YATES v. D'ILIO et al

Filing 18

OPINION. Signed by Judge Noel L. Hillman on 2/23/2023. (amv)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
NATHAN YATES,
:
:
Petitioner,
:
Civ. No. 14-7823 (NLH)
:
v.
:
OPINION
:
STEPHEN D’ILIO, et al.,
:
:
Respondents.
:
______________________________:
APPEARANCES:
Michael Confusione, Esq.
Hegge & Confusione, LLC
P.O. Box 366
Mullica Hill, NJ 08062-0366
Attorneys for Petitioner
Grace C. MacAulay, Camden County Prosecutor
Linda A. Shashoua, Chief, Motion and Appeals Unit
Jason Magid, Assistant Prosecutor
Camden County Prosecutor’s Office
200 Federal Street
Camden, NJ 08103
Counsel for Respondents
HILLMAN, District Judge
Petitioner Nathan Yates, presently incarcerated in South
Woods State Prison, New Jersey is proceeding on a petition for a
writ of habeas corpus under 28 U.S.C. § 2254.
Respondents oppose the petition.

ECF No. 1.

ECF No. 6.

For the reasons stated below, the petition will be denied.
No certificate of appealability shall issue.

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I. BACKGROUND
The facts of this case were recounted below and this Court,
affording the state court’s factual determinations the
appropriate deference, 28 U.S.C. § 2254(e)(1), reproduces the
recitation of the facts as set forth by the New Jersey Superior
Court, Appellate Division (“Appellate Division”) in its opinion
affirming the denial of Petitioner’s post-conviction relief
(“PCR”) petition:
Defendant was charged with armed robbery (count one),
N.J.S.A. 2C:15–1; second-degree unlawful possession of
firearms (count two), N.J.S.A. 2C:39–4(a); third-degree
unlawful possession of weapon—a handgun (count three),
N.J.S.A. 2C:39–5(b); fourth-degree possession of hollow
nose bullets (count four), N.J.S.A. 2C:39–3(f); seconddegree resisting arrest (count five), N.J.S.A. 2C:29–
2(b); and second-degree certain persons not to have
weapons (count six), N.J.S.A. 2C:39–7.
The charges resulted from a stick-up of a Sicklerville
convenience store at 9:45 p.m. on May 7, 2002.
The
counter clerk, Navinchal Patel, described the incident.
He testified a man wearing a black, hooded sweatshirt,
entered his store, stepped toward the counter, pointed
a big, silver gun at his face and demanded money, then
ran out of the store.
Patel’s son, Pranesh, was
entering the store as the man exited.
Pranesh Patel
described the assailant as “a six f[oo]t tall, thin,
black man wearing a black, hooded sweatshirt.” Pranesh
Patel watched the man enter “a white Ford Taurus with
Pennsylvania plates that contained the letters ‘ED’ or
‘EK’ and make a right turn from the parking lot onto
Hickstown Road.”
At 10 p.m., Gloucester Township Police Officer Michael
McDonnell encountered a white Ford Taurus, bearing

2

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Pennsylvania license plate EKD–XXXX, 1 with a single
occupant traveling northbound on Route 42.
Officer
McDonnell followed the vehicle and saw the driver reach
toward the back seat. Officer McDonnell activated his
overhead lights to signal the vehicle to stop, and the
driver pulled to the shoulder. However, within seconds,
the vehicle accelerated and returned to the highway.
McDonnell followed in pursuit, “[t]raveling at speeds in
excess of ninety miles per hour,” when the driver lost
control on an exit ramp, flipping the car on its side.
Officer McDonnell approached the vehicle, which was
empty.
Pranesh Patel identified the vehicle as the one he saw
the robber enter after leaving the family store.
Searching the car’s trunk, Investigator William Townsend
found a silver handgun, four hollow nose bullets, and a
black sweatshirt with $180 in its pocket. The ring of
keys still in the ignition contained a shopper’s card
and a mailbox key. The shopper’s card was registered
to defendant’s wife, Veronica Yates, and the mailbox key
opened the Yates’s apartment mailbox.
Defendant’s
driver’s license and social security card were found in
the glove box along with the vehicle’s registration.
The next day, Navinchal Patel was shown an eightphotograph array by Camden County Investigator Brian
DeCosmo. He chose defendant’s photograph as the
assailant.
Although stating he did not “exactly” see
the assailant’s face because he was wearing the hood as
he stood approximately five to six feet away, Navinchal
Patel saw his nose, eyes and lips and was sure the photo
was of the assailant. Investigator DeCosmo “testified
that the shopkeeper selected defendant’s photo with ‘a
hundred percent certainty.’” “At trial, Navinchal Patel
was unable to identify defendant as the man who entered
his store and robbed him at gunpoint.”
Defendant’s mother testified at trial.
She explained
defendant called her at around 9 p.m. because he needed
a ride home. He and his wife had argued and she left
with the car, stranding him at the Baby Depot in
“For confidentiality purposes, we do not list the exact license
plate number.” Yates II, 2014 WL 1316134, at *1 n.2.
3
1

