HAMILTON v. NOGAN et al

Filing 11

OPINION. Signed by Judge Renee Marie Bumb on 12/21/2016. (tf, n.m.)

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

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ABDUS SAMAD HAMILTON,
Petitioner,
v.
PATRICK NOGAN, et al.,
Respondents.

Civil Action No. 14-1581(RMB)

OPINION

BUMB, District Judge
This

matter

comes

before

the

Court

upon

the

Amended

Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 (Am.
Pet.,

ECF No. 3) filed by Abdus Samad Hamilton (“Petitioner”),

an inmate confined in New Jersey State Prison in Trenton, New
Jersey.

Respondent

filed

an

Answer

opposing

habeas

relief.

(Answer, ECF No. 10.)
I.

PROCEDURAL HISTORY
On

August

14,

2000,

Lewis

Palmer,

Andrew

Dennis

and

Petitioner were charged in Superior Court in Atlantic County,
New Jersey, with first-degree armed robbery, assault, burglary,
criminal

restraint,

purpose,

unlawful

possession
possession

of
of

1

a
a

weapon
weapon,

for
and

an

unlawful

conspiracy.

Petitioner was convicted on May 31, 2001. The trial judge
denied Petitioner’s motion for a new trial. He was sentenced to
an aggregate term of imprisonment of thirty-years with a 25 ½
year period of parole ineligibility, and five-year period of
supervised release.
Petitioner

appealed.

On

June

29,

2004,

the

Appellate

Division denied Petitioner’s appeal, and the New Jersey Supreme
Court

denied

certification

on

January

13,

2005.

State

v.

Hamilton, Doc. No. A-422-01T4 (N.J. Super. Ct. App. Div. June
29, 2004) certif. denied 182 N.J. 428 (2005) (“Hamilton I”) (ECF
No. 10-14; 10-15.) Petitioner filed a pro se petition for postconviction relief, and the PCR Court held a hearing on March 4,
2010, and denied relief (“Hamilton II”), (ECF No. 10-11.) The
Appellate

Division

affirmed

the

PCR

Court

on

June

4,

2012

(“Hamilton III”), (ECF No. 10-23), and the New Jersey Supreme
Court denied certification on March 12, 2013 (ECF No. 10-25.)
Before

this

Court

is

Petitioner’s

Amended

Petition

under

28

U.S.C. § 2254 for Writ of Habeas Corpus by a person in State
Custody,

raising

eleven

grounds

for

relief,

and

Respondent’s

Answer.
II.

BACKGROUND
The factual background in this matter was summarized by the

New Jersey Superior Court, Appellate Division upon Petitioner’s
direct appeal. Petitioner’s appeal was consolidated with that of
2

his two co-defendants, Lewis Palmer and Andrew Dennis. Hamilton
I,

(ECF

Lonell

No.

10-14.)

Blagrove,

On

and

August

Levine

14,

2000,

Dickerson

Christopher

were

living

Tuten,
in

an

apartment in Atlantic City, New Jersey. Blagrove and Dickerson
were brothers. Tuten was a reputed drug dealer, and Dickerson
occasionally worked for him, but Blagrove did not.
In August 2000, Blagrove had back surgery. When he returned
home, he was wearing a back brace and taking pain medication.
Around 8:30 a.m. on August 14, 2000, Tuten left the apartment to
run errands. Dickerson and Blagrove remained. While waiting for
a

cab,

Tuten

met

Defendant

Dennis,

whom

he

knew

as

a

drug

customer by the street name of Chauncy Fitzgerald or Fat Boy.
Dennis inquired when Tuten would return so they could discuss
business. Tuten told him 45 minutes. Dickerson observed this
encounter from the window of the apartment, but he could not
hear the conversation.
One

hour

later,

Dennis

appeared

at

the

door

of

the

apartment and asked Dickerson to let him in to wait for Tuten to
return. Dickerson told Dennis that Tuten was not selling drugs
from

the

apartment.

Defendant

Palmer,

who

had

been

standing

behind the door, stepped forward and told Dickerson to back up.
Dennis,

Palmer

and

Petitioner

stepped

into

the

apartment.

Blagrove walked in the room and recognized Dennis as a repeat

3

customer of Tuten. Blagrove and Dickerson recognized Palmer as
their cousin. They did not know Petitioner.
Palmer

and

Dennis

had

heard

that

Tuten

had

$40,000

to

$50,000 stashed in the apartment and demanded to know where it
was. Blagrove and Dickerson denied there was any money. Palmer
apologized because he had not known that Tuten lived with his
cousins.
Palmer

and

Petitioner

each

removed

an

automatic

handgun

from under their shirts. Palmer showed Blagrove and Dickerson
that his gun was not loaded. Dennis appeared to be unarmed, and
he asked for Tuten’s weapon. Palmer told Dennis and Petitioner
that Tuten was fair game, but Dickerson and Blagrove were not.
Dickerson and Blagrove were put in the back bedroom, but they
could hear what was happening in the living room.
When Tuten knocked on the door, Palmer put a gas mask over
his

face.

Petitioner

pulled

a

dark

bandana

over

his

face.

Dennis, unmasked, opened the door. The three defendants grabbed
Tuten and pistol-whipped him. They searched Tuten but he had
only a few hundred dollars. Dennis demanded more because he had
heard Tuten was “pushing weight like 24 hours a day.”
Tuten was told to strip to his underwear and sit on the
loveseat.

Petitioner

threatened

that

if

Tuten

did

not

stop

talking, he would “pop” him. Tuten challenged him, so Petitioner
placed a cushion over his gun and shot Tuten in the right knee.
4

Dennis turned up the stereo to muffle the noise. Petitioner
continued questioning Tuten while Dennis duct-taped him. Palmer
left his post with Dickerson and Blagrove to inspect Tuten’s
wound, and reported that it was only “a little gunshot wound.”
Petitioner

threatened

to

shoot

Tuten

again,

and

Tuten

challenged him, so Petitioner shot him in the left knee. After
their

search

for

money

was

unsuccessful,

Palmer,

Dennis

and

Petitioner escorted Blagrove and Dickerson to the bathroom and
told

them

Defendants

to

wait

ten

disconnected

minutes
the

before

telephone

calling

an

lines

and

ambulance.
left

the

apartment.
Tuten began calling for help. Dickerson came out of the
bathroom,

reconnected

the

phones,

and

Dickerson helped Tuten into the hallway.

called

an

ambulance.

Then Dickerson began

to dispose of drugs from the apartment, placing some bags of
marijuana in Blagrove’s body brace. When the bags of cocaine
would

not

flush

down

the

toilet,

Dickerson

put

them

in

his

pockets and began mopping the blood off the floor.
The first officers to respond found Tuten in the doorway of
the apartment. Tuten said he was shot while in the hallway.
Officers went in the apartment and found drugs on Blagrove.
Police removed Blagrove and Dickerson from the apartment. Tuten
described his assailants as three black males, one wearing a
yellow fleece jacket. A suspect wearing a yellow fleece jacket
5

was brought to the apartment, but Tuten said it was not the
assailant.
Detective Riegal arrived on the scene, and Dickerson told
him

three

men

transported
questioning.
questioned

had

shot

separately
While

on

Tuten.

Tuten.
to

the

the

way

Tuten

Blagrove
police
to

the

identified

and

Dickerson

station
hospital,
himself

were

for

further

an

officer

as

Chauncy

Fitzgerald. Forensic officers searched the apartment and found
duct tape, a pillow with two holes, a .40 caliber weapon, and
drugs and drug paraphenelia.
At the police station, Blagrove and Dickerson gave similar
statements describing the robbery. On August 16, 2000, Tuten
told Detective Riegel his true identity. He said he knew one of
his assailants.

A few weeks later, he told the police the

assailant’s street name was Omar Sadiq, whom he knew by sight.
On August 31, 2000, Blagrove was shown a photo array, and
he identified Petitioner. Dickerson was interviewed on September
3, 2000.

