DELGADO v. RICCI et al

Filing 14

OPINION. Signed by Judge Jose L. Linares on 04/13/2011. (nr, )

NOT FOR PUBLICATION

CLOSED

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DANIEL JAVIER DELGADO,
Petitioner,
v.
ANNE MILGRAM,
Respondent.

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Civil Action No. 09-3728 (JLL)
OPINION

LINARES, District Judge:
Petitioner Daniel Javier Delgado (“Petitioner”) filed the instant Petition (“Petition”),
seeking a writ of habeas corpus, pursuant to 28 U.S.C. § 2254(a), and challenging a judgment of
conviction in the Superior Court of New Jersey. Respondent filed an answer to the Petition, and
Petitioner traversed. For the reasons expressed below, the Court will dismiss the Petition and
will decline to issue a certificate of appealability. See 28 U.S.C. §§ 2253(c), 2254(a), (b), (c).
I.

STANDARD OF REVIEW
Section 2254(a) of Title 28 of the United States Code gives the court jurisdiction to

entertain a habeas petition challenging a state conviction or sentence only where the inmate’s
custody violates federal law:
[A] district court shall entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution or laws or treaties of
the United States.
28 U.S.C. § 2254(a).

“In conducting habeas review, a federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S.
62, 67-68 (1991); 28 U.S.C. § 2254(a); accord Barry v. Bergen County Probation Dept., 128 F.3d
152, 159 (3d Cir. 1997). “Federal courts hold no supervisory authority over state judicial
proceedings and may intervene only to correct wrongs of constitutional dimension.” Smith v.
Phillips, 455 U.S. 209, 221 (1982). “If a state prisoner alleges no deprivation of a federal right, §
2254 is simply inapplicable. It is unnecessary in such a situation to inquire whether the prisoner
preserved his claim before the state courts.” Engle v. Isaac, 456 U.S. 107, 120 n.19 (1982).
“[E]rrors of state law cannot be repackaged as federal errors simply by citing the Due Process
Clause.” Johnson v. Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997). Moreover, “it is well
established that a state court’s misapplication of its own law does not generally raise a
constitutional claim.” Smith v. Horn, 120 F.3d 400, 414 (3d Cir. 1997) (citation omitted); see
also Smith v. Zimmerman, 768 F.2d 69, 71, 73 (3d Cir. 1985).
A district court must give deference to determinations of state courts. See Duncan v.
Morton, 256 F.3d 189, 196 (3d Cir.), cert. denied, 534 U.S. 919 (2001); Dickerson v. Vaughn, 90
F.3d 87, 90 (3d Cir. 1996). Federal courts “must presume that the factual findings of both state
trial and appellate courts are correct, a presumption that can only be overcome on the basis of
clear and convincing evidence to the contrary.” Stevens v. Delaware Correctional Center, 295

2

F.3d 361, 368 (3d Cir. 2002). Where a federal claim was “adjudicated on the merits” 1 in state
court proceedings, § 2254 does not permit habeas relief unless adjudication of the claim
(1)

resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal Law, as determined by the
Supreme Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).
A decision is “‘contrary to’ a Supreme Court holding if the state court ‘contradicts the
governing law [as it is interpreted or] set forth in [the Supreme Court’s, rather than in any state
court’s or any circuit court’s] cases’ or if it ‘confronts a set of facts that are materially
indistinguishable from a decision of th[e Supreme] Court and nevertheless arrives at a [different]
result.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
In other words, under the “‘unreasonable application’ clause, a federal habeas court may
grant the writ if the state court identifies the correct governing legal principle from th[e Supreme]
Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id.
at 413. Whether a state court’s application of federal law is “unreasonable” must be judged
objectively, which means that an application may be incorrect, but still not unreasonable. Id. at
409-10.

1

“An ‘adjudication on the merits’ has a well settled meaning: a decision finally resolving
the parties’ claims, with res judicata effect, that is based on the substance of the claim advanced,
rather than on a procedural, or other, ground.” Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir.
2001). A state court may render an adjudication or decision on the merits of a federal claim by
rejecting the claim without any discussion whatsoever; such determination is nonetheless subject
to same degree of deference for the purposes of the court sitting in habeas review. See
Harrington v. Richter, 2011 U.S. LEXIS 912 (U.S. Jan. 19, 2011).
3

A court begins the analysis by determining the relevant clearly established law. See
Yarborough v. Alvarado, 541 U.S. 652, 660 (2004). Clearly established law “refers to the
holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the
relevant state-court decision.” Williams, 529 U.S. at 412. A court must look for “the governing
legal principle or principles set forth by the Supreme Court at the time the state court renders its
decision.” Lockyer v. Andrade, 538 U.S. 63, 71, 72 (2003).
II.

FACTUAL AND PROCEDURAL BACKGROUND
A.

Evidence as to the Victim’s Death and Petitioner’s Motive for Murder

Petitioner was convicted of shooting to death a certain Daniel Cortez (“Cortez”). It is
undisputed that Cortez was shot right outside his house in Newark, and that shooting occurred at
the early morning hours of November 25, 1998.2
One week prior to the date of shooting, Petitioner’s girlfriend, Sandra Jorge (“Jorge”),
broke off her relationship with Petitioner. See Docket Entry No. 10-15. Apparently, half a year
prior to the shooting (May 1998), Jorge met Cortez and became intimate with him while being
still in relationship with Petitioner. See id. As a result of the foregoing, Cortez, seemingly,
developed an impression that he and Jorge were starting a relationship and, on May 30, 1998,
when Jorge and her female friend were walking through the streets of Newark, Cortez and his
friend, Antonio Aponte (“Aponte”), pulled over Cortez’s car so Cortez could chat with Jorge.
See id.; see also Docket Entry No. 10-17. During that Cortez’s chat with Jorge, Petitioner
appeared and approached Jorge questioning her why she was talking to Cortez. See Docket
2

On November 25, 1998, sunrise took place in Newark, New Jersey, at 6:55 a.m. See
<<http://www.timeanddate.com/worldclock/astronomy.html?n=861&month=11&year=1998&ob
j=sun&afl=-11&day=1>>.
4

Entry No. 10-15. That prompted an angry exchange between Cortez and Petitioner. However,
no physical altercation took place because the police arrived in these very minutes, before any
blows were actually struck, and took all the persons present at the event to the police station. See
Docket Entry No. 10-17. When everyone was released and leaving the police station, Petitioner
shook his fist at Cortez, exclaiming, “I’m going to get you!” See id.
The next week, that is, the first week of June 1998, Jorge confessed to Petitioner that she
and Cortez had been intimate. See Docket Entry No. 10-15. Petitioner grew visibly upset upon
learning this information and stated to Jorge that he would “get” Cortez. See id. As noted supra,
six months later, Jorge broke off her relationship with Petitioner and, one week after this breakoff, Cortez was shot from a small caliber revolver and died, right after the shooting, as a result of
blood loss from bullet wounds in his face, chest and shoulders. See Docket Entries Nos. 10-15
and 10-18.
B.