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Turnersville.
Mrs. Yates picked up her son by 9:30
p.m., dropped him off in Philadelphia by 10 p.m., and
returned to her Swedesboro home around 10:45 p.m.
State v. Yates, No. A-5163-11T1, 2014 WL 1316134, at *1–2 (N.J.
Super. Ct. App. Div. Apr. 3, 2014) (“Yates II”) (internal
citations omitted).
Id. at *2.

Petitioner was convicted on all charges.

“After merger, defendant was sentenced to an

aggregate extended term of twenty-five years in prison, subject
to the 85% parole ineligibility period imposed by the No Early
Release Act, N.J.S.A. 2C:43–7.2, for counts one through five and
a consecutive eight-year term on count six.”

Id.

On direct appeal, the Appellate Division affirmed
Petitioner’s convictions but remanded for resentencing on Count
Four.

State v. Yates, No. A-6378-05T4, 2008 WL 877793 (N.J.

Super. Ct. App. Div. Apr. 3, 2008) (“Yates I”); ECF No. 6-9.
The trial court entered an amended judgment of conviction on
April 3, 2008.

ECF No. 6-5.

The New Jersey Supreme Court

denied certification on June 10, 2008.

State v. Yates, 951 A.2d

1038 (N.J. 2008)(Table); ECF No. 6-13.
Petitioner filed a PCR petition on July 17, 2008.
6-14.

ECF No.

The PCR court held oral argument on January 27, 2012 and

denied the petition without an evidentiary hearing.

4

ECF No. 6-

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21; 7T.2

Petitioner appealed, and the Appellate Division

affirmed the PCR Court, Yates II, 2014 WL 1316134; ECF No. 6-25.
The New Jersey Supreme Court denied certification on October 9,
2014.

State v. Yates, 101 A.3d 1081 (N.J. 2014) (Table); ECF

No. 6-29.
Petitioner filed his original petition for habeas corpus
pro se on December 16, 2014.

ECF No. 1.

The Honorable Jerome

B. Simandle, D.N.J., advised Petitioner of his rights and
obligations under Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000).
ECF No. 2.

Petitioner did not submit a response, so Chief Judge

Simandle ordered Respondents to answer the petition.

ECF No. 3.

On July 23, 2015, Petitioner moved for a stay and abeyance of
his petition while he filed a motion for a new trial based on
newly discovered evidence in the state courts.

ECF No. 7.

1T = Pre-Trial Conference Transcript dated February 7, 2005;
ECF No. 6-30.
2

2T = Pre-Trial Conference Transcript dated April 25, 2005; ECF
No. 6-31.
3T = Trial Transcript dated September 27, 2005; ECF No. 6-32.
4T = Trial Transcript dated September 28, 2005; ECF No. 6-33.
5T = Trial Transcript dated September 29, 2005; ECF No. 6-34.
6T = Sentencing Transcript dated November 4, 2005; ECF No. 6-35.
7T = Post-Conviction Relief Argument Transcript dated January
27, 2012; ECF No. 6-36.
5

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Respondents submitted a letter indicating that they did not
object to the request.

ECF No. 8.

Chief Judge Simandle granted

the motion for a stay and administratively terminated the
petition.

ECF No. 9.

On July 1, 2019, Petitioner, now represented by counsel,
filed a motion to reopen his § 2254 proceedings, asking the
Court to “restore this habeas case to the active calendar for
determination of petitioner’s 2254 claims on their merits.” ECF
No. 11 ¶ 9.

After concluding that Petitioner was not adding any

new claims to the petition, the Court granted the motion and
reopened the proceedings.

