HALL v. BARTKOWSKI et al

Filing 17

OPINION. Signed by Judge Stanley R. Chesler on 4/3/2013. (nr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CHRISTOPHER HALL,
Petitioner,
v.
GREG BARTKOWSKI et al.,
Respondents.

:
:
:
:
:
:
:
:
:
:
:

CLOSED

Civil Action No. 11-4148 (SRC)
OPINION

Chesler, District Judge:
Petitioner Christopher Hall (“Petitioner”) filed a Petition for a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254(a), challenging a judgment of conviction entered by the Superior
Court of New Jersey. See Docket Entry No. 1. This Court advised Petitioner of his rights under
Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), and ordered Respondents to answer the Petition.
See Docket Entries Nos. 2 to 10. Respondents duly complied, and Petitioner waived his right to
traverse. See Docket Entries Nos. 10 and 16. For the reasons expressed below, the Court will
dismiss the Petition and decline to issue a certificate of appealability. See 28 U.S.C. §§ 2253(c),
2254(a), (b), (c).
I.

BACKGROUND
The state courts described the underlying events as follows:
On August 26, 2001, around 12:30 a.m., Taha Ramadan, Tarek Ramadan,
Maharan Ramadan, Said Ramadan, and Tara Rodriguez ([collectively,] the
victims) were in Eastside Park “[h]anging out and convers[ing]” when [Petitioner]
emerged from a van and approached the victims to ask if anyone had marijuana.
When the victims responded no, [Petitioner] asked for a cigarette, and as he began

to walk away “he turned around, brandished a weapon a handgun and asked the
victims to empty their pockets.” By this time, Kenton Rodney had also emerged
from the van, wielding a knife; he collected the group’s jewelry, cash and cell
phones. [Petitioner] and Rodney then re-entered the van and drove away. The
victims immediately notified the police and gave a partial license plate number
and a description of the van. At 1:10 a.m., Officer Joseph Ricciardi received a
radio transmission regarding the robbery. Shortly thereafter, Officer Ricciardi
observed the van, followed it briefly, then pulled it over with police unit backup.
The three occupants, [Petitioner], Rodney and Claven Anderson (the driver), were
removed from the van and placed in the police cars. A fully loaded nine
millimeter semiautomatic reduction Luger, a knife, and two cell phones were
recovered from the van. Approximately thirty minutes later the victims observed
[Petitioner], Rodney and Anderson in the back seat of the police car and identified
[Petitioner] and Rodney as the two men who held them up at gun and knifepoint.
The victims also observed that all three were wearing jewelry they had given to
defendant and Rodney during the hold up.
State v. Hall, 2010 WL 5185477, at *1 (N.J. Super. Ct. App. Div. Dec. 6, 2010) (brackets and
ellipses removed).1
Petitioner was tried to a jury and found guilty of first-degree robbery, aggravated assault
and weapon-related offenses. See id. Petitioner’s conviction was affirmed on direct appeal, and
the Supreme Court of New Jersey denied certification. See id. at *2; see also State v. Hall, 190
N.J. 255 (2007). Petitioner then filed a post-conviction relief (“PCR”) application. The Law
Division conducted a hearing and dismissed his application. Said dismissal was affirmed by the
Appellate Division, see Hall, 2010 WL 5185477, at *8, and the Supreme Court of New Jersey
denied certification. See State v. Hall, 207 N.J. 35 (2010). The Petition within followed.
Here, Petitioner raised eight challenges,2 namely:

1

Anderson (the driver) testified against Petitioner. See Docket Entry No. 16-23, at 3.

2

Petitioner designated his first three challenges as “grounds” and the remaining ones as
“points.” While he numerated these grounds and points consecutively, his numeration omitted to
designate the fifth challenge.
2

One:

Procedural History Preliminary Statement Petitioner Was Deprived of a
Guaranteed Right to Counsel in Violation of Both Federal & State
Constitutions. Plea Agreement – Identification – Cross Examination Discovery

Two:

Petitioner’s Right to Direct Appeal Was Denied, Due to Ineffective
Assistance of Counsel, Failure to Communicate with Petitioner &
Dil[i]gently Review Trial Transcripts for Adequate Brief. . . .

