FAULK v. POWELL et al

Filing 10

OPINION FILED. Signed by Judge Jerome B. Simandle on 3/27/18. (js)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

GERALD FAULK,
Petitioner,
v.
JOHN J. POWELL, et al.,
Respondents.

:
: Civil Action No. 14-5915 (JBS)
:
:
:
:
OPINION
:
:
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:

APPEARANCES:
Gerald Faulk
Bayside State Prison
P.O. Box F1 4293
Route 47
Leesburg, NJ 08327
Petitioner, pro se
Stephanie Davis-Elson
Hudson County Prosecutor’s Office
Administration Building
595 Newark Avenue
Jersey City, NJ 07306
On behalf of Respondents.
Simandle, District Judge
I.

INTRODUCTION
Petitioner Gerald Faulk (“Petitioner”) has filed a pro se

Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
(ECF No. 1.)
will

deny

For the reasons explained in this Opinion, the Court

the

appealability.

Petition

and

will

also

deny

a

certificate

of

II.

FACTUAL BACKGROUND & PROCEDURAL HISTORY
A.

FACTUAL BACKGROUND

Petitioner’s
invasions

and

conviction

armed

stemmed

robberies

that

from

a

series

Petitioner

and

of
his

home
then-

girlfriend committed over the course of a few months in Jersey
City, New Jersey.

The factual background in this matter was

summarized in part by the New Jersey Superior Court, Appellate
Division upon Petitioner’s direct appeal.1

(ECF No. 6-12 at 2-5.)

The first offense occurred on June 20, 2007, when a black
male who was later identified as Petitioner, entered the victim’s
apartment, and took $200 and a wristwatch while holding a knife to
the victim’s throat.

(Id. at 2-3.)

The victim reported the

incident to the police but was not able to make a photographic
identification of the suspect.

Two days later, on June 22, 2007,

another victim observed a male enter his home, tell him that he
was “gonna pay” and assaulted him causing a fractured jaw and nose.
(Id. at 3.) Shortly thereafter, the victim of the second incident,
informed

the

investigating

detectives

that

the

perpetrator’s

street name was “Wise” and identified Petitioner in a photograph
array.

(Id.)

Just over a month later on August 8, 2007, a third victim was
robbed in her apartment.

(Id. at 4.)

1

She, along with a neighbor,

The facts found by the Appellate Division are presumed correct
pursuant to 28 U.S.C. § 2254(e)(1).
2

were able to describe the perpetrator as well as a woman who was
also in the vicinity at the time of the incident.

(Id.)

Realizing

the similarities between the most recent robbery and the two which
occurred in June, detectives asked the latest victim to identify
the perpetrator using a book of photographs of black males that
included a photograph of the Petitioner.

(Id.)

identified the Petitioner with certainty.

The victim

(Id.)

On August 14,

2017, the first victim’s apartment was burglarized.
37 at 15.)

(ECF No. 6-

The victim was at work at the time of the incident and

there did not appear to be any witnesses.

(Id.)

The police did

not identify Petitioner as a suspect in this incident.

(Id.)

Nonetheless he confessed to this burglary in a police interview.
(Id.)

On August 31, 2007, the first victim was robbed again at

knife point in his apartment.

(ECF No. 6-12 at 4.)

This time,

his wife and daughter-in-law walked in on the robbery.

(Id.)

Additionally, the victim’s daughter-in-law and a neighbor both
observed a woman standing outside of the building at the time of
the incident.

(Id.)

Both Petitioner and his girlfriend were

apprehended in the area where the fourth robbery occurred and were
positively

identified

by

victim

and

witnesses

identification procedure shortly thereafter.

3

in

a

show-up

(Id. at 4-5.)

B.

PROCEDURAL HISTORY

Petitioner (alongside his co-defendant, Teshia Felix) was
indicted on twenty-four counts which were as follows:

four counts

of robbery, five counts of burglary, three counts of possession of
weapon for an unlawful purpose, three counts of unlawful possession
of a weapon, three counts of conspiracy to commit robbery, three
counts of aggravated assault, three counts of conspiracy to commit
burglary, one count of theft by unlawful taking and one count of
conspiracy to commit theft by unlawful taking.

