COOK v. CATHEL et al

Filing 32

OPINION. Signed by Judge Kevin McNulty on 11/22/2016. (ld, )

UNiTED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

THOMAHL COOK,
Petitioner,

Civ. No. 05-3916 (KM)

V.

PATRICK NOGAN, et al.,

OPINION

Respondents.

KEVIN MCNULTY. U.S.D.J.
I.

INTRODUCTION

The petitioner, Thomahl Cook, is a state prisoner proceeding pro se with an amended
petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. in 2000, Mr. Cook was

convicted by a jury of first-degree murder. He is currently serving a sixty-year sentence with a
thirty-year period of parole ineligibility. He asserts that his confession to the murder was
involuntary and that counsel rendered ineffective assistance, among other claims. For the
following reasons, the amended habeas petition will be denied.
II.

FACTUAL AND PROCEDURAL BACKGROUND’

Fifteen-year-old Katrina Suhan was murdered sometime in the
early morning hours of Saturday, February 14, 1998. She was seen
last on that date at about 12:30 a.m., walking home from Roller
Magic, a South Amboy roller-skating rink where she and her
girlfriends frequently skated. A friend who had been with her,
classmates driving by, and a security guard closing the rink, saw
her walking alone on Stevens Avenue in South Amboy. Ordinarily
it would have been at least a fifteen-minute walk from the rink to
her home. At sometime between 12:30 and 1:00 a.m., a resident of
Stevens Avenue heard a male and a female arguing outside his
window. The male voice was saying “Come on. Let’s go,” and the
The factual background is taken from the New Jersey Supreme Court’s 2004 decision on Mr. Cook’s
direct appeal. See State v. cook, 847 A.2d 530 (N.J. 2004).

female voice was saying, “No, I’m not going nowhere with you.”
Shortly thereafter, the resident thought he heard a scream come
from across the street. Another neighbor on Stevens Avenue also
heard a girl screaming, “Leave me alone. Don’t touch me. Help
me” at approximately 12:15 a.m. That resident testified that she
heard two male voices urging the girl to “shut up” and to “be
quiet.”
Katrina’s body was found on the afternoon of Sunday, February 15
in a rough wooded lot behind the Hill Lanes bowling alley located
in the neighboring town of Old Bridge. The bowling alley was
approximately three miles from where Katrina was last seen. She
had been brutally beaten. Her body was positioned face downward
and a jacket covered her head; her pants had been pulled below her
waist. Large pieces of concrete lay atop her hands and head and an
overturned red shopping cart was situated in front of, and partially
on, her body. A trail of blood led to the body and to several rocks
near her head. A forensic pathologist expressed the view that
Katrina died of blunt trauma injury to the head. There was injury
also to her left breast that was consistent with a bite mark; there
were no other physical signs of sexual assault.
Defendant, who was twenty-four years old at the time of the
murder, had been known to go to the roller rink in South Amboy
and had been observed interacting with Katrina while there. [FN 1)
Heather McKnight, who was defendant’s girlfriend, Donna
Pascale, Heather’s fellow tenant in Agape House (a home for
young females located in Somerville), and Robert Poquette, a
tenant at the Somerville boarding home in which defendant
resided, all testified that on the night Katrina was murdered
defendant was looking for transportation to the South Amboy
roller rink. According to Pascale, defendant told her that a friend
had agreed to drive him to the rink. McKnight testified that
defendant told her that he was going to the rink with a friend
named “Noal.” Apparently, McKnight was not planning to be with
defendant that night as she intended to stay with her sister, who
lived out of town, from Friday afternoon to Sunday afternoon.
[FN 1] A friend of Katrina’s Heather Stonbely,
testified to interactions that she had observed
between defendant and Katrina several months
before the murder when the two girls had been at
the roller rink.
The record reveals certain information from third parties
concerning defendant’s whereabouts during the evening of Friday,
2

February 13, 1998. At approximately 9:45 p.m. that night,
defendant encountered fourteen-year-old T.S., and two of her
friends, at the Bridgewater Commons Mall. T.S. testified that she
spoke with defendant at the mall for twenty minutes to a half hour
before all five departed, on foot. While walking to T.S.’s home,
defendant commented to T. S. that she reminded him of “Kat,” a
shorthand reference that T.S. took to mean “Katrina.” During the
walk defendant also told her he was going to a skating rink in
South Amboy to scare someone. T.S. recalled that she entered her
home sometime between midnight and 12:30 a.m. that night, and
defendant left on foot five or ten minutes before she entered the
house. T.S.’s mother corroborated that her daughter arrived home
at approximately midnight that evening.
Both McKnight and Pascale saw defendant on Sunday, February
15. Pascale observed that defendant had cuts on one of his hands
and that his knuckles were swollen, and McKnight testified that
defendant’s right arm appeared to be injured. On Monday February
16, Pascale went to the Somerville police to report her suspicion
that defendant was involved in the publicized murder of the girl
from the roller rink.
At approximately 9:30 p.m. that evening, defendant was arrested
on the basis of two outstanding municipal warrants. {FN 2] He was
transported to police headquarters in Somerville for questioning
about the Suhan murder. In reviewing the record concerning
defendant’s interrogation, we focus here on the evidence presented
pre-trial at defendant’s Miranda hearing. There are no video or
audio tapes of defendant’s custodial interrogations. The entire
record consists of the reports of the investigating officers and their
testimony at the Miranda hearing. [FN 3]
[FN 2] Defendant was arrested on an outstanding
municipal warrant issued by the Red Bank Borough
Municipal Court on January 7, 1993, and another
warrant issued by the Sayreville Municipal Court on
October 8, 1997.
[FN 3] Apparently, once each officer prepared his
report he destroyed his notes from the interrogation
sessions, a practice that is apparently common, but
one that we disapprove of.
The first interrogation was conducted by Detective William
Moscariotola of the Old Bridge Township Police Department and
by Investigator John Maslak of the Middlesex County Prosecutor’s
3

Office. The interrogation began at approximately 9:50 p.m. on
February 16, after defendant was advised of his Miranda rights and
acknowledged that he understood them. When the officers began
questioning defendant concerning his whereabouts during the past
weekend, the officers did not tell him that he was being questioned
about the murder victim found in Old Bridge. In response to
questioning, defendant told the officers that he had not been to the
South Amboy roller rink since the Columbus Day weekend of the
previous fall. He was then asked whether he had been to the Old
Bridge bowling alley during the past weekend. He informed the
officers that he had stopped there with McKnight in order for her
to use a telephone. He was unclear in respect of who was driving.
He told the two interrogating officers that while McKnight was
using the phone he had gone into the wooded area behind the
building to relieve himself. There he saw a “pile” that he said had a
foul smell and contained “something red and that this red thing had
a right angle.” After approximately ninety minutes of questioning,
defendant asked whether the interview had anything to do with the
girl missing from the roller rink. The officers told him that it did,
and they then confronted him with the fact that McKnight had been
out of town for the weekend.
The interrogation continued and defendant became increasingly
emotional, nervous, and halting in his responses. At one point,
defendant began to cry and told Moscariotola that, “she freaked me
out. I don’t know what happened.” A break was taken. When the
interview resumed both officers were present in the room.
Defendant, appearing to have collected himself, recanted his earlier
statement, instead claiming that he had said, “it freaked me out.” A
short while later defendant was shown a picture of Katrina’s body
taken at the crime scene. According to both officers, defendant’s
comment, when shown the photo, was: “I didn’t sexually abuse that
girl.” The officers terminated the interview at approximately three
o’clock in the morning.
During the course of that initial interview defendant was offered a
beverage and bathroom break after about two hours of questioning.
Also, at approximately 2:15 a.m., after defendant had signed a
consent form permitting the search of his room, a beverage was
provided to him again and Miranda warnings were readministered.
Although a tape recorder was available during the interview, the
officers did not tape any portion of the interrogation. After that
initial interrogation, defendant was transported to the Middlesex
County Adult Correctional Facility in North Brunswick and held
on the municipal warrants.

4

Defendant’s second interrogation commenced at approximately
10:40 a.m. on Wednesday, February 18, at the detention facility in
which he was being held. This interrogation was conducted by
Maslak alone. Defendant was given fresh Miranda warnings and,
then, during a two-hour interview, defendant recounted a version
of his whereabouts that differed from that given in his first
interview. As the questioning continued, he altered further the
version he had just provided to Maslak. Essentially, defendant
provided two conflicting but exculpatory statements placing
himself far from the scene of the crime. At that point, defendant
was asked and consented to have a polygraph test administered to
him.
Investigator Angelini, a polygraph expert, was brought in. He
conducted (what the motion court later considered to be) the third
interrogation of defendant, which concluded at about 3:30 p.m.
While alone with defendant, Angelini administered a pre-test
polygraph and polygraph of defendant after defendant first was
given fresh Miranda warnings and he signed consent forms for the
test. Defendant’s statements during this portion of the interrogation
were not submitted for admission. This third interrogation is
relevant only because the negative results of the polygraph were
made known to defendant during the fourth and final interrogation.
The fourth interrogation started at about 3:30 p.m. Both Angelini
and Maslak were present during this session in which defendant
made his most incriminatory statements. They reported that
defendant appeared cooperative and responsive at first. Twenty
minutes into the interview, he was told that he had “failed” the
polygraph test. According to Angelini, after defendant heard that,
he became more pensive, withdrawn, and not as responsive as he
had been during the polygraph. His responses to questions became
extremely delayed. It was reported that he would take as long as
five minutes before responding to a question, often putting his
hand to his head as he appeared to think about how to answer.
During this fourth session, which lasted until approximately 8:00
p.m., defendant gave another version of his whereabouts the
evening of Katrina’s murder. He stated that he went with a man
named “Russ” in a gold colored van to the Old Bridge bowling
alley vicinity. Later, he told the officers that “Russ” took him to
South Amboy and they both took Katrina in the van to Old Bridge,
and alternatively that he did not know how he got to South Amboy
but he remembered being on Stevens Avenue and seeing Katrina.
In one version, it was “Russ” who allegedly attacked Katrina.
During the questioning, defendant became emotional and started
crying, trembling, and moaning.
5