Three:

Petitioner Was Deprived of His Sixth Amendment Right to Effective
Assistance of Trial Counsel. As a Resul[t] of Ineff[e]ctive Assistance of
Counsel, in Particular the Failure to Investigate and Consider an Alib[i]
Defense, . . . Petitioner Was Deprived of His Right to a Fair Trial. . . .

Four:

. . . Petitioner’s Sentence Should Be Evaluated Pursuant to State v. Natale,
184 N.J. 458 (2005).

Six:

[Petitioner] received ineffective assistance of trial counsel in violation of
his Sixth Amendment Constitutional Right to Counsel. [Petitioner] was
denied a fair trial contrary to his Fourteenth Amendment Constitutional
Right to Due Process.

Seven:

The Defendant Received Ineffective Assistance Of Appellate Counsel in
Violation of His Sixth Amendment Constitutional Right to Counsel.

Eight:

An Evidentiary Hearing Is Warranted

Nine:

The State’s Disproportionate Exercise of Peremptory Challenges Against
Black Jurors Deprived [Petitioner] of His Rights to Trial by an impartial
Jury and to equal protection of law, necessitating reversal. . . .

Docket Entry No. 1, at 6-17 (capitalization in original).3
II.

STANDARD OF REVIEW
The general standard of federal habeas review is long-established, and it sets forth a

narrowly-tailored test. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (“As amended by
3

Thus, Petitioner’s claims could be subdivided into five groups: (a) an attack on the
performance of his trial counsel; (b) an attack on the performance of his appellate counsel; (c) an
attack on the prosecutor’s exercise of peremptory challenges; (d) a request for an evidentiary
hearing; and (e) a request to assess Petitioner’s sentence under a certain state case law.
3

AEDPA, 28 U.S.C. § 2254 sets several limits on the power of a federal court to grant an
application for a writ of habeas corpus on behalf of a state prisoner”). Section 2254(a) permits a
federal court to entertain only claims alleging that a person is held in state custody “in violation
of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). In addition,
when a state court has adjudicated a petitioner’s federal claim on the merits, a district court “has
no authority to issue the writ of habeas corpus unless the [state court’s] decision ‘was contrary to,
or involved an unreasonable application of, clearly established Federal Law, as determined by the
Supreme Court of the United States,’ or ‘was based on an unreasonable determination of the facts
in light of the evidence presented in the state court proceeding.’” Parker v. Matthews, 132 S. Ct.
2148, 2151 (2012) (quoting 28 U.S.C. § 2254(d)).4
III.

DISCUSSION
A.

Assistance of Counsel Claims

The Sixth Amendment, applicable to states through the Due Process Clause of the

4

Consequently, the starting point of federal habeas review under § 2254(d)(1) analysis is
to determine the relevant law clearly established by the Supreme Court. See Yarborough v.
Alvarado, 541 U.S. 652, 660 (2004). A decision is “contrary to” a Supreme Court holding, within
the meaning of 28 U.S.C. § 2254(d)(1), if: (a) the state court outright “contradicts the governing
law set forth in [the Supreme Court] cases”; or (b) the state court “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, 529 U.S. at 405-06. Under the “‘unreasonable application’ clause
of § 2254(d)(1), 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.” Williams, 529 U.S. at 413. Notably, under §
2254(d)(1), “an unreasonable application of federal law is different from an incorrect application
of federal law.” Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (quoting Williams, 529 U.S.
at 410). Correspondingly, the standard posed by federal habeas review “is a difficult to meet,
[since it is a] highly deferential standard for evaluating state-court rulings, [and that standard]
demands that state-court decisions be given the benefit of the doubt.” Cullen, 131 S. Ct. at 1398
(citations and internal quotation marks omitted).
4

