HILL v. D'LLIO et al

Filing 18

OPINION. Signed by Judge Noel L. Hillman on 5/20/2016. (TH, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RICHARD N. HILL,

Civil No. 14-5990 (NLH)

Petitioner,
OPINION

v.
STEPHEN D’LLIO, et al.,
Respondents.
APPEARANCES:
RICHARD N. HILL, #499685
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
Pro Se Petitioner
JASON MAGID, Assistant Prosecutor
CAMDEN COUNTY PROSECUTOR
25 North Fifth Street
Camden, NJ 08102
Attorneys for Respondents
HILLMAN, District Judge:

Richard N. Hill filed a Petition for a Writ of Habeas
Corpus under 28 U.S.C. § 2254 challenging a judgment of
conviction filed in the Superior Court of New Jersey, Camden
County, on September 16, 2004.

The challenged judgment imposed

an aggregate 35-year term of imprisonment, with an 85% period of
parole ineligibility, after a jury found petitioner guilty of
first-degree kidnapping, first-degree aggravated sexual assault,
third-degree terroristic threats, third-degree possession of a

weapon for an unlawful purpose, and second-degree conspiracy.
The State filed an Answer and the record, and Hill filed a
Reply.

After carefully reviewing the arguments of the parties

and the state court record, this Court will dismiss the Petition
with prejudice and deny a certificate of appealability.
I.
A.

BACKGROUND

The Crimes
As set forth above Richard Hill was sentenced after a jury

found him guilty of first-degree kidnapping (counts one and
two), first-degree aggravated sexual assault (counts three, six,
nine), simple assault (count 12), third-degree terroristic
threats (count 15), third-degree possession of a weapon for an
unlawful purpose (count 16), and second-degree conspiracy (count
18).

Under the Antiterrorism and Effective Death Penalty Act

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

See 28 U.S.C. §

As Hill has not rebutted the factual findings of the

Superior Court of New Jersey, the Court will rely on those
findings.

See State v. Hill, 2006 WL 1914647 (N.J. Super. Ct.,

App. Div., July 13, 2006).
The Appellate Division found that on the evening of August 17,
2001, 34-year old J.P. stopped at the Westmont Inn as she was
walking home from her sister’s house in Haddonfield, New Jersey.

2

She spent the evening at the tavern with Hill and his friend, Ryan
Shavitz.

J.P. had known Hill and his wife for about 10 years and

she had met Shavitz on one prior occasion when he invited her for a
ride on his motorcycle.

The three left the Westmont Inn shortly

before 2:00 a.m., and Shavitz drove them to Hill’s house, where
they drank beer and smoked marijuana.

J.P. left on foot when Hill

insisted that she sit on his lap.
Hill, who was Shavitz’s sponsor in the Pagan Motorcycle Club,
ordered Shavitz to bring J.P. back.
J.P. walking down the road.

Shavitz drove until he found

Shavitz, who testified for the State,

testified that he coaxed her into his car, but J.P. testified that
he grabbed her and put her into the car.

Shavitz drove J.P. back

to Hill’s house where Hill and Shavitz raped her multiple times and
subjected her to hours of physical and sexual abuse, and
terroristic threats.

Eventually, when Hill fell asleep at 4:50

a.m., J.P. escaped through an upstairs window, ran to a payphone,
and called the police.

The police arrested Hill and Shavitz

outside of Hill’s house.

B.

The State Court Proceedings
A grand jury sitting in the Superior Court of New Jersey,

Law Division, Camden County, issued a 20-count indictment
charging Hill and Shavitz with kidnapping, nine counts of
aggravated sexual assault, and other crimes.
3

The government

offered, and Hill rejected, a plea bargain requiring him to
plead guilty to one count of aggravated sexual assault and one
count of kidnapping in exchange for an 18-year term of
imprisonment.
The witnesses at trial included J.P. and Shavitz for the
State, and Hill for the defense.

The jury did not convict Hill

of all counts in the indictment, but found him guilty of firstdegree kidnapping, three counts of first-degree aggravated
sexual assault, one count of simple assault, one count of thirddegree terroristic threats, one count of third-degree possession
of a weapon for an unlawful purpose, and one count of seconddegree conspiracy to commit kidnapping and aggravated sexual
assault.

On September 16, 2004, the trial judge sentenced him

to an aggregate 35-year term of imprisonment, with an 85% period
of parole ineligibility.

