STEVENS v. WARREN et al

Filing 12

OPINION. Signed by Judge Claire C. Cecchi on 11/28/17. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ANTIONE STEVENS,
Civil Action No. 13-2831 (CCC)
Petitioner,
v.

:

OPIMON

CHARLES WARREN, et aL,
Respondents.

CECCifi. District Judge:
Petitioner Antione Stevens, confined at the East Jersey State Prison in Rahway, New
Jersey, files the instant Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254,
challenging a conviction and sentence imposed by the State of New Jersey for possession with
intent to distribute heroin in close proximity to a school and a public park, and related charges.
Respondents have filed a Response, and Petitioner did not file a traverse after being afforded the
opportunity, so the Petition is now ripe for disposition. For the reasons stated below, the Court
denies the Petition.
I.

FACTUAL BACKGROUND

For the purposes of this Opinion, the Court relies on the following findings of fact by the
state appellate court on direct appeal:
As part of a narcotics investigation, Anthony Goodman, a Jersey City police
officer, was performing surveillance on September 29, 2006, at the intersection of
Stegman Drive and Martin Luther King Drive (“MLK Drive”). That neighborhood
contains a mixture of residential and commercial buildings. It was considered by
law enforcement to be a high-drug area where narcotics arrests were often made.

Officer Goodman began his surveillance at 10:50 a.m. Shortly thereafter,
he began to focus on two black males who were standing and conversing in front
of a barbershop on MLK Drive. He identified the two males in court as
codefendants Damian Haynes and Kendall McCord. Goodman then noticed
Haynes walk into a nearby liquor store with another individual. Apparently, no
drug transaction occurred at that point, and Haynes left the store without purchasing
anything. This scenario repeated two more times. Goodman asserted that he had
an unobstructed view of the two establishments. He was situated approximately
forty feet from the liquor store and 150 to 200 feet from the barbershop.
Following these initial observations, Officer Goodman began to focus on
the area with binoculars. He noticed a tall black male, whom he later identified as
defendant, approach. Haynes entered the barbershop while defendant and McCord
waited outside. According to Goodman, McCord yelled, and at the same time made
a hand gesture, asking for “two more.” Given the officer’s distance from the store,
McCord’s shout was not “clear as day” to Goodman; however, the officer insisted
that he heard what McCord had shouted.
Haynes then left the barbershop and entered the liquor store with defendant.
Once they were inside, Officer Goodman saw Haynes give defendant a small object
via a “hand-to-hand exchange.” Defendant gave Haynes what appeared to be
currency in return. According to his testimony, Goodman was able to observe this
because the store had large glass windows, which allowed him to see the upper
bodies of the persons inside. Although there were promotional advertisements on
the windows, Goodman stated that they did not block his view of the interactions
between defendant and Haynes.
Based on these observations, Officer Goodman believed that he had
witnessed a drug transaction because: (1) Haynes repeatedly left the liquor store
without purchasing anything; (2) money had been exchanged between defendant
and Haynes for a small package; and (3) defendant and Haynes left a public area
and went into the liquor store, apparently desiring to transact their business in a
more private setting. Goodman was unable, however, to identify the particular
contraband that had been handed to defendant.
After the apparent hand-to-hand drug transaction was completed, defendant
and McCord entered a green Chrysler Sebring. McCord drove the car, with
defendant accompanying him in the front passenger seat. Haynes remained at the
barbershop. Meanwhile, Officer Goodman alerted perimeter police units that were
waiting nearby. Goodman gave them a description of the car, the passengers inside,
and the direction in which McCord was driving.
Michael Burgess and Alexander Rivera, two of the Jersey City police
officers involved in the perimeter duty, received Officer Goodman’s call. They
followed the Sebring and eventually pulled it over near the intersection of Bidwell
Street and MLK Drive. Both Officers Burgess and Rivera were driving unmarked
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cars. They were wearing civilian clothes, although their police badges were readily
viewable hanging from their necks.
Officer Burgess and another police officer approached the driver’s side of
the Sebring. Simultaneously, Officer Rivera approached the passenger side and
identified himself to defendant. Both McCord and defendant were advised that they
had been stopped as part of a narcotics investigation. They were asked to step out
of the car.
According to Officer Rivera, defendant became “very belligerent” when he
was asked to leave the car. Officer Burgess similarly recalled that by the time
defendant got out and stood in the car’s doorway, he was “real verbally
confrontational.” He asked the officers why the car had been stopped, and he
started to flail his arms about. He also refused to stand still. Noting the disturbance,
Officer Burgess came around the car to assist Officer Rivera. As he did so,
defendant, according to Rivera, “made a move to take off’ and he elbowed Burgess.
At that point, the police decided to handcuff and arrest defendant.
Defendant resisted that effort, and, in doing so, kicked Officer Rivera in the shin.
Both Rivera and Burgess testified that defendant’s actions caused them pain.
Officer Burgess then searched defendant and McCord. From defendant’s
front pants pocket, Burgess recovered a Newport cigarette box. The box held fiftyfour glassine bags containing what laboratory testing later confirmed to be heroin.
The logo “Black Flag” was printed on the bags, indicating the identity of the
distributor of the [controlled dangerous substance (“CDS”)]. Burgess also
uncovered from defendant a bag of suspected marijuana as well as $63 in cash.
Officer Goodman then called the arresting officers to notify them that Haynes was
walking towards the arrest scene. Haynes was subsequently arrested and marijuana
was likewise found on his person.
Defendant was indicted and charged with various crimes, including the
possession of heroin with the intent to distribute it generally, to distribute it within
a school zone, and to distribute it within a park zone. The indictment did not,
however, charge defendant with any offenses relating to the marijuana.
Additionally, the indictment charged defendant with two counts of aggravated
assault of a police officer (count five as to Officer Burgess and count six as to
Officer Rivera), and also contained a count for resisting arrest.
At trial, Officer Goodman testified that the apparent drug transactions had
occurred within 1000 feet of a school zone, as demarcated by an official map of
Jersey City. Subsequently, defense counsel and the State stipulated that the
transaction occurred within 1000 feet of a school. Goodman further contended that
the drug transaction occurred within 500 feet of a public park, known as Audubon
Park. This was based on a certified 500-foot City map.

