CREAMER v. JOHNSON et al

Filing 19

OPINION. Signed by Judge Renee Marie Bumb on 6/5/2019. (dmr)(n.m.)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

JOHN W. CREAMER, III,
Petitioner,
v.
STEVEN JOHNSON and
THE ATTORNEY GENERAL OF
THE STATE OF NEW JERSEY,
Respondents.

:
:
:
:
:
:
:
:
:
:
:
:
:

Civil Action No. 17-6253(RMB)

OPINION

BUMB, District Judge
This matter comes before the Court upon the Petition for a
Writ of Habeas Corpus under 28 U.S.C. § 2254 (Pet., ECF No. 1)
filed by Petitioner John W. Creamer, III (“Petitioner”), an inmate
confined in New Jersey State Prison in Trenton, New Jersey.
Respondents filed an answer opposing habeas relief (Answer, ECF
No. 10), and Petitioner filed a traverse. (Traverse, ECF No. 18.)
Pursuant to Federal Rule of Civil Procedure 78, the Court will
determine the claims presented in the petition on the written
submissions of the parties.
I.

PROCEDURAL HISTORY
Following a jury trial, on June 5, 2009, a judgment of

conviction (“JOC”) was entered against Petitioner in New Jersey
Superior Court, Camden County upon his conviction by a jury of

first-degree aggravated manslaughter and two counts of thirddegree hindering apprehension or prosecution.
3, at 1.)1

(JOC, ECF No. 11-

Petitioner was sentenced to a total extended prison

term of forty years.

(Id. at 1.)

Petitioner filed an appeal of his conviction and sentence on
October 7, 2009.

(Notice of Appeal, ECF No. 11-4.)

The New Jersey

Superior Court, Appellate Division affirmed his conviction and
sentence on May 8, 2012. (App. Div. Op., ECF No. 11-7.) Petitioner
thereafter filed a petition for certification to the New Jersey
Supreme Court, which was denied on November 9, 2012.
Order, ECF No. 11-11.)

(Sup. Ct.

Petitioner did not file a petition for

certiorari to the United States Supreme Court.

(Pet., ECF No. 1,

at 7.)
On December 12, 2012, Petitioner filed a Verified Petition
for Post-Conviction Relief (“PCR”) in the Superior Court of New
Jersey, Camden County.

(PCR Pet., ECF No. 11-13.)

The PCR Court

denied the petition on February 6, 2014. (Order on Post-Conviction
Applications on Indictable Offenses, ECF No. 11-17.)

On April 11,

2014, Petitioner filed a Notice of Appeal of the PCR court’s

1

Petitioner was originally charged, via indictment, with one
count of first-degree murder, one count of first-degree conspiracy
to commit murder, three counts of third-degree possession of a
weapon for an unlawful purpose, three counts of fourth-degree
unlawful possession of a weapon, one count of third-degree
endangering an injured victim, and four counts of third-degree
hindering apprehension or prosecution. (Indictment, ECF No. 111.)
2

decision and a Motion to File Notice of Appeal as Within Time with
the New Jersey Superior Court, Appellate Division.

(See Notice of

Appeal, ECF No. 11-18; App. Div. Order, ECF No. 11-19.)

The

Appellate Division granted Petitioner’s motion on May 6, 2014.
(App. Div. Order, ECF No. 11-19.) On April 18, 2016, the Appellate
Division affirmed the denial of Petitioner’s PCR petition.
Div. Op., ECF No. 11-22.)

(App.

Petitioner filed a timely petition for

certification to the New Jersey Supreme Court, which was denied on
September 12, 2016.

(Sup. Ct. Order, ECF No. 11-25.)

filed the instant petition on August 18, 2017.
II.

Petitioner

(Pet., ECF No. 1.)

BACKGROUND
The factual background in this matter was summarized by the

New Jersey Superior Court, Appellate Division upon Petitioner’s
direct appeal.

(App. Div. Op, ECF No. 11-7.)

At the trial, the State presented evidence
which established that on March 20, 2006,
defendant
walked
into
Oaklyn
police
headquarters and claimed he suspected there
was a dead body in his apartment in Gloucester
City. Defendant consented to a search of his
apartment and his garbage. Officers from the
Gloucester City Police Department entered
defendant's apartment and found the dead body
of Lisa Hoopes (Hoopes) lying on the couch,
covered with a blanket, with duct tape around
her neck. Hoopes and the couch were covered in
blood, and there was a considerable amount of
blood in the apartment.
The police found a bloody
trash bag full of clothes
bloody hammer inside the
ten o'clock that morning,
3