ECF No. 15.3

II. STANDARD OF REVIEW
Title 28 U.S.C. § 2254 permits a federal court to entertain
a petition for writ of habeas corpus on behalf of a person in
state custody pursuant to the judgment of a state court “only on
the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.”

28

U.S.C. § 2254(a).
Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), the writ shall not issue with respect to any
claim that was adjudicated on the merits by a state court unless

The matter was reassigned to the undersigned on August 8, 2019.
ECF No. 14.
6
3

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the adjudication of the claim
(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on
an unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding . . . .
28 U.S.C. § 2254(d).

A state court decision is “contrary to”

Supreme Court precedent “if the state court applies a rule that
contradicts the governing law set forth in [Supreme Court]
cases,” or “if the state court confronts a set of facts that are
materially indistinguishable from a decision of th[e] Court and
nevertheless arrives at a result different from [the Court’s]
precedent.”

Williams v. Taylor, 529 U.S. 362, 405–06 (2000).

“[A] state-court decision is an unreasonable application of
clearly established [Supreme Court] precedent if it correctly
identifies the governing legal rule but applies that rule
unreasonably to the facts of a particular prisoner’s case.”
White v. Woodall, 572 U.S. 415, 426 (2014).

“[A]n unreasonable

application of federal law,” however, “is different from an
incorrect application of federal law.”

Harrington v. Richter,

562 U.S. 86, 101 (2011) (quoting Williams, 529 U.S. at 410).
The Court must presume that the state court’s factual findings
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are correct unless Petitioner has rebutted the presumption by
clear and convincing evidence.

28 U.S.C. § 2254(e)(1).

III. DISCUSSION
Petitioner presents two arguments for this Court’s review:
I.

The prosecutor’s remarks in summation, which
vouched for the credibility of the state’s
witnesses, were error and deprived the Defendant of
a fair trial.

II.

Defendant’s conviction should be reversed because
Defendant was denied the effective assistance of
counsel.

ECF No. 1 at 6-7.
A.

Prosecutorial Misconduct
Petitioner argues in his first claim that the prosecutor

impermissibly vouched for the credibility of the State’s two
main witnesses during closing arguments.

“The State’s main two

witnesses were the robbery victim, Navinchal Patel, and the
officer who chased the suspect vehicle, Michael McDonnell.

The

prosecutor distorted the jury’s evaluation of these witnesses by
essentially vouching for their credibility.”

ECF No. 1 at 15.

Petitioner did not object to the summation at trial.

The

Appellate Division rejected this claim on its merits during
Petitioner’s direct appeal.

Yates I, 2008 WL 877793, at *2-3.

“In evaluating such claims, we consider whether the
prosecutors’ comments so infected the trial with unfairness as
8

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to make the resulting conviction a denial of due process.”

Fahy

v. Horn, 516 F.3d 169, 198 (3d Cir. 2008) (citing Darden v.
Wainwright, 477 U.S. 168, 181 (1986)) (internal quotation marks
omitted).

“When the claim is that a prosecutor’s remark at

trial so infected the trial with unfairness as to make the
resulting conviction a denial of due process, we must examine
the comment in light of the entire proceedings.”

Id. at 203-04.

“This determination will, at times, require us to draw a fine
line - distinguishing between ordinary trial error on one hand,
and that sort of egregious misconduct which amounts to a denial
of constitutional due process on the other hand.”

Werts v.

Vaughn, 228 F.3d 178, 198 (3d Cir. 2000) (internal quotation
marks omitted).
The Appellate Division considered the state’s summation as
a whole and concluded that it did not violate Petitioner’s
rights.

“A summation cannot be evaluated in isolation because

the State is permitted to respond to allegations made by defense
counsel in summation.”

Yates I, 2008 WL 877793, at *2.

“Defense counsel referred to the shopkeeper as an ‘honest’ man
because he readily admitted at trial that he was unable to
identify defendant as the man who robbed him.”
also 4T67:25 to 68:1, 68:15-16.

Id. at *3. See

“Thus, the prosecutor’s

characterization of Navinchal Patel’s identification one day
9

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after the event was not only fully supported by the trial record
but also in direct response to a comment in defendant’s
summation.”

Yates I, 2008 WL 877793, at *2.

Likewise, the Appellate Division concluded that “[t]he
prosecutor’s discussion of what the jury might have heard from
Officer McDonnell if he was ‘crooked’ or ‘shady’ was in direct
response to defense counsel’s summation.”

