CRUMBLIN v. STATE OF NEW JERSEY et al

Filing 24

OPINION. Signed by Judge John Michael Vazquez on 2/6/17. (cm )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

:
ABDUL WAHID UBAIDAH CRUMBLIN, :
also known as
:
STERLING M. CRUMBLIN,
:
:
Petitioner,
:
:
v.
:
:
STATE OF NEW JERSEY, et al.,
:
:
Respondents.
:
:

Civil Action No. 12-6068 (JMV)

OPINION

APPEARANCES:
Abdul Wahid Ubaidah Crumblin
100-140 Talbot Hall
168 Frontage Road
Kearny, NJ 07032
Petitioner, pro se
Paula Cristina Jordao, Esq.
Morris County Prosecutor’s Office
Administration & Records Building
Morristown, NJ 07963
On behalf of Respondents
VAZQUEZ, District Judge
This matter comes before the Court upon the Petition for a Writ of Habeas Corpus under
28 U.S.C. § 2254 (ECF No. 1) filed by Petitioner, an inmate confined in Talbot Hall, in Kearney,
New Jersey. Respondents filed an Answer opposing habeas relief. (ECF No. 20.) For the reasons
discussed below, the Court denies the petition for a writ of habeas corpus.

I.

BACKGROUND

On March 24, 2004, the New Jersey Superior Court Appellate Division described the
procedural history of Plaintiff’s convictions and sentencing:
On February 1, 2001, defendant pled guilty to charges arising from
five separate indictments and one accusation for offenses committed
on six separate dates between July 17, 1999 and October 25, 2000
[in multiple counties].1
....
Defendant received an aggregate sentence of forty years with
sixteen years of parole ineligibility.
(ECF No. 20-15 at 2-3) (footnote added). On direct appeal, Petitioner appealed the trial court’s
denial of his motion to suppress and argued the sentence was excessive. (Id. at 3.)
The Appellate Division summarized the facts adduced at the hearings on Petitioner’s
motion to suppress:
At approximately noon on Saturday, July 17, 1999, Officer Glenn
Yanovak of the Hanover Township Police Department conducted a
business check of the Sage Brush restaurant located at 39 Horse Hill
Road. The restaurant property consisted of a building and a parking
lot. The restaurant was not open for business at the time of the
check. Yanovak drove to the back corner of the parking lot where
he observed a parked Honda Civic, the only car in the lot. He saw
that the driver, later identified as defendant, had his seat leaned back.
Yanovak parked his patrol car fifteen feet from the vehicle and
started to approach on foot to investigate. As he approached, he
observed defendant sit up and pull up his pants. He also saw a
female’s head pop up from defendant’s lap. Yanovak recognized

1

The charges Petitioner pled guilty to included two counts of third-degree possession of heroin
with intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(3); possession of CDS with intent to
distribute while in possession of a loaded 9mm automatic handgun, N.J.S.A. 2C:39-4.1, thirddegree possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A.
2C:35-7; second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and
5b(2); third-degree bail jumping, N.J.S.A. 2C:29-7; second-degree possession of CDS while in
possession of a firearm, N.J.S.A. 2C:39-4.1, and third-degree possession of CDS with intent to
distribute, N.J.S.A. 2C:35-5a(1) and 5(b)(13).
2