pair of scissors, a
in the oven, and a
microwave.
Around
defendant was taken

to
the
offices
of
the
Camden
County
Prosecutor, where he was questioned by
Investigators John Greer and James Bruno, and
Detective Mark Ridge. Defendant was informed
of his Miranda rights. He signed a written
waiver of those rights.
Defendant told the investigators that, on the
previous Friday, March 17, 2006, he ingested
cocaine in his apartment with Karen Ann
Sluzalis
(Sluzalis)
and
Brian
Springer
(Springer). At some point, Mark Berky (Berky),
a person defendant knew from the neighborhood,
arrived and Springer left. Later that night,
defendant and Berky left the apartment to
purchase liquor, leaving Sluzalis alone.
While defendant and Berky were out, they met
Hoopes, who returned to the apartment with
them. Hoopes, Berky and Sluzalis later left.
Very early on Saturday, March 18, 2006, Berky
returned to defendant's apartment and asked
defendant to bring Sluzalis's car to her with
“two bags of dope and $20.00[.]” When
defendant arrived at Sluzalis's apartment, she
was upset. She said that Berky and Hoopes had
“played” him. Defendant and Sluzalis then
“started shootin' some coke[.]”
At some point, Sluzalis called Hoopes and
arranged to meet her at defendant's apartment.
Sluzalis went to meet Hoopes later Saturday
morning. When she returned, she had blood on
her hands and appeared disheveled. Defendant
asked what happened but did not press her. He
remained at Sluzalis's apartment until she
kicked him out early Monday morning, at which
point, he went to the police, as he said, “to
cover [his] ass[.]”
Defendant told the investigators that Sluzalis
had “some type of” altercation with Hoopes in
his apartment on Friday night, and he was
concerned that if he went home, he would be
“walking into ... somethin[g]” that he was not
“aware of” and which he wanted “no part of.”
After about an hour, defendant invoked his
4

right to counsel and his right to remain
silent.
The interview ended. Defendant was
placed under arrest.
He was required to
remove his boots before being placed in a
holding cell. After observing bloodstains on
defendant's boots, the investigators obtained
a warrant to seize defendant's boots and
clothing.
On
March
20,
2006,
the
investigators obtained DNA samples from
defendant and Sluzalis.
Later
that
day,
defendant
told
the
investigators he wanted to provide them with
more information, but said that he did not
want to speak with Greer, Bruno or Ridge.
Around 5:30 p.m., Investigators Eric Wren and
Diane Wilson interviewed defendant.
Before
that interview, defendant was again informed
of his Miranda rights, and he again signed a
waiver of those rights.
In his second interview, defendant said that
on March 18, 2006, he was in his apartment
with Springer and Sluzalis, when Sluzalis
invited Hoopes to the apartment.
Hoopes
arrived and, at some point thereafter,
defendant was with Springer in the kitchen
when they heard a commotion in the living
room. They found Sluzalis and Hoopes engaged
in a physical altercation.
Defendant
stated
that
“somebody
had
a
knife[.]”
It was a four-inch, camouflage,
switchblade that Sluzalis always carried. He
said that he initially thought Springer was
trying to pull the two women apart, but then
he realized that Springer was also hitting
Hoopes.
According to defendant, Sluzalis
pulled a hammer from his tool box and struck
Hoopes with it. Springer then did the same.
Defendant claimed that he did not participate
in the attack but saw that Hoopes was
suffering and attempted to “put her out of her
misery” by “stomp[ing] her one time[,]” like
he had once done with an injured baby bird.

5

Defendant stated that, despite the injuries,
Hoopes managed to pull herself onto the couch.
Defendant did not attempt to help Hoopes
because he “felt a little bit threatened[,]”
by Sluzalis and Springer. After the attack,
defendant, Sluzalis and Springer put the
hammer in the microwave and poured bleach on
the knife before throwing it into the trash
dumpster.
After
the
second
interview,
defendant was transported to a hospital
because of complications from diabetes.
(Id. at 2–6 (alterations in original).)
III. STANDARD OF REVIEW
Under 28 U.S.C. § 2254(a), the district court “shall entertain
an application for a writ of habeas corpus [o]n behalf of a person
in 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.”

A habeas petitioner has

the burden of establishing his entitlement to relief for each claim
presented in his petition based upon the record that was before
the state court.

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

2013); see also Parker v. Matthews, 567 U.S. 37, 40–41 (2012).
Under 28 U.S.C. § 2254, district courts are required to give great
deference to the determinations of the state trial and appellate
courts.

See Renico v. Lett, 559 U.S. 766, 772–73 (2010).

Where a claim has been adjudicated on the merits by the state
courts, the district court shall not grant an application for a
writ of habeas corpus unless the state court adjudication

6

(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)(1)–(2).

Federal law is clearly established

for these purposes where it is clearly expressed in “only the
holdings, as opposed to the dicta” of the opinions of the United
States Supreme Court.
(2015).

See Woods v. Donald, 135 S. Ct. 1372, 1376

“When reviewing state criminal convictions on collateral

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

Id.

Where a petitioner

challenges an allegedly erroneous factual determination of the
state courts, “a determination of a factual issue made by a State
court shall be presumed to be correct [and the] applicant shall
have the burden of rebutting the presumption of correctness by
clear and convincing evidence.”
IV.

28 U.S.C. § 2254(e)(1).

DISCUSSION
A.

Timeliness of the Petition
1.

Parties’ Arguments

Respondents contend the petition should be dismissed as timebarred because it was filed after the expiration of the one-year

7

statute of limitations for § 2254 petitions under 28 U.S.C. § 2244.
(Answer, ECF No. 10, at 16–19.) Respondents assert that Petitioner
filed his appeal of his PCR petition after the time to do so had
expired and, thus, the limitations period ran for 42 days between
the day Petitioner’s time for filing an appeal expired and the day
the Appellate Division granted Petitioner’s Motion for Leave to
File

a

Notice

of

Appeal

as

Within

Time.

(Id.

at

17–18.)

Respondents assert that once the Supreme Court of New Jersey denied
certification on September 12, 2016, Petitioner had 323 days left
to file his habeas petition.

(Id. at 18.)

Respondents argue that

those 323 days expired on July 31, 2017, 18 days before the instant
petition was filed on August 18, 2017.