Id.

Officer McDonnell could not identify defendant at trial
as the man driving the Ford Taurus. Defense counsel
argued that McDonnell failed to identify defendant
because he did not want to lie, therefore, suggesting
that the State had fabricated the evidence linking
defendant to the getaway car. Defense counsel also
argued that McDonnell was unable to identify defendant
at trial because defendant was not the driver of the
Ford Taurus. Thus, here too, the prosecutor was simply
responding to a comment by defense counsel when he
offered an alternative version of McDonnell’s testimony,
if he was, in fact, reaching to link defendant to the
car.
Id.

See also 4T81:25 to 82:4 (Trial counsel: “[Officer

McDonnell] doesn’t identify [Petitioner] and say ‘You know what,
that’s the guy I saw driving the car.’

He doesn’t say that.

They don’t ask him that because the answer is that’s not the guy
in the car.

He’s not going to come in here and lie.”).

The Appellate Division’s reasoning follows federal law.
“In order to make an appropriate assessment, the reviewing court
must not only weigh the impact of the prosecutor’s remarks, but
must also take into account defense counsel’s opening salvo.
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Thus the import of the evaluation has been that if the
prosecutor’s remarks were ‘invited,’ and did no more than
respond substantially in order to ‘right the scale,’ such
comments would not warrant reversing a conviction.”
States v. Young, 470 U.S. 1, 12–13 (1985).

United

When viewed in the

context of the entire proceedings and in consideration of all
the evidence at trial, any objectionable statements by the
prosecutor did not so infect the trial such that habeas relief
would be warranted.

The Appellate Division reasonably applied

federal law and was objectively reasonable in concluding the
remarks did not violate due process.

Habeas relief will be

denied on that claim.
B.

Ineffective Assistance of Counsel
Petitioner raises several ineffective assistance of counsel

claims.

He argues trial counsel was ineffective for failing to

produce alibi witnesses, failing to discuss trial strategy;
failing to conduct a thorough investigation, and failing to
advance “proper arguments for conducting an identification
hearing.”

ECF No. 1 at 16.

He also asserts appellate counsel

was ineffective for failing to raise the identification issue on
direct appeal.

Id.

To succeed on these claims, Petitioner must “show that
counsel’s representation fell below an objective standard of
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reasonableness.”
(1984).

Strickland v. Washington, 466 U.S. 668, 688

He must then show “a reasonable probability that, but

for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the
outcome.”

Id. at 694.

Furthermore, “[w]hen a federal habeas petition under § 2254
is based upon an ineffective assistance of counsel claim, ‘[t]he
pivotal question is whether the state court’s application of the
Strickland standard was unreasonable,’ which ‘is different from
asking whether defense counsel’s performance fell below
Strickland’s standard.’”

Grant v. Lockett, 709 F.3d 224, 232

(3d Cir. 2013) (quoting Harrington v. Richter, 562 U.S. 86, 101
(2011)).

“Federal habeas review of ineffective assistance of

counsel claims is thus ‘doubly deferential.’”

Id. (quoting

Cullen v. Pinholster, 563 U.S. 170, 190 (2011)).

“When §

2254(d) applies, the question is not whether counsel’s actions
were reasonable.

The question is whether there is any

reasonable argument that counsel satisfied Strickland’s
deferential standard.”

Harrington, 562 U.S. at 105.

1. Alibi Witnesses
Petitioner argues trial counsel was ineffective for failing
to produce two additional alibi witnesses at trial: Tiffany Bush
12

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and Veronica Yates, Petitioner’s wife.

“[P]etitioner states

that trial counsel discussed producing the petitioner’s wife,
Veronica Yates, his mother, Joanna Yates, and Ms. Tiffany Bush
as alibi witnesses.

However, the only defense witness to

testify was petitioner’s mother - Joanna Yates.”

ECF No. 1 at

17.
“Unlike decisions that are reserved to the defendant, such
as the right to proceed to a jury trial, counsel — not the
defendant — has discretion over whom to call as a witness.”
Jordan v. Superintendent Coal Twp. SCI, 841 F. App’x 469, 473
(3d Cir. 2021) (citing Gov’t of V.I. v. Weatherwax, 77 F.3d
1425, 1434 (3d Cir. 1996)).

