PENNINGTON v. HUGHES et al

Filing 19

OPINION. Signed by Chief Judge Jerome B. Simandle on 9/19/2016. (tf, n.m.)

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

MICHAEL PENNINGTON,

HONORABLE JEROME B. SIMANDLE

Petitioner,
Civil Action
No. 13-2692 (JBS)

v.
C. RAY HUGHES, et al.,

OPINION
Respondents.

APPEARANCES:
Michael Pennington, Petitioner pro se
793395B-604293
Talbot House
100-140 Lincoln Highway
Kearney, New Jersey 07032
Nancy P. Scharff, Esq.
Camden County Prosecutor’s Office
Motions and Appeals Unit
Camden County Prosecutor's Office
25 North Fifth Street
Camden, NJ 08102-1231
Attorney for Respondent C. Ray Hughes

SIMANDLE, Chief Judge:
I.

INTRODUCTION
Michael Pennington has submitted a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. Petition, Docket
Entry 1. Respondent C. Ray Hughes opposes the petition and
asserts that several grounds raised by Petitioner are
procedurally defaulted. Answer, Docket Entry 18. For the reasons

stated herein, the petition shall be denied and no certificate
of appealability shall issue.
II.

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

affording the state court’s factual determinations the
appropriate deference, 28 U.S.C. § 2254(e)(1), reproduces the
recitation of the facts as set forth by the New Jersey Superior
Court Appellate Division in its opinion denying Petitioner’s
post-conviction relief (“PCR”) appeal:
Defendant was charged with first-degree armed robbery,
contrary to N.J.S.A. 2C:15–1 (count one); and seconddegree armed robbery, contrary to N.J.S.A. 2C:15–1
(count two). On December 19, 2007, defendant pled guilty
to first-degree armed robbery, as charged in count one.
The State agreed to dismiss the other count, as well as
the two underlying warrants.
The plea agreement provided that the State would
recommend a ten-year sentence, with a period of parole
ineligibility as prescribed by the No Early Release Act
(NERA), N.J.S.A. 2C:43–7.2. The plea agreement also
provided that defendant reserved the right to ask the
court to sentence him as a second-degree offender.
At the December 19, 2007 plea hearing, defendant
admitted that, on December 2, 2006, he entered the
Commerce Bank branch in Camden, jumped over the counter,
and gestured as if he had a knife or other weapon that
would put someone in fear. Defendant acknowledged he
took cash from the bank and ran out the door.
Defendant was sentenced on February 1, 2008. The trial
court found aggravating factors three, N.J.S.A. 2C:44–
1(a)(3) (risk that defendant will commit another
offense); six, N.J.S.A. 2C:44–1(a)(6) (extent of
defendant's prior criminal record and the seriousness of
the offenses of which he has been convicted); and nine,
N.J.S.A. 2C:44–1(a)(9) (need to deter defendant and
2

others from violating the law). The court found no
mitigating factors. The court dismissed count two of the
indictment and sentenced defendant to a ten-year term of
incarceration, with a period of parole ineligibility, as
prescribed by NERA. The court also imposed applicable
penalties and assessments.
State v. Pennington, No. A-3311-10, 2012 WL 3192690, at *1 (N.J.
Super. Ct. App. Div. Aug. 8, 2012); Re 18.1
Petitioner appealed to the Appellate Division, and the
matter was scheduled to be heard on the Excessive Sentencing
Calendar as the only issue raised on appeal was the length of
the sentence. See N.J. Ct. R. 2:9-11. Prior to oral argument,
however, appellate counsel submitted a letter brief indicating
Petitioner also intended “to argue that his guilty plea should
be vacated because he did not provide an adequate factual basis
to establish the charged offense of first-degree robbery.”
Appellate Letter Brief, Re 6 at 1. Counsel stated: “Mr.
Pennington admitted that he climbed over the counter at a bank
and took some cash. He was unarmed and no one was injured, and
he maintains that he neither used force nor threatened anyone.”
Id. The brief further indicated that Petitioner would also be
asserting that the plea should be vacated “because the trial
court did not explain the unique penal consequences associated