(See id.)

Petitioner maintains that the petition is, in fact, timely.
Petitioner argues that the one-year statute of limitations was
tolled until the day the Supreme Court of New Jersey denied
certification, September 12, 2016.

(Traverse, ECF No. 18, at 15.)

Petitioner contends that he had until September 12, 2017 to file
any petition for habeas relief and that the instant petition was
filed before the expiration of that time.
2.

(Id.)

Legal Standard

28 U.S.C. § 2244(d) provides, in pertinent part:
(1) A 1-year period of limitation shall apply
to an application for a writ of habeas corpus
by a person in custody pursuant to the
judgment of a State court. The limitation
period shall run from the latest of—
8

(A)

the date on which the judgment
became final by the conclusion of
direct review or the expiration of
the time for seeking such review;

. . .
(2) The time during which a properly filed
application for State post-conviction or other
collateral
review
with
respect
to
the
pertinent judgment or claim is pending shall
not be counted toward any period of limitation
under this subsection.
After a petitioner seeks review from the State’s highest
court,

the

judgment

of

conviction

becomes

final,

and

the

limitations period begins to run after expiration of the 90-day
period for filing a petition for writ of certiorari in the United
States Supreme Court.

Swartz v. Meyers, 204 F.3d 417, 419 (3d

Cir. 2000).
Pursuant to § 2244(d)(2), only a properly filed application
for State post-conviction review or other collateral review tolls
the habeas statute of limitations.
408, 413 (2005).

Pace v. DiGuglielmo, 544 U.S.

An application for PCR is “properly filed when

its ‘delivery and acceptance are in compliance with the applicable
laws and rules governing filings’ including ‘time limits upon its
delivery.’”
(2000)).

Id. (quoting Artuz v. Bennett, 531 U.S. 4, 8, 11

The state court’s acceptance of an application is “an

important indication that the pleading is properly filed.”

9

Id.

(quoting Jenkins v. Superintendent of Laurel Highlands, 705 F.3d
80, 87 (3d Cir. 2013)).
A properly filed application will toll the limitations period
during the period between a lower state court’s decision and the
timely filing of an appeal of that decision, Carey v. Saffold, 536
U.S. 214 (2002), and through the time in which an appeal could
have been filed, even if no appeal is filed, Swartz, 204 F.3d at
420-24.

Furthermore, the tolling provision does not reset the

date from which the one-year limitation period begins to run.
Johnson v. Hendricks, 314 F.3d 159, 161–62 (3d Cir. 2002).
Even

if

the

statutory

limitations

period

has

passed,

a

petition may overcome that limitation if he can show a basis for
equitable tolling. Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001).
“Generally, a litigant seeking equitable tolling bears the burden
of establishing two elements:

(1) that he has been pursuing his

rights diligently, and (2) that some extraordinary circumstances
stood in his way.”

Ross v. Varano, 712 F.3d 784, 798 (3d Cir.

2013) (citations omitted).

“The diligence required for equitable

tolling purposes is reasonable diligence.”

Id. at 799.

The

obligation to exercise reasonable diligence includes the period
when a petitioner is exhausting state remedies.

Id.

“The fact

that a petitioner is proceeding pro se does not insulate him form
the ‘reasonable diligence’ inquiry and his lack of legal knowledge

10

or legal training does not alone justify equitable tolling.”

Id.

at 800.
3.

Analysis

Petitioner’s conviction and sentence were imposed by the
trial court on June 5, 2009. (JOC, ECF No. 11-3, at 1.) Petitioner
filed an appeal and the New Jersey Superior Court, Appellate
Division affirmed his conviction on May 8, 2012.
ECF No. 11-7.)

(App. Div. Op.,

The New Jersey Supreme Court denied certification

on November 9, 2012.

(N.J. Sup. Ct. Order, ECF No. 11-11.)

Petitioner did not file a petition for writ of certiorari with the
United States Supreme Court within ninety days after the New Jersey
Supreme Court denied his petition.

Accordingly, Petitioner’s

conviction became final under the AEDPA when the 90-day period
expired on February 7, 2013.2

Swartz, 204 F.3d at 419.

Petitioner filed his PCR petition in the New Jersey Superior
Court on December 12, 2012, before his conviction became final
under the AEDPA.

(See PCR, ECF No. 11-13.)

Thus, while the

statute of limitations began to run the day Petitioner’s conviction

2

Federal Rule of Civil Procedure 6 describes how to compute
any time period in any statute that does not specify a method of
computing time. Fed. R. Civ. P. 6(a). In computing time, one
should exclude the day of the event that triggers the period; count
every day including intermediate Saturdays, Sundays and legal
holidays; and include the last day of the period unless it is a
Saturday, Sunday or legal holiday, in which case it runs until the
next day. Fed. R. Civ. P. 6(a)(1)(A)–(C).
11

became

final,

it

was

immediately

statutorily

tolled

under

§

2244(d)(2) because of the pending PCR proceeding.
The Superior Court denied the PCR petition on February 6,
2014.

(Order

on

Post-Conviction

Offenses, ECF No. 11-17.)

Applications

on

Indictable

Under the New Jersey Court Rules,

Petitioner’s time to file an appeal expired on March 24, 2014, 45
days after the PCR petition was denied.

N.J. Ct. R. 2:4-1(a).

