JONES v. STATE OF NEW JERSEY et al
Filing
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OPINION. Signed by Judge Robert B. Kugler on 8/13/2018. (tf, n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BYRON K. JONES, JR.,
Petitioner,
v.
ROBERT CHETIRKIN, et al.,
Respondents.
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Civil Action No. 13-0132 (RBK)
OPINION
KUGLER, DISTRICT JUDGE:
Before this Court is the Petition for a writ of habeas corpus of Petitioner Byron K. Jones,
Jr. (“Petitioner”), brought pursuant to 28 U.S.C. § 2254. (ECF No. 1.) For the following reasons,
the Court denies the Petition, and declines to issue a certificate of appealability.
I.
BACKGROUND
The Superior Court of New Jersey, Appellate Division, provided the following summary
of the factual background of Petitioner’s case:
A Gloucester County grand jury indicted defendant on six thirddegree charges: (counts one and four) possession of cocaine,
N.J.S.A. 2C:35–10a(1); (counts two and five) possession of cocaine
with intent to distribute, N.J.S.A. 2C:35–5b(3); and (counts three
and six) distribution of cocaine, N.J.S.A. 2C:35–5b(3). Counts one
through three arose from an undercover purchase of cocaine from
defendant on November 3, 2006. Counts four through six arose
from the purchase of cocaine from defendant by the same
undercover detective at the same location six days later, November
9, 2006.
Defendant expressly waived in open court his constitutional right to
be tried by a jury. His bench trial was held before Judge Walter
Marshall Jr. in April 2010. The State presented the testimony of
four law enforcement witnesses—the undercover detective, a
second detective in charge of the investigation, an evidence
custodian, and an expert from the State Police laboratory to identify
the items purchased as cocaine. The defense did not present any
witnesses.
The undercover detective testified that on November 3, 2006, he and
a confidential informant went to a fast food restaurant, where the
confidential informant introduced him to defendant. The detective
then purchased one-quarter ounce of cocaine from defendant,
receiving the drugs and paying $250 to defendant under a table. The
detective also testified that he obtained defendant’s telephone
number at that time for future transactions. Following the
November 3 purchase, the detective in charge of the investigation
showed the undercover detective a single photograph, which
depicted defendant, and the undercover detective identified the
photograph as the person from whom he had just purchased the
cocaine.
The undercover detective testified that he contacted defendant
directly on November 9, 2006, at the telephone number he had
received, and he asked for another quarter ounce of cocaine. The
detective then met defendant alone at the same fast food restaurant
and purchased the quarter ounce, again for $250. No confidential
informant was involved or present for the second purchase. After
the transaction, the undercover detective again identified the same
photograph as the person from whom he had purchased the cocaine.
The detective testified that he wore a concealed microphone during
the two transactions so that other detectives could monitor the events
from a location nearby to ensure his safety and the safety of the
public. He testified that the November 3 transaction was not
recorded because the detectives did not want to jeopardize the
informant’s safety by recording his voice.
During cross-examination of the undercover detective, defense
counsel discovered a DVD recording in the detective’s file that was
marked “not for discovery” and had not been turned over to the
defense before the trial. The assistant prosecutor who was trying the
case was not aware of the DVD recording. The court ruled that the
defense was entitled to discovery of the DVD, which was a
recording of the November 3 transaction. The recording revealed
that two confidential informants had actually been present during
the first transaction and one of them had initially received the
cocaine before it was returned to defendant and then given to the
undercover detective. The court ordered that a transcript of the
recording be promptly prepared, and the defense was given an
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opportunity to review the recording and transcript and subsequently
to cross-examine the undercover detective about the discrepancies
in his testimony and the contents of the recording.
Upon completion of all testimony and the arguments of counsel,
Judge Marshall dismissed counts one through three of the
indictment pertaining to the November 3 transaction. The judge
found that the State had violated defendant’s due process rights by
failing to disclose the recording before the trial. Reviewing the
evidence pertaining to counts four through six, the judge concluded
beyond a reasonable doubt that defendant had engaged in the
November 9 transaction and therefore was guilty of the charges
brought in those counts.
At the sentencing hearing on September 20, 2010, the judge
referenced defendant’s three prior convictions on drug distribution
charges and sentenced him to an extended term of seven years
imprisonment with three years of parole ineligibility, consecutive to
a sentence defendant was then serving for conviction on another
drug offense.
