HARRIS v. NOGAN et al

Filing 8

OPINION. Signed by Judge Robert B. Kugler on 11/13/2017. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
JERMAINE HARRIS,
:
:
Petitioner,
:
Civ. No. 14-5408 (RBK)
:
v.
:
OPINION
:
PATRICK NOGAN, et al.,
:
:
Respondent.
:
_________________________________________ :
ROBERT B. KUGLER, U.S.D.J.
I.

INTRODUCTION

Petitioner is a state prisoner and is proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury on multiple counts
including conspiracy to commit robbery, first-degree robbery, aggravated assault, and a number
of weapons charges. He is currently serving twenty years with an eighty-five percent period of
parole ineligibility for armed robbery and a consecutive ten year term of imprisonment with five
years of parole ineligibility on a weapons offense. Petitioner raises several claims in his habeas
petition. For the following reasons, the habeas petition will be denied.
II.

FACTUAL AND PROCEDURAL BACKGROUND1

On the evening of August 5, 2005, Tair Jumaniyaazoe[Fn1] was
working alone at a Citgo Gas Station in Pleasantville, New Jersey at 10:30
p.m. As he was pumping gas, two men approached him and asked to buy
cigarettes. Tair stepped inside the booth while the two men waited outside.
As Tair was retrieving the cigarettes, the men stepped inside the booth.
When Tair turned around, he observed one of the men pointing a gun at
his lower back while the other man emptied the drawers looking for
money. Tair indicated that both men were black males and both were
approximately six feet tall. The gunman was wearing a white shirt, blue
1

The factual background is taken from the Superior Court of New Jersey, Appellate Division
opinion on petitioner’s direct appeal that was decided on March 23, 2009. (See Dkt. No. 7-8.)
1

jeans, boots and a black hat with the letter “P” on it. The gunman had a
thick beard and neck-length braids. The other man was wearing a white tshirt and stone-washed blue jeans. He had a “fresh haircut” with a “thin”
beard. Tair described the gun as “brown stock,” old fashioned with a “long
barrel” and a “classic.”
[Fn. 1] For ease of reference, we refer to this witness by his first
name.
The gunman took the cash from Tair while the second man took
rolled change from the drawers and put them inside a Designer Shoe
Warehouse (DSW) bag that had previously contained Tair's dinner. Tair
estimated that about $116 to $130 in cash was taken. The men then cut the
fax line and walked away from the gas station. The whole incident lasted
approximately three minutes. After the two men left, Tair used his cellular
phone to call the police. Immediately thereafter, at about 10:30 p.m.,
Pleasantville police officers arrived at the scene. Tair told the officers that
he had been robbed, described the robbers and told them how the robbery
had occurred.
Approximately twenty-minutes later, at about 10:50 p.m., Atlantic
City K-9 Patrolman Salvatore Rando observed a red vehicle traveling in
the opposite direction from the gas station. Patrolman Rando radioed for
back-up and followed the car. The car eventually pulled over to the side of
the road, and two passengers exited the vehicle. Defendant exited out of
the driver's side, and an individual named Blair Williams exited out of the
passenger side. Patrolman Rando approached defendant and Williams and
spoke to them while awaiting back-up. Within seconds several officers
arrived and “secured” defendant and Williams.
Patrolman Rando inspected the vehicle with a flashlight and
“immediately” saw “a long barreled handgun” underneath the seat cushion
on the passenger's side. Patrolman Rando also found a DSW bag between
the two front seats with rolls of coins inside. At a later time, Pleasantville
police officer Richard Henderson observed a black hat embossed with a
“P” and a scarf in the back seat of the vehicle.
The Pleasantville police received notification that the Atlantic City
police had located some suspects. Tair and another witness, Mr. Ernesto
Santos, were driven to Atlantic City to view the suspects; they did not
speak to each other while traveling. Once the two witnesses arrived in
Atlantic City, defendant and Williams were taken out of the police
vehicle. They stood in the street in full frontal view with their hands
cuffed behind their backs and spotlights used for illumination. While
sitting in the back seat of the patrol car, Tair and the witness identified
2

defendant and Williams as the robbers. At the time, neither defendant nor
Williams had neck length braids. Defendant and Williams were initially
processed in Atlantic City.
The next day the two men were transferred to the Pleasantville
Police Department to be processed. Defendant had $125, a “pair of jean
shorts, a pair of olive Timberland boots, black doo rag, shoelaces, black
belt, black wrist band, [and a] Timberland leather key chain.” Williams
had $25.
Defendant was tried separately and during the trial, Christopher
Hallett, an investigator for the Atlantic County Prosecutor's Office,
discussed all of the efforts he made in procuring the second witness,
Santos. Investigator Hallett testified that he was assigned to the case and
interviewed Santos on January 31, 2007. However, when Investigator
Hallet made several attempts to contact Santos in preparation for trial, he
was unable to do so.
Defendant testified at trial. Defendant stated that Blair Williams
was a childhood friend that he had not seen in a while. He met Williams in
Camden; and Williams invited defendant to his apartment to “catch up on
old times.” Once they were in the apartment, Williams stated that he
wanted to go to a liquor store and pick up some cigars so they can “get
reacquainted.” Defendant had no idea where the liquor store or the Citgo
gas station was in relation to Williams' apartment. Five to ten minutes
later, Williams returned with nothing in his hands. Williams told
defendant that they were going to drive to Atlantic City to pick up his
girlfriend at work. Williams stated that he was late picking up his
girlfriend “Pinky” and that he wanted defendant to drive so that they could
use defendant's unfamiliarity with the area as an excuse for the lateness.
Williams directed defendant, telling him exactly where to drive. Once they
arrived in Atlantic City, Williams told defendant to make a right turn and
to pull over. Defendant then assumed that they had arrived at their
destination and exited the vehicle. At this point, they were stopped by K-9
Patrolman Rando. Defendant denied that he was at the gas station at the
time of the robbery and claimed that he never saw the gun that was found
in the car.
(Dkt. No. 7-8 at p. 2-6.)
After petitioner was convicted and sentenced, he appealed to the Superior Court of New
Jersey, Appellate Division. The Appellate Division affirmed. See State v. Harris, No. A-165207T4, 2009 WL 735757 (N.J. Super. Ct. App. Div. Mar. 23, 2009). The New Jersey Supreme
Court denied certification on May 8, 2009. State v. Harris, 973 A.2d 384 (N.J. 2009).
3

Petitioner subsequently filed a petition for post-conviction relief (“PCR”) in the Superior
Court of New Jersey, Atlantic County, in March, 2010. That court denied the PCR petition on
December 3, 2010. (See Dkt. No. 7-14.) The Appellate Division affirmed that denial on July 15,
2013. (See Dkt. No. 7-17.) The New Jersey Supreme Court denied certification on the PCR
petition on February 21, 2014. (See Dkt. No. 7-18.)
Petitioner then initiated this federal proceeding by filing a petition for writ of habeas
corpus in August, 2014. The respondent filed his response on October 28, 2014.
III.

