MAQBOOL v. LANIGAN et al
Filing
27
OPINION. Signed by Judge John Michael Vazquez on 5/11/18. (cm, )
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NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TARIQ MAQBOOL,
Petitioner,
v.
GARY M. LANIGAN, et al.,
Respondents.
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Civil Action No. 14-4066 (JMV)
OPINION
APPEARANCES:
Tariq Maqbool
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
Petitioner, pro se
Stephanie Davis-Elson
Assistant Prosecutor
Hudson County Prosecutor’s Office
Administration Building
595 Newark Avenue
Jersey City, NJ 07306
On behalf of Respondents.
John Michael Vazquez, U.S.D.J.
I.
INTRODUCTION
Petitioner Tariq Maqbool (“Petitioner”), a prisoner currently confined at New Jersey State
Prison in Trenton, New Jersey, has filed a pro se Petition (ECF No. 7, 9) for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. For the reasons explained in this Opinion, the Court will deny the
Petition and will also deny a certificate of appealability.
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II.
FACTUAL BACKGROUND & PROCEDURAL HISTORY
The factual background and procedural history in this matter were summarized in part by
the New Jersey Superior Court, Appellate Division upon Petitioner’s direct appeal. 1
Joong [“John”] Ahn owned a cell phone business in Philadelphia
with his wife, where they also sold prepaid calling cards. Their
nephew, Muni Ahn, also worked with them in the business.
Defendant, as well as co-defendants Paul Reid and Zaid Tariq,
managed separate cell phone businesses and engaged in the sale of
prepaid calling cards. Through the assistance of Jawad Mir and
Amit Vishal, defendant arranged for the discounted sale of a
significant quantity of prepaid calling cards to Joong and Muni Ahn.
On October 31, 2002, Joong, Muni, Mir, and Vishal proceeded to
co-defendant Paul Reid's store in Sayreville, where defendant and
the three co-defendants held the four hostage at gunpoint. As the
four laid on their stomachs, defendant and the three co-defendants
kicked and punched them. After seizing the large amount of cash
that Joong had brought to purchase the prepaid phone cards,
defendant sat on Joong's back and placed a shopping bag around his
face for about a minute. When Joong struggled, defendant took a
wire from an advertising board and strangled him with it until “he
just stopped moving.”
Defendant then took Mir and Vishal at gunpoint to the front of the
store and told them that they had to shoot Muni if they wanted to
live. After they refused, Mir and Vishal were dragged into the
backseat of a car and driven around by co-defendant Zahid Tariq,
accompanied by one of the Reids in the front passenger seat. After
having been driven around for approximately fifteen minutes, they
stopped and switched cars, placing Mir and Vishal into a white
SUV. From there, they were driven around again until they stopped
near what Mir believed to be a police precinct because he saw police
cars parked nearby. While stopped, the other Reid brother “came
running from the back” and sat in the rear of the SUV. Defendant
entered the rear of the SUV across from Reid, took a gun from the
Reid brother in the backseat, and handed it to Mir and Vishal, telling
them to hold it tight so that their fingerprints remained on the gun.
Defendant then threatened Mir saying, “I know your family back
home. So if you open your mouth, I'll kill them.” Mir and Vishal
were then taken to a motel where they were given $10,000 each to
1
The facts found by the Appellate Division are presumed correct pursuant to 28 U.S.C. §
2254(e)(1).
2
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remain silent. At the motel, defendant stated: “He burned the car
and the bodies in them.”
In the interim, about 1:30 a.m. on November 1, 2002, police and fire
departments responded to a car fire in the parking lot of the Laidlaw
Bus Company in Jersey City, across the street from the Hudson
County Sheriff's Department and a substation of the Hudson
County's Prosecutor's Office. The bodies of Joong and Muni were
found in the burned SUV, later identified as Joong's vehicle. Joong
had been hogtied and burned beyond recognition; he had to be
identified through dental records. Muni had had his arms tied behind
his back and had been shot. Dr. John Krolikowski performed the
autopsy on Joong. During the autopsy, no soot was discovered in
Joong's airway, indicating that he was not breathing during the fire.
Dr. Krolikowski opined that the cause of death was asphyxia.
Medical examiner Lyla Perez performed the autopsy on Muni.
Muni had duct tape around his hands and wires around his right
ankle. The top of his skull was fractured in many places, and his
brain was exposed. There was heat damage to his brain and to the
bones of the skull, and traces of blood in the brain. The blood in the
brain was in part due to bullet wounds inflicted prior to death. Soot
and mucus was discovered in Muni's lungs, which together with the
fact that his lungs were hyperinflated, indicated that he was alive
during the fire. Perez opined that the cause of Muni's death was
blunt trauma to the head and brain, and smoke inhalation.
State v. Maqbool, Indictment No. 03-03-0430, 2007 WL 1661133 at *1-2 (N.J. Super. Ct. App.
Div. June 11, 2007).
Petitioner and co-defendants, Paul Reid, Steven Reid, and Zaid Tariq, were charged with
first-degree murder of Joong Ahn, N.J.S.A. § 2C:11–3a(1) or (2) (Count One); first-degree
felony murder of Joong Ahn, N.J.S.A. § 2C:11–3a(3) (Count Three) 2; first-degree murder of
Muni Ahn, N.J.S.A. § 2C:11–3a(1) or (2) (Count Four); first-degree felony murder of Muni Ahn,
N.J.S.A. § 2C:11–3a(3) (Count Five); first-degree armed robbery against Joong Ahn and Muni
Ahn, N.J.S.A. § 2C:15–1 (Count Six); two counts of first-degree kidnapping of Joong Ahn and
2
The Judgment of Conviction does not indicate that Petitioner was charged with, or convicted
of, Count Two in the Indictment.
3
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Muni Ahn, N.J.S.A. § 2C:13–1b (Counts Six and Seven); two counts of second-degree
kidnapping of Jawad Mir and Amit Vishal, N.J.S.A. § 2C:13–1b (Counts Nine and Ten); fourthdegree aggravated assault by pointing a firearm against Joong Ahn, Muni Ahn, Jawad Mir, and
Amit Vishal, N.J.S.A. § 2C:12–1b(4) (Count Eleven); third-degree possession of a weapon
without a permit, N.J.S.A. §§ 2C:58–4, 2C:39–5b (Count Twelve); second-degree possession of
a weapon for an unlawful purpose, N.J.S.A. § 2C:39–4a (Count Thirteen); and second-degree
conspiracy to commit armed robbery, N.J.S.A. §§ 2C:5–2, 2C:15–1 (Count Fourteen). The
Grand Jury also returned a Notice of Aggravating Factors as to Count One, subjecting defendant
to the death penalty, pursuant to N.J. Stat. Ann. § 2C:11–3.
Following a separate jury trial before the Honorable Paul M. De Pascale, J.S.C.,
Petitioner was convicted on all counts except Counts Nine, Ten, and Eleven. During the penalty
phase of the trial, the jury declined to find any aggravating factors, and the death penalty was not
imposed. Petitioner was sentenced on Count One to life imprisonment; on Count Four to a
consecutive life term; on Count Seven to a concurrent term of thirty years; and on Count Twelve
to a concurrent term of five years. The remaining convictions were merged. All sentences, other
than Count Twelve, were made subject to the No Early Release Act (NERA), N.J.S.A. § 2C:43–
7.2. The Appellate Division affirmed Petitioner’s conviction. Maqbool, 2007 WL 1661133 at
*16. The Supreme Court denied certification on September 7, 2007. State v. Maqbool, 192 N.J.
478 (2007).
On December 20, 2007, defendant filed a petition for PCR, but he subsequently withdrew
it. He refiled his petition on October 26, 2009. On November 4, 2010, Judge De Pascale held oral
argument, determined an evidentiary hearing was not required, and denied defendant's petition for
PCR. (ECF No. 19-90). On January 7, 2013, the Appellate Division affirmed the PCR Court’s
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decision. State v. Maqbool, Indictment No. 03-03-0430, 2013 WL 57683 (N.J. Super. Ct. App.
Div. Jan. 7, 2013).
On June 28, 2013, the New Jersey Supreme Court denied Petitioner’s petition for
certification. State v. Maqbool, 24 N.J. 118 (2013). Petitioner filed the instant petition for habeas
relief under § 2254 on September 12, 2014. (ECF No. 7). His Petition for Writ of Habeas Corpus
raises eleven claims that are summarized as follows:
1. Trial court erroneously admitted Petitioner’s post-arrest statements.
2. Trial court’s jury instructions were erroneous.
3. Ineffective assistance of trial counsel for failing to obtain Petitioner’s
cellular phone record in support of an alibi.
4. Ineffective assistance of trial counsel for failing to obtain exculpatory
recording from Petitioner’s phone and for failing to introduce
Petitioner’s personal and business telephone records.
5. Ineffective assistance of trial counsel for failing to object to the
admission of any of Petitioner’s post-arrest statements.
6. Ineffective assistance of trial counsel for failing to object to the
prosecution’s suborning perjury.
7. Ineffective assistance of trial counsel for failing to investigate and
present additional defense witnesses.
8. Ineffective assistance of trial counsel for failing to object to the trial
court’s accomplice liability instruction and failing to object to the
court’s response to a jury question.
9. Ineffective assistance of trial counsel for failing to object to admission
of inadmissible hearsay.
