PERKINS v. WARREN et al

Filing 16

OPINION. Signed by Judge Jose L. Linares on 4/16/14. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SHIRLEY PERKINS,
Petitioner,

Civil No. 11-6264 (JLL)

:

v.

:

OPINION

CHARLES WARREN, et al.,
Respondents.
LINARES, DISTRICT JUDGE

Petitioner Shirley Perkins (“Petitioner”), a prisoner currently confined at Edna Mahan
Correctional Facility in Clinton, New Jersey, has submitted a petition for a writ
of habeas corpus
pursuant to 28 U.S.C.

§ 2254. For the reasons stated herein, the petition will be denied.

I. BACKGROUND

This Court, affording the state court’s factual determinations the appropriate deferen
ce, see
28 U.S.C.

§ 2254(e)(l)’, will recount salient portions of the recitation of facts as set forth by

Superior Court of New Jersey on direct appeal:
On May 28, 2002, defendant and another woman, April Williams, were
at
Murphy’s Tavern. On that occasion Shelton, another frequent patron of
the
establishment, left her pocketbook there. The pocketbook contained Shelto
n’s cell
phone. Either defendant or Williams took the pocketbook and emptied its conten
ts,
including the cell phone. The cell phone then came into the possession of William
s,
who began using it.
About two months later, Shelton called her own cell phone number. She
reached
Williams, informed Williams that she was the owner of the cell
phone, and
1

Pursuant to 28 U.S.C. § 2254(e)(l), “In a proceeding instituted by an
application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State court,
a determination of
a factual issue made by a State court shall be presumed to be correct. The
applicant shall have the
burden of rebutting the presumption of correctness by clear and convincing eviden
ce.”

demanded it back. Williams told Shelton that she would return the phone the next
time the two of them saw one another.
The anticipated encounter between Shelton and Williams occurred at Murphy’s
Tavern on the night of August 1, 2002. Defendant also was present at the bar. The
encounter sparked an argument, which escalated and spilled out onto the street, and
concluded with Shelton being stabbed and left on the ground. Shelton was
pronounced dead at 1:23 a.m. the following morning.
The State presented testimony concerning these events from Williams, five other
eyewitnesses who had been at Murphy’s Tavern the night of August 1, 2002, seven
law enforcement officers who had responded to the scene or who otherwise
investigated the incident, and the county assistant medical examiner who had
performed the autopsy on the victim. Their testimony supported the State’s
contention that defendant had stabbed Shelton without justification.

April Williams also testified for the State. She admitted that she had been at
Murphy’s Tavern on August 1, 2002 with defendant, and that there had been a fight
over Shelton’s cell phone. Williams denied, however, having carried a knife with
her that evening. Instead, she claimed that defendant had brought a knife with her
because she had had a fight at the bar in the preceding week. Although Williams
contends she never actually saw the knife, she testified that she was aware
defendant was carrying one near the small of her back.
Williams denied seeing the stabbing. She contended that while the stabbing was
taking place, she had been fighting with Shelton’s friend Johnson. When Williams
was pulled off of Johnson, she heard defendant say to Johnson, “You shouldn’t ask
me [any] motherf *king questions.” As defendant and Williams were walkin
g
away, two men tried to stop them. Williams hit one of the men with a crate.
Williams recalled that defendant then sprayed mace at the males, which she had
taken out of Williams’ purse. Williams and defendant then attempted to board a
bus
when the police arrived.

Defendant testified on her own behalf at trial. She also presented two other
witnesses: her daughter Shakira Green and a bystander at the scene of the stabbin
g,
Wanda Wilson.
In her testimony, defendant claimed that Williams had stolen Shelton’s pocket
book
in May 2002 and had taken possession of Shelton’s cell phone. Subseq
uently, on
the evening of August 1, 2002, defendant went to Murphy’s Tavern, along
with
April Williams and two friends named Lisa and Cassandra. Accord
ing to
defendant, the four of them arrived at the tavern at about 10:45 p.m. Defend
ant
2

acknowledged that she was wearing white shorts and a tank top, covered by a
purple jersey. She did not deny, or offer competing proof regarding, the State’s
contention that her hair that day was red. However, defendant denied that she was
carrying a knife or that she had known that Williams was carrying a knife.
According to defendant, she was dancing at the tavern when she was approached by
Shelton. Shelton supposedly asked defendant to go outside and speak with “Tiny,”
also known as Karemiah Johnson. Defendant had known Johnson for about thirty
years. The two of them went outside, along with Williams. Johnson then allegedly
started to argue with defendant about the stolen cell phone.
Defendant testified that she had initially attempted to walk away from Johnson.
However, Johnson then “snuck hit” Williams, causing Williams to retaliate. As
Johnson and Williams continued fighting, Shelton allegedly joined the fray to assist
Johnson, who was her close friend. Defendant testified that she also entered the
fight, out of a desire to protect Williams. For the next half hour or so, the four
women, and several others who joined in, intermittently argued and traded blows.
In the meantime, a crowd of observers gathered.
Defendant testified that eventually she saw Williams pull a knife out of her
pocketbook and stab Shelton. Defendant contended that she then took the knife
from Williams because she was afraid that Williams, the mother of two of her
grandchildren, would get into trouble. Defendant asserted that she passed the knife
onto Cassandra and told her to dispose of it. Defendant then attempted to flee from
the scene with Williams.
On cross-examination, defendant denied screaming “Die, b* * *h, die” or any
other
words in the direction of Shelton. Rather, defendant insisted it was Williams
who
had been screaming “f *k, you b* * *h, you [weren’tl going to get your phone”
at
Shelton. Defendant maintained that she herself had only been scream
ing at
Williams, because she was upset with her.
State v. Perkins, 2007 WL 1261308, at

*

1-4 (N.J. Super. Ct. App. Div. May 2, 2007).

A jury found Petitioner not guilty of murder, but convicted her on the lesserincluded
offense of passionlprovocation manslaughter. Perkins, 2007 WL 126130
8, at

*

5. The jury also

convicted Petitioner of two offenses for unlawful possession of a weapo
n. Id. At the time of
sentencing, the judge granted the State’s motion for an extended term,
pursuant to N.J.S.A.
2C :44-3 a, based on Petitioner’s status as a persistent offender. Id.

Given her extensive prior

record, the court sentenced Petitioner to a fifteen-year term on the mansla
ughter conviction and a
3

concurrent five-year term on the weapons offenses.

Id.

Petitioner filed an appeal and the

Appellate Division remanded the case for resentencing to merge the weapons offenses into
the
manslaughter conviction, and also to comply with recent case law concer
ning the
formerly-applicable presumptive sentencing guidelines. Id.