1 Re refers to the exhibits to Respondent’s Answer, Docket Entry
18.
3

with a five-year post-release parole term under the No Early
Release Act.” Id. at 2.
Oral argument took place on March 3, 2009. 3T. At that
time, Petitioner asserted trial counsel had “coerced” him into
stating that he had made a threatening gesture during the
robbery and that the video surveillance camera would support his
argument that he did not in fact make a gesture during the
robbery. 3T132:6 to 133:9. On March 4, 2009, the Appellate
Division affirmed the judgment of the trial court, stating that
“the sentence is not manifestly excessive or unduly punitive and
does not constitute an abuse of discretion.” Order, State v.
Pennington, No. A-004947-07 (N.J. Sup. Ct. App. Div. Mar. 4,
2009); Re 7. Petitioner moved for clarification of the order,
and the Appellate Division granted the motion and stated: “After
oral argument on March 3, 2009, the Court considered all of the
issues raised by defendant and found them to be lacking in
merit. We are satisfied from the plea colloquy that he gave a
sufficient factual basis for the first degree charge.” Order
Granting Motion for Clarification, State v. Pennington, No. A004947-07 (N.J. Sup. Ct. App. Div. Apr. 2, 2009); Re 8.
Petitioner filed a petition for certification from the New
Jersey Supreme Court on May 6, 2009, arguing that “the bank’s
surveillance tape bears out his claim that he was unarmed and is
guilty of no more than second-degree robbery . . . .” Letter .
4

Petition for Certification, Re 9 at 1-2. He also asserted the
trial court failed to adequately explain the NERA consequences
of his plea and failed to find mitigating factors during
sentencing. Id. at 2. The Supreme Court denied certification on
June 19, 2009. State v. Pennington, 973 A.2d 946 (N.J. 2009); Re
10.
Petitioner filed a timely pro se PCR petition on November
9, 2009. Pro Se Petition, Re 11. Petitioner raised five issues
for the PCR court’s review: (1) “first-degree charge”; (2)
“N.E.R.A. 85% sentence”; (3) “Factual basis at plea”; (4) “new
evidence video tape of crime”; and (5) “ineffective assistance
of counsel.” Id. ¶ 8. Appointed counsel later submitted a
supplementary brief expanding on Petitioner’s ineffective
assistance of counsel argument, specifically arguing that trial
counsel was ineffective for failing to investigate and raise
mitigating factors at sentencing. PCR Brief, Re 12 at 13-28.
Counsel incorporated Petitioner’s other arguments without
further explanation. Id. at 29. The State responded and argued
that Petitioner’s claims were procedurally barred as the
challenges to the length of the sentence and factual basis had
been adjudicated on direct appeal. State’s PCR Response, Re 13.
Oral argument on the petition was held on October 15, 2010.
4T. The PCR court concluded that the ineffective assistance of
counsel claim was in reality an excessive sentence claim that
5

was not cognizable in a PCR petition and was barred under New
Jersey Court Rule 3:22-5 since Petition had already raised an
excessive sentencing claim on direct appeal. 4T:12:7-25. In the
alternative, the court found that Petitioner had not established
a prima facie case of ineffective assistance of counsel. 4T13:110. The court further held that the other claims raised in
Petitioner’s pro se PCR petition were procedurally barred
“because they were raised on appeal and rejected by the
Appellate Division.” 4T23:17-19. It further noted the Petitioner
had not established a prima facie case on these arguments
either, 4T24:1-4, and that the alleged “new evidence” was not
new as appellate counsel had referenced the video during oral
argument, 4T28:4-6. The PCR petition was denied without an
evidentiary hearing.
Petitioner filed an appeal raising the following argument:
POINT ONE
The trial court erred in denying the Defendant's
petition for post conviction relief without affording
him an evidentiary hearing to determine whether his
trial counsel was ineffective.
A. The prevailing legal principles regarding claims
of
ineffective
assistance
of
counsel,
evidentiary hearings and petitions for post
conviction relief.
B. The time bar of R. 3:22–4 concerning the
opportunity to raise certain issues previously
does not apply to Defendant's case.