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The State produced two expert witnesses. First, it called William Goebel, a
municipal engineer for Jersey City, as an expert in engineering and planning.
Goebel testified that the 500-foot map depicted all areas within the City limits that
were within 500 feet of a public park. Although that particular map had not been
adopted by a City ordinance, Goebel testified that it was based on, or “scaled” from,
an “official” City map.
Using the map as a reference, the State contended that the area where the
heroin transaction took place was within 500 feet of Audubon Park. Goebel
described how the map was made, using a scale that was adopted and certified by
the State. He noted that as the supervisor in charge of the map, he had spot-checked
the work done by his subordinates in preparing the map. Goebel also referred to an
aerial map of Jersey City to demonstrate for the jury that the transaction occurred
within 500 feet of Audubon Park.
The State also presented expert testimony from Wally Wolfe, a sergeant
with the Jersey City Police Department. Sergeant Wolfe was admitted as an expert
in illegal narcotic packaging and distribution. He opined that heroin was commonly
sold in small glassine bags that usually contained a logo of the drug’s producer.
Wolfe concluded that the packaging used to contain the heroin found on defendant
was of a type typically used in street sales. Over defendant’s objection, Wolfe
claimed that, in general, the heroin found in the area of the City where the
transaction occurred was “very potent.” He acknowledged, however, that the CDS
involved here was not tested for its specific potency.
Defendant testified in his own behalf. He admitted that he was present with
McCord and Haynes, as described, on September 29, 2006. However, he claimed
that no CDS was on his person after he was stopped by the police. Defendant
conceded that he asked the police several times why he was being stopped, and was
told that the stop was part of an investigation. At the police station following the
arrest, defendant was shown the heroin and marijuana the police claimed to have
found on his person. However, he denied that the drugs were his own. Defendant
conceded that he had been convicted of unlawful possession of a weapon in 1999,
a fact which the prosecution used in summations to impeach his credibility.
After considering these proofs, the jury found defendant guilty on all counts
charged in the indictment except for count five, aggravated assault of Officer
Burgess. Although defendant was found guilty on count seven, resisting arrest, the
jury concluded that defendant did not resist through the “use or [threat of] physical
force or violence,” thereby reducing its severity from a third-degree crime to a
disorderly persons offense.
(ECF No. 10-13 at 3-10.)

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II.

STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 2$ U.S.C.

§ 2254, “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).

When a claim has been adjudicated on the merits in state court proceedings, a writ for habeas
corpus shall not issue 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. 2$ U.S.C. § 2254(d); see also Parker v. Matthews, 132 5. Ct. 2148, 2151 (2012).
A state-court decision involves an “unreasonable application” of clearly established federal
law if the state court (1) identifies the correct governing legal rule from the Supreme Court’s cases
but unreasonably applies it to the facts of the particular case; or (2) unreasonably extends a legal
principle from Supreme Court precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should apply. Williams v.
Taylor, 529 U.S. 362, 407 (2000). Federal courts must follow a highly deferential standard when
evaluating, and thus give the benefit of the doubt to, state court decisions. See Felkner v. Jackson,
562 U.S. 594, 598 (2011); Etey v. Erickson, 712 F.3d 837, 845 (3d Cir. 2013). A state court
decision is based on an unreasonable determination of the facts only if the state court’s factual
findings are objectively unreasonable in light of the evidence presented in the state-court
proceeding. Miller-El v. Cockrett, 537 U.S. 322, 340 (2003). Moreover, a federal court must
accord a presumption of correctness to a state court’s factual findings, which a petitioner can rebut

5

only by clear and convincing evidence. 28 U.S.C.

2254(e); see Rice v. Collins, 546 U.s. 333,

339 (2006) (petitioner bears the burden of rebutting presumption by clear and convincing
evidence); Duncan v. Morton, 256 F.3d 189, 196 (3d Cir. 2001) (factual determinations of state
trial and appellate courts are presumed to be correct).
III.

