CLEMONS v. STATE OF NEW JERSEY et al

Filing 24

OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 2/23/16. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHRISTOPHER W. CLEMONS
A/K/A CLINTON FRENCH,

Civil Action No. 13-3104 (JBS)

Petitioner,
v.

OPINION

STATE OF NEW JERSEY, et al.,
Respondents.

APPEARANCES:
CHRISTOPHER W. CLEMONS A/K/A CLINTON FRENCH, #04164-015
FCI McKean
P.O. Box 8000
Bradford, PA 16701
Petitioner Pro Se
PASSAIC COUNTY PROSECUTOR
by: Marc A. Festa, Esq.
401 Grand Street
Paterson, NJ 07505
Attorneys for Respondents
SIMANDLE, Chief Judge 1
Christopher W. Clemons filed a Petition for a Writ of
Habeas Corpus under 28 U.S.C. § 2254 challenging a judgment of
conviction filed in the Superior Court of New Jersey, Law
Division, Passaic County, on January 7, 2002, after a jury found

1

This case was reassigned to the undersigned following the death
of the Hon. Dickinson R. Debevoise in August, 2015.

him guilty of the first-degree attempted murder of Melvin
Simmons on November 3, 1996, and related crimes.

The State

filed an Answer with the record and Clemons filed a Reply.
After carefully reviewing the state court record and the
arguments of the parties, this Court will dismiss the Petition
with prejudice and deny a certificate of appealability.
I.
A.

BACKGROUND

The Crime
Clemons challenges a sentence of 30 years in prison with a

15-year period of parole ineligibility, to run consecutively to
a federal sentence imposed by the United States District Court
for the District of Delaware, 2 after a jury found him guilty of
the first-degree attempted murder of Melvin Simmons on November
3, 1996, second-degree aggravated assault, fourth-degree
aggravated assault, second-degree possession of a weapon for an

2

Clemons is currently serving a 270-month term of imprisonment
imposed in 2000, and amended on May 27, 2015, in United States
v. French, Crim. No. 99-82-1 (GMS) order (D. Del. May 27, 2015),
after a jury convicted him of knowingly possessing with intent
to distribute crack cocaine and knowingly carrying a semiautomatic pistol during, and in relation to, a drug trafficking
crime. His projected release date is May 21, 2018. See Bureau
of Prisons, Inmate Locator, http://www.bop.gov/inmateloc/ (Feb.
17, 2016).
2

unlawful purpose, and third-degree unlawful possession of a
weapon.

Under the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), state court factual findings are presumed correct
unless rebutted by clear and convincing evidence.
§ 2254(e)(1).

See 28 U.S.C.

As Clemons has not attempted to rebut the factual

findings of the New Jersey courts, this Court will rely on those
findings.
In denying Clemons’ petition for post-conviction relief,
the trial court found that the evidence revealed the following
facts.

(ECF No. 13-19 at 152-161).

See State v. Clemons, 2011

WL 5105444 (N.J. Super. Ct., App. Div., Oct. 28, 2011).

On

November 3, 1996, Clemons was in a hallway at 315 Park Avenue in
Paterson playing dice with Melvin Simmons, Shawn Sturdivant, and
Rikki Robinson.

Kellone Scott, who was outside the building,

entered the building with Marco Simmons, who had come out to
talk.

Shawn Sturdivant, and Rikki Robinson, who was Clemons’

cousin, testified at trial that an altercation developed over
$10 and, after punches were thrown, Clemons left with Robinson.
Robinson testified that Clemons drove with Robinson to Clemons’
apartment, Clemons went inside and came out five to ten minutes
later, and they drove back to 315 Park Avenue.
3

Robinson

testified that, although he had gone back to his own car, he
heard a sound that could have been a gunshot.

Scott testified

that Clemons got out of the car with a gun in his hand, aimed
the gun at Scott and, as Scott was trying to get away, Melvin
Simmons tried to stop Clemons and Clemons shot Melvin Simmons in
the head.

Melvin fell to the ground and Clemons shot him again

and then the gun jammed.
The following month, Timothy Platt was arrested by the
Passaic Police Department for terroristic threats and possession
of weapons, including a .45 caliber gun.

Police ballistics

tests showed that the shell casings found at the scene of Melvin
Simmons’ shooting were fired from the .45 caliber gun recovered
from Platt.