(ECF No. 6-2.)

Prior to entering a guilty plea, Petitioner made a request
for a hearing pursuant to United States v. Wade, 388 U.S. 218
(1967),

to

determine

identifications.

the

admissibility

(ECF No. 6-37 at 24.)

of

the

The trial court heard

arguments about why the Wade hearing was necessary.
37.)

witness

(ECF No. 6-

Trial counsel made a series of arguments concerning the

police

investigation

that

resulted

in

Petitioner’s

arrest

including: (1) that the police never established a basis as to how
the individual identified as “Wise” was in fact Petitioner; (Id.
at 5); (2) that the police violated an Attorney General Guideline
that recommends that detectives not involved in the investigation
conduct

some

aspects

of

the

investigation

such

as

photo

identifications; (id. at 8-10); and (3) that the show up procedure
used after the final incident was suggestive.

4

(Id. at 12-14.)

The

prosecution

responded

identifications were permissible.

that

all

of

the

witness

They conceded that the first

victim could not identify his assailant after the first incident.
However, unbeknownst to the victim, his son observed a man that
was later identified as the Petitioner outside of the victim’s
building around the time of the incident.

(Id. at 23-24.)

It was

not until the son went to the police precinct after his father was
robbed again in August, that he observed Petitioner sitting in the
precinct, and told the police that Petitioner was the man he saw
around his father’s building on the day of the robbery in June.
(Id.) The prosecution also responded that the victim of the second
robbery, who identified Petitioner by his street name, “Wise”, was
familiar with Petitioner and was an acquaintance of Petitioner’s
girlfriend.

(Id. at 16-17.)

The prosecution further argued that

the police’s use of a photograph book containing photographs of
all black males was not suggestive.

Finally, the prosecution

argued that the show up procedure was not suggestive and that it
procured a reliable identification considering that it occurred
moments after the actual incident while the witnesses’ memory was
most dependable.

They also submitted that a show up procedure was

used because two of the witnesses were undergoing post-traumatic
shock and were in need of medical care.

(ECF No. 6-37 at 22.)

the close of arguments, the trial court denied a Wade hearing.

5

At

Petitioner pled guilty to two counts of first degree robbery,
one count of second degree aggravated assault, one count of second
degree robbery and one count of third degree burglary.
6-6 at 1.)

(ECF No.

On April 28, 2009, the court entered a judgment of

conviction (“JOC”), and Petitioner was sentenced to an aggregate
eighteen-year term of imprisonment, subject to the No Early Release
Act (NERA), N.J. STAT. ANN. § 2C:43-7.2, requiring Petitioner to
serve 85% of the sentence without parole eligibility.

(ECF No. 6-

6 at 1-2.)
Petitioner appealed his conviction to the New Jersey Superior
Court, Appellate Division on September 3, 2009, although appellate
counsel has stated that Petitioner filed on May 14, 2009.
No. 6-8 at 1-8.)

(ECF

On January 24, 2011, the Appellate Division

affirmed the conviction.

State v. Faulk, Indictment No. 07-12-

2046, 2011 WL 204829 (N.J. Super. Ct. App. Div. Jan. 24, 2011).
Petitioner sought certification from the New Jersey Supreme Court,
but his petition was denied on July 14, 2011.

State v. Faulk, 23

A.3d 413 (N.J. 2011).
Petitioner then filed a petition for post-conviction relief
(“PCR”) on August 15, 2011.

(ECF No. 6-17.)

The PCR Court denied

relief on January 19, 2012, and Petitioner filed a late-notice of
appeal on July 2, 2012.

(ECF No. 6-29 at 3.)

The Appellate

Division affirmed the PCR court’s decision on January 10, 2014.
State v. Faulk, Indictment No. 07-12-2046, 2014 WL 87883 (N.J.
6

Super. Ct. App. Div. Jan. 10, 2014).
Jersey

Supreme

Court

certification.

State

denied
v.