DISCUSSION

Petitioner raises six grounds for relief in his Petition: (I) the trial court erred when it failed
to confirm that trial counsel had advised him of the consequences of testifying at trial; (II) the trial
court erred in denying his motion for judgment of acquittal on the resisting arrest charge; (III) the
trial court erred by allowing irrelevant and prejudicial evidence to be presented; (IV) the trial court
rendered jury instructions that violated his due process rights; (V) the trial court impinged his right
to counsel of his choice; and (VI) cumulative effects of the aforementioned errors deprived him of
due process. The Court addresses each ground below.
A. Ground I

—

Failure to Confirm Effective Assistance

The Fifth Amendment guasantees that “[n]o person.

.

.

shall be compelled in any criminal

case to be a witness against himself[.]” U.S. Const. amend. V. This right also includes the absolute
right by a criminal defendant to testify on his own behalf, if he chooses to do so. Rock v. Arkansas,
483 U.S. 44, 51(1987). The right to testify can be waived, but both the New Jersey Supreme
Court and the Third Circuit have held that this waiver must be knowing and voluntary. United
States v. Leggett, 162 F.3d 237, 246 (3d Cir. 1998); State v. Savage, 120 N.J. 594, 630 (1990).
Consequently, both courts have held that defense counsel has an obligation to inform and explain
to a defendant his right to testify, and failure to do so constitutes ineffective assistance of counsel.
Leggett, 162 F.3d at 247; Savage, 120 N.J. at 630-3 1.

6

Here, however, Petitioner is not challenging the advice his counsel rendered with regard to
his right to testify—there is no allegation that he received deficient advice from counsel. Instead,
Petitioner’s challenge is premised on the contention that the trial court failed to confirm that he
received adequate advice from counsel. Petitioner raised this claim on direct appeal, and the
appellate court held that “when a defendant is represented by counsel, the trial court is not required
to inform defendant of his right to testify or explain the consequences of that choice.” (ECF No.
10-13 at 14-15) (quoting Savage, 120 N.J. at 628) (emphasis in the original).
Both the New Jersey Supreme Court and the Third Circuit have held that trial courts have
no obligation to confirm that a defendant received constitutionally adequate advice from counsel
with regard to his right to testify. Leggett, 162 F.3d at 246; Savage, 120 N.J. at 630. Given this
authority, this Court finds there has not been any constitutional violation, because the trial court
was not required to confirm that Petitioner received adequate advice from counsel under either
federal or state law. As such, this Court finds that the state court’s decision on this claim was a
reasQnable application of Supreme Court precedent, based on a reasonable determination of the
facts, and relief on this ground is denied.
B. Ground II— Denial of Judgment of Acquittal
Next, Petitioner claims that the trial court erred in denying his motion for judgment of
acquittal on his resisting arrest charge because there was no showing that he was explicitly
informed by the police officers that he was under arrest. Petitioner raised this claim on direct
appeal, and the appellate court held that the New Jersey resisting arrest statute contained no such
requirement in order to establish guilt. (ECF No. 10-13 at 17-18.)
Here, Petitioner fails to raise a cognizable claim on federal habeas. “[A] district court shall
entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the

7

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). In that regard,

the Supreme Court has held that “federal habeas corpus relief does not lie for errors of state law.”
Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (citation and quotation omitted). Because the source
of Petitioner’s resisting arrest conviction arose out of a state statute, even if the trial court had
made a mistake regarding the requirements of such statute, it would be an error of state law, and
this Court is without jurisdiction to review the trial court’s decision. Therefore, the Court denies
relief on this ground.
C. Evidentiary Rulings
Next, Petitioner claims that the trial court erred by admitting irrelevant and prejudicial
evidence at trial, which violated his due process rights.

Petitioner challenges a number of

evidentiary rulings by the trial court, namely that (1) the inclusion of evidence relating to his
possession of marijuana was irrelevant and prejudicial; (2) the admission of testimony by Officer
Goodman regarding the 500-foot map used at trial (“Trial Map”) without proper foundation
violated his right to confrontation; (3) the admission of the Trial Map itself violated his right to
confrontation; (4) the admission of testimony regarding the potency of the heroin found, when it
was never tested for potency, was improper; and (5) the admission of Officer Goodman’s
testimony regarding his experience as a narcotics officer was improper. Petitioner raised these
claims on direct appeal, and the appellate court, in painstaking detail, found that the trial court did
not commit reversible error by admitting any of this evidence at trial. (ECF No. 10-13 at 19-30;
ECF No. 10-14 at 1-9.)

8

i.

General Evidentiary Challenges

The Due Process Clause of the Fourteenth Amendment prohibits states from depriving
“any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV.
The core concept of due process is protection against arbitrary government action.