the female as Cheryl Ogden whom he had previously caught having
sex for money in the same parking lot.
Yanovak radioed for backup and requested defendant’s credentials.
Defendant produced a New Jersey boat license and informed the
officer that his driver’s license was suspended. While speaking to
defendant prior to the arrival of his backup, Yanovak observed what
he believed, based on seven and one half years of police experience,
to be marijuana roaches and ashes in the cup holder of the center
console of the vehicle.
After backup Officer Joseph Quinn arrived, Yanovak asked
defendant to step out of the vehicle. He complied and Yanovak gave
the defendant his Miranda warnings. Defendant advised Yanovak
that he picked up Ogden from Morristown because she needed a
ride, whereupon he asked her “how much it would be to get a blow
job.” She responded, indicating $10, and they drove to Sage Brush.
Officer Yanovak then placed defendant under arrest for soliciting
prostitution and possession of marijuana. He conducted a pat-down
search and noticed that defendant had a large amount of cash on him,
disbursed throughout his pants pockets. Defendant claimed that the
money was for automobile insurance.
Ogden was then arrested on the same charges and placed in Quinn’s
vehicle. Quinn stood outside the vehicle near defendant while
Yanovak conducted a search of the driving compartment, around the
seats, and the glove compartment. Yanovak put the marijuana
roaches in an evidence bag. In the glove compartment he found a
loaded Jennings nine millimeter semiautomatic handgun. Upon
inquiry, defendant admitted that the marijuana roaches and the
handgun were his.
It was a hot day and defendant, who was sweating profusely, was
placed into Yanovak’s vehicle, which was air conditioned. Officer
Quinn gave defendant his Miranda warnings, requested permission
to search the trunk and informed defendant that he had the right to
refuse consent. Neither officer produced a written consent to search
form for defendant’s signature, even though both officers had the
forms in their vehicles. Defendant gave verbal consent to search the
trunk to Officer Quinn, who relayed the consent to Yanovak.
Yanovak found a gray nylon bag containing two boxes of
ammunition in the trunk. After questioning, the defendant admitted
that the ammunition, which went with the gun, was his. The vehicle
was impounded.

3

Defendant and Ogden were brought to the police headquarters for
processing. Defendant was given his Miranda warnings for a third
time. During processing at police headquarters, defendant was
found to have $712.60 on his person in small denominations. Ogden
told the detective processing her that the money that was found was
“drug money,” and that defendant was a drug dealer in Morristown.
The detective advised Yanovak that Ogden wished to talk to him.
Ogden told Yanovak that if he gave her three cigarettes she would
tell him where defendant hid his drugs in the car. After finding two
cigarettes, which he gave to Ogden, Ogden told Yanovak that
defendant kept drugs in the dashboard under the lip inside the glove
compartment.
Meantime, the owner of the Honda Civic, Dawn Wilkens, arrived at
police headquarters. Officer Mark Roddy went over the consent to
search and Miranda warnings form with Wilkens and informed her
that she had a right to refuse. Wilkens signed the consent to search
form. Yanovak’s subsequent search of the vehicle produced a small
plastic bag with green vegetation, which he knew to be marijuana,
two bundles of white powdery substance, believed to be heroin, and
a marijuana cigarette. After returning to headquarters, Officer
Yanovak questioned defendant who admitted that the marijuana was
his but questioned how Yanovak knew the heroin was his.
At the suppression hearing, defendant challenged the consents to
search. On appeal, he abandons those arguments and, for the first
time, asserts that he was engaged in intimate activities similar to
those associated with the home at the time Yanovak entered the
parking lot and approached the vehicle and was, therefore, entitled
to an attendant expectation of privacy. Defendant also argues that
Yanovak had no right to enter the parking lot at the time because the
restaurant was closed.
....
At the time of his apprehension, defendant was parked in a far corner
of a restaurant parking lot in an area where he would not ordinarily
be located at a time that the restaurant was not open for business.
These circumstances alone provided reasonable suspicion to
conduct an investigatory stop. Moreover, defendant has no
reasonable or legitimate expectation of privacy when involved in
acts of prostitution. The officer properly approached the vehicle.
Yanovak’s observations of marijuana roaches and a known
prostitute plying her trade supported a reasonable and articulable
suspicion that defendant and his passenger were engaged in criminal
activity sufficient to order them to exit the vehicle. After defendant
4

was lawfully placed under arrest, the officers had probable cause to
search the vehicle incident to a lawful arrest. Simply put, the stop
and the search, here, pass constitutional muster.
(ECF 20-15 at 4-9) (citations omitted). The Appellate Division also found Petitioner’s sentence
was not manifestly excessive, unduly punitive, or an abuse of discretion. (Id. at 4.)
Petitioner filed a petition for post-conviction relief and requested a hearing, which was held
over multiple dates between July 28, 2005 and August 27, 2007. (ECF Nos. 20-8, 20-9, 20-10 and
20-11.) He raised the following ineffective assistance of counsel claims, which are the same claims
he presents in his habeas petition:
[1] Counsel improperly advised the defendant as to the degree of the
offenses[;]
[2] Defendant was facing a mandatory extended term and not
persistent offender sentencing[;]
[3] Counsel failed to argue that the court had the discretion to
impose a mandatory minimum term of less than 16 years[;]
[4] The plea offer was miscalculated[;]
[5] Defense counsel failed to advise defendant that by withdrawing
his motion to vacate the guilty plea, defendant waived most issues
he wanted to preserve for appeal[;]
[6] Defendant’s plea to Ind. No. 00-08-0983 was coerced
involuntary and based upon an untrue factual basis[;]
[7] Both trial and appellate counsel failed to raise important issues
regarding the motion to suppress evidence[;]
[8] Based on counsel’s supplemental brief and Petitioner’s pro se
petition, the Court should grant petition based upon cumulative
error[;]
(ECF No. 20-29 at 3-4.)