Dickerson was told Dennis was in custody, and he was

led to believe Dennis was cooperating. Dickerson then identified
Palmer and Petitioner from photo arrays, but he refused to sign
the identification form. After the defendants were indicted on
October 10, 2000, Blagrove and Dickerson sought to recant their
identifications.

Blagrove

and

Dickerson

were

“reluctant”

and

“hostile” witnesses for the State. Despite their claimed memory
6

loss, the trial judge admitted the prior inconsistent statements
of the witnesses.

III. DISCUSSION
A.

Standard of Review

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

“Contrary

to

clearly

established

Federal

law”

means

the

state court applied a rule that contradicted the governing law
set forth in U.S. Supreme Court precedent or that the state
court

confronted

a

set

of

facts

that

were

materially

indistinguishable from U.S. Supreme Court precedent and arrived
at a different result than the Supreme Court. Eley v. Erickson,
712 F.3d 837, 846 (3d Cir. 2013) (citing Williams v. Taylor, 529
U.S.

362,

405-06

(2000)).

The
7

phrase

“clearly

established

Federal law” “refers to the holdings, as opposed to the dicta”
of the U.S. Supreme Court’s decisions. Williams, 529 U.S. at
412.

An

“unreasonable

application”

of

clearly

established

federal law is an “objectively unreasonable” application of law,
not

merely

an

erroneous

application.

Eley,

712

F.3d

at

846

(quoting Renico v. Lett, 130 S.Ct. 1855, 1862 (2010)).
B.

Analysis
1.

Ground One

Petitioner’s

first

ground

for

relief

is

that

the

prosecutor, on the day before trial, had shown Charles Tuten a
photo array containing Petitioner’s photo, but Tuten could not
identify him as the intruder who was wearing a bandana. (Am.
Pet., ECF No. 3 at 29.) Although Tuten was able to identify
Petition in court, he testified that no one had shown him a
photo-lineup

containing

Petitioner’s

photo.

(Id.)

Petitioner

contends he was denied the right to due process and a fair trial
because the prosecutor did

not “correct” Tuten’s testimony.

(Id.)
Respondent

objects

to

this

claim

on

procedural

and

substantive grounds. (Answer, ECF No. 10 at 25-29.) Respondent
contends that Petitioner first raised this claim on appeal of
the

PCR

Court’s

exhausted.
application

decision;

(Id.
for

a

at

therefore,

27.)

writ

of

Courts,
habeas
8

it

was

never

however,
corpus

on

may
the

properly
deny

an

merits,

“notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.” 28 U.S.C. §
2254(b)(2).
On the merits of the claim, Respondent points to testimony
showing that the prosecutor indeed alerted the jury to the error
in Tuten’s testimony. (Id. at 27-28.) Investigator Keith Carmack
testified:
[PROSECUTOR]: Investigator Carmack, you’ve
been working with me on this case, correct?
[INV. CARMACK]: Yes, sir.
[PROSECUTOR]: And on Tuesday last week you
went to the Philadelphia airport to pick up
Christopher Tuten, correct?
[INV. CARMACK]: Yes, sir.
[PROSECUTOR]: And I believe he testified on
Wednesday, correct?
[INV. CARMACK]: Yes, sir.
[PROSECUTOR]: Prior to his coming up here
did you and I sit with him for a few
minutes?
[INV. CARMACK]: On Tuesday afternoon.
[PROSECUTOR]: Okay. Do you recall, I want to
show you S-68, -70, -69 and -71. Do you
recall me placing these exhibits in front of
Christopher Tuten and then taking these
cover sheets off and asking him if he
recognized any of the pictures in these
photographic line ups?
[INV. CARMACK]: Yes, sir.

9

[PROSECUTOR]: And was he unable
photographic identification?

to

make

[INV. CARMACK]: That is correct.
[PROSECUTOR]: Did he actually look at S-69,
which contains a photograph of Abdus Samad
Hamilton?
[INV. CARMACK]: Yes, he looked . . .
(Trial Transcript, ECF No. 10-7 at 205-206.)
The

Appellate

Division

found

“the

transcript

clearly

reflects that Tuten equivocated in his in-court identification
of defendant and the jury was apprised by Inv. Cormack of his
presentation of the photographic array to Tuten the day before
trial.” Hamilton III, (ECF No. 10-23 at 10-11.) Furthermore,
Petitioner’s trial counsel argued in summation:
The last line of testimony that came out of
this chair was from the investigator sitting
over there [Carmack] . . . And he said he
proffered some pictures to Mr. Tuten, one of
the people in this case . . . And he
couldn’t identify anybody. That was the last
testimony I heard.
(Trial Transcript, ECF No. 10-8 at 189.)
Prosecutorial misconduct violates a defendant’s right to
due process when the prosecutor’s misconduct “so infected the
trial with unfairness as to make the resulting conviction a
denial of due process.”

Donnelly v. DeChristoforo, 416 U.S.

637, 643 (1974). A court must examine the prosecutor’s actions
in the context of the entire trial “assessing the severity of

10

the

conduct,

the

effect

of

the

curative

instructions,

the

quantum of the evidence against the defendant, and the effect of
curative instructions.”

Moore v. Morton, 255 F.3d 95, 107 (3d

Cir. 2001).
Petitioner’s contention that he was denied due process and
a fair trial because the prosecutor failed to inform the jury of
Tuten’s failure to identify Petitioner from a photo array is
contrary to the state court record. Not only did the prosecutor
inform the jury of the out-of-court photo array, in summation,
defense

counsel

reminded

the

jury

of

the

investigator’s

testimony. There was no prosecutorial misconduct. Therefore, the
Appellate Division’s denial of this claim was not contrary to or
based

on

an

unreasonable

application

of

clearly

established

federal law. This Court will deny Ground One of the Amended
Petition.
2.

Ground Two

In Ground Two of the Amended Petition, Petitioner claims he
was deprived of his Sixth Amendment right to counsel by his
counsel’s

failure

to

move

for

a

Wade

Hearing

or

to

strike

Blagrove’s and Dickerson’s in-court identifications of him. (Am
Pet., ECF No. 3 at 30-34.) Respondent asserts the State PCR
court,

affirmed

by

the

Appellate

Division,

painstakingly

detailed why he would not have granted a Wade hearing if defense

11

counsel had requested it during trial. (Answer, ECF No. 10 at
31.)
The PCR Judge found:
As to the Wade issue, I really don’t
understand a great deal of the defense
perception of entitlement to a Wade hearing.
First of all, the Prosecutor’s correct that
not everybody [is] entitled to a Wade
Hearing unless there is a prima facie
argument made and established that there was
undue suggestiveness.
Now, there was nothing ever presented with
regard to that. To the contrary. Even at
trial there was no evidence . . . that there
was any undue suggestiveness by police or by
anyone working for the police.
[The] . . . out-of-court identifications . .
. were criticized . . . by the witness[es]
themselves
in
their
rather
putrid
and
pathetic recantations so that they lent even
more credence to . . . the prior procedures
because it was obvious that they didn’t want
to cooperate, they didn’t want to be
involved in this, they didn’t want to be
snitches on the streets w[h]ere somebody
could take out vengeance . . .
So to suggest that a Wade hearing should
have been demanded, I don’t know - - I don’t
think I would have granted it based on what
I had in front of me. In fact, I know I
wouldn’t have granted it because some of
these identifications were blood relative
identifications and there was nothing that
was ever presented to me that indicated that
the police suggested or unduly suggested . .
.

Hamilton II, (ECF No. 10-11 at 34-35.)