Evidence as to the Identity of the Shooter and Shooter’s Vehicle

Four persons witnessed the shooting: Al Bucci (“Bucci”), Edmund DiEduardo
(“DiEduardo”), Richie Munoz (“Minoz”), and Anthony Melillo (“Meillo”).
1.

Evidence Obtained from Bucci

Bucci, who, at the time, was thirty-one years old and lived on the same street as Cortez,
holding a second-floor apartment with his wife and son, was the person who called the police
after the shooting took place. See Docket Entry No. 10-12. At about 7:00 a.m. on the day of
shooting, Bucci went outside to start his van (in order to warm it up) and, as he was returning
back to his apartment, he heard gunshots. See id. Bucci then ran upstairs and looked outside,
through his window, being about 10 to 15 yards away from the scene. See id. Although Bucci
5

did not see the face of the shooter, he clearly saw one person shooting another. See id. He also
noticed a maroon van and a black Honda that were parked in the street, and he observed that the
victim was trying to hide behind the Honda while the shooter was standing next to the van. See
id. Bucci saw that the victim had his hands up and, when the victim fell to the ground, the
shooter leaned over the victim, shot him one more time and then jumped into the van and sped
away. See id.
Bucci described the shooter’s vehicle as the one resembling a “Caravan” minivan and
noted that it had a missing hubcap and an “old style” New Jersey license plate, in the sense that
the license plate was blue with white letters. See id. Bucci was able to make out only the first
three letters of the license plate; according to him, these letters were “HAI.” See id.
As noted supra, Bucci was the one who called the police; he also went to the police
station to give his statement as to all the information detailed above. See id. A few days later,
the police visited Bucci at his house and showed him pictures of a certain van (or, perhaps,
pictures of various vans), but Bicci was unable to identify the van used by the shooter from these
photos. See id. In light of this fact, police detectives drove Bucci to look at a certain van in
physical reality. See id. Upon observing that van, Bucci stated that he was 75% sure it was the
van used by the shooter. See id.
About half a year later, Bucci was asked, once again, to examine various photographs of
vans and – upon such examination – he selected one photograph as the vehicle he saw during the
shooting.3 See id.
3

Police investigation of Cortez’s murder was in two parts, with the first part yielding
certain leads but not producing sufficient information to prosecute. The second part was
(continued...)
6

2.

Evidence Obtained from DiEduardo

DiEduardo, a then-71-year-old individual, was Bucci’s ground-floor neighbor. See
Docket Entry No. 10-15. On the day of the shooting, at about 7:10 a.m., he was returning home
from a delicatessen where he had his coffee. See id. As he was approaching the scene of the
crime, he heard gunshots and hid behind a parked car. See id. Being about 32 feet away from
the scene, DiEduardo saw a person who shot another person in the head, with a small revolver,
and then ran to his parked vehicle and sped off. See id.
DiEduardo was visited by the police at his place of employ. See id. The policemen
showed DiEduardo some photographs, but DiEduardo declined to make any identification,
initially claiming that it was too early in the morning and, hence, too dark to see clearly at the
time of the shooting and, later on, noting his concern that his life might be in danger if he were to
identify the shooter in front of other employees. See id.; see also Docket Entry No. 10-13.
When, later on, DiEduardo met in private with two police detectives and was presented
with an array of photographs, he picked out Petitioner’s photo as the one depicting the shooter.
See Docket Entry No. 1-15. DiEduardo also identified Petitioner as the shooter during
Petitioner’s trial. See id.
3.

Evidence Obtained from Munoz

At the time of the shooting, Munoz, Cortez’ cousin, was only 11 years old. See Docket
Entry No. 10-16. He was living in a second floor apartment at the house not far from that
3

(...continued)
conducted by detectives from the “Cold Case” group who cured certain shortcomings that
poisoned the first part of the investigation. The peculiarity of this two-part investigation caused,
in turn, three-month-to-half-a-year gaps between the first round of witnesses’ interviews and
presentment of arrays of photographs and the second round of the same.
7

occupied by the Buccies and DiEduardo; the first floor apartment of Minoz’s house was occupied
by Cortez. See id.
On the day of the shooting, Munoz was awakened at about 7:00 a.m. by a certain noise.
He then heard a car alarm and recognized it to be the alarm from Cortez’ Honda. See id. With
that, Munoz fully woke up and went to brush his teeth, and then began getting dressed for school.
See id. At that time, he heard gunshots from outside and ran to his living room window to look.
See id. He saw a vehicle, which he made out as a blue Plymouth van, situated near Cortez’s
Honda, and he also saw a light-skinned male with short dark hair4 who seemed shooting at what
Munoz thought were his cousin’s car’s tires. See id. (Munoz never actually saw the particular
gun used in the shooting.) Upon hearing four to six gunshots, Munoz saw the shooter getting
into the van and speeding off. See id. Once the van left, Munoz saw that Cortez was lying on
the ground, next to Cortez’s car, and so Munoz ran outside just to see his cousin die. See id.
Later on the day of the shooting, the police came to Munoz’s house and showed him an
array of photos. Munoz picked out two pictures stating that, in his opinion, the depicted men
both looked similar to the shooter. See id. Apparently, Munoz was positive that the shooter was
depicted in one of this photos, but he was too nervous to tell the fact of his positive identification
to the police, being seemingly just an 11-year-old shaken by the death he witnesses first time in
his life and, in addition, by the fact that, after the shooting, his brother began acting “crazy.” See
id.; see also Docket Entry No. 10-13. Munoz was also shown a van on the day of the shooting,

4

There is no dispute that Petitioner is a light-skinned Hispanic male. See <<https://
www6.state.nj.us/DOC_Inmate/details?x=1210545&n=3>>. There also appears to be no dispute
that, at the time of shooting, Petitioner had a short haircut and small amount of facial hair.
8

but he was unable to identify that van as the vehicle used by the shooter. See Docket Entry No.
10-16.
However, a short time later, Munoz actually saw what he believed to be the shooter’s van,
located right in front of Munoz’s school, and that encounter seemingly assisted Munoz in putting
the picture of the van together in his mind. See id. Morever, on another occasion, Munoz
managed to see the shooter himself, as the shooter was making a round in Munoz’s
neighborhood. See id.
More than half a year after the shooting, Munoz again met with the police; at this meeting
he was again shown an array of photographs. See id. This time around, Munoz unequivocally
selected Petitioner’s photo as the one depicting the shooter. See id. He also easily picked out a
photograph of the van that was used by the shooter on the day of the crime. See id. When asked
to explain why he was so certain about his identifications of the shooter and the van this time
around, Munoz clarified that, over the time after the shooting, he managed to calm down, had
become less shaken by what he saw and could better reflect on his impressions. See id.
During Petitioner’s trial, Munoz unequivocally identified Petitioner as Cortez’s shooter.
See id.
4.