Fourteenth Amendment, guarantees the accused the “right . . . to have the Assistance of Counsel
for his defense.” U.S. Const. amend. VI; see also Strickland v. Washington, 466 U.S. 668, 686
(1984). 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 687-88.5 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.6 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

5

See also, Strickland, 466 U.S. at 689 (“Because of the difficulties inherent in making
the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be considered sound trial
strategy”); Thomas v. Varner, 428 F. 3d 491, 499 (3d Cir. 2005) (“To overcome the Strickland
presumption that, under the circumstances, a challenged action might be considered sound trial
strategy, a habeas petitioner must show either that: (1) the suggested strategy (even if sound) was
not in fact motivating counsel or, (2) that the actions could never be considered part of a sound
strategy”).
6

Cf. Kates v. Moore, 2009 U.S. Dist. LEXIS 77000, at *89 (D.N.J. Aug. 27, 2009) (“it is
entirely proper [for the court sitting in habeas review] to engage in record-based speculation as to
what counsel’s strategy might have been” for the purposes of examining the “petitioner's attempt
to disprove the existence of a possible sound strategy”) (quoting Thomas v. Varner, 428 F.3d at
500 n.8).
5

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 695-96.7
The Strickland test applies to the performances of both trial and appellate counsel. See
Lewis v. Johnson, 359 F.3d 646, 656 (3d Cir. 2004). When the issue is appellate counsel’s
failure to raise specific issues, a petitioner satisfies the first Strickland prong by showing that
appellate counsel was “objectively unreasonable [i.e.,] that counsel unreasonably failed to
discover [arguably] nonfrivolous issues and to file a merits brief raising them.” Smith v.
Robbins, 528 U.S. 259, 285 (2000). An arguably non-frivolous issue is “one that counsel can
argue in good faith with some potential for prevailing.” Id. Consequently, the general principle
established by Smith is that appellate counsel need not raise every non-frivolous issue on appeal;
he “may select from among them in order to maximize the likelihood of success on appeal.” Id.
at 288; see also Jones v. Barnes, 463 U.S. 745, 750 (1983) (rejecting “per se rule that appellate
counsel must raise every nonfrivolous issue”).
1.

Challenges to the Trial Counsel’s Performance Are Without Merit

Petitioner’s challenges One, Three and Six focus on the performance of his trial counsel.
The first of these challenges mentions, without a clarification, “Plea Agreement – Identification –

7

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.
6

Cross Examination - Discovery,” the next one asserts “Failure to Investigate and Consider an
Alib[i] Defense” and the last one offers merely Petitioner’s conclusion that the trial counsel’s
errors were such that Petitioner was denied a fair trial.
The state courts addressed somewhat related challenges raised during Petitioner’s PCR
proceedings and noted that, in his PCR application, Petitioner asserted that his girlfriend and
mother would have testified that, at the time of the robbery, Petitioner was at his girlfriend’s
home attending his daughter’s birthday party.8 See Hall, 2010 WL 5185477, at *4. The state
courts found the trial counsel’s election (not to call the girlfriend and mother as witnesses) well
warranted, reasoning that the jurors would not have credited these witnesses’ testimonies in light
of the mass of testimonial and physical evidence against him, i.e., the testimonies by the victims
of the robbery and the driver in Petitioner’s get-away car and the proffering of the gun, the knife
and the victims’ belongings found by the police in the get-away car carrying Petitioner, Rodney
and the driver. See id. (also observing that Petitioner’s mother and girlfriend would likely be
perceived by the jurors as witnesses biased in Petitioner’s favor and, thus, capable of perjurious
testimony due to their emotional attachment to Petitioner). The state court also examined the
record and found the amount of contact between Petitioner and his trial counsel sufficient, and
the counsel’s efforts to challenge, at trial, the correctness of the State’s witnesses’ identification
of Petitioner well-developed.
Petitioner’s unelaborated phrase “plea agreement,” fails to state a viable claim.