10. Ineffective assistance of appellate counsel for failing to raise the trial
court’s admission of inadmissible hearsay on direct appeal.
11. Trial/PCR judge’s bias against Petitioner.
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Respondents filed their full Answer on June 1, 2016. (ECF No. 19.) Petitioner filed a
traverse on October 25, 2016. (ECF No. 23.)
III.
STANDARD OF REVIEW
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.” 28 U.S.C. §
2254(a). Petitioner has the burden of establishing each claim in the petition. See Eley v. Erickson,
712 F.3d 837, 846 (3d Cir. 2013). Under 28 U.S.C. § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act, 28 U.S.C. § 2254 (“AEDPA”), federal courts in habeas corpus cases
must give considerable deference to determinations of state trial and appellate courts. See Renico
v. Lett, 599 U.S. 766, 772 (2010).
Section 2254(d) sets the standard for granting or denying a writ of habeas corpus:
(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(d).
Where a state court adjudicated a petitioner’s federal claim on the merits, a federal court
“has no authority to issue the writ of habeas corpus unless the [state c]ourt’s decision ‘was contrary
to, or involved an unreasonable application of, clearly established Federal Law, as determined by
the Supreme Court of the United States,’ or ‘was based on an unreasonable determination of the
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facts in light of the evidence presented in the State court proceeding.’” Parker v. Matthews, 567
U.S. 37, 40-41 (2012) (quoting 28 U.S.C. § 2254(d)).
“[C]learly established law for purposes of § 2254(d)(1) includes only the holdings, as
opposed to the dicta, of [the Supreme Court’s] decisions,” as of the time of the relevant state-court
decision. White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (quoting Williams v. Taylor, 529 U.S.
362, 412 (2000))). If a decision is “contrary to” a Supreme Court holding within 28 U.S.C. §
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 prisoner’s case. Williams, 529 U.S. at 413. As to 28 U.S.C. §
2254(d)(1), a federal court must confine its examination to evidence in the record. Cullen v.
Pinholster, 563 U.S. 170, 180-81 (2011).
Where a petitioner seeks habeas relief, pursuant to § 2254(d)(2), on the basis of an
erroneous factual determination of the state court, two provisions of AEDPA apply. First, AEDPA
provides that “a determination of a factual issue made by a State court shall be presumed to be
correct [and] [t]he applicant shall have the burden of rebutting the presumption of correctness by
clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see Miller-El v. Dretke, 545 U.S. 231,
240 (2005). Second, AEDPA precludes habeas relief unless the adjudication of the claim “resulted
in a decision that was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).
In addition to the above requirements, a federal court may not grant a writ of habeas corpus
under § 2254 unless the petitioner has “exhausted the remedies available in the court of the State.”
28 U.S.C. 2254(b)(1)(A). To do so, a petitioner must “fairly present all federal claims to the
highest state court before bringing them in a federal court.” Leyva v. Williams, 504 F.3d 357, 365
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(3d. Cir. 2007) (citing Stevens v. Delaware Corr. Ctr., 295 F.3d 361, 369 (3d Cir. 2002)). This
requirement ensures that state courts “have ‘an initial opportunity to pass upon and correct alleged
violations of prisoners’ federal rights.’” Id. (citing United States v. Bendolph, 409 F.3d 155, 173
(3d Cir. 2005) (quoting Duckworth v. Serrano, 454 U.S. 1, 3 (1981)).
Even when a petitioner properly exhausts a claim, a federal court may not grant habeas
relief if the state court’s decision rests on a violation of a state procedural rule. Johnson v. Pinchak,
392 F.3d 551, 556 (3d. Cir. 2004). This procedural bar applies only when the state rule is
“independent of the federal question [presented] and adequate to support the judgment.” Leyva,
504 F.3d at 365-66 (citing Nara v. Frank, 488 F.3d 187, 196, 199 (3d Cir. 2007); see also Gray v.
Netherland, 518 U.S. 152 (1996), and Coleman v. Thompson, 501 U.S. 722 (1991)). If a federal
court determines that a claim has been defaulted, it may excuse the default only upon a showing
of “cause and prejudice” or a “fundamental miscarriage of justice.” Leyva, 504 F.3d at 366 (citing
Lines v. Larkins, 208 F.3d 153, 166 (3d Cir. 2000)).
To the extent that a petitioner’s constitutional claims are unexhausted and/or procedurally
defaulted, a court can nevertheless deny them on the merits under 28 U.S.C. § 2254(b)(2). See
Taylor v. Horn, 504 F.3d 416, 427 (3d Cir. 2007) (“Here, because we will deny all of [petitioner’s]
claims on the merits, we need not address exhaustion”); Bronshtein v. Horn, 404 F.3d 700, 728
(3d Cir. 2005) (considering procedurally defaulted claim, and stating that “[under 28 U.S.C. §
2254(b)(2), we may reject claims on the merits even though they were not properly exhausted, and
we take that approach here”).
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IV.
ANALYSIS
The Petition raises eleven grounds for relief, eight of which are ineffective assistance of
trial and/or appellate counsel. For the reasons explained in this section, the Court finds that
Petitioner’s claims do not warrant federal habeas relief.
A.
Trial Court’s Erroneous Admission of Post-Arrest Statements
Petitioner asserts that the trial court’s admission of his post-arrest statements as well as any
other evidence, were in violation of his Fourth Amendment right to be from unreasonable search
and seizure. (ECF No. 9-1 at 11-20.) Petitioner argues that in light of his illegal arrest, any
statements made to law enforcement should have been suppressed. Petitioner initially raised this
claim in his pro se supplemental brief on direct appeal. State v. Maqbool, Indictment No. 03-030430, 2007 WL 1661133 at *3 (N.J. Super Ct. App. Div. June 11, 2007). The Appellate Division
affirmed the conviction without addressing this particular claim. Id. at 15. 3 However, the
Appellate Division did address Petitioner’s Fifth Amendment claim that his statements were
improperly admitted despite the state’s failure to apprise him of the criminal complaint against
him, which Petitioner essentially argued based on the same set of facts. Id. at *3-8. Petitioner
subsequently raised this claim in his supplemental brief appealing the denied PCR petition. State
v. Maqbool, Indictment No. 03-03-0430, 2013 WL 57683 at *8 (N.J. Super. Ct. App. Div., Jan. 7,
2013). The Appellate Division affirmed the PCR Court’s denial and deemed all of the issues raised
in his pro se supplemental filing unmeritorious. Id. at *1.
3
“[W]here the State has provided a full and fair litigation of a Fourth Amendment claim, a state
prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in
an unconstitutional search or seizure was introduced at his trial.” Stone v. Powell, 428 U.S. 465,
494-95 (1976). Here, the Appellate Division did not address Petitioner’s Fourth Amendment claim
on direct appeal. Therefore, the Court will address the merits of Petitioner’s claim.
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Petitioner argues that at the time of his arrest outside of a convenience store in Sayreville,
New Jersey, an arrest warrant had not been issued for his arrest and there was no probable cause
for his arrest. 4 (ECF 9-1 at 12.) Moreover, Petitioner contends that his arrest and subsequent
interrogation was an unconstitutional investigatory tactic to obtain information about the murders.
(Id. at 12-13.)
Petitioner’s trial counsel filed a pre-trial suppression motion as to Petitioner’s Fifth
Amendment (as applied to the States through the Fourteenth Amendment) right to remain silent.
At the hearing, Lieutenant Russo of the Hudson County Prosecutor’s Office testified about his role
at that state of the investigation, which included supervising the multi-jurisdiction arrest effort as
well as conducting Petitioner’s subsequent interrogation. Petitioner’s argument in the instant
petition relies significantly on Lieutenant Russo’s testimony on cross-examination at that hearing.
The crux of Petitioner’s trial counsel’s line of questioning revolved around Petitioner’s
understanding of his Miranda rights. The issue of the legality of the arrest or the existence of a
warrant was not raised by any of the parties. (ECF Nos. 19-51 at 41-111, 19-52 at 3-40.)
The Fourth Amendment, which is applicable to the States through the Fourteenth
Amendment, guarantees “[t]he right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. Any evidence
or statements stemming from an unlawful, warrantless arrest are usually “suppressible if the link
between the evidence and the unlawful conduct is not too attenuated. I.N.S. v. Lopez-Mendoza,
468 U.S. 1032, 1040-41 (1984) (citation omitted). Nonetheless, warrantless public arrests based
on probable cause are legal. United States v. Watson, 423 U.S. 411, 423 (1976). “Probable cause
4
Members of the Hudson County Prosecutor’s Office drafted a warrant dated November 1, 2002,
that was not executed until November 4, 2002, one day after Petitioner’s arrest. (ECF No. 9-3 at
51.)
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exists whenever reasonably trustworthy information or circumstances within an arresting officer’s
knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has
been or is being committed by the person being arrested.” United States v. Laville, 480 F.3d 187,
194 (3d Cir. 2007) (citations omitted).
