MURPHY v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY

Filing 37

OPINION. Signed by Judge Noel L. Hillman on 7/26/2021. (rss, n.m.)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
TYSHEIM MURPHY,
Petitioner,

Civil Action
No. 17-2960 (NLH)

v.
THE ATTORNEY GENERAL OF
THE STATE OF NEW JERSEY,
et al.,

OPINION

Respondents.

APPEARANCES:
Tysheim Murphy
668462/719455C
East Jersey State Prison
1100 Woodbridge Rd.
Rahway, NJ 07065
Petitioner pro se
John J. Santoliquido, Esq.
Atlantic County Prosecutor’s Office
4997 Unami Boulevard
Mays Landing, New Jersey 08330
Attorney for Respondent John Cunningham
HILLMAN, District Judge
I.

INTRODUCTION
Tysheim Murphy, a state prisoner confined at East Jersey

State Prison, is proceeding on a second amended petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254.

ECF No. 7.

As part of that petition, he seeks an evidentiary hearing on one

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of his claims of ineffective assistance of counsel.

ECF No. 36.

For the reasons stated herein, the Court will deny the motion
for an evidentiary hearing.
II.

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 Honorable Bernard
DeLury, Jr., J.S.C., in his opinion denying Petitioner’s first
post-conviction relief (“PCR”) petition:
On February 3, 2007, the victim, Nyjua Kemp, while
driving home to Bridgeton, NJ after a night at the
casinos in Atlantic City, received a “chirp” from an
acquaintance, “Amy,” 1 whom he met inadvertently on a
single occasion at a convenience store near their home.
Ms. Curran stated that she was also in Atlantic City and
requested a ride. After a bit of confusion as to her
location, the victim eventually met her outside of the
Tropicana Casino where she was accompanied by two other
women. When the victim arrived, he picked up Ms. Curran
only and she provided him with directions to her sister’s
apartment. During their drive, Ms. Curran made a phone
call and said that she was on her way, along with the
victim. After arriving at Ms. Curran’s apartment, the
victim accompanied her upstairs.
Upon entering, the
apartment appeared unlocked and empty with a bottle of
liquor and some cigars on a table. Ms. Curran locked
the door behind them and stated that her sister would be
home soon.
The victim felt uneasy and said that he
intended not to stay but merely wanted to use the
restroom before leaving. Ms. Curran then approached the
bathroom door and two men emerged, the Petitioner and
Mr. Raheem Hayes. The Petitioner brandished a gun and
“Per the State, ‘Amy’ is Amy Curran.” ECF No. 28-29 at 2 n.2.
She is also referred to as “Amy Scott” in some portions of the
record.
1

2

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ordered the victim to put his hands up while Mr. Hayes
extracted the victim’s money, car keys and cell phone.
One of the men then slapped Ms. Curran and took her money
as well. 2
Mr. Hayes then tied a shoelace from the
victim’s boots around the victim’s hands, binding his
wrists. The Petitioner then announced they were going
for a ride. Ms. Curran stayed behind in the apartment
as the three men left.
The two men forced the victim into his car, at gunpoint,
while the Petitioner drove the vehicle. A few minutes
later, they ordered him to exit his vehicle. The victim
immediately complied.
The victim, then, remembering
that they had passed a police officer during their short
drive, found Officer Kien Nhan, and reported the
incident. As Officer Nhan and the victim were conversing
with one another, the victim recognized one of the
perpetrators from across the street.
The suspect was
detained and later identified as the Petitioner. During
a pat-down of the Petitioner, two cell phones were
recovered, one belonging to the victim.
The victim’s
phone was subsequently returned to him at the scene.
The police soon thereafter apprehended the Petitioner’s
co-defendant, Mr. Hayes in a convenience store, where
they also found the handgun described by the victim
laying on a shelf.
ECF No. 28-29 at 2.
An Atlantic County Grand Jury indicted Petitioner for
conspiracy to commit robbery, N.J.S.A. §§ 2C:5-2, 2C:15-1 (Count
1); first-degree robbery, N.J.S.A. § 2C:15-1 (Count 2); seconddegree robbery, N.J.S.A. § 2C:15-1 (Count 3); third-degree
unlawful possession of a handgun, N.J.S.A. § 2C:39-5b (Count 4);
second-degree possession of a handgun for unlawful purposes,
N.J.S.A. § 2C:39-4 (Count 5); fourth-degree aggravated assault,

