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

Filing 43

OPINION. Signed by Judge Noel L. Hillman on 11/23/2022. (jab,N.M.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TYSHEIM MURPHY,
Petitioner,

Civil Action
No. 17-2960 (NLH)

v.
OPINION
THE ATTORNEY GENERAL OF
THE STATE OF NEW JERSEY,
et al.,
Respondents.
APPEARANCES:
Tysheim Murphy
668462/719455C
East Jersey State Prison
1100 Woodbridge Rd.
Rahway, NJ 07065
Petitioner pro se
William Reynolds, Atlantic County Prosecutor
John J. Santoliquido, Esq.
Atlantic County Prosecutor’s Office
4997 Unami Boulevard
Mays Landing, New Jersey 08330
Attorney for Respondents
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.
Respondents oppose the petition.

ECF No. 28.

ECF No. 7.

For the reasons

stated below, the petition will be denied.

No certificate of

appealability shall issue.
II.

BACKGROUND
The facts of this case were recounted below in state court

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 was identified as Amy Curran in this matter, but she
previously was known as Amy Scott.” ECF No. 28 at 5 n.2.
1

2

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 and 2C:15-1
(Count 1); first-degree robbery, N.J.S.A. § 2C:15-1 (Count 2);
second-degree robbery, N.J.S.A. § 2C:15-1 (Count 3); unlawful
possession of a handgun, N.J.S.A. 2C:39-5b (Count 4); possession
of a handgun for unlawful purposes, N.J.S.A. 2C:39-4 (Count 5);
aggravated assault, N.J.S.A. 2C:12-lb(4) (Count 6); terroristic

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

3

threats, N.J.S.A. 2C:l2-3b (Count 7); conspiracy to commit
carjacking, N.J.S.A. 2C:5-2 and 2C:15-2 (Count 8); carjacking,
N.J.S.A. 2C:15-2a(2) (Count 9); conspiracy to commit kidnapping,
N.J.S.A. 2C:5-2 and 2C:l3-1 (Count 10); kidnapping, N.J.S.A.
2C:13-1b (Count 11); and possession of a weapon by a convicted
person, N.J.S.A. 2C:39-7 (Count 13).

ECF No. 28-3.3

Petitioner moved to sever his trial from his codefendant’s, but the trial court denied the motion.
3.

ECF No. 28-

“[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.

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

The trial court again sentenced Petitioner to 38 years on

3

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

remand.

ECF No. 28-4.

sentence.

The Appellate Division affirmed the new

ECF No. 28-26.

Petitioner filed a PCR petition on December 20, 2012, which
was supplemented by a March 20, 2014 brief filed by his
appointed counsel.

ECF No. 28-26.

The PCR court held oral

argument on May 13, 2014 and denied the petition without an
evidentiary hearing.

ECF No. 28-29.

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.
Petitioner filed his original § 2254 petition on April 28,
2017.

ECF No. 1.

The Court administratively terminated the

petition as it was not on the correct form for habeas petitions
and Petitioner had not paid the filing fee.

ECF No. 3.

Petitioner paid the filing fee and submitted the second amended
petition on July 12, 2017.4

ECF No. 7.

He also filed a motion

to stay the habeas proceedings while he exhausted his state
court remedies on his claim that his PCR counsel was

An amended petition had been received by the Clerk’s Office and
was inadvertently docketed under a new civil case number. See
ECF Nos. 5, 6.
4

5

ineffective.

ECF No. 8.

The Court reopened the matter and

directed Respondents to file a response to the motion to stay
only.

ECF No. 10.

2018.

ECF No. 16.

The motion to stay was denied on March 16,

On April 4, 2018, Petitioner filed a letter, docketed as a
Motion to Amend, asking for an extension of time to file a “more
comprehensive brief to better articulate all my issues . . . .”
ECF No. 17 at 1.
June 19, 2018.
Amend.

He subsequently filed a brief and exhibits on

ECF No. 20.

The Court denied the Motion to

ECF No. 22.

On May 20, 2019, Petitioner filed a motion for an
evidentiary hearing on two issues: (1) whether trial counsel was
ineffective for failure to call or secure the presence of a
witness at trial; and (2) whether trial counsel mislead
Petitioner into believing the witness would be testifying at
trial, thereby inducing Petitioner to reject the plea offer.
ECF No. 24 at 5-6.

The Court denied the motion as premature

since Respondents had not yet been instructed to file a
response.

ECF No. 27.

The Court conducted its review under Habeas Rule 4 and
instructed Respondents to answer Grounds One through Eight and
Eighteen through Twenty-three of the second amended petition.
Id.

Respondents filed their answer on January 21, 2020, ECF No.

28, and Petitioner submitted his traverse on March 16, 2020, ECF

6

No. 29.

The Court denied Petitioner’s renewed request for an

evidentiary hearing on July 26, 2021.

ECF No. 38.

III. 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).
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 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).

7

“[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, 134 S. Ct. 1697, 1706, reh’g denied, 134 S.
Ct. 2835 (2014).

The Court must presume that the state court’s

factual findings are correct unless Petitioner has rebutted the
presumption by clear and convincing evidence. 28 U.S.C. §
2254(e)(1).
IV. ANALYSIS
Petitioner’s second amended petition raised twenty-four
points for the Court’s review.

ECF No. 7.

The Court summarily

dismissed Grounds Nine through Seventeen as well as Ground
Twenty-four5 because they raised claims that are not cognizable
in federal habeas.

ECF No. 27.

The remaining claims for relief

are:
I.

The trial court misapplied its discretion
denying defendant’s motion for severance
mistrial made after the opening statement
counsel for co-defendant Hayes.

in
or
by

II.

The defendant’s conviction should be reversed
because the trial court failed to apply appropriate
N.J.R.E. 404(b) criteria on admitting evidence of
a prior association between the defendant and Amy.

In dismissing Ground Sixteen, which argued “Petitioner’s
petition for post-conviction relief is timely filed under R.
3:22-12(2),” the Court expressed no opinion on whether any of
the petitions were timely filed or procedurally defaulted. ECF
No. 26 at 7 & n.2.
5

8

III. The defendant’s right to a fair trial was
prejudiced by the prosecutor’s over-zealousness in
summation.
IV.

The Motion court erred in not dismissing the
indictment because the prosecutor’s inadequate
investigation and manner of presentation resulted
in the submission of “Half Truths” to the grand
jury
and
undermined
the
defendant’s
State
constitutional right to indictment by Grand Jury.