HABEAS CORPUS LEGAL STANDARD

An application for writ of habeas corpus by a person in custody under judgment of a state
court can only be granted for violations of the Constitution or laws or treaties of the United
States. See Engle v. Isaac, 456 U.S. 107, 119 (1982); see also, Mason v. Myers, 208 F.3d at 415
n.1 (citing 28 U.S.C. § 2254). Petitioner filed this petition for writ of habeas corpus after April
24, 1996, thus, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L.
104-132, 110 Stat. 1214 (Apr. 24, 1996), applies. See Lindh v. Murphy, 521 U.S. 320, 326
(1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the
merits in state court proceedings unless the state court’s 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 state court. See 28 U.S.C. § 2254(d).
As a threshold matter, a court must “first decide what constitutes ‘clearly established
Federal law, as determined by the Supreme Court of the United States.’” Lockyer v. Andrade,
538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). “‘[C]learly established federal law’

4

under § 2254(d)(1) is the governing legal principle set forth by the Supreme Court at the time the
state court renders its decision.” Id. (citations omitted). A federal habeas court making an
unreasonable application inquiry should ask whether the state court’s application of clearly
established federal law was “objectively unreasonable.” See Williams v. Taylor, 529 U.S. 362,
409 (2000). Thus, “a federal court may not issue a writ simply because the court concludes in its
independent judgment that the relevant state court decision applied clearly established federal
law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411.
The AEDPA standard under § 2254(d) is a “difficult” test to meet and is a “highly
deferential standard for evaluating state-court rulings, which demands that state-court decisions
be given the benefit of the doubt.” Cullen v. Pinholster, - U.S. -, 131 S. Ct. 1388, 1398 (2011).
The petitioner carries the burden of proof and with respect to review under § 2254(d)(1), that
review “is limited to the record that was before the state court that adjudicated the claim on the
merits.” Id.
In applying AEDPA’s standards, the relevant state court decision that is appropriate for
federal habeas corpus review is the last reasoned state court decision. See Bond v. Beard, 539
F.3d 256, 289-90 (3d Cir. 2008). Furthermore, “[w]here there has been one reasoned state
judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting
the same claim rest upon the same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
Additionally, AEDPA deference is not excused when state courts issue summary rulings on
claims as “[w]hen a federal claim has been presented to a state court and the state court has
denied relief, it may be presumed that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles to the contrary.” Harrington v.
Richter, 562 U.S. 86, 99 (2011) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)).

5

IV.

DISCUSSION

Petitioner raises multiple claims in his habeas petition; specifically:
1. State court’s ruling that the police officer’s repeated references to the presence of a nontestifying eye witness at the show-up where Petitioner was identified as a robber was not
a denial of Petitioner’s right to due process, a fair trial, and witness confrontation was
contrary to clearly established federal law, and an unreasonable application thereof.
2. State court’s ruling that Petitioner was not deprived of his due process right to a fair trial
as a result of the prosecutorial misconduct was contrary to clearly established federal law,
and an unreasonable application thereof.
3. State court’s ruling that Petitioner was not deprived of his Sixth Amendment
constitutional right to the effective assistance of counsel where the “show-up” procedure
used by the police was impermissibly suggestive and defense counsel failed to request a
Wade hearing was contrary to clearly established federal law, and an unreasonable
application thereof.
4. State court’s ruling that Petitioner was not denied the effective assistance of trial counsel
in violation of the Sixth Amendment to the United States Constitution by (A) counsel’s
failure to object to the prosecution’s opening statement where the jury was advised they
would hear from petitioner’s co-defendant, who was never called, and (B) counsel’s
refusal to permit the trial court to include second degree robbery on the verdict sheet,
though the court had charged the offense to the jury, was contrary to clearly established
federal law, and an unreasonable application thereof.
These Claims will be considered in turn.

6

A. Claim I – References to Non-Testifying Witness at the “Show Up” Identification
Petitioner makes two arguments with respect to his claim that references at trial to the
presence of a non-testifying witness at the “show up” in which Petitioner was identified as a
robber violated his constitutional rights.2 First, he claims that testifying police officers’
references to Mr. Santos’ presence at the “show up” implied that Mr. Santos identified Petitioner
as a robber and therefore amounted to improper third-party hearsay and bolstering of the
evidence in violation of State v. Bankston,3 thereby violating his right to a fair trial. Second, he
claims that the introduction of the implied hearsay violates the Confrontation Clause. The last
reasoned decision from the state courts on this Claim was from the Appellate Division on direct
appeal. That court analyzed these issues as follows:
Clearly, there were various references to more than one
witness at the show-up. At various times during the trial, Tair and
Santos were referred to in the plural, and at least one point, an
officer identified Santos as being present. Defense counsel did
raise an objection to the references to Santos, the unavailable
witness. During side-bar, the following discussion took place:
[DEFENSE COUNSEL]: To avoid a situation that is
coming up here, I see-they are-he is using this phrase: They
... they ... they ... I don't believe the prosecutor has
indicated he intends to put Mr. Santos on the stand. I want
to make sure that if he's not going to try to elicit from this
officer how the identifications went and what words this
guy said Santos said this hearsay as well even for Tair that
this officer will say that TairTHE COURT: Is Santos testifying?
[PROSECUTOR]: First of all, I was not going to go there.
We can't find Santos. He certainly can testify to a prior
identification Tair2

Petitioner did not file a brief in support of his Petition. Instead, for Claims I, II, and III,
Petitioner relies on the brief his counsel filed on direct appeal. For Claim IV, though Petitioner
does not so state, the Court presumes that Petitioner relies on the briefs filed in support of his
Petition for Post-Conviction Relief, which is where this Claim was raised before the state courts.
3
State v. Bankston, 307 A.2d 65 (N.J. 1973).
7

THE COURT: If-who made it?
[DEFENSE COUNSEL]: Testified that this other person
who is not testifying.
[PROSECUTOR]: No, he is going to testify that Tair made
the identification, that's it. I am not going to get into
Santos.
[DEFENSE COUNSEL] Okay. I heard, they ... they; I
wanted to make sure.
THE COURT: Okay.
Critically, the record is devoid of any reference to Santos
making a positive or negative identification of the defendant. The
only testimony referring to Santos, thereafter, addressed the State's
inability to locate Santos for trial.
Defendant argues that “[t]he logical reasoning is: If Santos
and Tair were seated in the same patrol car, and taken to the same
place, for the same purpose, then they must have made the same
identification.” Consequently, the repeated references to Santos at
the show-up “impliedly corroborated” Tair's positive identification
of defendant. Defendant claims that this inference is analogous to
impermissible hearsay that arises when a testifying witness repeats
statements made by a non-testifying witness, which is a violation
of Bankston. We reject this as pure conjecture.
In Bankston, defendant was convicted for possession of
heroin. Bankston, supra, 63 N.J. at 266, 307 A.2d 65. During the
opening statement the prosecution stated that the defendant was
under “investigation.” During trial, a detective testified that they
had entered the bar and arrested defendant based on a tip from an
informant. The detective stated, “we were looking for a certain
individual. We had a description of his clothing. He was inside the
tavern.... We were looking for an individual that had narcotics in
his possession.” Ibid. The Supreme Court noted that a police
officer can explain “the reason he approached a suspect or went to
the scene of the crime by stating that he did so ‘upon information
received[ ]’ “ to “show that the officer was not acting in an
arbitrary manner or to explain his subsequent conduct.” Id. at 268,
307 A.2d 65. However, “when the officer becomes more specific
by repeating what some other person told him concerning a crime
by the accused[,] the testimony violates the hearsay rule ... [and
8