8

Petitioner has not submitted, in this matter, any affidavit from his girlfriend and/or
mother as to what they would have testified. However, since that issue was adjudicated on its
merits in the state fora, this Court accepts the state courts’ factual findings as to the content of
such hypothetical testimonies. See Cullen, 131 S. Ct. 1388.
7

The United States Supreme Court has long recognized that “there is no
constitutional right to plea bargain; the prosecutor need not do so if he prefers to
go to trial.” Weatherford v. Bursey, 429 U.S. 545, 561 (1977); United States v.
Osif, 789 F.2d 1404, 1405 (9th Cir.1986) (“a defendant does not have a
constitutional right to a plea bargain”). Defendant cites no authority that a defense
attorney has a duty to initiate plea negotiations. This court could not locate any
authority obligating defense counsel to seek a plea agreement on the defendant’s
behalf. See e.g., Welch v. United States, 370 F. App’x 7393 (7th Cir. 2010) (“It is
well-established . . . that counsel does not have an absolute obligation to pursue
plea negotiations in every case”); United States v. Huddy, 184 F. App’x 765, 767
(10th Cir. 2006) (rejecting the defendant's argument that her counsel was
ineffective for failing to initiate plea negotiations); United States v. Cabaccang,
2010 U.S. Dist. LEXIS 75813 (D. Guam, July 28, 2010) (“Because trial counsel
was under no duty to initiate plea negotiations, he was not required to request a
plea agreement from the Government prosecutor”).
United States v. Alvarado, 2011 U.S. Dist. LEXIS 58682 (S.D. Cal. May 27, 2011) (dismissing §
2255 challenges analogous to those at bar and pointing out the petitioner’s error in relying on the
case law addressing the circumstances where an actual plea offer was made).9 Thus, the fact that
Petitioner was tried to a jury cannot operate as a basis for a viable claim.
Petitioner’s usage of the word “Discovery” also fails to state a viable claim: there is no
right to “discovery” in a criminal proceeding. While, under Brady v. Maryland, 373 U.S. 83
(1963), the prosecution has the duty, under the Due Process Clause, to insure that criminal trials
are fair by disclosing evidence favorable to the defendant, “[t]here is no general constitutional
right to [any witness] discovery in a criminal case,” Weatherford v. Bursey, 429 U.S. 545, 559
(1977), and the holding of “Brady did not create one [since] ‘the Due Process Clause has little to
9

See also United States v. Ramos-Marrufo, 2012 U.S. Dist. LEXIS 150075, at *17 (E.D.
La. Oct. 17, 2012) (“To show that he was prejudiced by his attorney’s failure to initiate plea
negotiations, [the petitioner] must do more than speculate about potential benefits that he was
denied; he must provide concrete evidence that a favorable plea offer would have been available
to him”); United States v. Cabaccang, 2010 U.S. Dist. LEXIS 86163, at *37 (D. Guam Aug. 23,
2010) (“The Petitioner cites no authority that a defense attorney has a duty to initiate plea
negotiations. Federal circuits have not found that such duty exists”).
8

say regarding the amount of discovery which the parties must be afforded.’” Id. (quoting Wardius
v. Oregon, 412 U.S. 470, 474 (1973)).10 Here, Petitioner seemingly faults his counsel for failing
to do what his counsel simply could not do.
The remainder of Petitioner’s challenges appear to relate to: (a) the testimonies his
mother and girlfriend might have provided; and (b) the amount of communication between him
and his counsel. However, a habeas petitioner cannot establish ineffective assistance of counsel
by “assert[ing] . . . a mechanical calculation of alleged meetings and then, self-servingly,
declare[ing] the amount of such alleged meetings insufficient,” Cox v. Ricci, 2010 U.S. Dist.
LEXIS 115711, at *15-16 (D.N.J. Oct. 29, 2010).11 Where “Petitioner maintains that his counsel
spent insufficient time meeting with Petitioner and/or discussing the strategy of the case [but the]
transcript of Petitioner’s trial shows that Petitioner’s counsel was well-aware of off key aspects
and minute details of Petitioner’s case and consistently and ardently presented Petitioner’s
position . . . throughout every stage of the trial, . . . Petitioner’s disappointment with the amount
of time he spent communicating with his defense attorney fails to establish that his counsel did
not function as a meaningful adversary to the State.” Gambino v. Warden of N.J. State Prison,
2013 U.S. Dist. LEXIS 52, at *40-41 (D.N.J. Jan. 2, 2013). Here, nothing in the record suggests
that the amount of Petitioner’s communication with his trial counsel violated Petitioner’s rights.