Cty. of

Sacramento v. Lewis, 523 U.S. 833, 845 (1998). “[T]he Due Process Clause guarantees the
fundamental elements of fairness in a criminal trial.” Riggins v. Nevada, 504 U.S. 127, 149 (1992).
In the field of criminal law, “the category of infractions that violate ‘fundamental fairness’ [is
defined] very narrowly based on the recognition that, beyond the specific guarantees enumerated
in the Bill of Rights, the Due Process Clause has limited operation.” Medina v. California, 505
U.S. 437, 443 (1992). “The Bill of Rights speaks in explicit terms to many aspects of criminal
procedure, and the expansion of those constitutional guarantees under the open-ended rubric of the
Due Process Clause invites undue interference with both considered legislative judgments and the
careful balance that the Constitution strikes between liberty and order.” Id. As the Supreme Court
explained,
[iJt goes without saying that preventing and dealing with crime is much more the
business of the States than it is of the Federal Government, and that we should not
lightly construe the Constitution so as to intrude upon the administration of justice
by the individual States. Among other things, it is normally within the power of
the State to regulate procedures under which its laws are carried out, including the
burden of producing evidence and the burden of persuasion, and its decision in this
regard is not subject to proscription under the Due Process Clause unless it offends
some principle of justice so rooted in the traditions and conscience of our people as
to be ranked as fundamental.
Id. at 445 (quoting Patterson v. New York, 432 U.S. 197, 201-02 (1977)). In order to satisfy due
process, Petitioner’s trial must have been fair, but it need not have been perfect. United States v.
Hasting, 461 U.S. 499, 508-09 (1983) (“[T]here can be no such thing as an error-free, perfect trial,
and

[1 the Constitution does not guarantee such a trial.”).

9

On habeas review, federal courts only ask whether appropriate procedural safeguards were
provided to Petitioner, and do not second-guess whether the state court’s evidentiary findings were
substantially correct. See 28 U.S.C.

§ 2254(e). “Except in cases involving a violation of a specific

constitutional provision such as the confrontation clause, this court may not reverse a state trial
judge’s action in the admission of evidence unless the evidentiary ruling so infuses the trial with
unfairness as to deny due process of law.” Riggins, 504 U.S. at 147.
Here, the appellate court found that Petitioner had either failed to object to the admission
of these pieces of evidence, or was given the full opportunity to challenge these evidentiary rulings
at trial. (See ECF No. 10-13 at 19-30; ECF No. 10-14 at 1-9.) With the exception of the admission
of the Trial Map and related evidence, which implicates a specific constitutional right that the
Court addresses below, none of the other evidentiary rulings Petitioner challenges here are related
to an enumerated right under the Federal Constitution. As the Supreme Court instructed, federal
courts cannot unduly interfere with a State’s prerogative in administering criminal justice under
the open-ended rubric of the Due Process Clause. The Court will not substitute its own judgment
for that of the state court on evidentiary rulings, and nothing here “offends some principle ofjustice
so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Medina,
505 U.S. at 445. Indeed, Petitioner does not allege that he was not afforded the constitutionally
required procedural protection with regard to the admission of the evidence; instead, he challenges
the evidentiary rulings on the merits. Accordingly, to the extent that Petitioner is challenging these
evidentiary rulings under the general rubric of the Due Process Clause, the Court finds the state
court’s decision to be a reasonable application of Supreme Court precedent, based on a reasonable
determination of the facts.

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ii.

Confrontation Clause Challenge

However, the Court recognizes that Petitioner’s challenges regarding the admission of the
Trial Map and related evidence can also be construed as making explicit claims under the
Confrontation Clause of the Sixth Amendment. The Sixth Amendment guarantees that “[i]n all
criminal prosecutions, the accused shall enjoy the right.
him[.]”

U.S. Const. amend. VI.

.

.

to be confronted with witnesses against

In American jurisprudence, the right to confrontation is

traditionally protected by the rules against hearsay; indeed, as the Supreme Court noted in Giles v.
Cattfornia, “it seems apparent that the Sixth Amendment’s Confrontation Clause and the
evidentiary hearsay rule stem from the same roots.” 554 U.S. 353, 365 (2008) (quoting Dutton v.
Evans, 400 U.S. 74, 86 (1970)). As to be expected, New Jersey has a rule against hearsay. See
N.J. R. Evid. 802 (“Hearsay is not admissible except as provided by these rules or by other law.”).
Petitioner contends that the Trial Map constitutes testimonial evidence, and that its
admission by the trial court, without proper foundation by the “author” of the Trial Map, is hearsay
and a violation of his right to confrontation. Petitioner raised this claim on direct appeal, and the

appellate court held that (1) the Trial Map was not testimonial evidence, (ECF No. 10-13 at 30),
and (2) the Trial Map “satisfied the hearsay exceptions for business records, N.J.R.E. $03(c)(6),
and public records, N.J.R.E. 803(c)(8),” (id. at 29). The appellate court further held that “even if
the map is regarded as testimonial, defendant’s confrontation rights were not infringed because

Rule $03(c)(6) defines “business record” as “[a] statement contained in a writing or other record
of acts, events, conditions
made at or near the time of observation by a person with actual
knowledge or from information supplied by such a person, if the writing or other record was made
in the regular course of business and it was the regular practice of that business to make it{.]” N.J.
R. Evid. 803(c)(6). Rule 803(c)(8) defines “public record” as “a statement contained in a writing
made by a public official of an act done by the official or an act, condition, or event observed by
the official if it was within the scope of the official’s duty either to perform the act reported or to
observe the act, condition, or event reported and to make the written statement[.]” N.J. R. Evid.
803(c)(8).
.

.

.