The record reflects that at the time of Petitioner’s arrest on November 3, 2002, law
enforcement had significant information establishing Petitioner’s role in the robbery and murders,
including the statements provided by eyewitness, Jawad “Jay” Mir on November 2, 2002, as well
several thousand dollars in United States currency that Petitioner gave to Mir and Amit “Andy”
Vishal immediately after the murders. (ECF Nos. 19-63 at 7-9, 19-67 at 24-25.) Probable cause
existed that Petitioner had committed murder and robbery and his arrest did not contravene the
Fourth and Fourteenth Amendments. Consequently, Petitioner’s argument that his post-arrest
statements should be suppressed, as the fruit of an illegal arrest, fails. The state court’s decision
was not an unreasonable application of federal law. Therefore, the Court denies relief on this
ground.
B.
Trial Court’s Jury Instructions
Petitioner next claims that the trial court’s erroneous jury instructions violated his right to
a fair trial. (ECF No. 9-1 at 5-11.) Petitioner challenges the trial court’s jury instructions with
respect to the causation requirement, the aggravated manslaughter charge and the principal/
accomplice liability charges.
i.
Unanimity on Causation Instruction
Petitioner submits that the trial court’s failure to require a unanimous causation finding on
the murder charge was erroneous. (ECF No. 9-1 at 7-8.) Petitioner equates the principle of jury
unanimity to the important criminal law doctrine of reasonable doubt. (ECF No. 9-1 at 5.)
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Petitioner also cites to portions of the jury instruction and argues that the “trial court’s charge
pertaining to elements of unanimity was extremely confusing.” (Id. at 7.) Respondents correctly
assert that this particular claim is unexhausted, as Petitioner did not pursue this claim in his petition
for certification to the New Jersey Supreme Court. (ECF No. 19 at 97.) The Appellate Division
affirmed Petitioner’s conviction without addressing this particular claim.
The exhaustion requirement is not a jurisdictional requirement to the exercise of habeas
corpus jurisdiction over the merits of a state prisoner’s claims and a district court may deny a claim
on its merits despite non-exhaustion “if it is perfectly clear that the applicant does not raise even a
colorable federal claim.” Granberry v. Greer, 481 U.S. 129, 131, 135 (1987). Notwithstanding
Petitioner’s failure to exhaust this claim, the Court will proceed to address the substantive merits
of the claim. 28 U.S.C. § 2254(b)(2); Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997) (“[Section
2254(b)(2) authorizes] federal courts to deny unexhausted claims on the merits.” (emphasis
added)).
At Petitioner’s trial, medical examiner, Dr. John Krolikowski, presented his medical
opinion of the cause of John Anh’s death. The defense also presented their medical expert’s
conflicting opinion of Ahn’s cause of death. In light of this, the trial court explained to the jury
how the two conflicting medical examiners’ opinions could be considered when applying the
causation instruction. The relevant portions of the trial court’s jury instruction on causation are as
follows:
Now, causation has a special meaning under the law. To establish
causation, the State must prove two elements beyond a reasonable
doubt. First, that but for the defendant’s conduct, John Ahn would
not have died.
Second, that John Ahn’s death must have been within the design or
contemplation of the defendant. If not, it must involve the same kind
of injury or harm as that designed or contemplated, and it must also
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not be too remote, too accidental in its occurrence, or too dependent
on another’s volitional act to have a just or fair bearing on the
defendant’s liability, or on the gravity of his offense.
In other words, the State must prove beyond a reasonable doubt that
John Ahn’s death was not so unexpected or unusual that it would be
unjust to find the defendant guilty of murder.
Let me give you a couple of examples, because that can be a difficult
concept to understand. If a defendant attempted to shoot his wife
and he misses, with the result that his wife leaves and goes to her
parents’ country home, and while at the country home she takes a
ride on a horse and falls off the horse and dies, nobody would think
that the defendant would be guilty of murder, even though he did
intend her death and attempt to kill her.
While it would satisfy the but for component, if he didn’t shoot at
her she wouldn’t have gone to her parents’ house, the death there is
unconnected, so remote, so accidental in nature that it would be
unfair to find the husband guilty of murder, to find that his act
caused the death. Okay? Does everybody understand what I mean
by that? If he hadn’t shot at her she wouldn’t have gone to her
mother’s. If she hadn’t had gone to her mother’s house, she
wouldn’t have rode the horse. We don’t follow that out to make it
so absurd or unfair to hold him accountable.
Take the same scenario just for a second, and say he shoots at her
and misses, but she, in an attempt to escape, runs into the street and
is hit by a bus, okay, and she’s killed. But for his shooting at her
she wouldn’t have run into the street and she was killed by the bus.
Now, was her death within his design or contemplation? Is it his
plan? Is that what he was trying to accomplish was her death, and
she was killed by a bus because of what he did, so but for his act,
she would not have been in the street and been killed. And was her
death really within his design and contemplation? Yea. So even
though she didn’t die from a gunshot wound, he’s responsible for
that death. He caused it in the framework of the law. That is
causation. Okay? Everybody understand the difference?
We’re talking about fairness, concepts of fairness that we’re talking
about. Is it so remote, so unconnected with the act that satisfies the
but for requirement as to be unfair to hold him responsible for it, or
is it connected to it, is it within his design, within his contemplation.
Is that what he was trying to accomplish. It’s not simply a question
of time, you know, how long after, it’s a fairness issue, is it fair to
hold hi[m] responsible, is that what he was trying to accomplish was
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her death, and did he accomplish it. Okay? Do you understand in
the context of those examples what we’re talking about?
Now, in this case the defense has offered testimony bearing on the
cause of John Ahn’s death. The defense has offered testimony
bearing on the cause of John Ahn’s death. The defense proffered
the testimony of Dr. Zugibe, an expert in forensic pathology, to
establish that there was no evidence of strangulation, as opposed to
the testimony of Dr. Krolikowski, the State’s pathologist, who stated
John Ahn’s death was caused by mechanical asphyxiation.
If you find beyond a reasonable doubt that the State’s pathologist’s
testimony in conjunction with the other evidence in the case
establishes that the defendant purposely or knowingly strangled
John Ahn to death, then causation has been established.
However, if you find John Ahn was not strangled to death, but died
of some other cause, then you must perform the two-step analysis
that I outlined for you a moment ago. First, that but for the acts of
the defendant, would John Ahn have died on October 31, 2002.
Second, was the death of John Ahn within the design or
contemplation of the defendant when he acted towards John Ahn.
Obviously, your findings of fact regarding what acts of the
defendant, if any, played a role in John Ahn’s death are crucial on
that point.
If you find that John Ahn’s death occurred independent of any action
on the part of the defendant, then the State has failed to prove that
the defendant caused John Ahn’s death. Even if you find that but
for the actions of the defendant John Ahn would not have died on
October 31, 2002, causation is not established unless the State
further proves beyond a reasonable doubt that John Ahn’s death was
within the design or contemplation of the defendant when he acted
towards John Ahn.
If you find beyond a reasonable doubt that the defendant strangled
John Ahn, but before he could asphyxiate him he died of some other
cause, heart attack or other, and that the defendant’s attempt to
asphyxiate John Ahn brought about his death, and further find that
the death of John Ahn was what the defendant intended to
accomplish by strangling him, then the State has proven the
defendant caused John Ahn’s death within the meaning of the law.
Everybody understand what I mean by that?
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Causation is important here for you to find the facts, and once again,
let me remind you, I’m not giving you outcomes or possibilities here
to steer you in any way, I’m just trying to explain the principle of
causation. Everybody understand that?
Now, all jurors do not have to agree unanimously concerning which
form of murder is present, so long as all believe that it was one form
of murder or the other. However, for a defendant to be guilty of
murder, all jurors must agree that the defendant either knowingly or
purposely caused the death, or serious bodily injury resulting in the
death of John Ahn. Okay?
Now, let’s take a second to explain that to you, because it may seem
to run counter to what you think about the law. In this case, the
Legislature has said murder can be in one of two forms, either one
is sufficient to be murder, and either one of two mental states is
sufficient, so long as one is present. Okay? So if you find purposely
that the defendant caused the death of John Ahn, it’s murder. If you
find knowingly caused the death of John Ahn, it’s murder. If you
find purposely caused serious bodily injury resulting in the death of
John Ahn, it’s murder. If you find knowingly caused the death of
John Ahn, that would be murder.
Now, six of you may believe that he purposely caused his death, six
of you may believe he knowingly caused, or purposely caused
serious bodily injury resulting in death, and your verdict would be
guilty of murder, even though you’re six-six as to which mental state
he had, so long as you are all unanimous that he had one of the two
required mental states, either purposeful or knowing conduct, and
that he either caused his death, or caused serious bodily injury that
then resulted in his death. Everybody understand that?
(ECF No. 19-75 at 32-38.)
Liberally construing Petitioner’s claim, he appears to be making a Fourteenth Amendment
due process argument. Here, the trial court required jury unanimity with respect to a finding of
guilt. However, the jury was not required to have unanimous decisions on which theory of
causation resulted in the victim’s death. See United States v. Yeaman, 194 F.3d 442, 453 (3d Cir.
1999) (held that while a defendant in a federal criminal trial has a right to a unanimous verdict,
that does not equate to “an instruction requiring unanimous agreement on the means by which each
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element is satisfied.” ) Accordingly, Petitioner fails to raise a valid constitutional claim. Petitioner
is denied habeas relief with respect to this issue.
ii.
Aggravated Manslaughter Instruction
Next, Petitioner claims that the trial court advanced an additional theory of the case when
it charged the jury with the lesser included offenses of murder, such as aggravated manslaughter.