“The victim stated that the assault on Amy appeared to be
staged.” ECF No. 28-29 at 2 n.3.
2

3

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N.J.S.A. 2C:12-lb(4) (Count 6); third-degree terroristic
threats, N.J.S.A. 2C:l2-3b (Count 7); second-degree conspiracy
to commit carjacking, N.J.S.A. §§ 2C:5-2, 2C:15-2 (Count 8);
first-degree carjacking, N.J.S.A. § 2C:15-2a(2) (Count 9);
second-degree conspiracy to commit kidnapping, N.J.S.A. §§ 2C:52, 2C:l3-1 (Count 10); second-degree kidnapping, N.J.S.A. §
2C:13-1b (Count 11); and third-degree possession of a weapon by
a convicted person, N.J.S.A. §
3.

2C:39-7 (Count 13). 3

ECF No. 28-

Petitioner moved to sever his trial from his co-defendant’s,

but the trial court denied the motion.

ECF No. 28-3.

“[P]etitioner was convicted by a jury on Counts 1 through 7, and
on Count 11 as amended to criminal restraint; the jury found
petitioner not guilty on Counts 8, 9, and 10.

Petitioner

submitted Count 13 to the judge, who found him guilty.”

ECF No.

28 at 3.
On October 22, 2010, the trial court sentenced Petitioner
to a total term of 38 years imprisonment.

ECF No. 28-4.

Petitioner appealed, and the Appellate Division affirmed the
convictions but remanded for resentencing.

State v. Murphy, No.

A-4420-10, 2012 WL 1697392 (N.J. Super. Ct. App. Div. May 16,
2012).

The New Jersey Supreme Court denied certification on

November 9, 2012.

3

State v. Murphy, 56 A.3d 394 (N.J. 2012).

Count 12 was only issued against co-defendant Hayes.
4

On

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remand, the trial court again sentenced Petitioner to 38 years.
ECF No. 28-4.

The Appellate Division affirmed the new sentence.

ECF No. 28-22.
Petitioner filed a motion for post-conviction relief
(“PCR”) on December 20, 2012, which was supplemented by his
appointed counsel on March 20, 2014.

ECF No. 28-26.

The PCR

court held oral argument on May 13, 2014 and later denied the
petition without an evidentiary hearing.

ECF No. 28-29. 4

The

Appellate Division affirmed, State v. Murphy, No. A-0807-14,
2016 WL 6872984 (N.J. Super. Ct. App. Div. Nov. 22, 2016) (per
curiam), and the New Jersey Supreme Court denied certification,
State v. Murphy, 166 A.3d 237 (N.J. 2017).

Petitioner filed two

more unsuccessful PCR motions but did not appeal either denial.
ECF Nos. 28-39, 28-42.
III. ANALYSIS
In Ground Eight of the second amended petition, Petitioner
alleges “[t]he defendant was denied the effective assistance of
counsel when defense counsel misled the defendant with regards
to the use of Amy Curran as a defense witness thereby depriving
him of the right to making an informed decision about avoiding
an extended term and accepting a comparatively lenient plea

4

The State did not provide a transcript of the PCR Hearing.
5

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agreement.”

This claim was rejected on the merits by the PCR

court and by the Appellate Division.
A.

Standard of Review
“Defendants have a Sixth Amendment right to counsel, a

right that extends to the plea-bargaining process.

During plea

negotiations defendants are ‘entitled to the effective
assistance of competent counsel.’”

Lafler v. Cooper, 566 U.S.

156, 162 (2012) (quoting McMann v. Richardson, 397 U.S. 759, 771
(1970)).

“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.”

Hines v. Ricci, No. 10-4130, 2013 WL

1285290, at *16 (D.N.J. Mar. 26, 2013) (citing Strickland v.
Washington, 466 U.S. 668, 686 (1984)).

“[T]he standard for

prevailing under the first prong of Strickland remains
stringent: a petitioner must establish that, ‘in light of all
the circumstances,’ counsel’s mistake was so egregious that it
fell ‘outside the wide range of professionally competent
assistance.’”

Branch v. Sweeney, 758 F.3d 226, 234–35 (3d Cir.

2014) (quoting Strickland, 466 U.S. at 690).
In Hill v. Lockhart, the Supreme Court held that “the twopart Strickland v. Washington test applies to challenges to
guilty pleas based on ineffective assistance of counsel.