The New Jersey Supreme Court

denied certification. State v. Perkins, 927 A.2d 1292 (N.J. 2007). On remand, the trial
court
merged the weapons offenses but reimposed the original sentence of a fifteen-year extend
ed term
on the manslaughter conviction, subject to an eighty-five percent parole disqualifier under
N.J.S.A. 2C:43-7.2(a). State v. Perkins, 2010 WL 5418146 (N.J. Super. Ct. App. Div.
Nov. 17,
2010). Petitioner filed a petition for post-conviction relief (“PCR”), which was denied
by the trial
court and said denial was affirmed by the Appellate Division. Id. The New Jersey Suprem
e
Court denied certification. State v. Perkins, 17 A.3d 1245 (N.J. 2011).
In October 2011, Petitioner filed the instant habeas petition. (ECF No. 1.) She raises
the
following grounds for relief:
GROUND ONE: THE TRIAL COURT ERRED IN DENYING DEFENSE
COUNSEL’S MOTION FOR A JUDGMENT OF ACQUITTAL REGARDING
THE CHARGE OF MURDER EMBODIED IN COUNT I, THEREBY
NECESSARILY TAINTING THE JURY’S VERDICT FINDING
THE
DEFENDANT GUILTY OF THE LESSER INCLUDED OFFENSE
OF
PASSION/PROVOCATION MANSLAUGHTER ARISING THEREFROM
GROUND TWO: THE TRIAL COURT ERRED IN PERMITTING THE STATE
TO ELICIT CLEARLY INADMISSIBLE HEARSAY TESTIMONY
FROM
POLiCE OFFICER WHICH IDENTIFIED THE DEFENDANT AS
THE
ALLEGED PERPETRATOR
GROU1’ED THREE: THE DEFENDANT WAS DENIED HER RIGHT TO
A
FAIR TRIAL AS A RESULT OF THE PROSECUTOR’S IMPRO
PER
QUESTIONING OF HER CONVEYING THE IMPRESSION
THE
PROSECUTOR
POSSESSED
INFORMATION
INDICATING
THE
DEFENDANT INTENTIONALLY WENT TO THE SCENE TO ASSA
ULT THE
VICTIM
GROUND FOUR: THE DEFENDANT WAS DENIED HER RIGHT TO
A FAIR
4

TRIAL AS RESULT OF THE PROSECUTOR’S CROSS-EXAMINATION OF
THE DEFENDANT ELICITING HER PRIOR CRIMINAL RECORD AFTER IT
HAD BEEN FULLY DISCLOSED BY DEFENSE COuNSEL DURING DIRECT
EXAMINATION
GROUND FIVE: THE TRIAL COURT ERRED IN PRECLUDING DEFENSE
COuNSEL FROM ELICITING TESTIMONY ADVERSELY IMPACTING
UPON THE CREDIBILITY OF APRIL WILLIAMS
GROUND SIX: TRIAL COUNSEL WAS INEFFECTIVE FOR NOT
OBTAINING APRIL WILLIAMS’ CLOTHES AND NOT SUBJECTING THEM
TO DNA TESTING AND THE FAILURE TO RAISE THE ISSUE ABOUT THE
POLICE LACK OF TESTING OF APRIL WILLIAMS’ CLOTHING FOR THE
VICTIM’S BLOOD.
GROUND SEVEN: TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
ADEQUATELY CROSS-EXAMINE A KEY STATE WITNESS, APRIL
WILLIAMS, ABOUT THE REASONS WHY SHE WAS TESTIFYING FOR
THE STATE.
(Pet.

¶ 12.)1 After receiving notice pursuant to Mason v. Meyers, 208 F. 3d 414 (3d Cir. 2000)

(ECF No. 2), Petitioner indicated that she wished to proceed with her petition “as-is” (ECF
No. 4)
and the Court entered an Order to Answer (ECF No. 5). Respondents filed their Answer
on

March 13,2013. (ECFN0. 15.)
II. DISCUSSION
A. Legal Standard
As amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
28
U.S.C.

§ 2254 provides, in pertinent part:
(a) The Supreme Court, a Justice thereof, a circuit judge, or 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.

All caps in original.

5

(d) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the claim(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C.

§ 2254.

“As amended by 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 prison
er.” Cullen v.
Pinhoister, 131 S.Ct. 1388, 1398 (2011); Glenn v. Wynder, 743 F.3d 402,
406 (3d Cir. 2014).
Section 2254(a) permits a court to entertain only claims alleging that a person
is in state custody
‘in violation of the Constitution or laws or treaties of the United States.” Id.
A federal court’s
authority to grant habeas relief is further limited when a state court has adjudi
cated petitioner’s
federal claim on the merits. See 28 U.S.C.

2
§ 2254(d). If a claim has been adjudicated on the

merits in state court proceedings, this Court “has no authority to issue the
writ of habeas corpus
unless the [state court’s] decision ‘was contrary to, or involved an unreas
onable application of,
clearly established Federal Law, as determined by the Supreme Court
of the United States,’ or
2

“[A] claim has been ‘adjudicated on the merits in State court proceedings’
when a state court has
made a decision that finally resolves the claim based on its substance, not
on a procedural, or other,
ground.” Lewis v. Horn, 581 F.3d 92, 100 (3d Cir. 2009) (quoting Thoma
s v. Horn, 570 F.3d 105,
117 (3d Cir. 2009)). “Section 2254(d) applies even where there has
been a summary denial.”
Cullen, 131 S.Ct. at 1402. “In these circumstances, [petitioner] can
satisfy the ‘unreasonable
application’ prong of § 2254(d)(1) only by showing that ‘there was
no reasonable basis’ for the
[state court’s] decision.” Id. (quoting Harrington v. Richter, 131 S.Ct.
770, 786 (2011)); see also
Johnson v. Williams, 133 S.Ct. 1088 (2013) (“When a state court rejects
a federal claim without
expressly addressing that claim, a federal habeas court must presum
e that the federal claim was
adjudicated on the merits—but that presumption can in some limited circum
stances be rebutted”).
6

‘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)).

§

However, when “the state court has not reached the merits of a claim thereafter

presented to a federal habeas court, the deferential standards provided by AEDPA

.

.

.

do not

apply.” Lewis, 581 F.3d at 100 (quoting Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001))
.
A court begins the analysis under

§ 2254(d)(1) by determining the relevant law clearly

established by the Supreme Court. See Yarborough v. Alvarado, 541 U.S. 652,
660 (2004).
Clearly established law “refers to the holdings, as opposed to the dicta, of [the Suprem
e Court’s]
decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529
U.S. 362,
412 (2000). 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. Andrad
e, 538 U.S. 63,
7 1-72 (2003).