5

Petitioner raised two additional arguments in a supplemental brief:
Point I
Counsel was ineffective as he failed to challenge the imposition of
a mandatory extended term for second time offenders as the fact of
[Petitioner’s] prior conviction was an element of the offense which
required a sentence greater than that of a first offender.
Point II
Counsel was ineffective as he failed to challenge the Indictment
which did not allege aggravating factors.
(Id. at 4.)
After the hearings, the PCR Court denied relief. (ECF Nos. 20-12 and 20-26.) Petitioner
appealed. (ECF Nos. 20-20, 20-21, and 20-22.) On January 11, 2011, the Appellate Division
affirmed the PCR Court, stating:
Defendant appeals from the February 19, 2008 order denying his
post-conviction relief (PCR) petition. The petition arose out of an
aggregate sentence of forty years imprisonment with a sixteen-year
parole disqualifier that was imposed on May 24, 2001 on multiple
charges contained in seven separate indictments to which defendant
had pled guilty. The guilty plea was entered pursuant to a negotiated
plea agreement, and the base term of the sentence imposed was
lower than that recommended in the plea agreement. Further,
pursuant to the terms of the plea agreement, five additional
indictments and various other pending complaints were dismissed.
For the reasons that follow we affirm. . . .
Although Judge Bozonelis had taken defendant’s plea and sentenced
him, Judge Ahto presided over the PCR proceedings. After
conferencing the PCR matter on the record, Judge Ahto scheduled
an evidentiary hearing, which he conducted over several dates. The
judge received the testimony of defendant and the trial counsel who
had represented him at the time of his plea and sentencing. The
assistant county prosecutor who had represented the State through
the plea and sentencing also testified. Defendant also presented the
testimony of Janet Erdmann, who he contended was a potentially
exculpatory witness with respect to one of the indictments to which
he pled guilty. Defendant contended that he furnished his trial
counsel with Erdmann’s name and whereabouts, as well as the
6

favorable information she was prepared to provide, but his trial
counsel failed to contact her.
On February 14, 2008, Judge Ahto issued a comprehensive oral
decision. He found the testimony of defendant and Erdmann
incredible. He credited the testimony of defendant’s trial counsel
and the assistant prosecutor. The judge concluded that on some
points raised by defendant there was no deficient attorney conduct.
On others, he found that the asserted deficiencies were corrected in
the course of the trial court proceedings and were of no
consequence. Finally, although the judge found that some conduct
by trial counsel may have been deficient, he further found that
defendant failed to demonstrate that the outcome of the proceedings
would [not] have been any different. . . .
....
We affirm substantially for the reasons expressed by Judge Ahto in
his February 14, 2008 oral decision.
(ECF No. 20-29 at 2-7.) The Appellate Division also provided some additional comments,
discussed in the grounds for relief below. The New Jersey Supreme Court denied certification on
July 12, 2012. (ECF No. 20-33.)
In the present petition, Petitioner requests habeas relief based on the ineffective assistance
of trial and appellate counsel claims he raised in his PCR proceeding. (ECF No. 1 at 5.)
Respondent argues none of Petitioner’s claims have merit. (ECF No. 20 at 27-50.)
III.
A.