Petitioner did not file a timely notice of appeal during that
period.
Respondents argue that the limitations period thus ran from
the day Petitioner’s time to file an appeal expired, March 24,
2014, to the day the Appellate Division granted his Motion for
Leave to File a Notice of Appeal as Within Time, May 6, 2014,
amounting to a total of 42 days.

(ECF No. 10, at 18.)

Petitioner,

on the other hand, argues that the statute of limitations was
tolled for the pendency of his PCR proceeding and that it did not
begin to run until September 12, 2016, when the New Jersey Supreme
Court denied certification.
The law in the Third Circuit as to how the filing of an
untimely appeal in the state court affects the running of the
limitations period is unsettled.

In Swartz, on which Respondents

rely, the Third Circuit did not need to reach the issue of whether
the habeas statute of limitations should toll while a request for
permission to file a timely appeal (out of time) was pending before
12

the court.

204 F.3d 417, 424 (3d Cir. 2017); see also Douglas v.

Horn, 359 F.3d 257, 262 n.9 (3d Cir. 2004) (observing that its
“comments with respect to the statute of limitations not being
tolled during the time that a nunc pro tunc request for allowance
of appeal was pending were not necessary to [its] result”).
Nevertheless, it stated, in dicta, that the time during which a
request for permission to file an appeal as in time would not toll
the limitations period.

Id. at 423 n.6.

Since Swartz, however, the Third Circuit has held, albeit in
a nonprecedential opinion, that the time in which a motion for
leave to file an out-of-time appeal is pending is excluded from
the statute of limitations.

Thompson v. Administrator N.J. State

Prison, 701 F. App’x 118, 122–23 (3d Cir. 2017) (observing that
“the proper period of exclusion for § 2244(d) purposes is ‘all
time between the filing of the request to excuse the default and
the state court’s decision on the merits (if it elects to excuse
the default)’” (quoting Fernandez v. Sternes, 227 F.3d 977, 979
(7th Cir. 2000)).

The approach set forth in Thompson has been

largely followed by other courts in this District.

See, e.g.,

Alvarenga v. Lagana, 2016 WL 3610156, at *1 (D.N.J. July 1, 2016)
(“[S]tatutory tolling does not include the period between the
expiration of time to appeal and when the appeal was actually
filed.”), aff’d sub nom, Alvarenga v. Admin. N. State Prison, No.
16-3538,

2016

WL

9631331

(3d
13

Cir.

Dec.

8,

2016)

(denying

certificate of appealability); see also Brown v. Powell, No. 1710687, 2019 WL 1529645 (D.N.J. Apr. 9, 2019) (determining that
limitations period ran from date petitioner’s time to file an
appeal expired until out-of-time notice of appeal was filed); Barge
v. Att’y Gen. of N.J., No. 18-12033, 2018 WL 5784994, at *2 (D.N.J.
Nov. 5, 2018) (same).
Here, Petitioner’s out-of-time appeal was accepted by the
Appellate Division as timely.

(App. Div. Order, ECF No. 11-19.)

Because the state court’s acceptance of a filing is the critical
indicator as to whether the filing was “properly filed,” and out
of an abundance of caution due to the unsettled state of the law
on this issue, the Court will find that the statute of limitations
ran only from March 24, 2014, the date Petitioner’s time to file
an appeal expired, until April 11, 2014, the date he filed his
Notice of Appeal and Motion for Leave to File a Notice of Appeal
as Within Time, amounting to a total of 18 days.
The limitations period remained tolled until the New Jersey
Supreme Court denied certification on September 12, 2016.

At that

time, there were 347 days left for Petitioner to file a petition
for habeas relief. Petitioner filed the instant petition on August
17, 2017, nine days before his time to do so expired, making it
timely under the one-year AEDPA statute of limitations.
B.

Ground One:
1.

Violation of Miranda Rights

The Parties’ Arguments
14

In Petitioner’s first ground for relief, he claims that his
Fifth Amendment rights, as set forth in Miranda v. Arizona, 384
U.S. 436 (1966), were violated during his second interrogation at
the Camden County Prosecutor’s Office.

(Pet., ECF No . 1, at 9.)

Petitioner asserts that after he reported the presence of a
possible homicide victim in his apartment on July 20, 2007, he
waived his Miranda rights and was interrogated for approximately
one hour by Investigators Bruno, Ridge, and Greer before the
investigators briefly left the room. (Id.) When the investigators
returned,

Petitioner

he

“informed

them

that

he

was

becoming

‘uncomfortable’ with the interrogation and was invoking his right
to counsel.”

(Id. at 10.)

Petitioner asserts that after he invoked his Miranda rights
“[t]he [i]nvestigators’ tactics changed.”
6.)

Petitioner

alleges

that

the

(Traverse, ECF No. 18,

investigators

ignored

his

invocation of his rights and instead repeatedly inquired as to
whether he wanted something to eat and how often he required
insulin. (Id.) Petitioner argues that these questions “reinforced
[his] knowledge of the power the investigators had in providing or
withholding his needs” and coerced him into to providing his second
statement to investigators.

(Id.)

Petitioner also argues that he

was never told why he was under arrest and, had he known he was
being arrested for murder, “there is a substantial likelihood he
would not have waived his rights.”
15

(Id. at 7.)

Respondents argue that Petitioner’s second statement was
voluntarily

made

and,

in

fact,

was

initiated

by

Petitioner.

(Answer, ECF No. 10, at 23-24.) Consequently, Respondents maintain
that the state court reasonably applied Miranda to Petitioner’s
claim and made a reasonable determination of fact that Petitioner’s
second statement was “completely voluntary.”
2.