6

C. Trial counsel was ineffective for failing to
adequately investigate mitigating factors that
should have been raised during Defendant's
sentence hearing.
PCR Appeal Brief, Re 16 at 2. The Appellate Division analyzed
the ineffective assistance of counsel claim under Strickland v.
Washington, 466 U.S. 668 (1984), and concluded Petitioner had
not set forth a prima facie case of ineffective assistance of
counsel. State v. Pennington, No. A-3311-10, 2012 WL 3192690, at
*4 (N.J. Super. Ct. App. Div. Aug. 8, 2012). It did not consider
whether the PCR court correctly dismissed the other claims as
barred by Rule 3:22-5. Id. The New Jersey Supreme Court denied
certification on March 13, 2013. State v. Pennington, 63 A.3d
227 (N.J. 2013).
Petitioner filed this timely § 2254 petition on April 26,
2013. Petition, Docket Entry 1. By Order dated August 1, 2013,
the Honorable Robert B. Kugler, D.N.J., informed Petitioner of
his rights under Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000),
and ordered him to advise the Court as to how he wished to
proceed.2 Mason Order, Docket Entry 6. Petitioner acknowledged
receipt of the order and elected to “proceed with the one allinclusive Petition.” Mason Response, Docket Entry 7. Respondents

2 The matter was reassigned to the undersigned on November 20,
2013.
7

filed their answer to the petition on February 28, 2014, Docket
Entry 18. Petitioner did not submit a traverse.
III. STANDARD OF REVIEW
Title 28 U.S.C. § 2254 permits a federal court to entertain
a petition for writ of habeas custody on behalf of a person in
state custody, pursuant to the judgment of a state court, “only
on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a).
With respect to any claim adjudicated on the merits by a
state court, the writ shall not issue unless the adjudication of
the claim
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). A state court decision is “contrary to”
Supreme Court precedent “if the state court applies a rule that
contradicts the governing law set forth in [Supreme Court]
cases,” or “if the state court confronts a set of facts that are
materially indistinguishable from a decision of th[e] Court and
nevertheless arrives at a result different from [the Court's]
precedent.” Williams v. Taylor, 529 U.S. 362, 405–06 (2000).
8

“[A] state-court decision is an unreasonable application of
clearly established [Supreme Court] precedent if it correctly
identifies the governing legal rule but applies that rule
unreasonably to the facts of a particular prisoner's case.”
White v. Woodall, 134 S. Ct. 1697, 1706, reh'g denied, 134 S.
Ct. 2835 (2014). The Court must presume that the state court’s
factual findings are correct unless Petitioner has rebutted the
presumption by clear and convincing evidence. 28 U.S.C. §
2254(e)(1).
IV. ANALYSIS
Petitioner seems to only raise one ground for relief in the
petition itself: “On appeal, Defendant challenged his guilty
plea and his sentence. Defendant maintains that the bank’s
surveillance tape bears out his claim that he was unarmed and is
not guilty of first degree robbery.” Petition ¶ 12. He states:
The Defendant plead guilty to first degree robbery
stating that he jumped over the counter at a bank and
took cash from a teller’s drawer. Defendant told the
court at the plea, he was unarmed. He insists he did not
try to simulate a weapon. He just jumped over the counter
and grabbed the money, and that these actions did not
support the bases [sic] for first degree robbery.
Id. In a supplement attached to the petition, however, he
appears to incorporate the claims raised in his PCR petition.
Supplement at 1-2 (“All of these issues were thus raised under
what is called in this writ’s petition as grounds one.”). As pro
se petitions must be construed liberally, the Court will
9