“[C]ircuit precedent does not constitute ‘clearly established Federal law, as

determined by the Supreme Court,’ [and] therefore cannot form the basis for
habeas relief under
AEDPA.” Parker, 132 S.Ct. at 2155 (quoting 28 U.S.C.

§ 2254(d)(1)).

A decision is “contrary to” a Supreme Court holding within 28 U.S.C.

§ 2254(d)(1), if the

state court applies a rule that “contradicts the governing law set forth in
[the Supreme Court’s]
cases” or if it “confronts a set of facts that are materially indistinguishable from
a decision of [the
Supreme Court] and nevertheless arrives at a [different result.]” William
s, 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
[the Supreme Court’s]
decisions but unreasonably applies that principle to the facts of the prisone
r’s case.”
529 U.S. at 413. However, under

Williams,

§ 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
7

(2011) (quoting Williams, 529 U.S. at 410). As the Supreme Court explains,
A state court’s determination that a claim lacks merit precludes
federal habeas relief so long as fairminded jurists could disagree on
the correctness of the state court’s decision.... Evaluating whether a
rule application was unreasonable requires considering the rule’s
specificity. The more general the rule, the more leeway courts have
in reaching outcomes in case-by-case determinations. It is not an
unreasonable application of clearly established Federal law for a
state court to decline to apply a specific legal rule that has not been
squarely established by [the Supreme] Court.
Harrington, 131 S .Ct. at 786 (citations and internal quotation marks omitted).
“If this standard is difficult to meet—and it is—that is because it was meant to be.” Burt
v.
Titlow, 134 S.Ct. 10, 16 (2013) (citations and internal quotation marks omitted).
The petitioner
carries the burden of proof, and review under § 2254(d) is limited to the record that was
before the
state court that adjudicated the claim on the merits. Cullen, 131 S.Ct. at 1398.
B. Analysis

1. Motion for Acquittal (Ground One)
In her first ground for relief, Petitioner argues that the trial court erred when
it denied
Petitioner’s motion for a judgment of acquittal on the murder charge because
it “tainted the jury’s
subsequent verdict finding Petitioner guilty of the lesser included offense
of passionlprovocation
manslaughter.”

(Pet.

¶ 12.)

Petitioner acknowledges that the State presented evidence

identifying her as the individual who stabbed the victim, however Petitio
ner argues that all of the
testimony indicated that the stabbing had been a “spontaneous, spur of the
moment act” and there
was nothing to indicate premeditation on her part. (Id.)
Petitioner raised this claim on her direct appeal, where it was rejecte
d by the Appellate
Division:
Defendant claims the trial judge should have granted her motion for judgm
ent of
acquittal on the murder charge after the State rested its case. She conten
ds in this
8

regard that the judge’s failure to remove the murder charge from the jury’s
consideration improperly tainted the deliberations, making the jury more prone
to
convict defendant on passionlprovocation manslaughter. Defendant argues that
no
reasonable juror could have found that she had purposely or knowingly killed
Shelton, and that the stabbing was instead “a spontaneous, spur of the mome
nt
act....”
In reviewing a trial court’s decision to deny a motion for judgment of acquittal, “the
relevant question is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” State v. Josephs, 174 N.J. 44, 81(200
2).
The State’s evidence should be viewed in its entirety and given “the benefit of
all its
favorable testimony and all of the favorable inferences to be drawn from
that
testimony....” State v. Spivey, 179 N.J. 229, 236 (2004). Applying that standa
rd
here, we perceive no error in the judge’s denial of the motion for acquitt
al on
murder.
The crime of murder requires proof that defendant took the life of anothe person
r
either knowingly or purposefully. See N.J.S.A. 2C:l1-3. The State may satisfy
defendant’s intentional state of mind in a variety of ways. The State may prove
that
“it was the defendant’s conscious object to cause [the] serious bodily injury
that
then resulted in the victim’s death....” State v. Cruz, 163 N.J. 403, 417
(2000).
Alternatively, the State may show that defendant “knew that the injury
created a
substantial risk of death and that it was highly probable that death would
result.” Id.
at 417-18. Or the proofs may demonstrate “that the defendant was aware that
it was
practically certain that his conduct would cause serious bodily injury
that then
resulted in the victim’s death....” Id. at 418. The prosecution can also prove
that
defendant “knew that the injury created a substantial risk of death and
that it was
highly probable that death would result.” Ibid. There also must be “a
sufficient
connection between the victim’s death and the defendant’s state of mind.”
Id. at 416.
However, “for deliberation to be found, no particular period of time
need have
elapsed between the formation of the defendant’s homicidal plan and
the execution
of that plan.” State v. Ramseur, 106 N.J. 123, 194 (1987), cert. denied
, 508 U.S.
947, 113 S.Ct. 2433, 124L. Ed.2d 653 (1993).
The Supreme Court has “long accepted that ‘the use of a deadly weapo
n raises an
inference that there was an intent to kill.” State v. Martini, 131
N.J. 176, 271
(1993), cert. denied, 127 S.Ct. 1285, 167 L. Ed.2d 104 (2007) (quotin
g State v.
Thomas, 26 N.J. 344, 357 (1978)). A knife may be considered
a deadly weapon
when “possessed under manifestly inappropriate circumstances” to
its lawful use.
State v. Burford, 163 N.J. 16, 20 (2000). See also State v. Bowen
s, 108 N.J. 622,
638 (1987) (noting that the force with which the injury was inflicte
d showed a
“level of indifference and provide [d] ample basis for a conviction”).
The trial judge correctly rejected defendant’s contention that the State’s
9

proofs were

inadequate to support a guilty verdict on murder. The State presented corroborating
proofs from Martin and from Brian Williams, who both had observed defendant
raise her arm and then plunge the knife into Shelton’s chest. Martin testimony was
s
t
particularly salient on defendant’s homicidal intent, describing the stabbing as
a
“hard punch” and distinctly hearing defendant thereafter exclaim, “Die, b* * *h,
die!” The proofs also included testimony that defendant had stepped away from the
fighting on the street, obtained the knife from Williams, and then returned to wield
the knife against Shelton. There was no proof that the victim was herself armed or
that the life of defendant or her relative April Williams was in imminent danger.
Several eyewitnesses also recalled defendant make provocative assertions at the
scene about standing up for her “Little Bit.” A reasonable jury could have
concluded that such behavior comprised the intentional use of deadly force.
It is not dispositive, as defendant argues, that the knife was only thrust into the
victim once. That single blow, described by Martin as a “hard punch,” carried with
it sufficiently extreme force to kill Shelton, and sufficed with the other proven facts
to constitute murder.
We thus discern no unfair prejudice in the inclusion of murder along with the
lesser-included offense of provocationlpassion manslaughter in the jury charge
.
The circumstances here are distinguishable from State v. Christener, 71 N.J.
55
(1976), the main case relied upon defendant on this issue. In Christener, the
“defendant’s actions reveal[edj an all-encompassing fear” of the victim, who
had
awakened defendant by pounding on his door in the middle of the night and who
had lunged toward defendant and his wife looking like a “wild man.” Id. at 62,
66.
Here, there is no comparable proof that defendant was afraid of Shelton, or that
she
had in any way acted in self-defense. The murder charge in this case was entirel
y
appropriate, even though the jury ultimately failed to convict on it, and, unlike
in
Christener, there is no prejudice flowing from “an unsupported instruction.”
Id. at
70-71.
State v. Perkins, 2007 WL 1261308, at