Evidence Obtained from Melillo

The last witness to the shooting was Melillo who, at that time, was 38. Melillo, a person
suffering from an on-and-off drug problem and having several convictions, was not under
influence of drug or alcohol on the day of the shooting. See Docket Entry No. 10-16. Early in
the morning of that day, Melillo was having coffee, when he observed a burgundy van, holding
seemingly two men, slowly driving around the neighborhood and turning the corner. See id.
9

Soon thereafter, the van reappeared; it was right at moment when Cortez came out of his
apartment and was crossing the street toward his Honda. See id. At that time, Melillo observed
that the van had become populated only by its driver, whom Melillo defined as a Hispanic male
with a short haircut and a little facial hair. See id.
Being located about 45 feet away from the scene, Melillo observed the van to pull up to
Cortez, causing Cortez to turn around to look at the driver and be shot, four times, during the
period of about 30 seconds. See id. Melillo believed that the driver shot Cortez out of the van’s
window, without even getting out, and then sped away. See id. Melillo testified that, as the van
was leaving, the driver looking at Melillo for the period of at least ten seconds, allowing Melillo
a good study of the shooter’s facial features. See id.
Melillo remained at the crime scene until the police arrived, but he did not volunteer to
talk to the police, being not interested in getting involved. See id. When he was contacted by the
police three weeks later and arrived to the police station, the detective who interviewing him
treated Melillo as a criminal and drug addict, prompting Melillo to intentionally provide false
information in order to get out of the investigative efforts and, also, as a revenge for being treated
in such a disrespectful manner. See id.
However when Melillo was contacted by two different detectives about half a year later,
he decided to cooperate. See id. Being offered a photo array of suspects, Melillo unequivocally
picked Petitioner as the shooter, and he also identified the photograph of the van used in the
shooting. See id. During Petitioner’s trial, Melillo again identified Petitioner as the person who
shot Cortez. See id.

10

C.

Investigation of Petitioner and the Van

After the initial information was collected from the witnesses, the first stages of
investigation were handled by Officer Garcia. See Docket Entry No. 10-13. Thirty-six minivans
having licence plates beginning with “HAI” or “HA1” were identified in New Jersey. See id.
One of these vehicles was selected as the one likely matching the description of the shooter’s
van. That particular van turned out being registered to Petitioner’s mother, Grisell Alvarez. See
id.; see also Docket Entry No. 10-14. Upon its physical examination, Petitioner’s mother’s van
turned out to be a burgundy-color Plymouth Voyager5 vehicle with a missing hubcap and an
old-style New Jersey license plate. See Docket Entry No. 10-13. Upon this discovery, Petitioner
was photographed, with his consent. (This photograph was later on used by the police as part of
photo arrays shown to the witnesses. See id.) One month later, that is, in December 1998,
Officer Garcia asked Petitioner to give a formal statement as to Petitioner’s whereabouts and
activities on the day of the shooting.6 See Docket Entry No. 10-14. Petitioner’s demeanor
during this session of questioning struck Garcia as extraordinary, since Petitioner – while not
appearing to be under the influence of drugs and alcohol – was so nervous that he kept shaking
uncontrollably, almost sliding off his chair. See id.
In his statement to Garcia, Petitioner claimed that – on the night preceding the day of the
shooting – he had slept at his mother’s house, waking up at about 6:00 a.m. and leaving the
house about half an hour later. See id. He maintained that he just stopped by for breakfast and

5

The parties appear in agreement that a Plymouth Voyager and a Dodge Caravan are
vehicles sufficiently similar in their overall shapes.
6

Although Petitioner was not arrested, Garcia – out of abundance of caution – read
Petitioner his Miranda rights prior to questioning.
11

then proceeded to his workplace in Union, New Jersey, where he arrived one hour later, that is, at
about 7:30 a.m. See id. He admitted that, on that morning, he was driving his mother’s
burgundy van, the very one with one missing hubcap and old New Jersey licence place having
the letters fitting the description provided by Bucci. See id.
Petitioner also admitted seeing Cortez during Cortez’s conversation with Jorge in May
1998. However, Petitioner denied ever threatening Cortez or even having any friction with
Cortez during that occurrence, even though it appears undisputed that the interaction between the
parties present at the occurrence resulted in police taking of Petitioner, Cortez, Aponte, Jorge and
Jogre’s friend to the police station. See id.
D.

Petitioner’s Trial and Following Proceedings

Petitioner’s trial judge conducted a pretrial Wade hearing and determined that the
out-of-court photo identifications procedures used by the police were not improper. See Docket
Entries Nos. 10-2 and 10-3. Upon so determining, the trial judge allowed the State to use this
evidence at trial. However, that first trial ended in a mistrial when it became known that the
prosecutor had failed to provide Petitioner’s counsel with information about some of those
incidents when the State’s witnesses either failed or refused to identify Petitioner and his
mother’s van, or when they expressed uncertainties as to their identification, or made
dual/alternative identifications. See Docket Entry No. 10-26.
Following this mistrial, the second trial was conducted, prior to which Petitioner’s
counsel was informed about every positive, equivocal, and missed witness’ identification that
took place before the trial. In response, Petitioner’s counsel crafted a defense theory which was
effectively based on Petitioner’s claims that the witnesses misidentified Petitioner as the shooter
12

(and misidentified his mother’s van as the shooter’s vehicle); in connection with that theory,
Petitioner’s counsel took every opportunity to: (a) explore the State’s witnesses’ uncertainties,
dual/alternative identifications and misidentifications by means of extensive cross-examination;
and (b) highlight to the jurors these witnesses’ uncertainties and misidentifications, in order to
stress Petitioner’s position as to the reasonableness of doubt.
Petitioner did not testify. The jurors, weighing on credibility/reliability of the State’s
witnesses and their identifications, found that Petitioner murdered Cortez. Therefore, the jury
returned the verdict of guilty.
Petitioner appealed, essentially arguing that admission into evidence of witnesses’ out-ofcourt and in-court positive identifications of Petitioner violated Petitioner’s due process rights
because these identifications took place after witnesses’ initial out-of-court failures or
uncertainties, or refusals to identify Petitioner or his mother’s van, and hence all such positive
identifications should have been not only challenged before jurors but altogether excluded from
evidence. See Docket Entries Nos. 11-1, 11-4 and 11-5. In addition, Petitioner argued that his
right to a public trial was violated during a brief period of voir dire. See Docket Entry No. 11-1.
After a temporary remand (for the narrow purposes of record settlement as to the public trial
aspect),7 see Docket Entry No. 11-2, the Appellate Division affirmed Petitioner’s conviction and
sentence. See Docket Entry No. 11-8. The Supreme Court of New Jersey granted Petitioner
certification as to his first claim, that is, the due process rights-based aspect, see Docket Entry
No. 11-11, and, too, affirmed his conviction stressing that, during Petitioner’s second trial,
Petitioner’s counsel’s knowledge of all out-of-court misidentifications and uncertainties of the
7

See infra, Section IV(B)(1) of this Opinion, detailing relevant events.
13

State’s witnesses and the counsel’s resulting thorough attacks on credibility/ reliability of the
State’s witnesses’ identifications of Petitioner and his mother’s van sufficiently safeguarded
Petitioner’s due process rights. See Docket Entry No. 11-16.
Petitioner then filed his PCR application, effectively rehashing his original due process
arguments into a claim that the prosecutor must have presented “false” testimony of State’s
witnesses, and added a handful of other claims. See Docket Entries Nos. 11-17 and 11-18.
After this PCR application was dismissed by the Law Division, see Docket Entry No. 1121, Petitioner appealed, see Docket Entries Nos. 11-22 and 11-23. This appeal resulted in the
Appellate Division’s affirmance of the Law Division’s determination. See Docket Entry No. 1125. See Docket Entry No. 11-27. When the Supreme Court of New Jersey denied Petitioner
certification as to his PCR challenges, the instant Petition followed. See Docket Entry No. 1.
III.