consider the petition to have incorporated all of the points
raised in his pro se PCR petition. Respondent argues Petitioner
has procedurally defaulted on his arguments. Alternatively,
Respondent argues Petitioner has not met the standard for relief
under § 2254.
A. Validity of Plea
Petitioner asserts his plea should be vacated because he
did not provide an adequate factual basis for first-degree
robbery, he was coerced into pleading guilty, and the trial
court did not adequately advised him of the NERA consequences of
his plea.
1. Factual Basis
Petitioner asserts that the factual basis provided at the
plea hearing does not meet the standards for first-degree
robbery and that he is only guilty of second-degree robbery.3
To the extent Petitioner argues the factual basis provided
is insufficient to meet the elements of first-degree robbery
under New Jersey law, that claim is not redressable in federal
habeas review. “Claims based on errors of state law are not
cognizable on federal habeas review, and federal courts cannot
re-examine state court determinations on state law issues.”
Johnson v. Hines, 83 F. Supp. 3d 554, 560 (D. Del. 2015) (citing

3 This claim was exhausted on direct appeal.
10

Estelle v. McGuire, 502 U.S. 62, 67–68 (1991); Pulley v. Harris,
465 U.S. 37, 41 (1984); Riley v. Taylor, 277 F.3d 261, 310 n.8
(3d Cir. 2001)). See also Swarthout v. Cooke, 562 U.S. 216, 219
(2011) (“We have stated many times that federal habeas corpus
relief does not lie for errors of state law.” (internal
quotation marks omitted)). The Appellate Division indicated in
its order that it was satisfied “from the plea colloquy that he
gave a sufficient factual basis for the first degree charge.”
Order Granting Motion for Clarification, State v. Pennington,
No. A-004947-07 (N.J. Sup. Ct. App. Div. Apr. 2, 2009). The
Court has no authority to review that determination of state law
in federal habeas review, and Petitioner is not entitled to
habeas relief on this basis.
2. Involuntary Plea
To the extent Petitioner argues his plea was involuntary,
he has procedurally defaulted on this claim. As such, the Court
may not review the merits of this argument unless Petitioner can
establish cause and prejudice or that a miscarriage of justice
would result. Coleman v. Thompson, 501 U.S. 722, 746-47 (1991).
“A federal court will not grant a state prisoner's petition
for a writ of habeas corpus unless available state-court
remedies on the federal constitutional claim have been
exhausted. The exhaustion requirement is satisfied only if the
petitioner can show that he fairly presented the federal claim
11

at each level of the established state-court system for review.”
Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004) (internal
citations omitted). “To ‘fairly present’ a claim, a petitioner
must present a federal claim's factual and legal substance to
the state courts in a manner that puts them on notice that a
federal claim is being asserted.” McCandless v. Vaughn, 172 F.3d
255, 261 (3d Cir. 1999).
On his direct appeal, Petitioner only argued that his
guilty plea was insufficient to meet the requirements of firstdegree robbery as a matter of state law. See Appellate Brief, Re
6 at 1 (“Mr. Pennington admitted that he climbed over the
counter at a bank and took some cash. He was unarmed and no one
was injured, and he maintains that he neither used force nor
threatened anyone.”); Petition for Certification at 1 (“the
bank’s surveillance tape bears out his claim that he was unarmed
and is guilty of no more than second-degree robbery . . . .”).
He did not ask the state courts to assess the voluntariness of
the plea under a due process standard.
The voluntariness issue was arguably raised in his PCR
proceedings, see PCR Appellate Brief at 42,4 but it is clear that

4 The PCR court interpreted this argument as being another attack
on the factual basis of the plea and held that it was barred
under state law as it had been addressed on direct review.
4T14:6-23. The Appellate Division did not consider whether the
procedural bar applied. State v. Pennington, No. A-3311-10, 2012
WL 3192690, at *4 (N.J. Super. Ct. App. Div. Aug. 8, 2012).
12

he did not raise this claim in his petition for certification to
the New Jersey Supreme Court. See PCR Petition for
Certification, Re 20. In that petition, the state supreme court
was only asked to address whether “trial counsel was ineffective
in failing to adequately investigate mitigating factors that
should have been raised during Defendant’s sentence hearing.”
Id. at 4. The court was not asked to assess the voluntariness of
the plea itself. The analysis required in an ineffective
assistance of counsel claim is entirely different from a due
process voluntariness claim; therefore, it cannot be said that
Petitioner fairly presented the issue of the plea’s
voluntariness to each level of the state courts.
As Petitioner did not exhaust this claim and he cannot
return to the state courts to exhaust it now,5 “the exhaustion
requirement is satisfied because there is an absence of
available State corrective process.” Lines v. Larkins, 208 F.3d
153, 160 (3d Cir. 2000) (internal citations and quotation marks
omitted). “Even so, this does not mean that a federal court may,
without more, proceed to the merits. Rather, claims deemed
exhausted because of a state procedural bar are procedurally
defaulted, and federal courts may not consider their merits
unless the petitioner ‘establishes “cause and prejudice” or a