In an interview with the prosecutor, which was

admitted at trial, Platt said that on November 3, 1996, Clemons
gave him a bag containing the .45 caliber gun, a .22 caliber gun
and bullets.

Platt indicated during the interview that the next

day he heard that Clemons had shot a person with one of the guns
he was holding.

While Platt was in jail he wrote a letter to

another inmate indicating that Platt had killed a person in
Paterson with a .45 caliber handgun, but during the interview he
denied killing anyone.
4

B.

The State Court Proceedings
In February, 1997, a grand jury indicted Clemons for the

attempted murder on November 3, 1996, of Melvin Simons by
shooting him twice about the head with a .45 caliber Ruger semiautomatic handgun, three counts of aggravated assault, and two
weapons offenses.

(ECF No. 13-19 at 37.)

After a trial in

November, 2001, a jury found Clemons guilty of first-degree
attempted murder, second-degree aggravated assault, fourthdegree aggravated assault, second-degree possession of a weapon
for an unlawful purpose, and third-degree unlawful possession of
a weapon.

On December 20, 2001, the trial judge granted the

State’s motion for an extended term and sentenced Clemons to a
30-year term of imprisonment, with 15 years of parole
ineligibility, to run consecutively to the sentence imposed in
United States v. French, Crim. No. 99-82-1 (GMS) order (D. Del.
May 27, 2015).

(ECF No. 13-19 at 44.)

Clemons appealed, and on

May 17, 2004, the Superior Court of New Jersey, Appellate
Division, affirmed.

See State v. Clemmons, Docket No. A-5983-

02T4 sl. op. (N.J. Super. Ct., App. Div., May 17, 2004) (ECF No.

5

13-12). 3

The New Jersey Supreme Court denied certification on

November 5, 2004.

See State v. Clemmons, 182 N.J. 148 (2004)

(table).
On January 24, 2005, Clemons filed a pro se petition for
post-conviction relief in the trial court.
143.)

(ECF No. 13-19 at

On May 12, 2008, the trial judge denied relief.

13-19 at 161.)

(ECF No.

Clemons appealed, and the Appellate Division

affirmed on October 28, 2011.

See State v. Clemons, 2011 WL

5105444 n.1 (N.J. Super. Ct., App. Div., Oct. 28, 2011).

The

New Jersey Supreme Court denied certification on May 9, 2012.
See State v. Clemons, 210 N.J. 218 (2012) (table).
C.

Procedural History of § 2254 Petition
On May 8, 2013, Clemons signed his Petition for a Writ of

Habeas Corpus and handed it to prison officials for mailing to
the Clerk.

(ECF No. 1 at 68.)

The Petition raises the

following grounds: 4

3

Although Petitioner’s name is spelled “Clemons,” the judgment
of conviction and other documents on direct appeal spell his
name as “Clemmons.” See State v. Clemons, 2011 WL 5105444 n.1
(N.J. Super. Ct., App. Div., Oct. 28, 2011).
4

The Court notified Clemons of his right to amend the Petition
to include all available federal claims in accordance with Mason
6

Ground One: THE SIXTH AMENDMENT GUARANTEES A
DEFENDANT AN OPPORTUNITY FOR EFFECTIVE CROSSEXAMINATION OF WITNESSES.
(A) DEFENDANT’S CONSTITUTIONAL RIGHT TO CONFRONTATION
WAS VIOLATED WHEN THE STATE USED THE GRAND JURY
TESTIMONY OF THE VICTIM/WITNESS MELVIN SIMMONS WHO DID
NOT TESTIFY AT TRIAL.
(B) THE ADMISSION OF TIMOTHY PLATT’S TAPE RECORDED
TESTIMONY VIOLATED DEFENDANT’S SIXTH AMENDMENT RIGHT
TO CONFRONTATION.
(C) DEFENDANT’S SIXTH AMENDMENT RIGHT TO CONFRONTATION
WAS VIOLATED WHEN THE TRIAL COURT ADMITTED THE PRIOR
HEARSAY TESTIMONY OF MARCO SIMMONS INTO EVIDENCE.
Ground Two: DEFENSE COUNSEL’S DEFICIENT PERFORMANCE
RENDERED THE TRIAL PROCEEDINGS CONSTITUTIONALLY
INADEQUATE, IN VIOLATION OF DEFENDANT’S SIXTH
AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND
HIS FIFTH AMENDMENT RIGHT TO DUE PROCESS OF LAW.
(A) COURSE OF EVENTS RELEVANT TO TRIAL COUNSEL’S
DEFICIENT PERFORMANCE.
(B) APPELLATE COUNSEL’S NOMINAL REPRESENTATION ON
APPEAL DID NOT SUFFICE TO RENDER THE PROCEEDING
CONSTITUTIONALLY ADEQUATE, THUS DEPRIVING THE
DEFENDANT OF A BENEFICIAL DIRECT APPEAL.
(ECF No 1 at 18-19.)
The State filed an Answer, arguing that Clemons did not
exhaust his ineffective assistance of trial counsel claim and