In the

context of guilty pleas, the first half of the Strickland v.
Washington test is nothing more than a restatement of the
6

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standard of attorney competence . . . .”
(1985).

474 U.S. 52, 58

However, it tailored Strickland’s second prong, the

“prejudice prong,” to specifically address claims that a
defendant received ineffective assistance of counsel during the
plea process.

The Court announced that the second prong

“focuses on whether counsel’s constitutionally ineffective
performance affected the outcome of the plea process.”
59.

Id. at

“In other words, in order to satisfy the ‘prejudice’

requirement, the defendant must show that there is a reasonable
probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.”

Id.

The Supreme Court subsequently further refined this
standard in Lafler v. Cooper, 566 U.S. 156 (2012), in which
defendant stated he rejected a plea offer based on the deficient
advice of counsel.

“[A]fter the plea offer had been rejected,

there was a full and fair trial before a jury.

After a guilty

verdict, the defendant received a sentence harsher than that
offered in the rejected plea bargain.”

Id. at 160.

“In

contrast to Hill, here the ineffective advice led not to an
offer’s acceptance but to its rejection.

Having to stand trial,

not choosing to waive it, is the prejudice alleged.”
164.

Id. at

The Court continued:
In these circumstances a defendant must show that but
for the ineffective advice of counsel there is a
reasonable probability that the plea offer would have
7

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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.
Id.
“In deciding whether to grant an evidentiary hearing, a
federal court must consider whether such a hearing could enable
an applicant to prove the petition’s factual allegations, which,
if true, would entitle the applicant to federal habeas relief.”
Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (internal
citation omitted).

With respect to any claim adjudicated on the

merits by a state court, the writ shall not issue unless the
adjudication of the claim
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).

“A district court is required to hold an

evidentiary hearing only when the petitioner presents a prima
facie showing that ‘a new hearing would have the potential to
advance the petitioner's claim.’”

Porter v. Adm'r of New Jersey

State Prison, No. 20-2048, 2021 WL 2910944, at *4 (3d Cir. July
12, 2021) (quoting Siehl v. Grace, 561 F.3d 189, 197 (3d Cir.
8

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2009)).

In other words, this Court must first determine whether

the Appellate Division, as the last state court to reach the
issue on its merits, issued a decision that was contrary to
federal law, an unreasonable application of federal law, or was
based on an unreasonable determination of the facts.

If no, the

inquiry ends there because Petitioner has not satisfied the §
2254(d) standard.

If the Court so finds, it must then determine

whether a hearing could allow Petitioner to prove his allegation
that counsel intentionally mislead him as to whether Ms. Curran
would be called as a witness at trial. 5
B.

Contrary to Established Supreme Court Precedent
The Court relies on the opinion of the Appellate Division

affirming the denial of Petitioner’s first PCR petition as it is
the last state court decision on the merits of Petitioner’s
claim.

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

Section 2254 prohibits a federal court from conducting an
evidentiary hearing “[i]f the applicant has failed to develop
the factual basis of a claim in State court proceedings . . . .”
28 U.S.C. § 2254(e)(2). The Court concludes this prohibition
would not apply to Petitioner because Petitioner made a
reasonable attempt to obtain an evidentiary hearing in the state
courts. Williams v. Taylor, 529 U.S. 420 (2000).
5

9

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nevertheless arrives at a result different from [the Court’s]
precedent.”

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

The Court concludes the state court correctly identified
the Strickland standard, as defined in Hill and Lafler, to
Petitioner’s claim:
In a lengthy written opinion, Judge DeLury considered
and rejected all of defendant’s PCR arguments, concluded
that defendant had not presented a prima facie case of
ineffective assistance of counsel, and denied the
petition without an evidentiary hearing. Citing State
v. Fritz, 105 N.J. 42, 52 (1987), 6 Judge DeLury noted
the great deference due to an attorney’s trial strategy,
and he found that trial counsel was not ineffective in
deciding not to call Curran as a witness.
Judge DeLury also found no evidence that trial counsel
misled defendant about his intent to call Curran as a
witness.
Rather the record reflected that the issue
“had been debated back and forth” and trial counsel
finally decided as a strategic matter that Curran’s
testimony would be more harmful than helpful to the
defense. Judge DeLury also considered the record of the
plea
negotiations,
which
clearly
indicated
that
defendant was never willing to accept a plea deal
involving more than a five-year sentence, which the
State was not willing to offer.
State v. Murphy, No. A-0807-14, 2016 WL 6872984, at *2–3 (N.J.
Super. Ct. App. Div. Nov. 22, 2016).