See N.J. Ct. R. 3:22-4, 3:22-12(a)(2),(c).

5

13

“fundamental miscarriage of justice” to excuse the default.’”
Id. (quoting McCandless, 172 F.3d at 260). Nothing in the
petition establishes cause and prejudice or a miscarriage of
justice. The Court therefore may not consider the merits of this
claim.
Even if the Court were to review the merits, Petitioner
would not be entitled to relief. Petitioner argues that trial
counsel “pressured” him to “admit that [he] made a ‘threatening
gesture’ towards a bank teller during the robbery.” PCR Appeal
Brief at 42. “Specifically during the off-the-record conference
I had with [trial counsel] during my plea I was advised by my
attorney that I had to admit to making this gesture or risk
facing a significantly greater prison sentence.” Id. However, a
guilty plea is not “coerced” whenever it is “motivated by the
defendant's desire to accept the certainty or probability of a
lesser penalty rather than face a wider range of possibilities
extending from acquittal to conviction and a higher penalty
authorized by law for the crime charged.” Brady v. United
States, 397 U.S. 742, 751 (1970). Thus, even if his allegation
is assumed to be true for sake of argument, this does not rise
to the level of a coerced guilty plea, and no evidentiary
hearing is necessary to resolve any material factual dispute.
Petitioner is therefore not entitled to habeas relief.

14

3. Failure to Advise as to NERA Consequences
Petitioner also argues his plea was invalid as he was not
informed of the applicability of NERA to his sentence. The
record clearly contradicts this assertion.
The plea form filled out by Petitioner and trial counsel
contains a “Supplemental Plea Form for No Early Release Act
(NERA) Cases.” Plea Form at 4. The form states that Petitioner
“will be required to serve 85% of the sentence imposed . . .
before [he] will be eligible for parole . . . .” Id. It further
states that the court would be required to impose a five-year
period of parole supervision to commence as soon as he was
released from incarceration. Id. Petitioner signed this form and
admitted at his plea hearing that he had reviewed all of the
forms. Id.; 1T5:5-23. Based on the record before the state
courts, the state courts reasonably determined Petitioner was
aware the parole ineligibility period and five-year period of
parole supervision were consequences of his guilty plea to a
NERA offense. 28 U.S.C. § 2254(d)(2). He is not entitled to
relief on this basis.
B. Newly Discovered Evidence
Petitioner asserted in his PCR petition that the “newly
discovered evidence” of the bank’s surveillance footage would
establish that he did not make a threatening gesture to the bank
teller during the robbery.
15

The PCR Court determined that the surveillance video was
not “newly discovered evidence” as appellate counsel mentioned
the video on appeal, and “there is no representation, even
unsworn representation, that the defendant and/or his trial
counsel were unaware of the existence of bank surveillance video
at the time of the plea.” 4T28:4-10. The court therefore
concluded Petitioner could not meet the standard to obtain a new
trial on the grounds of newly discovered evidence as he could
not establish “that the evidence was discovered after conviction
and was not discoverable by reasonable diligence beforehand.”
4T28:19-21 (citing State v. Carter, 426 A.2d 501 (N.J. 1981)).
To the extent Petitioner alleges the PCR court erred by failing
to vacate the plea due to newly discovered evidence, the claim
is not reviewable by a federal habeas court as it alleges an
error of state law. See Estelle v. McGuire, 502 U.S. 62, 67
(1991) (“[F]ederal habeas corpus relief does not lie for errors
of state law.” (internal quotation marks omitted)).
To the extent Petitioner attempts to raise an actual
innocence claim based on new evidence, he is not entitled to
relief. “A petitioner who is asserting his actual innocence of
the underlying crime . . . must show it is more likely than not
that no reasonable juror would have convicted him in light of
the new evidence presented in his habeas petition.” Hubbard v.
Pinchak, 378 F.3d 333, 339 (3d Cir. 2004) (internal quotation
16