(Id.)

The State Court Decision

On habeas review, the district court must review the last
reasoned state court decision on each claim.
201 U.S. 797, 803 (1991).

Ylst v. Nunnemaker,

For Ground One, the last reasoned state

court decision is the Appellate Division’s opinion on direct
review.

The Appellate Division affirmed the decision of the trial

court that Petitioner’s second statement to law enforcement was
voluntarily made:
Here, the record indicates that defendant
voluntarily appeared at the Oaklyn police
station and reported that there may be a dead
body in his apartment. The police went to the
apartment and found Hoopes's body.
It
appeared that she had been murdered.
The
police
transferred
defendant
to
the
prosecutor's office. He was left alone in an
interview room for approximately two hours and
provided with food before being interviewed.
The interview continued for about one hour,
until sometime around 1:30 or 1:45 p.m., when
defendant invoked his right to counsel.
The questioning stopped.
The investigators
asked defendant whether he wanted something to
eat or drink, and defendant asked for “a
little lunch[.]” Defendant is diabetic. The
investigators also asked him if he needed a
16

dose of insulin.
Thereafter, defendant was
left alone for approximately four hours and no
one spoke with him about the case.
Defendant was provided with access to a
restroom during that period.
Around 5:15
p.m., Investigator Wren checked on defendant
before leaving the office for the evening.
Defendant asked for a cup of coffee and a
cigarette, which were provided to him. He was
allowed to use the restroom. As defendant was
returning to the holding cell from the
restroom, he told Wren that he “ha[d] some
details I want to fill you in on.”
Wren offered to get the investigators who
previously
interviewed
defendant
but
defendant expressed a preference to speak to
Wren claiming that “I didn't like the other
two investigators.
They kept asking me the
same questions over and over again and they
made me feel like I was a liar....”
Defendant was again advised of his Miranda
rights.
He interrupted the recitation of
rights, seeking assurances that he could stop
the interview if he pleased “like I did the
other time.”
Defendant agreed to waive his
rights and the second interview followed.
Defendant argues that the offers to provide
food or drink, and the inquiries concerning
his medical needs, were an attempt by the
investigators to pressure him to revoke his
assertion of his right to counsel and to
“break down his will[.]”
The trial court
found, however, that defendant's statement
“was
completely
voluntary
with
full
understanding of his rights without any
coercion.”
The court noted that, in his answers to the
investigator's questions, defendant indicated
that he fully understood his rights, including
his right to counsel. The court also noted
that the investigators scrupulously honored
defendant's assertion of his right to counsel
17

and ceased questioning him but later defendant
voluntarily initiated further discussion.
The court pointed out that the investigators
again informed defendant of his Miranda rights
and
found
that
defendant
knowingly,
voluntarily and intelligently waived those
rights before making the second statement.
The court's findings are entitled to our
deference because they are supported by
sufficient, credible evidence and they have
been substantially influenced by the court's
opportunity to see and hear the witnesses.
(App.

Div.

Op.,

ECF

No.

11-7,

at

11–14

(citations

omitted)

(alterations in original).)
The Appellate Division similarly found that Petitioner’s
argument that he could not have made a knowing and intelligent
waiver of his Miranda rights because he was not told the reason
for his arrest lacked merit.

(Id. at 14–15.)

The Appellate

Division explained:
Defendant was not deprived of information
essential to a knowing and intelligent waiver
of his right to remain silent. Defendant was
arrested after he reported to the Oaklyn
police that there may be a dead body in his
apartment, and after he gave his first
statement
to
the
investigators
at
the
prosecutor’s office. When he gave his second
statement to the investigators, defendant was
clearly aware that he was a suspect in a murder
investigation.
(Id. at 15.)
3.

Analysis

The Fifth Amendment provides, in part, that no person “shall
be compelled in any criminal case to be a witness against himself.”
18

U.S. Const. amend V.

The Fourteenth Amendment incorporates the

Fifth Amendment privilege against self-incrimination.
v. Hogan, 378 U.S. 1, 8 (1964).

See Malloy

In Miranda, the Court held that

“without proper safeguards the process of in-custody interrogation
. . . contains inherently compelling pressures which work to
undermine the individual’s will to resist and to compel him to
speak where he would not otherwise do so freely.” 384 U.S. at 467.
Pursuant to Miranda, a suspect in custody must be told, prior to
interrogation, “‘that he has the right to remain silent, that
anything he says can be used against him in a court of law,’ and
be

given

the

‘[o]pportunity

to

throughout the interrogation.’”

exercise

these

rights

.

.

.

Boyer v. Houtzdale, 620 F. App’x

118, 124 (3d Cir. 2015 (quoting Miranda, 384 U.S. at 479).

After

these warnings have been given, “the individual may knowingly and
intelligently waive these rights and agree to answer questions or
make a statement.”

Id.

However, if the individual expresses that

he wishes to remain silent or requests counsel, any interrogation
must cease.

Id.

Whether statements made after an individual has invoked his
Miranda rights are admissible depends on “‘whether his right to
cut off questioning’ was ‘scrupulously honored.’”
Mosley, 423 U.S. 96, 104 (1975).

Michigan v.