Hill appealed, and on July 13, 2006,

the Appellate Division of the Superior Court of New Jersey
affirmed.

See State v. Hill, 2006 WL 1914647 (N.J. Super. Ct.,

App. Div., July 13, 2006).

On June 1, 2007, the New Jersey Supreme

Court denied certification.

See State v. Hill, 192 N.J. 70 (2007)

(table).

On January 7, 2008, the Supreme Court denied Hill’s

petition for certiorari.

See Hill v. New Jersey, 552 U.S. 1113

(2008).

4

Hill signed a pro se petition for post-conviction relief on
August 25, 2008.

(ECF No. 14-15 at 18.)

the petition on September 8, 2008.

The Law Division filed

(ECF Nos. 1 at 4, 14-21 at 12.)

The trial court denied post-conviction relief without conducting an
evidentiary hearing by order filed on August 30, 2010.

Hill

appealed, and on July 16, 2013, the Appellate Division affirmed.
See State v. Hill, 2013 WL 3581913 (N.J. Super. Ct., App. Div.,
July 16, 2013).

The New Jersey Supreme Court denied certification

on February 4, 2014.

See State v. Hill, 217 N.J. 286 (2014)

(table).

C.

Procedural History of § 2254 Petition
Hill signed his § 2254 Petition, and presumably handed it

to prison officials for mailing to the Clerk, on September 22,
2014.

The Petition raises the following grounds:
Ground One:
A. COURT’S FAILURE TO DISMISS JUROR FOR CAUSE
DEPRIVED PETITIONER OF HIS RIGHTS TO A FAIR AND
IMPARTIAL JURY [UNDER] THE UNITED STATES CONSTITUTION.
B. TRIAL COURT’S FAILURE TO QUESTION OTHER JURORS
IN WAKE OF COURT OFFICER’S TESTIMONY THAT OTHER JURORS
STATED THEY WERE ALSO CONCERNED ABOUT THEIR SAFETY
DEPRIVED PETITIONER OF HIS RIGHTS TO A FAIR AND
IMPARTIAL JURY UNDER THE UNITED STATES CONSTITUTION.
Supporting Facts: Prior to trial prospective jurors
were told about the connection of defendant and others
to the Pagan Motorcycle Club. None of the jurors
expressed any reservation about serving as unbiased
and impartial jurors or abiding by the trial court’s
instructions. During the course of trial a juror made
5

highly irregular statements to a court officer, who
then sent a note to the judge expressing that juror’s
fear and concern for his safety, and for the safety of
his family. The court officer also unequivocally
stated that the juror also stated to her that other
jurors had stated they were also concerned about their
safety. All of was the result of allegations made
[by] codefendant of alleged threats from petitioner
and/or other members of the motorcycle club. The
statements of that juror and other jurors clearly
indicate that their beliefs and attitudes would
substantially interfere with their duties, and
professions of impartiality in that they had already
(pre-deliberation) considered the statements of
codefendant and deemed them credible.
Ground Two: TRIAL COUNSEL’S FAILURE TO PROPERLY
ADVISE PETITIONER CONCERNING PLEA OFFER VIOLATED
PETITIONER’S RIGHT TO DUE PROCESS UNDER THE SIXTH AND
FOURTEENTH AMENDMENTS OF THE UNITED STATES
CONSTITUTION.
Supporting Facts: Counsel failed to advise petitioner
of all the material information required to make an
informed decision to accept or reject the State’s plea
offer. More specifically, petitioner was Never
informed of the potential applicability of New
Jersey’s No Early Release Act (NERA) to his
sentencing. Nor was he informed of the parole
consequences of NERA. Nor that he could receive
consecutive sentences if he went to trial. Further,
preceding petitioner’s first court appearance and
throughout the course of this case[,] Petitioner was
under Psychological and Psychiatric care, receiving
numerous medications, including psychoactive and
psychotropic medications.
(Petition, ECF No. 1 at 8-9.)
The State filed an Answer arguing that Hill is not entitled
to habeas relief on the merits, and Hill filed a Reply arguing
that he is.

(ECF Nos. 14, 17.)
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II.