On July 10, 2014, the New

Petitioner’s

Faulk,

94

A.3d

913

petition
(N.J.

for
2014).

Petitioner filed the instant petition for habeas relief under §
2254 on September 23, 2014.

(ECF No. 1.)

Petitioner raises two

claims in which he asserts that he suffered ineffective assistance
of trial and appellate counsel.

(Id. at 35.)

their full Answer.

The matter is fully briefed and

(ECF No. 6.)

Respondents filed

ready for disposition.
III. STANDARD OF REVIEW
Section 2254(a) permits a court to entertain only claims
alleging that a person is in state custody “in violation of the
Constitution or laws or treaties of the United States.”
§ 2254(a).

Petitioner has the burden of establishing each claim

in the petition.
2013).

28 U.S.C.

See Eley v. Erickson, 712 F.3d 837, 846 (3d Cir.

Under 28 U.S.C. § 2254, federal courts in habeas corpus

cases must give considerable deference to determinations of state
trial and appellate courts.

See Renico v. Lett, 599 U.S. 766, 772

(2010).
Section 2254(d) sets the standard for granting or denying a
writ of habeas corpus:
(d) 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

7

merits in State court proceedings
adjudication of the claim-

unless

the

(1) resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d).
Where a state court adjudicated a petitioner’s federal claim
on the merits, a federal court “has no authority to issue the writ
of habeas corpus unless the [state c]ourt’s decision ‘was contrary
to,

or

involved

an

unreasonable

application

of,

clearly

established Federal Law, as determined by the Supreme Court of the
United States,’ or ‘was based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding.’”

Parker v. Matthews, 567 U.S. 37, 40-41 (2012)

(quoting 28 U.S.C. § 2254(d)).
“[C]learly established law for purposes of § 2254(d)(1)
includes only the holdings, as opposed to the dicta, of [the
Supreme Court’s] decisions,” as of the time of the relevant
state-court decision.

White v. Woodall, 134 S. Ct. 1697, 1702

(2014) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)).
If a decision is “contrary to” a Supreme Court holding within 28
U.S.C. § 2254(d)(1), a federal habeas court may grant the writ
if the state court identifies the correct governing legal
8

principle from th[e] [S]upreme Court’s decisions but
unreasonably applies that principle to the facts of the
prisoner’s case.

Williams, 529 U.S. at 413.

Under 28 U.S.C.

§ 2254(d)(1), a federal court must confine its examination to
evidence in the record.

Cullen v. Pinholster, 563 U.S. 170,

180-81 (2011).
Where

a

petitioner

seeks

habeas

relief,

pursuant

to

§ 2254(d)(2), on the basis of an erroneous factual determination
of the state court, two provisions of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) necessarily apply.

First,

AEDPA provides that “a determination of a factual issue made by a
State court shall be presumed to be correct [and] [t]he applicant
shall have the burden of rebutting the presumption of corrections
by clear and convincing evidence.”

28 U.S.C. § 2254(e)(1); see

Miller-El v. Dretke, 545 U.S. 231, 240 (2005).

Second, AEDPA

precludes habeas relief unless the adjudication of the claim
“resulted

in

a

decision

that

was

based

on

an

unreasonable

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

28 U.S.C. § 2254(d)(2).

In addition to the above requirements, a federal court may
not

grant

a

writ

of

habeas

corpus

under

§

2254

unless

the

petitioner has “exhausted the remedies available in the court of
the State.”

28 U.S.C. 2254(b)(1)(A).

To do so, a petitioner must

“‘fairly present’” all federal claims to the highest state court
9

before bringing them in a federal court.”

Leyva v. Williams, 504

F.3d 357, 365 (3d. Cir. 2007) (citing Stevens v. Delaware Corr.
Ctr., 295 F.3d 361, 369 (3d Cir. 2002)).

This requirement ensures

that state courts “have ‘an initial opportunity to pass upon and
correct alleged violations of prisoners’ federal rights.’”

Id.