State v. Jones, Indictment No. A-4600-10T1, 2012 WL 2505714, at *1–2 (N.J. Super. Ct. App.
Div. July 2, 2012).
Petitioner appealed his conviction and sentence. The Appellate Division affirmed the
conviction on July 2, 2012. Id. The Supreme Court of New Jersey denied certification on
September 25, 2012.1 State v. Jones, 52 A.3d 177 (N.J. 2012). In January 2013, Petitioner filed a
habeas petition with this Court. (ECF No. 1.) Construing the Petition liberally, Petitioner appears
to raise six grounds for habeas relief:
1. The defendant’s right to a jury trial as guaranteed by the Sixth Amendment to the United
States Constitution and Art. I, Par. 9 of the New Jersey Constitution was violated when the
trial court relied on an erroneous legal standard to determine whether to grant a pro se
motion for a waiver of a jury trial.
2. The defendant’s right to due process of law as guaranteed by the Fourteenth Amendment
of the United States Constitution and Art. I, Par. 1 of the New Jersey Constitution was
violated by the admission of unduly suggestive identification evidence.
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Petitioner does not appear to have filed a subsequent petition for post-conviction relief.
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3. The defendant’s right to due process of law as guaranteed by the Fourteenth Amendment
to the United States Constitution and Art. I, Par. 1 of the New Jersey Constitution was
violated by the suppression of exculpatory evidence.
4. The sentence is excessive.
A. The defendant was improperly sentenced to a mandatory extended term.
5. [Ineffective Assistance of Counsel.]
6. [Insufficient Evidence.]
(ECF No. 1.)
Respondents filed an initial answer in which they argued that the petition was untimely.
(ECF No. 10.) Per the Court’s Order of March 26, 2018 (ECF No. 11), Respondents filed a
Supplemental Answer in which they argue that Petitioner’s claims are meritless, and Ground Five
is unexhausted. (ECF No. 12.)
II.
LEGAL STANDARD
Under 28 U.S.C. § 2254(a), the district court “shall entertain an application for a writ of
habeas corpus [o]n behalf of a person in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.” A habeas petitioner has the burden of establishing his entitlement to relief for each claim
presented in his petition. See Price v. Vincent, 538 U.S. 634, 641 (2003); Harrington v. Richter,
562 U.S. 86, 98 (2011). District courts are required to give great deference to the determinations
of the state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 773 (2010).
Where a claim has been adjudicated on the merits by the state courts, the district court shall
not grant an application for a writ of habeas corpus unless the state court adjudication
(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
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(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d)(1)–(2). Federal law is clearly established for these purposes where it is clearly
expressed in “only the holdings, as opposed to the dicta” of the opinions of the United States
Supreme Court. See Woods v. Donald, 135 S. Ct. 1372, 1376 (2015). “When reviewing state
criminal convictions on collateral review, federal judges are required to afford state courts due
respect by overturning their decisions only when there could be no reasonable dispute that they
were wrong.” Id. Where a petitioner challenges an allegedly erroneous factual determination of
the state courts, “a determination of a factual issue made by a State court shall be presumed to be
correct [and the] applicant shall have the burden of rebutting the presumption of correctness by
clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
In addition to the above requirements, a federal court may not grant a writ of habeas corpus
under § 2254 unless the petitioner has “exhausted the remedies available in the courts of the State.”
28 U.S.C. § 2254(b)(1)(A). To do so, a petitioner must “‘fairly present’ all federal claims to the
highest state court before bringing them in federal court.” Leyva v. Williams, 504 F.3d 357, 365
(3d Cir. 2007) (citing Stevens v. Delaware Corr. Ctr., 295 F.3d 361, 369 (3d Cir. 2002)). This
requirement ensures that state courts “have ‘an initial opportunity to pass upon and correct alleged
violations of prisoners’ federal rights.’” Id. (citing United States v. Bendolph, 409 F.3d 155, 173
(3d Cir. 2005) (quoting Duckworth v. Serrano, 454 U.S. 1, 3 (1981)). Nevertheless, to the extent
that a petitioner’s constitutional claims are unexhausted, a court can nevertheless deny them on the
merits under 28 U.S.C. § 2254(b)(2). See Taylor v. Horn, 504 F.3d 416, 427 (3d Cir. 2007);
Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir. 2005).