STANDARD OF REVIEW FOR RELIEF UNDER § 2254

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

See Cullen v. Pinholster, 131

Section 2254(a) permits a court to

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

28 U.S.C. § 2254(a).

Where a state court

adjudicated petitioner’s federal claim on the merits,1 as in this
case, a court “has no authority to issue the writ of habeas
corpus unless the [state c]ourt’s decision ‘was contrary to, or
involved an unreasonable application of, clearly established
Federal Law, as determined by the Supreme Court of the United
States’, or ‘was based on an unreasonable determination of the
facts in light of the evidence presented in the State court

1

“For the purposes of Section 2254(d), a claim has been
‘adjudicated on the merits in State court proceedings’ when a
state court has made a decision that 1) finally resolves the
claim, and 2) resolves th[at] claim on the basis of its
substance, rather than on a procedural, or other, ground.”
Shotts v. Wetzel, 724 F.3d 364, 375 (3d Cir. 2013) (citation and
internal quotation marks omitted).
7

proceeding.’”

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

(quoting 28 U.S.C. § 2254(d)).

“When reviewing state criminal

convictions on collateral review, federal judges are required to
afford state courts due respect by overturning their decisions
only when there could be no reasonable dispute that they were
wrong.”

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

The

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

See Pinholster, 131

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

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

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

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

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

A decision is “contrary to” a Supreme Court

holding within 28 U.S.C. § 2254(d)(1) if the state court
“contradicts the governing law set forth in [the Supreme
Court's] cases” or if it “confronts a set of facts that are
8

materially indistinguishable from a decision of th[e Supreme]
Court and nevertheless arrives at a [different] result.”
Williams, 529 U.S. at 405-06.

Under the “‘unreasonable

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

Id., 529 U.S. at 413.

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

Second, the AEDPA precludes habeas relief unless

the adjudication of the claim “resulted in a decision that was
based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.”
U.S.C. § 2254(d)(2).

9

28

III.
A.

DISCUSSION

Claim Regarding Juror Bias
In Ground One, Hill asserts that the trial court violated

his right to be tried by an impartial jury by refusing to
dismiss juror number five after that juror expressed concern
during the trial for his and his family’s safety.

Hill also

claims that the trial judge’s failure to question the other
jurors about whether they had safety concerns violated his
constitutional rights.
The Sixth Amendment provides:

"In all criminal

prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district
wherein the crime shall have been committed . . . ."
Const. amend. VI.

U.S.

The Court will examine the relevant Supreme

Court precedent concerning juror impartiality, as required by §
2254(d)(1).
In Irvin v. Dowd, 366 U.S. 717 (1961), the Supreme Court
reversed the Seventh Circuit’s ruling affirming the dismissal of
a § 2254 petition where the petitioner claimed that the jury was
not impartial because two-thirds of the venire persons
eventually selected as jurors had “an opinion that petitioner
was guilty and were familiar with the material facts and
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circumstances involved, including the fact that other murders
were attributed to him, some going so far as to say that it
would take evidence to overcome their belief.”

Id. at 728.

In

Turner v. State of La., 379 U.S. 466, 471-73 (1965), the Court
found that the defendant was denied a fair trial before an
impartial jury where two prosecution witnesses were also
sheriff’s officers who were functioning as custodians of the
jury hearing the case.
However, in Mu’Min v. Virginia, 500 U.S. 415 (1991), eight
out of the twelve jurors answered on voir dire that they had
read or heard something about the case but that they had not
formed an opinion based on outside information.

The trial judge

refused Mu’Min’s request to ask them about the specific contents
of the news reports to which they had been exposed and the
Supreme Court held that this did not violate due process.2

In

doing so, the Court stressed “the wide discretion granted to the

2

The evidence showed that there were 47 newspaper articles
relating to the murder for which Mu’Min was being tried and that
one or more of the articles included information about his prior
criminal record, the fact that he had been rejected for parole
six times, accounts of his alleged prison infractions, details
about the prior murder for which Mu’Min was serving his sentence
at the time of this murder, and indications that Mu’Min had
confessed to killing the victim of this murder. See Mu’Min, 500
U.S. at 418.
11

trial court in conducting voir dire in the area of pretrial
publicity and in other areas of inquiry that might tend to show
juror bias.”

Id. at 427.

In Skilling v. United States, 561

U.S. 358 (2010), the Supreme Court held that actual prejudice
did not infect Skilling’s jury, despite substantial negative
pretrial publicity concerning his bankruptcy and securities
fraud trial.

