MILBOURNE v. HASTINGS et al

Filing 18

OPINION. Signed by Judge Jerome B. Simandle on 7/27/2017. (tf, n.m.)

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

LAMAR MILBOURNE,

HONORABLE JEROME B. SIMANDLE

Petitioner,
Civil Action
No. 13-4821 (JBS)

v.
BEVERLY HASTINGS, et al.,

OPINION
Respondents.

APPEARANCES:
Lamar Milbourne, Petitioner pro se
483785/700772C
East Jersey State Prison
1100 Woodbridge Avenue
Rahway, New Jersey 07065
Matthew M. Bingham, Esq.
Cumberland County Prosecutor’s Office
43 Fayette Street
Bridgeton, NJ 08302
Attorney for Respondent Beverly Hastings

SIMANDLE, District Judge:
I.

INTRODUCTION
Lamar Milbourne has submitted an amended petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254. Amended
Petition, Docket Entry 6. Respondent Beverly Hastings opposes
the petition. Answer, Docket Entry 13. 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 and his three co-defendants, Milledge, Nichols
and Hinson, embarked on the night of September 19, 2002,
to “rob some Mexicans.” At approximately 9:15 p.m., they
encountered two teenagers, C.P. and K.M., parked near a
boat ramp at Elmer Lake in Bridgeton. Claiming to be
police officers, defendant and the other young men
pulled the teenagers from the car. Defendant brought
K.M. to the rear of the vehicle where he “pressed [her]
up against [the] side of the car,” patted her down, and
ordered her to spread her legs. When K.M. resisted,
defendant punched her repeatedly in her ribs. Defendant
took K.M.'s keys and wallet, which contained eighty-five
dollars. Next, defendant lifted K.M.'s shirt, removed
her bra, unbuttoned her pants, and inserted his finger
into her vagina. One of the other men then approached
her, pulled her shirt over her head so that she could
not see, after which she felt fingers inserted into her
vagina at least ten times. Defendant removed K.M.'s
shirt and placed his fingers inside her rectum. When she
screamed for help, defendant slammed her head into the
trunk. She cried, “God, help me,” and heard one of the
men say, “God couldn't help [you].” The others yelled,
“Shut up,” and, “We'll kill you.”
Next, all four defendants began participating in the
sexual assault, punching and threatening to kill K.M. if
she did not comply with their demands. They dragged her
into a wooded area and continued the sexual assault over
a half-hour period. They repeatedly punched C.P., while
forcing him to watch the assault on K .M. C.P. was struck
with a baseball bat, kicked and stomped. The men shouted
words of encouragement to one another during these
vicious attacks.

Once the defendants left, the victims managed to drive
themselves to a hospital where they were treated for
serious injuries. The savage attack was reported to the
police. Suspects were quickly developed because C.P.
recognized some of the young men from school.
When co-defendant Hinson was arrested later that night,
he inculpated defendant. Shortly thereafter, police
arrested defendant at his home. In the police vehicle,
on the way to headquarters, defendant received his
Miranda 1 rights. He also signed a Miranda rights card at
the police station before questioning. Defendant was
initially reluctant to discuss the incident. However,
after being informed that Hinson implicated him,
defendant admitted to police that he and the other men
“were looking to screw up a prom in the projects and
then they decided to go out and rob a Mexican.” He then
disclosed that when the men first arrived at the park,
they unsuccessfully attempted to rob another individual.
He explained that after driving slightly further, they
came upon C.P. and K.M.
At that point, defendant agreed to provide a taped
statement and was advised of his Miranda rights again.
In his statement defendant gave his version of the
incident. 2 Defendant maintained that he did not have
intercourse with K.M.
State v. Milbourne, No. A-3313-10, 2012 WL 6195813, at *1–2
(N.J. Super. Ct. App. Div. Dec. 13, 2012) (alterations in
original); Ra18. 3
Prior to trial Petitioner moved to exclude his statements
to police and K.M.’s and C.P.’s identification of him. See

1

Miranda v. Arizona, 384 U.S. 436 (1966).
“Defendant's taped statement was substantially consistent with
the facts described by the merits appeal panel in its appeal.”
State v. Milbourne, No. A-3313-10, 2012 WL 6195813, at *2 n.2
(N.J. Super. Ct. App. Div. Dec. 13, 2012).
3 Ra refers to the exhibits to Respondent’s Answer, Docket Entry
18.
2

generally 2T. 4 Detectives Patitucci and Zanni testified on behalf
of the State during the Miranda hearing; Petitioner did not
present any witnesses. The trial court found Petitioner
knowingly and voluntarily waived his rights after receiving
proper Miranda warnings and deemed the taped statement to be
admissible. 2T80:20-22. During the Wade 5 hearing, Petitioner
argued the photographic show-up procedure was impermissibly
suggestive because police officers showed K.M. and C.P.
photographs of Petitioner and his co-defendants and asked them
to state who did what during the crime. 2T81:11-19. No other
photographs were shown to the victims. After hearing testimony
from K.M., the trial court indicated it had “misgivings about

4

1T – Transcript of Motion Hearing, dated September 11, 2003.
2T – Transcript of trial and motion hearings, dated January 5,
2004.
3T – Transcript of trial, dated January 6, 2004.
4T – Transcript of State’s opening statement, dated January 6,
2004.
5T – Transcript of K.M.’s testimony, dated January 6, 2004.
6T – Transcript of trial, dated January 7, 2004.
7T – Transcript of C.P’s testimony, dated January 7, 2004.
8T – Transcript of trial, dated January 8, 2004.
9T – Transcript of State’s closing argument, dated January 8,
2004.
10T – Transcript of trial, dated January 9, 2004.
11T – Transcript of motion for new trial and sentencing, dated
April 15, 2004.
12T - Transcript of limited remand hearing, dated August 24,
2006.
13T – Transcript of PCR hearing, dated May 14, 2010.
14T – Transcript of PCR decision, dated July 30, 2010.
15T – Transcript of grand jury proceedings, dated February 19,
2003.
5 United States v. Wade, 388 U.S. 218 (1967).

the validity of the procedure utilized . . . . It was not
utilized to identify the actor as being a participant, but the
actor as participating in a certain aspects . . .

I’m not

clearly convinced that there wasn’t some problem with the
procedure.” 2T111:1-9. It therefore held that K.M. would not be
permitted to testify that she identified Petitioner from his
photograph. She would be able to identify Petitioner in court,
however, as the trial court concluded that her identification
was based on her observations from the night in question, not
the photographs. 2T110:14 to 111:14. C.P. did not testify during
the Wade hearing, but the trial court noted the same
restrictions would be placed on his trial testimony. 2T114:1-3.
The State indicated that it would oppose the introduction
of a DNA sample found on K.M. pursuant to New Jersey’s Rape
Shield Law, N.J. STAT. ANN. § 2C:14-7 (limiting circumstances
under which evidence of victim’s previous sexual conduct may be
admitted). “Defense counsel responded, ‘We have no objection to
that, Judge.’ There was no further discussion on the issue.”
State v. Milbourne, No. A-3068-04, 2007 WL 4355495, at *5 (N.J.
Super. Ct. App. Div. Dec. 14, 2007). The parties agreed to
introduce the following stipulation to the jury:
“Specimens from the sexual assault evidence collection
kit . . . of [K.M.] and specimens from Lamar Milbourne
were sent to the New Jersey State Police Lab for
analysis. No DNA of Lamar Milbourne was detected in the