Ultimately, defendant told the officers that he killed Katrina. He
told them that he approached Katrina when she was walking home
from the rink. He stated that after meeting up with her on Stevens
Avenue near the church on that street, he walked her to the field
located behind the Old Bridge bowling alley where he made sexual
advances toward her. When she spurned him, he became enraged
and struck her in the face with his fist. According to the officers,
defendant said, “She was scared. Her eyes kept looking at me. I
didn’t want to see her eyes. I didn’t want her eyes to see me.”
Defendant struck her in the face repeatedly with a two-by-four
board that he took from a nearby pile of debris. He then hit her
head with a rock four or five times. Believing Katrina to be dead,
defendant dragged her body deeper into the field.
The officers did not record electronically the interrogation sessions
that took place on February 18. Each officer conceded at trial that a
statement by an interviewee normally would be taped; however,
due to defendant’s emotional state, the disjointed nature of his
responses to questions posed, and his repeated recanting or
changing of his story, they believed it preferable to make a written
report of the interrogation rather than to attempt an electronically
taped statement. We note here that during the overall nine-hour
period in which defendant was questioned on February 18, he was
provided with lunch (which he ate), dinner (which he declined,
preferring to have only a beverage), and beverage breaks and
cigarettes. Moreover, although lengthy, the interrogation was
conducted during regular daytime hours.
Defendant was charged under Middlesex County Indictment No.
98—11—01562 with purposeful or knowing murder, in violation of
N.J.S.A. 2C:1 1—3a(l) and —3a(2). A Miranda hearing was
conducted in which the State sought, over defendant’s objection,
the admission of defendant’s inculpatory statements. After
reviewing in summary fashion the details of each segment of
defendant’s interrogation, the court ruled the statements made
during the first, second, and fourth interrogations to be admissible.
As noted, the State was not seeking the admission of any
statements made during the third (polygraph) portion of the
interrogation. The motion court found that the required Miranda
warnings had been provided, defendant had understood those
warnings, and he had knowingly and intelligently waived his
rights. The court also determined that defendant’s statements had
been made voluntarily. In the course of making its findings, the
court noted defendant’s high school education and that he had not
been subjected to any physical or mental abuse. The court found it
6

understandable and consistent with common sense that defendant
became more emotional as his statements became more
inculpatory.
Defendant also moved in limine for permission to introduce
evidence of the subsequent January 17, 1999, murder of Nancy
Noga, which had occurred while defendant was incarcerated. Noga
was close in age to Katrina. Noga’s body was found near to where
she worked, in a location approximately one mile from where
Katrina’s body was found. The court refused to admit the evidence,
concluding that it was too speculative notwithstanding some
similarities between the murders.
Defendant was found guilty of purposeful and knowing murder
following an eight-day jury trial.
Cook, 847 A.2d 530, 534—37.
The New Jersey Superior Court, Appellate Division, affirmed Mr. Cook’s conviction, but
remanded for resentencing. The New Jersey Supreme Court granted Mr. Cook’s certification
2
petition and ultimately affirmed the judgment of the Appellate Division. See Cook, 847 A.2d
530.
Mr. Cook filed a petition for post-conviction relief (“PCR”). That PCR petition primarily
raised claims of ineffective assistance of counsel. The PCR petition was denied without an
evidentiary hearing on September 10, 2010, for the reasons earlier expressed by the state court
on the record on August 30, 2010. (See Dkt. Nos. 28-10 & 31-7) Mr. Cook then appealed that
denial to the Appellate Division, which affirmed on December 7, 2012. (See Dkt. No. 29-3) The
New Jersey Supreme Court denied certification on June 7, 2013. (See Dkt. No. 29-7)
As Mr. Cook’s PCR proceedings were working their way through the state courts, in
August 2005, he filed a federal habeas petition in this Court through Ms. Marcia Blum, Esq., of
the state’s Public Defender Office. The matter was initially assigned to District Judge Faith S.

2

On remand, Mr. Cook received a sentence of sixty years with a thirty-year period of parole ineligibility.
7

Hochberg. On December 8, 2005, Judge Hochberg stayed these federal habeas proceedings
pursuant to Rhines v. Weber, 544 U.S. 269 (2005). Mr. Cook was advised to return to this Court
by filing a motion to reopen within thirty days after completion of his PCR proceedings. (See
Dkt. No. 9)
In October 2013, Mr. Cook sought to reopen this action by filing apro se letter. (See Dkt.
No. 10) However, this case was not reopened at that time. Thereafter, on February 18, 2015, this
Court received Mr. Cook’s pro se motion to reopen this case and motion for leave to file an
amended petition. (See Dkt. No. 11) On March 17, 2015, Chief Judge Simandle reassigned this
case to me, Judge Hochberg having retired in the interim. (See Dkt. No. 12)
On March 31, 2015, this Court issued a memorandum and order. (See Dkt. No. 13) The
Order noted that although Ms. Bluin was still Mr. Cook’s counsel of record, he had filed his
motion to reopenpro Se. Ms. Blum was ordered to either: (a) file a motion to reopen on Mr.
Cook’s behalf; (b) state why such a motion would not be appropriate; or (c) file a motion to
withdraw as Mr. Cook’s counsel.
Thereafter, on April 20, 2015, Ms. Blum filed a motion to withdraw. (See Dkt. No. 15)
On April 29, 2015, the motion to withdraw was granted. (See Dkt. No. 16)1 granted petitioner’s
motion to amend his habeas petition and ordered respondents to file a response to the amended
habeas petition. (See id.) The amended habeas petition raises the following claims:
1. Mr. Cook’s confession should have been suppressed because it was involuntary and was
obtained only after his will was overborne (“Claim I”).
2. Mr. Cook’s statements should be suppressed because he did not knowingly, intelligently
and voluntarily waive his right to remain silent at the interrogation sessions (“Claim II”).

8

3. The confession should have been excluded because it was uncorroborated and the motion
for a judgment of acquittal should have been granted because without the confession,
there was insufficient evidence to sustain the murder conviction against Mr. Cook
(“Claim III”).
4. The trial court violated Mr. Cook’s right to due process and right to present a defense
when it prohibited him from presenting evidence that someone else may have committed
the offense (“Claim IV”).
5. Ineffective assistance of counsel for failing to effectively pursue an alibi defense (“Claim

V”).
6. Ineffective assistance of counsel for failing to present testimony that supported a thirdparty guilty defense (“Claim VI”).
7. Ineffective assistance of counsel for failing to object to Heather Stonbely’s testimony
arising out of late discovery or by failing to request a continuance or present evidence to
contradict her testimony (“Claim VII”).
8. Ineffective assistance of counsel for failing to request that the trial court instruct the jury
regarding corroboration of the confession to police (“Claim VIII”).
9. Ineffective assistance of counsel by presenting a defense through cross-examination as it
was detrimental (“Claim IX”).
10. The accumulation of errors violated Mr. Cook’s right to due process andlor effective
assistance (“Claim X”).
Respondents ultimately filed a response in opposition to the amended habeas petition on
September 9, 2015. (See Dkt. Nos. 25-3 1) Mr. Cook did not file a reply in support of his habeas
petition.

9

III.

HABEAS CORPUS

-

LEGAL STANDARD

A writ of habeas corpus for a person in custody under judgment of a state court can be
granted only for violations of the Constitution, laws or treaties of the United States. See Engle v.
Isaac, 456 U.S. 107, 119 (1982); see also Mason v. Myers, 208 F.3d 414, 415 n.l (3d Cir.2000)
(citing 28 U.S.C.

§ 2254). Because Mr. Cook filed his petition for writ of habeas corpus after

April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L.
104—132, 110 Stat. 1214 (Apr. 24, 1996), applies. See Lindh v. Murphy, 521 U.S. 320, 326
(1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the
merits in state court proceedings unless the state court’s 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 state court. See 28 U.S.C.

§ 2254(d).

As a threshold matter, a court must “first decide what constitutes ‘clearly established
Federal law, as determined by the Supreme Court of the United States.” Lockyer v. Andrade,
538 U.S. 63, 71(2003) (quoting 28 U.S.C.
under

§ 2254(d)(1)). “[C]learly established federal law’

§ 2254(d)(1) is the governing legal principle set forth by the Supreme Court at the time the

state court renders its decision.” Id. (citations omitted). And, having identified the governing
principle of federal law, a habeas court must also ask whether the state court’s application of
clearly established federal law was “objectively unreasonable.” See Williams v. Taylor, 529 U.S.
362, 409 (2000). Thus, “a federal court may not issue a writ simply because the court concludes
in its independent judgment that the relevant state court decision applied clearly established

10

federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at
411.
The AEDPA standard under

§ 2254(d) is a “difficult” one to meet; it is a “highly

deferential standard for evaluating state-court rulings, which demands that state-court decisions
be given the benefit of the doubt.” Cullen v. Pinhoister, 563 U.S. 170, 181 (2011). Review under

§ 2254(d)(1) “is limited to the record that was before the state court that adjudicated the claim on
the merits.” Id.
In applying AEDPA’s standards, the relevant state court decision that is appropriate for
federal habeas corpus review is the last reasoned state court decision. See Bond v. Beard, 539
F.3d 256, 289—90 (3d Cir.2008). “Where there has been one reasoned state judgment rejecting a
federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest
upon the same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); see also Hittman v.
Chatnian, 135 S. Ct. 2126, 2128 (2015) (Ginsburg, J., concurring in denial of certiorari) (“There
is no reason not to ‘look through’ such adjudications, as well, to determine the particular reasons
why the state court rejected the claim on the merits.”); Blystone v. Horn, 664 F.3d 397, 417 n.15
(3d Cir. 2011). AEDPA deference remains appropriate, even as to summary state court rulings;
“When a federal claim has been presented to a state court and the state court has denied relief, it
may be presumed that the state court adjudicated the claim on the merits in the absence of any
indication or statelaw procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86,
99(2011) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)).

11

IV.
A. Claim I

—

DISCUSSION

Voluntariness of confession

In Claim I, Mr. Cook asserts that his confession should have been suppressed because it
was not voluntary. The last reasoned decision on this claim was on direct appeal to the New
Jersey Supreme Court, which analyzed the claim as follows:
[T]he State must demonstrate the voluntariness of a confession
beyond a reasonable doubt. State v. Galloway, 133 N.J. 631, 654,
628 A.2d 735 (1993). An involuntary confession can result from
physical or psychological coercion. Ibid. However, unlike the use
of physical coercion, use of psychologically oriented interrogation
techniques is not inherently coercive. Ibid. Confessions are not
voluntary if derived from “very substantial” psychological
pressures that overbear the suspect’s will. Id. at 656, 628 A.2d 735.
In determining whether a defendant’s will was overborne, the
totality of the circumstances must be examined, “including both
the characteristics of the defendant and the nature of the
interrogation.” Id. at 654, 628 A.2d 735. Relevant factors include
“the suspect’s age, education and intelligence, advice concerning
constitutional rights, length of detention, whether the questioning
was repeated and prolonged in nature, and whether physical
punishment and mental exhaustion were involved.” Ibid. (citing
Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041,
2047—48, 36 L. Ed. 2d 854, 862 (1973); State v. Miller, 76 N.J.
392, 402, 388 A.2d 218 (1978)).
At the suppression hearing in this case, the trial court considered
many of those factors:
It is clear from the testimony that defendant went
through a serious emotional experience in giving
this statement. With intermittent breaks, he was
questioned by two different officers over a ninehour period. At no time did he request to stop or ask
for a lawyer. He was given drinks and cigarettes.
[He] was apparently given bathroom breaks and
there is no evidence that promises were made to
him.
The defendant was a high school graduate. There
was no indication that he was unwilling to speak,
nor that he was excessively tired. The interrogation,
12