10

See also Leland v. Oregon, 343 U.S. 790, 801-02 (1952) (same); People v. Gonzalez,
51 Cal. 3d 1179, 1258 (1990) (the Constitution does not confer a general right to criminal
discovery in either state and federal matters).
11

Accord Layne v. Moore, 90 F. App’x 418 (3d Cir. 2004) (affirming dismissal of habeas
challenge asserting that trial counsel was ineffective because counsel met with the petitioner only
three times prior to trial); Brownlee v. Haley, 306 F.3d 1043 (11th Cir. 2002) (denying habeas
relief for claim that trial counsel met with the petitioner only two times for 10 to 15 minutes
each).
9

Finally, the Court agrees with the state court’s conclusion that Petitioner was not
prejudiced by his trial counsel’s election (not to call his girlfriend and mother as witnesses)
within the meaning of the second Strickland prong: the mass of eye-witness and physical
evidence against Petitioner was nothing short of damning, and there is not reasonable probability
that the testimonies of two women (having a self-evident interest in providing Petitioner with an
alibi) would have affected conclusions of a reasonable trier of fact. Correspondingly, the state
court’s dismissal of Petitioner’s challenges to his trial counsel’s performance was not an
unreasonable application of Supreme Court precedent.
2.

Challenges to the Performance of Appellate Counsel Are Meritless

Petitioner’s challenge Two focuses on the appellate counsel’s performance. Petitioner is
asserting the counsel’s failure to sufficiently examine trial transcripts or communicate with
Petitioner; he also asserts that the appellate counsel’s assistance was “ineffective” in an
unspecified fashion. However, the appellate counsel raised four thoughtfully presented, nonfrivolous appellate challenges (one of which is repeated by Petitioner verbatim in this matter, and
two others that correlate to the position Petitioner is now taking in his challenge Four). See
Docket Entry No. 16-18. Hence, Petitioner’s challenge to the performance of his appellate
counsel cannot meet either prong of Strickland, as elaborated upon in Smith, 528 U.S. at 285,
and Jones, 463 U.S. at 750. Correspondingly, the state court’s dismissal of this claim was not an
unreasonable application of Supreme Court precedent.
B.

Request for an Evidentiary Hearing

It appears that Petitioner’s challenge Eight merely replicates the request for an evidentiary
hearing made in the brief filed by his PCR counsel. See Docket Entry No. 16-19, at 2. The Law
10

Division already provided Petitioner with such a hearing. In contrast, under Cullen, 131 S. Ct.
1388, the Court has no basis for expanding the record beyond that ruled upon by the state courts.
C.