specimens from the sexual assault evidence collection
kit of [K.M.].”
3T93:1-7. The parties also stipulated that none of the
fingerprints or palm prints recovered from the scene containing
sufficient characteristics for testing belonged to Petitioner.
3T93:8-14.
Petitioner was tried separately from his three codefendants. The State presented seven witnesses, including K.M.
and C.P. Both victims identified Petitioner in court as one of
the people who had attacked them and sexually assaulted K.M.
Petitioner presented two character witnesses and testified on
his own behalf. He testified that he had no involvement in the
events at the park. He stated the other defendants came to his
house late that night and told him they had “‘wowed out on this
couple,’” which Petitioner understood to mean they beat the
couple up. 8T36:3, 25. Petitioner told them to leave his house,
and the police arrived a few hours later. 8T37:20-25. He further
claimed that he only gave the statement to the police after they
called him derogatory racial names and told him they had already
beaten up Michael Hinson, who named Petitioner as being
involved. 8T32:1-16, 34:2 to 35:3. Petitioner stated the police
provided him with the details of the crime so that he would be
able to give a statement implicating his co-defendants in
exchange for being released. 8T44:14 to 14. He further indicated

he admitted to being present because Detective Zanni told him
“‘[b]eing there is not a crime,’” and to lend authenticity to
his statement against his co-defendants. 8T47:15 to 48:18.
The jury found Petitioner guilty of first-degree aggravated
sexual assault of K.M., N.J. STAT. ANN. § 2C:14–2(a); first-degree
kidnapping, N.J. STAT. ANN. § 2C:13–1(b); third-degree aggravated
assault, N.J. STAT. ANN. § 2C:12–16; third-degree criminal
restraint, N.J. STAT. ANN. § 2C:13–2(a); possession of a baseball
bat for an unlawful purpose, N.J. STAT. ANN. § 2C:39–4(d); seconddegree robbery N.J. STAT. ANN. § 2C:15–1(a); second-degree
conspiracy to commit robbery, N.J. STAT. ANN. § 2C:15–1(a)(1); and
disorderly persons simple assault, N.J. STAT. ANN. § 2C:12–1(a).
He was acquitted of second-degree aggravated assault of K.M. and
C.P., N.J. STAT. ANN. § 2C:12–1(b)(1), and third-degree
terroristic threats against both K.M. and C.P., N.J. STAT. ANN. §
2C:12–3(b).
Petitioner filed an appeal with the Appellate Division
challenging the exclusion of the DNA results, the sufficiency of
the evidence on the charge of kidnapping K.M., the kidnapping
jury instructions, admission of other bad acts evidence, lack of
a Wade hearing for C.P., the excessive sentence and fees, and
the admission of his statement. See Pet. App. Brief, Ra15. After
a limited remand to the trial court for consideration of a claim
not raised in Petitioner’s opening brief regarding the

warrantless arrest, the Appellate Division affirmed the
convictions but remanded to the trial court for resentencing.
State v. Milbourne, No. A-3068-04, 2007 WL 4355495 (N.J. Super.
Ct. App. Div. Dec. 14, 2007). The trial court resentenced
Petitioner to forty years with 85% parole ineligibility. The New
Jersey Supreme Court denied certification. State v. Milbourne,
945 A.2d 1287 (N.J. 2008).
Petitioner thereafter filed a PCR petition raising several
challenges to his trial and appellate counsels’ performances. He
particularly challenged trial counsel’s decision to enter into
the stipulation regarding the DNA evidence as well as counsel’s
performance during the Miranda hearing. See Pet. PCR Brief,
Ra39. The PCR court heard oral argument on May 14, 2010, 13T,
and denied the petition without an evidentiary hearing on July
30, 2010, 14T. The Appellate Division affirmed the decision of
the PCR court. State v. Milbourne, No. A-3313-10, 2012 WL
6195813, at *2 (N.J. Super. Ct. App. Div. Dec. 13, 2012),
certif. denied, 67 A.3d 1192 (N.J. 2013).
Petitioner filed a § 2254 petition on August 7, 2013.
Petition, Docket Entry 1. By Order dated August 15, 2013, this
Court 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. Mason Order, Docket Entry 2.
Petitioner elected to submit an amended petition on September

16, 2013. Respondent filed its answer on November 27, 2013, and
Petitioner submitted a traverse on February 24, 2014. On July
11, 2016, Petitioner submitted a supplement to his traverse
raising an actual innocence claim. July 11, 2016 Letter, Docket
Entry 17.
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).
“[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 raises the following points for this Court’s
review:
I.

The exclusion of exculpatory evidence that an
unknown person’s DNA was present in the material
collected from the female victim denied Petitioner
of his constitutional right to present a defense.

II.

The crime of kidnapping of the female victim was
unsupported by sufficient evidence because the
confinement was incidental to the other crimes[.]
Additionally, the jury instructions for both
kidnappings were deficient denying Petitioner’s
constitutional right to a fair trial and to due
process.

III. Repeated references to highly inflammatory evidence
that the Petitioner had planned to “beat up and rob
some Mexicans” and had attempted to rob someone
just before the incident, denied the Petitioner his

constitutional right to due process of law and of
a fair trial.
IV.

The
impermissibly
suggestive
show-up
of
Petitioner’s photograph to C.P. tainted his incourt identification depriving Petitioner of his
constitutional rights to due process and to a fair
trial.

V.

Petitioner has been denied effective assistance of
trial and appellate counsel pursuant to the U.S.
Constitution, Amendment VI and XIV.

VI.

Trial Counsel was ineffective in preparing and
arguing Petitioner’s motion to suppress his
statement before the trial court pursuant to
Miranda v. Arizona, 384 U.S. 436 (1966) (U.S. Cont.
Amend. XIV).

VII. Trial Counsel was ineffective in failing to object
and even eliciting prejudicial inadmissible hearsay
evidence in violation of Petitioner’s Sixth
Amendment right.
VIII.Trial counsel was ineffective by stipulating to
withhold from the jury that an unknown person’s DNA
was present in the evidence collected from the
female
victim
denying
Petitioner
of
his
constitutional right to a fair trial including the
right to effectively pursue a defense involving
“third party guilt.”
IX.

The Defendant failed to receive adequate legal
representation from trial counsel arising out of
the Miranda hearing.

X.

The Petitioner failed to receive adequate legal
representation from trial counsel as a result of
counsel entering into a stipulation regarding DNA
evidence rather than introducing the DNA test
results to affirmatively support a third party
guilt defense.

A. Challenges to Kidnapping Conviction
In Ground II, Petitioner adopts his appellate counsel’s
arguments in challenging the first-degree kidnapping
convictions. First, Petitioner argues the evidence at trial was
insufficient to convict him of kidnapping K.M. because “the
‘confinement’ of K.M. was inherent in the other crimes committed
against her.” Pet. App. Brief at 20.
He further asserts the jury instructions on kidnapping were
deficient for three reasons. He argues the trial court
instructed the jurors that “‘in determining whether the
confinement was substantial,’ they ‘may consider’” the factors
enumerated in La France. 6 Pet. App. Brief at 21 (quoting 8T112:21
to 113:3) (emphasis in original). “First, there is nothing
discretionary or optional about La France. The jury must
consider those factors. . . . Without requiring the jury to
consider the La France factors, the judge gave the jury the
option to ignore them, a critical error on a charge as serious
as kidnapping.” Id. (emphasis in original). He also argues

6

“A court may wish to use the Berry factors, suggesting to the
jury that it consider: (1) the duration of the detention; (2)
whether the detention occurred during the commission of a
separate offense; (3) whether the detention was inherent in the
separate offense; and (4) whether the detention created a
significant danger to the victim or another independent of that
posed by the separate offense.” State v. La France, 569 A.2d
1308, 1313 (N.J. 1990) (citing Gov't of Virgin Islands v. Berry,
604 F.2d 221, 227 (3d Cir. 1979)).