although lengthy, it was all during the general work
day, and there was no indication that he was sleep
deprived, or that he was in any way physically or
mentally abused. He was given breaks, had one
meal and refused another. Although he was
emotionally distraught, his will was not overborne.
The emotional distress seems more related to the
horrible things he was admitting than to anything
else.
The trial court applied the correct standards and amply explained
its application of those standards when evaluating defendant’s
condition while he was interrogated. We agree with the trial court’s
conclusion, affirmed by the Appellate Division, that defendant has
not shown that he was subject to substantial psychological pressure
warranting suppression of his statements. We see no reason to add
to the evaluation of the trial court, and therefore reject the
argument advanced by defendant.
Cook, 847 A.2d 530, 547—48.
“Only confessions that are voluntary may be admitted into evidence at a criminal trial[.]”
United States v. Andrews, 231 F. App’x 174, 176 (3d Cir. 2007) (citing United States v. Swint, 15
F.3d 286, 288-89 (3d Cir. 1994)). “A confession is voluntary when it is the “product of an
essentially free and unconstrained choice by its maker,’ that it was ‘the product of a rational
intellect and a free will,’ and that the appellant’s will was not overborne.” Id. (quoting Swint, 15
F.3d at 289 (citing United States ex re. Hayward v. Johnson, 508 F.2d 322, 326 (3d Cir. 1975)).
In determining the voluntariness of a confession, “the court must consider the effect that the
totality of the circumstances had upon the will of the defendant.” Miller v. Fenton, 796 F.2d 598,
604 (3d Cir. 1986) (citations omitted); see also Andrews, 231 F. App’x at 176. A court must
examine various factors in making this determination, such as:
the youth of the accused; his lack of education or his low
intelligence; the lack of any advice to the accused of his
constitutional rights; the length of detention; the repeated and
prolonged nature of questioning; and the use of physical
punishment such as the deprivation of food or sleep.
13

Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973) (citations omitted).
The New Jersey Supreme Court appropriately cited and applied the applicable legal
standards in deciding this claim. Its decision that Mr. Cook’s will was not overborne during the
course of the interrogations was grounded in the factual record as illustrated in the Miranda

hearing transcript (see Dkt. No. 29-8), and subsequent decision by the trial judge (see Dkt. No.
29-9). Mr. Cook was questioned for approximately five hours during the late evening and early
th th,
th•
morning hours of February 1 6 1 7 and then for nine or ten hours on February 1 8 Mr. Cook

made incriminating statements during the February 6-

th
7

interrogation and confessed to the

th
murder during the February 1 8 interrogation. While each interrogation lasted for hours, the

length of each interrogation is but one factor that a court needs to examine when determining
whether a petitioner’s will has been overborne.
The New Jersey Supreme Court properly examined the totality of the circumstances. Those
circumstances included the fact that Mr. Cook had a high school education; was not sleep
deprived; was given a meal, drinks and cigarettes; was permitted to use the bathroom; was not
given any promises or subjected to psychological manipulation; and never requested that
questioning should cease. Thus, the New Jersey Supreme Court’s decision that Mr. Cook’s will
was not overborne was based in the facts of record. It was not based on an unreasonable
determination of the facts. See, e.g., Cunningham

i’.

City of Wenatchee, 345 F.3d 802, 810 (9th

Cir. 2003) (“Perez’s interrogation as demonstrated by the pretrial record did not undermine
Cunningham’s free will. While it is true that the interrogation lasted for eight hours, Perez did
not refuse to give Cunningham a break for food or water. Perez also never yelled and failed to
use violence or the threat of violence.”); United States v. Lehamn, 468 F.2d 93, 101(7th Cir.

14

1972) (vigorous interrogation with only slight disruptions for eight hours does not mean
statements were coereced).
Accordingly, Mr. Cook is not entitled to federal habeas relief on Claim 1.
B. Claim II— Waiver of right to remain silent
In Claim II, Mr. Cook makes the distinct claim that his statements to police should have
been suppressed because the State did not establish beyond a reasonable doubt that he voluntarily
waived his right to remain silent. He does not deny that he received Miranda warnings, but does
deny that he waived his rights.
Mr. Cook raised this issue on direct appeal. The last reasoned decision on this claim was
from the New Jersey Superior Court, Appellate Division, which expressly rejected it as
“factually unsupported.” (See Dkt. No. 27-1 at p.12)
The denial of this claim by the state courts was not an unreasonable application of clearly
established federal law, nor was it based on an unreasonable determination of the facts. In
Miranda v. Arizona, 384 U.S. 436, 479 (1966), the United States Supreme Court formulated the
now-familiar warning that must be given to a suspect before the suspect can be subjected to
custodial interrogation:
He must be warned prior to any questioning that he has the right to
remain silent, that anything he says can be used against him in a
court of law, that he has the right to the presence of an attorney,
and that if he cannot afford an attorney one will be appointed for
him prior to any questioning if he so desires.
Post-warning, there must be a waiver if subsequent statements are to be admitted:
After such warnings have been given, and such opportunity
afforded him, the individual may knowingly and intelligently
waive these rights and agree to answer questions or make a
statement. But unless and until such warnings and waiver are
demonstrated by the prosecution at trial, no evidence obtained as a
result of interrogation can be used against him

15

Id.
A valid waiver has two distinct dimensions; it must be both voluntary and informed:
First, the relinquishment of the right must have been voluntary in
the sense that it was the product of a free and deliberate choice
rather than intimidation, coercion, or deception. Second, the waiver
must have been made with a full awareness of both the nature of
the right being abandoned and the consequences of the decision to
abandon it. Only if the “totality of the circumstances surrounding
the interrogation” reveal both an uncoerced choice and the
requisite level of comprehension may a court properly conclude
that the Miranda rights have been waived. Fare v. Michael C., 442
U.S. 707, 725 (1979). See also North Carolina v. Butler, 441 U.S.
369, 374—75 (1979).
Moran v. Burbine, 475 U.S. 412, 421 (1986). A Miranda waiver need not be express; an implied
waiver, if demonstrated, is sufficient. See Berghuis v. Thompkins, 560 U.S. 370, 384 (2010). A
waiver may be implied “through ‘the defendant’s silence, coupled with an understanding of his
rights and a course of conduct indicating waiver.” Id. (quoting North Carolina v. Butler, 441
U.S. 369, 373 (1979)). Nevertheless,
[ijf the State establishes that a Miranda warning was given and the
accused made an uncoerced statement, this showing, standing
alone, is insufficient to demonstrate “a valid waiver” of Miranda
rights. Miranda, supra, at 475, 86 S. Ct. 1602. The prosecution
must make the additional showing that the accused understood
Where the prosecution shows that a Miranda
these rights.
warning was given and that it was understood by the accused, an
accused’s uncoerced statement establishes an implied waiver of the
right to remain silent.
.

.

.

Berghuis, 560 U.S. at 384. “In sum, a suspect who has received and understood the Miranda
warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an
uncoerced statement to the police.” Id. at 388—89.
Mr. Cook was orally advised of his Miranda rights at the first interrogation session on
February

l6t1.

(See Dkt. No. 29-8 at p.9) Mr. Cook stated that he understood those rights. (See

id.) Thereafter, Mr. Cook waived his right to remain silent by making voluntary statements to the
16

police. Mr. Cook did not indicate to the police during this interrogation that he wanted to stop.
(Seeid. atp.13l4)
1h
8
Mr. Cook was again advised of his Miranda rights at the beginning of the February I

interrogation. He signed the Miranda card and indicated that he understood his rights. (See id. at

p.50) Thereafter, Mr. Cook again waived his right to remain silent by making voluntary
statements to the police. Mr. Cook did not ask the police to stop the interrogation. (See id. at
p.80)
Accordingly, Mr. Cook is not entitled to federal habeas relief on Claim II. There was
ample support in the record for the conclusion that he waived his Miranda rights. The state court
finding that this claim lacked a factual basis was not unreasonable.
C. Claim III

—

Uncorroborated confession

In Claim III, Mr. Cook asserts that his confession should have been excluded because it
was uncorroborated. It follows, he argues, that the court should have granted his judgment of
acquittal because without the confession, the evidence was insufficient. The last reasoned
decision on this claim was on direct appeal to the New Jersey Supreme Court, which analyzed
the claim as follows:
Defendant also contends that his confession should have been
excluded because it is uncorroborated, and that his motion for
judgment of acquittal should have been granted. When the State
seeks to introduce a confession into evidence, “some corroboration
is required as a matter of law but if there is such corroboration, [it
is for] the jury [to] resolve ‘arguments and speculation’ about its
weight and sufficiency.” State v. DiFrisco, 118 N.J. 253, 271—72,
571 A.2d 914 (1990), cert. denied, DiFrisco v. New Jersey, 537
U.S. 1220, 123 S. Ct. 1323, 154 L. Ed. 2d 1076. Commentators
have noted that “New Jersey’s requirements are narrow with
respect to the quantum of evidence required to establish
corroboration” of a confession offered by the State for the truth of
its contents. 7 J. Wigmore, Wigmore on Evidence, § 2071, at 515 n.
3 (Chadbourn rev. 1978) (citing Lucas, supra, 30 N.J. 37, 152 A.2d
17

50; State v. Johnson, 31 N.J. 489, 158 A.2d 11(1960)), quoted in
DiFrisco, supra, 118 N.J. at 273, 571 A.2d 914. Under that
standard
the State must produce only “independent proof
of facts and circumstances which strengthen or
bolster the confession and tend to generate a belief
in its trustworthiness.” Lucas, supra, 30 N.J. at 56[,
152 A.2d 50].... Or, in other words, “[ajil elements
of the offense must be established by independent
evidence or corroborated admissions, but one
available mode of corroboration is for independent
evidence to bolster the confession itself and thereby
prove the offense ‘through’ the statements of the
accused.”
...

[Mancine, supra, 124 N.J. at 251, 590 A.2d 1107
(quoting DiFrisco, supra, 118 N.J. at 273, 571 A.2d
914 (quoting Smith v. Un ited States, 348 U.S. 147,
156, 75 S. Ct. 194, 199, 99 L. Ed. 192, 200—01
(1954))).]
Our corroboration standard requires that the trial court “determine
whether there is any legal evidence, apart from the confession of
facts and circumstances, from which the jury might draw an
inference that the confession is trustworthy.” Lucas, supra, 30 N.J.
at 62, 152 A.2d 50. The corroboration requirement has both legal
and factual components. As a matter of law, the trial court initially
must determine whether the State has presented independent
corroborative evidence of the trustworthiness of the confession. If
the State presents “some” corroboration, DiFrisco, supra, 118 N.J.
at 271, 571 A.2d 914, the confession is submitted to the fact finder
to “resolve arguments and speculation about its weight and
sufficiency.” Id. at 272, 571 A.2d 914 (internal quotation marks
omitted).
As noted by the Appellate Division, the State met its burden,
producing more than sufficient evidence to corroborate the
substance of defendant’s confession for purposes of sending the
question of its reliability to the jury for determination. The State’s
witnesses testified about where Suhan’s body was discovered and
the injuries she suffered, which information corresponded to
defendant’s statements about his presence at the body’s location
and what he observed, specifically his reference to the “red thing”
nearby the pile he saw there, and his description of the manner in
which he attacked Suhan. Furthermore, multiple witnesses testified
18

about defendant’s expressed desire to go to the roller rink on the
night of the crime, and one observed injuries to defendant’s right
hand the day after the murder occurred. We conclude that the State
presented the corroboration required under Lucas and DiFrisco,
and that the trial court properly let the jury resolve how much
weight the confession should be given.
Cook, 847 A.2d 530, 548—49.
At the outset, it does not appear that Mr. Cook’s argument presents a constitutional claim.
It is not a rule of federal law, but rather of New Jersey criminal law, that he invokes in support of
the contention that “an uncorroborated extrajudicial confession cannot provide the evidential
basis to sustain a conviction.” State v. Lucas, 30 N.J. 37, 51, 152 A.2d 50 (1959). This is a
version of the old corpus delicti principle. At least one court in this District, citing appropriate
case law, notes that “[C] ase law suggests.