12

Ineffective assistance of counsel may deprive a defendant
of

his

constitutional

right

to

counsel

under

the

Sixth

Amendment. Strickland v. Washington, 466 U.S. 668, 688 (1984).
Under the first prong of the Strickland test, a petitioner must
establish his counsel’s representation fell below an objective
standard of reasonableness. Id. “Judicial scrutiny of counsel’s
performance must be highly deferential.” Id. at 689. “[A] court
must indulge a strong presumption that counsel's conduct falls
within

the

wide

range

of

reasonable

professional

assistance;

that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action ‘might be considered
sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350
U.S. 91, 101 (1955)).
To prove prejudice, as required under the second prong of
Strickland,

a

petitioner

must

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.
To determine whether counsel was ineffective in failing to
request

a

Wade

hearing

or

strike

the

identifications

after

Blagrove and Dickerson testified, the Court must consider the
circumstances under which a Wade hearing is required. A Wade
hearing is held to determine the admissibility of identification
13

testimony. Manson v. Brathwaite, 432 U.S. 98, 114 (1977); See
United States v. Wade, 388 U.S. 218, 219-20 (1967) (vacating
conviction pending a hearing to determine whether the in-court
identifications had an independent source). A Wade hearing is
necessary when the out-of-court identification procedure “was so
unnecessarily suggestive and conducive to irreparable mistaken
identification that [the accused] was denied due process of law
.

.

.

.

Biggers,

[o]n
409

the

U.S.

totality
188,

of

196

the

circumstances.”

Neil

(citation

internal

(1972)

and

v.

quotation marks omitted).
In a pretrial hearing on Petitioner’s request for a Wade
hearing, Petitioner’s counsel admitted he did not have evidence
that the identification procedures were unduly suggestive, he
was

relying

identified

on

the

Petitioner

fact
in

that
photo

after
arrays,

Blagrove
they

and

Dickerson

provided

written

recantations stating Petitioner was not at the scene of the
crime.

(Trial

recantations

Transcript,

said

nothing

10-2

about

at

undue

8-10.)

The

suggestiveness

written
by

the

police in the identification procedures. (Id.)
The PCR Court, who was also the trial judge, stated he
would not have granted a Wade hearing if it had been requested.
Petitioner

cannot

show

prejudice

from

counsel’s

failure

to

request a Wade hearing during trial or to strike Blagrove’s and
Dickerson’s identifications because the trial court would not
14

have granted the motions. Thus, the Court will deny Ground Two
of

the

Amended

Petition

because

the

state

court

correctly

applied the Strickland test in denying Petitioner’s ineffective
assistance of counsel claim.
3.
In

Ground Three

Ground

Three,

Petitioner

contends

he

was

denied

his

Sixth Amendment right to confront witnesses based on testimony
by

Tuten

testified
believed

and

Blagrove.

that
to

be

he

(Am.

learned

his

Pet.,

the

assailant

ECF

name
from

of

No.

3

at

34.)

Tuten

the

person

who

was

asking

people

in

the

neighborhood. (Id.) Blagrove testified that the police already
knew Petitioner was involved in the crime at the time he was
presented with a photo array for identification. (Id. at 35.)
Respondent asserts that Tuten’s testimony was not offered
for the truth of the matter asserted but instead to explain the
sequence of events leading to codefendant Andrew Dennis becoming
a suspect. (ECF No. 10 at 33.) Tuten testified:
[PROSECUTOR]: Okay. Now prior to [when you
were released from the hospital] you had not
identified by name or photograph anybody for
the police, is that correct?
[TUTEN]: No, sir.
[PROSECUTOR]: Now after you got out were you
able to ascertain from talking to people in
the neighborhood the name of the person who
might have been involved?
[TUTEN]: Yes, sir.
15

[PROSECUTOR]: Do you want to tell the jury
about that?
[DEFENSE COUNSEL/DENNIS]:
asking for hearsay.

Objection.

He’s

[THE COURT]: Prosecutor?
[PROSECUTOR]: Judge, it’s not to offer it to
prove the truth of the matter asserted but
only to explain the train of events that led
to, I guess charges being filed in the end.
I could ask it a different way.
[DEFENSE COUNSEL/DENNIS]: Your Honor, I
think it at its root being asked for the
truth of the matter.
[THE COURT]: Well, it, it certainly does
appear to go to that issue. If you want to
ask it another way and see if it’s . . . .
[PROSECUTOR]: Certainly, Your Honor.
[THE COURT]: . . . admissible that way, I’ll
sustain the objection at this point in time.
[PROSECUTOR]: Did you, you spoke to people
in the neighborhood, that would be fair to
say?
[TUTEN]: Yes, sir.
[PROSECUTOR]: And after speaking to people
in the neighborhood did you have occasion to
tell Detective Riegel of a person who might
be involved?
[DEFENSE COUNSEL/DENNIS]: Objection,
still grounded in hearsay.

it

is

[PROSECUTOR]: Judge, it’s not offered for
the truth of the matter asserted. It’s only
asserted to explain why he did what he did,
and he did do what he did.

16

[THE COURT]: Yeah, that does take it out of
Rule 803 under that context. There’s a
subtle difference now between this question
and
the
earlier
question.
The
earlier
question was more open-ended. As to whether
or not it’s accurate that obviously will be
subject to the jury’s determination. But for
the
purpose
that
you
are
seeking
to
introduce it at this point I’ll permit it.
The objection is overruled for that reason.
[PROSECUTOR]: And do you recall what the
name was that you said to Detective Riegel?
[TUTEN]: Um, I was given the nickname Sadiq.
[Trial Transcript, ECF No. 10-3 at 105-07.)
Respondent

argues

the

Appellate

Division

correctly

reasoned:
[w]e conclude that no right-to-confrontation
violation occurred . . . the [trial] court
sustain[ed] Dennis’ objection, and the State
rephrased its question in order not to
elicit
hearsay
testimony.
No
further
objection was made. More importantly, Tuten,
the witness who had provided Detective
Riegel with the information was a testifying
witness available for confrontation.

Hamilton I, (ECF No. 10-14 at 40-41.)
Respondent further argues that Tuten’s testimony regarding
“Sadiq” could not have prejudiced Petitioner because Detective
Riegel later made clear that “Sadiq” was in fact the street name
of codefendant Andrew Dennis, not Petitioner. (Answer, ECF No.
10 at 35, citing the trial transcript, ECF No. 10-7 at 42.)

17

The Confrontation Clause of the Sixth Amendment provides
that “the accused shall enjoy the right . . . to be confronted
with the witnesses against him” in all criminal prosecutions.
Crawford v. Washington, 541 U.S. 36, 42 (2004). The text of the
Confrontation

Clause

is

accused

“bear

testimony.”

who

focused

on

“witnesses”

Id.

at

51.

against

the

“Testimonial”

statements include “pretrial statements that declarants would
reasonably

expect

to

be

used

prosecutorially;”

extrajudicial

statements such as affidavits, depositions, prior testimony or
confessions; and “statements that were made under circumstances
which would lead an objective witness reasonably to believe that
the statement would be available for use at a later trial.” Id.
at

51-52

evidence

(internal
is

unavailability

at

citations

issue,

of

the

the

omitted).

Where

Confrontation

declarant

and

a

testimonial

Clause

prior

requires

opportunity

for

cross-examination before the evidence will be permitted. Id. at
68.
Here, Tuten testified that after leaving the hospital, he
learned

through

talking

to

people

in

the

neighborhood

that

“Sadiq” was involved in the crime. Because they were speaking
informally with the victim, it is very unlikely that the persons
who relayed this information to Tuten expected their statements
would be available for use at a later trial. Therefore, the
state

court’s

determination

that
18

Tuten’s

testimony

did

not

violate

the

Confrontation

Clause

was

not

an

unreasonable

application of Crawford.
Petitioner further contends Blagrove’s testimony that the
police already knew Petitioner was involved in the crime before
Blagrove

was

shown

the

photo

array

violated

Petitioner’s

constitutional right to confrontation. (Am. Pet., ECF No. 3 at
35.)