Challenge to Petitioner’s Sentence Under the State Law

Petitioner’s challenge Four seeks evaluation of his sentence under State v. Natale, 184
N.J. 458 (2005), a New Jersey Supreme Court decision. Sentencing is generally considered a
matter of state criminal procedure, which does not fall within the purview of federal habeas
review. See United States v. Cepero, 224 F.3d 256, 267 (3d Cir. 2000), cert. denied, 531 U.S.
1114 (2001); Ervin v. Beyer, 716 F. Supp. 163, 165 (D.N.J. 1989); Grecco v. O’Lone, 661 F.
Supp. 408, 415 (D.N.J. 1987); see also Johnson v. Beto, 383 F.2d 197, 198 (5th Cir. 1967), cert.
denied, 393 U.S. 868 (1968). Absent some constitutional violation, federal courts cannot review
a state’s alleged failure to adhere to its own sentencing procedure. See Rorie v. Beard, 2005 U.S.
Dist. LEXIS 23813 (E.D. Pa. April 7, 2005) (citing Branan v. Booth, 861 F.2d 1507 (11th Cir.
1988)). Thus, a federal court will, generally, not reevaluate a sentence in a habeas proceeding
unless it exceeds the relevant statutory limits. See Jones v. Superintendent of Rahway State
Prison, 725 F.2d 40 (3d Cir. 1984); see also Williams v. Duckworth, 738 F.2d 828, 831 (7th Cir.
1984), cert. denied, 469 U.S. 1229 (1985) (“As a general rule, federal courts will not review state
sentencing determinations that fall within statutory limits”); Bonner v. Henderson, 517 F.2d 135,
136 (5th Cir. 1975) (“This Court will not upset the terms of a sentence within statutory limits
unless so disproportionate to the offense as to be completely arbitrary and shocking”). Moreover,
federal courts will not interfere with a state’s sentencing scheme unless the petitioner can show
that no reasonable sentencing court would have invoked the same relevant considerations to
justify imposition of such sentence. See Lewis v. Jeffers, 497 U.S. 764, 783 (1990). “While
11

normal sentencing proceedings are not immune from all due process attacks, the Supreme Court
has required only minimal due process protections in those proceedings.” United States v. Davis,
710 F.2d 104, 106 (3d Cir.), cert. denied, 464 U.S. 1001 (1983) (citations omitted).
Here, Petitioner’s challenge Four relies on Natale, supra. To the extent Natale represents
New Jersey law, Petitioner’s challenge is simply not cognizable. See Cepero, 224 F.3d at 267;
Ervin, 716 F. Supp. at 165; Grecco, 661 F. Supp. at 415. However, being mindful of the fact that
Natale was based on Blakely v. Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey,
530 U.S. 466 (2000), the Court finds it warranted, out of abundance of caution, to reflect on
Petitioner’s sentence through the prism of Blakely-Apprendi.12
Neither during his state proceedings nor here did Petitioner assert that his sentence
exceeded the maximum his trial judge could impose on the basis of the facts proffered to the
jury; rather, he maintains that the trial judge’s selection of the term from the upper range of the
permissible presumptive sentence was an error. See Docket Entry No. 16-18, at 28 (maintaining
that the judge selected a term within the upper range by unduly taking into consideration the
circumstances of the crimes of which Petitioner was found guilty, the risk that Petitioner might
commit another offense and the need for deterrence).
However, since the selection was made from the presumptive sentencing range ensuing
from the findings made by the jurors, see Hall, 2010 WL 5185477, at *7 (detailing the same at
length), Petitioner’s sentence implicated no constitutional concerns, satisfying both the Apprendi
12

Under Apprendi, other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt. In Blakely, the Supreme Court has defined the statutory
maximum for the purposes of an Apprendi-based analysis as the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.
12

and Blakely requirements.13 Thus, the state court’s dismissal of his claim correlating to the
instant challenge Four was not an unreasonable application of Supreme Court precedent.
D.