his] Sixth Amendment right to be confronted by witnesses against
him.” Id. at 268-69, 307 A.2d 65. The Court noted that “[w]hen the
logical implication to be drawn from the testimony leads the jury
to believe that a non-testifying witness has given the police
evidence of the accused's guilt, the testimony should be disallowed
as hearsay.” Id. at 271, 307 A.2d 65. The Court found that the
“inescapable inference from [the detective's] testimony was that
the informer had given information that defendant would have
narcotics in his possession” and reversed the conviction. Ibid.
The Court further explained Bankston and subsequent cases
by stating that “‘[t]he common thread that runs through [the
Bankston cases] is that a police officer may not imply to the jury
that he possesses superior knowledge, outside the record, that
incriminates the defendant.’” State v. Kemp, 195 N.J. 136, 155,
948 A.2d 636 (2008)(quoting State v. Branch, 182 N.J. 338, 351,
865 A.2d 673 (2005)). Therefore, a police officer is allowed to use
the phrase “based on information received” to explain his actions
“only if necessary to rebut a suggestion that they acted arbitrarily
and only if the use of that phrase does not create an inference that
the defendant has been implicated in a crime by some unknown
person.” Branch, supra, 182 N.J. at 352, 865 A.2d 673.
Here, defendant argues that the officers' references to
Santos created the implication that Santos had positively identified
defendant as one of the robbers. In other words, the officers
“possesse[d] superior knowledge, outside the record, that
incriminate[d] defendant.” Kemp, supra, 195 N.J. at 155, 948 A.2d
636. This implication was bolstered by the fact that the State
offered testimony from Investigator Hallett to explain the reason
why Santos was not available as a witness.
We agree with the State that the limited references to
Santos leads to “considerable speculation” as to the impact it had
on bolstering Tair's testimony. Further, the State correctly notes
that its proffer of testimony as to the reason why Santos was
unavailable was to counter any negative inferences that could be
drawn from his absence.
Defendant’s argument is without merit. At trial, the State
presented only the victim's own identification of defendant.
References to Santos were contextually appropriate and would not
lead to the “inescapable” implication that Santos made a positive
identification. Tair’s positive identification of the suspects
minimized any speculation as to whether or not Santos made a
positive identification.
9

We reach a similar result as to the Confrontation Clause.
Defendant argues that the references made to Santos implied that
he had positively identified the defendant, which constitutes a
violation of the Confrontation Clause of the Sixth Amendment,
U.S. Const. amend. VI, and our own State Constitution, N.J. Const.
art. I, ¶ 10.
Both the Sixth Amendment of the Constitution and Article
Ten of our State Constitution provide that “‘[i]n all criminal
prosecutions, the accused shall enjoy the right ... to be confronted
with the witnesses against him [.]’” State v. Buda, 195 N.J. 278,
299, 949 A.2d 761 (2008) (quoting U.S. Const. amend. VI; N.J.
Const. art. I, ¶ 10). In Crawford v. Washington, 541 U.S. 36, 124
S.Ct. 1354, 158 L. Ed.2d 177 (2004), the United States Supreme
Court adopted a two-pronged test: “Testimonial statements of
witnesses absent from trial [may be] admitted only where the
declarant is unavailable, and only where the defendant has had a
prior opportunity to cross-examine.” Id. at 59, 124 S.Ct. at 1369.
The Court noted that “[t]he text of the Confrontation Clause ...
applies to ‘witnesses’ against the accused-in other words, those
who ‘bear testimony.’ “ Id. at 51, 124 S.Ct. at 1364, 158 L. Ed.2d
at 197 (citations omitted). It further stated that “‘[t]estimony,’ in
turn, is typically ‘[a] solemn declaration or affirmation made for
the purpose of establishing or proving some fact.’ “ Ibid. (citation
omitted). The Court noted that “[a]n accuser who makes a formal
statement to government officers bears testimony in a sense that a
person who makes a casual remark to an acquaintance does not.”
Ibid.
However, the Court declined to provide a bright line
definition of what constitutes “testimony.” Among other things, it
stated that “the admissibility of non-hearsay testimonial statements
is not affected or otherwise influenced by Confrontation Clause
considerations.” Buda, supra., 195 N.J. at 301, 949 A.2d 761
(citing Crawford, supra, 541 U.S. at 59 n. 9, 124 S.Ct. at 1369 n.
9., 158 L. Ed.2d at 197 n. 9).
Defendant argues that the testimony referring to Santos was
testimonial in nature because it created the implication that Santos
identified Harris. We reach the same result here as we did with the
earlier thematic argument-the limited references to Santos were
neither hearsay nor do they implicate the Confrontation Clause.
(Dkt. No. 7-8 at p. 8-14.)

10

The Confrontation Clause of the Sixth Amendment states that, “[i]n all criminal
prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against
him.” U.S. CONST. amend. VI. The United States Supreme Court has stated with respect to the
Confrontation Clause that, “[t]estimonial statements of witnesses absent from trial have been
admitted only where the declarant is unavailable, and only where the defendant has had a prior
opportunity to cross-examine.” Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158
L.Ed.2d 177 (2004) (footnote omitted). “As to the second requirement, the Confrontation Clause
requires that a defendant have had ‘a full and fair opportunity to probe and expose [testimonial]
infirmities' of an unavailable government witness in order for that witness's prior testimony to be
admissible.” Ross v. Dist. Attorney of Cnty. of Allegheny, 672 F.3d 198, 206–07 (3d Cir.2012)
(citing United Staets v. Owens, 484 U.S. 554, 558, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988)
(quoting Delaware v. Fensterer, 474 U.S. 15, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985))). The
Confrontation Clause applies only to testimonial hearsay that is admitted to establish the truth of
the matter asserted. See Davis v. Washington, 547 U.S. 813, 823–25, 126 S.Ct. 2266, 165
L.Ed.2d 224 (2006). “[S]tatements made under circumstances that would lead an objective
witness reasonably to believe that the statement would be available for use at a later trial are
testimonial.” United States v. Hinton, 423 F.3d 355, 360 (3d Cir.2005).
This Court finds that the Appellate Division did not unreasonable apply clearly
established federal law or deny Petitioner’s Confrontation Clause claim based on an
unreasonable determination of the facts. As the Appellate Division found and as the record
demonstrates, the trial did not include any evidence or testimony regarding Mr. Santos’
identification of Petitioner at the “show up” or any other statements he may have made. Because
there was no introduction of testimonial hearsay at trial, see Davis, 547 U.S. at 823–25, the