Respondent points out that this testimony was elicited by

defense

counsel

to

support

a

theory

that

the

police

had

influenced Blagrove and Dickerson to falsely identify Petitioner
during presentation of the photo array. (Answer, ECF No. 10 at
35.)
The trial record shows:

[DEFENSE
COUNSEL/PETITIONER]:
Now
what
happened with these pictures? Were you shown
pictures? What happened?
[BLAGROVE]: I was shown pictures but they
were mixed up. There was a thing they
already knew who said what before I had a
chance to say anything.
[DEFENSE COUNSEL/PETITIONER]:
mean by that, who said that?

What

do

you

[BLAGROVE]: Because when they went, when
they had my brother [Dickerson] on tape he
told them things but I don’t know about them
until I was told by Jeff Fauntleroy,
actually it was hearsay.
[DEFENSE
COUNSEL/PETITIONER]:
Fauntleroy a police officer?

19

Is

Jeff

[BLAGROVE]: Yes, he was. He told my aunt
what was said. And the names of the people
were mentioned already on there. So I didn’t
know, you know what I mean, who did what.
[DEFENSE COUNSEL/PETITIONER]:
minute. Let me . . .

Well,

wait

a

[BLAGROVE]: Well, I mean . . .
[DEFENSE COUNSEL/PETITIONER]: Wait. Hold on,
hold on. Was my client’s name on that
picture, Abdus Samad?
[BLAGROVE]: Yes, it was. They already knew
that he was involved but it wasn’t by me. It
wasn’t by me until that, until he did that.
But they already had his name when they
first did the whole thing, the 14th.
(Trial Transcript, ECF No. 10-4 at 162-63.)
Relying on state law,1 the Appellate Division held that
“where the errors are induced or invited by the defense, they
will not serve as a basis for reversal on appeal.” (ECF No. 1014 at 40.) The court noted that one of the defense theories was
that Tuten orchestrated the police investigation and influenced
Blagrove and Dickerson to falsely identify the defendants. (Id.
at 41.) Petitioner’s counsel did not object to the testimony
because it supported the defense theory. (Id.)
Habeas courts will not review questions of federal law that
were decided by a state court on a state law ground “that is
independent of the federal question and adequate to support the

1

State v. Douglas, 204 N.J. Super. 265, 274 (N.J. Super. Ct.
App. Div. 1985).
20

judgment.”

Coleman

v.

(citations omitted).

Thompson,

501

U.S.

722,

729

(1991)

“[F]ederal habeas courts must ascertain

for themselves if the Petitioner is in custody pursuant to a
state

court

judgment

that

rests

on

independent

and

adequate

state grounds.” Id. at 736. “This rule applies whether the state
law ground is substantive or procedural.” Id. at 729 (citations
omitted). If a federal habeas court releases a prisoner held
pursuant to a state court judgment that rests on an independent
and adequate state law ground, the habeas court ignores the
State’s legitimate reasons for holding the prisoner. Id. at 730.
“To qualify as an ‘adequate’ procedural ground a state rule must
be

‘firmly

established

and

regularly

followed.’”

Walker

v.

Martin, 562 U.S. 307, 316 (2011) (quoting Beard v. Kindler, 558
U.S. 53 (2009) (internal quotations omitted)).
Here, the Appellate Division relied on the invited-error
doctrine to deny Petitioner’s confrontation claim because the
testimony complained of was elicited by the defense on crossexamination.

The invited-error doctrine is an independent basis

for denial of the federal claim.
In

New

Jersey,

established

and

automatically

the

regularly

invoked

if

invited-error
followed,
the

doctrine
although

doctrine

were

is
it

to

firmly
is

cause

not
a

fundamental miscarriage of justice. State v. A.R., 213 N.J. 542,
561

(2013)

(under

“settled

principle
21

of

law,”

trial

errors

induced

by

reversal

defense

on

counsel

appeal);

New

are

not

Jersey

ordinarily

Div.

of

a

Youth

basis
and

for

Family

Services v. M.C. III, 201 N.J. 328 (2010); State v. Williams,
219 N.J. 89, 100 (2014) (the doctrine is intended to prevent a
defendant, who led a court into error while pursuing a tactical
advantage that does not work as planned, from manipulating the
system).

Indeed,

federal

courts

also

apply

the

invited-error

doctrine. See e.g. U.S. v. Maury, 695 F.3d 227, 256 (3d Cir.
2012) (“[u]nder the invited error doctrine, a defendant cannot
complain

on

appeal

of

alleged

errors

invited

or

induced

by

himself”) (internal citations omitted.))
Blagrove testified that Detective Jeff Fauntleroy told his
aunt that the police knew Petitioner was involved in the crime.
This

statement

was

elicited

by

Petitioner’s

counsel,

thereby

implicating the invited-error doctrine. Regardless, even if the
state court had applied Crawford to address the confrontation
claim,

Fauntleroy’s

would

not

Blagrove’s

have
aunt

statement

reasonably
would

be

was

not

believed

used

at

testimonial
his

trial.

conversation
His

clearly made for the purpose of investigation.
Court

will

deny

this

claim

as

barred

by

because

the

statement

he

with
was

Therefore, the
state

court’s

independent and adequate state law ground, but the Court further
notes that the challenged statement was not testimonial under
Crawford.
22

Finally,

Petitioner

asserts

he

was

denied

his

right

to

confrontation with respect to testimony about an unidentified
female who told police that a man in a yellow fleece jacket, who
was near the crime scene immediately after the crime, was not
involved in the crime. (Am. Pet., ECF No. 3 at 35.)
The Appellate Division addressed this claim:
[A]ccording to Detective Johnson, Tuten also
stated that this same man was not one of the
perpetrators when he was presented with him
at the scene. The prosecution did not
specifically elicit information regarding
the female witness, which was explored in
more detail by defense counsel.
Even
if
the
testimony
concerning
the
female’s statements was deemed inadmissible
hearsay, it only related to exclusion of
another suspect and did not constitute
evidence
of
identification
against
the
defendants. There was sufficient evidence in
the record to support the convictions.
Hamilton I, (ECF No. 10-14 at 41-42.)
It

appears

invited-error
Division

the

doctrine

stated

information

that

the

about

in

Appellate
denying

prosecution

the

female

Division

this

did

claim.

not

witness.

relied
The

on

Appellate

specifically
The

the

elicit

information

was

elicited by defense counsel. Therefore, the state court relied
on an independent and adequate state ground for denying this
claim.
The Court will deny Ground Three of the petition based on
an independent and adequate state ground for denying the claim.
23

4.
In

Ground Four

Ground

Four,

Petitioner

claims

his

right

to

confrontation was denied during his counsel’s opening statement
because he was prevented from offering the written statements of
Blagrove and Dickerson, recanting their prior statements to the
police. (Am. Pet., ECF No. 3 at 36, ¶7.)
Respondent asserts this claim is unexhausted and without
merit because Petitioner was not denied confrontation.
ECF

No.

examine
contests

10

at

both

27.)

Defense

Blagrove

and

Petitioner’s

counsel

was

Dickerson.

claim

that

the

permitted

(Id.)
jury

(Answer,
to

Respondent

cross-

was

also

deprived

of

Dickerson’s written statement recanting his statement to police.
(Id. at 38.) Dickerson’s written statement [State’s Exhibit 90]
was

not

only

read

to

the

jury

by

the

prosecutor

during

Dickerson’s direct examination, it was entered into evidence.
(Trial Transcript, ECF No. 10-3 at 215-17; ECF No. 10-8 at 143.)
This Court reviewed Petitioner’s opening statement. Defense
counsel argued the witnesses would recant the identifications
they had made to police. (Trial Transcript, ECF No. 10-2 at 7879.) The prosecution objected because the witnesses had not yet
testified; therefore, it was not certain they would recant. (Id.
at 79-82.) The judge ruled in Petitioner’s favor and allowed his
counsel

to

statements.

argue

that

(Id.

at

Blagrove

83.)

and

Dickerson

Furthermore,
24

as

recanted

Respondent

their
noted,

Dickerson’s

written

submitted

into

recantation

evidence.

was

read

Therefore,

Petitioner’s claim is factually incorrect.

to

the

the

jury

record

and
shows

The Court will deny

Ground Four of the Amended Petition.
5. Ground Five
In

Ground

Five,

Petitioner

asserts

that

prosecutorial

misconduct deprived him of a fair trial. (Am. Pet., ECF No. 3 at
37-38.)