.

.

that this rule is not constitutionally based, and

therefore a ‘violation’ of the uncorroborated confession rule may not amount to a violation
cognizable on habeas review.” Reddick v. Warren, No. 12-7875, 2016 WL 29261, at *12
(D.N.J. Jan. 4, 2016) (citing Bennett v. Ricci, No. 06-3583, 2007 WL 2444118, at *17 (D.N.J.
Aug. 22, 2007)); see also Johnson v. Williams, No. 14-4196, 2015 WL 2452828, at *6 (N.D. 111.
May 20, 2015) (finding claim that confession was not corroborated was not cognizable in 2254
action because “Illinois’ corpus delicti rule is not required by the United States Constitution.”)
(citation omitted); Lindsey v. Keith, No. 13-2912, 2014 WL 5448945, at *11 (W.D. La. Oct. 21,
2014) (“[S]tate rule of corpus delecti ‘has no independent constitutional footing’ and is not
controlling on collateral review before this Court.”) (quoting Autry v. Estelle, 706 F.2d 1394,
1407 (5th Cir. 1983)); Carter v. Poole, No. 04-1386, 2008 WL 2949385, at *18 (N.D.N.Y. July
30, 2008) (claim that confession was not corroborated as required by state law not cognizable on
federal habeas review because it is a “a state law requirement that embodies no federal
constitutional principle.”) (internal quotation marks and citations omitted).
19

Even assuming that there is some constitutional dimension to the corroboration rule, Mr.
Cook failed to show that the state court’s denial of this claim was based on an unreasonable
determination of the facts. The state court declined to accept the premise of Mr. Cook’s
argument; it found that there had indeed been corroboration, and that finding was not
unreasonable in light of the record. For example, Mr. Cook’s confession included the location of
Katrina Suhan’s body. His description of how he killed her was consistent with her injuries. The
injuries to his own hand and knuckles were likewise consistent with the confession and the
circumstances of the murder.
Within Claim III, Mr. Cook also asserts that the conviction, setting aside his confession,
was against the weight of the evidence. I have already ruled that the confession would not be set
aside. In any event, however, the New Jersey Supreme Court permissibly rejected that claim in
the following terms:
Moreover, it was for the jury to evaluate the strength of that
evidence, weighed against the State’s failure to demonstrate
definitively how defendant got to South Amboy. And, although
sketchy, there was evidence that defendant could drive
(notwithstanding his lack of a driver’s license), and that there was
adequate time for him to have gotten from Somerville to South
Amboy. Thus, although defendant never argued at trial that the
jury’s conviction was against the weight of the evidence, not
having moved for a new trial on this ground in a timely manner,
see Rule 2:1 0—I, defendant has not proven that the guilty verdict
was a manifest denial ofjustice. We reject defendant’s separate
argument that the verdict was against the weight of the evidence.
Cook, 847 A.2d at 549.
The Due Process Clause of the Fourteenth Amendment “protects the accused against
conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the
crime for with which he is charged.” liz re Winship, 397 U.S. 358, 364 (1970). There is sufficient
evidence to support a conviction, if “after viewing the evidence in the light most favorable to the
20

prosecution, any 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). A petitioner raising
an insufficiency of the evidence claim faces a “very heavy burden’ to overturn the jury’s verdict
for insufficiency of the evidence.” United States v. Root, 585 F.3d 145, 157 (3d Cir. 2009) (citing
United States v. Dent, 149 F.3d 180, 187 (3d Cir.1998)). In analyzing a sufficiency of the
evidence claim, a court examines both the direct and circumstantial evidence in their totality. See
United States v. Pavulak, 700 F.3d 651, 668 (3d Cir. 2012) (citations omitted).
Considering the confession, as well other evidence produced at trial, and viewing it in the
light most favorable to the prosecution, I am unable to conclude that the New Jersey Supreme
Court’s denial of this claim was an unreasonable application of clearly established federal law or
that it rested on an unreasonable determination of the facts. See, e.g., Yates v. Rivera, No. 031057, 2007 WL 2027284, at *5..7 (N.D.N.Y. July 9, 2007) (“Based upon the evidence adduced at
trial, including petitioner’s own confession and the medical evidence revealing [victim’s injuries],
petitioner has not demonstrated that [Appellate Division’s] decision rejecting [petitioner’s]
insufficiency claim is either contrary to, or represents an unreasonable application of, Jackson
and its progeny”).
Mr. Cook is not entitled to federal habeas relief on either of his arguments within Claim
III.
D. Claim IV

—

Exclusion of “reverse 404(b)” evidence of Noga murder

In Claim IV, Mr. Cook asserts that an evidentiary ruling of the trial court violated his
right to due process by impairing his presentation of a complete defense. Specifically, he faults
the trial court’s exclusion of evidence of another murder which, he says, tended to suggest that
that unknown murderer, and not Mr. Cook, murdered Katrina Suhan.

21

The last reasoned decision on this claim was on direct appeal to the New Jersey Supreme
Court, which analyzed the claim as follows:
Defendant also argues that he was denied a fair trial because he
was prevented from making a presentation to the jury concerning
evidence of a similar murder, committed while defendant was
incarcerated, that would have presented the prospect of third-party
guilt. A defendant is entitled to introduce evidence that another
person committed the crime or crimes of which the defendant is
charged. State v. Jimenez, 175 N.J. 475, 486, 815 A.2d 976 (2003).
Often a defendant attempts to place responsibility for the crime on
a specific third party. See State v. Koedatich, 112 N.J. 225, 297—
312, 548 A.2d 939 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct.
813, 102 L. Ed. 2d 803 (1989). A corollary is the situation
presented here in which a defendant seeks to introduce similar
“other-crimes evidence defensively.” State v. Garfole, 76 N.J. 445,
453, 388 A.2d 587 (1978) (Garfole I). The standard for introducing
defensive other-crimes evidence is lower than the standard
imposed on “the State when such evidence is used incriminatorily
[because] when the defendant is offering that proof exculpatorily,
prejudice to the defendant is no longer a factor, and simple
relevance to guilt or innocence should suffice as the standard of
admissibility.” Id. at 452—53, 388 A.2d 587.
Even if defensive other-crimes evidence passes the “simple”
relevancy test, however, a court must still consider whether” ‘its
probative value is substantially outweighed by the risk that its
admission will either (a) necessitate undue consumption of time or
(b) create substantial danger of confusing the issues or of
misleading the jury.’ “Id. at 455—56, 388 A.2d 587 (quoting
former Evid. R. 4). Thus, a trial court must analyze the proffered
defensive other-crimes evidence pursuant to N.J.R.E. 403. In
Garfole I, we characterized the trial court’s determination on the
admissibility of defensive other-crimes evidence as “highly
discretionary,” depending as it does on the weighing and balancing
of the various Rule 403 factors. Id. at 457, 388 A.2d 587. Accord
State v. Bull, 268 N.J. Super. 504, 51 1—13, 634 A.2d 101
(App.Div.1993) (holding that, under “highly discretionary”
standard, trial court’s refusal to admit portion of defensive “other
crimes” evidence at most was harmless error).
...

Gaifole I is instructive. In that case the defendant was charged in
relation to five incidents involving the molestation of minors. The
State dismissed the charges against the defendant concerning all
but one of the episodes, and the defendant was convicted on all
22

charges arising from that remaining episode. The defendant
attempted to offer evidence of the four episodes for which all
charges against him were dismissed, hoping to establish that the
similarity of the conduct in each of the five episodes led to the
conclusion “that one person was responsible for all of them and
that defendant was not that person because he had an alibi for all
but two of the occasions involved.” Id. at 448, 388 A.2d 587. The
trial court rejected the defendant’s proffer, and we remanded for a
determination concerning whether the proffered evidence satisfied
our modified relevancy analysis. Id. at 457, 388 A.2d 587. On
remand, the trial court found that the probative value of the
defendant’s proffer was substantially outweighed by the likelihood
that the jury would be confused and misled because defendant’s
evidence “would result in a series of ‘mini-trials’ as to defendant’s
guilt on charges for which he was not being tried.” State v.
Garfole, 80 N.J. 350, 352, 403 A.2d 888 (1979) (Garfole II). We
agreed with the trial court’s conclusions and affirmed. Ibid.
In this matter, during a pre-trial Rule 104 hearing, defendant
sought to present evidence of the murder of Nancy Noga, a young,
Caucasian female, about the same age as Katrina Suhan who, like
Katrina, had brown eyes and long brown hair. Noga’s body was
found in January 1999, in an area approximately one mile from
where Suhan’s body was found. Both victims encountered their
assailants while walking home at night. Noga’s death also was
caused by a blunt trauma to her head. Because the Noga
investigation was ongoing, the Court’s review included in camera
review of certain information.
Similar to Garfole I, defendant sought to establish that an unknown
third person committed both murders, which if true, would raise a
reasonable doubt concerning defendant’s guilt because he was
incarcerated at the time of Noga’s murder. The trial court found
that the Noga murder met the “simple relevance” requirements of
Garfole I for introducing defensive other-crimes evidence because
of the “superficial” similarity of the victims, who were close in age
and body-type. However, the trial court also determined that the
probative value of the proffered evidence was minimal.
Specifically, although Katrina’s assailant had a sexual motive,
there was no evidence of any sexual motive in the Noga killing.
Also, Suhan appears to have been abducted by her assailant in a
vehicle and taken to the area where her body was found. In
contrast, there was no evidence that Noga was abducted—Noga’s
body was found near where she was last seen. The trial court found
“nothing distinctive to tie the two [crimes] together in any manner
to indicate that they were the work of the same person.” Finally,
23