PETITIONER’S INSTANT CHALLENGES
Petitioner raised five Grounds in this action. Specifically, he asserted:

Ground One:

The state court’s ruling that the petitioner was not deprived of his
Fourteenth Amendment constitutional right to a fair trial by the
failure of the trial court to suppress an impermissibly suggestive
photo identification of [the] petitioner and a separate identification
of his van from a photo array[,] by the failure of the police to make
a record of an exculpatory non-identification[,] was contrary to
clearly established federal law . . . .

Ground Two:

The state court’s ruling that [the] petitioner was not
deprived of his Sixth Amendment right to a public trial was
violated when the trial court removed the spectators from the
courtroom during jury selection was contrary to clearly
established federal law . . . .

Ground Three:

The state court’s ruling that [the] petitioner was not deprived of
due process right to a fair trial by the prosecutor’s knowing
presentation of false testimony from two eyewitnesses, . . . Munoz
14

and . . . Bucci, and by her failure to correct that testimony after it
was presented to the jury was contrary to clearly established federal
law . . . .
Ground Four:

The state court’s ruling that [the] petitioner was not deprived of his
Sixth Amendment constitutional rights to the effective assistance
of counsel when his attorney failed to present testimony from
De[tective] De Maio, who would have directly contradicted the
testimony of . . . Bucci when shown the [Petitioner’s] van parked
on the street he told the police that he was 75 percent sure that it
was the van used in the crime was contrary to clearly established
federal law . . . .

Ground Five:

The state court’s ruling that the jury charge on identification, which
made no mention of the witnesses’ failed identification attempts,
was not so incomplete as to deprive [the] petitioner of his due
process right to a fair trial was contrary to clearly established
federal law . . . .

Docket Entry No. 1-2.
IV.

DISCUSSION
A.

Challenges Based on Introduction of Evidence

The bulk of Petitioner’s discussion with regard to his Ground One mounts challenges to
presentation of evidence during his first trial, the one which resulted in a declaration of mistrial.
These challenges are simply irrelevant to the Court’s analysis, since Petitioner is not in
confinement pursuant to any judgement of conviction resulting from that trial.
With regard to his second trial, the one which resulted in his conviction, Petitioner
maintains that – even though his counsel was made aware of every uncertainty/misidentification
of the State’s witnesses’ identifications and presented these uncertainties/misidentifications to
the jury through many rounds of vigorous and lengthy cross-examination (plus highlighted the
same in the counsel’s opening and closing statements), these measures were still insufficient to

15

protect Petitioner’s due process rights. Essentially, Petitioner maintains that the only sufficient
due process measure would be suppression of all positive identifications that were obtained after
the State’s witnesses expressed uncertainties or failed to make identifications. Since Petitioner
concedes that the State’s case against him was based on witnesses’ statements and connections of
these statements to physical evidence, such as the car being a burgundy minivan, a missing
hubcap, an old New Jersey licence plate, etc., Petitioner’s position – if taken to its logical
conclusion – suggests that his due process rights would be duly protected only if the State would
wholly be stripped from every piece of testimonial evidence to make its case. This, however, is
not the governing legal principle.
The Supreme Court has observed that improper pretrial identification procedures by
police may cause witnesses to misidentify a criminal. See Simmons v. United States, 390 U.S.
377, 383 (1968). An identification procedure may be deemed unduly and unnecessarily
suggestive if it is based on police procedures that create “a very substantial likelihood of
irreparable misidentification.” Id. at 384. In such scenario, “the witness thereafter is apt to retain
in his memory the image of the [misidentification] rather than that of the person actually seen,
reducing the trustworthiness of subsequent lineup or courtroom identification.” Id. at 383-84. “It
is the likelihood of misidentification which violates a defendant's right to due process . . . .
Suggestive confrontations are disapproved because they increase the likelihood of
misidentification.” Neil v. Biggers, 409 U.S. 188, 198 (1972).
Even if an identification procedure is unnecessarily suggestive, admission of the
suggestive identification does not violate due process so long as the identification possesses
sufficient aspects of reliability, see Manson v. Brathwaite, 432 U.S. 98, 106 (1977), for reliability
16

is the “linchpin in determining the admissibility of identification testimony.” Id. at 114; see also
United States v. Wise, 515 F. 3d 207, 215 (3d Cir. 2008). Thus, the central question is “‘whether
under the totality of the circumstances the identification was reliable even though the
confrontation procedure was suggestive.’” Brathwaite, 432 U.S. at 106 (quoting Biggers, 409
U.S. at 199); see also United States v. Maloney, 513 F. 3d 350, 355 (3d Cir. 2008). Factors to be
considered include “the opportunity of the witness to view the criminal at the time of the crime,
the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the
level of certainty demonstrated by the witness at the confrontation, and the length of time
between the crime and the confrontation.” Biggers, 409 U.S. at 199. Significantly, where
“identifications were entirely based upon observations at the time of the [incident] and not at all
induced by the conduct” of the pretrial identification procedures, the identification does not
violate due process. See Coleman v. Alabama, 399 U.S. 1, 7 (1970).
Moreover, while the Supreme Court has recognized that “improper employment of
photographs by police may sometimes cause witnesses to err in identifying criminals,” Simmons,
390 U.S. at 383, and identified certain procedures that heighten the risk of misidentification
(including such practices as displaying the photo of only a single individual who generally
resembles the person the witness saw, showing the witness photos of several persons among
which the photograph of a single individual recurs or is in some way emphasized, or indicating to
the witness that police have other evidence that one of the persons pictured committed the crime,
see id.), the Supreme Court – despite the risk of misidentification – has never prohibited the
employment of photographic identification methods, either in the exercise of its supervisory
power or as a matter of constitutional requirement. See id. The Court only required that each
17

case must be considered on its own facts and must be evaluated in light of the totality of
surrounding circumstances, stressing that the risk of conviction based on photo misidentification
“may be substantially lessened by a course of cross-examination at trial which exposes to the jury
the method's potential for error.” Id.
In light of the foregoing, Petitioner’s position asserting that the State’s witnesses’ positive
identifications had to be suppressed simply because they were obtained after the State’s
witnesses failed to make identifications or expressed doubts, or stated their reservations to make
an identification, or made dual/alternative identifications, is facially without merit. Moreover,
short of noting that Bucci was shown, in actuality, Petitioner’s mother’s van (and, in response to
such showing, stated that he was 75% sure it was the shooter’s van), Petitioner does not point out
to any action by the police that could be qualified, with any stretch of imagination, as
“suggestive”:8 all he does is rehash the initial uncertainties and misidentifications that the State’s
witnesses expressed or made. Because any such shortcomings in the witnesses’ identifications
and testimonies were clearly conveyed to the jurors for the purposes of the jury’s assessment of