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III.
DISCUSSION
A. Ground One: Waiver of Jury Trial
In Ground One, Petitioner argues that the trial court erred in granting his pro se motion to
waive his right to a jury trial. (ECF No. 1 at 2.) The Superior Court of New Jersey, Appellate
Division, rejected the claim as follows:
Point I, pertaining to waiver of trial by jury, was . . . not raised before
the trial court. In fact, it is directly contrary to defendant’s
application at the time of trial to dispense with a jury.
As background for the issue . . . we recount the following
information gathered from the sentencing hearing and the
presentence investigation report. After the undercover transactions
in this case, defendant was arrested and charged with drug offenses
based on a search warrant executed on February 5, 2007. He was
charged in a separate indictment with second-degree possession of
a controlled dangerous substance with intent to distribute and related
offenses. He stood trial before a jury and Judge Marshall on the
separate indictment and was found guilty. The judge sentenced him
on January 22, 2010, to thirteen years imprisonment with six-and-ahalf years of parole ineligibility.
When he appeared before the judge again on April 12, 2010, on the
charges arising from the November 3 and 9, 2006 undercover
purchases, defendant requested that the court conduct the trial
without a jury. Defense counsel stated he had advised defendant
against proceeding without a jury, but defendant still desired to
waive a jury for the second trial. Judge Marshall spoke to defendant
directly and advised him about his Sixth Amendment right to trial
by jury. Defendant indicated that he understood his rights but he
believed he would receive a fair trial without a jury. Before
proceeding with the bench trial, the judge established through
questioning defendant that he was voluntarily and knowingly
waiving trial by jury.
On appeal, defendant argues that the court’s acceptance of his
waiver did not satisfy the holding of State v. Dunne, 124 N.J. 303
(1991), with respect to waiver of a jury trial. In Dunne, the Supreme
Court stated:
[W]hen reviewing a request to waive a jury trial, a
court should:
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(1) determine whether a defendant has voluntarily,
knowingly, and competently waived the
constitutional right to jury trial with advice of
counsel;
(2) determine whether the waiver is tendered in good
faith or as a stratagem to procure an otherwise
impermissible advantage; and
(3) determine, with an accompanying statement of
reasons, whether, considering all relevant factors . . .
it should grant or deny the defendant’s request in the
circumstances of the case.
[Id. at 317.]
Defendant argues that the judge in this case did not consider whether
defendant had a good faith basis for waiving trial by jury and did not
state explicitly the reasons for granting the waiver.
Defendant’s argument is without merit. Dunne involved the trial
court’s denial of a defendant’s request to waive a jury in a murder
case. Id. at 307. The Supreme Court first held that the defendant
did not have a constitutional right to a bench trial instead of a jury
trial. Id. at 312, 316. It ultimately held that the trial court had not
abused its discretion in denying the defendant’s waiver of a jury
trial. Id. at 306.
In State v. Jackson, 404 N.J. Super. 483, 489–90 (App. Div.), certif.
denied, 199 N.J. 129 (2009), we considered Dunne in the context of
facts and arguments essentially identical to those in this case. In
Jackson, as here, the trial court granted the defendant’s application
to waive a jury trial after questioning him closely to ensure that his
waiver was knowing and voluntary. Id. at 486–88. After the
defendant was convicted at a bench trial, he challenged on appeal
the judge’s granting of his request. Id. at 485. In rejecting the
defendant’s argument on appeal, we analyzed the reasoning for
Dunne’s strict standards as quoted previously, id. 488–91, and we
held: “that a defendant who has persuaded the trial court to grant his
motion to waive the right to a jury trial may challenge that decision
only if he can show that his waiver was not voluntary and
knowing[,]” id. at 490. We stated that the other requirements
established in Dunne applied where the court denied defendant’s
application for the benefit of the public. Ibid.
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Here, the trial judge made an explicit finding that defendant waived
his right to trial by jury “knowingly, intelligently, and voluntarily.”
The court stated that defendant’s reason for choosing to proceed
without a jury was that “he just feels more secure with the court
handling [the trial] rather than a jury.” There was no plain error in
the court accepting defendant’s waiver of a jury trial and conducting
a bench trial.
Jones, 2012 WL 2505714, at *2–4.