11

Appellate Division’s decision that the contextual references to Mr. Santos’ presence did not
implicate issues of hearsay or of the Confrontation Clause was a reasonable application of
federal law. Similarly, because the references to Santos were contextual and did not constitute
hearsay, implied or otherwise, the references did not deprive Petitioner of his right to a fair trial.
Accordingly, habeas relief is not warranted on Claim I and it will be denied.
B. Claim II – Prosecutorial Misconduct Arising from the Prosecutor’s Opening Statement
Petitioner raises two challenges to the prosecutor’s opening statement at trial. First, he
argues that the prosecutor implied that Petitioner was a career criminal and thereby lowered the
State’s burden of proof. Second, Petitioner asserts that the prosecutor expressed his personal
opinion and directed the jury on how to interpret inconsistent facts and evidence in the case.
Petitioner argued as follows in the state courts with respect to the prosecutor’s impliedly
labeling Petitioner as a career criminal:
In his opening remarks, the Prosecutor said,
[STATE] . . . Ladies and gentlemen, this is a case about
three people working hard on a hot summer night in 2005. .
. . The first ones name is Tair Jumaniyaazoee. You will
learn on August 5th, 2005, Tair was . . . working at the
Citgo Gas Station . . . perhaps not a very glamorous job by
today’s standards but nonetheless good, hard, honest work .
. . . [A]nd Tair was doing all of this because he needed
money. He was working.
The other two individuals that decided to come to the Citgo
Gas Station and do some work on the evening of August
5th, 2005, one of them is an individual by the name of Blair
Williams. He’s not a party to this action. The other
individual that Blair Williams came with is this defendant:
Jermaine Harris. And what the evidence is going to show,
ladies and gentlemen, is that this defendant and Blair
Williams came to the Citgo Gas Station for the very same
reason Tair Jumaniyaazoe was there: they needed money,
that’s why they came. But they didn’t come to the Citgo
Gas Station with squeegees for a windshield, or a tire iron
12

for a tire, or any other engine analyzer; they did come to
the gas station with a tool, specifically this defendant came
to the gas station with a tool, and his tool was a loaded .38
caliber handgun.
Now, what you’re going to learn during the course of this
trial, ladies and gentlemen, is that this defendant and Blair
Williams came to that gas station by car, . . . but they didn’t
pull up to the pumps or to the store, . . . because when they
were done their work at the gas station, they didn’t want
anything to pop up that would keep them there any longer
than they had to be, so they parked a short distance away.
....
These remarks, in which the victim was described as an upstanding
citizen, and the perpetrators were characterized as career criminals,
bolstered the credibility of any and all of the State’s potential
witnesses, and irreparably damaged the defense. Moreover, such
remarks immediately undermined the defendant’s credibility and
shifted the burden of proof in the case; thus, the defendant had to
disprove the allegations against him.
(Dkt. No. 7-6 at p. 49-50; 52 (internal citations omitted).) Petitioner further argued that the
prosecutor’s statements implied that Petitioner had no means of income and made a living
through crime. (Id. at pp. 54-55.)
With respect to his claim that the prosecutor expressed his personal opinions and
instructed the jury on how to resolve inconsistencies in the evidence, Petitioner argued before the
state court as follows:
After labeling the defendant, the Prosecutor continued:
[STATE] . . . And as with all evidence, there’s going to be in some
inconsistencies. I would suggest that if all of the State’s evidence
was entirely consistent, you might be a little skeptical about it,
entirely consistent evidence like a t.v. show. You are going to learn
that when officers from Pleasantville first responded to the Citgo
Gas Station and spoke with Tair although he described the gun
man as having a heavier beard, blue jeans, white T-shirt, yellow
boots and the black “P” hat, Tair said – at least these detectives
reported – that the individual had braided hair. . . . In the real
13

world, ladies and gentlemen, individuals with guns in their sides
are actually terrorized. And although this defendant did not have
braided hair, you will learn that when he was taken into custody he
had something that I will submit to you at the end of the trial is
easily confused with braided hair under that situation. He had a
black doo rag, a doo rag if worn underneath of a black hat, falls
underneath the neck, not only that but a doo rag that has strings
tied in the back would fall out of the back.
These remarks constituted an expression of the Prosecutor’s personal
opinion and thereby directed the jury on how to interpret the inconsistent
facts and evidence within the case. . . . Such emphasis [on an
inconsistency] minimized the basis of the defense: the defense of
misidentification. . . . This left no room for the jury to acquit the defendant
based on evidentiary inconsistency.
(Dkt. No. 7-6 at pp. 57-58 (emphasis in original) (internal citations omitted).)
The last reasoned decision on these prosecutorial misconduct issues was from the
Appellate Division on petitioner’s direct appeal which analyzed them as follows:
We also reject defendant's remaining arguments that the
prosecutor's comments were inappropriate . . . . Contrary to
defendant's assertions, the prosecutor neither labeled him a “career
criminal” nor commented on his economic status, and the
prosecutor's comments were within the bounds of propriety;
moreover, we do not discern that the prosecutor interjected his
personal opinion when presenting his opening.
(Dkt. No. 7-8 at p. 24.)
A criminal defendant’s due process rights are violated if prosecutorial misconduct
renders a trial fundamentally unfair. See Darden v. Wainright, 477 U.S. 168, 182-83 (1986). A
habeas petition will be granted for prosecutorial misconduct only when the misconduct “so
infected the trial with unfairness as to make the resulting conviction a denial of due process.” Id.
at 181 (internal quotation marks and citation omitted). A prosecutorial misconduct claim is
examined in “light of the record as a whole” in order to determine whether the conduct “had a
substantial and injurious effect or influence” on the jury’s verdict. See Brecht v. Abrahamson,

14

507 U.S. 619, 638 (1993). A “reviewing court must examine the prosecutor’s offensive actions
in context and in light of the entire trial, assessing the severity of the conduct, the effect of the
curative instructions, and the quantum of evidence against the defendant.” Moore v. Morton, 255
F.3d 95, 107 (3d Cir. 2001).
Petitioner’s first argument is that the prosecutor’s “work” theme improperly labeled
Petitioner as a career criminal who had a propensity to commit crimes. The Appellate Division
determined that the prosecutor’s statements did not make such an implication and that they were
not improper. In doing so, that court rejected Petitioner’s assertion that the comments denied him
his right to a fair trial. After reviewing the record with respect to the prosecutor’s opening
statement (see Dkt. No. 7-1 at pp. 7-20), the Court concludes that the state court’s denial of this
claim was not based on an unreasonable determination of the facts or an unreasonable
application of clearly established federal law. The prosecutor summarized the facts and evidence
that would be produced at trial regarding only this robbery and its surrounding circumstances. As
the Appellate Division found, the prosecutor did not describe Petitioner as a “career criminal” in
any way, nor did he state that Petitioner had no means of income and was thus likely to commit
crimes for financial gain. Petitioner’s argument rests solely on speculative inferences of
implications that are not supported by the record. The Appellate Division’s determination that
the statements were not improper, and therefore did not render Petitioner’s trial fundamentally
unfair, was reasonable and does not afford a basis for habeas relief.
Petitioner next argues that the prosecutor improperly expressed his own opinion in his
opening remarks to the jury. The Appellate Division concluded that the prosecutor had not
injected personal opinions in his opening remarks. The Court finds that the Appellate Division’s
ruling was not based on an unreasonable determination of the facts or an unreasonable