The Appellate Division

does not cite to Hill or Lafler by name, but it specifically
noted that the PCR court found the record of the plea
negotiations did not support Petitioner’s assertion that he
would have accepted the 7-year plea bargain.

Id. at *3.

Fritz is the New Jersey state equivalent of Strickland. See
Fritz, 105 N.J. at 52 (setting forth Strickland standard).
6

10

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The PCR court wrote:
[T]he Petitioner argues, pro se, that he was willing to
accept a guilty plea. The Petitioner in his PCR petition
stated that he would have accepted a plea of seven years
had one been offered to him. Trial Counsel sent a letter
to Petitioner stating that the State would offer seven
years but the Petitioner in a response letter, dated
October 19, 2009, counteroffered that he would like to
negotiate for five years at 85%. After the Petitioner’s
response letter, there is no further correspondence
showing that a plea would have been accepted for seven
years.
ECF No. 28-29 at 12-13.

These statements by the state courts

indicate they determined that there was no probability, never
mind a reasonable probability, that Petitioner would have
accepted a 7-year deal.

See Shinn v. Kayer, 141 S. Ct. 517, 523

(2020) (“A reasonable probability means a ‘substantial,’ not
just ‘conceivable,’ likelihood of a different result.” (quoting
Cullen v. Pinholster, 563 U.S. 170, 189 (2011)).

This is the

Hill and Lafler inquiry even if the cases are not cited by name.
This Court must give the state courts “the benefit of the
doubt,” Burt v. Titlow, 571 U.S. 12, 15 (2013), and “absent an
affirmative indication to the contrary,” state courts are
presumed to know and follow the law.

Bell v. Cone, 543 U.S.

447, 456 (2005) (per curiam) (citing Woodford v. Visciotti, 537
U.S. 19, 24 (2002).

The Appellate Division’s opinion “may

perhaps be imprecise, but if so it can no more be considered a
repudiation of the [Strickland prejudice] standard than can this
Court’s own occasional indulgence in the same imprecision.”
11

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Visciotti, 537 U.S. at 24.

See also Sawyer v. Superintendent

Muncy Sci, 619 F. App’x 163, 170 (3d Cir. 2015) (“Most relevant
court of appeals decisions agree that where a reading of the
state court’s opinion as a whole demonstrates that the state
court applied the correct legal standard (notwithstanding stray
imprecise articulations), the federal habeas court is to defer
to the state court’s decision.”), cert. denied sub nom. Sawyer
v. Smith, 136 S. Ct. 1173 (2016); Pennington v. Hughes, No. 132692, 2016 WL 4992092, at *7 n.6 (D.N.J. Sept. 19, 2016).
It also cannot be said that Petitioner’s claim is
indistinguishable from Lafler.

The defendant in Lafler rejected

the plea “allegedly after his attorney convinced him that the
prosecution would be unable to establish his intent to murder
[the victim] because she had been shot below the waist.”
U.S. at 161.

566

In Petitioner’s case, he alleges he rejected the

plea offer because he believed Ms. Curran was going to testify
on his behalf at trial.

It is insufficient that both Lafler and

Petitioner could be said to have rejected a plea because they
both thought they would win at trial.

What distinguishes the

two cases is that Lafler proceeded to trial because his counsel
told him that his actions were legally insufficient to meet the
elements of murder even if the state’s theory of the crime were
accurate, whereas Petitioner asserts he proceeded to trial

12

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because he thought Ms. Curran would contradict the state’s
version of events.
The Appellate Division correctly identified the relevant
standard under Strickland, Hill, and Lafler.
is distinguishable from Lafler.

Petitioner’s case

Therefore, the Appellate

Division’s opinion was not contrary to established Supreme Court
precedent.

The Court must next consider whether it was an

unreasonable application of clearly established federal law.
C.

Unreasonable Application
“[A] state-court decision is an unreasonable application of

[the Supreme Court’s] clearly established 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 those holdings must be objectively unreasonable,
not merely wrong; even clear error will not suffice.”
419 (internal quotation marks omitted).