See also Berryman v. Morton, 100

F.3d 1089, 1101 (3d Cir. 1996) (“The right to counsel does not
require that a criminal defense attorney leave no stone unturned
and no witness unpursued.”); Judge v. United States, 119 F.
Supp. 3d 270, 284-85 (D.N.J. 2015) (“Where a petitioner
challenges his counsel’s decision as to which witnesses to call,
courts are required not simply to give the attorney the benefit
of the doubt, but to affirmatively entertain the range of
possible reasons petitioner’s counsel may have had for
proceeding as he did.” (cleaned up)).
“Veronica Yates certified ‘on May 7, 2202[sic],’ she left
defendant at the Turnersville Baby Depot after an argument, and
13

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went straight home.

When she went to give a friend a ride, she

realized her car was stolen, surmising she left the keys in the
ignition or the trunk.

Further, she explained, at her urging,

defendant always left his driver’s license in ‘the glove
department [sic].’”
in original).

Yates II, 2014 WL 1316134, at *5 (brackets

See also ECF No. 6-18 at 22-23.

The Appellate

Division concluded “[t]he decision not to call Veronica Yates as
a witness was strategic and tactical.”
1316134, at *5.

Yates II, 2014 WL

“The facts asserted in Veronica Yates’s

certification do not add to the trial testimony that was
provided by defendant’s mother, Mrs. Yates.

After she left him

at 8 p.m., Veronica Yates offers no information establishing
defendant’s whereabouts.”

Id.

Trial counsel certified: “Regarding the decision not to
call the defendant’s wife Veronica Yates as a witness, it is my
recollection that this was a tactical decision discussed by and
between Counsel, the defendant and Mrs. Yates based upon
inconsistencies in statements that Mrs. Yates had given to law
enforcement.”

ECF No. 6-19 at 64.

See also 7T27:25 to 28:6

(“Specifically although defendant’s wife wrote in her alibi
statement that she left defendant standing — stranded at the
Baby Depot after an argument, she initially told police the
defendant had left the couple’s apartment with ‘some friends’
14

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after they had an argument around 7 p.m. on the night of the
robbery.”).
The Appellate Division’s conclusion is a reasonable
application of Strickland.

Courts “have found ineffective

assistance of counsel where counsel failed to call a potential
alibi witness because counsel neglected to investigate such
witness.”

Jordan v. Superintendent Coal Twp. SCI, 841 F. App’x

469, 473 (3d Cir. 2021) (citing Rolan v. Vaughn, 445 F.3d 671,
682 (3d Cir. 2006)). “However, in this case, the record . . .
clearly shows that counsel investigated [Veronica Yates] as an
alibi witness, even going so far as to meet with [her] to
prepare for potential testimony.”

Id.

See also Locus v.

Johnson, No. 18-11527, 2021 WL 1749466, at *30 (D.N.J. May 4,
2021) (“[I]t is significant that defense counsel was aware of
these witnesses before trial because it supports the conclusion
that counsel made a strategic decision not to call the
witnesses.”).
“Rather than giving trial counsel the full ‘benefit of the
doubt,’ we are required to ‘affirmatively entertain’ possible
reasons counsel may have had for not calling [Veronica Yates] as
a witness.”

Jordan, 841 F. App’x at 473 (citing Cullen v.

Pinholster, 563 U.S. 170, 196 (2011)).

The Appellate Division

reasonably concluded that trial counsel made a strategic
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decision not to call Veronica Yates after interviewing and
preparing her for trial.

“Such a decision is within the realm

of reasonableness and does not violate the dictates of
Strickland.”

Porter v. Adm’r of New Jersey State Prison, No.

20-2048, 2021 WL 2910944, at *3 (3d Cir. July 12, 2021) (finding
state courts reasonably applied Strickland in concluding
decision not to call alibi witness due to potential bias was
“tactical and sound trial strategy”).
The state courts also reasonably applied Strickland in
concluding that Petitioner had not shown that trial counsel was
ineffective for failing to call Tiffany Bush as an alibi
witness.

“With respect to the second witness, Tiffany Bush,

petitioner affirmed in his petition below that he met up with
this female when his mother dropped him off in Philadelphia and
stayed with Bush ‘that entire night.’”

ECF No. 1 at 18.

Petitioner did not provide a certification from Tiffany Bush in
connection with his PCR proceedings.

See Yates II, 2014 WL

1316134, at *6 (“The record contains no evidence regarding the
testimony of Tiffany Bush.