11

defense counsel had an ample opportunity to cross-examine Goebel, under whose direction the
map was created.” (ECF No. 10-30 at 30; ECF No. 10-14 at 1.)
Implicit in Petitioner’s challenge of the Trial Map is that Goebel was not an “author” of
the Trial Map, and therefore his presence at trial did not alter its status as hearsay. The record does
not support Petitioner’s argument. As the record establishes, the Trial Map was created by a team
of engineers, who faithfully replicated a relevant section of the official map adopted by the city
council, albeit at a larger scale, presumably for the ease of presentation at trial. As such, in creating
the Trial Map, one quality mattered the most above all else: accuracy. To that effect, Goebel
testified that he was the supervisor of the team charged with creating the Trial Map, and that he
had spot-checked the work done by his subordinates in preparing it. It is clear to this Court that
Goebel’s contributions were essential to the map’s creation—he was the ultimate arbiter of its
accuracy. To argue that he was not an author of the Trial Map is to ignore the reality that it was
created by a team of engineers, not by one particular individual; there was not one definitive
“author” of the Trial Map. Goebel’s presence at trial, as an author of the Trial Map, rendered it
not a violation of the Confrontation Clause. As the Supreme Court held in Buticoming v. New
Mexico, 564 U.S. 647, 657 (2011), the Confrontation Clause requires the authentication of
testimonial evidence by a person who certified the evidence, personally performed the work to
produce the evidence, or observed the performance of such work—Goebel clearly, at the very
least, both certified the Trial Map as well as observed the performance of his subordinates in
creating the map, squarely within what Buticoming requires.
The Court is mindful, however, that Petitioner’s clalm may also be construed another
way—since the Trial Map was merely a recreation of the official map, and because no author of
the official map testified at trial, the Trial Map was still hearsay, irrespective of Goebel’ s presence

12

at trial. As stated above, the appellate court addressed this construction, by holding that the Trial
Map may be admitted as public record. Indeed, Petitioner does not allege, and there is no evidence
showing, that the official map was somehow created for the purposes of Petitioner’s trial. Hence,
there can be no argument that the official map was not public record; as the record shows, it was
officially adopted by the city council for generalized purposes. (See ECF No. 10-13 at 30.) In
fact, its status as the official map adopted by city council would have made the map judicially
noticeable. See N.J. R. Evid. 20 1(b) (“Facts which may judicially noticed include

.

.

.

specific

facts and propositions of generalized knowledge which are capable of immediate determination by
resort to sources whose accuracy cannot reasonably be questioned.”); United States v. Rio Grande
Dam & Irrigation Co., 174 U.S. 690, 694 (1899) (taking judicial notice of an official map of the
territory of New Mexico and of the United States); Chamberlain v. 625 Orleans, LP, No. 11-0140,
2011 WL 1627080, at *2 n.1 (E.D. Tex. Apr. 18, 2011) (finding that official maps are judicially
noticeable); McIntyre v. Div. of Youth Rehab. Servs., 795 F. Supp. 668, 673 n.4 (D. Del. 1992)
(taking judicial notice of the Official State Highway Map of Delaware). Therefore, the Court finds

that the admission of the Trial Map, either as an independently created document or as a derivative
work of the official map, did not violate the Confrontation Clause and, as such, the state court’s
decision was a reasonable application of Supreme Court precedent under Giles and Bullcoming,
based on a reasonable determination of the facts.

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iii.

Prosecutorial Misconduct

Although Petitioner does not explicitly raise this claim, the Court construes Petitioner’s
contention that “the prosecutor’s attempt to bolster the [narcotics] officers’ testimony simply by
virtue of their being police officers was inappropriate,” (ECF No. 1 at 19), as alleging a claim of
prosecutorial misconduct for improperly vouching for a witness. In particular, Petitioner alleges
that the following statement during closing argument by the prosecutor constituted improper
vouching:
So what I’m saying to you folks is that you have a choice. In this case, when it
comes to the facts of this case, the choice in front of you I will submit is as follows,
you have a choice to believe the testimony of two veteran narcotic’s (sic) officers
who you had an opportunity to sit here, watch, and listen to and evaluate. You have
a choice to find them credible or you can find the self-serving statements of a
convicted felon. That’s your choice.
(ECF No. 1 at 20.) The state appellate court found that the prosecutor did not vouch for the
witnesses by making the above statement, and that Petitioner did not timely object to the statement.
(ECF No. 10-14 at 9.)
In order for a prosecutorial misconduct claim to warrant federal habeas relief, the
prosecutor’s comments must have “so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 16$, 180 (1986) (citing
Donnelly v. DeChristoforo, 416 U.S. 637 (1974)).
The prosecutor’s vouching for the credibility of witnesses and expressing his
personal opinion concerning the guilt of the accused pose two dangers: such
comments can convey the impression that evidence not presented to the jury, but
known to the prosecutor, supports the charges against the defendant and can thus
jeopardize the defendant’s right to be tried solely on the basis of the evidence
presented to the jury; and the prosecutor’s opinion carries with it the imprimatur of
the Government and may induce the jury to trust the Government’s judgment rather
than its own view of the evidence.