(citing United States v. Bendolph, 409 F.3d 155, 173 (3d Cir. 2005)
(quoting Duckworth v. Serrano, 454 U.S. 1, 3 (1981)).
Even when a petitioner properly exhausts a claim, a federal
court may not grant habeas relief if the state court’s decision
rests on a violation of a state procedural rule.
Pinchak, 392 F.3d 551, 556 (3d. Cir. 2004).

Johnson v.

This procedural bar

applies only when the state rule is “independent of the federal
question [presented] and adequate to support the judgment.” Leyva,
504 F.3d at 365-66 (citing Nara v. Frank, 488 F.3D 187, 196, 199
(3d Cir. 2007); see also Gray v. Netherland, 518 U.S. 152 (1996),
and Coleman v. Thompson, 501 U.S. 722 (1991))). If a federal court
determines that a claim has been defaulted, it may excuse the
default

only

upon

a

showing

of

“cause

“fundamental miscarriage of justice.”

and

prejudice”

or

a

Leyva, 504 F.3d at 366

(citing Lines v. Larkins, 208 F.3d 153, 166 (3d Cir. 2000)).
IV. ANALYSIS
The Petition raises two grounds for relief, both of which
allege ineffective assistance of trial and/or appellate counsel.
Respondents contend that the petition is without merit, or fails
10

to raise a claim of federal constitutional dimension that would
entitle Petitioner to habeas relief.

They argue that Petitioner

couched state claims in the context of ineffective assistance of
counsel claims for the purpose of federal habeas review.
For the reasons explained in this section, the Court finds
that Petitioner’s claims do not warrant federal habeas relief.
A.

INEFFECTIVE ASSISTANCE OF COUNSEL

The Supreme Court set forth the standard by which courts must
evaluate claims of ineffective assistance of counsel in Strickland
v. Washington, 466 U.S. 668 (1984).

First, the defendant must

show that counsel’s performance was deficient.

This requirement

involves demonstrating that counsel made errors so serious that he
was not functioning as the “counsel” guaranteed by the Sixth
Amendment.

Id. at 687.

Second, the defendant must show that the

deficient performance prejudiced the defense.

Id.

This requires

showing that counsel’s errors deprived the defendant of a fair
trial.

Id.

Ineffective assistance of appellate counsel is judged

by the Strickland standard as well.

Albrecht v. Horn, 485 F.3d

103, 137 (3d Cir. 2007) (quoting United States v. Mannino, 212
F.3d 835, 840 n.4 (3d Cir. 2000)).
Counsel’s
representation

performance
falls

is

“below

deficient
an

if

objective

his

or

standard

her
of

reasonableness” or outside of the “wide range of professionally
competent assistance.”

Strickland, 466 U.S. at 690.
11

In examining

the question of deficiency, “[j]udicial scrutiny of counsel’s
performance must be highly deferential.” Id. at 689. In addition,
judges must consider the facts of the case at the time of counsel’s
conduct, and must make every effort to escape what the Strickland
court referred to as the “distorting effects of hindsight.”

Id.

Furthermore, a defendant must show a reasonable probability
that, but for counsel’s errors, the result of the proceeding would
have been different.

Id. at 694.

The petitioner bears the burden

of showing that counsel’s challenged action was not sound strategy.
Kimmelman v. Morrison, 477 U.S. 365, 381 (1986).
When assessing an ineffective assistance of counsel claim in
the federal habeas context, “[t]he pivotal question is whether the
state

court’s

application

of

the

Strickland

standard

was

unreasonable,”, which “is different from asking whether defense
counsel’s performance fell below Strickland’s standard.”

Grant v.

Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (quoting Harrington v.
Richter, 562 U.S. 86, 101 (2011)).

“A state court must be granted

a deference and latitude that are not in operation when the case
involves [direct] review under the Strickland standard itself.”
Id.

Federal habeas review of ineffective assistance of counsel

claims is thus “doubly deferential.”
S.Ct.

at

1403).

deferential

look

Federal
at

habeas

counsel’s

Id.

courts

(quoting Cullen, 131
must

performance”

“through the deferential lens of § 2254(d).”
12

“take

under
Id.

a

highly

Strickland,
(internal

quotation marks and citations omitted).