(ECF No. 9-1 at 8.) This claim is unexhausted as Petitioner raises this issue for the first time on
federal habeas review. Nonetheless, this Court will address the issue on the merits. See supra,
Part III.
The trial record reflects that there were no objections to the jury instruction on aggravated
manslaughter with respect to John Ahn, either at the charge conference nor in the presence of the
jury. (ECF Nos. 19-72 at 8, 19-75 at 40.)
Petitioner argues that he was not “provided with a
notice of this entirely new allegation.” (ECF No. 9-1 at 8-9.) This Court agrees with Respondents
that “Petitioner fails to recognize that the charge that was given was a lesser included charge to
the murder relating to Joong Ahn.” (ECF No. 19 at 99.) More importantly, the Due Process clause
is only implicated when a jury instruction results in relieving the prosecution’s burden of proof on
an essential element of an offense. See Wallace v. Glover, No. 09-4494, 2013 WL 1352250 at *13
(D.N.J. Apr. 2, 2013) (holding that trial court’s sua sponte lesser-included jury instruction was not
unconstitutional because it did not relieve the government of its burden to prove every element of
the crime); see also Waddington v. Sarausad, 555 U.S. 179, 190–91 (2009) (observing that to
prevail in a jury-instruction challenge, a petitioner must establish both that the instruction was
ambiguous, inconsistent, or deficient, and that there is a reasonable likelihood that the jury applied
the instruction in a manner that relieved the state of its burden to prove every element of the crime
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beyond a reasonable doubt). Petitioner fails to raise a claim for federal habeas relief under this
argument. Consequently, Petitioner is denied habeas relief.
iii.
Accomplice/Principal Liability Instructions
Finally, Petitioner claims that the trial court’s instruction on principal versus accomplice
liability should have included an instruction that “the jury should resolve doubt in favor of the
Petitioner and convict on the lesser charge.” (ECF 9-1 at 11.)
The trial court provided proper jury instructions according to New Jersey law, N.J.S.A. §
2C:2-6, on both accomplice and principal liability respectively. (ECF No. 19-75 at 61-76.) A
review of the instructions does not reveal any impropriety; the content of the instructions certainly
does not support Petitioner’s contention that they “infected” his trial. See Porter v. Brown, No.
04-4415, 2006 WL 2640624, at *8 (D.N.J. Sept. 12, 2006) (reviewing the high standard necessary
to sustain a Due Process violation based on an erroneous jury instructions while noting that
“questions relating to jury charges are normally matters of state law and not cognizable in federal
habeas review” (citations omitted)). As a result, Petitioner is denied relief on this claim.
C.
Ineffective Assistance of Counsel
Petitioner next makes eight claims of ineffective assistance as to his trial and appellate
attorneys. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth the
standard governing claims of ineffective assistance of counsel. First, the defendant must show that
counsel’s performance was deficient. This requirement involves demonstrating that counsel made
errors so serious that he was not functioning as the “counsel” guaranteed by the Sixth Amendment.
Id. at 687. Second, the defendant must show that he was prejudiced by the deficient performance.
Id. This requires showing that counsel’s errors deprived the defendant of a fair trial. Id. “With
respect to the sequence of the two prongs, the Strickland Court held that ‘a court need not
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determine whether counsel’s performance was deficient before examining the prejudice suffered
by the defendant as a result of the alleged deficiencies . . . If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be
so, that course should be followed.’” Rainey v. Varner, 603 F.3d 189, 201 (3d. Cir. 2010) (quoting
Strickland, 466 U.S. at 697)).
Counsel’s performance is deficient if his representation falls “below an objective standard
of reasonableness” or outside of the “wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690. In examining the question of deficiency, “[j]udicial scrutiny of
counsel’s performance must be highly deferential.” Id. at 689. In addition, judges must consider
the facts of the case at the time of counsel’s conduct, and must make every effort to escape what
the Strickland Court referred to as the “distorting effects of hindsight.” Id. The petitioner bears
the burden of showing that counsel’s challenged action was not sound strategy. Kimmelman v.
Morrison, 477 U.S. 365, 381 (1986). Furthermore, a defendant must show a reasonable probability
that, but for counsel’s errors, the result of the proceeding would have been different. Id. at 694.
Ineffective assistance of appellate counsel is analyzed under the Strickland standard as
well. See Albrecht v. Horn, 485 F.3d 103, 137 (3d Cir. 2007) (quoting United States v. Mannino,
212 F.3d 835, 840 n.4 (3d Cir. 2000)). The two-part Strickland test requires this court to first
determine whether counsel’s performance was deficient, which in the context of an appeal requires
evaluation of counsel’s failure to raise proper issues on appeal. See Sistrunk v. Vaughn, 96 F.3d
666, 670 (3d Cir. 1996) (‘[I]t is a well established principle that counsel decides which issues to
pursue on appeal.”) Secondly, Petitioner must show that but for his counsel’s failure to raise the
omitted issue, he would have prevailed on his appeal. Pichardo v. Nelson, No. 13-6930, 2015 WL
9412918 at *11 (D.N.J. Dec. 22, 2015) (quoting Smith v. Robbins, 528 U.S. 259, 285 (2000)).
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When assessing an ineffective assistance of counsel claim in the federal habeas context,
“[t]he pivotal question is whether the state court’s application of the Strickland standard was
unreasonable,” which “is different from asking whether defense counsel’s performance fell below
Strickland’s standard.” Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (quoting Harrington v.
Richter, 562 U.S. 86, 101 (2011)). “A state court must be granted a deference and latitude that are
not in operation when the case involves [direct] review under the Strickland standard itself.” Id.
Federal habeas review of ineffective assistance of counsel claims is thus “doubly deferential.” Id.
(quoting Cullen v. Pinholster, 131 S.Ct. at 1403). Federal habeas courts must “take a highly
deferential look at counsel’s performance” under Strickland, “through the deferential lens of §
2254(d).” Id. (internal quotation marks and citations omitted).
1. Failing to Obtain Petitioner’s Cellular Phone Records in Support of Alibi
Defense
Petitioner alleges that his trial counsel was ineffective counsel due to counsel’s failure to
adequately investigate the case, particularly the cellular phone “tower records” that could have
corroborated Petitioner’s alibi defense. (ECF No. 9 at 24-30.) Petitioner stresses that the telephone
records could have exonerated him because there was no “forensic evidence” tying him to the
murders. (ECF No. 9 at 25.) As he did in his PCR proceeding, Petitioner argues that his cellular
phone records which would have proven that he was approximately fifty miles away from the
murder scene at the time of the crime. (ECF Nos. 19-17 at 5, 19-18 at 45.) The PCR Court
dismissed the claim as unmeritorious of an evidentiary hearing. (ECF No. 19-90 at 24.) As
Respondents correctly note, Petitioner failed to appeal the PCR Court’s denial of this claim to the
Appellate Division. (ECF No. 19 at 59.) Petitioner has therefore not exhausted this claim in state
court as required by federal habeas law. See 28 U.S.C. § 2254(b)(1)(A). See supra, Part III.
Nonetheless, the Court will address the merits of this claim.
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At trial, the state presented the testimony of a Nextel Communications records custodian.
(ECF No. 19-66 at 24-27.) The custodian’s testimony included records of outgoing calls that were
made on the afternoon of the murders from decedent Joong “John” Ahn’s cellular phone number
and telephone number 848-391-1459 (“1459 number”). (Id. at 26-27.) The records custodian was
not able to verify the subscriber associated with 1459 number because it was not a number that
Nextel Communications serviced. (Id. at 29.) State witness, Rajesh Goel, testified that Petitioner
called him from the 1459 numbers two days before the murders. (ECF No. 19-65 at 36-37.) Also
at trial, state witness, Manish Dhar, testified that he contacted Petitioner at telephone number 732778-8008. (ECF No. 19-67 at 17-18.) Finally, a T-Mobile records custodian testified that the 1459
number was one of several telephone numbers issued to subscriber “Mahood Butt,” that was
identified as a “fraud account. (ECF No. 19-68 at 6, 8-9.) The custodian further testified that the
account was only open from October 25, 2002 to November 7, 2002. (Id.)
During the course of the PCR proceeding, Petitioner provided multiple certifications in
support of his alibi from his father, brother, and a Sarah Mallick. 5 (ECF No. 19-90 at 22.)
However, as the PCR Court pointed out, only Petitioner’s father’s proffer would potentially
support Petitioner’s claim that he was at home at the time of the murders. (Id. at 22-23.)
Almost five years after Petitioner’s trial, the PCR Court granted Petitioner’s motion for
telephone records for telephone numbers 732-690-5590 and 732-778-8008 for the period from
October 30, 2002 to November 4, 2002. (ECF No. 19-16 at 1.) Petitioner’s efforts were
unsuccessful, due to the telephone service provider’s response that records were not stored beyond
a five-year period. (ECF No. 19-90 at 5.)
When denying this claim, the PCR Court noted:
5
Mallick’s name is spelled as both “Mallick” and “Malick” throughout the record.
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As far as Counsel’s failure to investigate the cell phone records for
the telephone number (732) 778-8008 is concerned, there is not
credible evidence before me which establishes the relevance of that
telephone number. There is evidence before me which establishes
that that phone number is registered to the Defendant’s brother, not
the Defendant. To afford any evidential significance to that phone
number, and this argument, one would have to accept the
proposition that the owner of a retail cell phone store could not
afford his own cell phone.