v. Meyers, 208 F.3d 414 (3d Cir. 2000), and he declined to do
so. (ECF Nos. 3, 5.)
7

that he has not satisfied the statutory requirements for habeas
relief.

(ECF No. 16.)
II.

Clemons filed a Reply.

(ECF No. 20.)

STANDARD OF REVIEW FOR RELIEF UNDER § 2254

Section 2254 of title 28 of the United States Code sets
limits on the power of a federal court to grant a habeas
petition to a state prisoner.
S.Ct. 1388, 1398 (2011).

See Cullen v. Pinholster, 131

Section 2254(a) permits a court to

entertain only claims alleging that a person is in state custody
“in violation of the Constitution or laws or treaties of the
United States.”

28 U.S.C. § 2254(a).

Where a state court

adjudicated petitioner’s federal claim on the merits, 5 as in this
case, a court “has no authority to issue the writ of habeas
corpus unless the [state c]ourt’s decision ‘was contrary to, or
involved an unreasonable application of, clearly established
Federal Law, as determined by the Supreme Court of the United
States’, or ‘was based on an unreasonable determination of the

5

“For the purposes of Section 2254(d), a claim has been
‘adjudicated on the merits in State court proceedings’ when a
state court has made a decision that 1) finally resolves the
claim, and 2) resolves th[at] claim on the basis of its
substance, rather than on a procedural, or other, ground.”
Shotts v. Wetzel, 724 F.3d 364, 375 (3d Cir. 2013) (citation and
internal quotation marks omitted).
8

facts in light of the evidence presented in the State court
proceeding.’”

Parker v. Matthews, 132 S.Ct. 2148, 2151 (2012)

(quoting 28 U.S.C. § 2254(d)).

“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.”

Woods v. Donald, 135 S.Ct. 1372, 1376 (2015).

The

petitioner carries the burden of proof, and review under §
2254(d) is limited to the record that was before the state court
that adjudicated the claim on the merits.

See Pinholster, 131

S.Ct. at 1398.
A court begins the analysis under § 2254(d)(1) by
determining the relevant law clearly established by the Supreme
Court.

See Yarborough v. Alvarado, 541 U.S. 652, 660 (2004).

“[C]learly established law for purposes of § 2254(d)(1) includes
only the holdings, as opposed to the dicta, of t[he Supreme
Court’s] decisions,” as of the time of the relevant state-court
decision.

Woods, 135 S.Ct. at 1376 (quoting White v. Woodall,

134 S.Ct. 1697, 1702 (2014), and Williams v. Taylor, 529 U.S.
362, 412 (2000)).

A decision is “contrary to” a Supreme Court

holding within 28 U.S.C. § 2254(d)(1) if the state court
9

“contradicts the governing law set forth in [the Supreme
Court's] cases” or if it “confronts a set of facts that are
materially indistinguishable from a decision of th[e Supreme]
Court and nevertheless arrives at a [different] result.”
Williams, 529 U.S. at 405-06.

Under the “‘unreasonable

application’ clause of § 2254(d)(1), a federal habeas court may
grant the writ if the state court identifies the correct
governing legal principle from th[e Supreme] Court’s decisions
but unreasonably applies that principle to the facts of the
prisoner’s case.”

Id., 529 U.S. at 413.

Where a petitioner seeks habeas relief pursuant to §
2254(d)(2) on the basis of an erroneous factual determination of
the state court, two provisions of the AEDPA necessarily apply.
First, the AEDPA provides that “a determination of a factual
issue made by a State court shall be presumed to be correct
[and] [t]he applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.”
29 U.S.C. § 2254(e)(1); see Miller-El v. Dretke, 545 U.S. 231,
240 (2005).

Second, the AEDPA precludes habeas relief unless

the adjudication of the claim “resulted in a decision that was
based on an unreasonable determination of the facts in light of
10

the evidence presented in the State court proceeding.”