V.

The trial court applied an erroneous standard in
denying the defendant’s motion for a new trial.

VI.

Imposition of the extended term base sentence of 38
years imprisonment on the defendant’s conviction
for First-degree robbery on count two was
manifestly
excessive
and
represented
a
misapplication of the court’s discretion.

VII. Post-conviction relief is a defendant’s last
opportunity to raise a constitutional challenge to
the fairness and reliability of a criminal verdict
in our State (Ineffective Assistance of Counsel)
VIII. The 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 agreement.
XVIII. Counsel was ineffective in failing to file a
motion to dismiss count thirteen of the indictment
as no evidence was presented at the grand jury to
support it in violation of the Fifth and Fourteenth
Amendments of the United States Constitution and
New Jersey Constitution (1947). Art. I, par. 8.
XIX. Defendant was denied his right of confrontation,
cross examination, and the right to present a
complete defense in violation of the Sixth and
Fourteenth
Amendment
to
the
United
States
Constitution.

9

XX.

Trial Counsel failed to raise the issue of
selective prosecution in violation of the Sixth and
Fourteenth
Amendments
of
the
United
States
Constitution.

XXI. Defendant received ineffective assistance of
counsel when counsel failed to move for a mistrial
after defendant’s right to remain silent was
violated by the jury learning he was in jail in
violation of the Fifth Sixth and Fourteenth
Amendment of the United States Constitution.
XXII. The defendant was convicted on the State’s use of
perjured testimony in violation of the Sixth and
Fourteenth
Amendment
to
the
United
States
Constitution.
XXIII. Petitioner was denied the effective assistance of
Appellate Counsel in violation of the Sixth and
Fourteenth
Amendment
to
the
United
States
Constitution.
ECF No. 7 at 20-51.
A.

Failing to Grant a Severance
In the first ground of the second amended petition,

Petitioner argues that his right to a fair trial was violated
when the trial court failed to sever his trial from that of his
co-defendant.

He states his “right to a fair trial was unduly

prejudiced the danger of ‘Guilt By Association’ that was
aggravated by [co-defendant’s counsel’s] opening statement.”
ECF No. 7 at 20.
[I]n the opening statement of counsel for co-defendant
Hayes counsel stated “it’s hard to come up with a good
opening statement when your client is guilty. That’s
right, my client Raheem Hayes is guilty. He’s guilty to
certain offenses which the prosecutor mentioned, not all
the offenses.” Co-defendant’s counsel continued, “Mr.
Hayes, as you heard, was found with a gun, and we don’t

10

dispute that. Mr. Hayes is what you would call a small
time drug dealer, and that’s a dangerous trade.”
Id.; see also ECF No. 28-11 at 25.

As this claim was

adjudicated on the merits by the New Jersey state courts during
Petitioner’s direct appeal, Petitioner may only obtain habeas
relief “if the state court decision was (1) ‘contrary to, or
involved an unreasonable application of, clearly established
Federal law,’ or (2) ‘was based on an unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding.’”

Grant v. Lockett, 709 F.3d 224, 231 (3d

Cir. 2013) (quoting 28 U.S.C. § 2254(d)).
“[T]he Court has long recognized that joint trials
‘conserve state funds, diminish inconvenience to witnesses and
public authorities, and avoid delays in bringing those accused
of crime to trial.’”

United States v. Lane, 474 U.S. 438, 449

(1986) (quoting Bruton v. United States, 391 U.S. 123, 134
(1968)).

Under federal law, a court should sever trials of co-

defendants “only if there is a serious risk that a joint trial
would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment
about guilt or innocence.”
534, 539 (1993).

Zafiro v. United States, 506 U.S.

“Such a risk might occur when evidence that

the jury should not consider against a defendant and that would
not be admissible if a defendant were tried alone is admitted

11

against a codefendant.”

Id.

“Improper joinder does not, in

itself, violate the Constitution.

Rather, misjoinder would rise

to the level of a constitutional violation only if it results in
prejudice so great as to deny a defendant his . . . right to a
fair trial.”

Lane, 474 U.S. at 446 n.8.

Petitioner’s trial counsel immediately objected to the
remarks and requested severance.

“The trial judge then

determined that it was not necessary to sever the trials because
of Hayes’ counsel’s remarks.

Instead, he gave the jury an

immediate curative instruction that Hayes’ alleged drug activity
was irrelevant to the case and they should disregard it.”

State

v. Murphy, No. A-4420-10, 2012 WL 1697392, at *5 (N.J. Super.
Ct. App. Div. May 16, 2012).

The Appellate Division further

concluded that Petitioner and Hayes “presented essentially the
same defense — that Kemp was not a credible witness.

. . .

Hayes offered trial testimony that, if believed by the jury,
would have exculpated defendant.

There was no unfair prejudice

to defendant in being tried jointly with Hayes.”

Id.

This

determination was a reasonable application of federal law.
Hayes’ defense was not antagonistic to Petitioner’s defense, and
the trial court promptly issued a curative instruction regarding
the remarks.

ECF No. 28-11 at 38.

Petitioner has not shown that the Appellate Division’s
decision was contrary to or an unreasonable application of

12

federal law.

Nor has he shown that the decision was based on an

unreasonable determination of the facts in light of the evidence
presented during trial.

As such, Petitioner is not entitled to

habeas relief on this ground.
B.

Admission of Prior Association Evidence
In Ground Two, Petitioner argues the trial court improperly

admitted evidence of a prior association between himself and Amy
Curran.

“Despite sanitization and a limiting instruction

because the testimony was presented by a police detective which
suggested prior criminal involvement perhaps even a belief that
the defendant and Amy (unindicted non-testifying witness) were
involved in similar criminal activity in 2004 as was alleged in
the indictment . . . the potential for undue prejudice clearly
outweighed any probative value.”

ECF No. 7 at 21-22.

He also

argues in Ground Nineteen that this testimony violated his
Confrontation Clause right under the Sixth Amendment.

“In order

to establish a link between Amy Scott and defendant the State
sought to introduce the conjecture and hearsay testimony would
be allowed.

Despite the fact that this highly prejudicial

irrelevant and inadmissible hearsay testimony violated
petitioner’s right to confront Amy the judge allowed it.”

Id.

at 45.
Petitioner’s evidentiary claim lacks merit to the extent it
relies on New Jersey evidence rules.

13

“[I]t is not the province

of a federal habeas court to reexamine state-court
determinations on state-law questions.