“nothing in the instructions informs the jurors that failure of
the State’s proofs on any of the La France factors should result
in an acquittal.” Id. at 21-22 (emphasis in original). Finally,
he argues the trial court failed “to charge accomplice liability
on the kidnapping charge respecting C.P. because the evidence
concerning defendant's actions in confining C.P. was
insufficient . . . .” State v. Milbourne, No. A-3068-04, 2007 WL
4355495, at *10 (N.J. Super. Ct. App. Div. Dec. 14, 2007).
1.
Whether there was sufficient evidence to convict
Petitioner of kidnapping K.M.
“[T]he critical inquiry on review of the sufficiency of
the evidence to support a criminal conviction must be not simply
to determine whether the jury was properly instructed, but to
determine whether the record evidence could reasonably support a
finding of guilt beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 318 (1979). “[T]he relevant question is
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.”
Id. at 319 (citing Johnson v. Louisiana, 406 U.S. 356, 362
(1972)).
New Jersey “defines kidnapping, in relevant part, as
unlawfully confining another for a substantial period, to either
(1) ‘facilitate commission of any crime or flight thereafter;’

or (2) ‘inflict bodily injury on or to terrorize the victim or
another.’ To support a conviction for kidnapping, the
confinement must be ‘criminally significant in the sense of
being more than merely incidental to the underlying crime.’”
Milbourne, 2007 WL 4355495, at *9 (quoting State v. La France,
569 A.2d 1308, 1313 (N.J. 1990)). “[O]ne is confined for a
substantial period if that confinement ‘is criminally
significant in the sense of being more than merely incidental to
the underlying crime,’ and that determination is made with
reference not only to the duration of the confinement, but also
to the ‘enhanced risk of harm resulting from the [confinement]
and isolation of the victim [or others]. That enhanced risk must
not be trivial.’” La France, 569 A.2d at 1313 (quoting State v.
Masino, 466 A.2d 955, 961 (1983)) (first alteration added).
Here, K.M. testified Petitioner took her cellphone, 5T9:1419; dragged her from her car, 5T9:3-12; held her against the
trunk, 5T10:2-7, hit K.M. in her side, 5T11:3-9; stole her car
keys and wallet, 5T11:18-25; removed her clothing, 5T12:5-19;
and proceeded to digitally penetrate her vagina and anus,
5T13:1-3, 13:20 to 14:1. A reasonable jury could conclude that
dragging K.M. out of her car “constitute[d] a separate danger
that substantially increase[d] the risk of harm . . . .” State
v. Brent, 644 A.2d 583, 592 (N.J. 1994)(finding elements of
first-degree kidnapping present where defendant attacked victim,

dragged her into wooded lot, and sexually assaulted her). A jury
could also reasonably conclude that Petitioner unlawfully
confined K.M. “for a substantial period in a place of isolation
with the intention, at a minimum, to inflict bodily injury on”
C.P. See Milbourne 2007 WL 4355495, at *10 (citing cases).
Moreover, the Appellate Division concluded that “[m]ost
importantly, the taking of K.M.'s car keys, cell phone, and
wallet, without knowledge that she had a spare key in the glove
compartment, was conduct that created an enhanced risk of harm
for both victims, who were left ostensibly without either a
means of transportation or a way to contact someone for help
after the perpetrators left.” Id. (internal citations and
quotation marks omitted). That in and of itself would support a
guilty verdict for first-degree kidnapping. See State v. Bryant,
524 A.2d 1291, 1296 (N.J. Super. Ct. App. Div.) (holding that
binding and gagging of robbery victims to facilitate defendant's
flight from premises constituted more than confinement
incidental to underlying robbery and supported kidnapping
conviction), certif. denied, 528 A.2d 24, cert. denied, 484 U.S.
978 (1987),

superseded on other grounds, State v. Drury, 919

A.2d 813 (2007). In short, the jury had several bases on which
to find Petitioner guilty of first-degree kidnapping.
Viewing the evidence presented at trial in the light most
favorable to the prosecution, this Court cannot conclude that

“no rational trier of fact could have found proof of guilt
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
324 (1979); accord McDaniel v. Brown, 558 U.S. 120, 132–33
(2010). The Appellate Division’s decision is reasonable based on
the facts adduced at trial, and is not contrary to, nor an
unreasonable application of, established federal law. 28 U.S.C.
§ 2254(d). Petitioner is therefore not entitled to relief on
this basis.
2.
Whether the trial court erred by implying the La
France factors were optional and by failing to instruct the
jury that it had to resolve all the La France factors in
the State’s favor.
Federal “habeas precedent places an especially heavy burden
on a defendant who . . . seeks to show constitutional error from
a jury instruction that quotes a state statute.” Waddington v.
Sarausad, 555 U.S. 179, 190 (2009) (internal citation and
quotation marks omitted). To show that the jury instruction
violated due process, Petitioner must show “both that the
instruction was ambiguous and that there was a reasonable
likelihood that the jury applied the instruction in a way that
relieved the State of its burden of proving every element of the
crime beyond a reasonable doubt.” Id. at 190-91 (internal
citation and quotation marks omitted). The instruction “must be
considered in the context of the instructions as a whole and the

trial record.” Id. at 191 (internal citation and quotation marks
omitted).
Moreover, “it is not enough that there is some slight
possibility that the jury misapplied the instruction, the
pertinent question is whether the ailing instruction by itself
so infected the entire trial that the resulting conviction
violates due process.” Id. (internal citation and quotation
marks omitted) (emphasis in original). “In other words, the
inquiry requires careful consideration of each trial's unique
facts, the narratives presented by the parties, the arguments
counsel delivered to the jurors before they retired to
deliberate, and the charge as a whole.” Williams v. Beard, 637
F.3d 195, 223 (3d Cir. 2011) (citing Waddington).
Petitioner has not carried his burden of proof in showing
that the jury instructions violated the Fourteenth Amendment.
The trial court charged the jury in relevant part as follows: 7
“A person is guilty of kidnapping if he unlawfully
confines another for a substantial period of with the
following purpose. That is, to inflict bodily injury or
to terrorize the victim or another.”
7

There were two counts of kidnapping for each victim. The
instructions were substantially the same for each count, except
one count for each victim was based on the confinement being for
the purpose of a commission of a crime or flight thereafter as
opposed to being for the purpose of the infliction of bodily
harm or terror. See N.J. STAT. ANN. § 2C:13-1(b)(1); 8T106:12-17.
The challenged portion of the instructions were the same for all
kidnapping counts. The Court references both victims as
Petitioner argues the deficient instruction invalidates all of
the kidnapping convictions.