*

6-8 (N.J. Super. Ct. App. Div. May 2, 2007).

A sufficiency of the evidence claim is governed by Jackson v. Virginia, 443
U.S. 307, 318,
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “[Ijn a challenge to a state crimin
al conviction brought
under 28 U.S.C.

§ 2254—if the settled procedural prerequisites for such a claim have otherwise

been satisfied-the applicant is entitled to habeas corpus relief if it is found
that upon the record
evidence adduced at the trial no rational trier of fact could have found
proof of guilt beyond a
reasonable doubt.” Id. at 324; accord McDaniel v. Brown, 558 U.S.
120, 121, 130 S.Ct. 665, 175
10

LEd.2d 582 (2010) (per curiam); Eley v. Erickson, 712 F.3d 837, 847 (3d Cir. 2013). Jackso
n
“requires a reviewing court to review the evidence in the light most favorable to the prosec
ution.
Expressed more fully, this means a reviewing court ‘faced with a record of histori
cal facts that
supports conflicting inferences must presume-even if it does not affirmatively
appear in the
record-that the trier of fact resolved any such conflicts in favor of the prosecution, and
must defer
to that resolution.” McDaniel, 558 U.S. at 133 (quoting Jackson, 443 U.S. at 326);
see also House
v. Bell, 547 U.S. 518, 538, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (“Whe confro
n
nted with a
challenge based on trial evidence, courts presume the jury resolved eviden
tiary disputes
reasonably so long as sufficient evidence supports the verdict”). The Court empha
sized that “the
standard...does not permit a court to make its own subjective determination of guilt or
innocence.”
Jackson, 443 U.S. at 320, n. 13. Moreover, “a reviewing court must consider
all of the evidence

admitted by the trial court, regardless whether that evidence was admitt
ed erroneously.”
McDaniel, 558 U.S. at 131 (citation and internal quotation marks omitted).
Moreover, “under

Jackson, the assessment of credibility of witnesses is generally beyond
the scope of review.”
Schiup v. Delo, 513 U.S. 298, 330, 115 S.Ct. 851, 130 L.Ed.2d 808
(1995). The question is

“whether, viewing the evidence in the light most favorable to the state,
it was objectively
unreasonable for the Appellate Division to conclude that a rational trier of
fact could have found,
beyond a reasonable doubt that [petitioner] was guilty[.]” Kamienski v. Hendri
cks, Civil Action
No. 06-4536, 2009 WL 1477235 (3d Cir. May 28, 2009).
In this case, the New Jersey Appellate Division denied Petitioner’s suffici
ency of the
evidence claim, finding that the trial judge correctly rejected defendant’s
contention that the State’s
proofs were inadequate to support a guilty verdict on murder. The
Appellate Division discussed

11

the substantial testimony from various witnesses, who observed Petitioner raise her arm
and then
plunge the knife into the victim’s chest. A witness described the stabbing as a “hard
punch” and
heard the Petitioner say, “Die, b*

*

*h, die!” The state court properly found that a reasonable jury

could have concluded that such behavior comprised the intentional use of deadly force
and that
there was sufficient evidence to support a charge of murder.

Thus, the New Jersey court’s

adjudication of Petitioner’s sufficiency of the evidence claim was not contrar
y to, or an
unreasonable application of Jackson and its progeny, and Petitioner is not entitled
to habeas relief
on Ground One of her petition.
2.

Hearsay Testimony (Ground Two)

In her second ground for relief, Petitioner argues that the trial court erred when it permit
ted
hearsay testimony from Officer Jose Ferreira regarding a statement made by Karem
iah Johnson.
Specifically, the trial court permitted the officer to testify about Ms. Johnso
n’s statement to him
based on the excited utterance exception to the hearsay rule. (Pet.

¶ 12.)

Petitioner raised this argument in her direct appeal and the Appellate Divisio
n rejected it
after engaging in a thorough analysis of the pertinent issues:
Defendant contends that the trial judge erred in admitting, over her counse
l’s
objection, a hearsay statement attributed to Karemiah Johnson during the course
of
the testimony of Officer Ferriera.
Officer Ferriera had been dispatched to the crime scene at approximately
12:17
a.m. on August 2, 2002. Upon arriving, he put defendant in the back of his
squad
car. He then secured the crime scene and began to look for eyewitnesses.
At that
point, Officer Ferriera encountered Johnson. The officer described Johnso
n’s
emotional state as “calm.” He perceived that Johnson was “[a] little bit
upset, but
not too much.”
Johnson then gave Officer Ferriera a statement, which the officer summa
rized at
trial as follows:
She told me that [defendant] and April Williams were across the
12