28

U.S.C. § 2254(d)(2).
III.
A.

DISCUSSION

Confrontation Clause (Ground One)
Clemons raises three Confrontation Clause claims in Ground

One.

First, Clemons asserts that he was denied his right to

cross-examine the victim, Melvin Simmons, because the State did
not call Melvin Simmons to testify at trial, even though Simmons
had testified before the grand jury.

Second, Clemons asserts

that he was denied his right to cross-examine Timothy Platt and
to thereby show that Platt was the shooter where Platt’s tape
recorded statement to police was admitted after Clemons’
attorney stipulated to the admission of the statement if Platt
could not be located.

(ECF No. 1 at 43-44.)

Third, Clemons

asserts that the trial court denied his right to cross-examine
Marco Simmons when the court overruled defense counsel’s
objection and allowed Officer Randion to testify that Marco had
named Clemons as the person who shot Melvin.

(ECF No. 1 at 47-

49.)
The Sixth Amendment, made applicable to the States via the
Fourteenth Amendment, see Pointer v. Texas, 380 U.S. 400, 403
11

(1965), provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right ... to be confronted with the
witnesses against him.”

U.S. Const. amend VI.

“The main and

essential purpose of confrontation is to secure for the opponent
the opportunity of cross-examination.”

Delaware v. Van Arsdall,

475 U.S. 673, 678 (1986) (citations and internal quotation marks
omitted) (emphasis in original).
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme
Court changed Confrontation Clause jurisprudence when it held
that the Confrontation Clause bars the “admission of testimonial
statements of a witness who did not appear at trial unless he
was unavailable to testify, and the defendant has had a prior
opportunity for cross-examination.”

Id. at 53-54. 6

The Court

defined “testimony” as “[a] solemn declaration or affirmation
made for the purpose of establishing or proving some fact.

6

An

Crawford governs Clemons’ Confrontation Clause claims because
Crawford was decided on March 8, 2004, two months before the
Appellate Division affirmed Clemons’ conviction on direct
appeal. See Cullen v. Pinholster, 563 U.S. 170, 182 (2011)
(“State-court decisions are measured against th[e Supreme]
Court’s precedents as of ‘the time the state court renders its
decision.’”) (quoting Lockyer v. Andrade, 538 U.S. 63, 71-72
(2003)).
12

accuser who makes a formal statement to government officers
bears testimony in a sense that a person who makes a casual
remark to an acquaintance does not.”

Id. at 51 (citations and

internal quotation marks omitted).
Clemons asserts that he was denied his right to crossexamine the victim, Melvin Simmons, because the State did not
call Melvin Simmons to testify at trial, even though Simmons had
testified before the grand jury.

Clemons argues:

“Simmons

implicated defendant as the one who carried out the crime, but
counsel for defendant was unable to cross-examine him about his
testimony before the grand jury because he failed to testify [at
trial], thus preventing defendant from subjecting his testimony
to adversarial testing.”

(ECF No. 1 at 36.)

Clemons argued on post-conviction relief that defense
counsel was deficient because counsel didn’t object to the
State’s decision to proceed to trial without the testimony of
the victim.

The trial court found that, although Melvin Simmons

had testified before the grand jury that Clemons shot him, the
State did not call Melvin at trial because on the day of the
shooting, Melvin had told police that he couldn’t remember
anything about the shooting.

The trial court rejected the
13

Confrontation Clause claim because the State did not use
Melvin’s grand jury testimony at trial.

The Appellate Division

affirmed for the reasons expressed by the trial court, adding
that the State was not obligated to call the victim in order to
meet its burden of proof.

See State v. Clemons, 2011 WL 5105444

at *1.
The Confrontation Clause is not implicated by Melvin
Simmons’ grand jury testimony because this testimony was not
admitted at Clemons’ trial.

See Crawford, 541 U.S. at 53-54

(holding that the Confrontation Clause bars “admission of
testimonial statements of a witness who did not appear at trial
unless he was unavailable to testify, and the defendant has had
a prior opportunity for cross-examination.”).