In conducting habeas

review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of the
United States.”

Estelle v. McGuire, 502 U.S. 62, 67–68 (1991).

Even if the admission of the testimony violated New Jersey’s
evidence rules, “‘federal habeas corpus relief does not lie for
errors of state law.’”

Id. at 67 (quoting Lewis v. Jeffers, 497

U.S. 764, 780 (1984)).

“Admission of ‘other crimes’ evidence

provides a ground for federal habeas relief only if ‘the
evidence’s probative value is so conspicuously outweighed by its
inflammatory content, so as to violate a defendant’s
constitutional right to a fair trial.’”

Bronshtein v. Horn, 404

F.3d 700, 730 (3d Cir. 2005) (quoting Lesko v. Owens, 881 F.2d
44, 52 (3d Cir. 1989)).
The Appellate Division concluded in Petitioner’s direct
appeal that Detective Bergman’s testimony was not overly
prejudicial.

“The trial judge made a preliminary ruling that

the officer’s testimony was relevant to show a relationship
between Amy and defendant, but that the testimony would be
sanitized to avoid telling the jury why the officer came in
contact with the two of them in 2004.”
at *5.

Murphy, 2012 WL 1697392,

Before allowing the officer to testify, the trial court

issued a limiting instruction:

14

Ladies and gentlemen, you’re about to hear testimony
from Detective Ted Bergman of the Ventnor Police
Department.
It will be up to you to decide what the
facts are based on his testimony.
It is anticipated
that he will testify that he knows Tysheim Murphy and
someone identified as Amy [Curran] from his involvement
with them in March 2004. You should know that citizens
have encounters with law enforcement everyday for a
variety of reasons, including the investigations of
others, community protection and everyday pleasantries.
You may not conclude just because Tysheim Murphy is
allegedly known to Detective Bergman that Mr. Murphy is
guilty of the charges in this indictment, or that he’s
a bad person.
ECF No. 28-13 at 70.

Officer Bergman then testified “that in

March 2004 he went to an apartment in Ventnor and encountered
the occupants, who identified themselves as Tysheim Murphy and
Amy [Curran].

He testified that they both told him that they

lived in the apartment.

Bergman was shown a picture of Amy and

confirmed that she was the woman he spoke to at the apartment.”
Murphy, 2012 WL 1697392, at *6.
Here, Detective Bergman only testified that he recognized
Petitioner and Amy from a prior encounter; he did not testify
why he had occasion to speak with them at that time.

Even

though Detective Bergman did not say anything during his brief,
sanitized testimony that implied any wrongdoing by Petitioner or
Amy “[o]ther crimes evidence is routinely admitted when it is
relevant to show ‘identity.’”
(citing Fed. R. Evid. 404(b)).

Bronshtein, 404 F.3d at 731
See United States v. Wilson, 31

F.3d 510, 515 (7th Cir. 1994) (permitting evidence of prior drug

15

transactions in order to establish a “buyer-seller relationship”
between informant and defendant, identification of defendant,
and to show how informant met defendant).

See also United

States v. O’Leary, 739 F.2d 135, 136 (3d Cir. 1984) (agreeing
the need “to show the background of the charges [and] the
parties’ familiarity with one another” were purposes under Rule
404(b) (quotation marks omitted)).

“The testimony was relevant

to a material issue in the case; it was more probative than
prejudicial; it was properly sanitized to remove any reference
to a prior crime; and it was accompanied by an appropriate
limiting instruction.”

Murphy, 2012 WL 1697392, at *6.

This is

a reasonable decision based on all the evidence at trial, and it
was not contrary to or an unreasonable application of federal
law.
Petitioner has procedurally defaulted on his Confrontation
Clause claim.

Petitioner raised this claim for the first time

in his second PCR petition.

ECF No. 28-37 at 11.

The PCR court

concluded the second PCR petition was procedurally barred.
No. 28-38.

ECF

“[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.”

Shinn v. Ramirez, 142 S. Ct. 1718, 1730 (2022).

“‘Out

of respect for finality, comity, and the orderly administration
of justice,’ federal courts may excuse procedural default only

16

if a prisoner ‘can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law.’”
Id. at 1733 (quoting Dretke v. Haley, 541 U.S. 386, 388 (2004);
Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
“To establish cause, the prisoner must ‘show that some
objective factor external to the defense impeded counsel’s
efforts to comply with the State’s procedural rule.’”

Id.

(quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).

To

establish prejudice, “[t]he habeas petitioner must show ‘not
merely that the errors at . . . trial created a possibility of
prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of
constitutional dimensions.’”

Murray, 477 U.S. at 494 (quoting

United States v. Frady, 456 U.S. 152, 170 (1982)) (emphasis and
omission in original).

The Court is limited to the state court

record in making its determination.

Shinn, 142 S. Ct. at 1730.

Petitioner asserts that “Counsel did not raise the issue.”
ECF No. 7 at 45.

“With respect to cause, ‘[a]ttorney ignorance

or inadvertence’ cannot excuse procedural default.”

Shinn, 142

S. Ct. at 1733 (quoting Coleman v. Thompson, 501 U.S. 722, 753
(1991)) (alteration in original).

“That said, ‘if the

procedural default is the result of ineffective assistance of
counsel, the Sixth Amendment itself requires that responsibility
for the default be imputed to the State.’”

17

Id. (quoting Murray

v. Carrier, 477 U.S. 478, 488 (1986)).

“[I]neffective

assistance of state postconviction counsel may constitute
‘cause’ to forgive procedural default of a trial-ineffectiveassistance claim, but only if the State requires prisoners to
raise such claims for the first time during state collateral
proceedings.”

Id.

The PCR court concluded that Petitioner had

not established good cause for failing to raise this claim
earlier:

“[Y]our petition claims your Sixth Amendment and

Fourteenth Amendment rights were violated as well as your right
to confrontation, cross-examination, and a complete defense.
These claims, on their face, do not raise any issue that could
not have been discovered earlier through the exercise of
reasonable diligence.”

ECF No. 28-38 at 1-2.

“Moreover, this

subsequent petition does not allege ineffective assistance of
counsel for prior post-conviction relief counsel.

Therefore,

your second petition for post-conviction relief is denied.”
at 2 (citing N.J. Ct. R. 3:22-4(b)).

Id.

Nothing in the record

before the Court suggests this conclusion is unreasonable.
Petitioner has procedurally defaulted on this claim, and the
Court will dismiss it accordingly.
C.

