15, Doc. No. 9-15 at p. 88 of 102).

The

judge explained that it would take a long time to replay all of
the requested videotape, and while the jury could watch whatever
they wished, they would need to end at 3:30 that day and come
back after the weekend to watch any further testimony.

(Id. at

p. 89 of 102.)
The jury came back that afternoon and asked to see only
part of Julio’s testimony on direct, all of Norma’s testimony,
all of Officer Alicea’s testimony, and the Pathmark video.
(Id.)

The judge was afraid the jury had misunderstood his

comments, and said he would explain to the jury that there was
no deadline on when they had to make their decision about what
parts of the video they wanted to see.

(Id. at 89-90.)

Petitioner concedes that the judge explained this to the jury
but asserted it was too late to erase the damage, the jury no
longer requested to see a playback of the testimony of Maria
Morales or Carmen Garcia.

(Id. at 90.)

Petitioner

characterized the judge’s first instruction about the video
playback as an “ultimatum” which forced the jury to reach a

32

verdict without viewing the videotaped testimony of Maria
Morales and Carmen Garcia.

(Id.)

The record shows that that trial court assured the jury
they could watch anything they wished, and the jury watched the
videotaped testimony they wanted to see before reaching a
verdict.

(Trial Transcript (“Rta9”) at 3-14)[Doc. No. 10-9.]

The jury did not reach its verdict on the day they were told
they would have to end at 3:30p.m.; they returned after the
weekend and finished deliberations. (Trial Transcript (“Rta10”)
at 1-12 [Doc. No. 10-10.]

There is no indication that the jury

believed it could not watch all of the video playback that it
wanted to see before reaching a verdict.

Thus, Petitioner has

not established that the state court unreasonably applied the
prejudice prong of Strickland by denying this claim.

For these

reasons, Ground One, Subpoint 7 will be denied.
j.

Ground 1.8, Cumulative Errors by Trial Counsel

In Ground One, Subpoint 8, Petitioner contended trial
counsel’s cumulative errors constituted ineffective assistance.
Respondents argued that none of the alleged deficiencies by
trial counsel, singly or in combination, denied Petitioner a
fair trial.

(Answer at 44.)

Respondents cited the PCR Court’s

findings that trial counsel was diligent and vigorous in
Petitioner’s defense, doggedly pursuing a mistrial and

33

presenting an elaborate alibi defense.

(Answer at 45)(citing

Rta14 at 28, 48.)
After reviewing all of the state court records and the
arguments Petitioner presented in support of his ineffective
assistance of counsel claims, this Court finds the state court
could reasonably have determined that Petitioner was not denied
a fair trial due to counsel’s alleged cumulative errors.

The

State simply had a strong case with multiple eyewitnesses to the
robbery, at least one of whom knew Petitioner well, and who
identified Petitioner as one of the robbers.

Counsel was

persistent in pursuing a mistrial and went to great lengths to
present an alibi defense.

Thus, the Court will deny Ground One,

Subpoint 8.
k.

Ground 1.9, Ineffective Assistance of Appellate
Counsel

Petitioner claimed that appellate counsel was ineffective
for failing to raise Petitioner’s pro se claims on direct appeal
(Ground One, Subpoint 9).

The Superior Court affirmed the PCR

Court’s dismissal of this claim on the merits because none of
the arguments would have succeeded on direct appeal.

(Ra21 at

14.)
Petitioner cannot show that he was prejudiced by appellate
counsel’s failure to raise claims on direct appeal because
Petitioner was allowed to bring those claims in his post-

34

conviction proceeding, and the PCR Court addressed and denied
the claims.

Therefore, this Court will deny Ground 1, Subpoint

9 for failure to establish the state court unreasonably applied
the prejudice prong of Strickland.
l.

Ground 1.10, Trial Court’s Cumulative Errors

Petitioner alleged the trial court’s cumulative errors
violated the Due Process Clause of the United States
Constitution and the New Jersey Constitution.
Subpoint 10).

(Ground One,

The PCR Court denied this claim as meritless,

without further discussion.

(Rta14 at 44-45.)

First, there is

no remedy for claims asserting a violation of state law on
federal habeas review.
(1991).

Estelle v. McGuire, 502 U.S. 62, 67-68

Second, Petitioner did not establish any trial court

errors upon direct appeal or in the post-conviction proceeding.
Thus, it was reasonable for the state courts to deny his
argument that trial court errors cumulatively violated his right
to Due Process.

Petitioner’s claim in Ground One, Subpoint 10

will be denied on the merits.
m.

Ground 1.11, Denial of PCR Hearing

Finally, in Ground 1, Subpoint 11, Petitioner alleged that
he was denied an evidentiary hearing in support of his motion
for post-conviction relief.

Petitioner was allowed a limited

evidentiary hearing, but the PCR Court did not allow Petitioner

35

to address claims that he had failed to support with affidavits
and certifications in his submissions to the court.

(Rta14 at

45-50.)
“The federal courts are authorized to provide collateral
relief where a petitioner is in state custody or under a federal
sentence imposed in violation of the Constitution or the laws or
treaties of the United States.”
941, 954 (3d Cir. 1998).

Hassine v. Zimmerman, 160 F.3d

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.

Id.

Thus, Petitioner’s general assertion

that he was entitled to an evidentiary hearing on all of his
claims in the post-conviction proceeding is not cognizable here.
See Gatson v. Bartkowski, 2013 WL 2459905, at *24 (D.N.J. June
6, 2013)(denying habeas claim that PCR counsel was ineffective,
and PCR Court denied an evidentiary hearing).

Ground One,

Subpoint 11 of the habeas petition will also be dismissed.
IV. Conclusion
For the reasons set forth above, the Petition for a Writ of
Habeas Corpus under Title 28 U.S.C. § 2254 [Doc. No. 1] will be
denied.

Grounds 1C and Ground One, Subpoints 3 and 4 are denied

because they are procedurally defaulted.
36

Grounds 1A, 1B, 1D-1G,

and Ground One, Subpoints 1, 2, and 5-11 are denied on the
merits.

An appropriate order follows.
V.

Certificate of Appealability

This Court must determine whether Petitioner is entitled to
a certificate of appealability in this matter.
Local Appellate Rule 22.2.

Third Circuit

The Court will issue a certificate

of appealability if the petitioner “has made a substantial
showing of the denial of a constitutional right.”
2253(c)(2).

28 U.S.C. §

The discussion of Petitioner’s claims above

demonstrates that Petitioner has not made such a showing, and
this Court will not issue a certification of appealability.

At Camden, New Jersey

s/ Noel L. Hillman
Noel L. Hillman
United States District Judge

Dated:

February 24, 2015

37