The right of a criminal defendant to be tried by a jury of his peers is a fundamental
constitutional guarantee. Duncan v. Louisiana, 391 U.S. 145 (1968). This right can be waived,
however, by a defendant’s “express and intelligent consent”, and the agreement of both the
government and the court. Adams v. United States ex rel. McCann, 317 U.S. 269, 277–78 (1949).
“[W]hether or not there is an intelligent, competent, self-protecting waiver of jury trial by an
accused must depend upon the unique circumstances of each case.” Id. at 278.
The state court decision was neither contrary to, nor an unreasonable application of
Supreme Court precedent. Petitioner has failed to establish any facts that would indicate he did
not know or understand the right he was giving up. The trial transcript establishes that the judge
conducted a colloquy and Petitioner indicated in no uncertain terms that he did not want to be tried
by a jury. (ECF No. 12-1 at 83–86.) The judge then asked various follow-up questions to ascertain
if Petitioner understood the constitutional right he was giving up. (Id.) Petitioner affirmatively
indicated that he understood the consequences of his decision. (Id.) Petitioner’s attorney also
stated that he cautioned Petitioner at length about his decision, but that Petitioner was adamant
about being tried before a judge. (Id.) Because the record reveals that Petitioner expressly and
intelligently consented to the waiver, the state court decision on this matter was not unreasonable.
As such, this claim for habeas relief is denied.
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B. Ground Two: Unduly Suggestive Evidence
In Ground Two, Petitioner claims that his constitutional rights were violated by the
admission of unduly suggestive identification evidence. (ECF No. 1 at 2.) While Petitioner
provides no facts to support his claim here, in his brief on direct appeal below, he explained that
the undercover detective, Detective Ingram, failed to follow the Attorney General’s guidelines on
proper photograph identification procedures. (ECF No. 10-1 at 20.) Petitioner explained that
Detective “Ingram was handed one photograph depicting the defendant. Ingram could select the
defendant or he could identify nobody.” (Id.)
The Superior Court of New Jersey, Appellate Division, denied this claim as follows:
Next, defendant argues that he was prejudiced by testimony from
the undercover detective identifying him as the person from whom
he purchased the cocaine on November 3 and 9, 2006. He argues
that the showing of a single photograph to the undercover detective
after each transaction was an unduly suggestive identification
procedure contrary to guidelines promulgated by the Attorney
General and also contrary to the [New Jersey] Supreme Court’s
recent detailed discussion of appropriate identification procedures
in State v. Henderson, 208 N.J. 208, 288–93 (2011).
The plain error standard of review applies to this argument because
defense counsel raised no objection to the undercover detective’s
identification testimony at trial. R. 2:10–2. Under the plain error
standard, a conviction will be reversed only if the error was “clearly
capable of producing an unjust result,” ibid., that is, if it was
“‘sufficient to raise a reasonable doubt as to whether the error led
[the factfinder] to a result it otherwise might not have reached[.]’”
State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon,
57 N.J. 325, 336 (1971)). Defendant must prove that a plain error
was clear or obvious and that it affected his substantial rights. State
v. Chew, 150 N.J. 30, 82 (1997), cert. denied, 528 U.S. 1052, 120 S.
Ct. 593, 145 L. Ed. 2d 493 (1999), overruled in part on other
grounds by State v. Boretsky, 186 N.J. 271, 284 (2006).
Here, identification of defendant was not dependent entirely on the
undercover detective’s testimony.
The identification was
corroborated by descriptions of the two different cars and their
distinctive wheels that the seller of the cocaine drove to the fast food
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restaurant on November 3 and 9, 2006. The detective in charge of
the investigation had also made observations of the cars to identify
defendant as the person who arrived and met with the undercover
detective at the restaurant. The second detective was previously
familiar with defendant and had, in fact, planned the undercover
investigation to target defendant specifically. Furthermore, the
November 9 transaction was arranged through direct contact of the
undercover detective with defendant using the phone number
provided to him.
Besides this corroborative evidence, the identification of the single
photograph by the undercover detective is reliable because the
detective, who was the same race as defendant, met him two times
within a matter of days, interacted closely with defendant for several
minutes, saw the photograph immediately after each transaction, and
was able to identify defendant in the courtroom.
The fact that identification of defendant by the undercover detective
was not a contested issue at trial indicates its relative insignificance
in the nature of the proofs at trial. We conclude there was no plain
error in the alleged deviation from proper photo identification
procedures.