In order for you to find the defendant guilty of
kidnapping, the State is required to prove each of the
following two elements.
First, that the defendant, Lamar Milbourne, unlawfully
confined [the victims] for a substantial period of time
– for a substantial period. That the confinement was
with the purpose to inflict bodily injury on or to
terrorize the victim or another. In relation to the
first element you will note that again I’ve used the
term “unlawfully confined.” A confinement is unlawful
if it is accomplished by force, threat or deception.
Unlawful confinement must be for a substantial period.
However, for this purpose a substantial period is not
measured in seconds, minutes or hours, nor by any other
standard based strictly upon the passage of time.
Rather, a substantial period is one that is significant,
in that it is more than incidental to the underlying
crime, robbery, and substantially increases the risk of
harm to the victim. That increased risk of harm must
not be trivial. If the victim is confined for only a
slight period of time and such confinement does not
create the isolation and increased risk of harm that
are at the heart of the kidnapping statute, then you
should not convict the defendant of the kidnapping
charge.
Therefore, in determining whether the confinement was
substantial, you may consider the duration of the
confinement, whether the confinement occurred during
the commission of a separate offense, whether the
confinement which occurred is inherent in the separate
offense, and whether the confinement created a
significant danger to the victim independent of that
posed by the separate offense.
The second element that the State is required to prove
is that the confinement was with a purpose to inflict
bodily injury on or to terrorize the victim or another.
. . . .
Therefore, if you find that the State has not proven to
you beyond a reasonable doubt each and every element of

the crime of kidnapping as I’ve defined that crime to
you, then you must find the defendant not-guilty.
8T111:15 to 113:7, 114:1-5.
Petitioner has cited no support for his allegation that the
La France factors are mandatory under the Fourteenth Amendment,
or that the instruction was ambiguous or misleading. Even if the
instruction was incorrect under New Jersey law, “the fact that
the instruction was allegedly incorrect under state law is not a
basis for habeas relief.” Estelle v. McGuire, 502 U.S. 62, 71-72
(1991). After considering the jury charge as a whole, this Court
cannot conclude there was a reasonable likelihood that the
error, if in fact there was one, resulted in the State being
relieved of its burden of proof on all elements of the offense.
The charge as a whole sufficiently conveyed to the jury the
necessary elements of kidnapping, namely that Petitioner
unlawfully confined C.P. and K.M. for a substantial period of
time and for a specific purpose, and that the State had to prove
those elements beyond a reasonable doubt or the jury had to
acquit Petitioner. The La France factors are not elements of
kidnapping that the State must prove beyond a reasonable doubt;
their purpose is to help the jury reach a decision on the
confinement element. When the entire charge is considered
alongside of the fact that Petitioner’s main argument to the
jury was that he did not participate in the crimes against C.P.

and K.M. at all, as opposed to not “substantially confining”
them, there is not a reasonable likelihood that using “may”
instead of “must” or failing to tell the jury that it had to
find all four La France factors in favor of the State so tainted
the instruction such that the State was relieved of its burden
of proof on the kidnapping charge.
3.
Whether the trial court should have instructed the
jury on accomplice liability 8
Petitioner also argues the trial court should have
instructed the jury on accomplice liability because there was
insufficient evidence to conclude he personally confined C.P. He
asserts the trial court “never informed the jury that when
evaluating the charge of kidnapping of C.P., only defendant’s
actions, not the actions of the others against C.P., were to be
considered.” Pet. App. Brief at 23 (emphasis in original). He
claims that in the absence of the instruction, he “was likely to
be evaluated in light of his co-defendants’ actions
(particularly those of Michael Hinson).” Id. at 24.
The Appellate Division determined Petitioner was not
entitled to the accomplice instruction under New Jersey law
because he acted as a principal in C.P.’s kidnapping. “[T]he
evidence established that defendant was substantially involved
in the confinement as well. Defendant was the first individual

8

Respondent’s answer does not address this point.

to contact C.P., punching him in the eye and dazing him so that
the others could more easily assault him. There was substantial
evidence in the record that throughout the ordeal defendant took
his turn confining C.P. to prevent him from aiding K.M.” State
v. Milbourne, No. A-3068-04, 2007 WL 4355495, at *10 (N.J.
Super. Ct. App. Div. Dec. 14, 2007); see also State v. Maloney,
77 A.3d 1147, 1156 (N.J. 2013) (“When the State's theory of the
case only accuses the defendant of being a principal, and a
defendant argues that he was not involved in the crime at all,
then the judge is not obligated to instruct on accomplice
liability.”). “[I]t is not the role of the federal courts to
review state court jury instruction rulings that are based on
state law[.]” Maloney v. Nogan, No. 14-1548, 2017 WL 1404322, at
*5 (D.N.J. Apr. 19, 2017) (citing Barkley v. Ortiz, 209 F. App'x
120, 124 (3d Cir. 2006) (rejecting claim based on the failure to
charge accomplice liability under state law)); see also Estelle
v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province
of a federal habeas court to re-examine state court
determinations on state-law questions.”).
To the extent Petitioner argues the evidence was
insufficient to convict him of being a principal in C.P.’s
kidnapping, the Appellate Division’s ruling is a reasonable
application of federal law. C.P. testified Petitioner struck him
as he attempted to exit the vehicle. 7T9:13-22. Petitioner also

took turns with his co-defendants keeping C.P. in the car by
hitting C.P. in the side, 7T23:16-25, and took K.M.’s car keys,
cellphone, and wallet. 5T11:18-25. “[T]he taking of K.M.'s car
keys, cell phone, and wallet, without knowledge that she had a
spare key in the glove compartment, was conduct that created an
enhanced risk of harm for both victims, who were left ostensibly
without either a means of transportation or a way to contact
someone for help after the perpetrators left.” State v.
Milbourne, No. A-3068-04, 2007 WL 4355495, at *10 (N.J. Super.
Ct. App. Div. Dec. 14, 2007) (internal citations and quotation
marks omitted). The Appellate Division’s conclusion is
reasonable based on the evidence presented at trial, and is not
contrary to or an unreasonable application of federal law. See
Jackson v. Virginia, 443 U.S. 307, 318 (1979).
The record also does not support Petitioner’s assertion
that the jury instructions were misleading. Early in the jury
instructions, the trial court informed the jury that it had to
determine “not only whether the State has proven each and every
element of the offense charged beyond a reasonable doubt, but
also whether the State has proven beyond a reasonable doubt that
this defendant is the person who committed it.” 8T99:6-10
(emphasis added). The kidnapping charge, as previously set
forth, references the need for the jury to consider the state’s
proofs against Petitioner. “In order for you to find the

defendant guilty of kidnapping, the State is required to prove
each of the following elements to you beyond a reasonable doubt.
First, that the defendant, Lamar Milbourne, unlawfully confined
[C.P.] for a substantial period. And that the confinement was
with the purpose to facilitate the commission of any crime or
flight thereafter.” 8T143:14-22 (emphasis added). The entirety
of the jury instructions makes it clear that the State had to
prove beyond a reasonable doubt that Petitioner’s personal
actions violated the law. Petitioner has provided nothing, and
there is nothing in the record, that would suggest there is a
reasonable likelihood that the jury misapplied the instructions
in a way that violated Petitioner’s Due Process rights.
Waddington v. Sarausad, 555 U.S. 179, 190-91 (2009). Petitioner
is not entitled to habeas relief on this basis.
C. Admission of Statements Regarding Intent to Rob “Mexicans”
Petitioner argues in Ground III that the admission of
testimony that he and his co-defendants set out on the night in
question to “rob some Mexicans” and attempted to rob someone
else was “highly inflammatory” and inadmissible under New Jersey
Evidence Rule 404(b). Pet. App. Brief at 25-26. This claim was
exhausted on direct appeal.
“Admissibility of evidence is a state law issue.” Wilson v.
Vaughn, 533 F.3d 208, 213 (3d Cir. 2008). This Court cannot
grant habeas relief for violations of state law. Estelle v.

McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of
a federal habeas court to reexamine state-court determinations
on state-law questions.”). Petitioner must be able to show that
admission of the testimony violated his federal constitutional
rights. “Admission of ‘other crimes’ evidence provides a ground
for federal habeas relief only if ‘the evidence's probative
value is so conspicuously outweighed by its inflammatory
content, so as to violate a defendant's constitutional right to
a fair trial.’” Bronshtein v. Horn, 404 F.3d 700, 730 (3d Cir.
2005) (quoting Lesko v. Owens, 881 F.2d 44, 52 (3d Cir. 1989)).
Petitioner has not cited any federal cases that would support
overturning his convictions on this ground.
Petitioner’s statements that he and his co-defendants
intended to rob somebody and attempted to rob someone prior to
encountering C.P. and K.M. show his intent to commit robbery.
The statements indicate he left his home for the specific
purpose of robbing someone and had to continue on that night
because they were unsuccessful at the first attempt. The
prejudicial effect of those statements cannot be said to “so
conspicuously outweigh” the probative value of the testimony.
Id. at 730. See also Estelle, 502 U.S. at 69-70 (holding
admission of prior injury evidence that was probative of intent
did not violate fair trial rights).