15

application of federal law. First, the prosecutor is entitled to considerable latitude to argue the
evidence and reasonable inferences that can be drawn from that evidence. See United States v.
Werme, 939 F.2d 108, 117 (3d Cir. 1991). Here, contrary to Petitioner’s claims, the prosecutor
did not instruct the jury on how to determine the facts of the case and he did not state personal
opinions. Rather, the prosecutor raised inferences that potentially could have been drawn from
the evidence to be presented. Furthermore, the prosecutor did not state his personal opinion or
belief in the Petitioner’s guilt. See Fahy v. Horn, 516 F.3d 169, 203 (3d Cir. 2008) (noting that a
prosecutor cannot express his personal belief in the credibility of a witness or the guilt of a
defendant). Finally, it is worth noting that the jury was specifically instructed that the
prosecutor’s opening statement was not evidence, (see Dkt. No. 7-1 at p. 3.) and that it needed to
base its decision on the evidence in the case. (See id.) The jury is presumed to have followed
the instructions given to it by the trial judge. See Weeks v. Angelone, 528 U.S. 225, 234 (2000).
Accordingly, under such circumstances, the Court finds that petitioner is not entitled to habeas
relief on this Claim.
C. Claim III – Show-Up Identification and Ineffective Assistance of Counsel for Not
Requesting a Wade Hearing
In Claim III, Petitioner raises two issues. First, Petitioner argues that the “show up”
identification procedure employed by the police was impermissibly suggestive and unreliable.
Second, he argues that his trial counsel was ineffective for failing to request a Wade4 hearing to
challenge the identification. As discussed below, the Court finds that the Appellate Division’s
decisions on these points was not based on an unreasonable determination of the facts or an
unreasonable application of federal law. Petitioner therefore is not entitled to habeas relief on
this Claim.
4

United States v. Wade, 388 U.S. 218 (1967)
16

1. The Show Up Identification
The last reasoned decision on Petitioner’s identification claim was from the Appellate
Division, which analyzed the claim as follows:
Defendant asserts that the show-up procedure was impermissibly
suggestive and created a likelihood of misidentification. Defendant argues
that the show-up procedure was impermissibly suggestive because the
identification was made in custodial circumstances; Tair's description of
the robbers lacked “key details regarding the description of the
individual's appearances”; and Tair's identification of defendant was
“heightened” by the presence of Williams and Santos' positive
identification. We disagree.
The New Jersey Supreme Court has adopted the United States
Supreme Court's two-step analysis to determine the admissibility of outof-court identifications. See Manson v. Brathwaite, 432 U.S. 98, 110, 97
S.Ct. 2243, 2251, 53 L. Ed.2d 140, 151 (1977); Neil v. Biggers, 409 U.S.
188, 198-99, 93 S.Ct. 375, 382, 34 L. Ed.2d 401, 411 (1972); State v.
Madison, 109 N.J. 223, 233, 536 A.2d 254 (1988). First, a reviewing court
must determine “whether the identification procedure was impermissibly
suggestive.” State v. Romero, 191 N.J. 59, 76, 922 A.2d 693 (2007)
(citation omitted). If it determines that the procedure was impermissibly
suggestive, a court must determine “whether the impermissibly suggestive
procedure was nevertheless reliable” by considering the “totality of the
circumstances” and “weighing the suggestive nature of the identification
against the reliability of the identification.” Ibid. The Supreme Court has
held that “reliability is the linchpin in determining the admissibility of
identification testimony.” Manson, supra, 432 U.S. at 114, 97 S.Ct. at
2253, 53 L. Ed.2d at 153.
Our Supreme Court has noted that “one-on-one showups are
inherently suggestive” and “only a little more is required in a showup to
tip the scale toward impermissibly suggestive[.]” State v. Herrera, 187
N.J. 493, 504, 902 A.2d 177 (2006). However, “standing alone a showup
is not so impermissibly suggestive to warrant proceeding to the second
step.” Ibid. Show-ups have been permitted because “they are likely to be
accurate, taking place, as they do, before memory has faded and because
they facilitate and enhance fast and effective police action and they tend to
avoid or minimize inconvenience and embarrassment to the innocent.”
Ibid. (internal quotations and editing marks omitted). Therefore, “[e]ach
showup setting must necessarily stand or fall on its own unique facts.”
Romero, supra, 191 N.J. at 77, 922 A.2d 693.

17

In Herrera, supra, the victim was assaulted, his car was stolen, and
he was hospitalized. Police subsequently told the victim “we found your
car, we located your car with somebody in it, we want you to come with
us to identify the person.” Id. at 506, 902 A.2d 177. Our Court has noted
that these comments made the showup impermissibly suggestive because
“they may have influenced the victim to develop a firmer resolve to
identify someone he might otherwise have been uncertain was the culprit.”
Ibid.
In Romero, supra, the victim, who had previously been attacked,
chanced upon someone he believed to be his attacker and “recognized” his
face immediately. Id. at 77, 922 A.2d 693. The victim called the police
and described the assailant. After some searching, the police saw the
defendant, who matched the description, and arrested him. The police then
drove the defendant to the victim's home, told the victim “we have
somebody that fits the description [that] you described,” and asked “[w]hy
don't you take a walk around the corner with us and see if this is the
person.” Id. at 77-78, 922 A.2d 693. The victim viewed the defendant
through the side window of the patrol car and identified him as his
attacker. Id. at 78, 922 A.2d 693. The Court distinguished the facts from
Herrera and held that the show-up was not impermissibly suggestive for
several reasons: (1) it appeared that the police was motivated by a concern
not to detain a potentially innocent person; (2) the police merely told the
victim that “they had detained someone who fit the description given by
[the victim] minutes earlier”[;] (3) that when presenting a man fitting the
victim's “unsolicited description, the police made no representations that
he was the man who attacked [the victim], only that he matched [the
victim]'s description”[;] and (4) “[t]he fact that defendant was handcuffed
in the police car did not convert this showup identification into one that
was impermissibly suggestive.” Id. at 78-79, 922 A.2d 693.
In State v. Wilson, 362 N.J.Super. 319, 327, 827 A.2d 1143 (App.
Div. 2003), which was approvingly cited by Romero, we found that the
witnesses' identification of the defendant seated and handcuffed in the
back of the police car was suggestive but that “such suggestive
circumstances did not render the identification procedure per se improper
and unconstitutional.” Ibid.
Here, the show-up was not impermissibly suggestive. The show-up
was conducted as soon as possible after the suspects were apprehended,
thirty to forty minutes after the initial observation, while the witnesses'
memories were still fresh. Tair and Santos were instructed not to speak to
each other while they were being driven to Atlantic City, and they
complied. The fact that the suspects were handcuffed does not make it
“per se improper.” Ibid. Officer Henderson, while transporting Tair and
Santos to Atlantic City, told them, “[t]hese may be possibl[y the culprits],
18