DISCUSSION

Standard of Review

28 U.S.C. § 2254(d) provides:
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
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(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.
Section 2254(e)(1) states:
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
evidence.
“Contrary to clearly established Federal law” means the state court applied a rule that
contradicted the governing law set forth in United States Supreme Court precedent or that the state
court confronted a set of facts that were materially indistinguishable from Supreme Court
precedent and arrived at a different result. Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013)
(citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). The phrase “clearly established Federal
law” “refers to the holdings, as opposed to the dicta” of the United States Supreme Court’s
decisions. Williams, 529 U.S. at 412. An “unreasonable application” of clearly established federal
law is an “objectively unreasonable” application of law, not merely an erroneous application. Eley,
712 F.3d at 846 (quoting Renico v. Lett, 130 S.Ct. 1855, 1862 (2010)).
If a state court order is silent on the reason for a decision on a federal claim, the following
presumption applies: “[w]here there has been one reasoned state judgment rejecting a federal
claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the
same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). Thus, habeas courts “look through”
an unexplained order to the last reasoned decision by the state court. Id. at 804.
The Supreme Court of the United States established the standard for determining
ineffective assistance of counsel in Strickland v. Washington, 466 U.S. (1984). With respect to

8

claims of ineffective assistance of counsel under § 2254(d), “the question is not whether counsel's
actions were reasonable.” Harrington v. Richter, 562 U.S. 86, 105 (2011). “The question is
whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.”
Id. To satisfy the prejudice prong of Strickland when a defendant alleges counsel erroneously
advised him of the consequences of pleading guilty, the petitioner must allege “that, had counsel
correctly informed him . . . he would have pleaded not guilty and insisted on going to trial.” Hill
v. Lockhart, 474 U.S. 52, 60 (1985).
Where the alleged error is failure to investigate exculpatory evidence, the question is
whether the error prejudiced the defendant by causing him to plead guilty instead of going to trial,
and whether the evidence would have changed counsel’s recommendation to take the plea. Id.
Ultimately, the issue turns on whether the evidence likely would have changed the outcome of a
trial. Id.
B.

Analysis

Petitioner seeks habeas relief based on the claims of ineffective assistance of counsel raised
in his PCR proceedings. The PCR Court denied his claims after an evidentiary hearing, and the
Appellate Division affirmed primarily based on the reasons stated by the PCR Court. Therefore,
on habeas review, the Court reviews both the Appellate Division and the PCR Court’s denial of
Petitioner’s ineffective assistance of counsel claims.
1.

Grounds One through Four

In Grounds One through Four of the petition, Petitioner asserts: (1) counsel improperly
advised him as to the degree of the offenses; (2) counsel improperly advised him he was facing
persistent offender sentencing but it was actually a mandatory extended term; (3) counsel failed to

9

argue that the court had the discretion to impose a mandatory minimum term of less than sixteen
years of parole ineligibility; and (4) the plea offer was miscalculated. (ECF No. 20-20 at 7-16.)
Grounds One through Four all relate to defense counsel’s, Allen Marra, alleged
misunderstanding of the sentencing laws as applied in Petitioner’s complex, multi-indictment case,
and counsel’s advice to accept the plea offer. Petitioner’s arguments center on the worksheets
used to negotiate the original plea agreement, although the plea agreement was modified in
Petitioner’s favor before it was completed. (Id.)
Even if Marra failed to properly explain some aspects of the complex sentencing
calculation involved, Petitioner must show prejudice to meet the Strickland test for ineffective
assistance of counsel. The prejudice Petitioner alleges with respect to Grounds One through Four
is that, rather than counsel’s recommendation to agree to a fifty-year prison term with a sixteenyear stipulation of parole ineligibility, counsel should have argued for a twelve and one-third-year
stipulation, the lowest available under the Brimage guidelines. (Id. at 13.) Petitioner asserts that
because the sentencing judge actually sentenced to shorter term of imprisonment than negotiated,
forty years with a sixteen-year stipulation, the judge would have been receptive to a twelve and
one-third-year stipulation. (Id. at 22.)
The PCR Court made the following findings. Marra testified it was his goal to get a twelveyear stipulation. (ECF No. 20-12 at 5.) This suggested to the PCR Court that, contrary to
Petitioner’s assertion, Marra knew he could seek less than sixteen years of parole ineligibility.
(Id.) Assistant Prosecutor O’Connell testified that he would never have agreed to a twelve-anda-third-years stipulations because guns were involved, crimes were committed while the defendant
was out on bail, and the defendant had used a similar modus operandi in the past, including the