Accordingly, defendant’s unsupported

allegation she should have been called as a witness does not
warrant PCR.”).
Petitioner speculates as to what Tiffany Bush would have
said at trial, but the a showing of prejudice under Strickland
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“may not be based on mere speculation about what the witnesses
[counsel] failed to locate might have said.”
Gray, 878 F.2d 702, 712 (3d Cir. 1989).

United States v.

“Under usual

circumstances, we would expect that such information would be
presented to the habeas court through the testimony of the
potential witnesses.

‘Complaints of uncalled witnesses are not

favored in federal habeas review.’”

U.S. ex rel. Cross v.

DeRobertis, 811 F.2d 1008, 1016 (7th Cir. 1987) (quoting Murray
v. Maggio, 736 F.2d 279, 282 (5th Cir. 1984)).

See also Duncan

v. Morton, 256 F.3d 189, 202 (3d Cir. 2001); Huggins v. United
States, 69 F. Supp. 3d 430, 446 (D. Del. 2014) (noting that
movant did not provide an affidavit from the witness stating
that he would have been available to testify and describing his
potential testimony), certificate of appealability denied, No.
14-4129 (3d Cir. Mar. 9, 2015).

Petitioner has not provided any

sworn testimony, affidavit, or certification from Tiffany Bush,
and his mere speculation regarding her testimony is insufficient
to establish prejudice.

See Duncan, 256 F.3d at 201-02.

The

state courts reasonably applied Strickland in denying this
claim.
2.

Failure to Investigate

Petitioner also alleges trial counsel “failed to thoroughly
investigate his matter by not going to the baby depot and
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inquiring about whether there were cameras in the store that had
possibly recorded the time that defendant entered and left the
premises.

Petitioner submits that trial counsel failed to

interview any of the personnel/staff at baby depot to verify
that he and his wife had a very loud argument while in the store
on the evening of May 7, 2002.”

ECF No. 1 at 19.

Petitioner

further asserts trial counsel “failed to review any tapes from
the rear video camera that was activated at the time of the
robbery; that counsel failed to obtain the descriptions and
obtain statements from the other two people who were in the rear
of the store at the time it was being robbed.”

Id.

Trial counsel “has a duty to make reasonable investigations
or to make a reasonable decision that makes particular
investigations unnecessary.

In any ineffectiveness case, a

particular decision not to investigate must be directly assessed
for reasonableness in all the circumstances, applying a heavy
measure of deference to counsel’s judgments.”
U.S. at 691.

Strickland, 466

“[T]he ‘failure to investigate a critical source

of potentially exculpatory evidence may present a case of
constitutionally defective representation.’”

United States v.

Travillion, 759 F.3d 281, 293 n.23 (3d Cir. 2014) (quoting
United States v. Baynes, 622 F.2d 66, 69 (3d Cir. 1980)).
The Appellate Division denied this claim because Petitioner
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did “not show there was a working video camera, which captured
him waiting outside the Baby Depot at 9:30 p.m.”
WL 1316134, at *6.

Yates II, 2014

“Further, the two store customers were not

known to Navinchal Patel, and he stated they fled after
defendant departed, but before police arrived, making their
identity unknown.”

Id.

These conclusions are reasonable

applications of Strickland.
“When a petitioner alleges that counsel’s failure to
investigate resulted in ineffective assistance, the petitioner
has the burden of providing the court with specific information
as to what the investigation would have produced.”

United

States v. Lathrop, 634 F.3d 931, 939 (7th Cir. 2011).

See also

Judge v. United States, 119 F. Supp. 3d 270, 286 (D.N.J. 2015).
Petitioner has not produced any evidence that camera footage
from the Baby Depot existed or was obtainable at the time of
trial.

See United States v. Garvin, 270 F. App’x 141, 144 (3d

Cir. 2008).

He also has not identified the two robbery

witnesses and provided affidavits supporting his claim that he
was not the robber.

See Desa v. Nogan, No. 21-7444, 2021 WL

4947365, at *6 (D.N.J. Oct. 25, 2021) (“Where a petitioner’s
claim of failure to investigate is based on counsel’s failure to
investigate or call a certain witness at trial, a showing of
prejudice has an additional requirement – the provision of a
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sworn affidavit or testimony from the witness regarding the
testimony the witness would have been provided had they been
called at trial.”).