Prosecutorial Misconduct

In Ground Three,6 Petitioner argues his due process rights

Ground One in Petitioner’s brief. ECF No. 20 at 28. The Court
limits is analysis to the remarks that were addressed in
6

18

were violated by the prosecutor’s closing argument.
“Prosecutor’s summation exceeded the bounds of fair comment on
the evidence is insufficient in and of itself to warrant
reversal.

It must also be established that the comment were so

prejudiced that they deprived the defendant of his
constitutional right to a fair trial.”

ECF No. 7 at 22.

Trial

counsel did not object to the closing statement at trial.
“In evaluating such claims, we consider whether the
prosecutors’ comments so infected the trial with unfairness as
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).

To offend due process, “the prosecutorial misconduct

must be ‘of sufficient significance to result in the denial of
the defendant’s right to a fair trial.’”

Greer v. Miller, 483

U.S. 756, 765 (1987) (quoting United States v. Bagley, 473 U.S.
667, 676 (1985)).

“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)

Petitioner’s direct appeal, ECF No. 28-19. Petitioner’s
additional arguments in his brief about Amy Curran’s status as a
sex worker and her absence from trial were not exhausted before
the state courts. 28 U.S.C. § 2254(b).
19

(internal quotation marks omitted).
On direct appeal, appellate counsel asserted that the
prosecutor “argued the defense wanted to ‘distract’ the jury”
and used “overzealous language denigrating the defense and trial
counsel.”

ECF No. 28-19 at 41.

The prosecutor made the

following statement near the beginning of his closing argument
During my closing argument I’m going to ask you to
concentrate on the evidence that is going help you decide
this case because the goal is to resolve this case, and
decide this case, however you determine that it should
be. So let’s look at the evidence that is going to help
you decide this case because I suggest, as I did a moment
ago, that a lot of the evidence that the defendant —
that the defense wants you to look at doesn’t help you
resolve this case.
It is a distraction.
Hopefully
you’ll get caught up on the stuff that distracts you,
and you don’t resolve the case, and you say We don’t
know what is going on here.
ECF No. 28-14 at 46.

The Appellate Division concluded that the

argument was “without merit.

The prosecutor’s statements were

an entirely proper response to the summation of defense counsel.
No further discussion of this point is warranted.”
WL 1697392, at *6 (citing N.J. Ct. R. 2:11–3(e)(2)).

Murphy, 2012
This is a

reasonable decision and does not contradict federal law.
Trial counsel vigorously challenged Kemp’s credibility
during closing argument and specifically brought up Kemp’s
admission during cross that he had a machete in his van at the
time of the alleged carjacking:7

7

See ECF No. 28-12 at 29.
20

Mr. Kemp testified on the stand that he had this machete.
And I think we all know what a machete is. It is not a
knife, it’s a knife over a foot long, and he had a great
story about that too. Every little issue he had a good
story for. And his story for this machete was is that
he uses it to clean up weeds or to do yard work to cut
trees down, and I found that to be strange.
Here is
someone here when testified he was I think he said 360
pounds and he had lost 90 pounds. So within not a long
time he was 450 pounds, he’s outside doing yard work?
It’s not impossible, but again unlikely. And think about
what time of year. This is February 2007, Mr. Kemp in
Atlantic City by himself, in the van, he has machete.
What is that all about?
His story again he tries to
explain it, and it doesn’t seem to make a lot of sense.
ECF No. 28-14 at 10-11.

The prosecutor was responding to this

argument when he made the comment to which Petitioner objects:
It is a distraction. Hopefully you’ll get caught up on
the stuff that distracts you, and you don’t resolve the
case, and you say We don’t know what is going on here.
Like what? What am I talking about? Let’s talk about
machete. Mr. Kemp is no angel. He said [he] was no
angel, but what does that have to do with this case?
Did he – even in his ridiculous story that we are going
to get to, the machete was never flashed at anybody.
The machete was never shown to anybody.
Machete has
nothing to do with, but get stuck on machete, he spent
a lot of time on the machete in the closing argument;
how does it help you resolve this case?
Id. at 46-47.

This argument “did not manipulate or misstate the

evidence, nor did it implicate other specific rights of the
accused such as the right to counsel or the right to remain
silent.”

Darden v. Wainwright, 477 U.S. 168, 181–82 (1986).

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

21

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.
D.

Denial of Grand Jury Right
Petitioner next asserts that his right to an indictment by

a grand jury and due process right were violated when the trial
court concluded “exculpatory evidence did not exist or was not
known to the prosecutor when the case was presented to the grand
jury.”

ECF No. 7 at 22.

He asserts that “[i]nformation on

Caesar Parks, Amy Curran, the prosecutor inadequate [sic]
investigation and manner of presentation resulted in ‘halftruth’ being submitted to the grand jury as well as the State
witness (Sergeant Lushina) lied about his investigation.”

Id.

Petitioner argues here, as he did on direct appeal, that
“the motion court erred in not dismissing the indictment because
the prosecutor’s inadequate investigation and manner of
presentation resulted in the submission of ‘half truths’ and
undermined the defendant’s state constitutional right to
indictment by grand jury.”

ECF No. 7 at 22 (emphasis added).

The Court cannot grant habeas relief for violations of state
law, and any federal claim is unexhausted.
“To ‘fairly present’ a claim, a petitioner must present a
federal claim’s factual and legal substance to the state courts

22

in a manner that puts them on notice that a federal claim is
being asserted.

It is not sufficient that a ‘somewhat similar

state-law claim was made.’”

McCandless v. Vaughn, 172 F.3d 255,

261 (3d Cir. 1999) (quoting Anderson v. Harless, 459 U.S. 4, 6
(1982)) (internal citations omitted).

Petitioner only cited

state law to the Appellate Division and did not indicate in any
form that he was asserting a federal claim as well.
28-19 at 45-48.

See ECF No.

See also Keller v. Larkins, 251 F.3d 408, 414

(3d Cir. 2001) (holding petitioner “did not give the state
courts ‘fair notice’ that he was asserting a federal
constitutional claim rather than a claim that the trial court
violated state rules of evidence.”).

Petitioner’s federal claim

is unexhausted, but the Court will review the merits de novo as
“[a]n application for a writ of habeas corpus may be denied on
the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State.”

28

U.S.C. § 2254(b)(2).
“The United States constitutional requirement of indictment
by a grand jury has not been made applicable to the states, and
accordingly, we confine ourselves to a determination of whether
due process requirements have been satisfied.”