Jones, 2012 WL 2505714, at *4–5.
“An identification procedure that is both (1) unnecessarily suggestive and (2) creates a
substantial risk of misidentification violates due process.” United States v. Brownlee, 454 F.3d
131, 137 (3d Cir. 2006) (citing Manson v. Brathwaite, 432 U.S. 98, 107 (1977)). “Unnecessary
suggestiveness contains two component parts: that concerning the suggestiveness of the
identification and that concerning whether there was some good reason for the failure to resort to
less suggestive procedures.” Brownlee, 454 F.3d at 137 (citation and internal quotation marks
omitted). “[A] suggestive and unnecessary identification procedure does not violate due process
so long as the identification possesses sufficient aspects of reliability.” Manson v. Brathwaite, 432
U.S. 98, 106 (1977). Factors to be considered in that analysis include “the opportunity of the
witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy
of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness
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at the confrontation, and the length of time between the crime and the confrontation.” Neil v.
Biggers, 409 U.S. 188, 199–200 (1972).
While not citing directly to Supreme Court case law, the Appellate Division decision
rejecting this claim was not unreasonable.
Here, the photograph identification procedure
possessed sufficient aspects of “reliability.” Manson, supra, 432 U.S. at 106. The record
demonstrates that Detective Ingram observed Petitioner throughout the drug transaction on
November 3, and very shortly after gave a description of Petitioner and identified him in a
photograph. (ECF Nos. 12-2 at 24; 12-3 at 47.) Further, Detective Ingram testified that he was
certain after looking at the photograph that it depicted the individual who had just sold him cocaine.
(ECF No. 12-2 at 24–32.) During the November 9 transaction, Detective Ingram had a second
opportunity to view Petitioner. He was again certain that it was the same individual depicted in
the photograph. In addition, a second detective, Detective Ferris, testified that Detective Ingram
identified Petitioner in the photograph within minutes of the drug transaction, and Detective Ferris
corroborated much of Detective Ingram’s testimony. (ECF No. 12-3 at 47.) Based on these facts,
as well as the factors laid out in Biggers, 409 U.S. at 199, the state court’s rejection of this claim
was neither contrary to, nor an unreasonable application of Supreme Court precedent. As such,
this claim for habeas relief is denied.
C. Ground Three: Brady Violation
In Ground Three, Petitioner argues that his constitutional rights were violated under Brady
v. Maryland, 373 U.S. 83 (1963). Petitioner raised this claim in his appeal before the state court,
explaining that the State’s failure to produce a tape recording of the November 3 transaction
violated his rights under Brady. (ECF No. 10-1 at 25–28.)
The Appellate Division rejected this claim as follows:
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Defendant argues that the State’s failure to produce in discovery the
DVD recording of the November 3 transaction was a violation of
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963), that should have been sanctioned by dismissal of the entire
indictment. Although the trial court initially denied defendant’s
motion to dismiss when the discovery violation was revealed, it
ultimately granted that sanction as to the November 3 transaction
and dismissed counts one through three of the indictment. The
evidence that was improperly withheld by the detectives was not
exculpatory but would have provided relevant information to
defendant and his attorney in preparation for challenging the
accuracy of the undercover detective’s testimony as to the first
transaction. The recording had nothing to do with the November 9
transaction. We find no abuse of discretion in the trial court’s
determination of an appropriate sanction for the State’s Brady
violation.
Jones, 2012 WL 2505714, at *5.
Under Brady, the State bears an “affirmative duty to disclose [material] evidence favorable
to a defendant.” Kyles v. Whitley, 514 U.S. 419, 432 (1995) (citing Brady, 373 U.S. at 87.)
“[E]vidence is material only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.” United States v.
Bagley, 473 U.S. 667, 682 (1985). In Strickler v. Greene, the Supreme Court clarified that “[t]here
are three components of a true Brady violation: The evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” 527
U.S. 263, 281–82 (1999).