In the absence of specific evidence

supporting Petitioner’s speculative claims, the Appellate
Division reasonably applied Strickland’s prejudice prong.
3.

Failure to Disclose Trial Strategy

Petitioner also asserts that “had trial counsel advise[d]
him that all three alibi witnesses would not be testifying at
the trial, the petitioner may have strongly reconsidered a plea
offer because of the disjunctive nature in which the trial
counsel chose to present the defense.”

ECF No. 1 at 19.

“[T]he

inability of trial counsel to produce the testimony of the two
additional witnesses was not revealed nor explained to him prior
to trial commencing, but developed after the trial had already
started.”

Id.

The Appellate Division rejected this argument, noting that
“a sequestration order would prevent [Veronica Yates’] presence
in the courtroom, until she testified.

Consequently, on the

opening day of trial, defense counsel advised the court Veronica
Yates decided not to testify and would be staying in the
courtroom, apparently to show the jury her support for her
husband.”

Yates II, 2014 WL 1316134, at *5.

Petitioner was

present when trial counsel made this announcement.
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also relied on trial counsel’s certification, which stated “the
decision not to call the defendant’s wife Veronica Yates as a
witness, it is my recollection that this was a tactical decision
discussed by and between Counsel, the defendant and Mrs. Yates
based upon inconsistencies in statements that Mrs. Yates had
given to law enforcement.”

ECF No. 6-19 at 64.

“The decision

not to call her was made collectively and not solely by
Counsel.”

Id.

The Appellate Division reasonably concluded that trial
counsel made a strategic decision not to call Veronica Yates
after consulting Petitioner.

“Strategies can and do often

change due to a change in circumstances.
very fluid things.

Criminal trials are

Even the most experienced and effective

trial counsel are compelled to make strategic calls on the fly.”
Murphy v. Att’y Gen. of New Jersey, No. 17-2960, 2022 WL
17177083, at *15 (D.N.J. Nov. 23, 2022) (internal quotation
marks omitted).

The state courts reasonably applied Strickland

to this claim, precluding habeas relief.
4. Failure to Challenge Identification Procedures4

The state courts dismissed as procedurally barred Petitioner’s
claim that the trial court erred in denying his motion for a
hearing pursuant to United States v. Wade, 388 U.S. 218 (1967).
Yates II, 2014 WL 1316134, at *4. Petitioner does not raise
this claim in his § 2254 petition, see ECF No. 1 at 7, and the
Court would be unable to review it absent a showing of cause and
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Petitioner’s final ineffective of trial counsel claim
alleges that trial counsel failed to “advance proper arguments
for conducting an identification hearing.”

ECF No. 1 at 20.

“[T]rial counsel failed to properly articulate sufficient
supplemental facts to provide the court with a basis for
sufficiently evaluating whether or not to grant the petitioner’s
application for a pre-trial identification hearing even after
the court invited trial counsel an opportunity during the
September 27, 2005 court conference to supplement the record on
that very issue.”

Id.

The Appellate Division rejected this claim.

At the time of

Petitioner’s trial, New Jersey law held that “[a] successful
challenge to the admissibility of proffered identification
testimony shows the procedure in question was in fact
impermissibly suggestive, such that the witness’s choice did not
represent his or her independent recollection.”

Yates II, 2014

WL 1316134, at *4 (internal quotation marks omitted).

“If the

judge found the procedures impermissively suggestive, it then

prejudice in any event. See Shinn v. Ramirez, 142 S. Ct. 1718,
1730 (2022) (“[O]nly rarely may a federal habeas court hear a
claim or consider evidence that -a prisoner did not previously
present to the state courts in compliance with state procedural
rules.”). The Court is limited to Petitioner’s ineffective
assistance of counsel claim, which the Appellate Division denied
on the merits. Yates II, 2014 WL 1316134, at *5.
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must determine whether the objectionable procedure resulted in a
very substantial likelihood of irreparable misidentification.”
Id. (internal quotation marks omitted) (citing Simmons v. United
States, 390 U.S. 377, 384 (1968)).