14

United States v. Young, 470 U.S. 1, 18-19 (1985). However, when a prosecutor’s statement
“contained no suggestion that he was relying on information outside the evidence presented at
trial,” and “when viewed in context.

.

.

cannot be read as implying that the prosecutor had access

to evidence outside the record,” then the prosecutor had not improperly vouched for a witness. Id.
at 19; see United States v. Brown, 54 F. App’x 342, 345 (3d Cir. 2002) (stating that to claim
improper vouching, a petitioner must establish that “(1) the prosecutor

[1 assure[s] the jury that

testimony of a government witness is credible; [and] (2) this assurance [is] based on either the
prosecutor’s personal knowledge or other information not contained in the record”) (quoting
United States v. Saada, 212 F.3d 210, 225 (3d Cir. 2000)).
The Court finds the state court’s determination—that the prosecutor did not improperly
vouch for the officer witnesses—reasonable. Although the prosecutor did refer to the witnesses’
status as police officers in the closing statement above, that was not information outside of the
record—it is implausible that the jury was not aware of that fact long before the prosecutor
explicitly stated so during closing. The prosecutor did not state that the jury should believe the
officers’ testimony over that of Petitioner’s; he simply stated that the jury had a choice as to who
they would believe. The decision whether to believe the testimony of police officers or that of a
criminal defendant, who in this case was a convicted felon, is a choice many juries in many
criminal trials must make routinely. It was reasonable for the state court to find that the prosecutor
did not improperly vouch for the officers; the record supports the conclusion that he did not rely
on evidence not already presented to the jury, but merely reminded the jury of its responsibilities
and obligations present in almost every single criminal trial.

It was certainly reasonable to

conclude that the statement did not “infect[J the trial with unfairness as to make the resulting
conviction a denial of due process”—indeed, holding otherwise would have been a gross

15

mischaracterization of the impact it had on the jury, when it should have been so obvious to the
jury as to render the statement unnecessary and superfluous. See United States v. Walker, 155 f.3d
180, 187 (3d Cir. 1998) (“[W]here a prosecutor argues that a witness is being truthful based on the
testimony given at trial, and does not assure the jury [of] the credibility of the witness based on his
own personal knowledge, the prosecution is engaging in proper argument and is not vouching.”);
Baker v. Wenerowicz, No. 13-6329, 2014 WL 6823590, at *8 (E.D. Pa. Dec. 4, 2014) (finding the
prosecutor’s closing statement referring to facts already presented and known to the jury not
improper because it “was in fact nothing more than a reminder to the jury of evidence that was
actually presented to it”). Accordingly, the state court’s decision was a reasonable application of
Supreme Court precedent based on a reasonable determination of the facts. Relief on this ground
is denied.
D. Jury Instructions

Next, Petitioner alleges that the trial court erred because it failed “to explain to the jury the
law with references to the facts of the case or the defense theory of the case,” and that its jury
instructions “included extraneous portions of statutes not charged.” (ECf No. 1 at 21.) Petitioner’s
challenge to the jury instructions themselves stems from his allegations that, on the assault charges,
the trial court had given the jury instructions on two different theories for conviction, one based
on the officers being “in performance of their duties,” another based on their actual status as law
enforcement officers. (Id. at 23.) Petitioner contends that because his assault charge was only
based on the former theory, the instructions relating to the latter theory were unconstitutional. (Id.)
Likewise, Petitioner contends that because he was charged only for the “purposely attempting to
cause bodily injury” theory of the crime, the trial court’s instructions based on the “purposely,
knowingly or recklessly caused bodily injury” theory of the crime were similarly unconstitutional.

16

(Id.) Petitioner made the same argument with regard to the resisting arrest charge, contending that
the trial court instructed the jury on two different theories of the crime, when the indictment only
charged Petitioner with one. (Id. at 24.)
Petitioner raised this claim on direct appeal, and the appellate court held that (1) there was
no obligation by the trial court to reference the facts of the case in the jury instructions, and in fact
properly refrained from doing so, (ECF No. 10-14 at 11-12), and (2) the trial court did not err by
quoting the entire statutory language of the offenses charged, even if the State had only indicted
Petitioner based on certain subsections, (Id. at 14). The appellate court further found Petitioner
had “ample notice that he was being charged with assaulting a uniformed officer, and that the State
could have relied upon either alternative theory specified by [the relevant statutes].” (Id. at 15.)
The appellate court also found that because the jury had acquitted Petitioner of the assault charge
on Officer Burgess, and he was not found guilty of the more serious resisting arrest charge, the
jury was not confused or misled by the trial court’s jury instructions. (Id. at 16-17.)
With regard to Petitioner’s contention that the trial court should have given instructions
that referred to the facts of the case andlor the defense theory of the case, Petitioner’s contention
is unsupported. Indeed, another court in this district had dealt with a similar claim on a

§ 2254

petition, and found that “due process does not require the [jury] instructions to explain the elements
of [the offense] with reference to the facts of the case.” Ingram v. Hendricks, No. 03-2850, 2005
WL 2807208, at *3 (D.N.J. Oct. 25, 2005). A habeas challenge to state jury instructions must
“point to a federal requirement that [the] jury instructions

.