Even if the statements were admitted in error, such error
was harmless. The Supreme Court has held that “[t]o be entitled
to habeas relief, a habeas petitioner must establish that the
trial error ‘had [a] substantial and injurious effect or
influence in determining the jury's verdict.’” Johnson v. Lamas,
850 F.3d 119, 132 (3d Cir. 2017) (quoting Brecht v. Abrahamson,
507 U.S. 619, 637, (1993)) (second alteration in original). In
light of all the other evidence presented over three days of
trial, the Court cannot say that the brief mentions of
Petitioner’s statements had a “substantial and injurious effect”
on the verdict.
Petitioner’s request for habeas relief on this ground is
denied.
D. Pre-Trial Photographic Show-Up
Petitioner argues in Ground IV that C.P.’s in-court
identification was tainted due to an impermissibly suggestive
photographic show-up procedure. The Appellate Division held that
C.P.’s identification during trial “was based on his independent
recollection of the events at the scene and not the photographs
shown to him at police headquarters following defendant's
arrest. In other words, under the totality of the circumstances,
C.P.'s identification was reliable.” State v. Milbourne, No. A3068-04T4, 2007 WL 4355495, at *8 (N.J. Super. Ct. App. Div.

Dec. 14, 2007) (citing Neil v. Biggers, 409 U.S. 188, 199–200
(1972)).
“[C]onvictions based on eyewitness identification at trial
following a pretrial identification by photograph will be set
aside on that ground only if the photographic identification
procedure was so impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable misidentification.”
Simmons v. United States, 390 U.S. 377, 384 (1968). 9 “This
determination . . . depends on the totality of the factual
circumstances present in the case.” United States v. Stevens,
935 F.2d 1380, 1389 (3d Cir. 1991) (citing Simmons, 390 U.S. at
383). The Court conducts a two-pronged inquiry in determining
whether the totality of the circumstances surrounding the
identification violates the Due Process Clause. Id.
The Court must first consider “whether the initial
identification procedure was ‘unnecessarily’ or ‘impermissibly’
suggestive. This inquiry actually contains two component parts:
‘that concerning the suggestiveness of the identification, and

9

The Appellate Division did not specifically reference Simmons
and applied Biggers and Manson v. Brathwaite, 432 U.S. 98
(1977). Although Biggers and Manson concern the admissibility of
out-of-court identifications after suggestive identification
procedures, not in-court identifications as is relevant here,
the Appellate Division’s decision is not contrary to Simmons
because the tests set forth in Biggers and Manson inform the
Simmons determination. 28 U.S.C. § 2254(d)(1); see also Stevens,
935 F.2d at 1390–91.

that concerning whether there was some good reason for the
failure to resort to less suggestive procedures.’” Id. (quoting
1 W. LaFave & J. Israel, Criminal Procedure § 7.4(b), at 581
(1984)) (emphasis in original). The Appellate Division declined
to address whether the identification procedure was suggestive.
Milbourne, 2007 WL 4355495, at *8–9. The Court therefore reviews
this factor de novo, Porter v. McCollum, 558 U.S. 30, 39 (2009);
Rompilla v. Beard, 545 U.S. 374, 390 (2005), and finds that the
identification procedure was suggestive.
The record indicates that police officers interviewed K.M.
and C.P. at the hospital, at which time C.P. indicated he
recognized one of the attackers as a former classmate, Michael
Hinson. C.P. Statement, Ra55 at 11. Sergeant Crispin later
conducted a line-up with Hinson, and C.P. positively identified
him. 2T81:25 to 82:1. Hinson named Petitioner and the other codefendants as being involved, and police arrested the other
three individuals. 2T85:2-5. Approximately twenty-four hours
later, Sergeant Crispin interviewed C.P. and showed him
photographs of the four arrestees, including Petitioner.
2T81:11-19; see also C.P. Statement. The police informed C.P.
that these were the people responsible for the attacks, and
asked him to state the actions each person took. See 2T85:17-20
(“[C.P.] was shown the four photographs so that when he gave his
statement as to what happened to him, if possible, he would be

able to tell them which person did what.”). No other photographs
were shown to C.P.
The State informed the trial court that “Sergeant Crispin
knew that each of those people had admitted being at the
location. So there was really no question as to whether [the
victims were] going to pick out the wrong person. [They were]
simply asked, can you tell us what any of these people did as
part of [their] statement to the – to Sergeant Crispin.”
2T85:10-15. The purpose of photographic identification is to see
if the victims are able to identify the alleged attackers,
however.
The identification process became unnecessarily suggestive
when C.P. was told the photographs were of people who police had
arrested for attacking him and K.M. See Simmons v. United
States, 390 U.S. 377, 383 (1968) (“The chance of
misidentification is also heightened if the police indicate to
the witness that they have other evidence that one of the
persons pictured committed the crime.”). Furthermore, nothing in
the record suggests there were circumstances warranting the
suggestive identification procedure. All of the alleged
perpetrators were in custody prior to the interview; there was
no urgency to identify the actors in order to get them off the
streets. See id. at 384. C.P. was not in any precarious
situation in which he might not be able to identify Petitioner

in a more traditional setting. See Stovall v. Denno, 388 U.S.
293, 302 (1967) (finding show up bringing defendant to victim’s
hospital bed was permissible because “an immediate hospital
confrontation was imperative” as “[n]o one knew how long
[victim] might live”). Based on the record before the Court, the
photographic show-up was unnecessarily suggestive.
“If the procedure is found to have been unnecessarily
suggestive, the next question is whether the procedure was so
‘conducive to . . . mistaken identification’ or gave rise to
such a ‘substantial likelihood of . . . misidentification’ that
admitting the identification would be a denial of due process.”
United States v. Stevens, 935 F.2d 1380, 1389 (3d Cir. 1991)
(omissions in original). In other words, “whether under the
‘totality of the circumstances' the identification was reliable
even though the confrontation procedure was suggestive.” Neil v.
Biggers, 409 U.S. 188, 199 (1972); see also Manson v.
Brathwaite, 432 U.S. 98, 114 (1977). The Court reviews the
Appellate Division’s decision on this prong with the appropriate
AEDPA deference.
“[T]he factors to be considered in evaluating the
likelihood of misidentification 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 at confrontation, and the length of time between
the crime and the confrontation.” Biggers, 409 U.S. at 199–200.
Based on the record before the Court, and according the
Appellate Division’s decision the appropriate deference, the
Court finds the Appellate Division reasonably applied federal
law in concluding the in-court identification was reliable even
if the identification was suggestive.
C.P. testified he was able to see Petitioner drag K.M. out
of the car as the interior lights were on in K.M.’s car. 7T5:1517, 8:11-18. He further testified Petitioner hit him above his
eyebrow while C.P. was still in the car, putting him in close
proximity to Petitioner. 7T9:13-22. He stated he was forced to
watch Petitioner and his co-defendants sexually assault K.M. for
a “fairly lengthy” period of time. 7T19:10-21. C.P. estimated he
was less than 10 feet away from K.M. while Petitioner assaulted
her. 7T22:8-17. C.P.’s statement to police describing
Petitioner’s actions to police occurred within twenty-four hours
of the crime. See C.P. Statement. The Appellate Division
therefore reasonably determined that C.P. was actively paying
close attention to the events unfolding around him, had
sufficient opportunity to identify Petitioner from his
participation, and described those actions to police shortly
after the commission of the crimes.