“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)).
1. Ground One: Ineffective Assistance of Trial Counsel for
Failure to Adequately Prepare for Wade motion hearing.
Ground

One

of

the

Petition

alleges

that

Petitioner

was

deprived of his Sixth Amendment right to effective counsel in that
trial counsel was unprepared to argue a motion to suppress witness
identifications.
filed

a

motion

(ECF No. 1 at 35.)
to

suppress

the

Petitioner’s trial counsel

identifications

made

witnesses to the police for the reasons discussed below.

by

the

At the

motion hearing, Petitioner’s trial counsel made several arguments
as

to

why

the

pretrial

identification

procedures

violated

Petitioner’s right to due process. The trial court heard arguments
from both parties prior to concluding that a Wade hearing would
not be necessary.

Petitioner raised this claim in the course of

his PCR proceedings.

(ECF No. 1 at 7.)

claim.

13

The PCR court denied the

The PCR petition did not raise all of the due process claims
associated with the identifications that were raised in the trial
court.

Nonetheless,

the

PCR

court

held

that

Petitioner’s

ineffective assistance of trial counsel claim was meritless.

It

found that the hearing record reflected that trial counsel raised
many of the arguments that Petitioner considered important for the
trial court to consider. As to Petitioner’s first claim that trial
counsel’s failure to investigate how the police linked him to the
street name “Wise” affected the court’s Wade hearing denial, the
PCR court first highlighted that trial counsel raised this claim
at the hearing. Moreover, the PCR court determined that Petitioner
did not establish what effect further investigation of this matter
by

trial

counsel

would

have

had,

particularly

because

this

information is not salient to a court’s decision to grant a Wade
hearing.

(ECF. No. 6-28 at 4.)

As to Petitioner’s second argument that trial counsel failed
to compel discovery of the photograph book that was used by witness
Sue Harris to identify Petitioner, the PCR Court found that “[s]uch
a motion would have been futile, as the State did not possess any
additional discovery.”
Division agreed.
addressed
failure

(ECF No. 6-33 at 7.)

Petitioner’s
to

(ECF No. 6-28 at 5.)

properly

claim

that

investigate

Finally, the PCR court

trial
and

The Appellate

counsel’s
compel

purported

discovery

of

information such as the details of the show up identification
14

procedure resulted in the Wade hearing denial. The PCR court found
that the record reflected that the prosecution did not possess
further discovery and that trial counsel’s efforts would have been
futile.

(ECF No. 6-28 at 5.)

The Appellate Division concurred with the PCR court’s finding
that Petitioner did not demonstrate how counsel’s performance was
deficient thus failing to make a prima facie ineffective assistance
of counsel claim.
We are convinced that the record fully
supports the PCR court’s determination.
As
the court found, defendant failed to establish
that his attorney was deficient in his
handling of the Wade hearing.
Defendant’s
claims are based on “bald assertions,” which
are insufficient to establish that he was
denied the ineffective assistance of trial
counsel.
See State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div.), certif. denied,
162 N.J. 199 (1999).
(ECF No. 6- 33 at 7-8.)
A review of the hearing transcript clearly indicates that
counsel was familiar with the investigation and that counsel
addressed the various perceived investigatory errors, including
how

they

conducted

their

identification

procedures

and

the

allegedly questionable manner in which Petitioner was linked to
the second incident.

Ultimately, the record does not support

Petitioner’s assertion that counsel was unfamiliar with the record
or unprepared.

As the record does not support Petitioner’s

contention that counsel was unprepared or unfamiliar with the case,
15

and as Petitioner has otherwise failed to provide any facts that
support allegations of prejudice as described below, Petitioner
has failed to show that he is entitled to federal habeas relief on
this claim.

The state court’s decision was not an unreasonable

application of federal law.
It is worth noting that the legal framework for analyzing the
reliability

of

eyewitness

identifications

is

the

two-part

Manson/Madison test. See Manson v. Brathwaite, 432 U.S. 98 (1997);
State v. Madison, 536 A.2d 254 (N.J. 1988).
this

test

requires

courts

to

determine

The first step in
whether

the

police

identification procedures were impermissibly suggestive.