The Mosley court “identified

four factors that help decide whether a suspect’s invocation of
the right to remain silent and further questioning”:
19

(1) whether a significant amount of time
lapsed between the suspect’s invocation of the
right
to
remain
silent
and
further
questioning; (2) whether the same officer
conducts the interrogation where the suspect
invokes
the
right
and
the
subsequent
interrogation; (3) whether the suspect is
given a fresh set of Miranda warnings before
the subsequent interrogation; and (4) whether
the subsequent interrogation concerns the same
crime as the interrogation previously cut off
by the suspect.
United States v. Lafferty, 503 F.3d 293, 303 (3d Cir. 2007) (citing
Mosley, 423 U.S. at 105–06).
The Appellate Division’s decision was not contrary to this
federal precedent nor was it an unreasonable application of that
precedent.

Petitioner has not presented any evidence to indicate

that the investigators did not scrupulously honor his invocation
of his rights.
he

first

His second statement was made several hours after

invoked

his

Miranda

that

he

rights
wished

when
to

he

indicated

provide

to

Investigator

Wren

additional

information.

Before any questioning was conducted, he was again

read his Miranda rights and provided with a second waiver of rights
form, which he signed.
Moreover, Petitioner has not presented any evidence that
would rebut the state court’s finding that the investigator’s
inquiries as to whether Petitioner’s need for food or insulin did
not act to coerce Petitioner.

Nor has Petitioner presented any

20

evidence to rebut the Appellate Division’s finding that Petitioner
was clearly on notice that he was a suspect in Hoopes’ murder.
The totality of the circumstances underlying Petitioner’s
second custodial statement demonstrate that not only did the
investigators scrupulously honor his invocation of his Miranda
rights, his second waiver of those rights was made knowingly,
intelligently, and voluntarily.

Therefore, Ground One of the

petition is denied.
B.

Ground Two:
1.

Ineffective Assistance of Counsel

The Parties’ Arguments

Petitioner next claims that he was denied the effective
assistance of counsel in violation of the Sixth Amendment because
his counsel failed to investigate his medical history before the
Miranda hearing.

(Pet., ECF No. 1, at 11.)

Petitioner alleges

that he suffers from diabetes and that he informed investigators
of this fact when he arrived at the police station.
Petitioner

claims

that

during

the

first

(Id.)

interrogation,

Investigator Greer asked if he required insulin, and Petitioner
declined.

(Id.)

Following the first interrogation, Petitioner

states he was detained in a holding cell for four hours and,
despite making numerous requests for medical attention, he was
only provided with water and a hamburger.

(Id.)

Petitioner asserts that “[a]fter several hours of remaining
in the cell his pain increased and he did not want to be in the
21

cell any longer and his mind was affected so much he agreed to
talk

to

the

police.”

(Id.)

Shortly

after

the

second

interrogation, Petitioner was taken to the emergency room where he
had a blood glucose level of 410.

(Id.)

Petitioner argues his

counsel was ineffective because he failed to present evidence that
Petitioner made repeated requests for medical attention while he
was in custody and that he failed to conduct any investigation to
receive the medical records indicating Petitioner’s high blood
glucose level.

(Id.)

Respondents argue that the state courts properly applied the
Strickland standard to Petitioner’s ineffective assistance of
counsel claim.

(ECF No. 10, at 34.)

Moreover, Respondents

maintain that Petitioner has failed to demonstrate that his counsel
was ineffective for not obtaining his medical records or presenting
them at the Miranda hearing.
2.

(Id. at 33.)

The State Court Decision

The last reasoned opinion on this claim was the Appellate
Division’s decision on Petitioner’s appeal of the denial of his
PCR petition.

The Appellate Division held that Petitioner had not

established a prima facie case of ineffective assistance of counsel
under Strickland v. Washington, 466 U.S. 668 (1987).

In so

holding, the Appellate Division relied on the factual findings of
the PCR Court:

22

[A]fter
defendant’s
first
interview,
defendant was asked if he required insulin
Defendant declined the officer’s offer,
indicating that he did not require any insulin
at that time. The judge pointed out that, in
his direct appeal, defendant acknowledged that
he had been repeatedly offered food, drink and
insulin.
The judge noted that, when the trial court
denied defendant’s motion to suppress, the
court stated that defendant had been given
food and drink, and assured that he would be
taken to the hospital for insulin if and when
he needed it. In addition, the trial court
observed that, during the time he was
interviewed, defendant did not “at any time”
lose his focus or ability to understand.
The judge also noted that, in support of his
PCR petition, defendant had submitted records
of
his
hospitalization
following
his
interviews.
Those records had not been
presented at the suppression hearing.
The
records indicated that, when defendant was
taken to the hospital his blood sugar level
was 410, and he had “nonspecific and
nonlocaliz[ed] pains in the body” which were
thought to be related to his uncontrolled
diabetes.
However, upon admission, the
attending physician noted that defendant did
not appear to be in acute distress, had no
motor or sensory deficits, and was oriented.
[The judge] observed that, while defendant was
hospitalized for three days, a report of a
physical
exam
the
day
after
admission
indicated that defendant was feeling “back to
normal” and was otherwise stable.
The
discharge summary indicated that defendant did
not take a regular dose of insulin, and he had
reported that he only takes insulin when he
does not feel well and only when he wants to
do so. The judge found that nothing in the
medical records contradicted the trial court’s
findings at the suppression hearing, and the
presentation of the medical records at the
23

hearing would not have changed the outcome of
the motion.
(App. Div. Op., ECF No. 11-22, at 10–11 (first alteration in
original).)
3.