The Court notes the state court used trial as the time of
“confrontation” for two factors, noting C.P. “positively
identified defendant without hesitation at trial” and
“accurately described defendant based upon his recollection at
the scene,” but used the photographic show-up as the
“confrontation” for the length of time between the crime and the
confrontation. State v. Milbourne, No. A-3068-04, 2007 WL
4355495, at *8 (N.J. Super. Ct. App. Div. Dec. 14, 2007).
However, the state court gave great weight to C.P.’s ample
opportunity to watch and interact with Petitioner at close
proximity during the crime and the fact that “C.P. was not a
casual observer.” See id. This Court therefore cannot say that
it was an unreasonable determination that the totality of the
circumstances indicated C.P.’s in-court identification was
reliable. It is therefore a reasonable conclusion that the
suggestiveness in the identification procedure did not create “a
very substantial likelihood of . . . misidentification.” Simmons
v. United States, 390 U.S. 377, 384 (1968). See also Perry v.
New Hampshire, 565 U.S. 228, 232 (2012) (“[I]f the indicia of
reliability are strong enough to outweigh the corrupting effect
of the . . . suggestive circumstances, the identification
evidence ordinarily will be admitted, and the jury will
ultimately determine its worth.” (citing Simmons)). The factual
determinations by the Appellate Division were reasonable, and

the Court cannot say that its decision to find the totality of
the circumstances weighed in favor of reliability was contrary
to or an unreasonable application of federal law. The Court will
deny habeas relief on this ground.
E. Ineffective Assistance of Counsel
The remainder of Petitioner’s claims are allegations of
ineffective assistance of trial and appellate counsels.
Petitioner must “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.

Whether Trial Counsel was ineffective in preparing and
arguing Miranda motion (Grounds VI and IX)

Petitioner’s first argument regarding the effectiveness of
his trial counsel concerns the January 5, 2004 Miranda hearing.
2T. He alleges trial counsel erred by failing to argue that the
Miranda warnings provided by Officer Patitucci in the car were
deficient because Officer Patitucci failed to inform him that an
attorney would be provided to him if he was unable to afford
one. Pet. PCR Brief at 20. He also asserts the warnings he
received prior to giving his taped statement were insufficient
because he had already been interrogated, id. at 24-25, and that
trial counsel neglected to sufficiently consult with him prior
to the hearing and advise Petitioner of his right to testify
during the hearing, id. at 27-28.
The PCR court determined Petitioner had not demonstrated
either prong of the Strickland analysis. 14T30:4-5. The court
stated that “[a]lthough his recitation of the Miranda rights at
the Miranda hearing did not include the right to appointed
counsel, Detective Patitucci testified at trial that he advised
Petitioner of his right to appointed counsel during this initial
reading.” 14T30:17-22. “Moreover, upon arrival at city hall, and
prior to any interrogation, Petitioner was again read his
rights, and reviewed and signed a Miranda card.” 14T30:23-25.
“Although [Detective] Patitucci could not remember whether or

not he read the card to Petitioner, Detective [Zanni] testified
that Patitucci read Petitioner his rights prior to Petitioner
signing the Miranda card.” 14T31:21-25; see also 2T57:13-22. The
PCR court did not credit Petitioner’s allegations that his
statement was coerced, and concluded that there was no prejudice
to trial counsel’s failure to consult with Petitioner as there
was not a reasonable likelihood the result of the hearing would
have been different.
The PCR court reasonably applied federal law in determining
counsel did not err by not arguing that Detective Patitucci did
not comply with Miranda. Even if Detective Patitucci did leave
out the right to appointed counsel when warning Petitioner in
the car, the omission was corrected by the Miranda card
Petitioner signed prior to being interrogated. Siebert does not
apply in this situation because Petitioner was not repeating a
statement he had given prior to receiving the complete Miranda
warnings. Missouri v. Siebert, 542 U.S. 600 (2004) (plurality)
(holding that “midstream recitation of warnings after
interrogation and unwarned confession” does not comply with
Miranda). “In Seibert, the suspect's first, unwarned
interrogation left ‘little, if anything, of incriminating
potential left unsaid,’ making it ‘unnatural’ not to ‘repeat at
the second stage what had been said before.’” Bobby v. Dixon,
565 U.S. 23, 31 (2011) (quoting Seibert, 542 U.S. at 616-17

(plurality opinion)). Here, Detectives Patitucci and Zanni did
not interrogate Petitioner in the car; Petitioner gave his first
incriminating statement after receiving the written Miranda card
and receiving the complete warnings. The “question-first” tactic
employed by the police and rejected by the Supreme Court in
Seibert did not occur in this instance. Therefore, the PCR court
correctly and reasonably applied federal law when it determined
trial counsel did not err by not raising this argument, and its
decision is based on a reasonable determination of the facts
based on the record before it. Petitioner is not entitled to
habeas relief on this ground.
Petitioner further argues trial counsel was ineffective
while preparing for and participating in the Miranda hearing
because he failed to sufficiently consult with Petitioner and
advise Petitioner of his right to testify during the hearing.
Essentially, Petitioner asserts his taped statement was the
product of police coercion and therefore involuntary, and trial
counsel’s failure to call Petitioner as a witness resulted in
the admission of the statement.
“The ultimate question in the voluntariness calculus is
‘whether, under the totality of the circumstances, the
challenged confession was obtained in a manner compatible with
the requirements of the Constitution.’” Fahy v. Horn, 516 F.3d
169, 194 (3d Cir. 2008) (quoting Miller v. Fenton, 474 U.S. 104,

112 (1985)). “[T]he ultimate issue of ‘voluntariness' is a legal
question requiring independent federal determination.” Miller,
474 U.S. at 109-10. However, “subsidiary questions, such as the
length and circumstances of the interrogation, the defendant's
prior experience with the legal process, and familiarity with
the Miranda warnings . . . are conclusive on the habeas court if
fairly supported in the record and if the other circumstances
enumerated in § 2254(d) are inapplicable.” Id. at 117.
As previously discussed, Petitioner was sufficiently
advised of his Miranda rights prior to giving his untaped
statement. 10 The trial court concluded Petitioner’s taped
statement began forty-five minutes after beginning to speak with
police, with a total time of “approximately three or three and a
half [hours] or less for the entire transaction, from the time
of arrest until the end of tape.” 2T79:19-21. The trial court
had the benefit of listening to the taped statement and found
that “there was no indication Mr. Milbourne was so tired as to
have been oppressed by the interrogation or the questioning.”
2T80:2-4. It further determined the officers’ tones “were not,
in any fashion, threatening. They were more conversational in
nature.” 2T80:5-7. “I’m satisfied, having heard the testimony

10

Petitioner admitted during cross-examination at trial that he
“understood [his rights] at the time” of his statement.
8T53:17.

and heard the testimony of the police, that their testimony was
credible and believable.” 2T80:12-14. The PCR court also noted
that “Petitioner was in his early 20’s at the time of the
questioning, had graduated from high school, and served in the
military, and had average intelligence. This was not a lengthy
detention and interrogation.” 14T34:9-12. These factual
determinations are reasonably supported by the record.
After reviewing Petitioner’s allegations of psychological
intimidation, allegations of threats of physical force, and
claims that he attempted to invoke the right to counsel, the PCR
court determined “Petitioner simply is not a credible witness;
his claims are clearly baseless, and would not have affected the
outcome of his hearing.” 14T33:18-20. “His claim that his
codefendants implicated him as a result of excessive police
coercion, and that he only provided a confession under the
premise that there would be no penal consequences was heard and
rejected by the jury.” 14T33:21-25. The PCR Court’s credibility
determination, its determination that the police did not use
improper intimidation, and its determination that Petitioner did
not attempt to invoke his Miranda rights are entitled to
deference as they are supported by the testimony at the Miranda
hearing and the transcript of Petitioner’s taped statement, and
Petitioner has not rebutted the presumption of correctness by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1). See also