8

Even assuming, arguendo (and without making a finding as such), that the protective
due process measures ensuring against misidentification of criminal defendants apply also to
identifications of tangible items, such as a van, such would not salvage Petitioner’s claims since
the physical showing of Petitioner’s mother’s van to Bucci was neither a “suggestive” act by the
police nor produced an identification with certainty. Moreover, Petitioner’s vaguely asserted
contention that, at a later point, Bucci might have been shown a photo array consisting only of
Polaroid photos of Petitioner’s mother’s van plays against Petitioner, since such showing, again,
resulted – as Petitioner himself admits – in Bucci’s statement that the so-photographed van was
not the one which Bucci could identify as the shooter’s. Hence, such if such an array could be
qualified as “suggestive,” it did not yield a result that the State could rely upon; rather, it yielded
a result that Petitioner could capitalize on. And, if the Court were to factor into the aforesaid
analysis the fact that all Bucci’s uncertainties were highlighted to Petitioner’s jurors during
detailed cross-examination, Petitioner’s due process claim based on the witnesses’ identifications
of the van becomes patently meritless.
18

credibility/reliability of the witnesses’ out-of-court and in-court identifications, the Court finds
that Petitioner’s due process rights were not violated during his re-trial.
Consequently, the state courts’ dismissal of this line of Petitioner’s challenges was not an
unreasonable application of Supreme Court precedent, and Petitioner’s assertion of such
unreasonableness is without merit and warrants no habeas relief.
B.

Challenges Based on Public Trial Clause
1.

Pertinent Background

The voir dire proceedings in Petitioner’s trial took two days, January 30 and 31 of 2001.
See Docket Entries Nos. 10-10 and 10-11. After a number of peremptory challenges,
disqualifications and excuses of venire persons with regard to the first panel of jurors, which was
voir dired on January 31, Petitioner’s trial judge (“Judge Petrolle”) had to order another panel of
jurors, so the selection process could continue to complete the then-uncomplected jury. See
Docket Entry No. 10-11. Noting that the courtroom facility was rather small, and the total
number of venire persons from the remainder of the first panel and the upcoming second panel
could become quite large, Judge Petrolle inquired with Petitioner’s counsel about the spectators
in the courtroom. See id. In response, Petitioner’s counsel advised Judge Petrolle that these
spectators were Petitioner’s relatives. See id. Judge Petrolle replied by observing that the
courtroom was a public place and the trial was, indeed, public, but – since there was a large
number of jurors in the courtroom, Judge Petrolle would ask Petitioner’s relatives to remain away
from the jurors. See id. In addition, Judge Petrolle noted that, if the second panel comes in and
takes the courtroom’s entire capacity, then the spectators would have to be placed outside the
courtroom. See id. Judge Petrolle stressed that such measure, if used, would be employed only
19

to accommodate potential jurors, who were, by definition, critical to Petitioner’s trial. See id.
Judge Petrolle closed that observation by a clarification that, in the event the spectators/relatives
were asked to step out, they would be allowed back into the courtroom once space becomes
available. See id. Petitioner’s counsel did not take issue with utilizing such measures. See id.
The record does not show that the overcrowding situation ever developed to such a
degree that Judge Petrolle actually asked any spectator to leave the courtroom. See id. To the
contrary, the record reflects that, when the jury was selected and sworn on January 31, Judge
Petrolle concluded that day’s proceedings by making a directive to “everyone else” to remain in
the courtroom until the jurors were off the floor. See id. The language of this directive strongly
suggested that the spectators actually remained in the courtroom during the entire jury selection
process.
Petitioner, however, maintained on direct appeal that his relatives, including his mother,
were directed by Judge Petrolle to leave the courtroom on January 31, at the point when the
second jury panel was brought in. See Docket Entry No. 11-1. In accordance with that position,
Petitioner moved the Appellate Division for a remand to settle the record as to the factual issue
of whether spectators were actually excluded from the courtroom during a certain period of the
second voir dire day. See id. The Appellate Division granted Petitioner’s request. See Docket
Entry No. 11-2.
Upon that remand, Judge Petrolle held a hearing, at which Petitioner, his trial counsel and
the prosecutor participated trying to reconstruct, based on their memory, the events of the January
31 voir dire. See Docket Entry No. 11-3. Petitioner reasserted his position that his family
members were ordered to leave the courtroom when the second jury panel was brought in. See

20

id. Petitioner stated that he did not recall whether they were allowed back in and, if yes, when
exactly. See id. The prosecutor and Petitioner’s counsel conceded that they both had no specific
recollection as to the issue of whether spectators were asked to leave the courtroom during this
second day of voir dire, although Petitioner’s counsel had a recollection of going, at some point
during the trial, to see Petitioner’s family members in the hallway. See id.
Same as both counsel, Judge Petrolle had no specific recollections as to having spectators
excluded for any period of time. See id. He also noted that, as a general matter, he did not have
any policy regarding exclusion of spectators during criminal trials. See id. With that, Judge
Petrolle turned to the January 31, 2001, transcript of jury selection and to his “judge’s list” of
jurors from that date. See id. His list indicated that 46 new venire persons were included in that
second panel. See id. Since this number was substantially less than the number of seats in the
courtroom, which benches could accommodate between 70 to 80 persons, Judge Petrolle
concluded that there had not been a time when there were not enough seats in the courtroom to
accommodate all the people who sought to be present, and – since he could not fancy a situation
when he would exclude spectators for a reason other than overcrowding or cause, such as an
inappropriate behavior, – he found that no exclusion of spectators actually took place at any point
in time. See id. In other words, Judge Petrolle found, as a fact, that he never acted upon his
concern to exclude the spectators in the event excessive overcrowding occurs. See id.
During the course of his appeal, Petitioner never provided any statement from any of his
relatives, including his mother, which would verify his claim that spectators were excluded from
the courtroom by Judge Petrolle for any period of time. See Docket Entries Nos. 11-4 and 11-5.
In the same vein, Petitioner did not present any such statement to this Court, see Docket Entry

21

No. 1, asserting that he had no power to subpoena his relatives’ (or his mother’s) statements. See
Docket Entry No. 12.
2.