Here, even that would be insufficient insofar as direct evidence
introduced during the trial specifically establish the Defendant did
have a cell phone, albeit under a fraudulent account, with the number
(848) 391-1459; and it was that cell phone that he was using. The
record also established that it was this number that the victim called
twice on the day of the murders.
The evidence of Defendant’s access to and use of that cell phone
was not simply billing records. Rather, a live witness testified that
this Petitioner in his presence used that phone to call the witness to
enable the witness to add that number to his phone’s contact list to
enable the witness to contact this Defendant subsequently,
indicating an ongoing use of that same phone.
The requirement that the Court view the evidence presented in the
light most favorable to the Petitioner does not go so far as to require
the Court to suspend reality and accept any proposition regardless
of its absurdity and inconsistency with credible evidence. While an
investigation of the cell records for the number (732) 778-8008
could possibly have established the phone’s usage in the area of the
Defendant’s home at the time of the crime, there is no credible
evidence that such a call was made by this Defendant. The only
results possible, even accepting the Petitioner’s brother’s testimony,
would be to show a call on a phone registered to the Defendant’s
brother.
Counsel therefore did not fail to investigate any credible, relevant
evidence in this regard.
Further, even if Counsel had amassed the evidence provided with
his Petitioner, competent Counsel could not be faulted for failing to
present it at trial.
This evidence, as with all evidence at trial, cannot be considered in
isolation. Rather, competent counsel would have to consider how a
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jury would evaluate such evidence with respect to all the other
evidence in the case.
Counsel was aware that the Defendant himself had previously given
two accounts of his whereabouts at the time of the murder, both of
which were proven to be fabrications.
If Counsel had presented yet a third version of events, that once
again, he was not at the scene, relying upon the information provided
in support of the Petition, then under those circumstances, there
might actually be grounds upon which an ineffective argument
could be supported.
***
Given the overwhelming evidence of the Defendant’s presence at
the scene and of his guilt, and the flawed nature of this proffered
alibi, there is no doubt that even if presented before the jury, the
outcome of the trial would not have been effected.
(ECF 19-90 at 24-26, 29.)
Petitioner’s trial theory was that the state’s witnesses fabricated Petitioner’s involvement
in the crime to conceal their own role in the robbery and murder. (ECF No. 19-53 at 53-66.) Trial
counsel argued that in the absence of physical evidence linking Petitioner to the murder, the jury
would determine that the state’s “star witness” Jawad Mir, falsely depicted himself as Petitioner’s
victim in order to exculpate himself from any wrongdoing. (Id. at 55-56.)
Petitioner has not met Strickland’s prejudice prong in order to ultimately prevail on this
claim. He has not shown a reasonable probability that but for his trial counsel’s errors, “the result
of the proceeding would have been different.” Strickland, 466 U.S. at 694. This standard is more
likely to be met by a verdict that is “only weakly supported by the record,” as opposed to one with
“overwhelming record support.” Id. at 696. Here, the state’s case against Petitioner included
among other things, a motive and testimony from an eyewitness. The PCR Court’s determination
that this claim was unmeritorious was not contrary to clearly established federal law. As the PCR
Court noted, Petitioner owned a cellular phone retail store and was observed to have had multiple
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telephone numbers associated with him. Given the deferential standard that this Court applies to
the PCR Court’s Strickland determination, Plaintiff has not met his burden. The PCR Court’s
explanation was sound. For the foregoing reasons, Petitioner is not entitled to federal habeas relief
on this claim.
2. Failing to Obtain Exculpatory Recording from Petitioner’s Phone and Failing
to Introduce Petitioner’s Cellular and Business Telephone Records
Petitioner next alleges that his trial counsel was ineffective for failing to obtain an audio
recording of a state witness, Jiwad Mir, implicating himself in the murders and pleading for the
Petitioner’s help. (ECF No. 9 at 30-33.) He further contends that trial counsel also failed to obtain
his personal and business telephone records. Petitioner argues that he implored his trial counsel
to pursue this recording of Jawad Mir that Petitioner recorded on his own cellular phone just days
after the murders. (ECF No. 9 at 31.) Petitioner adds that “multiple state witnesses also confirmed
the same in their statements to the police and, subsequently, at trial. (Id. at 33.) Respondents argue
that Petitioner has not provided any evidence to support the existence of this recording and that
the trial testimony does not support Petitioner’s claim. (ECF No. 19 at 62-63.) Respondents also
argue that Petitioner’s account of whose inculpatory statement he recorded is inconsistent.
Although he now argues that he recorded Jiwad Mir, the investigators that conducted the
interrogation testified at a suppression hearing that Petitioner told investigators that he recorded a
conversation with Manish Dhar, not Jiwad Mir, shortly after the murders.
Petitioner first raised this ineffectiveness claim in his pro se supplemental brief to the PCR
Court. (ECF No. 19-17 at 8.) The PCR Court denied Petitioner’s Petition and the Appellate
Division affirmed without expressly addressing this particular claim. State v. Maqbool, Indictment
No. 03-03-0430, 2013 WL 57683 (N.J. Super. Ct. App. Div. Jan. 7, 2013).
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In denying Petitioner’s claim, the PCR Court reasoned: “With respect to the alleged cell
phone conversation, the Defendant has not provided any evidence to substantiate either the
existence or content of this call. His statements relative to this ground therefore constitute mere
bald assertions.” (ECF No. 19-90 at 21.) After reviewing the trial testimony, this Court has not
found testimony from any trial witnesses to support Petitioner’s claim.
The PCR Court’s determination was not contrary to clearly established federal law. See
Palmer v. Hendricks, 592 F.3d 386, 395 (3d Cir. 2010) ([B]ald assertions and conclusory
allegations do not afford sufficient ground for an evidentiary hearing.” (citations omitted). Given
this Court’s deferential standard of review, the PCR Court did not err in its findings or conclusions.
For the foregoing reasons, Petitioner’s request for relief pursuant to this claim is denied.
3. Failing to Object to the Admission of Any of Petitioner’s Post-Arrest
Statements
Petitioner next argues that his trial counsel was ineffective for failing to object to the
admission of his post-arrest statements in violation of his right to remain silent pursuant to Miranda
v. Arizona, 384 U.S. 436, 444 (1966). (ECF No. 9 at 33-42.) In fact, Petitioner argues that he did
not provide a statement at all, however, if this Court determines that he did, that statement was in
violation of his right to remain silent. (Id. at 33.) Petitioner initially6 raised this claim in his PCR
petition. (Id.) The PCR Court summarily denied this claim along with other “remaining issues
advanced in Counsel’s Brief [because they were] either procedurally barred, rely upon either bald
assertions or are supported by factual assertions of the Defendant and are therefore without merit.
6
Petitioner unsuccessfully raised a Miranda claim on direct appeal, however his argument has
since been modified to challenge the constitutionality of the actual waiver form. On direct
appeal, Petitioner challenged the admission of the post-arrest statements based on his arrest on an
invalid warrant, his illegal arrest, and his speaking with detectives while unware that a criminal
complaint was filed or was soon to be filed against him. State v. Maqbool, Indictment No. 0303-0430, 2007 WL 1661133 at *3-11 (N.J. Super. Ct. App. Div. June 11, 2007).
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(ECF No. 19-90 at 19-30.) The Appellate Division subsequently affirmed the PCR Court’s denial
with a cursory reference to this claim. State v. Maqbool, Indictment No. 03-03-0430, 2013 WL
57683 *7 (N.J. Super. Ct. App. Div. Jan. 7, 2013).
Petitioner claims that the Hudson County Prosecutor’s Office used a vague and confusing
interrogation waiver form that “is unconstitutional on its face because it is by nature, designed to
coerce or, at least, dupe suspects into waiving their rights.” (ECF No. 9 at 35.) The crux of
Petitioner’s argument is that the waiver form he signed consolidates the language that indicates
acknowledgement of a suspect’s rights pursuant to Miranda with the waiver of those rights.
Petitioner contrasts the form he signed to those used by other law enforcement agencies, which
either use separate forms for the acknowledgement and for the waiver or separate the
acknowledgement and waiver into two separate clauses. (Id. at 37-38.) Petitioner cites to United
States v. Obregon, F.2d 1371, 1381 (10th Cir. 1984), arguing that separate forms for
acknowledgement of rights and waiver be used. Id. Obergon is not binding on this Court, and the
facts of Obregon involve a suspect that initially invoked his Miranda rights to another officer but
later read the rights form and waived his right to remain silent in the presence of an officer who
was unaware of the suspect’s earlier invocation. Obregon, 748 F.2d at 1377. The factual
distinctions in Obregon render it inapposite.
The specific waiver form at issue is a typed one-page document used by the Hudson County
Prosecutor’s Office. (ECF 9-8 at 15.) For purposes of this particular claim, the relevant portion
begins with the following sentence: “Before we ask you any questions, you must understand your
rights.” The form then sets forth the Miranda rights. (Id.) In the middle of the page, “waiver of
rights” is written in all capital letters, centered, and underlined. (Id.) The following phrase is then
printed: “I have read this statement of my rights and I understand what my rights are. I am willing
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to make a statement and answer questions. I do not want a lawyer at this time. I understand and
know what I am doing. No promises or threats have been made to me no pressure of coercion of
any kind has been used against me.” (Id.) Immediately, below this statement is Petitioner’s
signature as well as two witnesses’ signatures along with the time. (Id.) The form includes two
blank lines where the time can be entered. The line at the top states, “4:15 PM” in handwriting,
while the one at the bottom states, “4:17 PM” in handwriting.