Accordingly, the

Appellate Division’s determination that the State’s failure to
call Melvin at trial did not implicate the Confrontation Clause
is not contrary to, or an unreasonable application of Crawford
or other Supreme Court holdings.
Next, Clemons asserts that the admission of Timothy Platt’s
recorded statement violated his right to confront witnesses
against him because Platt did not testify and Clemons had no
opportunity to cross-examine Platt when he gave the statement.
14

Clemons acknowledges that defense counsel “decided to stipulate
to the tape recorded statement only if the witness does not show
up or cannot be located,” (ECF No. 1 at 43-44), but argues that
the State did not make an adequate effort to find Platt:

“since

the State failed to make as vigorous an attempt to secure the
presence of Platt as it did to get the prior recorded
testimonial, along with the fact that his unavailability was
never established . . , Platt’s deposition statements
contaminated the entire case which had a substantial effect in
persuading the jury to find defendant guilty[.]”

(ECF No. 1 at

46-47.)
The trial judge found that Clemons “personally agreed” at a
pretrial conference to stipulate to the admission of Platt’s
recorded statement if Platt did not testify because Platt’s
statement was integral to Clemons’ defense.

See State v.

Clemons, 2011 WL 5105444 at *1 (“The court found that defendant
‘personally agreed to this procedure’ because defense counsel
noted that ‘the tape recording was exculpatory and important to
[defendant’s] defense.’”)

The trial court further found:

The only way defense counsel could establish doubt was
to place the blame upon Timothy Platt. The taped
testimony and letter indicated [that Platt] killed a
person with a 45 caliber handgun. The two guns were
15

later found by the police in Mr. Platt’s apartment.
Defense counsel argued to the jury that Timothy Platt
was the shooter. Without admitting the taped
statement, letter and police report into evidence,
defense counsel would not have had any basis to make
this argument.
(ECF No. 13-19 at 157.)
The Appellate Division affirmed the determination that
counsel was not deficient in stipulating to the admission of
Platt’s statement because the stipulation was strategic.

See

Clemons, 2011 WL 5105444 at *1.
Section 2254(e)(1) requires this Court to presume the
correctness of the New Jersey courts’ finding that Clemons
personally agreed to the stipulation, as Clemons has not
rebutted it by clear and convincing evidence.
2254(e)(1).

See 28 U.S.C. §

Nor has Clemons shown that this finding was “an

unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.”

28 U.S.C. §

2254(d)((2).
Clemons has not cited any Supreme Court case holding that a
defendant may not waive his rights under the Confrontation
Clause.

The Supreme Court noted in Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 314 n.3 (2009), that “[t]he right
to confrontation may, of course, be waived, including by failure
16

to object to the offending evidence[.]”

See also United States

v. McKenzie, 532 F. App’x 793, 796 (10th Cir. 2013) (“The
confrontation clause is not implicated where the defendant seeks
to introduce hearsay declarations as part of his defense.”)
(quoting United States v. Parikh, 858 F.2d 688, 695 (11th Cir.
1988)); United States v. Magloire, 235 F. App’x 847, 850 n.1 (3d
Cir. 2007) (holding that there is “no Confrontation Clause
violation where defense counsel elicits hearsay statement”);
United States v. Cooper, 243 F.3d 411, 418 (7th Cir. 2001)
(“Constitutional rights, including the right to confrontation,
can be waived.”).

Moreover, the Third Circuit has held that

counsel in a criminal case may waive his client's Sixth
Amendment right of confrontation by stipulating to the admission
of evidence, provided the defendant does not dissent from his
attorney's decision and counsel’s decision to stipulate was “a
legitimate trial tactic or part of a prudent trial strategy.”
United States v. Williams, 403 F. App’x 707, 708 (3d Cir. 2010)
(citing United States v. Stephens, 609 F.2d 230, 232-33 (5th
Cir. 1980), and United States v. Aptt, 354 F.3d 1269, 1284 (10th
Cir. 2004)).

17

Here, the New Jersey courts found that Clemons personally
agreed to counsel’s stipulation, that the stipulation was
integral to the defense that Platt was the shooter, and that
counsel’s strategic decision to stipulate was not deficient
performance.

As nothing presented by Clemons shows that he

dissented from his counsel’s stipulation, the New Jersey courts’
determination that Clemons waived his right to confront Platt by
stipulating to the admission of his recorded statement was not
contrary to, or an unreasonable application of Supreme Court
precedent.

See Williams, 403 F. App’x at 708-709.

Clemons is

not entitled to habeas relief under § 2254(d)(1) or (d)(2) on
this claim.
Next, Clemons asserts that the admission of Marco (Van)
Simmons statement to Officer Randion (indicating that Clemons
was the shooter) violated the Confrontation Clause where Marco
did not testify.