10

presence of a gun during his crimes. (Id. at 13-14.) Petitioner was facing a maximum of 100
years in prison with a 75-year stipulations. (Id. at 14.)
The Appellate Division affirmed for the reasons stated by the PCR Court but added these
statements:
This was a “global” settlement resulting in the disposition of at least
twelve outstanding indictments and several other criminal and motor
vehicle complaints against defendant. It is readily apparent that the
parties negotiated for an overall disposition, a critical component of
which was the mandatory minimum period of time that defendant
would be incarcerated before being eligible for parole. Judge Ahto’s
conclusion that, even if an argument had been made for less than
sixteen years it would not have been granted, is supported by the
record, and we have no occasion to interfere with it.
(ECF No. 20-29 at 11.)
The PCR Court and the Appellate Division applied the correct standard announced in
Strickland for analysis of Petitioner’s ineffective assistance counsel claims. Therefore, the only
question on habeas review is whether the state court’s application of the prejudice prong was
unreasonable. It was not. There is little in the record to suggest the sentencing court would have
sentenced Petitioner to the minimum period of parole ineligibility, especially because the Assistant
Prosecutor testified he would not have agreed to such a plea in a case involving guns and crimes
committed while on bail. Therefore, Petitioner has not established prejudice, and the Court denies
Grounds One through Four of the habeas petition.
5.

Ground Five

In Ground Five of the petition, Petitioner argues counsel failed to advise him that by
withdrawing his motion to vacate the guilty plea, he waived issues he wanted to raise on appeal.
(ECF 20-20 at 16.) The trial court suggested, on the record, that if Petitioner went forward with
the plea, he would preserve any issues on the motion to suppress for appeal. (Id. at 16.) Petitioner

11

was then given the opportunity to discuss with counsel whether he wanted to withdraw his motion
to vacate the guilty plea. (Id.) When they went back on the record, counsel confirmed that
Petitioner was withdrawing his motion, and Petitioner said he was doing so to preserve the right
to appeal all issues. (Id.) Therefore, Petitioner argues counsel failed in his duty to advise him that
he would not preserve issues other than the motion to suppress, and that a plea constitutes a waiver.
(Id. at 17.)
The Appellate Division, in affirming the PCR Court’s denial of this claim, ruled as follows:
defendant argues that when he agreed to withdraw his motion to
vacate his plea and proceed to sentencing under the plea agreement,
he was misinformed that he was waiving his right to appeal issues
other than denial of the suppression motion and sentencing issues.
However, defendant has demonstrated no viable appeal issues that
he was precluded from presenting. He has alluded to the Erdmann
issue. However, that issue was properly the subject of a collateral
proceeding, and it was indeed fully litigated in this PCR proceeding,
with a full evidentiary hearing including Erdmann’s and defendant’s
testimony.
(ECF No. 20-29 at 11.)
The Appellate Division reasonably applied the prejudice prong of Strickland, finding that
because Petitioner was not deprived of raising any viable appeal issue, counsel’s alleged failure to
fully advise him of the waiver of appeal rights did not deprive him of constitutionally effective
counsel. Therefore, the Court denies Ground Five of the petition.
6.

Ground Six

In Ground Six, Petitioner asserts his trial counsel was ineffective by failing to follow up
with Petitioner’s claim, as part of his motion to vacate his plea, that another person, Janet Erdmann,
and not Petitioner, possessed the drugs that formed the basis of Indictment No. 00-08-0983. (ECF
No. 20-20 at 17.) In his PCR brief, Petitioner explained:

12

The defendant continues to protest his innocence on this particular
charge. Due to what he perceived as threats and the pressure exerted
upon him by counsel to enter a guilty plea, and the perception by
defendant that his attorney was interested in anything but defending
him, the defendant threw in the towel and entered a guilty plea on
this matter as part of a package deal. Yet the State, in the face of
evidence to the contrary, insisted on a plea, and counsel, when he
became aware of the exculpatory evidence [Erdmann’s affidavit
accepting responsibility for the drugs] did nothing for his client.
This clearly affected the result, especially when everyone later
convinced the defendant he could still raise his issues, including this
one, on an appeal.
(ECF No. 20-20 at 18.)
The PCR Court noted Marra testified that he tried to find Erdmann but failed, but Petitioner
knew where she was and did not tell him. (ECF No. 20-12 at 9-10.) Petitioner and Erdmann,
according to Erdmann’s testimony, were in Morris County Correctional Facility, and they were
passing notes to each other. (Id.; ECF No. 20-11 at 3-5.)
The PCR judge found Erdmann’s testimony that the heroin was hers not credible. (ECF
No. 20-12 at 11-12.) Erdmann testified she was in love with the defendant, and the PCR Court
believed “she was going to take the weight.” (Id.) Petitioner admitted at the plea hearing that the
heroin was his, but he later claimed he only admitted to this on his counsel’s advice. (Id. at 15.)
Petitioner believed that once Marra was paid a $25,000 retainer, he lost interest in the case and did
not want to go to trial. (Id. at 16.)
The PCR Judge found Petitioner was not credible in matters that were crucial. (Id.) On
the day of the plea, Marra and the assistant prosecutor were ready to go to trial on the first case.
(Id. at 17.) The PCR Court’s impression of Petitioner was that he could not be “so easily led,
duped or . . . uninformed,” as Petitioner’s PCR testimony would suggest. (Id.)
The Appellate Division added:

13

the PCR court made critical credibility determinations regarding
Erdmann and the events pertaining to her, which are supported by
the record and to which we defer. . . Based on those determinations,
even if the first Strickland prong was satisfied, the second was not.
The record supports Judge Ahto’s conclusion that the result would
not have been different.
(ECF No. 20-29 at 10.)
The circumstances discussed by the PCR Court suggested Petitioner did not want anyone
to know he was in the same jail with Erdmann, and that they had passed notes to each other. This
information might have led a jury to conclude Petitioner and Erdmann discussed her affidavit. It
was not unreasonable for the PCR Court to conclude a jury was unlikely to have believed
Erdmann’s testimony. Therefore, Petitioner cannot show prejudice from his counsel’s failure to
locate her and go to trial on the case. The Appellate Division and PCR Court reasonably applied
the Strickland standard in denying this claim of ineffective assistance of counsel. Therefore, the
Court denies Ground Six of the habeas petition.
7.

Ground Seven

For his seventh ground of ineffective assistance of counsel, Petitioner contends both trial
and appellate counsel failed to raise issues regarding the validity of the search of the motor vehicle
that Petitioner occupied at the time of his arrest. (ECF No. 20-20 at 19-21.) Petitioner’s first
retained counsel challenged the validity of the defendant’s verbal consent to search at the time of
his arrest. (Id. at 19.) Counsel also challenged the consent of the owner of the vehicle, which was
obtained after the defendant was arrested and the owner was called to police headquarters. (Id.)
Appellate counsel then argued the police officers’ initial approach of the vehicle was unjustified.
(Id.)
Petitioner contends counsel should have argued the officer’s search of the glove box was
not authorized as a plain view search and was not within the scope of a search incident to arrest.
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(Id. at 20.) Further, counsel did not argue “the unlikelihood that a person would give a voluntary
consent knowing that evidence of crime would be found.” (Id. at 21.) Therefore, counsel’s failure
to argue these points likely led to denial of the motion. (Id.)
The PCR Judge found that Petitioner gave consent to search the vehicle, although the
consent was not in writing. (ECF No. 20-12 at 18.) The owner of the vehicle gave her consent in
writing. (Id.) In any event, the inevitable discovery rule would have led to the discovery of the
gun and the contraband. (Id.) The prostitute who was in the car spontaneously blurted out that
defendant was a drug dealer and had drugs in the glove box. (Id.) The hollow point bullets would
have flowed from the search consented to by the owner of the vehicle. (Id. at 19.) The Appellate
Division agreed with PCR Court’s conclusion that even if counsel had presented the arguments
Petitioner suggested, the State would have nevertheless prevailed under the inevitable discovery
doctrine. (ECF No. 20-12 at 12.)
“Under the inevitable discovery doctrine, ‘if the prosecution can establish by a
preponderance of the evidence that the information ultimately or inevitably would have been
discovered by lawful means . . . then the deterrence rationale has so little basis that the evidence
should be received.’” U.S. v. Stabile, 633 F.3d 219, 245 (3d Cir. 2011); (quoting United States v.
Vasquez De Reyes, 149 F.3d 192, 195 (3d Cir. 1998) (quoting Nix v. Williams, 467 U.S. 431
(1984)). The inevitable discovery doctrine allows admission of evidence where it is established
that “ˊthe police, following routine procedures, would inevitably have uncovered the evidence.’”
Id. (quoting Vasquez De Reyes, 149 F.3d at 195.))
The record supports the holdings of the PCR Court and the Appellate Division that the
inevitable discovery doctrine would have permitted admission of the evidence found in the car
when Petitioner was arrested. The prostitute who was in the car with Petitioner “spontaneously