See also Watkins v. Sowders,

449 U.S. 341, 349 (1981) (holding there is no per se rule
requiring Wade hearing).

The Appellate Division stated:

Defendant’s identification challenge proved two of the
eight photographs were the same individual; otherwise he
offered no evidence showing procedures employed by
police were suggestive.
Rather, he suggested Navinchal
Patel was mistaken because he was in shock and was
focusing on the gun, not the robber.
Trial counsel
explained defendant sought to cross-examine Navinchal
Patel; however, the State declined, offering police, not
the complaining witness’s testimony. The judge rejected
defendant’s request to subpoena Navinchal Patel to
testify prior to trial. Based on the anticipated police
testimony, trial counsel agreed he could not demonstrate
suggestibility.
The State noted Investigator DeCosmo
would be called to testify at trial, and defense counsel
acknowledged he would have the opportunity to challenge
the identification procedures at that time.
Yates II, 2014 WL 1316134, at *4.

Trial counsel cross-examined

Navinchal Patel during trial, “concentrat[ing] on Navinchal
Patel’s inability to identify defendant in court and attacked
his identification made the day after the robbery.”

Id. at *5.

“Counsel was able to establish Navinchal Patel could not
‘exactly’ see the robber’s face because it was partially
obscured by his hood; the witness was scared, nervous and
concentrating on the gun aimed at his face at the time of the
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robbery; and when pressed in court he could not again describe
the facial features of the eyes or nose of the assailant that
aided Navinchal Patel’s choice of defendant’s photograph.”

Id.

“Although cross-examination thoroughly attacked the credibility
of the victim and Investigator DeCosmo, the effort yielded no
facts supporting a claim the photo array procedures were
improper.”

Id.

Petitioner has not presented evidence that the
identification procedure was impermissibly suggestive, a
prerequisite for a Wade hearing, and the record shows that trial
counsel attacked the credibility of the identification during
trial.

On this record, the Appellate Division reasonably

applied Strickland in reaching its conclusion that trial counsel
did not “neglect[] the identification issue.”

Id.

The Court

will deny habeas relief on this claim.
5.

Ineffective Assistance of Appellate Counsel

Petitioner’s final claim is that his appellate counsel was
ineffective for failing to challenge the denial of the Wade
hearing on appeal.

The Court applies the Strickland standard to

ineffective assistance of appellate counsel claims.
v. Robbins, 528 U.S. 259, 285–86 (2000).

See Smith

To establish the

prejudice prong, Petitioner must show “that there is a
‘reasonable probability’ — ‘a probability sufficient to
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undermine confidence in the outcome,’ but less than a
preponderance of the evidence — that his appeal would have
prevailed had counsel’s performance satisfied constitutional
requirements.”

United States v. Cross, 308 F.3d 308, 315 (3d

Cir. 2002) (quoting Strickland, 466 U.S. at 694–95).
The Appellate Division concluded that Petitioner had not
met this standard: “Because we have rejected defendant’s
suggestions trial counsel was ineffective, the same claims
lodged against appellate counsel fail for the same reasons we
discussed.”

Yates II, 2014 WL 1316134, at *5.

reasonable application of Strickland.

This is a

“Appellate attorneys are

not constitutionally required to raise every theoretical issue
on appeal[.]”

Bassett v. United States, 188 F. Supp. 3d 411,

420 (D.N.J. 2016) (citing United States v. Turner, 677 F.3d 570,
577–78 (3d Cir. 2012)).

The Appellate Division concluded that

trial counsel was not ineffective for failing to press for a
Wade hearing, and it reasonably follows from there that
appellate counsel was not ineffective for challenging the denial
of a Wade hearing on appeal.

Accordingly, the Court will deny

Petitioner’s ineffective assistance of appellate counsel claim.
IV. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), a petitioner may not
appeal from a final order in a habeas proceeding where that
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petitioner’s detention arises out of his state court conviction
unless he has “made a substantial showing of the denial of a
constitutional right.”

“A petitioner satisfies this standard by

demonstrating that jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that
jurists could conclude that the issues presented here are
adequate to deserve encouragement to proceed further.”

Miller-

El v. Cockrell, 537 U.S. 322, 327 (2003).
For the reasons expressed above, Petitioner has failed to
make a substantial showing that he was denied a constitutional
right.

As jurists of reason could not disagree with this

Court’s resolution of the claims, the Court shall deny
Petitioner a certificate of appealability.
V.

CONCLUSION
For the above reasons, the Court will deny the habeas

corpus petition.

A certificate of appealability shall not

issue.
An appropriate Order follows.

Dated: February 23, 2023
At Camden, New Jersey

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

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