“Prominence does not necessarily produce

prejudice, and juror impartiality, we have reiterated, does not
require ignorance.”

Id. at 381 (emphasis in original).

The

Court emphasized that the negative news stories did not refer to
a confession or other “evidence of the smoking-gun variety,” id.
at 383, and that the jury’s acquittal of Skilling on nine counts
indicated a fair-minded consideration of the issues.

See also

Smith v. Phillips, 455 U.S. 209, 217 (1982) (“[D]ue process does
not require a new trial every time a juror has been placed in a
potentially compromising situation.”)
Finally, Supreme Court precedent establishes that, “where
an adversary wishes to exclude a juror because of bias . . , it
is the adversary seeking exclusion who must demonstrate, through
questioning, that the potential juror lacks impartiality.”
Morgan v. Illinois, 504 U.S. 719, 733 (1992) (citation and
internal quotation marks omitted) (emphasis in original).
12

In this case, there was no factual dispute that at the time
of the incident Hill was a member of the Pagan Motorcycle Club,
that Shavitz had applied to join the club, and that as a club
prospect Shavitz was assigned to Hill.

Hill’s attorney stated

these facts in his opening statement. (ECF No. 14-31 at 21.)

In

addition, Hill’s attorney asked the trial judge to include a
series of questions about the Pagan Motorcycle Club in the voir
dire to weed out jurors who might have been prejudiced against
Pagans.
The facts concerning the alleged juror bias relate to the
testimony on the third day of trial by Shavitz.

The prosecutor

asked him why he had not told the police during his statement
that he had choked the victim into unconsciousness.

He

responded:
I wasn’t questioned about that type of incident. As I
said before, what I was questioned on I gave answers
to. But I wasn’t willing to be 100 percent forthcoming
and just spill my conscience out on the table at that
point. You have to understand, I was scared being in
the police station. I was also scared of
repercussions once I would leave the police station.
(ECF No. 14-33 at 101-102.)
When the prosecutor asked “Repercussions from who[m]?”
Shavitz answered “My co-defendant.”

Id. at 102.

Shortly

thereafter, the prosecutor asked Shavitz if he had told the
13

police that when he raped the victim he was acting under orders
and Shavitz answered affirmatively.

Shavitz answered negatively

when asked if anyone forced him to rape the victim and Shavitz
added that he “would have had to face consequences afterwards
but [he] wasn’t bound, gagged, handcuffed.”

Id. at 103.

The record shows that the day after Shavitz testified juror
number five – Rodriguez – spoke to a court aide.

The aide wrote

a note to the judge indicating that one of the jurors wanted the
aide to talk to the judge concerning his and his family’s safety
regarding the fact that the defendant was a Pagan.

The trial

judge then questioned juror Rodriguez outside the presence of
the jury.

Rodriguez stated:

Basically, my concern is about safety. There have
been a couple threats to the co-defendant he mentioned
in testimony and the safety of my family, just
basically, around this case from repercussions about,
you know, from the defendant or any associates.
(ECF No. 14-34 at 55-56.)
Rodriguez further stated, when asked by the judge, that he
had not discussed the safety issue with other jurors.

He added

that his concern was logical since jurors had revealed their
names and where they resided during voir dire.

The trial judge

informed Rodriguez that his address had not been revealed to the
defendants.

When the judge asked whether Rodriguez thought he
14

could stay on the jury in light of his concern about safety,
Rodriguez stated:
I’m very unbiased.”

“I’m committed to doing the right thing and
Id. at 57.

At the request of defendant’s

attorney, the judge asked Rodriguez if he could follow the
instructions concerning presumption of innocence, burden of
proof and the instructions which the judge would provide prior
to deliberations, and Rodriguez stated that he would
“absolutely” be able to follow the instructions. Id. at 60.
Next, the judge questioned the court aide, who stated that
juror number five told her that other jurors were also concerned
about their safety.

After the aide was questioned, defense

counsel moved to excuse Rodriguez on the ground that he had
formed an opinion regarding the credibility of Shavitz and he
was not forthright about concerns being expressed by other
jurors.

The prosecutor – not the defense attorney - asked the

judge to question the other jurors as to their concerns
regarding safety and to inform them that their addresses had not
been revealed to defendants.
back.