marks omitted). Petitioner has not presented any evidence of
actual innocence to the Court. In contrast, Petitioner admitted
to making the threatening gesture when questioned by his trial
counsel, the prosecutor, and the trial court during the plea
colloquy. 1T7:23 to 8:1, 8:13-16, 9:4-12. When questioned by the
court, Petitioner admitted that he wanted the bank teller to
think he had a weapon so that she would give him the money.
1T9:4-9. At sentencing, he repeated his admission that he made a
gesture without anyone prompting him. 2T10:2-3. “Solemn
declarations in open court carry a strong presumption of
verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). In light
of his admission of guilt, and the absence of any evidence, let
alone reliable new evidence, to support his assertions of
innocence, Petitioner has not presented an actual innocence
claim. See Calderon v. Thompson, 523 U.S. 538, 559 (1998) (“To
be credible, a claim of actual innocence must be based on
reliable evidence not presented at trial. Given the rarity of
such evidence, in virtually every case, the allegation of actual
innocence has been summarily rejected.” (internal quotation
marks and citations omitted)). Petitioner is not entitled to
habeas relief.
C. Ineffective Assistance of Counsel
Petitioner raises two claims of ineffective assistance of
counsel. He asserts trial counsel was ineffective for failing to
17

argue mitigating factors at sentencing and for failing to
investigate and obtain the bank’s surveillance footage. These
claims are governed by the Strickland standard. Petitioner must
first “show that counsel's representation fell below an
objective standard of reasonableness.” Strickland v. Washington,
466 U.S. 668, 688 (1984). He must then show “a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence
in the outcome.” Id. at 694.
Furthermore, “[w]hen a federal habeas petition under § 2254
is based upon an ineffective assistance of counsel claim, ‘[t]he
pivotal question is whether the state court's application of the
Strickland standard was unreasonable,’ which ‘is different from
asking whether defense counsel's performance fell below
Strickland's standard.’” Grant v. Lockett, 709 F.3d 224, 232 (3d
Cir. 2013) (quoting Harrington v. Richter, 562 U.S. 86, 101
(2011)). “Federal habeas review of ineffective assistance of
counsel claims is thus ‘doubly deferential.’” Id. (quoting
Cullen v. Pinholster, 563 U.S. 170, 190 (2011)).
1. Failure to Argue Mitigating Factors
Petitioner asserts trial counsel was ineffective during
sentencing for failing to properly investigate and present
mitigating factors. Having carefully reviewed the record, and
18

considering the claims asserted by Petitioner herein, the Court
finds that the Appellate Division’s decision is not contrary to
or an unreasonable application of Strickland.6 Petitioner is
therefore not entitled to relief under § 2254(d)(1).