.

.

must include particular provisions,”

or “demonstrate that the jury instructions deprived him of a defense which federal law provided to
him.” Johnson v. Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997). Petitioner has not done so here.

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With regard to Petitioner’s contention that the trial court erred by including extraneous
instructions, the Supreme Court recently dealt with a similar issue in Lopez v. Smith, 135 S. Ct. 1
(2014). In Lopez, the defendant was charged with first-degree murder. Id. at 2. The prosecution,
during trial, focused on a theory that the defendant had committed the murder himself, while the
defense had suggested that former employees of the defendant had committed the crime. Id. At
the close of evidence, the prosecution requested a jury instruction based on a theory of aiding-andabetting, and the trial court granted that request. Id. The defendant was convicted of the crime by
the jury, with no explanation as to which theory the jury relied upon. Id. The state supreme court
ultimately affirmed the conviction. Id. at 3. On federal habeas review, the district court granted
habeas relief, and the Ninth Circuit affirmed. Id. Relying heavily on its own precedent, the Ninth
Circuit reasoned that although the murder charge was sufficient to put the defendant on notice that
he could be convicted on an aiding-and-abetting theory, nevertheless because the prosecution did
not introduce that theory until it requested the jury instruction, the defendant’s due process right
was violated because he was not put on notice of the alternative theory. Id. at 3-4.
The Supreme Court reversed, finding that its own precedent did not “clearly establish[] that
a prosecutor’s focus on one theory of liability at trial can render earlier notice of another theory of
liability inadequate.” Id. at 4. Without such case law by the Supreme Court, habeas relief was not
warranted. Id.; see also Id. at 5 (“Absent a decision of ours clearly establishing the relevant
standard, the Ninth Circuit had nothing against which it could assess, and deem lacking, the notice
afforded respondent by the information and proceedings.”). Although the Lopez case dealt with
the issue of notice, its holding implies that the inclusion of the aiding-and-abetting jury instruction
was not in violation of clearly established Supreme Court law.

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Here, the appellate court explicitly found that Petitioner had adequate notice of the
alternative theories with regard to the assault and resisting arrest charges. Indeed, as the appellate
court found, the different theories of the crime were enumerated together within the relevant
statutes. (ECF No. 10-14 at 14.) It was reasonable for the appellate court to hold that Petitioner’s
highly technical reading of the indictment and the relevant statutes was insufficient to establish
that Petitioner lacked adequate notice of the alternative theories, when Petitioner was put on notice
that he was being charged under those specific statutes. Given the finding that Petitioner had
adequate notice of the charges and their possible theories of conviction, under Lopez, the trial
court’s inclusion of jury instructions based on those theories did not violate clearly established
Supreme Court precedent. Thus, the state court’s decision was not an unreasonable application of
clearly establish Supreme Court law, nor was it based on an unreasonable determination of the
facts. As such, the Court denies relief on this ground.
E. Ground V

—

Choice of Counsel

The Sixth Amendment guarantees the accused the “right

.

.

.

to have the Assistance of

Counsel for his defense.” U.S. Const. amend. VI. This right includes the right to a counsel of a
defendant’s choice, when that defendant does not require appointed counsel. United States v.
Gonzalez-Lopez, 548 U.S. 140, 144 (2006). Such right, however, “is circumscribed in several
important respects.” Id. (quoting Wheat v. United States, 486 U.S. 153, 159 (1988)). “[A] trial
court[ has] wide latitude in balancing the right to counsel of choice against the needs of fairness
and against the demands of its calendar.” Id. at 152 (citing Wheat, 486 U.S. at 163-64 and Morris
v. Stappy, 461 U.S. 1, 11-12 (1983)). Courts have the power “to make scheduling and other
decisions that effectively exclude a defendant’s first choice of counsel.” Id. Pursuant to the
Supreme Court’s decision in Morris, a court can deny a defendant’s right to a counsel of his choice

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when the defendant’s “belated requests to be represented by [substitute counsel] were not made in
good faith but were a transparent pioy for delay.” 461 U.S. at 13.
Here, it appears that Petitioner was originally represented by a court-appointed counsel,
but Petitioner alleges that he requested a substitution of counsel of his choosing “[t]he weekend
before January 7, 2008,” (ECF No. 1 at 26), when trial was scheduled to start on January 8, 2008,
(id. at 27). Petitioner further alleges that, on January 7, 2008 in open court, neither his appointed
counsel, the trial court, nor the prosecutor objected to this request, although the trial court did state
that it “would not be giving him any additional postponements and they w[ere] going forward with
the trial.”2 (Id. at 26-26.) Petitioner does not allege that he objected to that condition; indeed,
given the lateness of Petitioner’s request, the Court finds that conditional acceptance by the trial
court more than reasonable. However, the next morning, when trial was scheduled to start,
Petitioner’s new counsel did not arrive on time, but his appointed counsel was present. (Id. at 27.)
After some discussion, the trial court decided to proceed to trial with the appointed counsel, and
allegedly told Petitioner that “if the other attorney shows up he can substitute if he wants.” (id. at
28.)
Based on these allegations, Petitioner argues that his right to counsel of his choice was
violated because the trial court insisted on proceeding with the trial when his new attorney did not
arrive on time. Although Petitioner could have raised this claim on direct appeal, it was not raised
until review for post-conviction relief (“PCR”), and the PCR trial court held that:
Finally, the Petitioner baldy asserts that he was denied the counsel of his choice.
The Petitioner claims that he wanted a new attorney, hired a new attorney, and this
Court denied his request for an adjournment. The Petitioner does not and cannot
identify a single instance in the record or otherwise to substantiate this claim. The
Public Defender’s Office provided the Petitioner with competent, adequate counsel.