the trial court observed that it would have to hold a “mini-trial” of
sorts on serial killers and homicidal pathology to link the two
crimes, an exercise that the court determined would have
“tremendous potential for confusing and misleading the jury.” On
balance, the court determined that those countervailing factors
substantially outweighed the minimal probative value of the
proffer and excluded the evidence.
We accord substantial deference to the trial court’s “highly
discretionary determination.” Garfole I, supra, 76 N.J. at 457, 388
A.2d 587; see generally State v. Morton, 155 N.J. 383, 454, 715
A.2d 228 (1998) (citing Koedatich, supra, 112 N.J. at 313, 548
A.2d 939 (affirming trial court’s N.IR.E. 403 ruling that “was not
a clear error ofjudgment and did not result in manifest denial of
justice”)). The Appellate Division aptly described the trial court’s
analysis as “comprehensive and thoughtful.” Cook, supra, slip op.
at 16. As in Garfole, on review of a full record and the application
of the correct test for admissibility, we find no clear error of
judgment or manifest denial of justice. We affirm the trial court’s
denial of defendant’s asserted evidence of third-party guilt.
Cook, 847 A.2d at 549—5 1.
This claim is not cognizable on federal habeas review to the extent it is premised on a
violation of state law. See Estelle v. McGuire, 502 U.S. 62, 67—68 (1991) (stating that “it is not
the province of a federal habeas court to re-examine state-court determinations of state-law
questions”). It may be considered, however, under the due process clause. The test of a due
process violation is not merely whether there has been an error, but whether the state court’s
ruling was so arbitrary or prejudicial that it rendered the trial fundamentally unfair. See Romano
v. Oklahoma, 512 U.S. 1, 12—13 (1994); see also Keller v. Larkins, 251 F.3d 408, 413 (3d Cir.
2001) (noting that to show that an evidentiary error rises to the level of a due process violation, a
petitioner must show “that it was of such magnitude as to undermine the fundamental fairness of
the entire trial”). The United States Supreme Court has “defined the category of infractions that
violate ‘fundamental fairness’ very narrowly.” Dowling v. United States, 493 U.S. 342, 352
(1990). While “the Constitution guarantees criminal defendants a meaningful opportunity to
24

present a complete defense,” Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quoting
Crane v. Kentucky, 475 U.S. 683, 690 (1986)), the Constitution prohibits only “the exclusion of
defense evidence under rules that serve no legitimate purpose or that are disproportionate to the
ends that they are asserted to promote[.]” Holmes, 547 U.S. at 326. The Constitution permits
judges to “exclude evidence that is repetitive

...,

only marginally relevant or poses an undue risk

of harassment, prejudice [or] confusion of the issues.” Crane, 476 U.S. at 689-690; see also
Taylor v. Illinois, 484 U.S. 400, 410 (1988) (“The accused does not have an unfettered right to
offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of
evidence”).
Mr. Cook has failed to show that the New Jersey Supreme Court’s denial of this claim
was an unreasonable application of clearly established federal law, or that it resulted in a
decision based on an unreasonable determination of the facts. This evidence, sometimes referred
to as “reverse 404(b),” would require the jury to accept, simply because of the nature of the two
crimes, that one person committed both. As described above, this evidence was excluded under
the State version of the Rule 403 balancing test because there was no sexual motive or evidence
of abduction in the other killing. This was therefore very far from a unique modus operandi or
“signature crime” that implied a single perpetrator. Furthermore, the PCR judge determined that
it would require a mini-trial within a trial to draw some psychological or other attenuated
connection between the two. Such a mini-trial would be confusing to the jury and would not be
justified by its probativeness. Such a weighing of the probative value of this evidence was within
the trial court’s proper discretion. It was not an unreasonable application of United States
Supreme Court precedent.
Accordingly, Mr. Cook is not entitled to relief on Claim IV.

25

E. Claim V

—

Failure to present alibi defense

In Claim V, Mr. Cook claims that his trial counsel was ineffective because he failed to
pursue an alibi defense. The last reasoned decision on this claim came from the New Jersey
Superior Court, Appellate Division, on review of the denial of the PCR petition. That court stated
as follows:
We begin our analysis of Cook’s arguments with the presumption
that he received the assistance of counsel that is mandated by the
Sixth Amendment of the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution. Strickland v.
Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068,
80 L. Ed. 2d 674, 694, 698 (1984); see also State v. Loflin, 191
N.J. 172, 198—99 (2007).
We review claims of ineffective assistance of counsel under the
two-factor test established by the United States Supreme Court in
Strickland and subsequently adopted by our Supreme Court in
State v. Fritz, 105 N.J. 42, 58 (1987) (implementing the Strickland
standard for ineffective assistance of counsel claims under Article
I, Paragraph 10 of New Jersey Constitution). See State v.
McDonald, 211 N.J. 4, 29—30 (2012). First, Cook must
demonstrate that counsel’s perfonnance was deficient. Strickland,
supra, 466 U.S. at 687, 104 5. Ct. at 2064, 80 L. Ed. 2d at 693.
Second, he must show there exists “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694, 104 S. Ct. at 2068, 80 L.
Ed. 2d at 698. With respect to both factors of the Strickland test, a
defendant asserting ineffective assistance of counsel on PCR bears
the burden of proving his right to relief by a preponderance of the
evidence. See State v. Echols, 199 N.J. 344, 357 (2009).
Also,
[t]he right to counsel guarantees defendants the
right “to competent counsel.” State v. DiFrisco, 174
N.J. 195, 220 (2002). Attorneys are held to a
standard of “reasonableness under prevailing
professional norms.” Strickland, supra, 466 U.S. at
688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.
Deficient performance is established by proving that
“counsel’s acts or omissions fell ‘outside the wide
range of professionally competent assis
26

tance’ considered in light of all the circumstances of
the case.” State v. Castagna, 187 N.J. 293, 314
(2006) (quoting Strickland, supra, 466 US. at 690,
104 S. Ct at 2066, 80 L. Ed. 2d at 695). And, the
evaluation as to the reasonableness of an attorney’s
performance must be “viewed as of the time of
counsel’s conduct.” Ibid. (quoting Strickland,
supra, 466 U.S. at 690, 104 5. Ct. at 2066, 80 L. Ed.
2d at 694).
[State v. Gaitan, 209 N.J. 339, 350 (2012).]
Cook contends that defense counsel was ineffective because he
failed to effectively pursue an alibi-type defense. Instead, because
there was no forensic evidence linicing Cook to the murder, the
case ultimately came down to Cook’s confession and other
circumstantial evidence tying him to the crime. During crossexamination of the State’s witnesses, defense counsel was able to
demonstrate that almost no documentation had been prepared by
police and very little physical evidence had been collected.
This was further buttressed during summation where defense
counsel stated that the police never took fingerprints from Suhan’s
body or exemplars from the people Suhan had interacted with the
evening prior to her death. Defense counsel exhorted the jury to
acquit by arguing that the State had not proven its case because no
one could show how Cook had managed to get to South Amboy,
the location of the crime.
Notwithstanding these efforts, Cook suggests that the defense
should have proffered the live testimony of persons who were with
Cook on the night in question in order to bolster the theory that he
could not have been present when Suhan was murdered.
The PCR judge noted that “in order to establish an alibi, one must
say, well something happened at a particular time and at that
particular time [Cook] was someplace else.” Because the actual
time of death could not be ascertained, defense counsel was unable
to credibly mount a conventional alibi defense. Further, the PCR
judge concluded that the jury charge regarding Cook’s general
denial of guilt—because Cook contended he was not present at the
time and place where the murder was committed—was appropriate
given the inability to determine the time of death. Therefore,
according to the PCR judge, defense counsel’s attempt to establish
reasonable doubt by demonstrating the putative impossibility of
defendant traveling to South Amboy was a strategic decision made
at the time of the trial and did not “rise to a level sufficient to grant
a new trial.”
27

Our standard of review is plenary on questions of law in a PCR
appeal, but the factual findings of the PCR court are granted
deference if they are supported by adequate, substantial, and
credible evidence. State v. Harris, 181 Ni 391, 415 (2004), cert.
denied, 545 US. 1145, 125 S.Ct. 2973, 162L. Ed.2d 898 (2005).
We agree with the PCR court’s conclusion that Cook’s better-alibidefense theory did not satisfy either part of the Strickland test for
ineffective assistance of counsel. Although another attorney
presenting a defense at trial might have chosen to offer additional
evidence of the implausibility of the State’s timeline, we cannot
discern that defense counsel was ineffective in the way he handled
the difficult temporal issues, particularly in light of Cook’s
confession, which filled in many of the State’s gaps.
(Dkt. No. 29-3 at p.7-il)
The Appellate Division correctly stated and applied the rule of Strickland v. Washington,
466 U.S. 668 (1984). There, the Supreme Court articulated a two-part test for evaluating a claim
of ineffective assistance of counsel.
First, the petitioner must show that counsel’s performance fell below an objective
standard of reasonableness. See Strickland, 466 U.S. at 688; see also Ross v. Varano, 712 F.3d
784, 798 (3d Cir. 2013). To do so, the petitioner must identify particular acts or omissions that
were not the result of reasonable professional judgment. See Strickland, 466 U.S. at 690. The
federal court must determine whether, in light of all of the circumstances, the identified acts or
omissions fell outside the wide range of professional competent assistance. See id.
Second, the petitioner must affirmatively demonstrate prejudice. “Prejudice” means that
“there is 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.” See id. at 694; see also McBride v. Superintendent, SC’I
Houtzdale, 687 F.3d 92, 102 n.ll (3d Cir. 2012).

28

“With respect to the sequence of the two prongs, the Strickland Court held that ‘a court
need not determine whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be
so, that course should be followed.” Rainey v. Varner, 603 F.3d 189, 201 (3d Cir. 2010)
(quoting Strickland, 466 U.S. at 697).
Finally, on habeas review, it is ordinarily not enough that a federal judge, if presented
with the issue as an original matter, would have found counsel ineffective. AEDPA deference
requires that the judge find that the state court’s resolution of the ineffective-assistance claim was
unreasonable, a higher standard:
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. Were that the inquiry, the analysis would be
no different than if, for example, this Court were adjudicating a
Strickland claim on direct review of a criminal conviction in a
United States district court. Under AEDPA, though, it is a
necessary premise that the two questions are different. For
purposes of § 2254(d)( 1), an unreasonable application of federal
law is different from an incorrect application of federal law. A
state court must be granted a deference and latitude that are not in
operation when the case involves review under the Strickland
standard itself.
Harrington, 562 U.S. at 101 (internal quotation marks and citation omitted; emphasis in
original).
The state court reasonably applied the Strickland standard to the facts of Mr. Cook’s case.
For example, the state court noted that the precise time of death could not be ascertained. Thus,
any alibi defense would have to be airtight, in the sense of covering the entire time frame during
which the murder could have occurred, a difficult challenge. Instead, counsel chose to emphasize