15

blurted out that the defendant was a drug dealer and had drugs in the glove box of the car.” (ECF
No. 20-12 at 18.) Petitioner had more than $700.00 in his pocket at the time. (Id.) This evidence
would have supported a search warrant for the car. (Id.) Additionally, the owner of the car later
gave written consent to search. (Id.) Petitioner had virtually no chance of succeeding on a
suppression motion.

Therefore, the PCR Court and Appellate Division reasonably denied

Petitioner’s ineffective assistance of counsel claim. The Court will deny Ground Seven of the
habeas petition.
8.

Ground Eight

For Ground Eight, Petitioner asserts the cumulative errors of counsel resulted in his guilty
plea. (ECF No. 20-20 at 21.) Petitioner contends but for counsel’s errors he would have withdrawn
his guilty plea, and he would have succeeded on his motion to suppress. (Id.)
The Appellate Division held:
At the PCR proceeding, defendant’s trial counsel testified that all of
defendant’s cases were straightforward and there were no viable
defenses in any of them. He also testified he was prepared to go to
trial in all of the cases. The assistant county prosecutor testified that
he was also ready to try all the cases. Indeed, the plea agreement
was finalized only after a jury panel had been brought into the
courtroom to begin the first trial. Defendant presented no competent
evidence of any viable defense in any of his cases. Judge Ahto’s
credibility determination as to the testimony of defendant’s trial
counsel and the assistant county prosecutor supports the conclusion
that no viable appeal issues were taken away from defendant by
virtue of his guilty plea.
(ECF No. 20-29 at 11-12.)
Having found no viable defenses in Petitioner’s criminal cases, the Appellate Division
reasonably applied the prejudice prong of the Strickland analysis when it rejected Petitioner’s
claim that cumulative errors of counsel prejudiced him because he would have been successful if
he had gone to trial. In Grounds One through Four, the Court rejected Petitioner’s claim that but
16

for counsel’s errors, he would have received a twelve and one-third years-term of parole
ineligibility upon his plea and sentencing. Therefore, the Court denies Ground Eight of the habeas
petition.
9.

Ground Nine

The first issue in Petitioner’s supplemental PCR petition is his ninth ground for relief in
this matter. Petitioner asserted:
Counsel was ineffective as he failed to challenge the imposition of
a mandatory extended term for second time offenders as the fact of
his prior conviction was an element of the offense which required a
sentence greater than that of a first offender.
(ECF No. 20-21 at 1.)
Petitioner explained:
The defendant was sentenced as a repeat drug offender to a
mandatory extended term, with a mandatory term of parole
ineligibility. Here, the fact of the prior conviction does not increase
the statutory maximum sentence, and it is not just an aggravating
factor in the sense of N.J.S.A. 44-1, but its existence creates a new
statutory minimum sentence. And while N.J.S.A. 2C:43-6(f) is
labeled a sentencing statute, it is in reality creating a new substantive
offense, that of being a second time drug distributor. The new
minimum penalties thus exceed the potential penalties for a first
time offender. All others must receive an extended term and a period
of parole ineligibility. The fact the prior conviction here requires a
sentence beyond the sentence which could be imposed otherwise
mandate the matter be presented to the jury. State v. Petrucci, 353
N.J. Super. 454 (App. Div. 2004) (Jury must decide if its (sic) an
assault firearm as mandatory minimum sentence is greater than
maximum flat term.)
To make matters worse in the present situation, the mandatory
sentence becomes “mandatory” solely on the application of the
prosecution. N.J.S.A. 2C:35-12. . . . [T]he Constitutionality of the
statute has not been re-evaluated in light of Apprendi2 and its
2

Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding the Constitution requires any fact that
increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of
a prior conviction, must be submitted to a jury).
17

progeny. Cf. State v. Lagares, 127 N.J. 20 (1992), State v. Vasquez,
129 N.J. 189 (1992).
(Id. at 3-4) (emphasis in original) (footnote omitted).
It does not appear that the PCR Court or the Appellate Division specifically addressed this
claim. “Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's
burden still must be met by showing there was no reasonable basis for the state court to deny
relief.” Harrington, 562 U.S. at 98.
Ground Nine implicates Petitioner’s constitutional rights under the Apprendi line of cases.
[N]othing prevents a defendant from waiving his Apprendi rights.
When a defendant pleads guilty, the State is free to seek judicial
sentence enhancements so long as the defendant either stipulates to
the relevant facts or consents to judicial factfinding. If appropriate
waivers are procured, States may continue to offer judicial
factfinding as a matter of course to all defendants who plead guilty.
Even a defendant who stands trial may consent to judicial
factfinding as to sentence enhancements, which may well be in his
interest if relevant evidence would prejudice him at trial. We do not
understand how Apprendi can possibly work to the detriment of
those who are free, if they think its costs outweigh its benefits, to
render it inapplicable. . . .
Bargaining already exists with regard to sentencing factors because
defendants can either stipulate or contest the facts that make them
applicable.
Blakely v. Washington, 542 U.S. 296, 310 (2004) (citations omitted).
Petitioner pled guilty in this matter. (ECF No. 5.) He waived his right to a jury and
stipulated to the relevant facts. (Id.; ECF No. 20-13 at 47-52.) Moreover, Petitioner does not
assert that if he had gone to trial and the issue was presented to a jury, the jury would have found
he was not subject to enhanced penalties. Therefore, Petitioner did not allege facts supporting the
prejudice prong of the Strickland test for ineffective assistance of counsel. The Court denies
Ground Nine of the petition.

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10.

Ground Ten (Point II)

Ground Ten of the habeas petition is the second issue Petitioner raised in his supplemental
PCR petition. Petitioner asserted his ‘[c]ounsel was ineffective as he failed to challenge the
indictment which did not allege aggravating factors.” (ECF No. 20-21 at 5.) Petitioner cited the
New Jersey Supreme Court case State v. Fortin, 178 N.J. 540 (2004), where “the New Jersey
Supreme Court relied on the State Constitution in deciding that the sentencing aggravating factors
which triggered a capital murder prosecution were indeed elements of the offense which had to be
presented to the grand jury.” (Id. at 6.)
After the New Jersey Supreme Court decided State v. Thomas, 188 N.J. 137 (2006),
Petitioner filed a supplemental brief.

(ECF No. 20-22.) Petitioner noted Thomas rejected the

defendant’s argument that the Sixth Amendment requires a jury to decide if he could be sentenced
to a mandatory extended term and a mandatory period of parole ineligibility due to prior CDS
distribution convictions. (Id. at 1.) Petitioner distinguished Thomas from his case:
The defendant here is arguing that under the State constitution, the
matter must first be submitted to a grand jury, and ultimately a trial
jury, to determine if he is subject [to] the new mandatory minimum
sentence required by the statute. Thomas decides the Court and not
a trial jury can make these decisions on Federal grounds and does
not address the fact the statute requires a new mandatory minimum
sentence, not merely [an] enhanced sentence.
(ECF No. 20-22 at 2.)
The PCR Court found it was bound by Thomas, and it rejected Petitioner’s argument. (ECF
No. 20-12 at 18.) Thomas establishes that “N.J.S.A. 2C:43–6(f) operates as a sentence enhancer
on the basis of a judicial fact-finding that is authorized under Apprendi and Blakely, to wit, the
finding of prior convictions.” 188 N.J. at 151-52.

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“[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)
(emphasis added). Petitioner has not presented a viable federal claim in Ground Ten. Therefore,
the Court denies Ground Ten of the petition.
IV.

CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken from a final order in a proceeding under 28 U.S.C. §
2254. A certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies
this standard by demonstrating that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003).
As shown by the discussion of Petitioner’s claims for habeas relief, Petitioner has not made
a substantial showing of the denial of a constitutional right. Therefore, the Court will deny a
certificate of appealability.

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V.

CONCLUSION

For the reasons discussed above, this Court denies the petition under 28 U.S.C. § 2254, and
denies a certificate of appealability.

An appropriate Order follows.

Date: February 6, 2017
At Newark, New Jersey

s/ John Michael Vazquez
JOHN MICHAEL VAZQUEZ
United States District Judge

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