First, he alleged it was misconduct for the prosecutor

to refer to a “home invasion robbery.” (Id. at 37.) Respondent
asserts there was no misconduct because the trial was about a
home invasion robbery. (Answer, ECF No. 10 at 39.)
The Appellate Division noted that burglary, by definition,
involved breaking and entering into a dwelling. Hamilton I, (ECF
No. 10-14 at 43.) Therefore, use of the phrase “home invasion”
was not inflammatory. (ECF No. 10-14 at 43.)
This Court must look at the context of the entire trial in
assessing

a

prosecution

claim
alleged

of

prosecutorial

that

armed

misconduct.

perpetrators

Here,

pushed

their

the
way

into an apartment with the intention of robbing a drug dealer.
It

was

not

misconduct

to

refer

to

this

incident

as

a

home

invasion. Therefore, the state court decision did not involve an
unreasonable

determination

of

the

facts

or

an

unreasonable

application of clearly established federal law, and this claim
will be denied.
25

Petitioner

also

contends

that

the

prosecutor

elicited

testimony that impermissibly commented upon his exercise of the
right against self-incrimination. (Am. Pet., ECF No. 3 at 37.)
Petitioner
Detective

asserts
[Riegel]

“the

prosecutor

during

his

specifically

testimony

about

questioned

petitioner

not

returning his call, and refusing to answer any questions posed
by the prosecutor’s investigators at the time of petitioner’s
arrest.” (Id.)
Respondent

asserts

that

it

was

made

clear

on

direct

examination that before the post arrest interview, Petitioner
was

advised

questions.

of

his

(Answer,

Miranda
ECF

rights,

No.

10

at

and

he

39-40

agreed

to

citing

answer

the

trial

transcript ECF No. 10-8 at 102-07.) It was further elicited on
cross-examination

that

Petitioner

never

refused

to

give

a

statement, either taped, written or oral. (Id. citing ECF No.
10-8 at 115-16.)
Respondent

maintains

the

Appellate

Division,

on

direct

appeal, correctly determined that “[Petitioner’s] objection to
that testimony was overruled because the State was attempting to
elicit an explanation as to why there was no taped statement and
only an oral statement.” Hamilton I, (ECF No. 10-14 at 43-44.)
Moreover,

the

Appellate

Division

found

that

any

negative

inference suggesting Petitioner had invoked his right to remain

26

silent “was cured when Detective Riegel stated that [Petitioner]
did not refuse to give a statement.” (Id. at 44.)
In Doyle v. Ohio, the Supreme Court held that “the use for
impeachment purposes of petitioners' silence, at the time of
arrest and after receiving Miranda warnings, violated the Due
Process Clause of the Fourteenth Amendment.” 426 U.S. 610, 619
(1976). In that case, the Court noted that there was no claim of
harmless

error

presented.

Id.

at

620.

The

constitutional

harmless-error standard is “whether the [Government] has proved
‘beyond a reasonable doubt that the error complained of did not
contribute

to

the

verdict

obtained.’”

Virgin

Islands

v.

Martinez, 620 F.3d 321, 337-38 (3d Cir. 2010) (quoting Chapman
v. State of California, 386 U.S. 18, 24 (1967). Harmless error
analysis

must

take

into

account

the

totality

of

the

circumstances. Id. at 337.
Reviewing

the

pertinent

testimony,

Detective

Riegel

described how he read the Miranda rights form to Petitioner.
(Trial Transcript, ECF No. 10-2 at 102-08.) Riegel testified to
Petitioner’s verbal responses to the questions on the form. For
instance, “[d]o you desire to waive these rights and answer
questions,” to which Petitioner responded “yes.” Then Petitioner
proceeded to answer questions about where he was at the time of
the crime. (Id. at 102-08.)

27

After Riegel’s testimony that Petitioner asked to return to
his cell, the prosecutor asked Riegel whether they were able to
get a taped or written statement from Petitioner, and he said
no. (Id. at 110-11.) On cross-examination, Riegel agreed that he
took a statement from Petitioner but it was verbal, not written
or

taped.

(Id.

at

112.)

On

redirect,

the

prosecutor

asked

whether Petitioner volunteered to give a taped statement, and
Riegel

said

no.

(Id.

at

agreed

that

his

report

114.)
did

On

not

recross,

reflect

Detective

that

Riegel

Petitioner

had

refused to give a taped statement. (Id. at 115-16.) However, on
the

subsequent

redirect,

Riegel

testified

that

he

asked

Petitioner to give a taped or written statement, and he refused.
(Id. at 116.) On the following recross, Riegel admitted that his
report did not mention anything about asking Petitioner to give
a taped or written statement and Petitioner declining. (Id. at
115-16.)
In

context

of

the

complete

testimony,

there

is

little

chance the jury made any negative inferences from Petitioner’s
request to return to his cell during the post arrest interview
because he had already waived his Miranda rights and answered
questions

about

where

he

was

at

the

time

of

the

crime.

Petitioner did not invoke his right to remain silent.
Although Riegel testified that Petitioner declined to put
his

statement

on

tape

or

in
28

writing,

Petitioner’s

counsel

impeached this testimony by getting Riegel to admit that he had
not made any notes reflecting the fact that he asked Petitioner
for a taped or written statement. If there was any error in
allowing Riegel’s testimony that Petitioner declined to put his
statement on tape or in writing, the error was harmless. The
jury would not have inferred Petitioner invoked his right to
remain silent because he answered Riegel’s questions verbally.
Therefore, the Court will deny this claim because the Appellate
Division’s decision was not contrary to or based on unreasonable
application of the harmless error doctrine.
Petitioner
prosecutor,

in

next
his

avers

that

summation,

to

it

was

comment

misconduct
on

the

for
fact

the
that

petitioner’s grandmother’s alibi statement was prepared the day
before trial.

(Am. Pet., ECF No. 3 at 37.) Respondent asserts

the statement is true; therefore it was not misconduct. (Answer,
ECF No. 10 at 41.)
In summation, the prosecutor argued:
But his grandmother also told the police
when they came to execute a search warrant
that Abdus didn’t live there anymore. And
when I asked her about that on crossexamination she said, oh, she didn’t know
her grandson as Abdus, she knew him as Samad
. . . And in the grandmother’s alibi
statement, and I don’t mean to insult
anybody but in the grandmother’s alibi
statement, which was prepared the day we
started the trial, she says, ‘my grandson,
Abdus Samad Hamilton,’ so I submit to you .
. . that just like she was trying to protect
29

her grandson when the police came with a
search warrant on September 7th, 2000, when
she came here today to testify to you she
would say anything to protect her grandson .
. .”
(Trial Transcript, ECF No. 10-8 at 219-20.)
“The

prosecutor

is

entitled

to

considerable

latitude

in

summation to argue the evidence and any reasonable inferences
that can be drawn from that evidence.” U.S. v. Werme, 939 F.2d
108, 117 (3d Cir. 1991) (citing United States v. Scarfo, 685
F.2d 842, 849 (3d Cir. 1982)). Gireen Williams, Petitioner’s
grandmother,

testified

that

she

prepared

her

written

alibi

statement on May 21, 2001, which was the day before trial began.
(Trial Transcript, ECF No. 10-8 at 35, ECF No. 10-1 at 1.) The
prosecutor is entitled to invite the jury to draw any reasonable
inference from that fact, including that the alibi was false
because she did not come forward sooner.
Petitioner
prosecutor

to

next
play

claims
the

tape

that
of

it

was

misconduct

Blagrove’s

August

for
31,

the
2000

statement to the police because Detective Riegel made reference
to photographs from “another case.” (Am. Pet., ECF No. 3 at 38.)
The following colloguy from the taped statement was played
before the jury:
[DET. RIEGEL]: Okay. Okay. The next is a group of
photos from a case I was involved with. In the photos
is the victim along with some suspects that came up.
As previously stated, I want to go through each photo.