Analysis

The Sixth Amendment right to counsel is the right to the
effective assistance of counsel.
U.S. 668, 687–88 (1984).
Amendment

ineffective

Strickland v. Washington, 466

There are two elements to a Sixth

assistance

of

performance by counsel and prejudice.
115, 121 (2011).

counsel

claim,

deficient

Premo v. Moore, 562 U.S.

For the deficient performance prong, “a person

challenging a conviction must show that counsel’s representation
fell below an objective standard of reasonableness.”

Id. at 121

(internal quotations omitted) (quoting Harrington v. Richter, 562
U.S. 86, 104 (2011)).

A petitioner must overcome a “‘strong

presumption’ that counsel’s representation was within the ‘wide
range’

of

reasonable

professional

Harrington, 562 U.S. at 104).

assistance.”

Id.

(quoting

The burden a petitioner must meet

is “that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.”

Id. at 121–22. (quoting Harrington, 562 U.S. at 104).

Habeas review of counsel’s performance is doubly deferential, and
the question is not whether counsel’s actions were reasonable but

24

whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.

Id. at 122–23.

To prove Strickland prejudice, a petitioner must establish
that “counsel’s errors were so serious as to deprive the defendant
of a fair trial.”

Strickland, 466 U.S. at 669.

To establish

prejudice, a petitioner must show that “there is a reasonable
probability that the result of trial would have been different
absent the deficient act or omission.”
U.S. 236, 264 (2014).

Hinton v. Alabama, 571

On habeas review, it is not enough that a

federal judge would have found counsel ineffective.

The judge

must find that the state court’s resolution of the issue was
unreasonable.

Harrington, 562 U.S. at 101 (2011).

The state court’s resolution of Petitioner’s ineffective
assistance of counsel claim was not unreasonable.

The medical

records Petitioner argues his counsel should have obtained and
presented at the Miranda hearing do not contradict the findings of
the

trial

court

nor

would

admission

of

the

records

have

demonstrated that Petitioner’s Miranda rights were violated in any
way.

Petitioner cannot demonstrate that he was prejudiced in any

way by his counsel’s failure to obtain these records. Accordingly,
habeas relief on Ground Two is denied.

25

D.

Ground Three: Violations of Petitioner’s Due Process
Rights
1.

The Parties’ Arguments

In Ground Three, Petitioner appears to allege two violations
of

his

due

process

Amendments:

(1)

rights

that

under

the

the

jury’s

Fifth

and

Fourteenth

verdict

for

aggravated

manslaughter was against the weight of evidence and (2) that the
trial court erred in instructing the jury to sequentially consider
the

lesser-included

manslaughter.

offenses

of

aggravated

and

reckless

(Id.)

After the trial court instructed the jury as to the elements
of murder, it explained that if the jury found defendant not guilty
of first-degree murder, it should consider the lesser-included
offenses of aggravated or reckless manslaughter.
at 49-50.)

(ECF No. 11-34,

The trial court instructed the jury to consider these

offenses sequentially:
If . . . you determine the State has not proven
beyond a reasonable doubt that the Defendant
purposely, or knowingly caused death or
serious bodily injury resulting in death, then
you must find the Defendant not guilty of
murder and go on to consider whether the
Defendant should be convicted of the crime of
aggravated or reckless manslaughter.
. . .
A person is guilty of aggravated manslaughter
if he recklessly causes the death of another
under
circumstances
manifesting
extreme
indifference to human life. In order for you
to find a Defendant guilty of aggravated
26

manslaughter, the State is required to prove
each of the following elements beyond a
reasonable doubt.
One, that the Defendant
caused Lisa Hoopes’ death. Two, the Defendant
did so recklessly. And three, the Defendant
did so under circumstances manifesting extreme
indifference to human life.
. . .
If, however, after consideration of all the
evidence, you’re not convicted beyond a
reasonable doubt that the Defendant acted
recklessly causing Lisa Hoope’s death under
circumstances
manifesting
extreme
indifference to human life, then your verdict
must be guilty of aggravated manslaughter.
(Id. at 49-52.)
manslaughter.

Petitioner was ultimately convicted of aggravated
(JOC, ECF No. 11-3, at 1.)

Petitioner argues that the jury’s verdict is against the
weight of evidence as the only basis for the conviction is “pure
speculation and [the jury’s] subjective sense of the egregiousness
of the crime.”

(Pet., ECF No. 1, at 13.)

Petitioner further

argues that the trial court’s instruction to consider murder and
its lesser-included charges sequentially “deprived Petitioner of
his due process right to have the jury deliberate upon a viable
lesser included homicide offense.”

(Id.)

Respondents first address Petitioner’s argument that the
jury’s

finding

that

Petitioner

was

guilty

manslaughter was against the weight of evidence.
10, at 35-37.)

of

aggravated

(Ans., ECF No.

Respondents assert that the jury’s verdict was a

“rational decision” and that “in the absence of any showing that
27

no reasonable trier of fact could have found him guilty beyond a
reasonable doubt,” he is not entitled to habeas relief.
On the erroneous jury instruction claim, Respondents assert
that the trial court’s instruction was not erroneous. Accordingly,
Respondents maintain that Petitioner cannot succeed on his due
process claim.
2.

The State Court Decision

The last reasoned opinion on both Petitioner’s due process
claims was the Appellate Division’s decision on direct appeal.
i.

Verdict Against the Weight of Evidence

The Appellate Division rejected Petitioner’s argument that
there was insufficient evidence to support the jury’s verdict for
aggravated manslaughter.