Fahy, 516 F.3d at 196; Miller, 474 U.S. at 112 (noting “whether
in fact the police engaged in the intimidation tactics alleged
by the defendant” is entitled to § 2254 deference (citing
LaVallee v. Delle Rose, 410 U.S. 690, 693–95 (1973) (per
curiam))).
Considering the facts as determined by the state courts,
the Court is satisfied the totality of the circumstances
indicate that Petitioner knowingly and voluntarily waived his
Miranda rights. After reviewing the Miranda hearing transcript,
the transcript of Petitioner’s taped statement, and the
arguments presented to the PCR court, the Court concludes
Petitioner’s will was not overborne by police misconduct. See
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973); Culombe v.
Connecticut, 367 U.S. 568, 581-84 (1961). In his taped
statement, Petitioner “[swore] on a bible” that he had been
treated fairly, gave the statement freely, and had not been
promised anything in exchange for the statement. Milbourne
Statement, Ra53 at 16-17. Ultimately, there is no doubt that
under the circumstances his statements were voluntary as they
were “obtained in a manner comfortable with the requirements of
the Constitution.” Fahy, 516 F.3d at 194.
Moreover, it was also a reasonable determination that
Petitioner did not clearly and unambiguously invoke his right to
remain silent or to have an attorney present during

interrogation. 14T35:16-24. Petitioner’s allegation that he
asked for an attorney is qualified by his trial testimony, in
which he testified he asked the detectives if the judge would
“send [him] an attorney now[.]” 8T46:13-14. Under established
federal law at the time of the Miranda hearing and trial,
invocation of the Miranda right to an attorney must be
unambiguous. Davis v. United States, 512 U.S. 452, 459 (1994).
According to his trial testimony, Petitioner only asked if an
attorney would be available to him at approximately 2:00 in the
morning; he did not clearly and unambiguously state he did not
want to speak with detectives until one arrived. “In Miranda
itself, [the Supreme Court] expressly rejected the suggestion
‘that each police station must have a “station house lawyer”
present at all times to advise prisoners . . . .’” Id. at 460
(quoting Miranda v. Arizona, 384 U.S. 436, 474 (1966)). At best,
this is an ambiguous request for counsel, which under federal
law is insufficient to invoke Miranda. See also Berghuis v.
Thompkins, 560 U.S. 370, 381-82 (2010) (holding invocation of
Miranda right to remain silent must be unambiguous). The PCR
court’s determination that Petitioner did not invoke his Miranda
rights is reasonably supported by the record, and is not
contrary to, nor an unreasonable application of, established
federal law.

As the Court independently determines Petitioner gave a
voluntary statement, the state courts’ conclusions that trial
counsel did not render ineffective assistance are not an
unreasonable application of, or contrary to, federal law.
Because Petitioner’s statement to the detectives was admissible,
there is not a reasonable probability that the Miranda hearing
would have turned out differently even if Petitioner had
testified. Moreover, when he did testify at trial, he conceded
he understood his rights at the time 11, and he acknowledged in
his taped statement that he had been treated fairly. See Ra53 at
16-17, supra. The state courts therefore applied Strickland
reasonably when they determined Petitioner had not shown he was
prejudiced. Petitioner is not entitled to habeas relief on this
basis. See United States v. Cross, 308 F.3d 308, 315 (3d Cir.
2002)(“[F]ailure to satisfy either prong defeats an ineffective
assistance claim[.]”).
2.

Whether trial counsel was ineffective for failing to
object to and/or eliciting prejudicial inadmissible
hearsay (Ground VII)

Petitioner further argues trial counsel was ineffective for
failing to object to mentions that Hinson implicated Petitioner
in the crime as well as eliciting them directly. The PCR court
concluded trial counsel’s actions were “a central aspect of

11

See n.10, supra.

Petitioner’s defense.

Petitioner claimed that police used

physical coercion on the other defendants to obtain statements
implicating Petitioner in the crime, and that police told
petitioner of these allegations to coerce a false confession
from him.” 14T36:22 to 37:2.
“[T]he admission of a confession of a codefendant who did
not take the stand deprive[s] the defendant of his rights under
the Sixth Amendment Confrontation Clause, when that confession
implicate[s] the defendant.” Schneble v. Florida, 405 U.S. 427,
429–30 (1972) (citing Bruton v. United States, 391 U.S. 123
(1968)). The Court denies habeas relief on this point because
even if counsel did err, Petitioner was not prejudiced. 12
The references to Hinson’s statements were made in passing
and were fairly vague as to Petitioner’s involvement. For
example, trial counsel stated in opening arguments that “[the
police] lean[ed] on Mr. Hinson. And after a while Mr. Hinson
gives up some other names. One of those was Lamar Milbourne. . .
. The police officers rush out. Grab up those people. Bring them
to the police station. . . . [T]wo veteran detectives sit
[Petitioner] down and tell him that Mike Hinson is inculpating

12

The Court reviews the prejudice prong de novo as the PCR court
only decided trial counsel did not err, and the Appellate
Division adopted the PCR court’s reasoning. State v. Milbourne,
No. A-3313-10, 2012 WL 6195813, at *3 (N.J. Super. Ct. App. Div.
Dec. 13, 2012)

him in a horrible crime in Bridgeton.” 3T38:25 to 39:15.
Detective Zanni testified that Petitioner began cooperating once
Detective Zanni mentioned “we had currently another subject that
we were talking to and implicated Mr. Milbourne in the
incident.” 6T50:1-3. During cross-examination, Detective Zanni
stated Petitioner “was advised that I spoke to Mr. [Hinson]” and
that the purpose in telling him that was “[t]o let [Petitioner]
know that we knew what happened in the park.” 6T61:6, 10-11.
Petitioner later testified police told him that he “was under
arrest for rape. And they said that Mike was upstairs. Michael
Hinson was upstairs telling them that [Petitioner] was there
with them.” 8T34:24 to 35:1. The state also responded to trial
counsel’s allegations that police “were going out of their way
to arrest somebody or anybody of these crimes” by stating police
caught a “lucky break” when C.P. recognized Hinson, who in turn
named Petitioner as being present. 9T4:8-9, 24-25.
These statements at most placed Petitioner at the scene,
something he himself admitted in his statement to police. The
evidence of Petitioner’s actual involvement and participation in
the assault, kidnapping, sexual assault, and other charges came
from people who testified at trial. The two victims, K.M. and
C.P., testified as to Petitioner’s involvement in the crime.
Petitioner also admitted to assaulting C.P. in his statement.
The brief mentions of Hinson’s statements did not go into

specific details as to what Hinson claimed Petitioner did and
“added little to [the] compelling evidence against” Petitioner.
Compare Bond v. Beard, 539 F.3d 256, 276 (3d Cir. 2008), as
amended (Oct. 17, 2008) (finding Bruton error harmless on habeas
review where eyewitness identified defendant and defendant
admitted the shooting but argued confession was coerced), and
Sanders v. Klem, 341 F. App’x 839, 843 (3d Cir. 2009)
(Bruton error harmless on habeas review), with Holland v.
Attorney Gen. of N.J., 777 F.2d 150, 157–59 (3d Cir. 1985)
(Bruton error not harmless on habeas review where defendant did
not admit crime and no eyewitness placed defendant at scene at
the time of crime).
Because any error in mentioning the statements was
harmless, Petitioner cannot show he was prejudiced by trial
counsel’s actions. His ineffective assistance of counsel claim
fails on this basis.
3.