street with the victim. They have an argument. [Defendant] punched
the victim. April handed her a knife and [defendant] stabbed her
with it.
The trial judge denied defense counsel’s application to strike this reference to
Johnson’s out-of-court statement.
On appeal, defendant argues that Johnson’s statement, as recounted by Officer
Ferriera, was hearsay under N.J.R.E. 802 and not admissible under any recognized
hearsay exception. The State argues that the judge properly admitted the
statement as an excited utterance under N.J.R.E. 803(c)(2). Alternatively, the State
contends that the statement was also admissible as a present sense impression under
N.J.R.E. 803(c)(1).
We agree with defendant that Johnson’s statement to Officer Ferriera was offered
for its truth. We also agree that that the statement was neither admissible as an
excited utterance or a present sense impression.
As to the former hearsay exception, we conclude that even if Johnson’s demeanor,
which the officer inconsistently perceived as both “calm” and “a little bit upset,”
qualified under N.J.R.E. 803(c)(2) as a statement made while “under the stress
of
excitement,” her statement was not made in the absence of an “opportunity
to
deliberate or fabricate.” See, e.g., State v. Cotto, 182 N.J. 316 (2005) (requir
ing
exclusion of excited statements made by victims to police approximately twenty
minutes after a robbery because the defendants had sufficient time to deliber
ate or
fabricate); State v. Branch, 182 N.J. 338 (2005) (holding that children
who had
witnessed a robbery had adequate time to deliberate during the approximated
ten
minutes that elapsed before a police officer had arrived and interviewed them).
Although the record does not contain a definitive time line, it appears that
as much
as a full half hour could have elapsed between the stabbing, estima
ted by
eyewitness Benton to have transpired at 11:45 p.m., and Officer Ferriera’s arrival
at
the scene at 12:17 a.m. Even if Benton’s time estimate is inaccurate, a substa
ntial
number of events took place between the stabbing and the officer’s intervi
ew of
Johnson, including the disposal of the knife, defendant’s encounter with
the crowd,
her flight with Williams to a bus stop, their boarding of the bus, their appreh
ension
by police officers, and Officer Ferriera’s efforts to secure the crime scene. Couple
d
with the officer’s indefinite characterization of Johnson’s state of mind,
the
substantial lapse of time before the interview took place weighs against
classifying
Johnson’s statement as an admissible excited utterance. Cf In re
IA., 385
N.J.Super. 544 (App.Div. 2006) (holding that the excited utteran
ce exception
applied to statements of a crime witness during the course of an 9-1 -1
call he made
while chasing the suspect, and his follow-up statement to police about
two minutes
later indicating the suspect’s direction of travel).

13

For similar reasons, we do not regard Johnson’s statements to Officer Ferriera as an
admissible present sense impression. That exception only pertains to observations
“made while or immediately after the declarant was perceiving the event or
condition and without opportunity to deliberate or fabricate.” N.J.R.E. 803(c)(1).
As we noted in our excited-utterance analysis, the record fails to demonstrate that
Johnson lacked the opportunity to deliberate or fabricate before he spoke with
Officer Ferriera. Moreover, the hearsay exception for present sense impressions
does not embrace “narratives of a past occurrence” such as Johnson’s account to the
officer of what he saw happened. State v. Cotto, supra, 182 N.J. at 330.
Even if the hearsay objection to Johnson’s out-of-court statement could have been
surmounted, we also have serious doubts as to whether its admission would
comport with present standards under the Confrontation Clause. Under the
controlling case law established in Crawford v. Washington, supra, hearsay that is
“testimonial” in nature cannot be admitted against an accused without the
opportunity for cross-examination. Id., 541 U.S. at 53-54, 124 S_Ct. at 1365, 158 L.
Ed.2d at 194. Although we need not resolve the constitutional issue, Johnson’s
response to Officer Ferriera’s questioning, after defendant and Williams had
already been arrested, does appear to be testimonial. It is a statement in response to
a police interrogation, and not one whose primary purpose was to address an
ongoing emergency. See Davis v. Washington, 547 U.S.
126 S.Ct. 2266,
2273-74, 165 L. Ed.2d 224, 237 (2006).
,

,

Nonetheless, defendant is not entitled to a reversal of her conviction on this
evidentiary error. Officer Ferriera’s brief reference at trial to Johnson’s interview
statement was only a small piece of an overwhelming array of witnesses for the
prosecution. At least six other witnesses-Martin, Brian Williams, Egerton, Benton
,
Trent and April Williams-independently testified in various ways that corrob
orated
the incriminating parts of Johnson’s account. Martin and Brian Williams
in
particular watched defendant plunge the knife into the victim. The jury had more
than ample proof before it to find defendant guilty of passion/provocation
manslaughter, irrespective of Johnson’s statement.
After careflully considering these matters, we are satisfied that the trial
court’s
admission of Johnson’s statement to Officer Ferriera constituted harmless
error.
Given the other abundant proof of defendant’s guilt, we do not regard the admiss
ion
of this hearsay “of such a nature as to have been clearly capable of produc
ing an
unjust result....” R. 2:10-2; State v. Macon, 57 N.J. 325, 337-38 (1971) (recitin
g the
harmless error standard); see also State v. Cotto, supra, 182 N.J. at 331
(deeming
the erroneous admission of the hearsay statements harmless, where they
merely
“echoed” other details already heard by the jury).
State v. Perkins, 2007 WL 1261308, at

*

8-10 (N.J. Super. Ct. App. Div. May 2, 2007).

14

The violation of a right created by state evidentiary law is not itself cognizable as a basis
for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67—68 (1991) (“We have
stated
many times that ‘federal habeas corpus relief does not lie for errors of state law.”
(quoting Lewis
v. Jeffers, 497 U.S. 764, 680 (1990))); Ross v. Dist. Attorney of the Cnty. ofAlleghe
ny, 672 F.3d
198, 207 n. 5 (3d Cir. 2012) (citing Estelle, 502 U.S. at 62). A federal claim may
be established,
however, if the admission of evidence did not merely violate state law, but rose
to the level of a
deprivation of due process.

Estelle, 502 U.S. at 70 (“the Due Process Clause guarantees

fundamental elements of fairness in a criminal trial”) (quoting Spencer v. Texas,
385 U.S. 554,
563—64 (1967)). To rise to that level, such an error must have been so pervas
ive as to have denied
Petitioner a fundamentally fair trial. Keller v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001).
Similarly, a federal claim may be established if the admission of hearsay did
not merely
violate state evidence law, but rose to the level of depriving Petitioner of her
Sixth Amendment
right to confront the witnesses against her. See generally craMford v. Washi
ngton, 541 U.S. 36
(2004).

In Ohio v. Roberts, 448 U.S. 56, 66 (1980), the Supreme Court held
that the

Confrontation Clause does not preclude the admission of an unavailable
witness’s hearsay
statement if it bears “adequate indicia of reliability,” i.e., if it falls within a
“firmly rooted hearsay
exception” or if it bears “particularized guarantees of trustworthiness.” 448
U.S. at 66. More
recently, the Supreme Court has held that the text of the Sixth Amend
ment limits the scope of the
flexible test stated by Roberts:
Where nontestimonial hearsay is at issue, it is wholly consistent with the
Framers’
design to afford the States flexibility in their development of hearsay
law—as does
Roberts, and as would an approach that exempted such statem
ents from
Confrontation Clause scrutiny altogether. Where testimonial eviden
ce is at issue,
however, the Sixth Amendment demands what the common
law required:
unavailability and a prior opportunity for cross-examination.
15