Id. at

“The critical point is

that relief is available under § 2254(d)(1)’s unreasonableapplication clause if, and only if, it is so obvious that a
clearly established rule applies to a given set of facts that
there could be no ‘fairminded disagreement’ on the question.”
Id. at 427 (quoting Harrington v. Richter, 562 U.S. 86, 103
(2011)); see also Rosen v. Superintendent Mahanoy SCI, 972 F.3d
245, 252 (3d Cir. 2020).

“Congress ‘meant’ this standard to be
13

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‘difficult to meet.’”

Shinn v. Kayer, 141 S. Ct. 517, 523

(2020) (per curiam) (quoting Harrington, 562 U.S. at 102).
Having carefully reviewed the state court record, the Court
cannot say the Appellate Division was objectively unreasonable
in applying Supreme Court precedent to Petitioner’s claim.
Prior to opening statements, trial counsel put on the record his
reasons for not calling Ms. Curran as a witness:
Ms. Amy Curran . . . in this case not been brought as a
witness. This had been discussed numerous times
previously. It’s gone back and forth, the reports we
have gotten from her, lean essentially both ways. Some
of the things she says are duplicitous, some aid the
State; as a tactical decision of defense as an essential
element of this case that they prove a tie between those
individuals. And I have a report which I believe is the
only report — the State didn’t interview her, the State
didn’t investigate her — that [leans] both ways and the
way the case has gone and the way it is being prepared
particularly with the objections regarding the evidence
coming regarding the incident in Ventnor as well as the
more than three years difference in that event, that the
addition of Ms. Curran to this case in fact would be
more detrimental to the defense. And in that case the
State bears the burden of proof, we do not. We do not
have to present evidence of witnesses that are going to
place my client in a position with anyone particularly
the victim which would quite frankly come out
immediately with her testimony. That being said, and
particularly the way the rest of evidence has sized its
way up at this point the way your Honor has excluded,
what I am attempting to exclude, and the way we are
presenting this case, that’s essentially the way this is
going to be resolved.
ECF No. 28-11 at 7-8.

The trial court accepted this explanation

of counsel’s strategic decision, as did the PCR court and

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Appellate Division.

See ECF No. 28-29 at 11; Murphy, No. A-

0807-14, 2016 WL 6872984, at *3.
An investigator employed by the Office of the Public
Defender interviewed Ms. Curran on August 14, 2007.
2 at 52.

ECF No. 20-

She admitted that she knew Mr. Kemp prior to the

incident and was “together” with Petitioner on the date in
question.

Id.

She stated she invited Mr. Kemp to her and

Petitioner’s residence for a drink.

Id. at 53.

Ms. Curran

“indicated that suddenly she heard the toilet flush and realized
that the defendant was in the bathroom.

[Ms. Curran] stated

that the defendant stepped out of the bathroom and immediately
confronted Ms. Curran about having another man in their room.”
Id.

Had she testified to this effect, Ms. Curran would have

confirmed certain aspects of Mr. Kemp’s testimony, including
that Ms. Curran invited Mr. Kemp to her place despite being in a
relationship with Petitioner and there was a confrontation with
Petitioner at the room.
The PCR court determined, and the Appellate Division
agreed, that trial counsel made a strategic decision in choosing
not to call Ms. Curran as a witness: “[w]hile it may be true
that the statement to be elicited by Ms. Curran would contradict
the State’s case, it also would be detrimental to the defense.
The defense’s trial strategy was to not have a link between the
Petitioner and the commission of the crime.”
15

ECF No. 28-29 at

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11.

“It is the job of trial counsel to act fervently on behalf

of his client.

To produce a witness that is going to connect

the client with the crime that he is accused of would not
further defense counsel’s goal.”

Id. at 12.

Petitioner argues

that trial counsel’s explanation before the trial court was a
“belatedly self-serving statement” and a “complete fabrication,”
ECF No. 36 at 4, but facts in the record would support the state
courts’ interpretation.

As such, the Court cannot say the state

courts made objectively unreasonable determinations.
There are also facts in the record to support the Appellate
Division’s determination that Petitioner did not meet the
prejudice prong of Strickland.

Trial counsel wrote to

Petitioner on October 8, 2009 indicating that he was attempting
to have Ms. Curran brought into court.

ECF No. 20-2 at 83.

He

also noted that “It is my understanding that the offers in this
case are 7 for each of you however I do certainly believe that
we would have no difficulty in getting your offer down to 6
years 85% if you would be so inclined.”