Here, the record establishes that after it became known that Detective Ingram had in his
file a DVD of the November 3 transaction, with the words “not for discovery” on it, defense
counsel was granted permission to listen to the DVD. In that recording, it became clear that aspects
of Detective Ingram’s testimony related to the November 3 transaction were inaccurate. The
recording revealed that two confidential informants were present during the drug transaction, not
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one, and that the cocaine was first handed to a confidential informant, and was only then given to
Detective Ingram. (See ECF No. 12-3 at 4.) The defense then moved for dismissal of the entire
indictment, related to both the November 3 and November 9 transactions. (Id. at 5.) The trial
judge ultimately dismissed counts one through three of the indictment, related to the November 3
transaction, finding the State had violated the Petitioner’s due process rights by failing to disclose
the evidence. (ECF No. 12-4 at 32). However, with respect to the November 9 transaction, the
judge concluded that the State’s due process violation did not carry over to that transaction. (Id.
at 34.)
The state court’s decision rejecting this claim was neither contrary to, nor an unreasonable
application of Supreme Court precedent. The record makes clear that the judge did in fact find
that the State had violated Petitioner’s due process rights and dismissed counts one through three
of the indictment. The record also reflects that the audio recording only pertained to the November
3 transaction and that the discrepancies in Detective Ingram’s testimony played no role in his
testimony covering the November 9 transaction. Even if the recording would have been helpful
to discredit Detective Ingram’s testimony overall, there was additional testimony from Detective
Ferris corroborating much of Detective Ingram’s testimony.
Thus, Petitioner has failed to
demonstrate that he was prejudiced within the meaning of Brady. See Bagley, 527 U.S. at 281–
82. Furthermore, because the audio recording was only of the November 3 transaction, and the
state court dismissed those counts of the indictment, the Court is satisfied that any Brady violation
was appropriately dealt with by the state court. Because the rejection of this claim by the Appellate
Division was not unreasonable, the Court denies relief on this claim.
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D. Ground Four: Excessive Sentence
Petitioner next argues that his sentence is excessive. (ECF No. 1 at 2.) The Appellate
Division rejected this claim, stating:
With respect to the seven-year sentence on the merged third-degree
charges, defendant argues that the trial court erred in granting the
State’s motion for an extended term and in weighing aggravating
and mitigating factors.
“[T]rial judges are given wide discretion so long as the sentence
imposed is within the statutory framework.” State v. Dalziel, 182
N.J. 494, 500 (2005). Our review of a sentencing decision can
involve three types of issues: (1) whether guidelines for sentencing
established by the Legislature or by the courts were violated; (2)
whether the aggravating and mitigating factors found by the
sentencing court were based on competent credible evidence in the
record; and (3) whether the sentence was nevertheless “clearly
unreasonable so as to shock the judicial conscience.” State v. Roth,
95 N.J. 334, 364–65 (1984); accord State v. Carey, 168 N.J. 413,
430 (2001); State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S.
1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). We do not substitute
our judgment regarding an appropriate sentence for that of the trial
court. State v. Natale, 184 N.J. 458, 488–89 (2005); Roth, supra, 95
N.J. at 365.
Here, defendant had three prior convictions for drug distribution
offenses. It appears that the State sought an extended term under
either the persistent offender statute, N.J.S.A. 2C:44–3a, or the
repeat drug offender statute, N.J.S.A. 2C:43–6f. The trial court
concluded that defendant’s record of prior drug convictions required
application of a mandatory extended term.
If the sentencing court determines defendant has a predicate prior
drug conviction as provided by N.J.S.A. 2C:43–6f, the statute
“requires [it] to impose an enhanced-range sentence when the
prosecutor applies for such relief.” State v. Thomas, 188 N.J. 137,
149 (2006). Then “the court . . . [determines a] defendant’s sentence
within the extended-term range based on aggravating and mitigating
factors. . . .” Id. at 154.
The trial court found three aggravating factors applicable:
aggravating factor three, “[t]he risk that the defendant will commit
another offense,” N.J.S.A. 2C:44–1a(3); aggravating factor six,
“[t]he extent of the defendant’s prior criminal record and the
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seriousness of the offenses of which he has been convicted,”
N.J.S.A. 2C:44–1a(6); and aggravating factor nine, “[t]he need for
deterring the defendant and others from violating the law,” N.J.S.A.
2C:44–1a(9). The court found no mitigating factors applicable.
Given the highly deferential standard of review from the court’s
finding of aggravating and mitigating factors, State v. Bieniek, 200
N.J. 601, 608–09 (2010), and also from the trial court’s discretionary
decision on the length of the sentence imposed within an appropriate
sentencing range, Carey, supra, 168 N.J. at 430; Roth, supra, 95 N.J.
at 364–66, we find no error or abuse of discretion in defendant’s
sentence of seven years imprisonment with three years of parole
ineligibility.