Crawford, 541 U.S. at 68. An erroneous admission of testimonial hearsay in violati
on of the
Confrontation Clause is “an error in the trial process itself,” US. v. Hinton, 423 F.3d
355, 361—62
(3d Cir. 2005), and is therefore subject to review under the specialized standard of harmle
ss error
that applies in habeas proceedings.
In Brecht v. Abrahamson, 507 U.S. 619 (1993), the U.S. Supreme Court held that,
on
federal collateral review of a state-court criminal judgment under

§ 2254, the court should apply a

harmless error standard that is more “forgiving” than those that apply on direct
appeal. Citing
concerns about finality, comity, and federalism, Brecht held that, on federal
habeas review, a
constitutional error is considered harmless unless it “had a substantial and
injurious effect or
influence in determining the jury’s verdict.” 507 U.S. at 631 (quoting Kotteakos v.
US., 328 U.S.
750, 776 (1946)); see also Fry v. Pliler, 551 U.S. 112, 114, 116—120 (2007)
. “When a federal
judge in a habeas proceeding is in grave doubt about whether a trial error of
federal law has a
substantial and injurious effect or influence in determining the jury’s verdict
, that error is not
harmless.” O’Neal v. McAninch, 513 U.S. 432, 436 (1995). See also Bond v.
Beard, 539 F.3d 256,
275—76 (3d Cir. 2008) (applying the Fry/B recht standard to a 2254 Confro
ntation Clause claim).
§
Here, to the extent Petitioner is challenging the admission of the eviden
ce under state
evidentiary rules, that claim is clearly not cognizable in federal habeas review

. A short discussion

about what a witness told the police officer about the incident certainly
did not deny Petitioner a
fundamentally fair trial. Moreover, to the extent Petitioner challenges
the admission of the Ms.
Johnson’s statements under the Confrontation Clause, the Court finds
that any such erroneous
admission was harmless.

As discussed above, there was substantial, corroborating witness

testimony about the incident, all of which was nearly identical. The
statements by Ms. Johnson

16

which were relayed by the testifying officer were not novel or substantially different from the
many witnesses who actually testified.

Any error in admitting the testimony was harmless.

Petitioner has not shown that the Appellate Division’s ruling was contrary to or an unreas
onable
application of Supreme Court precedent, accordingly, Petitioner is not entitle
d to relief on this
ground.
3.

Prosecutorial Misconduct (Grounds Three and Four)

In Ground Three of the petition, Petitioner argues that her right to a fair trial
was violated
when the prosecutor questioned her in a way that “convey[ed] the impres
sion the prosecutor
possessed information indicating the Defendant intentionally went to the
scene to assault the
victim.” (Pet.

¶ 12.) In Ground Four, Petitioner argues that the prosecutor also violated her

rights when she cross-examined Petitioner about her prior criminal record
, even though it had been
fully disclosed by defense counsel during direct examination. (Id.)
Petitioner raised both of these claims on direct appeal, where the Appellate

Division denied

relief:
Defendant next argues that the prosecutor improperly questio
ned her on
cross-examination, by insinuating that the prosecutor had inform
ation that
defendant had intentionally gone to Murphy’s Tavern in order
to assault Shelton.
We are unconvinced by this claim.
In general, “a prosecutor must have ‘reasonable grounds’ for posing
questions
during cross-examination that impugn a witness’s credibility.” State
v. Daniels, 182
N.J. 80, 99 (2004). Further, when cross-examining an accused the
prosecutor may
not pursue a line of questioning which places before the jury “innue
ndo evidence or
inferences of evidence which the State could not get before the
jury by direct
testimony of the witness and which [the accused has] no opport
unity to challenge
meaningfully.” State v. Williams, 226 N.J.Super. 94, 103 (App.D
iv.1988).
Defendant contends that the prosecutor transgressed these
boundaries when she
cross-examined her as to her motivation for going to Murphy’s
Tavern on the night
of the stabbing. Specifically, defendant complains of
the following leading
questions posed by the prosecutor:
17

Q. Now, let’s get back to that night of [August] 1 St into [August]

2nd. Isn’t it a fact, that you went down to Murphy’s Bar with a
specific mission in mind?

Q. And that you had a conversation that day or that evening outside
of Murphy’s Bar where you told Wanda [Wilson] no one is going to
f *k with my Little Bit. That’s my partner, I do anything for her,
that’s why I came down here. She called me a couple days ago and
that’s why I’m down here. I can’t let anything happen to my girl.
****

Q. And isn’t it a fact, that you also told Karemiah [Johnson] that you
know I have to protect you?
****

Q. From the testimony from Tracie Benton we learned you had a

relationship with Karemiah [Johnson]?

A. No, I did not have a relationship with Karemiah. Karemiah is a
junk[ie], I don’t mess with junkies.

Q. And so that conversation that was overheard about why you were
down there, and how you had to protect her was a lie Tracie Benton
told you?
A. Yes, it’s a lie.

Q. And when you were down there that evening, then, it wasn’t your
intention to protect anyone. Is that correct?

A. No. It wasn’t my intention to protect no one. I went out to have
a
nice time.
Defendant argues that these questions insinuated that the prosec
utor had some
personal knowledge, not otherwise reflected in the proofs, regard
ing defendant’s
motivations for coming to the bar on the night of August 1, 2002.
In particular,
defendant claims that these questions raised an improper theme
suggesting that
defendant had a mindset of protectionism towards other women.
We are unpersuaded that this particular colloquy was unduly prejud
icial. For one
18

thing, when defendant finally had the chance after her attorney’s objections to
respond to these questions, she emphatically denied that she had made the
statements. She also denied, under oath, that she had gone down to the tavern to
protect anyone. Further, defendant called Wilson as a witness, giving her the
opportunity to refute the prosecutor’s intimation on what Wilson was said to have
been told, but defense counsel chose not to ask Wilson about this subject.
Moreover, the record before us contains no indicia that the prosecutor lacked a
good faith factual basis to pose these questions. The theme of protecting others was
by no means improper, and, indeed, was employed by defendant herself in direct
examination when she explained that she had taken the knife from Williams after
the stabbing in order to protect her from further trouble. Finally, we note that the
prosecutor’s summation did not mention defendant’s alleged remark to Wilson.
In sum, we perceive no reversible error on this issue.