The Court is compelled to note that the PCR court imprecisely
paraphrased the Stickland standard. In reciting the standard,
the court stated: “First, the defendant must establish that
trial counsel’s performance was, in fact, deficient. And,
second, the defendant must establish that the outcome of the
case would have been different were it not for the deficient
performance.” 4T13:17-21 (emphasis added). Strickland only
requires that the petitioner establish a reasonable probability
that the result would have been different. The Appellate
Division also stated that “defendant failed to establish that a
shorter sentence would have been imposed had defense counsel
handled the sentencing differently,” State v. Pennington, No. A3311-10T4, 2012 WL 3192690, at *4 (N.J. Super. Ct. App. Div.
Aug. 8, 2012) (emphasis added); however as the court correctly
defined the Strickland standard prior to this statement, id. at
*2, the Court does not conclude the Appellate Division applied
the wrong standard of review. “[A]bsent an affirmative
indication to the contrary,” state courts are presumed to know
and follow the law. Bell v. Cone, 543 U.S. 447, 456 (2005) (per
curiam) (citing Woodford v. Visciotti, 537 U.S. 19, 24 (2002).
Federal habeas courts should not “needlessly create internal
inconsistency” in state court opinions. Holland v. Jackson, 542
U.S. 649, 654–55 (2004) (holding court of appeals erred by
finding state court decision was contrary to Strickland when
state court previously cited standard correctly and the opinion
as a whole indicated correct standard was used). See also
Visciotti, 537 U.S. at 23–24 (State courts’ “occasional
shorthand reference to [Strickland] standard . . . may perhaps
be imprecise, but if so it can no more be considered a
repudiation of the standard than can this Court's own occasional
indulgence in the same imprecision.”); Sawyer v. Superintendent
Muncy Sci, 619 F. App'x 163, 170 (3d Cir. 2015) (“Most relevant
court of appeals decisions agree that where a reading of the
state court's opinion as a whole demonstrates that the state
court applied the correct legal standard (notwithstanding stray
imprecise articulations), the federal habeas court is to defer
to the state court's decision.”), cert. denied sub nom. Sawyer
v. Smith, 136 S. Ct. 1173 (2016).
6

19

The Appellate Division noted that the sentencing transcript
reflected that trial counsel argued for the application of
mitigating Factor Two (the defendant did not contemplate that
his conduct would cause or threaten serious harm); Factor Four
(there were substantial grounds tending to excuse or justify
defendant's conduct, though failing to establish a defense);
Factor Eight (defendant's conduct was the result of
circumstances unlikely to recur); Factor Eleven (imprisonment
will entail excessive hardship to defendant or his dependents);
and Factor Twelve (willingness of defendant to cooperate with
law enforcement authorities). State v. Pennington, No. A-331110, 2012 WL 3192690, at *2–3 (N.J. Super. Ct. App. Div. Aug. 8,
2012) (citing N.J. STAT. ANN. § 2C:44-1(b)).
The Appellate Division further noted:
The sentencing court refused to find these mitigating
factors. The court determined that mitigating factor two
was not applicable because, during the course of the
robbery, defendant made a gesture indicating he had a
knife. The court said that, while defendant may not have
intended to hurt anyone and may not have been in
possession of a knife, he nevertheless threatened to
inflict serious bodily harm upon the bank's employee.
The court also determined that mitigating factor four
did not apply. The court noted that defendant had several
prior convictions arising from his drug use and, as a
consequence, he had been incarcerated in state prison.
The court also noted that defendant had been sober before
but his use of drugs was a voluntary act. Thus, there
was no basis to excuse defendant's conduct.
In addition, the court found that mitigating factor
eight was not applicable. The court stated that
20

defendant's conduct was not the result of circumstances
unlikely to recur. The court noted that defendant had
been convicted of drug offenses in the past. The court
indicated that, in light of that history, it could not
be said that the circumstances that led to this offense
were unlikely to recur.
The court further determined that mitigating factor
eleven was inapplicable. The court stated that, while
defendant had a close relationship with his mother,
defendant had not presented any evidence indicating that
his mother would suffer any excessive hardship upon his
incarceration.
The court additionally found that mitigating factor
twelve did not apply. The court said that, although
defendant confessed to committing the instant offense,
there was no evidence that he provided any cooperation
to law enforcement with regard to any other persons.
Id. at *3–4. The court determined that Petitioner had not set
forth a prima facie case of ineffective assistance of counsel
under Strickland. Id. at *4; 4T15:21 to 16:2.
“[A] court's evaluation of an attorney's performance must
be ‘highly deferential so as to diminish the distorting effects
of hindsight.’ Thus, ‘a court must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable
professional assistance.’” Grant v. Lockett, 709 F.3d 224, 234
(3d Cir. 2013) (quoting Strickland v. Washington, 466 U.S. 668,
689 (1984)). The record reflects that trial counsel raised
applicable mitigating factors at sentencing, presenting
arguments regarding Petitioner’s state of mind during the
offense, 2T5:1-13; his drug and alcohol addiction, 2T5:14-24;
his other medical problems “that caused him to go back into drug
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use,” 2T6:7-14; the unlikelihood of recidivism due to his
sobriety, 2T6:19 to 7:3; the fact that his mother was
financially dependent on him, 2T7:8-16; and the fact that he
freely confessed to the robbery during an investigation into
other unrelated bank robberies, 2T7:17 to 8:17. The fact that
counsel did not specifically state that the “other health issue”
was liver disease does not rise to the level of ineffective
assistance.7 As the Appellate Division found, trial counsel
raised all of the mitigating factors Petitioner asserts should
have been raised. The state courts reasonably found that trial
counsel did not err.
The state courts likewise reasonably concluded Petitioner
had not established the prejudice prong of Strickland.
Petitioner was sentenced to ten years, the shortest sentence
possible for a first-degree offense. N.J. STAT. ANN. § 2C:43–
6(a)(1). In order to qualify for sentencing as a second-degree
offender, the sentencing court must be “clearly convinced” that
the “mitigating factors ‘substantially outweigh’ the aggravating
factors and the ‘interest of justice demands’ a sentencing
downgrade.” State v. Pennington, No. A-3311-10, 2012 WL 3192690,