If the

first prong is met, the court then weighs the five reliability
factors to decide if the identification is admissible. See Manson,
432 U.S. at 114; Madison, supra, 109 536 A.2d at 258-59.

“An

impermissibly suggestive identification procedure can occur in
four settings:

a show-up, a photo array, a line-up and in court.”

United States v. Brownlee, 454 F.3d 131, 137 (3d Cir. 2006).
At the motion hearing, Counsel first argued that neither the
victim of the first incident nor his son, could identify a suspect
when they were taken to the police station on the day of the
attack.

(ECF No. 6-37 at 16.)

The government conceded that the

victim could not identify his attacker after the first incident.
Notwithstanding this, they argued that the victim’s son was able
to identify the Petitioner when he happened to encounter him at
16

the police station after his father was robbed a second time, close
to two months later.

(Id. at 23-24.)

The victim’s son happened

to pass Petitioner, who was recently arrested for the most recent
robbery, as he was heading to see his father at the police station.
(Id. at 23.)

The witness’s observation of the Petitioner was by

coincidence, not in a formal identification procedure.

See United

States v. Greenstein, No. 07-3652, 2009 WL 1090284, at *263-64 (3d
Cir.

Apr.

23,

2009)

(“[witness]

recognized

[defendant]

by

coincidence, not as part of a formal identification procedure-nor
one that was unnecessarily suggestive.”))
Trial counsel next argued that the police did not establish
how they linked Petitioner to the street name “Wise”, the name
that was provided to the police by the victim of the second
offense.

The prosecution agreed that it was not established how

police made the connection between the street name and Petitioner.
However, the second victim claimed to be familiar with Petitioner
and to be an acquaintance of Petitioner’s girlfriend.
raised this issue in his PCR Petition.
Petitioner’s
violated
Conducting

the

trial

Attorney

Photo

(“Guidelines”).

and

counsel
General
Live

next

(ECF No. 6-19 at 14-15.)
argued

Guidelines

Lineup

Petitioner

that

for

the

police

Preparing

Identification

and

Procedure

New Jersey adopted the United States Department

of Justice’s recommendations to enhance accuracy and reliability
of eyewitness evidence in criminal proceedings.
17

State v. Herrera,

187 N.J. 493, 512 (2006) (citing Letter from Attorney General John
J. Farmer, Jr. to All County Prosecutors et al. of Apr. 18, 2001,
at 1)).

Among other things, the Guidelines provide:

In order to ensure that inadvertent verbal
cues or body language do not impact on a
witness, whenever practical, considering the
time of day, day of the week, and other
personnel conditions within the agency or
department, the person conducting the photo or
live lineup identification procedure should be
someone other than the primary investigator
assigned to the case. In those cases, where
the primary investigating officer conducts the
photo or live lineup identification procedure,
he or she should be careful to avoid
inadvertent signaling to the witness of the
“correct” response.
Id. at 516.
When determining whether to suppress a suggestive out-ofcourt identification, a court first asks whether the photographic
identification was “unnecessarily or impermissibly suggestive.”
United States v. Stevens, 935 F.2d 1380, 1389 (3d Cir. 1991)
(internal quotation marks omitted).

This is determined by the

actual suggestiveness of the identification and whether there was
a

good

reason

procedures.

Id.

for

the

failure

to

utilize

less

suggestive

If the identification is in fact unnecessarily

suggestive, the Court will look to see whether it was so much so
that it gave rise to a substantial likelihood of misidentification
amounting to a violation of due process.

18

Id.

Here, the hearing record reflects that Detective Brodie, who
was in fact assigned to the third incident connected with the then
at-large Petitioner, which occurred on August 8, 2007, was also
the investigator that showed the victim of the third incident the
book of photographs containing potential suspects.
at 8.)

(ECF No. 6-37

At the hearing, the government responded that Detective

Brodie’s involvement was inconsequential because the Guidelines’
prohibition

on

the

investigating

detective

conducting

the

identification, applies to photograph lineups and the procedure
used here was a photograph book viewing.