Jones, 2012 WL 2505714, at *5–6.
The Court first notes that State sentences are generally matters of state law. See Chapman
v. United States, 500 U.S. 453, 465 (1991) (“a person who has been so convicted is eligible for,
and the court may impose, whatever punishment is authorized by statute for his offense, so long
as that penalty is not cruel and unusual . . . and so long as the penalty is not based on an arbitrary
distinction that would violate the Due Process Clause of the Fifth Amendment”) (citations
omitted); see also Reid v. Ricci, No. 07-3815, 2008 WL 2984207, at *12 (D.N.J. July 31, 2008)
(“absent a claim that the sentence constitutes cruel and unusual punishment prohibited by the
Eighth Amendment, or that it is arbitrary or otherwise in violation of due process . . . the legality
of [a petitioner’s] state court sentence is a question of state law”) (citations omitted).
Here, the facts do not indicate that the sentence imposed was cruel and unusual, or arbitrary
in a manner that would violate the United States Constitution. The record reveals that Petitioner
was sentenced to seven years imprisonment on count six, for the knowing or purposeful
distribution of cocaine, a third degree offense. See N.J. Stat. Ann. § 2C:35–5b(3); see also
(Judgment of Conviction, ECF No. 12-1 at 9.) Counts four and five were merged with count six.
The State moved for an extended-term sentence, based upon Petitioner’s adult criminal record of
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various drug related offenses. (ECF No. 12-4 at 41–43.) During the sentencing hearing, the judge
found that Petitioner was eligible for an extended-term sentence of five to ten years under N.J.
Stat. Ann. § 2C:43-7(a)(4) as a persistent offender and repeat drug offender. See N.J. Stat. Ann. §
2C:44-3; see also N.J. Stat. Ann. § 2C:43-6f.
Thus, the sentence did not go beyond the statutory maximum; Petitioner was eligible for
an extended term of five to ten years, and only received a sentence of seven years. In fact, the
judge articulated that Petitioner would not receive a maximum sentence, stating: “I don’t find that
anything near a maximum term is appropriate . . .” (ECF No. 12-4 at 44.) While the judge did
also assess various aggravating factors, such as the risk Petitioner would commit another offense,
the extent of his prior criminal record, and the need to deter him and others from violating the law,
see N.J. Stat. Ann. § 2C:44-1, the sentence was still within the prescribed statutory maximum.2
Therefore, given that Petitioner was clearly eligible for an extended-term sentence under New
Jersey law, and given that the sentence fell within the statutory range under New Jersey law, the
Court does not find that the state sentence imposed was unreasonable. As such, this claim for
habeas relief is denied.
E. Ground Five: Ineffective Assistance of Counsel
In Ground Five, Petitioner alleges that his attorney was ineffective in failing to properly
argue that Detective Ingram’s testimony was inconsistent with the audio recording. (ECF No. 1
2
While Petitioner does not specifically raise a claim under Blakely v. Washington, 542 U.S.
296 (2004), to the extent he is attempting to do so, the Court finds this claim meritless. In Blakely,
the Supreme Court held that a judge-imposed sentence in the context of a jury trial that increases
the penalty beyond the statutory maximum must be based upon facts found by the jury beyond a
reasonable doubt. 542 U.S. at 303–04. Here, because the sentence is within the prescribed
statutory range, Blakely is not applicable.
16
at 8.) While this claim is unexhausted, the Court will nevertheless deny the claim on the merits.
See Horn, 504 F.3d at 427 (permitting courts to deny unexhausted claims on the merits).
The Sixth Amendment guarantees the accused the “right . . . to have the Assistance of
Counsel for his defense.” U.S. Const. amend. VI. The right to counsel is the right to the effective
assistance of counsel, and counsel can deprive a defendant of the right by failing to render adequate
legal assistance. See Strickland v. Washington, 466 U.S. 668, 686 (1984). A claim that counsel’s
assistance was so defective as to require reversal of a conviction has two components, both of
which must be satisfied. Id. at 687. First, the defendant must “show that counsel’s representation
fell below an objective standard of reasonableness.” Id. at 687–88. To meet this prong, a
“convicted defendant making a claim of ineffective assistance must identify the acts or omissions
of counsel that are alleged not to have been the result of reasonable professional judgment.” Id. at
690. The court must then determine whether, in light of all the circumstances at the time, the
identified errors fell “below an objective standard of reasonableness.” Hinton v. Alabama, 134 S.