Id. at 84.

Petitioner

responded on October 13, 2009 that he “would like to consider
the offer of 5 year with 85%.”

Id. at 44. 7

As the PCR Court

The state courts noted that there was never a formal offer for
anything less than 7 years.
See Murphy, No. A-0807-14, 2016 WL
6872984, at *3; ECF No. 28-29 at 13.
7

16

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noted, Petitioner had previously rejected the 7-year plea on the
record:
COURT: Mr. Murphy, you know what you’re charged with in
this case?
PETITIONER: Yes
COURT: And you had some discussions with ... uhh ... the
prosecutor and your lawyer, on the record back
several months ago about trying to work out a ...
a... plea agreement in this case?
PETITIONER: Yes
COURT: And you were not willing to do that?
PETITIONER: Yes
COURT: You wanted to go to trial? Is that right?
TRIAL COUNSEL: Judge, he’s willing to take a plea but
it’s not the plea that’s offered.
COURT: Ok, well, do you know what the plea is that he’s
offered, the prosecutor?
TRIAL COUNSEL [to the State]: Still 7?
PROSECUTOR: Yes.
COURT: Alright, that hasn’t changed? That’s the same
plea offer?
STATE: Yes Judge, that has not changed. He’s already
accepted the 85%.
COURT: Alright. Mr. Murphy, you’re not willing to accept
that? You would rather go to trial? Is that
correct?
PETITIONER: Yes. I ain’t willing to accept that, no.
COURT: What did he say?

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TRIAL COUNSEL: I am not willing to accept that, no, thank
you.
ECF No. 28-29 at 13 (quoting Pre-Trial Conference Transcript,
May 12, 2009).

From these facts, it was reasonable for the

state courts to conclude that there was not a reasonable
possibility that Petitioner would have accepted a 7-year plea
offer.
In § 2254 proceedings, “[t]he pivotal question is whether
the state court’s application of the Strickland standard was
unreasonable.

This is different from asking whether defense

counsel’s performance fell below Strickland’s standard.”
Harrington v. Richter, 562 U.S. 86, 101 (2011).

“When a state

court has applied clearly established federal law to reasonably
determined facts in the process of adjudicating a claim on the
merits, a federal habeas court may not disturb the state court’s
decision unless its error lies ‘beyond any possibility for
fairminded disagreement.’”

Shinn v. Kayer, 141 S. Ct. 517, 520

(2020) (quoting Harrington, 562 U.S. at 103).

See also Mays v.

Hines, 141 S. Ct. 1145, 1149 (2021) (per curiam) (“All that
mattered was whether the [state] court, notwithstanding its
substantial ‘latitude to reasonably determine that a defendant
has not [shown prejudice],’ still managed to blunder so badly
that every fairminded jurist would disagree.” (second alteration
in original) (quoting Knowles v. Mirzayance, 556 U.S. 111, 123
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(2009))).

Under the “double deference” owed to the Appellate

Division, the Court concludes that the state courts reasonably
applied Strickland to the facts of Petitioner’s case.
The Appellate Division issued a ruling on the merits of
Petitioner’s Ground Eight claim.

The Court finds that that

decision is not contrary to established Supreme Court precedent,
nor an unreasonable application of that precedent.

It is

further reasonable in light of the facts contained in the state
court record.

Therefore, Petitioner has not met his burden of

proof under § 2254(d)(1).

“[W]hen the state-court record

‘precludes habeas relief’ under the limitations of § 2254(d), a
district court is ‘not required to hold an evidentiary
hearing.’”

Cullen v. Pinholster, 563 U.S. 170, 183 (2011)

(quoting Schriro v. Landrigan, 550 U.S. 465, 474 (2007)).

The

Court will not hold an evidentiary hearing on this claim.
D. 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
petitioner’s detention arises out of his state court conviction
unless he has “made a substantial showing of the denial of a
constitutional right.”

The Court will reserve its decision on a

certificate of appealability pending its review of Petitioner’s
other claims.

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IV.

CONCLUSION
For the reasons stated above, the Court will deny

Petitioner’s motion for an evidentiary hearing of Ground Eight.
The decision on a certificate of appealability shall be
reserved.
An accompanying Order will be entered.

July 26, 2021

s/ Noel L. Hillman

Date

NOEL L. HILLMAN
U.S. District Judge

20