Although, the Supreme Court has never the precise issue before the Court, it has addressed
challenges to the actual Miranda rights provided in a particular case. In Duckworth v. Eagan, 492
U.S. 195, 202 (1989), the Court held that Miranda warnings are not formulaic and do not require
that law enforcement recite the rights exactly as provided in the Miranda decision (“Reviewing
courts therefore need not examine Miranda warnings as if construing a will or defining the terms
of an easement. The inquiry is simply whether the warnings reasonably convey to a suspect his
rights as required by Miranda.”) (citation omitted, quotation marks omitted). Petitioner has not
demonstrated how the waiver form that he signed was inconsistent with Miranda’s requirements.
The form sets forth the Miranda rights, the waiver warning is set forth in a manner to make it
conspicuous, and the language preceding Petitioner’s signature clearly state the effect of signing
the form. The Court will therefore deny habeas relief on this ground.
4. Failure to Object to the Prosecution’s Suborning Perjury from a State Witness
Petitioner’s further asserts that trial counsel was ineffective because counsel failed to object
to the state’s subornation of perjury both at the suppression hearing and the trial. (ECF No. 9 at
42-49.) Petitioner first raised this claim in his PCR petition as well as in his pro se supplemental
PCR brief. (ECF No. 19-17 at 7, No. 19-21 at 4.) The PCR Court denied this claim as procedurally
barred due to Petitioner’s failure to raise the claim on direct appeal. (ECF No. 19-90 at 9-11.) The
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Appellate Division summarily denied this claim along with other claims as bald assertions
“insufficient to support a claim of ineffective assistance. Maqbool, 2013 WL 57683 at *8.
Petitioner argues that the State knowingly permitted Lieutenant Russo to perjure himself
at both the suppression hearing and trial. Specifically, Petitioner claims that Russo fabricated
testimony when Russo stated that he recalled telling Petitioner at the interrogation that Russo did
not consider Petitioner’s version of events to be true. Lieutenant Russo testified as follows at the
suppression hearing testimony:
RUSSO: Well, after he completed like about up to that point, I just
told him, I says Tariq, a lot of this is a bunch of nonsense. This is
not the truth. You’re not telling me the truth. Let’s take a deep
breath. Let’s take a step back. Let’s take a break and let’s talk about
the truth here and I have reasons to tell you right now that this is not
the truth.
PROSECUTOR: And at that time, did you have reason to believe it
was not the truth?
RUSSO: Absolutely.
PROSECUTOR: And what was that reason based on?
RUSSO: I had briefings throughout and I think Maribel and his
buddy Zaid or Zed were telling us a totally different version and
involving his involvement, his alleged involvement. It wasn’t what
Tariq was telling me.
(ECF No. 19-51 at 58.) Lieutenant Russo gave similar testimony at the trial. (ECF
No. 19-60 at 72-73.)
“[T]he state’s knowing use of perjured testimony to obtain a conviction violates the
Fourteenth Amendment.” Lambert v. Blackwell, 387 F.3d 210, 242 (3d Cir. 2004). The Supreme
Court has defined perjury as “false testimony [while under oath] concerning a material matter with
the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty
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memory.” United States v. Dunnigan, 507 U.S. 87, 94 (1993). In order for Petitioner to
demonstrate that the allegedly perjured testimony was procured in violation of his due process
rights, he must show that (1) “[Russo] committed perjury; (2) the government knew or should have
known of his perjury; (3) the testimony went uncorrected; and (4) there is a reasonable likelihood
that the false testimony could have affected the verdict.” Lambert, 387 F.3d at 242.
Petitioner argues that Lieutenant Russo also falsely testified that he and/or members of his
office had also interviewed Jay and Andy. (ECF No. 9 at 46-47.) Besides the fact that the record
indicates that the interviews occurred, Respondents also note that the circumstances surrounding
the interviews indicate that they occurred. As Respondents point out, Petitioner was arrested with
Zaid Tariq and they were both transported to the same location. (ECF No. 19 at 70-71.) Therefore,
the fact that law enforcement conducting simultaneous interviews of both suspects is reasonable.
Similarly, the record shows that Investigator Wagner returned to Petitioner’s interview room with
the trash bag of money that Petitioner hid in Maribel Aquino’s home. Thus, the odds of Aquino
speaking with law enforcement either in her home or in an interview room at the same time that
Petitioner was being interviewed, are high. Additionally, the record indicates that Jawad “Jay”
Mir spoke with law enforcement before Petitioner was apprehended. Therefore, Lieutenant
Russo’s statements that he had already been interviewed were not false. At a minimum, Petitioner
has not shown that Russo perjured himself. There is no basis to proceed to the remaining three
prongs of Lambert, as Petitioner has not established that Russo committed perjury nor that the
prosecutor engaged in any misconduct that would violate Petitioner’s due process rights.
In light of the foregoing, Petitioner’s claim - that his trial attorneys were ineffective for
failing to make object to perjured testimony - fails. See Alexander v. Shannon, 163 F. App’x. 167,
173 (3d Cir. 2006) (“[Petitioner] has not established the requisite prejudice, and he thus cannot
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show that counsel was ineffective for failing to object . . . “)) (citation omitted). Moreover,
Petitioner’s trial counsel could not have argued that the prosecutor suborned perjury in their
closing arguments as it was not supported by the record. United States v. Pelullo, 964 F.2d 193,
218 (3d Cir. 1992) (“[D]efense counsel may not suggest that the Government has engaged in
prosecutorial misconduct, such as subornation of perjury, unless there is a foundation in the record
to support such charges.”) Moreover, given the deferential standard applied to the PCR Court’s
decision on the issue, Plaintiff has failed to meet his burden. Therefore, the Court will deny this
claim.
5. Failure to Investigate and Present Additional Defense Witnesses
Petitioner claims that trial counsel was ineffective for failing to present an adequate defense
through proper investigation and presentation of key defense witnesses. (ECF Nos. 9 at 57-60, 91 at 1-5.) Petitioner initially raised this claim in his counseled, and supplemental pro se, PCR
filings. (ECF No. 19-17 at 5, 8-9.) The PCR Court denied this claim as unmeritorious. (ECF No.
19-90 at 18-21.) The Appellate Division briefly assessed the proffered testimony of Maqbool
Hussesin, Adeel “Eddie” Maqbool and Sara Malick, before affirming the PCR Court’s decision.
Defendant contends his trial counsel was ineffective because he
failed “to pursue an exculpatory witness.” In his PCR petition,
defendant presented transcribed statements from his father, Hussein
Maqbool; his brother, Adeel Maqbool; and a friend, Sara Mallick.
His father and brother both stated defendant had been at their home
in Parlin in the early morning hours of November 1, 2002.
Defendant alleges that his counsel should have investigated these
claims because they would have given him an alibi defense. We
disagree.
Two of the three alleged alibi witnesses did not provide defendant
with an alibi. In her statement, Mallick only stated that defendant
may have gotten into a verbal altercation with a few men in his store
earlier in the night of October 31, 2002. This was before the murders
were committed. Defendant's brother stated he returned home
between 2:30 a.m. and 3:00 a.m. on November 1, 2002 and saw
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defendant lying on the couch in the living room. This was after the
murders occurred. Therefore, neither of these witnesses provided
defendant with an alibi.
Defendant's father alleged he went to bed between 10:00 p.m. and
11:00 p.m. He then got up around 1:00 a.m. to say his prayers and
saw defendant speaking to someone on the telephone in the living
room. The problem with this account is that, if it were true,
defendant would have been able to personally provide this
information to his attorney in their preparation for trial. He never
asserts that he did so. Instead, he alleges his father told counsel
about this alibi, but counsel failed to follow up on it. However,
defendant's father's statement contains no allegation that he ever
informed defendant's counsel of this claim. Under these
circumstances, Judge De Pascale properly found that “[c]ounsel
cannot be faulted” for not investigating a claim defendant and his
father kept to themselves until years after the trial.
Just as significantly, defendant had already provided the police with
two conflicting accounts of his whereabouts on the night of the
murders. He first claimed he was at a motel with his girlfriend.
When confronted with evidence that disproved this story, defendant
admitted he was at the scene. Even if defendant's father's claim had
been made known to defense counsel, he would not have been
ineffective if he declined to a raise a third, totally inconsistent
account to the jury. Therefore, neither prong of the Strickland test
was met.
Maqbool, 2013 WL 57683 at *7.
Petitioner now argues that despite counsel listing several possible trial witnesses on the
court’s witness list at the start of trial, they did not present the testimony of the majority of these
individuals. (ECF No. 9 at 58.) Petitioner names the following individuals as potential defense
witnesses that counsels failed to present to the jury: Maqbool Hussein, Adeel “Eddie” Maqbool,
Sara Malick, Theseen Syed, Kenny Chong, Sam Awad, Ali Zaidi, and Monica Malloy. (Id.)