The trial judge brought Rodriguez

Rodriguez confirmed that he had not discussed safety with

other jurors and that he had no knowledge of other jurors’
concerns.

15

After Rodriguez left, the trial judge stated that he was
satisfied that they had “weeded the rest of the jury out.” (ECF
No. 14-34 at 71.)

The trial judge denied the defense motion to

excuse Rodriguez:
I’m not sure I see the cause here. The man has simply
said that there was a safety concern raised by the
fact that this defendant – testimony is this
defendant, according to Shavitz, is a member of the
Pagans motorcycle club and we all know what the
testimony of Shavitz is. But I think he wanted
assurance. And he said very clearly this would not
affect the outcome of his decision. It would not
impact on his decision, guilty or not guilty. That he
could be fair and impartial and he was committed to
this case. And he just came back and we asked him
whether other jurors had raised this concern and he
said not to his knowledge. So I just don’t know that
it’s appropriate to dismiss a juror merely because he
had – he raised a concern and his concern was
addressed. We pointed out to him that addresses are
not provided and no counsel in this courtroom shall do
that, provide that to anyone out of this courtroom.
And I just don’t see why he should be dismissed for
cause at all. I mean, it really would be speculation,
as I see it, to say that he wouldn’t be fair and
impartial, really.
Id. at 71-72.
The Appellate Division outlined the above facts when it
considered the impartial jury claims on direct appeal and
rejected Hill’s argument that the trial judge erred in failing
to dismiss Rodriguez for cause, finding that
there was no error by the trial judge in denying
defendant’s motion to excuse Rodriguez or declare a
mistrial. Judge Cook followed the procedure outlined
16

by our Supreme Court in State v. R.D., 169 N.J. 551,
557-61 (2001). Giving deference to the ability of the
trial judge to assess the credibility of the juror, we
perceive no abuse of discretion which would impact in
denying defendant a fair trial.
Id.
This Court is required to presume the correctness of the
Appellate Division’s factual findings concerning the absence of
bias on the part of Rodriguez and the absence of a factual basis
to voir dire all jurors, as Hill has not rebutted them with
clear and convincing evidence or shown that these factual
determinations were unreasonable in light of the evidence
presented.

See 28 U.S.C. § 2254(d)(2) and (e)(2).

The Court

notes that there was no evidence of any extra-judicial influence
on any juror and that the jury’s acquittal of Hill on some
charges indicates that the jury fairly considered the evidence
in the case and that they had not formed an opinion of guilt
prior to deliberations.

The Appellate Division did not

unreasonably apply clearly established Supreme Court precedent
concerning juror impartiality when it rejected Hill’s claims.
See United States v. DiSalvo, 34 F.3d 1204, 1225 (3d Cir.
1994)(“[J]urors’ expressions of fear or apprehension of a
defendant do not, per se, establish juror bias”); United States
v. Thornton, 1 F.3d 149, 155-56 (3d Cir. 1993) (holding that
17

District Court was not required to voir dire jurors after the
deputy clerk advised the court that some jurors had expressed a
general feeling of apprehensiveness about their safety during
criminal drug trial); United States v. Watchmaker, 761 F.2d
1459, 1466 (11th Cir. 1985)(holding that, where during
deliberations a juror expressed her fear, which she said was
shared by other jurors, of retaliation by defendants, who were
members of the Outlaw Motorcycle Club, or by other club members,
the judge did not abuse his discretion in failing to voir dire
jurors because “[d]iscussions among the jurors as to their fear
of the defendants are not inappropriate, so long as such
discussions do not lead them to form an opinion of the
defendants’ guilt or innocence of the offenses charged.”)

Hill

is not entitled to habeas relief on Ground One.
B.

Ineffective Assistance of Counsel in Plea Negotiations
In Ground Two, Hill asserts that counsel was

constitutionally deficient during plea negotiations by failing
to inform him that New Jersey’s No Early Release Act (“NERA”)
applied to his sentence and parole eligibility, and failing to

18

inform him that he could receive consecutive sentences if he
were convicted after a trial.3
The Sixth Amendment guarantees the accused the “right . . .
to have the Assistance of Counsel for his defense.”
amend. VI.

U.S. Const.

A claim that counsel’s assistance was so defective

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

See Strickland v. Washington, 466

First, the defendant must “show that

counsel’s representation fell below an objective standard of
reasonableness.”

Id. at 687-88.