it may not be” and “I want you to view these guys at this point and ... it's
up to you guys to let me know if these are the individuals ... who came to
the gas station.” Nothing in the record suggests that the police influenced
the witnesses in any way.
When determining whether the impermissibly suggestive show-up
procedure was nevertheless sufficiently reliable to warrant the
admissibility of the identification by the victim, courts must consider the
totality of the circumstances surrounding the identification procedure and
weigh the Manson factors against the “corrupting effect of the suggestive
procedure.” Herrera, supra, 187 N.J. at 506-07, 902 A.2d 177 (quoting
State v. Madison, 109 N.J. 223, 240, 536 A.2d 254 (1988)). The factors
listed in Mason are “the opportunity of the witness to view the criminal at
the time of the crime, the witness' degree of attention, the accuracy of his
prior description of the criminal, the level of certainty demonstrated at the
confrontation, and the time between the crime and the confrontation.”
Manson, supra, 432 U.S. at 114, 97 S.Ct. at 2253, 53 L. Ed.2d at 151.
Our review of the Mason factors supports a reliable identification.
Tair indicated that he “took an opportunity to get a good look at [the
robbers]” during the robbery and scanned them while they were walking
away in order to “report [it] to the police .” He paid attention to details
such as the face, height, shoes, weight and hair style and was able to
provide a detailed description of each robber-what they were wearing,
their haircuts, facial hair-which matched the descriptions of the suspects.
The only detail that did not match was that Tair described the gunman as
having neck-length braids, but, at the time, neither defendant nor Williams
had neck-length braids. During the show-up procedure, Tair's
identification of defendant was immediate and positive; he showed no
hesitancy. We conclude that Tair's identification was sufficiently reliable
to overcome any claim of an impermissibly suggestive showup procedure.
(Dkt. No. 7-8 at pp. 17-22.)
The Supreme Court set forth the standard governing the admissibility of an out of court
identification in Manson v. Brathwaite, 432 U.S. 98, 116 (1977). Pursuant to Manson, an
identification procedure violates due process and is thus inadmissible if it “both (1) [is]
unnecessarily suggestive and (2) creates a substantial risk of misidentification.” United States v.
Brownlee, 454 F.3d 131, 137–38 (3d Cir. 2006). Thus, even if an identification procedure is
unnecessarily suggestive, the identification may still be admitted at trial so long as the

19

identification is reliable. Manson v. Brathwaite, 432 U.S. at 114 (“reliability is the linchpin in
determining the admissibility of identification testimony”). The “central question” is “whether
under the totality of the circumstances the identification was reliable even though the
confrontation procedure was suggestive.” Id. at 106 (citing Neil v. Biggers, 409 U.S. 188, 199
(1972)) (internal quotations omitted). The factors to be considered include the opportunity of the
witness to view the criminal at the time of the crime, the witness’ degree of attention, the
accuracy of his prior description of the criminal, the level of certainty demonstrated at the
confrontation, and the time between the crime and the confrontation. Id.
Petitioner argued before the Appellate Division that the witness’ identification at the
“show up” was impermissibly suggestive and unreliable. The Appellate Division concluded that
the identification procedure was not impermissibly suggestive and, even if it were, that court also
concluded that the identification was reliable. Upon review of the record as discussed above, this
Court concludes that the Appellate Division reasonably applied federal law and based its
decision on a reasonable determination of the facts. The Appellate Division applied the correct
standard as announced by the United States Supreme Court in Manson and Biggers, including
the factors to be considered in determining whether the identification was reliable. Specifically,
the record reflects that Tair, the identifying witness, had sufficient opportunity to view Petitioner
and Mr. Williams at the time of the robbery and had done so for the purposes of providing a
description to the police. Similarly, the witness demonstrated a sufficient level of attention in his
observations and was able to describe the perpetrator’s clothing, features, and the gun used in the
robbery. Other than the witness’ inclusion of neck-length braids in his description of the gunman,
his prior description was accurate and matched clothing and other details regarding Petitioner,
Mr. Williams, and items found in their vehicle. In addition, the witness demonstrated certainty

20

and stated that he was positive about the identification. Moreover, the time between the
confrontation and the identification was a relatively brief thirty to forty minutes. Under these
circumstances, the Appellate Division did not unreasonably apply federal law and Petitioner is
not entitled to habeas relief on this claim.
2. Ineffective Assistance of Counsel for Not Requesting a Wade Hearing
With respect to Petitioner’s claim that his counsel was ineffective for failing to request a
Wade hearing to challenge the identification, the Appellate Division reasoned as follows:
We, likewise, reject defendant's claim that counsel’s failure to
request a Wade hearingFn.3 constituted ineffective assistance of counsel.
While we could defer this claim to an application for Post-Conviction
Relief, Rule 3:22-1, we are satisfied that the record is sufficient to address
this claim with finality.
[Fn. 3] United States v. Wade, 388 U.S. 218 (1967)
We restate the basic principles that apply to such a claim. When
determining if defendant established a prima facie claim of ineffective
assistance of counsel, “courts should view the facts in the light most
favorable to a defendant.” State v. Preciose, 129 N.J. 451, 462-63, 609
A.2d 1280 (1992). To establish a prima facie claim of ineffective
assistance of counsel, the applicable test is set forth in Strickland v.
Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L. Ed.2d 674,
693 (1984) and United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80
L. Ed.2d 657 (1984), adopted by the Supreme Court of New Jersey in
State v. Fritz, 105 N.J. 42, 58, 519 A.2d 336 (1987). Under the StricklandCronic-Fritz standard, defendant must prove that: “1) counsel's
performance was deficient and that 2) there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding
would have been different.” State v. Allegro, 193 N.J. 352, 366, 939 A.2d
754 (2008) (quoting State v. Loftin, 191 N.J. 172, 197-98, 922 A.2d 1210,
(2007)) (internal quotation marks omitted). To restate, “a defendant must
prove an objectively deficient performance by defense counsel, and that
such deficient performance so inured to the defendant's prejudice that it is
reasonably probable that the result would be altered.” Allegro, supra, 193
N.J. at 366, 939 A.2d 754.
Here, defendant cannot succeed on the second prong of the
Strickland-Cronic-Fritz standard since, as we have determined, the show-

21

up procedure was not impermissibly suggestive, and the identification was
reliable.
(Dkt. No. 7-8 at pp. 22-24.)
In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the
Supreme Court articulated the test for demonstrating an ineffective assistance of counsel claim.
First, the petitioner must show that considering all of the circumstances, counsel's performance
fell below an objective standard of reasonableness. See id. at 688; see also Ross v. Varano, 712
F.3d 784, 798 (3d Cir.2013). Petitioner must identify acts or omissions that are alleged not to
have been the result of reasonable professional judgment. See Strickland, 466 U.S. at 690. The
federal court must then determine whether in light of all of the circumstances, the identified acts
or omissions were outside the wide range of professional competent assistance. See id.
Second, a petitioner must affirmatively show prejudice, which is found where “there is 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.” See id. at 694; see also McBride v. Superintendent, SCI Houtzdale,
687 F.3d 92, 102 n. 11 (3d Cir.2012). “With respect to the sequence of the two prongs, the
Strickland Court held that ‘a court need not determine whether counsel's performance was
deficient before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course should be followed.’” Rainey
v. Varner, 603 F.3d 189, 201 (3d Cir.2010) (quoting Strickland, 466 U.S. at 697).
Additionally, in assessing an ineffective assistance of counsel claim under AEDPA, the
Supreme Court has noted that:

22

The pivotal question is whether the state court's application of the
Strickland standard was unreasonable. This is different from
asking whether defense counsel's performance fell below
Strickland's standard. Were that the inquiry, the analysis would be
no different than if, for example, this Court were adjudicating a
Strickland claim on direct review of a criminal conviction in a
United States district court. Under AEDPA, though, it is a
necessary premise that the two questions are different. For
purposes of § 2254(d)(1), an unreasonable application of federal
law is different from an incorrect application of federal law. A
state court must be granted a deference and latitude that are not in
operation when the case involves review under the Strickland
standard itself.
Harrington, 562 U.S. at 101 (internal quotation marks and citation omitted) (emphasis in
original).
On direct appeal, Petitioner argued that his trial counsel was ineffective for failing to
request a Wade hearing in order to challenge the out-of-court identification procedure. The
Appellate Division concluded that Petitioner could not demonstrate prejudice, as required under
Strickland, because the identification was not impermissibly suggestive or unreliable. This court
concludes that the Appellate Division’s decision was based on a reasonable application of federal
law and a reasonable determination of the facts. The Appellate Division identified and applied
the appropriate standard under Strickland. Specifically, that court found that Petitioner could not
demonstrate a reasonable probability that the outcome of the trial would have been different if
counsel had requested a Wade hearing because the identification was admissible under the
reliability analysis under Manson and Biggers. In order to succeed on a claim of ineffective of
counsel based on counsel’s failure to request a Wade hearing, Petitioner “must show that he
would likely have prevailed [in the hearing] and that, having prevailed, there is a reasonable
likelihood that he would not have been convicted.” Thomas v. Varner, 428 F.3d 491, 502 (3d Cir.

23

2005). Petitioner has not made such a showing and therefore he is not entitled to habeas relief on
this Claim.
D. Claim IV – Ineffective Assistance of Counsel by Failing to Object to the Prosecution’s
Opening Statement and Failing to Include Second Degree Robbery on the Verdict Sheet
In Claim IV, Petitioner makes two additional arguments regarding the effectiveness of his
trial counsel. First, Petitioner argues that trial counsel was ineffective for failing to object when
the prosecutor told the jury that Mr. Williams, the other person charged in the robbery, would
offer testimony even though Mr. Williams did not testify at trial. Second, Petitioner argues that
trial counsel was ineffective for failing to permit the trial court to include second degree robbery
on the jury’s verdict sheet despite the fact that the trial court had charged the offense to the jury.
Petitioner raised this Claim in his post-conviction relief (“PCR”) petition. The last
reasoned decision on this Claim was from the Appellate Division during petitioner’s PCR
proceedings. The Appellate Division analyzed this Claim as follows:
On appeal from the denial of his petition, defendant presents two
arguments. First, defense counsel was ineffective for failing to “clearly
delineate the second-degree [robbery] option on the verdict sheet.”
Second, defendant maintained his attorney was ineffective for failing to
object to the prosecutor's opening statement when he implied that codefendant Blair Williams would testify.
We reject these arguments and affirm the order denying
defendant's petition for PCR substantially for the reasons stated by Judge
Michael A. Donio on December 3, 2010. We agree that defendant's
allegations are insufficient to establish that defense counsel's performance
fell below an objective standard of reasonableness as required by the first
prong of the Strickland/Fritz test, and he also failed to show “ ‘there is 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.’ “ State v. Marshall, 148 N.J. 89, 157 (quoting Strickland, supra,
466 U.S. at 694, 104 S.Ct. at 2068, 2064, 80 L. Ed.2d at 698), cert. denied,
522 U.S. 850, 118 S.Ct. 140, 139 L. Ed.2d 88 (1997). Defendant's
arguments do not warrant any additional discussion. R . 2:11–3(e)(2).

24

(Dkt. No. 7-17 at p. 3.)
Because the Appellate Division affirmed “substantially for the reasons stated” by the
PCR court, this Court also considers the reasoning of the PCR court. Ylst v. Nunnemaker, 501
U.S. at 803. At a hearing, the PCR court addressed this Claim as follows:
The claim is being made for ineffective assistance of counsel and,
of course, we know it’s a two prong test that has to be looked at by the
Court, and that is that, first of all, a demonstration of a reasonable
probability that, but for the errors of counsel’s unprofessional errors, the
result of the proceeding would have been different, and a reasonable
probability is defined as a probability sufficient to undermine confidence
in the outcome.
Defendant first must show that counsel’s performance was, in fact,
deficient and therefore, he was not acting as counsel under the Sixth
Amendment. Secondly, that the outcome would have been different. The
prejudice must be proved by the defendant and can’t be presumed. It also
should be noted that ineffective assistance appeals under the case law have
never been favored by the Courts.
Also, in the case law, trial Court should grant an evidentiary
hearing to resolve ineffective assistance claim if, when viewing the
evidence in the light most favorable to the petitioner, petitioner’s made out
a prima facie case of a – in support of his PCR motion.
....
Here defendant argues that he was effectively denied effective
counsel by not allowing jury charges for lesser included offenses to be
presented to the jury. The trial transcript shows there was a colloquy
between this Court and Mr. Shenkus on that issue, and Mr. Shenkus
espoused the defense position clearly, and it was the defense position that
he basically used throughout the tria1, and that was one of identification.
He said to the Court, after being asked if the verdict sheet needed to be
amended in any any [sic], “Our defense is based on identification, we' re
not raising any issues.
“The Court: So in other words, you acknowledge the fact that if he
is found guilty that it is first degree robbery.
“Mr. Shenkus: As the verdict sheet and the indictment state, Yes.

25

“The Court: If he’s found guilty you don’t want then to have the
opportunity to find second degree?
“Mr. Shenkus: I understand that, Judge, given the fact that there is
another three, four counts in the indictment that talk completely
about a gun.
“The Court: Well, I understand that, but I’m asking you if you
want me to put in there, after count two, we find defendant guilty.
If they found guilty, to put in there, if you found guilty, was he
armed with a deadly weapon. Do you want that?
“No, I don’t want that.”
The colloquy goes on and on and on, but it is – it’s obvious that the
sole main defense of the defense was a strategy decision based on the
identification, or lack thereof, or uncertainty of the identification because
of how the incident occurred, the show-up, etcetera etcetera. And
therefore, it was obviously a strategy decision where Mr. Shenkus did not
want to give the jury a smorgasbord of charges to consider that would, in
some way, send a message to the jury that my client might not be guilty of
the most severe charge, you should look at lesser charges, where his
defense was, it wasn’t me and I’m not guilty of anything. So that is pure
strategy decision and that is one that Mr. Shenkus gave, obviously, a lot of
thought to.
The next issue that was raised is that trial counsel failed to object
to a reference to codefendant Williams in the State’s opening, and – and
that that constituted ineffective assistance of counsel because Williams did
not testify at trial. Defendant argues that any comment about him
impressed the jury that the prosecutor had other information from another
party who shared responsibility in committing the crime. Defendant argues
failure to object prevented the Court from taking preventative action and
was ineffective.
State responds that – that any statement in terms of alluding to
proposed testimony of Williams, was basically ambiguous and not clear,
and the comments were innocuous, therefore, they did not require Sixth
Amendment compulsion or an objection by counsel and did not give a
reasonable probability that the outcome of the proceeding would have
been different.
Futhermore, the Court gave at least two instructions to the jury
before the case and very strongly at the end of the case, as the Court
always does, that the evidence in the case comes from the witness stand,
that the comments of counsel are not controlling, and that if counsel say
26