7 Trial counsel’s statements during sentencing that Petitioner
discussed with her his health condition, drug use, and
relationship with his mother contradicts Petitioner’s assertion
that trial counsel never discussed mitigating factors with him.
See 2T5:25 to 6:14, 7:8-16.
22

at *4 (N.J. Super. Ct. App. Div. Aug. 8, 2012) (quoting N.J.
STAT. ANN. § 2C:44–1(f)(2)). The aggravating factors applied to
Petitioner’s sentence were Factor Three (risk that defendant
will commit another offense); Factor Six (extent of defendant's
prior criminal record and the seriousness of the offenses of
which he has been convicted); and Factor Nine (need to deter
defendant and others from violating the law) Id. (citing N.J.
STAT. ANN. § 2C:44–1(a)). Given these aggravating factors, the
applicability of which Petitioner does not contest, the Court
cannot say that the Appellate Division unreasonably determined
that Petitioner had not satisfied Strickland’s prejudice prong.
Petitioner is therefore not entitled to habeas relief on this
basis.
2. Failure to Investigate Surveillance Video
Petitioner further argues trial counsel was ineffective for
failing to investigate the bank’s surveillance footage of the
robbery.
The
thrust
of
Defendant’s
writ
is
that
his
constitutional rights to effective assistance of counsel
were violated as a result of his attorney having him
plead guilty to a first degree crime that was not
supported by the facts of the case. Defendant contends
that the video tape of the crime would have answered
this question; however, his attorney failed to present
or review it.
Petition at 2. This ineffective assistance of counsel claim was
never presented to the state courts. As with his voluntariness

23

claim, Petitioner cannot return to the state courts to exhaust
this claim.8 He has therefore procedurally defaulted on this
claim, and the Court cannot consider the merits as nothing in
the petition establishes either cause and prejudice or a
miscarriage of justice. Lines v. Larkins, 208 F.3d 153, 160 (3d
Cir. 2000). This claim is therefore dismissed with prejudice as
procedurally defaulted.
D. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c), a petitioner may not
appeal from a final order in a habeas proceeding where that
petitioner's detention arises out of his state court conviction
unless he has “made a substantial showing of the denial of a
constitutional right.” “A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the
district court's resolution of his constitutional claims or that
jurists could conclude that the issues presented here are
adequate to deserve encouragement to proceed further.” Miller-El
v. Cockrell, 537 U.S. 322, 327 (2003).
For the reasons expressed above, Petitioner has failed to
make a substantial showing that he was denied a constitutional
right. As jurists of reason could not disagree with this Court's

8 See N.J. Ct. R. 3:22-4, 3:22-12(a)(2),(c).
24

resolution of his claims, the Court shall deny Petitioner a
certificate of appealability.
V.

CONCLUSION
For the reasons stated above, the habeas petition is

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

September 19, 2016
Date

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

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