Petitioner’s Ground Two Is Without Merit

As noted supra, the court sitting in habeas review must give deference to determinations
of state courts. See Duncan, 256 F.3d at 196; Dickerson, 90 F.3d at 90. Thus, federal courts
“must presume that the factual findings of both state trial and appellate courts are correct, a
presumption that can only be overcome on the basis of clear and convincing evidence to the
contrary.” Stevens, 295 F.3d at 368.
Here, Petitioner presents, as the sole piece of evidence, his self-serving recollection. That
recollection cannot operate as a clear and convincing evidence offsetting Judge Petrolle’s factual
finding that no exclusion of spectators took place during any period of time on January 31, 2001.
Therefore, on this basis alone, Petitioner’s challenges fail. Moreover, based on the reasons that
follow, even assuming, arguendo, that a brief exclusion, caused by excessive overcrowding,
actually took place, such occurrence still would not salvage Petitioner’s claims.
As a preliminary matter, the Supreme Court has held that the First Amendment
guarantees of a public right encompass voir dire proceedings. See Press-Enterprise Co. v.
Superior Court of California, 464 U.S. 501, 505 (1984) (right to public jury selection); Gibbons
v. Savage, 555 F.3d 112, 115 (2d Cir. 2009) (“The defendant has a right to an open, public trial,
including during the jury selection”), cert. denied, 130 S. Ct. 61 (2009). In addition, the Sixth
Amendment guarantees a defendant the “right to a speedy and public trial, by an impartial jury.”
U.S. Const. amend. VI. “The requirement of a public trial is for the benefit of the accused; that
the public may see he is fairly dealt with and not unjustly condemned, and that the presence of

22

interested spectators may keep his triers keenly alive to a sense of their responsibility and to the
importance of their functions . . . .” Waller v. Georgia, 467 U.S. 39, 46 (1984) (quoting Gannett
Co., Inc. v. DePasquale, 443 U.S. 368, 380 (1979)). A “party seeking to close a hearing must
advance an overriding interest that is likely to be prejudiced, the closure must be no broader than
necessary to protect that interest, the trial court must consider reasonable alternatives to closing
the proceeding, and it must make findings adequate to support the closure.” See Waller, 467
U.S. at 48. If a violation occurs, although a defendant is not required to establish “specific
prejudice in order to obtain relief,” a new trial is not always required. See id. at 49. Moreover,
while the right to a public trial is an important structural right, it is also one that can be waived
when a defendant fails to object or outright concedes to the closure of the courtroom, that is, if
the justification for closure is sufficient. See Freytag v. Commissioner, 501 U.S. 868, 896 (1991)
(“[T]he Sixth Amendment right to a trial that is ‘public,’ provide[s] benefits to the entire society
more important than many structural guarantees; but if the litigant does not assert [it] in a timely
fashion, he is foreclosed”).
These considerations were highlighted in the Supreme Court’s recent decision in Presley
v. Georgia, 130 S. Ct. 721 (2010). In Presley, the Supreme Court reversed a criminal judgment
where the trial court excluded the sole spectator, the defendant’s uncle, from the courtroom
during voir dire upon the trial judge’s concern that jurors might overhear inherently prejudicial
remarks from the uncle. Presley's counsel expressly objected to such exclusion. Moreover, when
Presley's counsel asked for some accommodations of the defendant’s uncle, the court refused
stating the uncle could come back in only when the trial would start.

23

Noting evidence showing that the prospective jurors could have been accommodated in
the courtroom while still leaving adequate room for the uncle, the Supreme Court found the trial
court’s determination a violation of Presley’s Sixth Amendment rights, explaining that “[t]here
are no doubt circumstances where a judge could conclude that threats of improper
communications with jurors or safety concerns are concrete enough to warrant closing voir dire.
But in those cases, the particular interest, and threat to that interest, must be articulated along
with findings specific enough that a reviewing court can determine whether the closure order was
properly entered.” Id. at 725 (internal quotation marks and citations omitted).
Here, the record unambiguously indicates Judge Petrolle’s conclusion that exclusion of
spectators would be warranted if, and only if, the overcrowding would become so excessive as to
prevent accommodation of the venire persons in the courtroom, and – until such situation
actually occurs – every measure would be taken to preserve Petitioner’s right to public trial.
Petitioner’s counsel, being availed to Judge Petrolle’s clear explanations of the reasons for
potential exclusion – expressly waived any objections to such measure. Hence, even if this Court
were to hypothesize that the overcrowding became such that a brief exclusion became necessary,
both Judge Petrolle’s clear articulation of the specific trigger for such exclusion, coupled with
Petitioner’s counsel’s express waiver of objection, indicates that Petitioner’s Sixth Amendment
rights were not violated.9

9

Notably, the decision in Presley put a much higher bench-mark than that existing during
the pre-Presley period. See Presley, 130 S. Ct. at 725-27 (Thomas, Scalia, JJ., dissenting)
(discussing the distinctions between First Amendment and Sixth Amendment protections and
suggesting that a lower bar was set under the Sixth Amendment law, allowing a broader judicial
discretion as to spectator exclusion). Therefore, the high requirements of Presley do not
expressly apply to the Court’s review of Petitioner’s state courts’ determinations rendered long
(continued...)
24

Therefore, Petitioner’s position that the state courts’ dismissal of this line of Petitioner’s
challenges was an unreasonable application of Supreme Court precedent is without merit.
Consequently, it warrants no habeas relief.
C.

Challenges Based on Prosecutorial Conduct and Statements

Here, Petitioner’s Ground Three challenges are two-fold. On the one hand, Petitioner
maintains that the prosecutor knew that Bucci and Munoz’s testimonies were false, but did allow
that falsity go uncorrected. On the another hand, Petitioner tries to supplement his challenges to
that effect by asserting that the prosecutor violated his due process rights when: (a) in her
opening statement, she gave a characterizing preview of Munoz’ testimony; and (b) in her
closing statement, she gave a characterization of Bucci’s testimony. Both aspects of Petitioner’s
Ground Three are without merit.
In Napue v. Illinois, 360 U.S. 264, 269 (1969), and Giglio v. United States, 405 U.S. 150,
153-55 (1972), the Supreme Court held that a defendant's right to due process is implicated when
the state obtains a conviction based upon testimony the state knows is perjured. In both Napue
and Giglio, the state's eyewitnesses, on whose testimonies those cases literally turned, were either
facing the prospect of prosecution or had already been convicted. Although both these witnesses
were promised consideration from the state in return for their testimony at trial, they both falsely
testified that they had not been promised anything for their testimony. Later on, it was factually
shown that the state prosecutors in both cases knew – at the time when these testimonies were