Whether trial counsel was ineffective for stipulating
to withhold from jury that unknown person’s DNA was
present on K.M. (Grounds I, VII, and X)

Petitioner claims trial counsel was ineffective for
agreeing to enter into a stipulation regarding the DNA evidence
instead of focusing on a third-party guilt defense. 13 The PCR

13

Petitioner also argues that the trial court erred by excluding
the DNA results from evidence. As noted by the Appellate
Division on the PCR appeal, the trial court did not exclude the

court and Appellate Division, which adopted its position from
Petitioner’s direct appeal, found that Petitioner had not
established prejudice. See State v. Milbourne, No. A-3313-10,
2012 WL 6195813, at *3–4 (N.J. Super. Ct. App. Div. Dec. 13,
2012) (citing State v. Milbourne, No. A-3068-04T4, 2007 WL
4355495, at *5-7 & n.2 (N.J. Super. Ct. App. Div. Dec. 14,
2007)); see generally 14T.
The stipulation specifically informed the jury that
Petitioner’s DNA was not found in the specimens from K.M:
“Specimens from the
kit . . . of [K.M.]
were sent to the
analysis. No DNA of
specimens from the
kit of [K.M.].”

sexual assault evidence collection
and specimens from Lamar Milbourne
New Jersey State Police Lab for
Lamar Milbourne was detected in the
sexual assault evidence collection

3T93:1-7. The logical inference from that is any DNA found on
K.M. belonged to someone other than Petitioner. Trial counsel
highlighted this fact in closing, stating that “there’s no DNA.
This incident apparently – on [sic] if you believe the stories
from between 20 minutes and an hour. The guys are having oral
sex and vaginal sex. And there’s rape. And all these things are
going on. There’s a rape kit taken. And the DNA doesn’t match my

evidence. State v. Milbourne, No. A-3313-10, 2012 WL 6195813, at
*4 (N.J. Super. Ct. App. Div. Dec. 13, 2012). The evidence was
not presented at trial because trial counsel agreed with the
State not to introduce it. The Court considers everything under
the ineffective assistance of counsel claim as there is no trial
court ruling to review.

client. There’s no physical evidence.” 8T79:1-7 (emphasis
added). Additionally, “contrary to Petitioner’s current claims,
he did present a third-party defense, alleging that the attack
was committed by his codefendants. . . . Petitioner was not
convicted on DNA evidence. He was convicted on the testimony of
the victims, as well as his own confession to police.” 14T39:20
to 40:2. The jury was aware that Petitioner’s DNA and
fingerprints were not found on K.M. or the crime scene, and that
it was Petitioner’s position that his co-defendants committed
the rape and robbery and falsely accused him due to police
misconduct. Therefore, the state courts reasonably applied
Strickland in determining Petitioner had not established the
prejudice prong.
Petitioner is not entitled to habeas relief on this ground.
4.

Whether appellate counsel was ineffective for failing
to raise the above claims (Ground V)

Petitioner’s final claim of ineffective assistance of
counsel is that his appellate counsel was ineffective for
failing to raise trial counsel’s “errors which occurred before
the trial court.” Pet. PCR Brief at 46. In determining whether
appellate counsel was ineffective, the Court applies the
Strickland standard. See Smith v. Robbins, 528 U.S. 259, 285-86
(2000); Smith v. Murray, 477 U.S. 527, 535–536 (1986). To
establish the prejudice prong, Petitioner must show “that there

is a ‘reasonable probability’ — ‘a probability sufficient to
undermine confidence in the outcome,’ but less than a
preponderance of the evidence — that his appeal would have
prevailed had counsel's performance satisfied constitutional
requirements.” United States v. Cross, 308 F.3d 308, 315 (3d
Cir. 2002) (quoting Strickland, 466 U.S. at 694–95).
Other than the mere fact that the ineffective assistance of
counsel claims were not raised on appeal, Petitioner has set
forth no facts or supporting case law to support his contention
that appellate counsel was ineffective. Appellate attorneys are
not constitutionally required to raise every theoretical issue
on appeal, see United States v. Turner, 677 F.3d 570, 577-78 (3d
Cir. 2012), and the New Jersey courts have frequently stated
that “[i]neffective-assistance-of-counsel claims are
particularly suited for post-conviction review because they
often cannot reasonably be raised in a prior proceeding.” State
v. Preciose, 609 A.2d 1280, 1285 (N.J. 1992). Moreover,
Petitioner cannot show he was prejudiced by appellate counsel’s
failure to raise the claims on direct appeal as this Court has
already concluded that the state courts reasonably applied
Strickland to trial counsel’s performance. There is therefore
not a reasonable probability that the appeal would have turned
out differently had appellate counsel raised the arguments on

direct appeal. The state courts therefore reasonably applied
Strickland to appellate counsel’s performance.
F. Actual Innocence
After the completion of briefing, Petitioner submitted a
new claim of actual innocence, arguing that no reasonable juror
would have convicted him if the DNA evidence would have been
admitted into evidence. July 11, 2016 Letter (citing Schlup v.
Delo, 513 U.S. 298 (1995)).
Petitioner is not entitled to relief under Schlup. Schlup
does not provide for an independent basis of habeas relief.
Instead, it provides a “gateway” method by which procedurally
defaulted claims may be heard in federal court on their merits:
“prisoners asserting innocence as a gateway to defaulted claims
must establish that, in light of new evidence, ‘it is more
likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt.’” House v. Bell,
547 U.S. 518, 536–37 (2006) (quoting Schlup, 513 U.S. at 327).
Schlup does not apply to Petitioner’s claims because he is not
asking the Court to excuse a procedural default in order to have
it consider his ineffective assistance claim on its merits.
Petitioner’s ineffective assistance of counsel claim was
properly exhausted in the state courts; therefore, Schlup does
not apply.

Even if Schlup did apply, Petitioner would not qualify for
relief under its standard. The fact that the DNA found on K.M.
did not match Petitioner’s DNA is not new evidence; it was
available at trial and was presented to the jury in the form of
the stipulation. Petitioner has presented this Court with no new
evidence that was not presented at trial. The jury was aware
that Petitioner’s DNA was not found on K.M. and convicted him
anyway in light of the strong evidence of his guilt including
his own confession and eyewitness testimony. Petitioner has not
met Schlup’s stringent standard for relief.
To the extent Petitioner is attempting to bring a
“freestanding” actual innocence claim, such a claim would be
unexhausted as it was not presented to the state courts. But see
28 U.S.C. § 2254(b)(2)(“ An application for a writ of habeas
corpus may be denied on the merits, notwithstanding the failure
of the applicant to exhaust the remedies available in the courts
of the State.”). Moreover, it is not clear that there is an
established federal right to bring such a claim. See Herrera v.
Collins, 506 U.S. 390, 417 (1993) (assuming without deciding
“that in a capital case a truly persuasive demonstration of
‘actual innocence’ made after trial would render the execution
of a defendant unconstitutional, and warrant federal habeas
relief if there were no state avenue open to process such a
claim”); see also Dist. Attorney's Office for Third Judicial

Dist. v. Osborne, 557 U.S. 52, 71 (2009) (“Whether such a
federal right exists is an open question.”). Even if such right
existed, Petitioner would not be entitled to relief because the
standard for relief under Herrera is stricter than that for
“gateway” relief under Schlup. See House, 547 U.S. at 555;
Albrecht v. Horn, 485 F.3d 103, 122 (3d Cir. 2007). As
Petitioner has not met Schlup’s standard for relief, he has not
met Herrera’s “extraordinarily high” standard.
G. 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
resolution of the 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.

July 27, 2017
Date

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