The record shows that Officer Randion

testified that he was the first officer on the scene after the
shooting and he spoke with Marco Simmons, who told him that his
brother, Melvin, had been shot.

The prosecutor asked Officer

Randion if Marco told him who did the shooting, and Officer
Randion testified that Marco said the shooter was Chris.
18

(ECF

No. 13-3 at 34.)

On cross-examination, Officer Randion conceded

that when Marco told him that Chris was the shooter, Randion
thought that Marco had witnessed the shooting; Randion further
testified that he was not aware that in the statement Marco gave
to detectives, Marco said that he had not witnessed the
shooting.

Id. at 36.

Clemons raised this Confrontation Clause issue on postconviction relief, arguing that counsel was deficient in failing
to object to admission of Marco’s statement through Officer
Randion.

The trial court found that Marco’s statement was

admissible as an excited utterance, but the Appellate Division
found this was error.

Nevertheless, the Appellate Division

found that any Confrontation Clause error was harmless:
The victim’s brother’s statements were not admissible
as an excited utterance under N.J.R.E. 803(c)(2)
because he did not actually witness defendant shoot
his brother . . . [T]he victim’s brother’s statement
is based on an undisclosed source.
This error does not require reversal, however. The
record shows trial counsel’s decision not to
aggressively challenge the admission of this statement
was not based on his failure to appreciate the legal
issue. Instead, the record shows this was a
calculated move by trial counsel to strategically
reveal this evidentiary deficiency through his crossexamination of the police officer, thus undermining
the witness’s credibility as a whole . . . Any
prejudice caused by the admission of this statement in
19

violation of Crawford is rendered harmless by the
State’s strong evidence attesting to defendant’s guilt
beyond a reasonable doubt.
Clemons, 2011 WL 5105444 at *3.
On direct review, the test for harmless error is whether
the error was “harmless beyond a reasonable doubt.”
California, 386 U.S. 18, 24 (1967).

Chapman v.

In this case, the Appellate

Division’s determination that the Confrontation Clause error was
harmless under Chapman constitutes an adjudication on the merits
under § 2254(d).
(2015).

See Davis v. Ayala, 135 S.Ct. 2187, 2198

Therefore, under § 2254(d), this court may not overturn

the Appellate Division’s harmlessness decision “unless that
court applied Chapman in an objectively unreasonable manner.”
Ayala, 135 S.Ct. 2198 (citation and internal quotation marks
omitted).

However, habeas petitioners “are not entitled to

habeas relief based on trial error unless they can establish
that it resulted in ‘actual prejudice.’”

Ayala, 135 S.Ct. at

2197 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
Because Clemons seeks habeas relief, he must meet the Brecht
actual prejudice standard and, because the New Jersey courts
adjudicated his claim on the merits, he must show that the
Appellate Division “applied Chapman in an objectively
20

unreasonable manner.”

Ayala, 135 S.Ct. at 2198 (citations and

internal quotation marks omitted).
In this case, the record establishes that the evidence
against Clemons included the testimony of Kellone Scott and
Shawn Sturdivant, who both testified that they knew Clemons
before the shooting and that Clemons was the shooter.

In light

of this testimony, there is not even a reasonable possibility
that, absent admission of Marco’s statement, the jury would have
acquitted Clemons.

The Appellate Division did not unreasonably

apply Chapman when it concluded that the admission of the
hearsay statement of Marco Simmons was harmless.
B.

Ineffective Assistance of Counsel (Ground Two)
In Ground Two, Clemons asserts that trial counsel was

ineffective in failing to object to the admission of the
recorded statement of Timothy Platt and that appellate counsel
was ineffective in failing argue on direct appeal that the
admission of hearsay at his trial violated the Confrontation
Clause under Crawford v. Washington, 541 U.S. 36 (2004).
The Sixth Amendment guarantees the accused the “right . . .
to have the Assistance of Counsel for his defense.”
amend. VI.

U.S. Const.

A claim that counsel’s assistance was so defective
21

as to require reversal of a conviction has two components, both
of which must be satisfied.
U.S. 668, 687 (1984).

See Strickland v. Washington, 466

First, the defendant 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[.]”
S.Ct. 1081, 1083 (2014) (per curiam).

Hinton v. Alabama, 134

To establish prejudice,

the defendant must show that “there is a reasonable probability
that the result of the trial would have been different absent
the deficient act or omission.”