U. S. ex rel.

Wojtycha v. Hopkins, 517 F.2d 420, 425 (3d Cir. 1975) (citing
Alexander v. Louisiana, 405 U.S. 625 (1972); Hurtado v.
California, 110 U.S. 516 (1884)).

23

See also Burns v. Warren, No.

13-1929, 2016 WL 1117946, at *29 (D.N.J. Mar. 22, 2016) (citing
Wojtycha).

“Because there is no federal right to a state

criminal grand jury process, defects in a grand jury proceeding
that result in an indictment are not generally challengeable in
habeas cases absent some other basis for finding a
constitutional violation.”

Rollins v. Slaughter, No. 19-13390,

2022 WL 2358387, at *26 (D.N.J. June 30, 2022) (citing
Wainwright v. Goode, 464 U.S. 78, 86 (1983)).

“Further, under

most circumstances, ‘a subsequent guilty verdict from a petit
jury’ will render harmless any alleged defect before the grand
jury.”

Id. (quoting Yough v. Lord, No. 19-601, 2020 WL 6689854,

at *9 (D.N.J. Nov. 13, 2020)).

See also United States v.

Mechanik, 475 U.S. 66, 72–73 (1986).
Petitioner “contends that the State should have conducted a
more complete investigation which would have uncovered
exculpatory information to present to the grand jury.

He also

complains that hearsay evidence was presented to the grand jury
in lieu of testimony from Kemp.”
*4.

Murphy, 2012 WL 1697392, at

“Even assuming this occurred, however, the petit jury’s

guilty verdict rendered any prosecutorial misconduct before the
indicting grand jury harmless.”
F.3d 641, 672 (3d Cir. 1993).

United States v. Console, 13
“[E]ven if deficiencies affected

the grand jury’s decision to indict, ‘the petit jury’s
subsequent guilty verdict means not only that there was probable

24

cause to believe that the defendants were guilty as charged, but
also that they are in fact guilty as charged beyond a reasonable
doubt.’”

Rollins, 2022 WL 2358387, at *26 (quoting Mechanik,

475 U.S. at 70).

Accordingly, Petitioner has not shown a

violation of federal law such that habeas relief is warranted.
The Court will deny this claim.
E.

Motion for a New Trial
Petitioner argues in Ground Five that “[t]he trial court

applied an erroneous standard in denying the defendants motion
for a new trial.”

ECF No. 7 at 23.

He argues in support that

his “right to due process of law under the fourteenth amendment
was violated since the trial errors set forth in [Grounds One
through Four] had the capacity to directly impact on the jury’s
fact finding functions the defendant submits that he was
entitled to a new trial.”

Id.

The Court construes this as a

cumulative error claim.
“Cumulative errors are not harmless if they had a
substantial and injurious effect or influence in determining the
jury’s verdict, which means that a habeas petitioner is not
entitled to relief based on cumulative errors unless he can
establish ‘actual prejudice.’”

Albrecht v. Horn, 485 F.3d 103,

139 (3d Cir. 2007) (quoting Brecht v. Abrahamson, 507 U.S. 619,
637 (1993)).

The Court has reviewed the Appellate Division’s

resolution of Grounds One through Three with the appropriate

25

AEDPA deference and concluded its resolution was not contrary to
or an unreasonable application of federal law as determined by
the Supreme Court.
the facts at trial.

The decision was also reasonable based on
The Court found no federal error in its de

novo review of Ground Four.

Thus, “Petitioner has (i) failed to

cast doubt over the proofs of his guilt, and (ii) failed to
establish that he has suffered any prejudice from the purported
errors.

Thus, Petitioner has not proven that the alleged

cumulative errors had ‘a substantial and injurious effect or
influence in determining the jury’s verdict.’”

Thomas v.

Johnson, No. 18-0710, 2022 WL 603002, at *28 (D.N.J. Mar. 1,
2022) (quoting Fahy v. Horn, 516 F.3d 169, 205 (3d Cir. 2008)),
certificate of appealability denied sub nom. Thomas v. Adm’r New
Jersey State Prison, No. 22-1540, 2022 WL 4363552 (3d Cir. Aug.
30, 2022).
G.

The Court will deny habeas relief on this ground.

Perjured Testimony
Petitioner further argues that the State used perjured

testimony during trial in violation of the Sixth and Fourteenth
Amendments.

“A state violates the Fourteenth Amendment’s due

process guarantee when it knowingly presents or fails to correct
false testimony in a criminal proceeding.”

Haskell v.

Superintendent Greene SCI, 866 F.3d 139, 145-46 (3d Cir. 2017)
(citing Napue v. Illinois, 360 U.S. 264, 269 (1959); Giglio v.
United States, 405 U.S. 150, 153 (1972); Lambert v. Blackwell,

26

387 F.3d 210, 242 (3d Cir. 2004)).

“A conviction must be set

aside even if the false testimony goes only to a witness’s
credibility rather than the defendant’s guilt.”

Id. at 146.

To

succeed on this claim, Petitioner “must show that (1) [the
witness] committed perjury; (2) the government knew or should
have known of [the] perjury; (3) the testimony went uncorrected;
and (4) there is any reasonable likelihood that the false
testimony could have affected the verdict.”

Lambert, 387 F.3d

at 242.
Petitioner argues “the States witnesses claim that
[Petitioner] had [Kemp’s] cell phone is false testimony
concocted for the sole purposes of obtaining a conviction.”
No. 7 at 48.

ECF

“Both the victim and the arresting officer

testified at trial that one of the two cell phones that was
found on petitioner belong to and was returned to the victim.”
Id. at 48-49.

“The petitioner has proof that both cell phones

he had were his and neither was taken from him.

The jail

records reflect that petitioner was arrested with two cell
phones which both were placed in his property on February 4,
2007 and they were released on April 5, 2007.”
This claim is procedurally defaulted.

Id. at 49.

It was raised for

the first time in Petitioner’s second PCR petition, which the
PCR court concluded was barred by state law.

ECF No. 28-38.

Petitioner has not shown cause for the default, so the Court may

27

not review this claim.

Shinn v. Ramirez, 142 S. Ct. 1718, 1730

(2022).
H.

Excessive Sentence
Petitioner argues his “fourteenth amendment right to due

process of law to the United States Constitution was violated
[when] the defendants two predicate conviction were C.D.S.
possessory drug offenses 3rd degree not violent crimes although
the original charges contained numerous first degree counts
including carjacking and kidnapping the defendant was found not
guilty of those charges.”