9

(...continued)
before the Supreme Court ruled in Presley. See Williams, 529 U.S. at 412 (habeas review is
conducted in light of Supreme Court precedent existing “as of the time of the relevant state-court
decision”). However, here, the decisions of state courts do meet even the high bar posed by
Presley years after these state court decisions were issued.
25

given – that these testimonies were unambiguously false, but did nothing to correct the falsity.
The Supreme Court found such prosecutorial conduct a violation of due process: when the
“reliability of a given witness [is] determinative of guilt or innocence,” prosecutorial use of or
acquiescence to false testimony violates constitutional safeguards. See Giglio, 405 U.S. at 154;
Napue, 360 U.S. at 269. Here, the safeguards of Giglio and Napue are not implicated.
Petitioner raised his challenges to the prosecutor’s introduction of Bucci and Munoz’s
testimonies during his PCR proceedings. Judge Petrolle found, as a fact, that no false testimony
was presented. Specifically, addressing Petitioner’s distinction between Bucci’s statement (that
Bucci was only 75% sure that the van he was physically shown by the police was the vehicle
used by the shooter) and Detective De Maio’s statement (that Bucci could not make a positive
identification of Petitioner’s mother’s van when Bucci was shown the van), Judge Petrolle
concluded that these statements were easily harmonizable, since – in terms of police
investigation – Bucci’s 75% certainty was not a sufficient enough positive identification.
Petitioner does not offer the Court any clear and convincing evidence that Judge Petrolle erred in
his finding of Bucci’s lack of falsity and in his derivative factual finding of lack of prosecutorial
knowledge of falsity. In fact, Petitioner offers this Court no evidence whatsoever: all he offers is
his self-serving characterization of Bucci and De Maio’s testimonies and his self-serving
deducement that the distinction should be interpreted as both Bucci’s falsity and the prosecutor’s
knowledge of such falsity. Such allegations, however, cannot support a viable fact-based claim.
The same shortcomings plague Petitioner’s challenges based on Munoz’s testimony. In
connection with Munoz’s account of events and post-murder rounds of identification, the jurors
were informed of Munoz’s initial selection of two photos, and Munoz’s explanation that he did

26

not disclose his positive choice of Petitioner’s photo as that of the assailant because Munoz – on
the day of the murder – was a shocked 11-year-old who wanted to cut his interactions with the
police short. During Petitioner’s trial, Munoz utilized such words “upset and nervous” to define
the emotions he was experiencing on that day. In her opening statement, the prosecutor – giving
the jurors a roadmap of the upcoming testimonies, including Munoz’s upcoming testimony –
defined Munoz’s emotions on the day of the murder as those of being “scared/afraid.” Petitioner
asserted during his PCR, and maintains now, his puzzling deducement that this semantical
difference must mean that the prosecutor knew of Munoz’s testimony to be false and, moreover,
prompted/coached Munoz to testify falsely. This Court agrees with Judge Petrolle’s conclusion
that this difference in semantics and Petitioner’s vivid imagination cannot be read as indicative of
any falsehood on the part of Munoz (and, certainly, as the prosecutor’s knowledge of Munoz’s
falsity, moreover her “coaching” of Munoz). In other words, Petitioner’s self-serving far-fetched
conjecture cannot operate as clear and convincing evidence offsetting Judge Petrolle’s factual
findings.
Finally, returning to Bucci’s testimony, Petitioner asserts that the prosecutor violated his
due process rights when, addressing the jurors in her summation, she revisited Bucci’s “75%sure” statement. Specifically, in response to Petitioner’s counsel’s attacks on the credibility/
reliability of Bucci’s testimony, the prosecutor commented that Bucci’s clarification (i.e., Bucci’s
statement that he was only “75% sure”) was entered because, as a “conscientious” person, Bucci
did not want to misrepresent the fact that he was unable to make a 100% positive identification.
Petitioner claims that the prosecutor’s reference to Bucci as a “conscientious” person was an
undue vouching that violated Petitioner’s due process rights.

27

Where a prosecutor's opening or closing remarks are challenged in habeas, “[t]he relevant
question is whether the prosecutor's comments ‘so infected the trial with unfairness as to make
the resulting conviction a denial of due process.”” Darden v. Wainwright, 477 U.S. 168, 181
(1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). In evaluating the likely effect
of improper comments, a court may consider whether the improper comments were invited by
the particular circumstances of the trial. Cf. Darden, 477 U.S. at 181-82. Thus, “Supreme Court
precedent counsels that the reviewing court must examine the prosecutor's [challenged comment]
in context and in light of the entire trial, assessing the severity of the conduct [and] the effect of
the curative instructions.” Moore v. Morton, 255 F.3d 95, 107 (3d Cir. 2001). “Moreover, the
concept of ‘fair response’ allows a party to respond to statements made by opposing counsel.”
Forbes v. Ricci, 2011 U.S. Dist. LEXIS 480, at *53 (D.N.J. Jan. 3, 2011) (citing United States v.
Robinson, 485 U.S. 25, 32 (1988)).
Here, the prosecutor defined Bucci as a conscientious person in response, and as a
counter-explanation, to Petitioner’s counsel’s cross-examination of Bucci and summation, which
pointed out the uncertainties Bucci experienced and construed Bucci’s need to clarify that he was
only 75% sure in his identification as a statement indicative of lack of reliability of Bucci’s latermade out-of-court and in-court identifications. In light of Petitioner’s counsel’s position, the
prosecutorial comment challenged by Petitioner appears to be a properly crafted fair response. In
any event, this one-word comment did not so infect Petitioner’s trial with unfairness as to make
Petitioner’s conviction a denial of due process. Moreover, Petitioner’s hinted-at position that the
jurors might have unduly heeded to the prosecutor’s opening and closing comments by mistaking

28

them for evidence is without merit: neither opening nor closing statements are considered
evidence, and Petitioner’s jury was duly advised of the same.
Finally, the Court agrees with Judge Petrolle’s conclusion that Petitioner’s conviction did
not turn on such niceties as Bucci’s identification of Petitioner’s mother’s van; rather, it turned
on Bucci’s right-on-point immediately-post-murder descriptions (of the van, including the color
and type, the missing hubcap, the old New Jersey licence plate, the suiting plate lettering, etc.),
the statements about the murder obtained from all witnesses, Petitioner’s motif for this
otherwise-senseless murder, the temporal proximity between the murder and Jorge’s break-off
with Petitioner, the weakness of his “I was driving the van” alibi, his false denial of any frictions
with Cortez, and so on.
In light of the foregoing, Petitioner’s challenges, grouped into his Ground Three, are
without merit, and the state courts’ dismissal of these challenges was not an unreasonable
application of Supreme Court precedent. Therefore, Petitioner’s Ground Three will be dismissed
as not warranting habeas relief.
D.

Challenges Based on the Counsel Clause

Petitioner’s Ground Four asserts a violation of Petitioner’s Sixth Amendment right to
counsel.
The Sixth Amendment, applicable to states through the Due Process Clause of the
Fourteenth Amendment, guarantees the accused the “right . . . to have the Assistance of Counsel
for his defense.” U.S. Const. amend. VI. The right to counsel is the right to the effective
assistance of counsel, and counsel can deprive a defendant of the right by failing to render
adequate legal assistance. See Strickland v. Washington, 466 U.S. 668, 686 (1984).