Ct. 1081, 1088 (2014).
Second, a petitioner must establish that counsel’s “deficient performance prejudiced the
defense so as to deprive the defendant of a fair trial.” Strickland, 466 U.S. at 669. To establish
prejudice, the defendant must show that “there is a reasonable probability that the result of trial
would have been different absent the deficient act or omission.” Id. at 1083.
Here, Petitioner has failed to demonstrate that his counsel was deficient under Strickland.
In fact, the trial transcript reveals that defense counsel argued, repeatedly, that the entire indictment
should have been dismissed as a result of the State’s Brady violation. Counsel further argued that
the audio recording established that Detective Ingram’s entire testimony was not credible. Defense
counsel conducted extensive cross-examination of Detective Ingram eliciting many inconsistent
17
statements. Counsel was so effective that the trail court dismissed three counts of the indictment.
Because Petitioner fails to demonstrate that his counsel was deficient under Strickland, this claim
for habeas relief is denied.
F. Ground Six: Insufficient Evidence
In his final claim for habeas relief, Petitioner argues that the State failed to produce “any
supporting evidence . . . on this undercover officers’ [Detective Ingram] investigation technique”
and that the “technique [Detective Ingram] said he used wasn’t consistent with the audio recording
verbal conversations.” (ECF No. 1 at 8.)
While Petitioner does not say so explicitly, he appears to raise a claim related to the
sufficiency of the evidence against him. Once again, while this claim is unexhausted, the Court
will deny it on the merits.
When a petitioner presents a claim challenging the sufficiency of the evidence against him,
“a reviewing court must ask ‘whether, 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.’” Eley v. Erickson, 712 F.3d 837, 847 (3d Cir. 2013) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)). A court sitting in habeas review may therefore overturn a
conviction for insufficiency of the evidence only “if it is found that upon the record evidence
adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.”
Id. (quoting Jackson, 443 U.S. at 324). “Under Jackson, federal courts must look to state law for
the substantive elements of the criminal offense, but the minimum amount of evidence that the
Due Process Clause requires to prove the offense is purely a matter of federal law.” Coleman v.
Johnson, 566 U.S. 650, 655 (2012).
18
Here, given the testimony from Detective Ingram and Detective Ferris detailing the
November 9 transaction, as well as the subsequent photograph identification of Petitioner, it is
clear that a rational fact-finder could have found Petitioner guilty beyond a reasonable doubt.
Thus, Petitioner’s contention that there was insufficient evidence of his guilt is without merit. The
testimony of Detective Ingram was extremely detailed: he described his phone conversation with
Petitioner prior to the sale, he detailed the circumstances of the sale in the restaurant, he described
how the drugs and money were exchanged, he gave a detailed description of the unique vehicle
Petitioner arrived and departed in, and he described his identification of Petitioner in a photograph
given to him by Detective Ferris. Detective Ferris, who was present outside the restaurant listening
to a live audio recording, corroborated much of that testimony. Detective Ferris described
Petitioner’s unique vehicle, his observation of Petitioner entering and leaving the restaurant, and
the discussion he heard between Detective Ingram and Petitioner related to the price of the
transaction. Because the evidence in this matter was clearly sufficient, the Court denies relief on
this claim.
IV.
CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a habeas
proceeding where that petitioner’s detention arises out of his state court conviction unless he has
“made a substantial showing of the denial of a constitutional right.” “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district court’s resolution
of his constitutional claims or that jurists could conclude that the issues presented here are adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003);
see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because jurists of reason would not
disagree with this Court’s conclusion that Petitioner has failed to make a substantial showing of
19
the denial of a constitutional right, Petitioner’s habeas petition is inadequate to deserve
encouragement to proceed further. Accordingly, a certificate of appealability is denied.
V.
CONCLUSION
For the reasons stated above, the Petition for habeas relief is DENIED and Petitioner is
DENIED a certificate of appealability. An appropriate order follows.
Dated: August 13, 2018___
_s/Robert B. Kugler_____
Robert B. Kugler
United States District Judge
20
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