ECF No. 7 at 24.

“[A] federal

court’s ability to review state sentences is limited to
challenges based on ‘proscribed federal grounds such as being
cruel and unusual, racially or ethnically motivated, or enhanced
by indigencies.’”

Rollins v. Slaughter, No. 19-13390, 2022 WL

2358387, at *17 (D.N.J. June 30, 2022) (quoting Grecco v.
O’Lone, 661 F. Supp. 408, 415 (D.N.J. 1987)).

“Thus, federal

courts may not review a challenge to a state court’s discretion
at sentencing unless it violates a separate federal
constitutional limitation.”

Id. (citing Pringle v. Court of

Common Pleas, 744 F.2d 297, 300 (3d Cir. 1984)).
“The Eighth Amendment, which forbids cruel and unusual
punishments, contains a ‘narrow proportionality principle’ that
‘applies to noncapital sentences.’”

Ewing v. California, 538

U.S. 11, 20 (2003) (citations omitted).

28

“A court must consider

three proportionality factors when evaluating Eighth Amendment
challenges: (1) the gravity of the offense and the harshness of
the penalty; (2) the sentences imposed on other criminals in the
same jurisdiction; and (3) the sentences imposed for commission
of the same crime in other jurisdictions.”

United States v.

Burnett, 773 F.3d 122, 136 (3d Cir. 2014) (citing Solem v. Helm,
463 U.S. 277, 290-92 (1983)).

“In conducting this analysis, a

court grants substantial deference to legislative decisions
regarding punishments for crimes.”

Id.

“The first factor acts

as a gateway to the proportionality inquiry.

The Eighth

Amendment only forbids sentences that are ‘grossly
disproportionate’ for a conviction for the crime involved.”
Rollins, 2022 WL 2358387, at *17.
Armed robbery is a crime of the first degree in New Jersey.
N.J.S.A. § 2C:15-1(b).

The Appellate Division agreed with the

sentencing court that Petitioner was eligible for an extended
term as a persistent offender.
(citing N.J.S.A. § 2C:44-3).

Murphy, 2012 WL 1697392, at *8
“The extended-term sentencing

range for first-degree crimes in New Jersey other than murder
and certain other offenses is between 20 years and life
imprisonment.”
7(a)(2)).

ECF No. 28 at 16 (citing N.J.S.A. § 2C:43-

Petitioner’s sentence is within that range.

“Generally, a sentence within the limits imposed by statute
is neither excessive nor cruel and unusual under the Eighth

29

Amendment.”

United States v. Miknevich, 638 F.3d 178, 186 (3d

Cir. 2011).

“If the petitioner fails to demonstrate a gross

imbalance between the crime and the sentence, a court’s analysis
of an Eighth Amendment challenge ends.”
2358387, at *17.

Rollins, 2022 WL

“Thus, although the Appellate Division

addressed Petitioner’s sentencing claims under the lens of state
law, its reasoning was neither contrary to, nor an unreasonable
application of, clearly established federal law.”

Id. at *18.

The Court will deny habeas relief on this claim.
I.

Ineffective Assistance of Counsel
Petitioner’s remaining claims assert that he received

ineffective assistance of counsel.

To succeed on these claims,

Petitioner must “show that counsel’s representation fell below
an objective standard of reasonableness.”
Washington, 466 U.S. 668, 688 (1984).

Strickland v.

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

30

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)).
1. Motion to Dismiss Certain Persons Charge
Petitioner alleges that trial counsel was ineffective for
failing to file a motion to dismiss Count Thirteen of the
indictment, which charged Petitioner with possession of a weapon
by a convicted person, N.J.S.A. § 2C:39-7.

ECF No. 7 at 43.

“To support a finding of possession of a weapon by a convicted
person in the second degree the State was required to show that
defendant had previously been convicted of a crime.”

Id.

“The

State did not present any evidence to the Grand Jury that they
could infer that the defendant had been convicted of a crime.”
Id. at 44.
This claim is procedurally defaulted.

It was raised for

the first time in Petitioner’s second PCR petition, which the
PCR court concluded was barred by state law.

ECF No. 28-38.

Petitioner has not shown cause for the default, so the Court may
not review this claim.
2.

Selective Prosecution

Petitioner also claims trial counsel was ineffective for
failing to raise a selective prosecution defense.

31

ECF No. 7 at

46.

“Petitioner has held steadfast since the initiation of

these proceedings that he was targeted by the prosecutor’s
office in this matter and the office’s decision not to charge
Amy Scott was a case of selective prosecution.”

Id.

“Petitioner notes that Amy Scott is White while all the
defendants in this matter are black. The selection of a
defendant must be deliberately based upon an unjustified
standard such as race, religion, or other arbitrary
classification in order to constitute a violation [of]
constitutional protections.”

Id.

This claim is procedurally defaulted.

It was raised for

the first time in Petitioner’s second PCR petition, which the
PCR court concluded was barred by state law.

ECF No. 28-38.

Petitioner has not shown cause for the default, so the Court may
not review this claim.
3.

Failure to Move for a Mistrial

In Ground Twenty-One, Petitioner alleges trial counsel was
ineffective for failing to move for a mistrial “when the
prosecutor elicited testimony informing the jury that the
defendant was incarcerated.”
procedurally defaulted.

ECF No. 7 at 47.

This claim is

It was raised for the first time in

Petitioner’s second PCR petition, which the PCR court concluded
was barred by state law.

ECF No. 28-38.

32

Petitioner has not

shown cause for the default, so the Court may not review this
claim.
4.

Failure to Cross-Examine Witnesses

Petitioner alleges trial counsel was ineffective during
trial for failing to adequately cross examine the State’s
witnesses.

This claim was raised in Petitioner’s first PCR

petition, and the PCR court rejected it on the merits without an
evidentiary hearing.

ECF No. 28-29.

The PCR court correctly

identified Strickland as the governing standard for ineffective
assistance of counsel claims, id. at 9-10, so the Court applies
the “doubly deferential” AEDPA standard of review.

Dunn v.

Reeves, 141 S. Ct. 2405, 2410 (2021).
Petitioner argues trial counsel rendered ineffective
assistance by failing to adequately cross-examine Officer Nhan
about “the search of Mr. Murphy upon arrest and specifically
that two cell phones that were recovered from his person.”
No. 7 at 26.

ECF

Petitioner submitted “an inmate property log of

the items that he possessed when he was lodged in jail following
his arrest in this matter” to the PCR court.
see also ECF No. 28-26 at 103.