With respect to Petitioner’s father, Maqbool Hussein, Petitioner argues that his testimony
would have supported Petitioner’s alibi. Petitioner claims that his father saw him in their Parlin,
New Jersey home at around 1:00 a.m. on November 1, 2002, around the same time that the murders
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were determined to have ended. However, as the Appellate Division noted, while Petitioner claims
that his father provided this information to trial counsel, Maqbool Hussein’s transcribed statement,
that was submitted in support of the PCR petition, does not indicate the same. As for Adeel
Maqbool, the supposed alibi testimony that Petitioner proffers is not alibi testimony at all.
Petitioner claims that his brother could have testified that he saw Petitioner at home at around 2:30
p.m. (ECF No. 9 at 59.) The Petitioner does not allege what day this occurred. Petitioner also
alleges that his brother, Adeel, could have testified that Petitioner attempted to speak to law
enforcement prior to his arrest and would have also provided testimony that refuted Lieutenant
Russo’s testimony that Petitioner requested an attorney in his interrogation. (ECF No. 9 at 60.)
Petitioner does not indicate how Adeel Maqbool was privy to this information other than from
Petitioner’s self-serving comments, particularly the claim that Petitioner requested an attorney,
since the record reflects who was in the interview room with Petitioner.
Petitioner next argues that Sara Malick, Sam Awad, and Kenny Chong “would have
completely debunked the State’s contention through the testimony of Jawad ‘Jay’ Mir.” Petitioner
does not indicate how any of these witnesses would have undermined Mir’s testimony.
Additionally, Petitioner claims that Ali Zaidi could have established that Petitioner’s additional
cellular phone lines were not opened for the purpose of furthering the crime. (ECF Nos. 9 at 60,
9-1 at 1.) Petitioner alleges that Zaidi, who was the T-Mobile sales representative who opened the
phone lines, would have undermined the argument that Petitioner opened these additional lines for
nefarious reasons. (Id. at 9-1 at 1.) Finally, Petitioner claims that Monica Malloy could have
bolstered defense witness Angela Williams’s testimony that the man she saw leaving the second
crime scene did not resemble the Petitioner. (Id.)
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Petitioner has not put forth sufficient facts or arguments supporting how the
aforementioned individuals’ testimony would have changed the outcome of the trial. See Palmer
v. Hendricks, 592 F.3d 386, 393 (3d Cir. 2010) (“[A] court should be reluctant to convene an
evidentiary hearing to explore the claims of a petitioner whose pleadings are factually insufficient
to suggest any entitlement to habeas relief.”). Moreover, Petitioner’s argument that counsel’s
failure to compel Monica Malloy’s testimony was ineffective falls short as well. According to
Angela Williams, she was outside on a cigarette break conversing with her cousin, Malloy, when
she observed men leaving the area of the discarded burned vehicle containing decedents’ remains.
But Petitioner fails to provide sufficient evidence that Malloy would have testified in this manner.
Petitioner has not demonstrated how counsel’s failure to procure this testimony was
ineffective under either Strickland prong. Accordingly, the state court’s summary denial of the
foregoing claims as unmeritorious was not an unreasonable application of clearly established
federal law. See Cullen, 563 U.S. at 217-18. Consequently, relief is denied on this ground.
6. Failure to Object to the Trial Court’s Accomplice Liability Instruction and
Subsequent Response to a Jury Question
Petitioner argues that trial counsel’s inadequate response to the trial court’s accomplice
liability jury instruction led to potential confusion amongst jurors about Jawad Mir’s role in the
crime. (ECF No. 9-1 at 20-24.) Petitioner provides an uncorroborated assertion that Mir entered
into an agreement with the prosecution.
(Id. at 23.) He further argues that trial counsel
subsequently failed to object to the trial court’s response to a jury question about Mir. During the
jury deliberations, the trial court received the a note from the jury about Mir. The trial court
responded as follows:
First, the jury would like to know if Jawad Mir received a deal from
the prosecutor. My recollection of the testimony in the case is that
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there is no evidence indicating whether there was a deal or there
wasn’t a deal, it simply wasn’t covered during the course of the trial.
Now, obviously my recollection doesn’t control yours. If you like,
we can read his entire testimony back to you and you could hear it
yourself and examine the testimony yourself. That’s your option.
You have to decide whether you want to do that when you go back
into the jury room.
(ECF No. 19-77 at 9.)
Petitioner submits that the jury’s question reflects that the jury shared Petitioner’s
skepticism about Mir’s credibility or potential bias. (Id.) Petitioner argues that had the trial court
informed the jury of Mir’s cooperation with the government, then the jury could have considered
that information when applying the accomplice liability instruction. (Id.) Petitioner argues that
this particular question from the jury should have prompted trial counsel to ask for clarification
from the judge.
Petitioner first raised this claim in his PCR petition. (ECF No. 19-21 at 5-6.) The Appellate
Division summarily denied this ineffective assistance claim along with several other claims as bald
assertions and also noted “there was nothing inappropriate about the judge’s instructions to the
jury.” Maqbool, 2013 WL 57683 at *8.
The Third Circuit has articulated that when jury instructions are challenged, the Court will
“consider the totality of the instructions and not a particular sentence or paragraph in isolation.”
United States v. Coyle, 63 F.3d 1239, 1245 (3d Cir. 1995). The central issue is “whether viewed
in light of the evidence, the charge as a whole fairly and adequately submits the issues in the case
to the jury.” United States v. Zehrbach, 47 F.3d 1252, 1264 (3d Cir. 1995) (internal quotation
marks omitted).
Contrary to Petitioner’s claim, the record reflects that trial counsel objected to the
accomplice liability instruction immediately after the trial judge provided that instruction. (ECF
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No. 19-75 at 94-97.) Trial counsel objected to the court’s using an actual charged offense as an
example that it provided to the jury. (Id. at 94.) Trial counsel asked the court to rephrase the
instruction’s examples so that instead of using a charged offense such as murder, the court would
just use the word “act.” (Id. at 94-95.) Counsel also asked the trial court to emphasize the
causation requirements of all of the elements. (Id. at 97.) With respect to trial counsel’s reaction
or lack thereof, to the jury’s question about Mir, the question and the judge’s answer did not require
clarification. Petitioner cannot show that he was prejudiced by his counsel’s failure to ask for a
clarifying instruction that includes facts that were not in evidence.
Petitioner does not specify what exactly trial counsel should have objected to with respect
to the accomplice liability instructions. Moreover, Petitioner seems to conflate the jury’s question
about whether Mir obtained a “deal” from the prosecution with the accomplice liability instruction.
Finally, Petitioner’s argument totally negates the fact that multiple actors were involved in the
crime and nothing about the trial court’s accomplice liability jury instruction suggested the liability
of one actor over another.
The state court’s denial of Petitioner’s ineffectiveness claim was reasonable. Petitioner
has not identified an erroneous jury instruction for trial counsel to have raised an objection. See
United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999) (“[t]here can be no Sixth Amendment
deprivation of effective counsel based on an attorney’s failure to raise a meritless argument.”)
Moreover, Petitioner has not established a nexus between the allegedly erroneous instruction and
the jury’s question. As a result, Petitioner is denied habeas relief on this claim.
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7. Failure to Object to Admission of Inadmissible Hearsay at Trial and Failure to
Raise the Issue on Direct Appeal
i.
Ineffective Assistance of Trial Counsel
Petitioner’s final claim of ineffective assistance of trial counsel stems from an alleged
Confrontation Clause violation during the prosecution’s closing arguments. (ECF No. 9 at 49-53.)
Petitioner claims that counsel failed to object to repeat references to Amit “Andy” Vishal’s outof-court statements. Petitioner initially raised this claim in his PCR Petition, and it was summarily
denied by the PCR Court alongside several other claims, as “procedurally barred, rel[iant] upon
either bald assertions or are supported by factual assertions of the Defendant and are therefore
without merit.” (ECF No. 19-90 at 30.) The Appellate Division also summarily denied this claim
for lacking merit, alongside several other claims. Maqbool, 2013 WL 57683 at *8.
Jawad Mir, an eyewitness to one of the victim’s murders, provided extensive testimony
about the days leading up to the murder as well the day after. (ECF No. 19-55, 56.) Mir who was
also in the telecommunications business, travelled to New Jersey from New York City along with
his business associate, Andy, on October 31, 2002. Mir testified that both him and Andy were
forced to watch the elder Ahn’s strangulation and, at one point, Petitioner even ordered Mir to
shoot the younger Ahn, although he ultimately did not shoot him. Mir’s testimony detailed the
intimidation that Petitioner used to demand both men’s silence, including threatening the safety of
their relatives overseas. Mir testified that both he and Andy returned to New York City the next
day with ten thousand dollars, of presumably hush money, provided to them by the Petitioner.
While Mir testified that he remained in New York, it was his testimony that Andy returned to
India. In their closing arguments, the prosecution referenced some of Mir’s testimony to support
their theory of the case.
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The Sixth Amendment’s Confrontation Clause, which is binding on the States through the
Fourteenth Amendment, provides: “In all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him.” The standard for determining Confrontation
Clause violations in criminal trial proceedings was outlined in the United States Supreme Court’s
opinion in Crawford v. Washington, 541 U.S. 36 (2004). In Crawford, the Supreme Court held
that the prosecution could not use the police statement of a wife against her defendant husband at
trial, where the wife was unavailable as a witness due to the spousal privilege. Admission of the
statement violated the Confrontation Clause. Id. at 68-69.