Defendant first argues that the prosecutor improperly queried her on
cross-examination about her prior criminal convictions. That questioning,
however, followed defendant’s volunteering on direct examination that she had
been previously convicted of robbery, theft and the possession of marijuana in a
school zone with the intent to distribute it. Defense counsel seemingly revealed
these prior convictions for a strategic advantage, to soften the blow of an
anticipated cross-examination. Nonetheless, the prosecutor was entitled to explor
e
these matters in her own questioning. State v. Sinclair, 57 N.J. 56, 62-63 (1970)
.
The convictions were germane to defendant’s credibility. See N.J.R.E. 609. The
prosecutor did not harp upon the convictions, only spending a limited time
confirming defendant’s prior record without embellishment. Moreover, the judge
issued a suitable limiting instruction, explaining to the jury that the convictions
could only be used for credibility. None of this was impermissible.
State v. Perkins, 2007 WL 1261308, at

*

10-11 (N.J. Super. Ct. App. Div. May 2, 2007).

Prosecutorial misconduct may “so infect[ j the trial with unfairness as to make
the resulting
conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S.
637, 643, 94 S.Ct.
1868, 40 L.Ed.2d 431(1974). This occurs only if the misconduct constitutes
a “failure to observe
that fundamental fairness essential to the very concept of justice.” Id. at
642; see also Greer v.
Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987) (To
violate due process, “the

19

prosecutorial misconduct must be of sufficient significance to result in the denial of the defend

ant’s

right to a fair trial”) (citation and internal quotation marks omitted). It is not enough to show
that
the prosecutor’s conduct was universally condemned. See Darden v. Wainwright, 477 U.S.
168,
181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). The quantum or weight of the evidence is crucial
to
determining whether the prosecutor’s statements before the jury were so prejudicial as to result in
a
denial of due process. See Darden, 477 U.S. at 182; Donnelly, 416 U.S. at 644; Moore v.
Morton,
355 F.3d 95, 111 (3d Cit 2001).
Here, the prosecutor’s comments during the cross-examination of Petitioner did not infect
her trial with unfairness so as to make the resulting conviction a denial of due proces
s under
Donnelly, 416 U.S. at 643. See Gooding v. Wynder, 2012 WL 207068 (3d Cir. Jan. 25, 2012)
(applying Donnelly test to prosecutor’s comments at various stages of trial). As stated by
the trial
court, Petitioner denied that she intended to protect anyone else while testifying under
oath and
Petitioner’s attorney did not ask Ms. Wilson about the statements when given the opport
unity to do
so.

In addition, Petitioner testified about her prior convictions on direct examination
and

therefore any questioning by prosecutor also on that subject cannot be deemed miscon

duct. Thus,

the New Jersey courts’ adjudication of Petitioner’s prosecutorial misconduct
claims was not
contrary to, or an unreasonable application of Supreme Court precedent, and
Petitioner is not
entitled to habeas relief on these grounds.
4.

Cross Examination Limitation (Ground Five)

In her fifth ground for relief, Petitioner argues that the trial court improperly
limited her
cross-examination of April Williams regarding whether Ms. Williams’
had previously stabbed
anyone. (Pet.

¶ 12.)

20

Petitioner raised this issue on direct appeal and the Appellate Divisio
n rejected it:
Next, defendant argues that her trial counsel was unfairly curtailed in elicitin
g
testimony from April Williams about alleged prior “bad acts.” Specifically,
defense
counsel sought to ask Williams whether she had used a knife to stab anyone
in the
past. The judge sustained that objection.
On appeal, defendant concedes that the question was not authorized
under N.J.R.E.
404(b), which precludes, subject to certain exceptions shown to be applica
ble here,
the admission of “[ejvidence of other crimes, wrongs, or acts
to prove the
disposition of a person in order to show that such person acted in
conformity
therewith.” Id. Instead, defendant argues for the first time that the questio
n should
have been allowed under N.J.R.E. 607. Rule 607 merely states
the general
proposition that any witness may be impeached, and does not speak
to the proper
methods by which that impeachment may be undertaken. Defendant conten
ds that
she had information that Williams had once stabbed a neighbor, and
her trial
counsel planned to confront Williams with that incident (as well as anothe
r incident
concerning an attempted stabbing of a family member) after eliciting from
her a
denial that she never had stabbed anyone. Such an exercise, if it had been permit
ted
by the trial judge, would have circumvented the sound policies underl
ying Rule
404(b), and would have diverted the trial into collateral matters. The trial
judge
clearly had the discretion to forestall that evidential detour. See N.J.R.E. 403.
...

Thus, we discern no error, plain or otherwise, in the manner in which
these
additional evidentiary matters were dealt with at trial.
State v. Perkins, 2007 WL 1261308, at

*

11-12 (N.J. Super. Ct. App. Div. May 2, 2007).

“In all criminal prosecutions, the accused shall enjoy the right
witnesses against him

....“

...

to be confronted with the

U.S. Const. Amend. VI. The right is secured for defendants in state

as well as federal criminal proceedings by the Fourteenth Amendment. See
Pointer v. Texas, 380
U.S. at 403.

The protections of the Confrontation Clause necessarily include the right
to

cross-examination of a witness. See Smith v. Illinois, 390 U.S. 129, 131,88
S.Ct. 748, 19 L.Ed.2d
956 (1968). The scope of such cross-examination is, generally, that broad and
basic information
cannot be excluded; for instance, where credibility is at issue, the trial
court cannot ordinarily
prohibit the defense from inquiring into a witness’s identity and residen
ce.

21

See id.

Such

questions are “not only an appropriate preliminary to the cross-examination of the witnes
s, but.
[are] an essential step in identifying the witness with his environment, to which cross-examin
ation
may always be directed.” Id. at 132 (quotingAlfordv. United States, 282 U.S. 687,69
3,51 S.Ct.
218, 75 L. Ed. 624 (1931)). In other words, defense must be able “to make a record from which
to
argue [that the witness) might have been biased or otherwise lacked that degree of impart
iality
expected of a witness at trial.” Id.
However, the right to cross-examination is not without limits, as “the Confrontation Clause
guarantees an opportunity for effective cross-examination, not cross-examination
that is effective
in whatever way, and to whatever extent, the defense might wish.” Delaware Fenste
v.
rer, 474
U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985).

Thus, the scope of cross-examination

regarding a particular line of inquiry falls necessarily “within the sound discret
ion of the trial
court,” and “it may exercise a reasonable judgment in determining when
[a] subject is
[inappropriate).” Alford, 282 U.S. at 694. “[T]rial judges retain wide latitud
e

...

to impose

reasonable limits on such cross-examination based on concerns about, among
other things,
harassment, prejudice, confusion of the issues, the witness’[s] safety, or
interrogation that is
repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S.
673, 679,106 S.Ct.
1431 (1986).

It appears that Petitioner only raises this ground based on a violation
of state evidence
rules. However, as previously stated, the violation of a right created by
state evidentiary law is
not itself cognizable as a basis for federal habeas relief. See Estelle, 502
U.S. at 67—68. Even if
the Court were to assume that Petitioner intended to raise a Confrontation
Clause violation, she
would still be denied relief.