ECF No. 28 at 21;

“Listed among the items in the

‘Administrative Safekeeping’ column is a ‘cell phone.’

In the

column for quantity is written what perhaps is the number ‘2’
with a slash through it.”

ECF No. 28 at 21.

to the PCR court that

33

Petitioner argued

trial counsel failed to cross examine the arresting
officer, Officer Nhan, with regards to the items that
the Petitioner had on his person when he was booked at
the station, thereby supposing to the jury that the
Petitioner was in possession of the victim’s phone.
Failure to confront such a witness when there was
contrary evidence in trial counsel’s possession, argues
PCR Counsel, is ineffective assistance of counsel.
During Officer Nhan’s testimony, he testified that he
recovered two cell phones from the Petitioner, one
belonging to the victim, to which he rightfully returned
it. The victim’s testimony likewise stated this fact.
PCR Counsel concludes that from this information, when
the Petitioner was brought in, he would have been in
control of only one cell phone and one set of keys.
However, according to the records when his property was
received, Counsel points out that it states that the
Petitioner possessed two cell phones and there was no
mention of any keys.
PCR Counsel states that this
information should have been pointed out during trial
because if it had, then compared with the testimony by
the two individuals, it would cast doubt on the State’s
presentation of their case.
ECF No. 28-29 at 5.
The PCR court concluded Petitioner had not shown a prima
facie case of ineffective assistance of counsel, finding that
“the cross-examination by trial counsel was competent.

And even

if it were not up to snuff the quality of cross-examination did
not affect the ultimate outcome in this case.”

Id. at 12.8

“The

The PCR court’s statement that “the quality of crossexamination did not affect the ultimate outcome in this case”
does not make its decision contrary to Strickland’s “reasonable
probability” standard. The PCR court correctly recited the
Strickland standard in its statement of the law. ECF No. 28-29
at 9-10. Federal habeas courts should not “needlessly create
internal inconsistency” in state court opinions. Holland v.
Jackson, 542 U.S. 649, 654–55 (2004) (holding court of appeals
erred by finding state court decision was contrary to Strickland
when state court previously cited standard correctly and the
8

34

proofs were strong and the jury made its determination.

The

evidence that the cell phone was recovered and identified by the
victim at the scene established that the Petitioner had robbed
the victim.

Whether or not it was returned to the victim

thereafter is irrelevant as it pertains to the elements of the
offense.”

Id.

The PCR court reasonably applied Strickland when it
concluded that Petitioner had not satisfied the prejudice prong.
Kemp and Officer Nhan both testified that Kemp recognized his
cell phone after Petitioner’s pockets were emptied and was able
to provide facts to Officer Nhan that verified Kemp’s ownership
of the phone, including Kemp’s name and phone number.
No. 28-12 at 6.

See ECF

The property log at best suggests Petitioner

had two phones in his possession at the time of his arrest; it
does not provide any proof that both phones belonged to
Petitioner.

“[C]ounsel should be ‘strongly presumed to have

rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment, and that
the burden to ‘show that counsel’s performance was deficient’

opinion as a whole indicated correct standard was used). “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.” Sawyer v. Superintendent
Muncy Sci, 619 F. App’x 163, 170 (3d Cir. 2015)), cert. denied
sub nom. Sawyer v. Smith, 136 S. Ct. 1173 (2016).
35

rests squarely on the defendant.”

Burt v. Titlow, 571 U.S. 12,

22–23 (2013) (quoting Strickland, 466 U.S. at 690, 687).

“It

should go without saying that the absence of evidence cannot
overcome the ‘strong presumption that counsel’s conduct [fell]
within the wide range of reasonable professional assistance.’”
Id. at 23 (quoting Strickland, 466 U.S. at 689) (alteration in
original).

Petitioner has not shown that the PCR court’s

application of Strickland was objectively unreasonable;
therefore, he is not entitled to habeas relief based on trial
counsel’s allegedly ineffective cross-examination of Officer
Nhan.
Petitioner also alleges that trial counsel was ineffective
for failing to cross examine Kemp about the layout of the
rooming house.

“Mr. Kemp provided a full description of the

rooming house where the incident occurred. In response to the
prosecutor’s question, Mr. Kemp indicated that the structure had
‘elevators inside, yes’ and that he took an elevator up upon
entering, about [sic] took the stairs while exiting.”
28-26 at 18.

ECF No.

“However counsel had information in hand that

would demonstrate that the information was false. . . .

The

investigation revealed that there were no elevators in the
building at all.”

Id. (emphasis in original).

Petitioner also

asserts that trial counsel should have confronted Kemp with his
criminal history.

Id. at 19.

36

The PCR court rejected both of these arguments:
With regards to the layout of the rooming house, the
victim’s mistaken account of whether there was an
elevator in the building does not impeach his
credibility as to his recollection of the events that
occurred on the night in question.
Furthermore, the
victim’s testimony, as the State points out, was
consistent throughout the entire cross-examination,
thereby establishing a lack of fabrication on his part.
Lastly, under N.J.R.E. 609, only evidence of a crime is
admissible for impeachment purposes.
Convictions of
disorderly person’s offenses or traffic violations are
not admissible. As pointed out by the State, the crime
that the victim was convicted of, failure to voluntarily
turn over a controlled dangerous substance to a law
enforcement officer is a disorderly persons offense
under N.J.S.A. 2C:35-10(c), and as such, would not be
able to be used for credibility or impeachment purposes.
As a result, the Court finds that trial counsel was
correct in not cross examining the victim about his prior
disorderly conviction and therefore, this is not an
adequate ground for ineffective assistance of counsel
warranting Post-Conviction Relief.
ECF No. 28-29 at 12.

The PCR court reasonably concluded that

there was not a reasonable probability that cross-examination
would have changed the trial’s outcome in light of the totality
of the evidence presented at trial. “[] Petitioner does not
explain how the inconsistencies would have changed the outcome
other than to generally challenge [Kemp’s] reliability as a
witness.”

Godinez v. Johnson, No. 18-15402, 2022 WL 2304674, at

*24 (D.N.J. June 27, 2022).

As for failing to cross-examine

Kemp about his criminal history, “[t]here can be no prejudice if
counsel’s deficient performance merely deprived [Petitioner} of
the opportunity to do something that would have been legally

37

prohibited.”

Davis v. Adm’r New Jersey State Prison, 795 F.

App’x 100, 103 (3d Cir. 2019).