Prosecutor’s Exercise of Peremptory Challenges

Reflecting of Petitioner’s claim asserting the prosecutor’s undue resort to four peremptory
challenges, the state courts observed as follows:
[Petitioner] argue[s] that the prosecutor’s use of peremptory challenges against
African-American venire persons during jury selection violated [his]
constitutional rights to an impartial jury, a fair trial, and equal protection. We
agree with the State and the trial judge that the prosecutor’s explanations for the
peremptory challenges were not “sham excuses belatedly contrived to avoid
admitting acts of group discrimination.” The reasons given by the prosecutor
explaining his excusal of all four prospective jurors were not dependant on their
race. Rather, they were based on circumstances and facts relevant to the[se]
individuals’ ability to serve as jurors in a criminal trial. [Specifically, exercise of
peremptory challenges on the basis of these individuals stating that: (a) a juror
was experiencing] fear of retaliation by [Petitioner or by his acquaintances, since
the juror lived in the area where the crime at issue was committed; or (b) a juror
stating that she was] raped and subsequently [experienced] dissatisfaction with the
handling of [her ordeal by] the prosecution [and the State’s acceptance of her
perpetrator’s guilty plea in exchange for a very lenient sentence; or (c) a juror]
downplaying the significance of a crime [committed against her own son and
expressing her inclination to forgive all such criminal actions, stating, “Oh, it was
just, you know, just boys”; or (d) the fact of a juror] being tardy for jury selection,
arguably without a legitimate excuse, while [appearing in the court] wearing
sunglasses [throughout the whole day in the court, was proper, since such
exercise of peremptory challenges was based on] facially neutral reasons.
State v. Hall, 2006 WL 889475, at *2 (N.J. Super. Ct. App. Div. Apr. 7, 2006).
A criminal defendant has no right to a petit jury composed in whole or in part of persons
of his own race. See Batson v. Kentucky, 476 U.S. 79, 85 (1986). Only purposeful racial
discrimination in jury selection violates a defendant’s right to equal protection. See id. at 86-89.
13

Moreover, Petitioner fails to offers this Court any basis to conclude that no reasonable
judge would have made the same selection from the upper range of the permissible presumptive
sentence applicable to the crimes of which Petitioner was found guilty by his jurors.
13

[A] defendant may establish a prima facie case of purposeful discrimination [if]
the defendant first . . . show[s] that he is a member of a cognizable racial group,
and that the prosecutor has exercised peremptory challenges to remove from the
venire members of the defendant’s race. Second, the defendant is entitled to rely
[only] on the fact[s] as to which there can be no dispute, that peremptory
challenges constitute a jury selection practice that permits those to discriminate
who are of a mind to discriminate. Finally, the defendant must show that these
facts . . . raise an inference that the prosecutor used that practice to exclude the
veniremen from the petit jury on account of their race. . . . Once the defendant
makes a prima facie showing, the burden shifts to the State to come forward with
a neutral explanation for challenging black jurors . . . . [T]he prosecutor’s
explanation need not rise to the level justifying exercise of a challenge for cause.
But the prosecutor may not rebut the defendant’s prima facie case of
discrimination by stating merely that he challenged jurors of the defendant’s race .
. . because of their shared race . . . . Nor may the prosecutor rebut the defendant’s
case merely by denying that he had a discriminatory motive . . . .
Batson, 476 U.S. at 96-98 (citations, internal quotation marks and footnotes omitted).
Here, the prosecutor’s explanations were fact-based on race-neutral statements actually
made by the venirepersons during the voir dire process (and, in addition, based on the record of
one venireman’s failure to appear in court, followed by his late showing and wearing sunglasses
throughout the voir dire without a medical reason for such an affront). There is no fact offered
by Petitioner (and none was located by the Court in the transcripts) suggesting that Petitioner did
or even could established a prima facie case of purposeful discrimination. Moreover, the State
met its burden at establishing a constitutionally solid basis for exercising peremptory challenges.
Thus, the state courts’ dismissal of Petitioner’s claim was not an unreasonable application of the
governing Supreme Court precedent. Moreover, since all Petitioner’s challenges fail to state a
claim meriting habeas relief, his Petition will be denied.
IV. CERTIFICATE OF APPEALABILITY
The Court denies a certificate of appealability because Petitioner has not made “a

14

substantial showing of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2). See
Miller-El v. Cockrell, 537 U.S. 322 (2003).
V. CONCLUSION
Based on the foregoing, the Court dismisses the Petition with prejudice and declines to
issue a certificate of appealability under 28 U.S.C. § 2253(c).

s/ Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge
Dated: April 3, 2013

15