29

reasonable doubt and the uncertainty surrounding Mr. Cook’s ability to travel to South Amboy at
all. For the court to defer to that strategic decision was not an unreasonable application of, and
indeed was required by, Strickland. See 466 U.S. 681 (“Because advocacy is an art and not a
science, and because the adversary system requires deference to counsel’s informed decisions,
strategic choices must be respected in these circumstances if they are based on professional
judgment.”); Hess v. Mazurkiewicz, 135 F.3d 905, 908 (3d Cir. 1998) (“Our review of ineffective
assistance of counsel claims does not permit us, with the benefit of hindsight, to engage in
speculation about how the case might best have been tried. We therefore accord counsel’s
strategic trial decisions great deference.”). The state court’s reasoning does not amount to an
unreasonable application of the Strickland standard.
F. Mr. Cook is not entitled to federal habeas relief on Claim V.Claim VI— Failure to present
third-party guilt evidence re: “KH.” assault
In Claim VI, Mr. Cook claims that trial counsel was ineffective for failing to present
relevant testimony which affirmatively supported a third-party guilt defense. (This claim is
distinct from the “reverse 404(b)” argument in Claim IV.) Here, Mr. Cook argues as follows:
Prior to trial, the State filed a motion seeking to take photographs
of the Defendant on the basis he might have been involved in a
previous sexual assault which factually resembled the
circumstances regarding the victim’s death. Although the motion
was granted, the photographs subsequently taken did not depict the
same physical characteristics the perpetrator possessed as
described by the victim. Trial counsel had been remiss by failing to
present relevant testimony arising therefrom which would have
affirmatively supported a third party guilt defense....
[T]he relevant information supporting this contention came from
the affidavit of Det. Moscaritola, which had been prepared in
support of the motion. According to the affidavit, in February,
1997, the detective investigated an aggravated sexual assault which
occurred in Old Bridge Township, in which a young petite white
female was sexually assaulted after having been picked up by a
30

black male while walking in Sayerville. The assailant agreed to
drive the victim to her intended destination yet, on the way there,
pulled into an empty parking lot and told her she was pretty. The
assailant exited the car to urinate and returned to the car with his
pants undone. He then spoke with the victim about his penis, and
began kissing and fondling her, telling her he intended to give her
a belated Valentine’s Day present. He tried to force her to perfonn
oral sex and, when she resisted, he became forceful and ultimately
had vaginal intercourse with her. Since she had previously been
assaulted, and fearing for her life, the victim offered minimal
resistance.
When the Defendant became aware she was menstruating, he
became angry. The victim (K.H.) provided a detailed description of
the assailant which included a visible skin discoloration on one of
his thighs. According to the victim, the assailant called himself “T
Ray or Turae”. The victim subsequently learned her assailant
frequented a South River boarding home. The victim further
learned that “Turae” was also known as “T”.
According to the detective, Defendant’s statement to police
following his arrest on February 19, 1998 provided numerous
details similar in nature to the sexual assault. Specifically, the
Defendant initially encountered the victim while she was walking
and he offered her a ride. He told her she was pretty and that he
wanted to be with her and, when the victim resisted, the Defendant
became violent and struck her. The Defendant was upset he had
not been able to spend Valentine’s Day with his girlfriend, and that
a previous relationship had ended on Valentine’s Day in 1997.
In addition, Defendant was known to like and befriend young
white girls, and was commonly known as “Tee”. Further, the
victim had been menstruating at the time she was killed and,
although not sexually abused, had been found with her jeans and
panties pulled down. The Defendant “closely” resembled the
suspect, while his physical description was consistent with that of
the assailant in the sexual assault as well. Finally, the sexual
assault occurred within one mile of the scene of the homicide.
The trial court granted the State’s motion and, as a result,
photographs of the Defendant were taken by the police in May
1998. However, those photographs revealed no unique
discoloration on the Defendant’s thigh.
(Dkt. No. 17-1 at p.23-25)

31

During PCR proceedings, Mr. Cook argued that trial counsel should have pursued the
theory that Cook lacked the thigh discoloration and therefore did not commit the unsolved 1997
sexual assault of “K.H.”; that similarities between the two cases imply that the unknown 1997
assailant also killed Katrina Suhan; and that therefore Mr. Cook did not kill Katrina Suhan. The
Appellate Division denied this claim without discussion.
The last reasoned decision on this claim came from the Superior Court during Mr. Cook’s
PCR proceedings. The PCR judge analyzed the claim in an oral opinion from the bench as
follows:
The next point, I believe, that we have was that Counsel was
ineffective for failing to introduce evidence of an unsolved sexual
assault, which occurred prior to the murder of Katrina Suhan as
evidence of a third person.
Again and again, the same thing. The the the defense was, we
didn’t do it, we weren’t there, we don’t know what happened, and
therefore to and we had already established that there was been
no sexual contact between the defendant and the victim. Thereby
there was no need to even address this alleged sexual assault.
Again reasoned well and and acted upon in appropriate fashion.
Again, in this Court’s opinion, doesn’t rise to a level of ineffective
assistance under the circumstances.
—

—

—

—

—

(Dkt. No. 31-7 at p.22-23)
“Under the ‘unreasonable application’ clause [of § 2254(d)(1)] a federal habeas court
may grant the writ if the state court identifies the correct legal principle from.

.

.

[the Supreme]

Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.”
3
Williams v. Taylor, 529 U.S. 362, 413. The State court’s analysis was terse. The PCR judge
identified only one point of dissimilarity between the two crimes: the sexual component of the

It is likely that the state judge, in saying “again, the same thing,” was incorporating his reasoning as to
the parallel “reverse 404(b)” contention now contained in Claim IV.
32

1997 K.H. assault, and the lack of any sexual assault in connection with Katrina Suhan’s murder.
(That asserted distinction is problematic, as stated below.)
The New Jersey Supreme Court has held that similar offense evidence, when introduced
exculpatorily by a defendant, need not meet the same high standard required of the prosecution
when it seeks to introduce such evidence inculpatorily. See State v. Garfole, 368 A.2d 587, 591
(N.J. 1978). “[S]imple relevance to guilt or innocence should suffice as the standard of
admissibility.” See id. True, there is no federal habeas relief based on an error of state
evidentiary law as such. But constitutionally effective counsel, defendant implies, would have
recognized that advantageous state evidentiary standard and taken advantage of it.
Mere disagreement with the state court’s finding on this ineffective assistance of counsel
claim is insufficient to warrant granting habeas relief. See Williams, 529 U.S. at 411 (“A federal
habeas court may not issue the writ simply because the court concludes in its independent
judgment that the relevant state-court decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must also be unreasonable.”). But where the
state court’s decision was based on an unreasonable determination of the facts, it loses the
benefit of the deferential AEDPA standard and a district court will review it de novo. See, e.g.,
Wiggins v. Smith, 539 U.S. 510, 528-29 (2003); Boydv. Waymart, 579 F.3d 330, 336 n.7 (3d Cir.
2009) (Scirica, J., concurring) (where petitioner able to show that state court factual
determination was unreasonable under

§ 2254(d)(2), district court applies de novo review to

ineffective assistance of counsel claim).
The PCR court may not have been sufficiently sensitive to the relatively low threshold for
admissibility. I note also the New Jersey Supreme Court’s statement on direct appeal that there
was a sexual motive, if not a completed sexual assault, in the Katrina Suhan case. See Cook, 547

33

A.2d at 569. I, too, am satisfied that the Suhan facts contain a strong sexual component. I am
thus sufficiently concerned with the PCR court’s application of Strickland that I will not defer,
but grant de novo review of this claim.
Applying de novo review, I nevertheless find that Mr. Cook would not be entitled to
habeas relief on this claim, because he fails to satisfy the “prejudice” prong of Strickland. He has
failed to demonstrate a reasonable probability that, absent the claimed error, the outcome of the
case would have been different.
The persuasiveness of the 1997 sexual assault evidence depends on two inferences. First,
the jury would have to conclude that the “K.H.” assailant was someone other than Mr. Cook.
That first inference is supportable, if not compelling; it is based on the statement of”K.H.” that
her assailant had a discoloration on his thigh, coupled with the photographic evidence that Mr.
Cook did not. Second, the jury would have to conclude that the K.H. assault and the Suhan
murder were committed by the same person. That second inference is highly debatable. It is not
based on any identification of the K.H. assailant, but only on some fairly generic similarities
between the two crimes. For example, the crimes happened within a year of each other, in
neighboring geographic areas (though not at any of the same sites). The victim was a young
female, vulnerable because she was walking alone. Both were picked up by an assailant who was
in a car. Such commonalities could be found among many sexual assault cases. And there is of
course one great dissimilarity in the modus operandi: the K.H. case involved a sexual assault,
while Ms. Suhan was brutally beaten to death.
That indirect evidence, if admitted, would have had to overcome persuasive direct
evidence of guilt. Mr. Cook confessed. His confession was corroborated by the actual facts of the
assault and murder. T.S. testified that Mr. Cook knew a woman named Katrina and said he

34

intended to go to the skating rink the next day to “scare” someone, whom T.S. took to mean
Katrina. (See Dkt. No. 30-5 at p.19-20) Pascale testified that Mr. Cook was excited to go to the
roller rink on the night of the murder. (See Dkt. No. 30-2 at p.55-56) Pascale also testified that,
when she saw Mr. Cook afterward, he had a swollen knuckle and small cuts around the
knuckle—injuries consistent with the manner in which Ms. Suhan was killed. (See id. at p.57)
It is not at all probable that the outcome of the trial would have been different if counsel
had sought to introduce evidence of the unsolved 1997 sexual assault case. The “prejudice”
requirement, one of two under Strickland, is not satisfied.
Even applying de novo review, then, I find that Mr. Cook is not entitled to federal habeas
relief on Claim VI.
G. Claim VII

—

Failure to object to Heather Stonbely’s testimony

In Claim VII, Mr. Cook asserts that counsel was ineffective when he failed to object to
late disclosure of the testimony of Heather Stonbely, or to the testimony itself. At a minimum,
Mr. Cook argues, counsel should have requested a continuance or introduced contradictory
evidence.
The Appellate Division denied this claim without discussion. The last reasoned decision
on this claim was from the Superior Court during Mr. Cook’s PCR proceedings. The PCR Court
laid out the relevant standard for analyzing Mr. Cook’s ineffective assistance of counsel claims:
I first need to address what the law is that I’m going to be
following and it’s well established what that law is that I should be
following. And that is in making a determination as to whether or
not, based upon the claim, that there has been ineffective assistance
of counsel as it concerns the defendant’s trial. Whether or not that
ineffectiveness rises to a level sufficient to, again, require either a
preliminary hearing or evidentiary hearing, or an out and out new
trial based on the evidence that has been presented to the Court.
—

35

What the first thing is that the defendant has to show in an
ineffective assistance of counsel claim on a P.C.R. is a prima facie
case that there must be a reason for likelihood of succeeding on the
merits and that in addition to that, he may have been prejudiced as
a result of the errors committed by the trail cancel [sic]— Counsel
below.
Now there’s an I Guess a there’s a two prong task that must
also be established pursuant to Strickland (phonetic) and Fritz
(phonetic) that in order to establish ineffective assistance of
counsel the defendant burden is on the defendant to show two
things, not one of two, but two things.
—