The trial court limited the questioning of April Williams with regard

22

to whether she had previously stabbed anyone. As stated by the Appellate Division,
if the court
were to permit such questioning under Rule 607, it “would have circumvented the sound
policies
underlying Rule 404(b), and would have diverted the trial into collateral matters.”
The limitation
of cross-examination was well within the discretion of the trial court and the state
court ruling was
not contrary to, and did not involve an unreasonable application of, clearly establi
shed federal law.
Accordingly, this ground for habeas relief is denied.
5. Ineffective Assistance of Counsel (Grounds Six and Seven)

In Ground Six of her petition, Petitioner alleges that it was a violation of her right
to
effective assistance of counsel when her trial attorney failed to obtain April Willia

ms’ clothing and

conduct a DNA test on the blood. (Pet.

¶ 12.) Petitioner also alleges that it was ineffective

assistance of counsel when her trial attorney failed to raise the issue of lack testing
of
by the police.
(Id.) In her final ground for relief, Petitioner alleges that her trial counsel was
also ineffective for

failing to adequately cross-examine April Williams’ as to the reason why she
was testifying for the
state. (Id.)
Petitioner raised both of these issues on PCR, where the trial court and Appell
ate Division
denied relief. The Appellate Division reasoned:
The thrust of defense counsel’s argument is that defendant’s trial attorne
y should
have done more to attempt to show that April Williams was the victim
’s assailant.
In particular, counsel argues that defendant’s trial attorney should
have
cross-examined Williams more vigorously, and also that defendant’s trial
attorney
should have cross-examined the police witnesses for the State about their
failure to
seize and test the clothing that Williams was wearing at the time of
the altercation.
Defendant, in her pro se supplemental brief, makes related arguments,
contending
that further investigation should have been performed and that William
s’ clothes
should have been preserved and DNA-tested for traces of the victim
’s blood.
The arguments related to Williams’ clothing are based upon comple
te speculation.
See State v. Cummings, 321 N.J.Super. 154, 170 (App.Div.) (noting
that PCR relief
requires more than “bald assertions” by a defendant), certif denied
, 162 N.J. 199
23

(1999). There is no indication that if Williams’s clothing had been preserved, the
victim’s blood would have been found on it. The lack of testing, however, is
inconsequential. Even if the victim’s blood were found on Williams’s clothing, that
would not necessarily inculpate her in the homicide, given that defendant, the
victim, and Williams had all been fighting in the street for a sustained period of
time. During the course of that melee, the victim’s blood could have spatter
ed on
Williams, or it could have transferred to Williams’s clothing from contact with
defendant.
We agree with the trial judge that defendant’s trial attorney was not ineffective in
eschewing a trial strategy predicated on hypothetical results of testing of Williams’s
unpreserved clothing. Nor was defendant actually prejudiced, given the strengt
h of
the proofs against her, which included multiple eyewitnesses who saw her plunge
a
knife into the victim while shouting “die.”
We also discern no ineffectiveness in the manner in which defendant’s trial attorne
y
cross-examined Williams. Defendant suggests that trial counsel should
have
brought out that the police had not charged Williams with a crime, thereby
accentuating her potential bias in testifying for the State. We conclude
that
Williams’ potential bias was self-evident and would have been readily appare
nt to
the jury. In his summation, defendant’s trial attorney emphasized Williams’ clear
motive to shift blame to defendant. There was no need for trial counsel
to ask
Williams directly on cross-examination about her motive in testifying. The
point
was obvious.
State v. Perkins, 2010 WL 5418146, at

*

2-3 (N.J. Super. Ct. App. Div. Nov.17, 2010).

The Sixth Amendment, applicable to states through the Due Proces
s 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).
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.

“[C]ounsel should be ‘strongly presumed to have rendered
24

adequate assistance and made all significant decisions in the exercise of reasonable professional
judgment.” Cullen, 131 S.Ct. at 1403 (citing Strickland, 466 U.S. at 690). “To overcome that
presumption, a defendant must show that counsel failed to act ‘reasonabl[y] considering all
the
circumstances.” Id. (citing Strickland, 466 U.S. at 688).
Further, a “convicted defendant making a claim of ineffective assistance must identify the
acts or omissions of counsel that are alleged not to have been the result of reasonable profess
ional
judgment.” Id. at 690. The court must then determine whether, in light of all the
circumstances
at the time, the identified errors were so serious that they were outside the wide
range of
professionally competent assistance. Id.
To satisfy the prejudice prong, the defendant must show that “there is a reason
able
probability that, absent the errors, the factfinder would have had a reason
able doubt respecting
guilt.” Id. at 695.

“It is not enough ‘to show that the errors had some conceivable effect on the

outcome of the proceeding’

.

.

.

Counsel’s errors must be ‘so serious as to deprive the defendant of

a fair trial, a trial whose result is reliable.” Harrington, 131 S.Ct. at 788 (citing
Strickland, 466
U.S. at 687). As the Supreme Court explained,
In 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 decisio
n
reached would reasonably likely have been different absent
the
errors.
25

Strickland, 466 U.S. at 695-96.
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 follow
ed.” Id.
Here, Petitioner cannot meet either prong of the Strickland test. It was clearly reason
able
for trial counsel not to pursue the clothing argument. As discussed by the state
courts, even if the
victim’s blood was found on Ms. Williams’ clothing, it would prove nothing since
the crime took
place during a large scale fight where blood could have easily transferred
to Ms. Williams’
clothing. The state court was also correct when it found that trial counsel was not
ineffective for
the manner in which he cross-examined Ms. Williams. Given the level of
involvement Ms.
Williams had in the incident, her motive for testifying for the state was abunda
ntly clear without
counsel specifically asking Ms. Williams about it on the stand. As such,
the state court rulings
were not contrary to, and did not involve an unreasonable application
of, clearly established
federal law and these grounds for habeas relief are denied.
III. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C.

§ 2253(c), unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken from a final order in a procee
ding under 28 U.S.C.
2254.

§

A certificate of appealability may issue “only if the applicant has
made a substantial

showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). “A petitioner satisfies

this standard by demonstrating that jurists of reason could disagre
e with the district court’s
resolution of his constitutional claims or that jurists could conclu
de the issues presented are
26

adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003).
Here, Petitioner has failed to make a substantial showing of the denial of a constitutional
right. Thus, no certificate of appealability shall issue.

IV. CONCLUSION

For the above reasons, the

§ 2254 habeas petition is denied, and a certificate of

appealability will not issue. An appropriate Order follows.

Dated:

sek’.Linares, U.S.D.J.

27