30

Victim number one, photo one is of the actual victim
of the case. Do you know this male?
[BLAGROVE]: No.
[DET. RIEGEL]: All right. Photo - [DET. ROTH]: This is not the case that we’re
investigating. This is a previous case.
[DET. RIEGEL]: Yes.
[DET. ROTH]: Just so it’s clear on tape.
[DET. RIEGEL]: Okay.
. . . .
[DET. RIEGEL]: This next photo is number 6.
Do you know this male?
[BLAGROVE]: Yes.
[DET. RIEGEL]: Okay.
[DET. ROTH]: How do you know this male?
[BLAGROVE]: That’s the actual shooter.
. . . .
[DET. ROTH]: This is the male that disguised
himself?
[BLAGROVE]: With the black bandana, yes.
. . . .
[DET. RIEGEL]: I just want to add for the
record at this time he’s identified as Abdus
Samad Hamilton . . . .

(Trial Transcript, ECF No. 10-6 at 51-54.)

31

The taped statement was played again during Riegel’s direct
testimony, and the defense objected. (Trial Transcript, ECF No.
10-7 at 65-67.) After a sidebar, the trial court instructed the
jury, in relevant part:
Ladies
and
gentlemen,
there
has
been
reference made to the use of photos that are
in the hands of the government or the
police. I’m going to give you this charge
later as part of the overall charge, but I
want to bring it up now so that you’re aware
of
the
fact,
because
there
was
some
reference made that the police used some of
these same photos as part of some other
investigation, but I can indicate to you
that that investigation in no way should be
taken into account when assessing guilt or
innocence of these defendants or any of the
defendants allegedly involved in this case .
. . .
(Id. at 68.) The instruction was repeated during the final jury
charge. (Trial Transcript, ECF No. 10-9 at 13-14.)
The Appellate Division, on direct appeal, held “[b]ecause
no definite reference to a criminal record was made, we conclude
that

the

adequately

curative

instruction

addressed

any

given

negative

by

the

implications.”

trial

judge

Hamilton

I,

(ECF No. 10-14 at 48.)
There is a presumption that a jury will heed an instruction
“unless there is ‘an overwhelming probability’ that the jury
will be unable to follow the court’s instructions, and a strong
likelihood

that

the

effect

of

32

the

evidence

would

be

‘devastating’ to defendant.” Greer v. Miller, 483 U.S. 756, 767
n.8 (1987)(citation omitted).
In
Supreme

this

instance,

Court

adequately

precedent

addressed

instructed

the

not

to

in

state

court

finding

Petitioner’s

draw

the

reasonably

the

jury

concern.

conclusion

instruction

The

that

applied

jury

Petitioner

was
was

involved in another criminal matter, and given the vagueness of
the reference to another case, it is reasonable to believe the
jury

would

follow

this

instruction.

Therefore,

the

Appellate

Division reasonably applied clearly established federal law in
concluding that the prosecutor’s conduct did not so infect the
entire trial with unfairness as to violate Petitioner’s right to
due process. The Court will deny Ground Five of the Amended
Petition.
6.
In

Ground Six

Ground

Six,

Petitioner

contends

his

counsel

was

ineffective by failing to move for a severance of trial. (Am.
Pet., ECF No. 3 at 74). Respondent argues that the PCR court
correctly held: “[t]here was no argument as to severance or
entitlement to severance . . . There were no Brut[on] issues
here. There were no statements made against a Co-Defendant.”
Hamilton II, (ECF No. 10-11 at 84.) The PCR Court also stated,
“[d]espite the advantages of joint trials, Defendants rights are
to be considered, but there was no circumstance here where any
33

of these individuals . . . were willing to A, accept guilt and
B, testify on behalf of each other . . . ” Hamilton II, (ECF No.
10-11 at 44.) The Appellate Division “affirm[ed] substantially
for the reasons articulated by Judge Isman in his comprehensive
opinion.” Hamilton III, (ECF No. 10-23 at 11.)
Joint trials generally serve the interests
of justice by avoiding inconsistent verdicts
and enabling more accurate assessment of
relative
culpability—advantages
which
sometimes
operate
to
the
defendant's
benefit. Even apart from these tactical
considerations, joint trials generally serve
the interests of justice by avoiding the
scandal
and
inequity
of
inconsistent
verdicts.

Richardson

v.

Bruton

United

v.

Marsh,

481

States,

U.S.

200,

210

(1987).

391

U.S.

123,

135-36

However,
(1968),

in
the

introduction of a nontestifying co-defendant’s confession, which
inculpated the defendant in a joint trial, “posed a substantial
threat to petitioner’s right to confront the witnesses against
him.” Id. at 137.
Here,

there

was

no

basis

for

Petitioner’s

counsel

to

request a severance. If he had done so, the trial court would
have denied the motion. Therefore, the state court reasonably
applied

the

prejudice

prong

of

the

Strickland

standard

in

denying Petitioner’s ineffective assistance of counsel claim,
and this Court will deny Ground Six of the Amended Petition.
7.

Ground Seven
34

In Ground Seven of the Amended Petition, Petitioner claims
he

received

ineffective

assistance

of

trial

counsel

because

counsel failed to request a competency hearing regarding Witness
Lonell Blagrove. (Am. Pet., ECF No. 3 at 38.) Blagrove testified
that he took pain medication before coming to court. (Id. citing
the trial transcript, ECF No. 10-4 at 76-80.) The prosecutor
recommended a competency hearing, but the trial court found it
was unnecessary because Blagrove appeared competent to testify.
(Id., ECF No. 10-4 at 80-84.)
The PCR Court did not specifically address the failure of
defense

counsel

to

request

a

competency

hearing

based

on

Blagrove’s testimony that he took pain medicine before giving
testimony. Therefore, the Court will review the trial court’s
decision not to hold a competency hearing. See Harrington v.
Richter, 562 U.S. 86, 98 (2011) (“determining whether a state
court's decision resulted from an unreasonable legal or factual
conclusion does not require that there be an opinion from the
state

court

explaining

the

state

court's

reasoning.”)

“[A]

habeas court must determine what arguments or theories supported
or . . . could have supported, the state court's decision; and
then it must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent with
the holding in a prior decision of this Court.” Id. at 102.

35

Under New Jersey law, witnesses are presumed competent to
testify. State v. Kirvacska, 341 N.J. Super. 1, 33-36 (N.J.
Super. Ct. App. Div.) certif. denied, 170 N.J. 206 (2001). The
decision of a nondefendant witness’s competency is left to the
sound discretion of the trial court. State v. Scherzer, 301 N.J.
Super.

363,

463

(App.

Div.)

certif.

denied,

151

N.J.

466

(1997)). Under New Jersey Rule 601, general rule of competency:
Every person is competent to be a witness
unless (a) the judge finds that the proposed
witness
is
incapable
of
expression
concerning the matter so as to be understood
by the judge and jury either directly or
through interpretation, or (b) the proposed
witness is incapable of understanding the
duty of a witness to tell the truth, or (c)
except as otherwise provided by these rules
or by law.
The
request

trial
for

Transcript,
Blagrove’s

a
ECF

court

carefully

competency
No.

testimony

10-4
that

considered

hearing
at

regarding

75-85.)

would

the

lead

There
the

prosecutor’s

Blagrove.
is

judge

(Trial

nothing
to

in

conclude

Blagrove was incapable of “expression concerning the matter as
to be understood by the judge and jury” or that he was incapable
of understanding the duty to tell the truth. Blagrove claimed
not to remember certain things because he was on medication, but
he was able to express himself and understand the duty to tell
the truth. (Id. at 85-106.)