29

A claim that counsel’s assistance was so defective as to require reversal of a conviction
has two components, both of which must be satisfied. See Strickland, 466 U.S. at 687. First, the
defendant must “show that counsel’s representation fell below an objective standard of
reasonableness.” Id. at 687-88. The court must then determine whether, in light of all the
circumstances at the time, the identified errors were so egregious that they were outside the wide
range of professionally competent assistance. See id.
To satisfy the prejudice prong, the defendant must show that “there is a reasonable
probability that, absent the errors, the factfinder would have had a reasonable doubt respecting
guilt.” Id. at 695. As the Supreme Court explained,
[i]n making this determination, a court hearing an ineffectiveness
claim must consider the totality of the evidence before the judge or
jury. Some of the factual findings will have been unaffected by the
errors, and factual findings that were affected will have been affected
in different ways. Some errors will have had a pervasive effect on the
inferences to be drawn from the evidence, altering the entire
evidentiary picture, and some will have had an isolated, trivial effect.
Moreover, a verdict or conclusion only weakly supported by the
record is more likely to have been affected by errors than one with
overwhelming record support. Taking the unaffected findings as a
given, and taking due account of the effect of the errors on the
remaining findings, a court making the prejudice inquiry must ask if
the defendant has met the burden of showing that the decision
reached would reasonably likely have been different absent the
errors.
Strickland, 466 U.S. at 695-96.10

10

The Supreme Court instructs that a court need not address both components of an
ineffective assistance claim “if the defendant makes an insufficient showing on one.” Strickland,
466 U.S. at 697. “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.” Id.
30

Here, Petitioner asserts that his counsel was ineffective for deciding not to call, during
Petitioner’s second trial, Detective De Maio in order to “impeach” Bucci. In line with his abovediscussed Ground Three challenges, Petitioner maintains that De Maio’s conclusion (that Bucci
failed to make a positive identification when Bucci was shown Petitioner’s mother’s van) must
be read as directly contradicting Bucci’s admission that he identified the van as being only “75%sure” that it was the shooter’s vehicle. However, as explained supra, De Maio and Bucci’s
statements are reconcilable. Therefore, Petitioner’s counsel could easily conclude that a
thorough cross-examination of Bucci, exploring his uncertainty and failure to identify the van,
was a strategy more effective than De Maio’s testimony. Consequently, Petitioner’s challenges
fail to meet even the first prong of the Strickland test and shall be dismissed accordingly.11
Moreover, Petitioner also fails to meet the second prong of Strickland. In light of the
extensive cross-examination of Bucci, which highlighted to the jurors Bucci’s uncertainty and
failure to identify, Petitioner’s position that De Maio’s testimony would have tipped the scale is
without merit. The content of De Maio’s potential testimony cannot be read as suggesting a
reasonable probability that – had the jurors heard De Maio’s statement and factored it into the
totality of evidence presented during Petitioner’s second trial – the jury would have had a
reasonable doubt with respect to Petitioner’s guilt.
Consequently, Petitioner’s challenges based on the Counsel Clause are without merit, and
the state courts’ decisions dismissing these challenges were not an unreasonable application of
Supreme Court precedent. Petitioner’s Ground Four will, thus, be dismissed.

11

Petitioner’s claim that De Maio could have been implemental in showing that Bucci
failed to identify Petitioner is divorced from the facts of Petitioner’s trial, since Bucci – who saw
only the shooter’s back – was never called to identify Petitioner, in court or out of court.
31

E.

Challenges Based on Jury Instructions

Finally, Petitioner’s Ground Five alleges that the jury instructions provided by his trial
judge violated Petitioner’s due process rights because the judge instructed the jurors on the issue
of witness identification but did not expressly hammer in the weaknesses of the State’s position.
Stripped of all niceties, Petitioner’s Ground Five effectively asserts that the instructions were
erroneous because the judge did not prejudicially skew them in Petitioner’s favor (by seeding an
undue emphasis adorned by the imprimatur of judicial opinion), but rather allowed the jurors to
make up their own minds.
Where a federal habeas petitioner challenges jury instructions given in a state criminal
proceeding,
the only question for [federal courts sitting in habeas review] is “whether the
ailing instruction by itself so infected the entire trial that the resulting conviction
violates due process.” It is well established that the instruction “may not be
judged in artificial isolation,” but must be considered in the context of the
instructions as a whole and the trial record. In addition, in reviewing an
ambiguous instruction . . . , [federal courts] inquire “whether there is a reasonable
likelihood that the jury has applied the challenged instruction in a way” that
violates the Constitution. And we also bear in mind our previous admonition that
[federal courts] “have defined the category of infractions that violate 'fundamental
fairness' very narrowly.” “Beyond the specific guarantees enumerated in the Bill
of Rights, the Due Process Clause has limited operation.”
Estelle v. McGuire, 502 U.S. 62, 72-73 (1991) (citations omitted).
Therefore, the Due Process Clause is violated only where “the erroneous instructions
have operated to lift the burden of proof on an essential element of an offense as defined by state
law.” Smith v. Horn, 120 F.3d 400, 416 (3d Cir. 1997); see also In re Winship, 397 U.S. 358, 364
(1970) (“the Due Process Clause protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute the crime with which he is

32

charged”); Sandstrom v. Montana, 442 U.S. 510, 523 (1979) (jury instructions that suggest a jury
may convict without proving each element of a crime beyond a reasonable doubt violate the
constitutional rights of the accused).
Here, there is no dispute that the instructions given by Petitioner’s trial judge were almost
a carbon copy of the model jury charge and, as such, they adequately highlighted all the
determinations that the jurors were called to make as to the validity, credibility and reliability of
witnesses’ identifications. Moreover, the instructions given in Petitioner’s case even included a
reminder of the fact that some of the State’s witnesses actually made in-court and out-of-court
identifications, hence stressing to the jurors the relevance of witness-identification
considerations. Assessed in its entirety, this language safeguarded, with abundance, Petitioner’s
due process rights.
Therefore, Petitioner’s position that the state courts’ decisions dismissing his challenges
to the jury instructions were an unreasonable application of Supreme Court precedent is without
merit, and Petitioner’s Ground Five will be dismissed as not warranting habeas relief.

F.

Certificate of Appealability

The Court must now determine whether a certificate of appealability should issue. See
Third Circuit Local Appellate Rule 22.2. The Court may issue a certificate of appealability only
if the petitioner “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.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003).

33

Here, the Court is persuaded that jurists of reason would not disagree with this
conclusion. Therefore, no certificate of appealability will issue.

V.

CONCLUSION
For the foregoing reasons, this Court dismisses the Petition and denies Petitioner a writ of

habeas corpus, pursuant to 28 U.S.C. § 2254.
No certificate of appealability will issue, pursuant to 28 U.S.C. § 2253(c)(2).
An appropriate Order accompanies this Opinion.

/s/ Jose L. Linares
JOSE L. LINARES
United States District Judge

Dated: April 13, 2011

34