(Id. at 19.)

Assuming arguendo that the identification procedure was in
fact a photograph lineup, Petitioner’s claim still fails.

The

hearing record reflects that Detective Brodie’s report includes a
description of the photo identification procedure employed.
And when you read the police reports from
Detective Brodie, Your Honor, he says, I give
them each the book, I separate, I walk away,
where I can still see them and I let them take
a look at the books.
And that is, at that
time, that the victim, Sue Harris calls him
over and points at a photo that – of – it ends
up being the Defendant, and says, on a scale
of one to ten, I’m positive as to a nine, that
this is him.

(Id. at 19.)
Detective

Brodie’s

description

of

the

procedure was consistent with the Guidelines.

identification
After giving the

photograph book to the witness, he physically distanced himself
19

from them and allowed for them to take the time they needed to
make an identification and call for him to return.

The record is

silent as to how many photographs were in the book or what physical
similarities they shared other than being black males, and neither
trial counsel nor the judge raised this issue.

In his PCR

petition, Petitioner argued that trial counsel failed to compel
discovery of the photo book to determine whether it was suggestive.
(ECF No. 6-19 at 15-16.)

However, Petitioner has not met his

burden of showing how counsel’s allegedly deficient performance
caused prejudice.
Finally, trial counsel argued that the show-up procedure
conducted on the day of the last offense on August 31, 2007, was
improper.

A

show-up

identification

procedure

is

“inherently

suggestive” because “it suggests that the police think they have
caught the perpetrator of the crime.”

United States v. Brownlee,

454 F.3d 131, 138 (3d Cir. 2006) (citing Stovall v. Denno, 388
U.S. 293, 302 (1967)).

Nonetheless, an identification procured as

the result of a suggestive procedure does not automatically render
the identification inadmissible, so long as it is sufficiently
reliable.

Neil v. Biggers, 409 U.S. 188, 199-201 (1972).

The

identification’s reliability is determined by the totality of the
circumstances, including: “(1) the opportunity of the witness to
view the criminal at the time of the crime; (2) the witness’[s]
degree of attention; (3) the accuracy of the witness’[s] prior
20

description

of

the

criminal;

(4)

the

level

of

certainty

demonstrated by the witness at the confrontation; and (5) the
length of time between the crime and confrontation.”

Brownlee,

454, F.3d at 139 (citing Neil, 409 U.S. at 199).
Here, the victim of the final incident was fighting off the
assailant in his home when his family walked in on the attack.
After the assailant fled, the police were provided a description
of both the male assailant and a woman who was standing near the
home at the time of the attack.

The suspects were apprehended the

very same day in the neighborhood where the incident occurred and
identified by witnesses almost immediately thereafter.

Therefore,

the circumstances surrounding the show-up indicate that it was a
reliable identification by the victim and witnesses of the final
incident that occurred on August 31, 2007.
Petitioner’s trial counsel filed a motion to suppress the
identifications made by the witnesses to the police for the
aforementioned reasons.

The trial court heard arguments from both

parties prior to concluding that a Wade hearing would not be
necessary.

(ECF No. 6-37.)

At the close of arguments, the court

opined, “I tend to agree that from every- every fact that I’ve
seen, I’ve seen absolutely nothing to indicate that there was any
impermissibly suggestive procedures used by the officers in this
case.”

(Id. at 24.)

21

For the reasons described above, Petitioner fails to show
that he is entitled to federal habeas relief on Ground One.

2. Ground Two: Ineffective Assistance of Appellate Counsel
for Failure to Challenge the Sentence on Direct Appeal
In Ground Two, Petitioner alleges that he was denied his Sixth
Amendment right to counsel due to appellate counsel’s failure to
challenge the sentence as excessive.

Petitioner first raised this

ineffectiveness claim during the PCR proceeding.