(App. Div. Op., ECF No. 11-7, at 16–18.)

Indeed, the Appellate Division was “satisfied that the State
presented sufficient evidence upon which a jury could find beyond
a reasonable doubt that defendant acted with extreme indifference
to human life when he stomped on Hoopes’s face and kicked her in
the head.”

(Id. at 17.)

The Appellate Division further noted

that
Hoopes had already been seriously injured by
the time [Petitioner] struck her and any
further injury to her head could be fatal.
Moreover, defendant stated that he stomped on
Hoopes to put her “out of her misery.” . . .
In our view, the evidence allowed a jury to
conclude that when defendant struck Hoopes, he
did so with extreme indifference to whether
she lived or died. The evidence showed that
28

when defendant struck Hoopes, the risk of
death was a probability, not a possibility.
(Id. at 17–18.)
ii.

Erroneous Jury Instruction

The Appellate Division similarly denied Petitioner’s claim
that the trial court erred in instructing the jury to deliberate
sequentially
offenses.

on

the

murder

(Id. at 21–23.)

charge

and

its

lesser-included

The Appellate Division determined that

The instructions employed here were not
erroneous and were not framed in a manner that
would deter the jury from returning a proper
verdict.
Although the court instructed the
jury to consider aggravated manslaughter
before considering reckless manslaughter, the
jury was not precluded from finding defendant
not guilty of the former offense and guilty of
the latter offense.
In our view, the
instructions provided the jury with a proper
framework for orderly deliberations.
(Id. at 22-23.)
3.

Analysis
i.

Verdict Against the Weight of Evidence

A claim that the jury’s verdict was against the weight of
evidence, may arise to violation of due process if “after viewing
the evidence in the light most favorable to the prosecution, [no]
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443

U.S. 307, 319 (1979). This “standard must be applied with explicit
reference to the substantive elements of the criminal offense as

29

defined by state law.”

Id. at 324 n.16.

Critically, factual

issues determined by a state court (jurors included) are presumed
to be correct, and the petitioner bears the burden of rebutting
this presumption by clear and convincing evidence.

See Werts v.

Vaughn, 228 F.3d 178, 196 (3d Cir. 2000).
The Appellate Division’s decision was not contrary to or an
unreasonable application of this federal precedent.

Petitioner

argues that there was insufficient evidence presented at trial to
show, beyond a reasonable doubt, that he acted with extreme
indifference to human life when he stomped on Hoopes’s face and
head.

(Traverse, ECF No. 18, at 12.)

Division

found,

there

was

evidence

However, as the Appellate
presented

at

trial

that

demonstrated that Petitioner struck Hoopes intending to “put her
out of her misery.”

(App. Div. Op., ECF No. 11-7, at 17–18.)

The

Appellate Division, and the jury as evidenced by its verdict,
concluded that Petitioner acted with extreme indifference as to
whether Hoopes “lived or died.”

Petitioner has not met his burden

of rebutting these findings and, therefore, habeas relief on this
claim is denied.
ii.

Erroneous Jury Instruction

Jury instructions on the charges against a defendant in state
court are governed by state law.

See Estelle v. McGuire, 502 U.S.

62, 71–72 (1991) (“[T]he fact that the [jury] instruction was
allegedly incorrect under state law is not a basis for habeas
30

relief.”).

However, a defendant may challenge jury instructions

on habeas review if the instructions “violated some right which
was guaranteed to the defendant by the Fourteenth Amendment.” Cupp
v. Naughten, 414 U.S. 141, 146 (1973).

When reviewing jury

instructions, “a single instruction to a jury may not be judged in
artificial isolation, but must be viewed in the context of the
overall charge.”

Id. at 146–47.

Ultimately, the question is

“whether the ailing instruction by itself so infected the entire
trial that the resulting conviction violates due process.”

Id. at

147.
New Jersey law dictates that “juries may not consider lesserincluded
offense.”

offenses

until

they

have

acquitted

of

the

greater

State v. Cooper, 700 A.2d 306, 325 (N.J. 1997).

Thus,

sequential charges will often be used to “provide a framework for
orderly deliberations.”

Id. at 326 (quoting State v. Coyle, 574

A.2d 951, 966 (N.J. 1990)).
The Appellate Division reasonably concluded that the trial
court gave proper instructions to the jury.

The instructions

permitted the jury to convict on the lesser-included offenses of
aggravated manslaughter or reckless manslaughter depending on
whether it found that Petitioner acted with extreme indifference
to human life.

The trial court’s instruction to consider these

offenses sequentially did not preclude the jury from considering
the lesser-included offense of reckless manslaughter.
31

The jury

instructions did not deprive Petitioner of a fundamentally fair
trial in violation of his right to due process.
V.

CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or

judge issues a certificate of appealability, an appeal may not be
taken from a final order in a proceeding under 28 U.S.C. § 2254.
A certificate of appealability may issue “only if the applicant
has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). “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 the issues presented are adequate
to

deserve

encouragement

to

proceed

further.”

Miller-El

v.

Cockrell, 537 U.S. 322, 327 (2003).
For the reasons discussed above, Petitioner has not made a
substantial showing of the denial of a constitutional right.
Therefore, the Court will deny a certificate of appealability.
V.

CONCLUSION
In the accompanying Order filed herewith, the Petition for

habeas relief under 28 U.S.C. § 2254 is denied.

Dated: June 5, 2019
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

32