To meet this prong, a

“convicted defendant making a claim of ineffective assistance
must identify the acts or omissions of counsel that are alleged
not to have been the result of reasonable professional
judgment.” Id. at 690.

The court must then determine whether,

in light of all the circumstances at the time, the identified
errors fell “below an objective standard of reasonableness[.]”
Hinton v. Alabama, 134 S.Ct. 1081, 1083 (2014) (per curiam).
establish prejudice, the defendant must show that “there is a

3

Hill further states that he “was under Psychological and
Psychiatric care, receiving numerous medications, including
psychoactive and psychotropic medications,” but he does not
assert the way in which counsel was deficient in this regard.
(ECF No. 1 at 9.)
19

To

reasonable probability that the result of the trial would have
been different absent the deficient act or omission.”

Id., 134

S.Ct. at 1083.
To establish ineffective assistance of counsel in the plea
negotiation context where defendant rejected a plea, a defendant
must show:

(1) counsel’s advice during the plea process was not

“‘within the range of competence demanded of attorneys in
criminal cases,’” Hill v. Lockhart, 474 U.S. 52, 56 (1985)
(quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)), and
(2) “but for the ineffective advice of counsel there is a
reasonable probability that the plea offer would have been
presented to the court (i.e., that the defendant would have
accepted the plea and the prosecution would not have withdrawn
it in light of intervening circumstances), that the court would
have accepted its terms, and that the conviction or sentence, or
both, under the offer’s terms would have been less severe than
under the judgment and sentence that in fact were imposed.”
Lafler v. Cooper, 132 S.Ct. 1376, 1385 (2012).
Hill raised his ineffective assistance of counsel claims on
post-conviction review.

The Appellate Division rejected the

claims because it found that Hill had, in fact, been informed

20

about the effect of the NERA and the potential for consecutive
sentences:
The pre-trial memorandum defendant signed confirms
that the State offered him a plea agreement of an
eighteen-year term of imprisonment subject to NERA on
counts one and six, and that defendant acknowledged
that NERA applied and, if convicted, he faced a
maximum sentence of one hundred and twenty years and a
maximum parole ineligibility period of sixty years.
Thus, we agree with the PCR judge that defendant was
well-aware of his potential sentence and NERA exposure
if convicted.
Hill, 2013 WL 3581913 at *3.
The record confirms that on May 21, 2003, Hill signed and
initialed each page of a Pretrial Memorandum.

(ECF No. 14-3.)

The Pretrial Memorandum sets forth each count of the indictment
and the maximum sentencing exposure for each count, states that
NERA’s 85% period of parole ineligibility applies, specifies the
maximum sentencing exposure, if convicted after trial on all
counts, of 120 years, with a maximum parole ineligibility period
of 60 years, and describes the plea offer, i.e., pleading guilty
to kidnapping and aggravated sexual assault in exchange for
dismissal of the remaining charges and a sentence of 18 years
with an 85% period of parole ineligibility.
Again § 2254(e)(1) requires this Court to presume the
correctness of the Appellate Division’s findings that Hill knew
when he rejected the plea offer that the NERA applied to his
21

sentence and affected his parole eligibility, and that he could
receive consecutive sentences if he were convicted after a
trial.

Hill has not rebutted this presumption of correctness

nor shown that the Appellate Division unreasonably determined
these facts in light of the evidence presented.
2254(d)(2).

See 28 U.S.C. §

Nor has he shown that the Appellate Division

unreasonably applied Strickland and its progeny in its rejection
of Hill’s ineffective assistance of counsel claim.

Accordingly,

he is not entitled to habeas relief on Ground Two.

See 28

U.S.C. § 2254(d)(1).

IV.

CERTIFICATE OF APPEALABILITY

The AEDPA provides that an appeal may not be taken to the
court of appeals from a final order in a § 2254 proceeding
unless a judge issues a certificate of appealability on the
ground that “the applicant has made a substantial showing of the
denial of a constitutional right.”

28 U.S.C. § 2253(c)(2).

This Court denies a certificate of appealability because jurists
of reason would not find it debatable that dismissal of the
Petition is correct.

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V.

CONCLUSION

This Court will dismiss the Petition with prejudice and
deny a certificate of appealability.

An Order consistent with

this Opinion will be filed.

s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Dated:

May 20, 2016

At Camden, New Jersey

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