36

The

record

supports

the

trial

court’s

denial

of

the

prosecutor’s request for a competency hearing. Therefore, it is
possible
counsel

fairminded
was

not

jurists

could

ineffective

disagree

for

failing

that
to

Petitioner’s
argue

for

a

competency hearing. The Court will deny Ground Seven of the
Amended Petition because Petitioner has not met the standard for
habeas relief.
8.

Ground Eight

In his eighth ground for relief, Petitioner contends he
received

ineffective

assistance

of

counsel

because

counsel

failed to challenge the verdict as being against the weight of
the evidence. (Am. Pet., ECF No. 3 at 39.) Petitioner did not
support his claim, he relied on his Amended PCR Petition and
Brief

dated

September

11,

2008

(“Am.

PCR

Brief”)

(Id.)

Respondent correctly notes that trial counsel made a motion for
a new trial, arguing the verdict was against the weight of the
evidence. (Answer, ECF No. 10 at 49.) In his Amended PCR brief,
however, Petitioner blamed his appellate counsel for presenting
the weight of the evidence issue in a cursory form, and “failing
to address several meritorious issues.” (Am. PCR Brief, ECF No.
10-17 at 75.)
Petitioner

alleged

“[a]ppellate

counsel

did

not

specifically refer to the record which clearly illustrates that
the Motion Court was unable to dissociate my defense from that
37

of the other two defendants.” (Id.) He also asserted appellate
counsel “failed to bring forward constitutional error regarding
the failure to conduct identification hearings” and “failed to
argue incorrect jury charges.” (Id.)
First, as to Petitioner’s contention that the court was
unable to dissociate his defense from the other two defendants,
which presumably was a claim that the joint trial prejudiced
Petitioner, the PCR Court stated:
But these gentlemen all were clearly aware
of what their exposure was in the many
conferences that I held . . . But you can’t
have it both ways and if Dennis and Palmer
were never going to admit to being guilty
and take this gentleman out . . . then he
has no argument . . . because that’s the
only exception . . . where he can’t get a
fair trial because he can’t call Dennis or
Palmer to the witness stand because they are
on trial with him . . . the clear indication
was . . . [n]one of the defendants felt
Tuten was going to come to court. None of
the defendants felt Blagrove and Dickerson
were going to come to court. And the
Defendants felt that if they came to court,
they certainly were never going to testify .
. . against the Defendants.

Hamilton II, (ECF No. 10-11 at 44-45.)
Second,

the

PCR

Court

found

appellate

counsel

was

not

ineffective by failing to assert error of trial counsel for not
requesting a Wade hearing. (Id. at 36.) The PCR Court stated:
A Wade hearing is not required. A mere
demand or request by a Defendant does not
mandate that a Wade hearing be conducted and
38

I
would
venture
to
say
that
had
[Petitioner’s trial counsel] pursued and
demanded a Wade hearing, that none would
have been granted to him because there was
no
evidence
or
of
impermissible
suggestiveness.
(Id.)
Third, with respect to the jury charges, the PCR Court
noted the Appellate Division “found no error at all” in the
lengthy and complex jury charge that was given. (Id. at 43.)
Finally, the PCR Court explained why the verdict was not against
the

weight

Division

had

of

the

evidence,

agreed.

(Id.

at

and

noted

45.)

The

that
PCR

the

Court

Appellate
found

the

verdict was supported by the witnesses’ ineffective attempts to
recant prior identifications of the defendants and by the poor
alibi witnesses. (Id.)
“[A]ppellate counsel who files a merits brief need not (and
should

not)

raise

every

nonfrivolous

claim,

but

rather

may

select from among them in order to maximize the likelihood of
success on appeal.” Smith v. Robbins, 528 U.S. 259, 288 (2000)
(quoting Jones v. Barnes, 463 U.S. 745 (1983)).
The PCR Court properly applied the Strickland standard in
determining that it “does not constitute ineffective assistance
if a lawyer deems something to be unworthy or unmeritorious.”
Hamilton II, (ECF No 10-11 at 36.) Therefore, the Court will

39

deny the claim of ineffective assistance of appellate counsel in
Ground Eight of the Amended Petition.
9.

Ground Nine

Petitioner raises two claims of ineffective assistance of
counsel in Ground Nine of the Amended Petition. (Am. Pet., ECF
No.

3

at

40.)

First,

he

contends

his

counsel

erred

in

his

opening statement by stating, “[m]y client is going to maintain,
and he has the choice to take the stand, he may or may not,
we’ll see, and then you’ll hear it first-hand, he didn’t do it
and he wasn’t there.” (Trial Transcript, ECF No. 10-2 at 83.)
Respondent
Petitioner.

argues

(Answer,

ECF

this
No.

statement
10

at

50.)

did

not

prejudice

Although

Petitioner

ultimately did not take the stand, the defense presented two
alibi witnesses who testified that Petitioner was somewhere else
during

the

crime.

(Id.)

Additionally,

Dickerson

and

Blagrove

recanted their statements that Petitioner was involved in the
crime. (Id.)
Addressing this claim, the PCR Court stated:
Well, they did hear it firsthand, if you
will,
from
the
[petitioner’s]
alibi
witnesses
that
he
wasn’t
there.
And
arguably, they heard it firsthand from
Dickerson and Blagrove when they recanted
that Mr. Hamilton wasn’t there. So there’s
absolutely nothing to the contrary [of
counsel’s statement in his opening].

40

Hamilton II, (ECF No. 10-11 at 38.) The court added that defense
counsel

appropriately

emphasized

his

key

defense,

that

Petitioner was not present and did not take part in the crime.
(Id.)
Although it may have been preferable not to raise the issue
of whether the defendant may or may not testify, there is little
doubt this statement did not affect the outcome of trial. As the
PCR Court noted, Petitioner’s defense was that he had an alibi,
and the defense put on two alibi witnesses. Additionally, the
witnesses who had earlier identified Petitioner recanted. The
PCR

Court

witnesses

stated
that

it

likely

was

the

lack

produced

the

of

credibility

outcome

of

of

the

these
trial.

Therefore, the PCR Court’s denial of Petitioner’s ineffective
assistance of counsel claim was not contrary to or based on an
unreasonable application of the prejudice prong of Strickland.
Petitioner’s second claim under Ground Nine is that his
counsel’s ineffectiveness resulted in him not testifying in his
own defense. (Am. Pet., ECF No. 3 at 40.)
The PCR court stated:
This colloquy that I had with the Defendant
completely
and
absolutely
refutes
his
argument
with
respect
to
whatever
his
attorney did or didn’t do . . . I had a
colloquy with you. I informed you you had an
absolute right to testify, that if you had a
prior indictable it could come up during
Cross-examination but only to effect (sic)
your
credibility.
When
asked
if
you
41

understood this you said unequivocally, yes.
That’s the Trial Transcript 6, Volume 1,
page 39, lines 25 to Page 40, Lines 5.7
When asked if you were forced or threatened
by anyone to not testify, you said you were
not. You told me that you understood your
Fifth Amendment right not to testify and
this was what you freely elected to do. Page
40, Lines 10 to 15. I asked if you had
spoke[n] to your attorney about testifying.
You told me under oath you did. I then asked
you, and you’re satisfied with the advised
(sic) he’s given you through out these
proceedings particularly with regard to
testifying or not testifying. You responded
yes.
Apparently you didn’t read this transcript
carefully enough before you advanced that
argument. That argument fails.

Hamilton II, (ECF No. 10-11 at 37-38.)
The
this

PCR

Court

ineffective

provided

assistance

persuasive
claim

as

reasons
baseless.

for

rejecting
Therefore,

Petitioner has not established that the PCR Court’s decision was
contrary

to

or

involved

unreasonable

application

of

the

Strickland test. The Court will deny Ground Nine of the Amended
Petition.
10.