—

—

One he must show that his Counsel at the time that Counsel’s
performance fell below the and I’m summarizing fell below an
objective standard of reasonableness. And then he must also show
that based on the errors committed by Counsel, that those errors
were so egregious that had he not committed those errors, at that
time. That the result of his case would have been different.
—

—

—

(Dkt. No. 31-7 at p.3-5) Allowing for the fact that this was an informal oral opinion, that
statement demonstrates that the PCR judge had the twofold Strickland standard firmly in mind
when he ruled.
The PCR judge then analyzed this ineffective assistance of counsel claim as follows:
Next is an allegation that Counsel was ineffective because he failed
to object to late discovery concerning the testimony of Heather
Stonbely (phonetic) or any alternative. For failing to seek a
continuance of the trial to investigate this evidence or any
alternative. For failing to present evidence that contradicted her
testimony.
The testimony of Mister Ms. Stonbely Stonbely was, primarily
that which is alleged by the P.C.R. attorney. It connects Mr. Cook
to having some acquaintance, however slight it might have been,
with the victim. And apparently based upon Ms. Stonbely’s
testimony, Mr. Cook had seen the victim in the skating rink prior
to her death. That there was a short conversation between the
parties as it concerns, I believe, a picture or or or of some sort
that Miss that the victim had drawn and allegedly Mr. Cook
commented on, because of his artistic interest. And that there was
some smiling exchanged and primarily, it didn’t appear that there
—

—

—

—

36

—

was much more than that, that connected Mr. Cook with the
victim.
And as it concerns the allegation that the fact that this this
testimony of this witness was late and therefore the defendant
attorney should have asked for a an adjournment or a or object
to it, again, I believe he did object. However, there was not much
he could do in light of the fact that the Court overruled the
objection.
—

—

—

—

Again, to ask to say that he was ineffective because he didn’t ask
for a continuance, again, that’s a bit of a stretch because that
wasn’t even up to him anyway. He could only ask for it and if the
Court did not give it to him there was nothing else he could do
again, based upon my reading of the transcript, I find that he did in
fact object to that discover [sic]. And ask the Court, or you know
he mad [sic] as much of an objection that he possibly could at t[h]e
4
[gap where tape changed]
time
of— ineffectiveness, taken in in conjunction with
level
everything else is not, in my opinion, sufficient to establish
ineffective assistance of counsel.
—

—

...

—

—

(Dkt. No. 31-7 at p.32-34)
In denying this claim, the PCR court relied on the fact that Mr. Cook’s trial counsel, Mr.
Anderl, objected. The transcript does not reveal, however, that Mr. Anderl objected to Stonbely’s
testimony or that he sought and was denied a continuance specifically on the basis of late
discovery. Indeed, Anderl acknowledged receiving the discovery but brushed it aside as
5
“innocuous.,’
I refer to the following colloquy among the trial court, Mr. Anderl and Mr. Kapsak (the
prosecuting attorney):

The transcript of the PCR court’s ruling from the bench is cut off at this point in the transcript because
the first tape ended and a second tape was then started.
Mr. Anderl may have raised a similar issue with respect to another witness, John Buonacore, before
trial, but that is irrelevant to whether he raised the issue as to Stonbely. (See Dkt. No. 29-10 at p.7.) The
portion of the January 26, 2000 trial transcript that was provided by respondents on ECF is out of order as
p.9-12 come before p.6-8. For reference, however, this Court will use the page numbers with respect to
this transcript as they appear on the docket in Dkt. No. 29-10.

‘

37

MR. KAPSAK: There was actually a witness after that who came
forward just a few days ago and as soon as I heard about the
witness, before I even talked to her, I called Mr. Anderl and then as
soon as I talked to her. I prepared a report, a letter indicating what
she said and I faxed that over to him.
THE COURT: Did you get it?
MR. ANDERL: Yes, Judge.
THE COURT: What’s her name?
MR. ANDERL: It’s innocuous.
MR. KAPSAK: Her name is Heather Stonbely. So yes, discovery
is complete.
THE COURT: All right[.]
(Dkt. No. 29-10 at p.16)
That the PCR court recalled that Mr. Anderl made an appropriate objection to this
witness, which was denied, was an apparent memory slip. Out of caution, I will therefore assume
that the PCR court made a decision based on an unreasonable determination of the facts. As
discussed above, under such circumstances, I will set aside AEDPA deference and review the
matter de novo.
I opt to consider the second, prejudice prong of Strickland. Mr. Cook has not shown to a
reasonable probability that the outcome of the proceeding would have been different if Mr.
Anderl had objected to late discovery and tried to prevent Stonbely from testifring.
First, it is unlikely that any such objection would have resulted in the exclusion of
Stonbely’s evidence. The prosecutor stated, and Mr. Cook does not deny, that the witness came
forward on the eve of trial, and that he promptly notified Mr. Anderl. The New Jersey Rules of
Court provide that there is a continuing duty to provide discovery to the other party. See N.J. Ct.
R. 3:13-3(f). If a party fails to comply with this rule, it may order the party to permit discovery of
the materials not previously disclosed, grant a continuance or a delay during trial, or prohibit a
party from introducing evidence in the material not disclosed. See id. No violation of the
38

‘ongoing duty” under the discovery rules appears from this record. This is not a situation—e.g.,
a prosecutor’s deliberate delay in disclosing evidence—that would compel a trial judge to
exclude relevant testimony, as opposed to imposing lesser measures to avoid unfair surprise. Mr.
Cook fails to show a reasonable probability that, if Mr. Anderl had objected to Stonbely’s
testimony, it would have been excluded.
Second, it is unlikely that exclusion of Stonbely’ s testimony would have altered the
outcome; while relevant, it was hardly critical. Stonbely was friendly with Katrina Suhan, and
she frequented the skating rink. On one occasion, Stonbely and Katrina Suhan were doing tricks
at the rink when they noticed Mr. Cook. (See Dkt. No. 30-6 at p.4) On another occasion, Mr.
Cook commented to Katrina Suhan that he liked a picture that she had just drawn. (See id.) On a
third occasion, Stonbely testified, Katrina Suhan fell while skating, and Mr. Cook stared at her.
(See id. at p.5) Stonbely also testified that Mr. Cook once pinched Katrina Suhan’s arm. (See id.
at p.5)
Stonbely thus testified to a few fairly innocuous interactions between the victim and Mr.
Cook. These established at most that he had seen her at the rink and was generally familiar with
her. Other evidence at trial, however—including Mr. Cook’s confession—powerfully and
directly implicated Mr. Cook as the perpetrator and established his connection to her. (See
Section F, supra.)
Accordingly, Mr. Cook fails to show that he was prejudiced by Mr. Anderl’s failure to
object to Stonbely’s testimony.
Mr. Cook makes the related arguments that Mr. Anderl was ineffective because he should
have sought a continuance or introduced evidence to contradict Stonbely’s testimony. He says
nothing specific about what a continuance would have accomplished; he may be referring to the

39

opportunity to marshal the testimony of two uncalled witnesses, Oscar Romera and John
DiAngelantonio. According to Mr. Cook, Romera would have testified that he skated at the rink
on Friday nights during the fall and winter of 1997, yet did not recall seeing Mr. Cook there.
Romera also indicated, however, that he sometimes did not go to the rink. Mr. Cook claims that
the roller rink’s manager, John DiAngelantonio, would have testified that, although Mr. Cook
was a “rink rat” and a Friday/Saturday regular, he had not seen Cook for approximately six to ten
months prior to the night of the murder. This testimony would have been at best a mixed benefit
to Mr. Cook’s defense; at a minimum, it generally places him at the rink where the victim
regularly skated. Stonbely, who was friendly with and focused on Katrina Suhan, testified to her
specific observations. These witnesses, by contrast, would have testified generally that they
failed to note Mr. Cook’s presence, a circumstance fairly easily explained away.
Even assuming that these two witnesses would have testified as represented, Mr. Cook
fails to show to a reasonable probability that the outcome of the proceedings would have been
different had counsel called them. As previously indicated, Mr. Cook’s connection to Katrina
Suhan was established through his own corroborated confession to the murder, as well as
corroborating evidence. See Section F, supra. And an attorney could justifiably have concluded
that the decision to put on a case—if it consisted of nothing stronger than this—might well have
backfired by detracting from a reasonable doubt defense.
Accordingly, relief is denied on Claim VII.
H. Claim VIII

—

Failure to request confession corroboration jury charge

In Claim VIII, Mr. Cook claims that trial counsel was ineffective for failing to request
that the trial court charge the jury with respect to the need to corroborate his confession. The

40

Appellate Division denied this claim without discussion. The last reasoned decision on this
Claim was from the PCR judge on the New Jersey Superior Court, who decided it as follows:
And again, the 800 pound gorilla in the room was the confession.
That confession has been, again alleged that the there was
ineffective assistance of counsel, because there was no charge to
the jury dealing with the need to corroborate the the confession.
But counsel, that particular issue had gone up on appeal before this
P.C.R. was even made, with regard to whether or not the Court had
established corroboration as it concerns that confession.
—

—

And it had been established at that point in time, that the Court’s
assessment of whether or not there had been proper corroboration
of Mr. Cook confession, was in fact satisfactory to the higher
Courts. And the confession was not thrown out. It was it was
addressed at that point in time. It was affirmed with regard to the
corroboration of the confession. And to now come back and say
that that confession as not corroborated by virtue of having a
charge address it particular is, again in my opinion, insufficient as
a cause to allege ineffective assistance of counsel.
—

And I have case law in the form of State v. Roach, which
essentially indicates that once it is established that the the the
confession is in fact and has in fact been corroborated that
inferences inferences can be drawn that; one, the confession is in
fact or has not in fact been coerced and that the jury is left to
determine, based upon their own, whether or not that confession is
credible, or or or not.
—

—

—

—

—

—

—

And the facts that there was no charge to that effect, I have not
found any case law that would establish, that failure to give a
charge on corroboration is fatal, to the extent that it would require
an, you know, an establishment of ineffective assistance of counsel
and therefore a need to grant a retrial.
So, I do not feel, at least as that point has been raised to the Court,
that it it rises to a level sufficient to establish a need to grant the
request for a re-trial.
—

(Dkt. No. 31-7 at p.24-26) Mr. Cook fails to show that the state courts unreasonably applied the
Strickland standard to this claim or that the denial of this claim was based on an unreasonable
determination of the facts.

41

As noted by the Superior Court, the New Jersey Supreme Court had already determined
on direct appeal that Mr. Cook’s confession was adequately corroborated. See Cook, 847 A.2d at
564-65. That was not precisely, but was close to, a predetermination that the Strickland prejudice
requirement was not met. Because the corroboration was clear, I cannot find that giving such an
instruction had any likelihood of altering the outcome of trial.
In addition, the PCR Court also found no clear state law entitlement to such an
instruction, and Mr. Cook points to none. Thus it was not unreasonable for the PCR court to find
that counsel’s failure to demand or obtain such an instruction was not ineffective. See, e.g.,
Armstrong v. State, 752 S.E.2d 120, 124 (Ga. Ct. App. 2013) (denying ineffective assistance of
counsel claim because there was no prejudice from counsel’s failure to request jury instruction
on uncorroborated confession, inasmuch as the confession was corroborated); People v. Ploss,
483 N.Y.S.2d 449, 451 (N.Y. App. Div. 3d Dep’t 1984) (denying ineffective assistance of
counsel claim based upon failure to request jury instruction on lack of corroboration of
confession where the record contained more than the required amount of corroborative
evidence).
Accordingly, Claim VIII will be denied.
I.