Id., 134 S.Ct. at 1083.

“When

a defendant challenges a conviction, the question is whether
there is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting guilt.”
Id. at 1089 (quoting Strickland, 466 U.S. at 695).
(1) Failure to Object to Admission of Platt’s Statement
Clemons asserts that trial counsel was “ineffective for
failing to object to, but more so for stipulating to the
testimonial statements of Timothy Platt, which were improperly
allowed to be played to and considered by the jury; of which the
22

State did not make a good-faith effort to locate and secure
Platt’s appearance to testify at defendant’s trial.”
at 55-56.)

(ECF No. 1

As explained above, the New Jersey courts found that

Clemons personally agreed to the stipulation during a pretrial
conference and this Court is required to presume the correctness
of this finding.

In addition, the New Jersey courts held that

counsel was not deficient in stipulating to the admission of
Platt’s statement because the statement was exculpatory as well
as inculpatory and was integral to Clemons’ argument that Platt
was the person who shot Melvin.

Strickland emphasized that, to

establish ineffective assistance, “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 (citations and internal quotation marks
omitted).
The New Jersey courts’ determination that counsel’s
stipulation to the admission of Platt’s statement was not
deficient is entirely consistent with Strickland.

Accordingly,

Clemons is not entitled to habeas relief under § 2254(d)(1).

He

is not entitled to habeas relief under § 2254(d)(2) because the
finding that Clemons personally agreed to the stipulation was
23

not an unreasonable determination of the facts in light of the
evidence presented.
(2) Failure to Raise Crawford v. Washington on Direct
Appeal
Clemons asserts that appellate counsel was constitutionally
deficient in failing to raise his three Confrontation Clause
claims under Crawford on direct appeal.

He argues that Crawford

was decided two months before the Appellate Division ruled in
his case on direct appeal and “counsel had ample time to become
familiar with the Supreme Court’s monumental decision, changing
a two and half decade way of administering law.”

(ECF No. 1 at

60.)
The Fourteenth Amendment guarantees a criminal defendant
pursuing a first appeal as of right certain “minimum safeguards
necessary to make that appeal ‘adequate and effective,’” Evitts
v. Lucey, 469 U.S. 387, 392 (1985) (quoting Griffin v. Illinois,
351 U.S. 12, 20 (1956)), including the right to the effective
assistance of counsel, id. at 396.

The ineffective assistance

of counsel standard of Strickland applies to a claim that
appellate counsel was ineffective.

See Smith v. Robbins, 528

U.S. 259, 285 (2000); United States v. Cross, 308 F.3d 308, 315
(3d Cir. 2002).

However, appellate counsel is not
24

constitutionally required to raise every nonfrivolous claim
requested by the defendant.

See Jones v. Barnes, 463 U.S. 745,

751 (1983); see also Smith v. Robbins, 528 U.S. 259, 288 (2000).
And “it is a well established principle that counsel decides
which issues to pursue on appeal.”

Sistrunk v. Vaughn, 96 F.3d

666, 670 (3d Cir. 1996).
In this case, counsel did not raise any Confrontation
Clause claims on direct appeal.
13-12.)

(ECF Nos. 13-10 at 2 and

However, Clemons presented his Confrontation

Clause claims on post-conviction relief, and the Appellate
Division found that Melvin’s failure to testify did not
implicate the Confrontation Clause, counsel’s decision not
to object to the admission of Platt’s statement was
strategic, and the admission of Marco’s statement was
harmless error.

Because “counsel cannot be deemed

ineffective for failing to raise a meritless claim,” the
New Jersey courts were not unreasonable in concluding that
counsel was not deficient in failing to raise these
Confrontation Clause claims on direct appeal.

Ross v.

District Attorney of the County of Allegheny, 672 F.3d 198,
211 n.9 (3d Cir. 2012) (quoting Werts v. Vaughn, 228 F.3d
25

178, 202 (3d Cir. 2000)).

Clemons is not entitled to

habeas relief on Ground Two.
IV.

Certificate of Appealability

Clemons has not made a substantial showing of the denial of
a constitutional right.

Therefore, no certificate of

appealability will issue pursuant to 28 U.S.C. § 2253(c)(1)(B).
See Fed. R. App. P. 22(b)(1); 3d Cir. L.A.R. 22.2.
V.

CONCLUSION

This Court denies dismisses the Petition with prejudice and
denies a certificate of appealability.

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
Dated: February 23, 2016

26