He does not make

any legal or factual arguments to support this claim in the instant
federal habeas petition.
In

his

counsel

PCR

should

petition,
have

Petitioner

challenged

the

claimed
trial

that

appellate

court’s

erroneous

application of five aggravating factors, particularly factors
three and nine, and that the resulting sentence was excessive.
(ECF No. 6-19 at 19.)
appellate

counsel’s

Additionally, Petitioner submitted that

failure

to

do

so

was

inconsistent

with

Petitioner’s intent to challenge his sentence as evidenced by the
fact that the option “yes” is selected next to the “excessive
sentence” claim on the “Public Defender’s transmittal of appeal
application.”
The

(Id. at 18.)

Appellate

Division’s

adjudication

of

Petitioner’s

ineffective assistance of appellate counsel claim was not contrary
to

the

Supreme

Court’s

holding

Division stated as follows:
22

in

Strickland.

The

Appellate

Here, Defendant’s plea agreement permitted
imposition
of
a
twenty-year
term
of
incarceration, but the trial court imposed an
aggregate
term
of
eighteen
years.
Furthermore, the bargained-for term of up to
twenty years was substantially shorter than
the maximum sentence that could have been
imposed if defendant had been tried and found
guilty of all of the charged offenses.
In
addition, as part of the plea agreement, the
State agreed not to seek imposition of an
extended term, and the sentences were run
concurrently, even though the facts may have
allowed the court to impose consecutive
sentences.
We therefore conclude that the
record supports the PCR court’s determination
that an excessive sentence claim would have
been baseless and defendant was not denied the
effective assistance of appellate counsel
merely because counsel did not raise that
claim in the direct appeal.
(ECF No. 6-33 at 8-9.)
In

making

its

determination,

the

PCR

Court

noted

following:
Here, the State developed substantial evidence
creating a strong case against Petitioner.
Multiple victims and witnesses were able to
identify Petitioner, Petitioner was found in
possession of the proceeds of one of the
crimes, Petitioner confessed to participation
on several charges, and co-defendant gave
statements
to
police
incriminating
Petitioner. The crimes involved were separate
victims, separate dates and wholly separate
crimes warranting consecutive terms. Despite
this, counsel was able to negotiate a
favorable plea agreement and ultimately
Petitioner
received
the
benefit
of
an
aggregate 18 year sentence on the controlling
case.
Further, at the time of the plea
Petitioner indicated to this Court that he
understood the terms of the plea agreement,
that he was facing 20 years in State prison
23

the

and would have to serve eighty-five percent
pursuant to NERA.
(ECF No. 6-28 at 6.)
Even after applying five aggravating factors, the trial court
sentenced Petitioner to a term that was two years less than the
maximum term outlined in the plea agreement.

Moreover, the trial

court’s application of factors three and nine, which Petitioner
argued in the PCR proceeding are so interrelated to the goals of
deterrence that they essentially doubly penalize the defendant,
did not expose Petitioner to a sentence that violated the plea
agreement.

The trial court considered the pre-sentence report,

victims’ statements, counsels’ arguments and relevant aggravating
factors before sentencing Petitioner within the plea agreement
terms.

(ECF No. 6-40 at 5-20.)

This Court finds the state courts’ determinations are not
contrary to clearly established federal law or an unreasonable
determination of the facts.

Smith v. Robbins, 528 U.S. 259, 288

(2000)(internal citations omitted) (held that “[g]enerally, only
when ignored issues are clearly stronger than those presented,
will

the

presumption

of

effective

assistance

of

[appellate]

counsel be overcome”)).
The Court finds that the state courts’ application of federal
law was not unreasonable.

24

VI.

CERTIFICATE OF APPEALABILITY
This Court must determine whether Petitioner is entitled to

a certificate of appealability in this matter.

See Third Circuit

Local Appellate Rule 22.1. The Court will issue a certificate of
appealability if the petitioner “has made a substantial showing of
the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2).

Based on the discussion in this Opinion, Petitioner has not made
this Court will not issue a certificate of appealability.
VII. CONCLUSION
For the reasons discussed above, Petitioner’s habeas petition
is denied and Petitioner is denied a certificate of appealability.
An appropriate order follows.

March 27, 2018
Date

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

25