During the prosecution’s closing arguments, several references were made to Mir’s
testimony, detailing what he and Andy experienced during those last few days of October 2002
and first few days of November 2002. Yet, the closing arguments never mentioned any statements
made by Andy. Even the excerpts of the closing arguments that Petitioner cites to only cite to all
the instances that the prosecutor mentioned Andy’s name. (ECF No. 9 at 51-52.) Given that the
closing arguments did not contain any hearsay statements by Andy, trial counsel was not
ineffective for not making a legally invalid objection. The state court’s application of clearly
established federal law was not unreasonable. Petitioner is denied habeas relief on this ground.
ii.
Ineffective Assistance of Appellate Counsel
Petitioner argues his appellate counsel was ineffective because counsel failed to raise the
trial court’s erroneous admission of hearsay statements. (ECF No. 9 at 53-57.) Petitioner initially
raised this claim in his PCR Petition, and it was summarily denied by the PCR Court alongside
several other claims, as “procedurally barred, rel[iant] upon either bald assertions or are supported
by factual assertions of the Defendant and are therefore without merit.” (ECF No. 19-90 at 30.)
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The Appellate Division also summarily denied this claim for lacking merit, alongside several other
claims. Maqbool, 2013 WL 57683 at *8.
At trial, Lieutenant Russo gave the following testimony when describing parts of
Petitioner’s post-arrest interview.
PROSECUTOR: Why did you tell him that what he was saying was
not the truth?
RUSSO: Well, during the course of this interview I was being fedBEAM: Objection, Judge.
RUSSO: I’m sorry.
THE COURT: Don’t tell us specific information, sir, about what
you were told. The fact that you may have been told something is
not objected to, but don’t tell us what you’ve been told.
RUSSO: I learned?
THE COURT: I want you to tell us what you did. The fact that
someone may have told you something that led you to do something
is okay. I don’t want you to tell us what they told you.
RUSSO: During an interview, which is a normal procedure, I would
on occasion leave the room and be instructed as to what is going on
as far as the investigation is, which way its turning, therefore, I could
get ammunition when I go back in a room and find out are we telling
the truth, are we on the right course of gaining the truth, and I ended
up knowing that.
PROSECUTOR: Did you tell the defendant any information that
you had gotten?
RUSSO: Referring to my notes.
PROSECUTOR: Referring to your report, sir?
RUSSO: I’m sorry, my report. I told Tariq that Zaid and Maribel
were being spoken to - DINARDO: Again, objection.
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RUSSO: I’m sorry.
THE COURT: I’ll hear you at side bar on that.
(The following takes place at side bar.)
THE COURT: So far his response is not objectionable.
DINARDO: Well, he’s going to say what Maribel and Zaid said,
because he’s –
THE COURT: I’ve instructed him not to do that, and I have no
reason to anticipate that he will.
PROSECUTOR: He’s been instructed not to, Judge. I think what
he said so far -.
THE COURT: It’s perfectly fine, there’s no objection to that.
MR. BEAM: Judge, this is no different than situation where a police
officer says I spoke with a confidential informant, and after I spoke
with the confidential informant I locked up somebody else. It
clearly –
THE COURT: No, I think it’s clearly different than that, sir. Sir,
what he’s doing is reporting a fact, and that is, that Maribel and Zaid
were being spoken to. That’s a fact.
MR. BEAM: And what he said is that based on that I, basically, that
this guy wasn’t telling the truth, so it’s inferring to the jury what
they know that these two other people are saying.
THE COURT: It may very well be, I mean, that’s the subject of
cross-examination, but it’s not - - that’s what the State wants the jury
to get, that this witness believed, based on information that he got,
that he wasn’t getting the truth from your client. That’s what he did.
MR. BEAM: All right. As long as that’s on the record, that’s all I
can do.
THE COURT: It’s on the record.
(The following takes place in open court.)
PROSECUTOR: Judge, could I just have that last answer read
back?
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(The reporter reads back the last answer.)
PROSECUTOR: When did you tell the defendant that Zaid and
Maribel were being spoken to?
RUSSO: Right before we took a break.
PROSECUTOR: After he gave the first version of events?
RUSSO: Correct.
(ECF No. 19-60 at 72-74.)
For hearsay purposes, statement is a “person’s oral assertion, written assertion, or
nonverbal conduct, if the person intended it as an assertion.” Fed. R. Evid. 801(a). New Jersey
Rule of Evidence 801(a) provides the same. Here, the Petitioner has not identified any of Zaid or
Maribel’s statements. Certainly, the content of any verbal or written statement has not been
identified. Lieutenant Russo testified that he questioned the veracity of Petitioner’s post-arrest
statement because he was also learning information from Zaid and Mirabel. The trial court gave
a clear instruction to the witness that he could not testify about what Zaid or Maribel said, and
Lieutenant Russo obeyed the instruction. Trial counsel made the appropriate objection and made
a reasonable argument that even if the substance of the statements were not revealed, the jury could
infer the substance. Yet, the State was not offering the substance of the statements as proof that
the assertions in the statements were in fact true. As noted, the content of the statements were not
provided to the jury. Instead, the fact that Zaid and Maribel spoke with law enforcement was being
used for a different reason – to demonstrate the impetus for Petitioner’s subsequent statements to
Lieutenant Russo.
Petitioner has failed to meet the first Strickland prong, showing that his appellate counsel’s
failure to raise the hearsay admission “fell outside the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689. Trial counsel’s objection to the statement and the
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subsequent sidebar discussion provided a robust record for direct appeal counsel to analyze. After
reviewing the trial court’s basis for admitting the contested statement, appellate counsel may have
reasonably deemed it an unmeritorious or insignificant argument to raise before the Appellate
Division. In any event, Petitioner has not satisfied Strickland’s prejudice requirement. Plaintiff
has not shown that if appellate counsel had raised the issue that there is a reasonable probability
that the result of the appeal would have been different. Therefore, appellate counsel cannot be
deemed ineffective for failing to raise an issue that would not have resulted in the reversal of his
client’s conviction. See Buehl v. Vaughn, 166 F.3d 163, 174 (3d Cir. 1999). Petitioner is denied
habeas relief on this ground.
Accordingly, all of Petitioner’s claims of ineffective assistance of trial/appellate counsel
are denied.
D.
Trial/PCR Judge’s Bias Against Petitioner.
Lastly, Petitioner argues that Judge De Pascale’s comments and rulings against the
Petitioner at the pre-trial suppression hearing and the PCR hearing, demonstrate the judge’s bias
towards Petitioner. Petitioner submits that the Judge De Pascale’s credibility finding against
Petitioner was emblematic of the judge’s bias. At the Miranda suppression hearing, Judge De
Pascale heard conflicting accounts of the circumstances of Petitioner’s arrest and his subsequent
statement.
Petitioner’s account was contrary to Lieutenant Russo and Detective Wagner’s
testimony. At the close of the hearing, Judge De Pascale denied the motion to suppress the
challenged statements, after the judge made several factual findings. Judge De Pascale said that
“I make those findings because I find Detective Russo’s credibility to be superior to that of the
Defendant’s on this issue.” (ECF 19-52 at 72.) That was the extent of the judge’s comments about
Petitioner’s credibility. Petitioner also claims that the judge’s bias was evident because of his
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“jesting” and “joking” with Lieutenant Russo while he was on the stand. (ECF No. 9-1 at 26.)
However, the suppression hearing record does not reflect any improper behavior or comments on
the judge’s part and Petitioner’s uncorroborated claim about a bias in favor of Lieutenant Russo
does not support his argument.
A review of the PCR record, as well, reveals no bias on the part of the judge. Every
comment that Petitioner’s cites as evidence of bias are, in fact, credibility findings with respect to
the various claims that Petitioner raised. By the time of the PCR hearing, Judge De Pascale was
quite familiar with Petitioner’s case as he presided over the pre-trial proceedings, trial, and
sentencing.
“In order to demonstrate judicial misconduct for purposes of habeas relief, a petitioner must
show actual bias and that he was treated unfairly by the trial judge. See Byard v. Hauck, No. 075069, 2009 WL 114419 at *14 (D.N.J., Jan. 15, 2009) (citations and quotations marks omitted).
“A mere allegation or the mere appearance of bias does not establish bias.” Id. (citation omitted).
The Petitioner has not demonstrated that the judge was biased, and there is no evidence in
the record to support Petitioner’s claim.
As such, Petitioner has failed to raise a viable
constitutional claim and this claim is denied habeas relief.
VI.
CERTIFICATE OF APPEALABILITY
This Court must determine whether Petitioner is entitled to a certificate of appealability in
this matter. See Third Circuit Local Appellate Rule 22.1. The Court will issue a certificate of
appealability if the petitioner “has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). Based on the discussion in this Opinion, Petitioner has not made
a substantial showing of denial of a constitutional right, and this Court will not issue a certificate
of appealability.
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V.
CONCLUSION
For the reasons discussed above, Petitioner’s habeas petition is denied.
An appropriate Order follows.
Dated: May 11, 2018
s/ John Michael Vazquez
JOHN MICHAEL VAZQUEZ
United States District Judge
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