Ground Ten

In Ground Ten of the Amended Petition, Petitioner claims
that his counsel was ineffective by failing “to investigate and
protect petitioner’s alibi defense.” (Am. Pet., ECF No. 3 at
40.) Petitioner relied on his Amended PCR Petition and Brief

42

dated September 11, 2008, in support of this claim. (Id.) In
that brief, Petitioner contends his trial counsel “waited to the
eleventh hour” to present his alibi defense, which subjected
Petitioner to a jury charge that the jury could consider the
alibi as a “recent fabrication.” (Am. PCR Brief, ECF No. 10-17
at 59.)
The PCR Court addressed this issue as follows:
The fact is that regardless of what the
Defendant did or didn’t do and regardless of
what the investigators did or didn’t do, the
jury charge did not penalize the defendant.
I advised the jury, as I’m supposed to
advise them, that they may consider the time
in which the alibi witness came forward and
- - and you’ve admitted to me that there
[sic] witnesses did not come forward on
their own, did - - did not go to the police,
did not go to the prosecutor, did not go to
any attorney, did not go to Mr. Kozmor, did
not go to the other two counsel at any time
prior to the trial. But I also specified to
the jury that that consideration should be
used only for the limited purpose [of
assessing] the credibility of that witness
account.
Hamilton II, (ECF No. 10-11 at 32.) Alibi witness Jerine Harris,
who was the mother of Petitioner’s child, testified that she
never went to the police to provide Petitioner’s alibi. (Id.)
Jyrine

Williams,

Petitioner
testimony
execute

a

Petitioner’s

babysat
showed
search

his

that

child
when

warrant,

grandmother,
every

the
she

43

day

police
said

testified

at

came

her
to

Petitioner

home,

her
did

that
but

home
not

to

live

there. (Id. at 33.) There was no testimony that she ever went to
the police to provide Petitioner’s alibi. (Id.)
The PCR Court noted that the prosecutor had a “field day”
cross-examining the alibi witnesses. Hamilton II, (ECF No. 10-11
at 32.) Harris, the mother of petitioner’s child, never went to
the police to offer the alibi that he was at home babysitting
their child at the time of the crime. (Id.) The PCR Court aptly
stated what the jury might have inferred, that “anyone with an
ounce of common sense” who could have provided an alibi for
their loved one who was sitting in jail would have gone to the
police. (Id.)
Petitioner’s grandmother’s testimony was subject to attack
because she was not with Petitioner at the time of the crime.
(Id. at 33.) Furthermore, her testimony that he was at her home
babysitting that day as usual was contradicted by the fact that
she told detectives Petitioner did not live with her. (Id.)
The record supports the PCR Court’s determination that the
jury likely would have discredited the alibi witnesses even if
they had not been instructed that they could consider the timing
of when the witnesses came forward. Therefore, the PCR Court’s
denial

of

the

claim

was

not

contrary

to

unreasonable application of the Strickland test.
11.

Ground Eleven

44

or

based

on

an

Finally,

in

Ground

Eleven

of

the

Amended

Petition,

Petitioner asserts that his counsel was ineffective by failing
to

take

corrective

action

during

the

“Blagrove

outburst.”

Petitioner cites the following trial testimony:
[BLAGROVE]: Judge, before you play this
[referring to Blagrove’s statement to the
police] . . . because I thought this is
wrong as hell because I don’t remember none
of this stuff, you know that I mean.
[THE COURT]: . . . The prosecutor will ask
you about it. Just please sit there and
listen with the rest of us.
[BLAGROVE]: I’m not because this guy’s going
to try to get me killed up in here, you
know. Why do you let this stuff play?
[THE COURT]:
asked.

Sir, no questions are being

[BLAGROVE]: No, he’s trying to put me in a
sling here, you know what I mean. . .
(Trial Transcript, ECF No. 10-4 at 155-56.)
When

the

prosecutor

commented

that

Blagrove

seemed

agitated, Blagrove testified, “Damn right. I gotta live out in
those streets and you don’t. I gotta go out there and I gotta go
to

work

everyday.

And

by

playing

the

bull

right

then

you

probably got me marked for fuckin death. Excuse my terminology.
I’m sorry.” (Trial Transcript, 10-4 at 156-57.) The judge did
not tell the jury to disregard the outburst.
Respondent contends Petitioner originally raised this claim
on

direct

appeal,

and

thereafter
45

“cloaked”

the

claim

as

ineffective assistance of counsel on PCR. (Answer, ECF No. 10 at
52-53.)
On direct appeal, the Appellate Division found Petitioner
had

failed

to

demonstrate

that

the

verbal

substance

of

the

outburst “was clearly capable of producing an unjust result.”
Hamilton

I,

(ECF

No.

10-14

at

48-49.)

After

his

outburst,

Blagrove was provided an opportunity to explain why he did not
want his taped statement to the police played to the jury. (Id.)
He testified that “he had not been threatened by anyone” but his
statement “had been made under duress” by police. (Id. at 49.)
The

Appellate

Division

concluded

“this

exploration

into

Blagrove’s comments by both sides adequately supports the trial
court’s silence.” (Id.)
The PCR Court stated:
All
of
these
issues
with
regard
to
Blagrove’s
outburst,
it
was
denouncing
Defendant as guilty, making it seem like
Defendant would hurt him. This issue was
reviewed
by
the
Appellate
Division.
Defendant tries to argue that Appellate
Counsel did not frame the outburst in the
right context . . . there was nothing
inappropriate with the way that was handled,
with how it came out in front of the jury.
Clearly, that is not what convicted the
Defendant.
Hamilton II, (ECF No. 10-11 at 39.) The PCR Court opined that
Defendant
Dickerson’s

was

convicted

“pathetic”

primarily
attempts

46

at

based

on

recanting

Blagrove
their

and
prior

identifications of defendant, which were obviously lies that the
jury saw through. (Id. at 29-30.)
In

reviewing

Blagrove

and

Dickerson’s

testimony

in

full

(Trial Transcript, ECF No. 10-3 at 188-99; 10-4 at 46-55, 74187), this Court finds the PCR Court reasonably concluded that
the

outcome

of

the

trial

was

not

prejudiced

by

Blagrove’s

outburst. The outcome of the trial was likely the consequence of
Blagrove’s

and

Dickerson’s

lack

of

credibility

in

recanting

their otherwise credible identifications of Petitioner as the
shooter.

Their

testimony

was

not

credible

because

they

both

exhibited unusually selective memories of the events. They could
not remember anything that implicated Petitioner, but they could
remember

many

things

about

the

day

of

the

crime

and

the

investigation other than the identity of the assailants. The
jury did not need Blagrove’s outburst to conclude Blagrove and
Dickerson

changed

their

minds

about

cooperating

with

the

prosecution. Therefore, even assuming trial counsel erred in not
requesting
response

a

to

mistrial
Blagrove’s

or

some

outburst,

other

corrective

Petitioner

action

cannot

meet

in
the

prejudice standard under Strickland, based on either trial or
appellate

counsel’s

performance.

The

Court

will

deny

Ground

Eleven because the PCR Court’s decision was not contrary to or
based on an unreasonable application of the prejudice prong of
Strickland.
47

IV.

CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice

or judge issues a certificate of appealability, an appeal may
not be taken from a final order in a proceeding under 28 U.S.C.
§ 2254. A certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional

right.”

28

U.S.C.

§

2253(c)(2).

“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 the issues
presented

are

adequate

to

deserve

encouragement

to

proceed

further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
For the reasons discussed above, Petitioner has not made a
substantial showing of the denial of a constitutional right.
Therefore, the Court will deny a certificate of appealability.
V.

CONCLUSION
For the reasons discussed above, in the accompanying Order

filed herewith, this Court will deny the Amended Petition for
habeas relief under 28 U.S.C. § 2254.

Dated: December 21, 2016
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

48