2

Petitioner’s new counsel was not present in court on that date, for reasons unexplained.
20

(ECF No. 10-26 at 6.) The PCR appellate court affirmed without elaborating its reasoning. (ECF
No. 10-36 at 9.)
The Court construes the state court’s ruling as finding that Petitioner’s allegations were
unsupported by evidence.3 Nevertheless, even if Petitioner’s allegations are true, he would not be
entitled to habeas relief. The Court finds nothing unreasonable about the trial court’s alleged
conduct. The trial court did not outright deny Petitioner his choice of new counsel, and in fact
expressly allowed it. The trial court accepted Petitioner’s request on the condition that trial would
not be postponed or delayed, and there is no allegation that Petitioner objected. On the morning
of trial, it was Petitioner’s new counsel who was at fault for not appearing on time, if Petitioner’s
allegations are to be believed. In fact, there is no allegation that the new counsel eventually made
an appearance at all. Given the lateness of Petitioner’s request to substitute counsel, such conduct
could justify denying his request altogether under Morris. Regardless, other courts, in applying
Gonzales-Lopez andlor Morris, have found denials of requests for continuance on the eves of trial
reasonable, a request Petitioner did not even make here. See Miller v. Blacketter, 525 F.3d 890,
897 (9th Cir. 2008) (finding a denial of continuance by the state court reasonable when it was made
the morning trial was set to begin); William v. Hendricks, No. 00-4795, 2009 WL 2169230, at *4
(D.N.J. July 21, 2009) (“Thus, when a criminal defendant first makes a trial court aware of
dissatisfaction with counsel on the eve of trial, it may not be a denial of the right to counsel of
choice for the trial court to deny a continuance for the purposes of substituting or finding new

The Court need not rely on the state court’s explicit ruling, and instead may rely on an alternative
theory in finding the state court’s ruling as reasonable, while accepting Petitioner’s allegations as
true. See Collins v. Sec. ofPa. Dep ‘t of Corr., 742 F.3d 528, 548 (3d Cir. 2014) (“AEDPA requires
that [federal courts] ‘determine what argument or theories supported or. could have supported,
the state court’s decision.”) (quoting Harrington v. Richter, 562 U.s. 86, 102 (2011)).
.

21

.

counsel.”); United States v. Hanhardt, 155 F. Supp. 2d 861, 871 (N.D. 111. 2001) (finding denial
of continuance based on new counsel’s scheduling conflict reasonable).
Here, it was Petitioner’s own choice to substitute counsel two days before trial, and through
no fault of anyone who was present when trial was to begin, his new counsel did not appear. The
trial court was well within reason to proceed to trial with the appointed counsel; after all, the
appointed counsel actually appeared at trial on time. There was no reason to believe that the
appointed counsel was not prepared for trial, given that Petitioner had only informed him about
Petitioner’s desire to substitute a mere two days before trial, and that he was actually present for
trial, unlike Petitioner’s new counsel. Accordingly, the Court finds the state court’s decision to be
a reasonable application of Supreme Court precedent, based on a reasonable determination of the
facts, and denies relief on this ground.
F. Ground VI— Cumulative Errors
Finally, Petitioner contends that the aforementioned alleged errors, in the aggregate,
violated his due process rights. “The cumulative error doctrine allows a petitioner to present a
standalone claim asserting the cumulative effect of errors at trial that so undermined the verdict as
to constitute a denial of his constitutional right to due process.”

Collins, 742 F.3d at 542.

“Individual errors that do not entitle a petitioner to relief may do so when combined, if
cumulatively the prejudice resulting from them undermined the fundamental fairness of his trial
and denied him his constitutional right to due process.” Id. (quoting Fahy v. Horn, 516 F.3d 169,
205 (3d Cir. 2008)).
The Court rejects this argument. In addressing each of the claims above, the Court did not
simply find that Petitioner was not entitled to relief on each ground; in fact, the Court found that
the state court made no error under federal law on any of the aforementioned grounds. Such

22

finding precludes a holding that their cumulative effects resulted in some constitutional violation.
See United States v. Herrera-Genao, 419 F. App’x 288, 296 (3d Cir. 2011) (“Herrera-Genao
complains only of the cumulative effect of the preceding claims; because we have found no error
regarding those claims, Herrera-Genao’s claim of cumulative error also fails.”). Hence, the Court
denies relief on this ground.
G. 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).
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 reasons set forth above, the Petition is DENIED, and the Court DENIES a
certificate of appealability.

Claire C. Cecchi, U.S.D.J.
Dated:

/

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