Claim IX

—

Presenting defense through cross-examination was detrimental

In Claim IX, Mr. Cook challenges Mr. Anderl’s decision to present a defense through the
cross-examination of prosecution witnesses. Aside from criticizing the decision to pursue a
general “reasonable doubt” defense, Mr. Cook cites two specific instances of cross-examination
that allegedly backfired and harmed his defense.
First, Mr. Anderl cross-examined Pascale about Mr. Cook’s knuckle injuries, but did so
using a photograph of Mr. Cook that was taken well after the murder took place. When that came

42

to light, says Mr. Cook, he lost credibility with the jury because Mr. Anderl seemed to have been
trying to mislead them.
Second, Mr. Anderl attempted to establish through cross-examination of a detective that
Mr. Cook did not drive, and therefore could not have driven from Somerville to South Amboy on
the night in question using his girlfriend’s car. (See Dkt. No. 17-1 at p.39) Mr. Anderl, says
Cook, should have known better because he possessed an abstract that documented Mr. Cook’s
driving history. The objection seems to be that Mr. Anderl opened the door to the detective’s
testimony that various individuals had observed Mr. Cook driving.
The last reasoned decision was on appeal from denial of the PCR petition in the
Appellate Division, which analyzed this claim as follows:
Cook further argues that he was unfairly prejudiced by his
attorney’s failure to present a defense beyond cross-examination of
the State’s witnesses. We disagree.
Defense counsel zealously pursued a reasonable doubt defense at
trial. The PCR judge noted that defense counsel “did in fact create
doubt” through each witness he cross-examined. Ultimately,
however, the final decision was up to the jury to determine if there
was reasonable doubt sufficient to find Cook not guilty. Bald
assertions are insufficient to support a finding that counsel’s
conduct was deficient. See State v. Cummings, 321 N.J. Super.
154, 170 (App. Div. (finding to obtain relief based on claims of
ineffective assistance of counsel a “petitioner must do more than
make bald assertions”), certif denied, 162 N.J. (1999).
Cook’s confession remained a formidable hurdle to reasonable
doubt. As noted by the PCR judge, “{w]hen you have a confession
and you don’t have anything else the reasonable doubt defense is
reasonable, under those circumstances.” Thus, mounting this type
of defense was a matter of strategy, and we have no occasion to
second-guess the reasonableness of such decisions. See Strickland,
supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.
(Dkt. No. 29-3 at p.12-13)

43

Mr. Cook fails to show that the state courts’ denial of this claim was an unreasonable
application of the Strickland standard or that the denial resulted from an unreasonable
determination of the facts. As noted by the Appellate Division, Mr. Cook’s corroborated
confession remained a formidable hurdle to overcome. Placing a client who has confessed on the
stand may do little more than cement the story in the jury’s mind. Mr. Cook’s arguments here are
insufficient to displace the Strickland presumption that an attorney’s decisions are strategic.
The specific examples of cross-examination backfiring fall far short of a Strickland
claim. Even an attorney who plans to put on a positive defense is expected to cross-examine the
government’s witnesses. Not every cross-examination question goes perfectly or devastates the
witness. And these fairly minor mishaps surely did not prejudice the result, a conviction that was
supported by, inter alia, a complete confession.
In sum, Mr. Cook fails to show that the state court’s denial of this claim was an
unreasonable application of the Strickland standard. Accordingly, Mr. Cook is not entitled to
habeas relief on Claim IX.
J. Claim X

—

Cumulative Error

In Claim X, Mr. Cook asserts that he is entitled to federal habeas relief due to cumulative
error. He states that the accumulation of errors or the accumulation of counsel errors violated his
right to due process or effective assistance of counsel. With respect to Mr. Cook’s claim that
counsel’s purported cumulative errors warrants relief, he raised this claim during his PCR
proceedings. The last reasoned decision on this claim was from the Superior Court during Mr.
Cook’s PCR proceedings which analyzed this issue as follows:
[Tjhe last item is the allegation that all these items cumulatively
rise to a level that exhibits ineffective assistance of counsel.
.

44

.

[W]hen you take everything into consideration all the evidence, all
the witness’s testimony, Mr. Anderal’s [sic] cross-examination of
these people. His ability to to establish doubt when it came to the
Because what it always boiled down to again, was
testimony.
the fact that they had a confession from the defendant. And there’s
no allegation here, before this Court that, that confession was
coerced. There was a pre-trial hearing with regard to the
confession.
—

.

.

.

The, of course, confession wasn’t taped. I realize that as a result of
Mr. Cook’s case, and I believe this is one that established that from
here on in confessions need to be taped. So that there was no
requirement prior to this that there be a taping. The facts that Mr.
Cook gave to the officers, based upon their testimony, were facts
that allegedly could only be known by the person who committed
the offense. And that is what needed to be negated in order for all
these other factors to have some type of significance with regard to
Mr. Cook being found not guilty.
But as long as that confession was there as long, as there was no
argument that the confession was coerced, and I don’t I just don’t
recall now whether or not that was in fact something that was a
running theme during the during the trial. But even if it was once
the confession was let in, once the jury heard about that
confession. That was the thing that, I would say, always comes
back to you. This gentleman confessed to having committed this
offense.
—

—

And to say that Mr. Anderal [sic] was ineffective, based upon what
he attempted to do in order to convince a jury that Mr. Cook was
innocent of the offense. Again, he had a very uphill battle of which
very little could be done because there was a confession that the
jury heard. Was able to analyze and determine whether or not they
felt that confession was credible. And it appears to this Court that,
that is what they did. They found that the defendant’s confession
was credible and as a result he was guilty of the offense charged.
Lastly, this Court feels that another Judge could go through those
transcripts, another attorney could go those transcripts and find all
kinds of things that they feel should have been done differently.
And that’s usually the case when you have time to sit down and
read a set of transcripts. But again hindsight is 20-20. What
happens in the heat of battle is totally different than what can
happen when someone has calmness about themselves and time to
think through; What would I have done had I been in that
situation? And often times that is what occurs in these P.C.R.’s.
45

There’s time to sit down and scrutinize what was done by the
attorney to the nth degree.
And even, in my opinion, a different P.C.R. attorney could come
up with different factors that they would say the attorney of record
was ineffectively. But that’s the nature of trial work. It’s it’s the
situation though, that we can’t second guess the guy who was
actually there on his feet trying the case. You can try and
sometimes you’re successful.
—

But based upon what I have here I see it’s a lot of speculation, a lot
of opportunity to again make a determination of this is how I
would have tried the case if I were in that situation. But again, in
my opinion, in my analysis, none of which either alone or
cumulatively would have changed the outcome of the case. And
why again? The confession. When you have it, it’s real hard to
convince a jury. Unless you can convince that jury that there was
coercion of some sort or significantly enough that the man was
not speaking voluntarily. And none of that was established none of
that is being alleged at least to a degree that would rise to a level
sufficient to show prima facially that there was ineffective
assistance of counsel.
—

So again looking at Strickland and what is required with regard to
the standard of review. I find that the first prong of Strickland
requires a showing that the defense counsel’s performance was
deficient. And next you must show that, that deficiency was so
egregious that that the defendant was deprived of a fair trial. And I
do not find that was established here, for the reasons I’ve already
espoused.
(Dkt. No. 31-7 at p.36-40)
“[Ejrrors that individually do not warrant habeas relief may do so when combined.”
Albrecht v. Horn, 485 F.3d 103, 139 (3d Cir. 2007); see also Marshall v. Hendricks, 307 F.3d 36,
94 (3d Cir. 2002). Cumulative error only warrants habeas relief, however, where a petitioner can
show that he was actually prejudiced. Albrecht, 485 F.3d at 139. A petitioner seeking to make
out a cumulative error claim must therefore show that the errors committed at trial together “had
a substantial and injurious effect or influence in determining the jury’s verdict.” Fahy v. Horn,

46

516 F.3d 169, 205 (3d Cir. 2008). Essentially, Petitioner must demonstrate that the errors in
combination would be sufficient to show Strickland prejudice. Albrecht, 485 F.3d at 139.
Mr. Cook fails to show that he is entitled to federal habeas relief based on cumulative
ineffective assistance of counsel. The state court’s denial was not an unreasonable application of
clearly established federal law nor was the denial based on an unreasonable determination of the
facts. The state court’s reliance on the fact that Mr. Cook confessed to the murder and therefore
could not show prejudice was not an unreasonable application of Strickland. And it was a
reasonable assessment of the record by a trial judge who had a feel for the trial and the
persuasiveness of the evidence.
Within Claim X, Mr. Cook also seeks to include the non-ineffective assistance of counsel
claims (Claims I-TV) within his cumulative error claim. To the extent that Mr. Cook seeks to
include these four claims within his cumulative error argument, it does not appear that any state
court has analyzed all nine of his claims (Claims 1-IX) within the cumulative error analysis
framework. Thus, such a claim would be considered unexhausted. 6 However “a federal court
[may] deny an unexhausted claim on the merits ‘if it is perfectly clear that the applicant does not
raise even a colorable federal claim.” Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002)
(quoting Lambert v. Blackwell, 134 F.3d 506, 515—15 (3d Cir. 1997) (construing 28 U.S.C.
2254(b)(2))) see also 28 U.S.C.

§

§ 2254(b)(2) (“An 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.”).
Adding all nine of Mr. Cook’s claims to the cumulative error analysis would not entitle
Mr. Cook to federal habeas relief. He fails to show that there was any error with respect to his
6

The ineffective assistance of counsel claims in his PCR proceedings, even if not raised here, were part
and parcel of the larger cumulative error claim, and I deem them to be exhausted.
47

confession (will being overborne, waiving Miranda or non-corroboration). And the confession
was the devastating heart of the prosecution’s case. Furthermore, Mr. Cook fails to show any
error with respect to the denial of admission of third-party evidence as described in analyzing
Claim TV, supra Part IV.D. Thus, even if these additional claims are added to the cumulative
error analysis, it would not change this Court’s decision that Mr. Cook is not entitled to federal
habeas relief on Claim X.
V.

Pursuant to 28 U.S.C.

CERTIFICATE OF APPEALABILITY

§ 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, Mr. Cook has not met this standard. This Court will not
issue a certificate of appealability.
VI.

CONCLUSION

For the foregoing reasons, the amended habeas petition will be denied and a certificate of
appealability shall not issue. An appropriate order will be entered.

DATED: November22, 2016
KEVIN MCNULTY
United States District Judg

48