something that’s different from the testimony, you are to go with the
testimony of the witnesses after you observe their credibility and their
demeanor and their believability. So the jury was told at least on two
occasions that what the lawyers say in their opening and closing is not
evidence and the evidence comes from the witness stand.
....
It would, therefore, appear that under the Strickland Fritz, two
prong standard, it would appear that the defendant does not make out a
case for relief, in my view, on either standard, but most definitely on the
second standard. The proofs in the case were strong. The eye witness
victims who were robbed, if you will, had an opportunity to observe the
defendants, the DSW bag that they made reference to was found in the car,
the gun was found in the car in plain view, the show-up took place within
an hour and the identifications were made and they were not done in an
impermissible manner, and that was already addressed by the Appellate
Division.
All the other instances complained of, quite frankly, in the case go
to what can only be considered trial strategy, not to seek lesser include
offenses, to insinuate, again, to the jury that my client didn’t commit this
horrible first degree act, maybe he committed a second or third degree act,
when the defense was clearly basically and succinctly was put forth before
the jury as one of identification. That’s a strategy decision and it does not
mean that counsel is deficient in any way for coming into a strategy
decision that five other lawyers may disagree with. It’s a strategy decision,
and quite frankly, having tried numerous cases with Mr. Shenkus, and
absolutely remembering this case and the trial, which is of benefit when
you are the trial Judge, it is my view, for the record, that Mr. Shenkus
raised all appropriate objections that should have been made, made
tactical, strategic decisions that he thought should be made and made
sense in the case, and argued vociferously that the Court should not give a
[sic] extended term sentence, which the Court agreed with and did not
give a [sic] extended term sentence based on his arguments.
Therefore, for all of those reasons, the defendant’s application fails
under Strickland, in my view, under both prongs of the case, and the
application for post-conviction relief is, therefore, denied.
(Dkt. No. 7-5 at pp. 6-15.)
The denial of this Claim by the state courts was not an unreasonable application of
clearly established federal law. The Appellate Division cited to and applied the Strickland test to

27

determine whether the PCR court properly denied this Claim and specifically relied on the
reasons given by the PCR court. The PCR court also stated and applied the correct Strickland
standard. Specifically, the PCR court concluded that trial counsel made all appropriate objections
that should have been made and that counsel’s decision not to permit inclusion of second degree
robbery on the verdict sheet was a reasoned strategic decision. The Court further addresses each
of these points below.
1. Counsel’s Failure to Object to the Prosecutor’s Reference to Williams
In his PCR petition, Petitioner argued that his trial counsel was ineffective for failing to
object when the prosecutor told the jury in his opening statement that Blair Williams, the codefendant whose criminal action proceeded separately from Petitioner’s, would testify to certain
facts even though he did not in fact testify. The challenged portion of the opening statement was
as follows:
Again, Rando is going to tell you, I didn't hit my lights; I didn't turn my
sirens on, but the car past [sic] me in the opposite direction and pulls over
on the other side of the road. Rando is going to tell you there is less than
ten feet from the car when the driver door emerges and this defendant gets
out. Blair Williams will tell you, the other individual, he gets out of the
passenger side seat and they start to walk.
(Dkt. No. 7-1 at p. 9. (emphasis added).) The PCR court concluded that trial counsel raised all
appropriate objections and that Petitioner had not satisfied either prong of the Strickland test and,
in particular, the prejudice prong. In finding that Petitioner had failed to show prejudice, the
court observed that the evidence in the case was strong and specifically noted the eye witness
testimony and the discovery of implements of the crime in the vehicle Petitioner and Mr.
Williams occupied. That court also noted that it had provided the jury with instructions stating
that the attorneys’ statements were not evidence and were not controlling. This Court concludes
that the PCR court’s denial of this Claim was not based on an unreasonable application of federal
28

law or an unreasonable determination of the facts. Given the court’s admonitions to the jury and
the evidentiary record in the case, Petitioner has not shown that the result of his trial would have
been different if his counsel had objected to the prosecutor’s remark. Petitioner is therefore not
entitled to habeas relief on this claim and it will be denied.
2. Counsel’s Failure to Permit Inclusion of Second Degree Robbery on the Verdict
Sheet
Relief also will be denied on Petitioner’s claim regarding counsel’s failure to permit
inclusion of second degree robbery on the verdict sheet. Under relevant New Jersey law,
“[r]obbery is a crime of the second degree, except that it is a crime of the first degree if in the
course of committing the theft the actor . . . is armed with, or uses or threatens the immediate use
of a deadly weapon.” N.J. STAT. ANN. § 2C:15-1. In addressing this claim, the PCR court cited to
the trial transcript reflecting trial counsel’s decision not to include language designating second
degree robbery. As the PCR court noted, the defense strategy was one of misidentification; that
is, Petitioner was not involved in the robbery in any way—let alone to some lesser degree than
that charged—and the defense therefore was not based on the absence of a weapon. (See Dkt.
No. 7-3 at pp. 18-21.) Indeed, at trial, the victim identified the weapon found in the vehicle
occupied by Petitioner and Mr. Williams as the one used during the robbery. (Dkt. No. 7-1 at
pp. 20-21.) Thus, the PCR court’s denial of this claim, based on its determination that counsel’s
decision not to include second degree robbery was a strategic choice, was not based on an
unreasonable application of Strickland.
To succeed on an ineffective assistance claim, Petitioner “must overcome the
presumption that, under the circumstances, the challenged action might be considered sound trial
strategy.” Strickland, 466 U.S. at 689. “The Sixth Amendment guarantees reasonable
competence, not perfect advocacy judged with the benefit of hindsight.” Yarborough v. Gentry,
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540 U.S. 1, 8 (2003) (per curiam) (citing Bell v. Cone, 535 U.S. 685, 702 (2002); Kimmelman v.
Morrison, 477 U.S. 365, 382 (1986); Strickland, 466 U.S. at 689; United States v. Cronic, 466
U.S. 648, 656 (1984)). The PCR court considered counsel’s decision in light of the overall
defense strategy and did not unreasonably apply federal law in finding that counsel provided
reasonable professional assistance. Moreover, the PCR court’s determination that Petitioner had
not satisfied the prejudice prong because of the weight of the evidence also was reasonable
because Petitioner did not demonstrate a reasonable probability that the outcome of the trial
would have been different had second degree robbery been included on the verdict sheet.
Furthermore, Petitioner fails to show that the denial of this claim was based on an unreasonable
determination of the facts. Therefore, petitioner is not entitled to federal habeas relief on Claim
IV.
E. 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). Applying this standard, this Court finds that a certificate of appealability shall not issue
in this case.

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V.

CONCLUSION

For the foregoing reasons, petitioner’s habeas petition will be denied and a certificate of
appealability shall not issue. An appropriate order will be entered.

DATED: November 10, 2017
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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