Accordingly, Petitioner is not

entitled to habeas relief on this claim.
5.

Amy Curran

Petitioner’s final ineffective assistance of trial counsel
claims concern Amy Curran.

Petitioner alleges that trial

counsel was ineffective for “[misleading] 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 agreement.”

ECF No. 7 at 28-29.

He also alleges trial

counsel was ineffective for failing to call her as a witness at
trial.

Id. at 25-26.

“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)).

“In the context of guilty pleas, the first half of the

Strickland v. Washington test is nothing more than a restatement
of the standard of attorney competence . . . .”
Lockhart, 474 U.S. 52, 58 (1985).

Hill v.

“The second, or ‘prejudice,’

requirement, on the other hand, focuses on whether counsel’s
constitutionally ineffective performance affected the outcome of

38

the plea process.”

Id. at 59.

“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
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.

39

The Court previously denied Petitioner’s motion for an
evidentiary hearing on his claim that trial counsel’s
ineffectiveness caused him to reject a favorable plea bargain.
Murphy v. Att’y Gen. of New Jersey, No. 17-2960, 2021 WL
3144641, at *2 (D.N.J. July 26, 2021); ECF No. 38.

In

considering Petitioner’s request for an evidentiary hearing, the
Court first considered “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.”
Murphy, 2021 WL 3144641, at *4.
The Court denied Petitioner’s request for a hearing because
it concluded the Appellate Division’s decision was “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).”

Id. at *8.

The Court adopts and incorporates its

reasoning on this issue in full, adding the following brief
points.
Petitioner asserts that “[t]he critical fact that is being
overlooked is that, at the time the Petitioner rejected his plea

40

offer, it was his understanding that Ms. Curran would be called
to testify on his behalf.”

ECF No. 39 at 8.

“[T]he assurances

that she would be called as a defense witness for Petitioner
played a significant role in his decision to ultimately reject
the final plea offer and proceed to trial.”

Id.

This argument

addresses Strickland’s prejudice prong but says nothing about
the performance prong.
The PCR court concluded that “[t]he decision by the
Petitioner to not accept the plea deal was not influenced by
trial counsel’s alleged misrepresentations because at the time
of the plea offer, it is entirely possible that counsel felt
that they were going to have Ms. Curran testify.

The decision

made many months later to not call her did not affect the
Petitioner’s decision to reject the offer.”
14.

ECF No. 28-29 at

Essentially, Petitioner asks the Court to conclude that

trial counsel erred on January 5, 2010 (the plea cutoff date)
because trial counsel did not call Amy Curran as a witness on
September 14, 2010.

There is no evidentiary support behind this

fallacy; trial counsel’s actions on September 14, 2010 do not
mean that trial counsel made an error on January 5, 2010 that
fell below an objective standard of reasonableness.

“Strategies

can and do often change due to a change in circumstances.
Criminal trials are very fluid things.

41

Even the most

experienced and effective trial counsel are compelled to make
strategic calls on the fly.”

Id.

In § 2254 proceedings, “[t]he question ‘is not whether a
federal court believes the state court’s determination’ under
the Strickland standard ‘was incorrect but whether that
determination was unreasonable — a substantially higher
threshold.’”

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).

See also Harrington v. Richter, 562 U.S. 86, 101 (2011) (“The
pivotal question is whether the state court’s application of the
Strickland standard was unreasonable.

This is different from

asking whether defense counsel’s performance fell below
Strickland’s standard.”).

“The term unreasonable refers not to

ordinary error or even to circumstances where the petitioner
offers a strong case for relief, but rather to extreme
malfunctions in the state criminal justice system.”

Mays v.

Hines, 141 S. Ct. 1145, 1149 (2021) (per curiam) (cleaned up).
Accordingly, “[w]hen 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).

42

Petitioner has not produced any evidence to support his
claim that trial counsel misled him prior to rejecting the plea
offer, and the state courts reasonably concluded that Petitioner
had not satisfied the performance prong of Strickland.
Accordingly, it was a reasonable application of Strickland for
the state courts to deny Petitioner’s ineffective assistance of
counsel claim.
The state courts also applied Strickland reasonably when
they rejected Petitioner’s ineffective assistance of counsel
claim based on trial counsel’s failure to call Ms. Curran as a
witness.

“The defense’s trial strategy was to not have a link

between the Petitioner and the commission of the crime.”
No. 28-29 at 11.

ECF

Ms. Curran’s testimony would have confirmed

certain aspects of Kemp’s testimony, including that Ms. Curran
invited Kemp to her place despite being in a relationship with
Petitioner and that there was a confrontation with Petitioner at
the room.

See ECF No. 20-2 at 52.

“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.”
12.

ECF No. 28-29 at

“Instead, counsel presented an alibi witness, and co-

defendant Hayes gave testimony which, if believed, would have
completely exculpated defendant without placing defendant at the
crime scene.”

Murphy, 2016 WL 6872984, at *3.

43

This is a

reasonable application of Strickland; Petitioner is not entitled
to relief under § 2254.
6.

Ineffective Assistance of Appellate Counsel

Finally, Petitioner argues that he received ineffective
assistance of appellate counsel.

“Petitioner submits Appellate

counsel was ineffective in failing to raise the issues raised
above.

The issues have merit and Appellate counsel should have

recognize them.

There is a likelihood that petitioner would

have been successful thus the actions of Appellate counsel
denied petitioner effective assistance.”

ECF No. 7 at 50.

Petitioner raised this claim in his second PCR petition.
ECF No. 28-37 at 12.

The PCR court concluded the second PCR

petition was procedurally barred.

ECF No. 28-38.

“Moreover,

this subsequent petition does not allege ineffective assistance
of counsel for prior post-conviction relief counsel.

Therefore,

your second petition for post-conviction relief is denied.”
at 2 (citing N.J. Ct. R. 3:22-4(b)).

Id.

Petitioner has

procedurally defaulted on this claim and has not established
cause for the default.

This claim is dismissed as procedurally

defaulted.
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
petitioner’s detention arises out of his state court conviction

44

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 his claims either procedurally or on the
merits, the Court shall deny Petitioner a certificate of
appealability.
V.

CONCLUSION
For the reasons stated above, the habeas petition will be

dismissed in part as procedurally defaulted and denied in part.
A certificate of appealability shall not issue.
An accompanying Order will be entered.

November 23, 2022
Date

s/ Noel L. Hillman
NOEL L. HILLMAN
U.S. District Judge

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