SUDLOW v. N.J. DEPARTMENT OF CORRECTIONS

Filing 9

OPINION. Signed by Judge Susan D. Wigenton on 03/20/2017. (ek)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RICARDO SUDLOW,

Civil Action No. 14-5007 (SDW)

Petitioner,
v.

OPINION

N.J. DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.

WIGENTON, District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Ricardo Sudlow
(“Petitioner”) brought pursuant to 28 U.S.C. § 2254 challenging Petitioner’s state court conviction
(ECF No. 1). The Government filed a response to the petition. (ECF No. 8). Petitioner did not
file a reply. For the following reasons, this Court will deny the petition and will deny Petitioner a
certificate of appealability.

I. BACKGROUND
In its opinion affirming Petitioner’s conviction and sentence, the Superior Court of New
Jersey, Appellate Division, summarized the factual background of this matter as follows:
Following a three-day trial, a jury found [Petitioner] guilty of
second-degree eluding an officer [in violation of N.J. Stat. Ann. §]
2C:29-2(b); third-degree aggravated assault on a police officer [in
violation of N.J. Stat. Ann. §] 2C:12-1(b)(5); third-degree receiving
stolen property [in violation of N.J. Stat. Ann. §] 2C:20-7; and
fourth-degree resisting arrest [in violation of N.J. Stat. Ann. §]
2C:29-2(a). The jury acquitted [Petitioner] of second degree
aggravated assault while attempting to elude [in violation of N.J.
Stat. Ann. §] 2C:12-1(b)(6), and third-degree criminal mischief [in
violation of N.J. Stat. Ann. §] 2C:173(a)(1).

1

....
The record revealed that on June 28, 2009, an unidentified
man carjacked an Acura at gunpoint from the driveway of the
owner’s home in New York. [The car owner testified that
Petitioner] was not the carjacker.
Later that day, Mountainside Police Officer Shaun Bendik
observed [Petitioner] driving the stolen Acura in a residential
neighborhood under construction in Mountainside. The officer
became suspicious after [Petitioner] parked the vehicle in the
unpaved driveway of a newly-constructed, unoccupied home. He
shined a spotlight into the vehicle and saw [Petitioner] sitting in the
vehicle alone. [Petitioner] then backed the Acura out of the
driveway and the officer activated the lights on his patrol car to
signal [Petitioner] to stop the vehicle. Instead of stopping,
[Petitioner] drove the vehicle in the direction of nearby Route 22.
As [Petitioner] merged onto the highway, Mountainside
Police Officer Jeffrey Stinner joined Bendik in the pursuit.
[Petitioner] drove the vehicle erratically at an extremely high rate of
speed, weaving in and out of traffic. Mountainside Police Corporal
Kenneth Capobianco was driving nearby in a marked pickup truck
when he heard police radio transmissions about the chase. He
positioned his truck in front of the Acura and drove at a low rate of
speed. The Acura collided into the rear of the patrol vehicle, flipped
over, and eventually came to a stop. [Petitioner] fled, hiding nearby
until the police found and arrested him.
At trial, the three police officers involved identified
[Petitioner] as the driver and sole occupant of the stolen Acura.
[Petitioner] testified at trial that his friend Dennis Webster was the
driver of the Acura and he was just a passenger. According to
[Petitioner], because he refused to tell the . . . police the name of the
driver, the police falsely testified that he was the only person in the
Acura.
(Document 5 attached to ECF No. 8 at 1-4).
Following the jury verdict, Petitioner was sentenced to eight years imprisonment with a
four year parole disqualifier for the eluding charge, a four year imprisonment term on the
aggravated assault count to run concurrently to the eluding sentence, a four year term on the stolen
property count to run consecutively to the eluding term, and a twelve month term of imprisonment
2

to run concurrently with his other sentences. (Document 5 attached to ECF No. 8 at 2). Petitioner
appealed, and the Appellate Division affirmed his conviction and sentence by way of an opinion
dated June 18, 2013. (Id.). The New Jersey Supreme Court thereafter denied certification in July
2014. (Document 8 attached to ECF No. 8). This habeas petition followed.

II. DISCUSSION
A. Legal Standard
Under 28 U.S.C. § 2254(a), the district court “shall entertain an application for a writ of
habeas corpus [o]n 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.” A habeas petitioner has the burden of establishing his entitlement to relief for each claim
presented in his petition based upon the record that was before the state court. See Eley v. Erickson,
712 F.3d 837, 846 (3d Cir. 2013); see also Parker v. Matthews, --- U.S. ---, ---,132 S. Ct. 2148,
2151 (2012). Under the statute, as amended by the Anti-Terrorism and Effective Death Penalty
Act, 28 U.S.C. § 2244 (“AEDPA”), district courts are required to give great deference to the
determinations of the state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 772-73
(2010).
Where a claim has been adjudicated on the merits by the state courts, the district court shall
not grant an application for a writ of habeas corpus unless the state court adjudication
(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.

3

28 U.S.C. § 2254(d)(1)-(2). Federal law is clearly established for these purposes where it is clearly
expressed in “only the holdings, as opposed to the dicta” of the opinions of the United States
Supreme Court. See Woods v. Donald, --- U.S. ---, ---, 125 S. Ct. 1372, 1376 (2015). “When
reviewing state criminal convictions on collateral review, federal judges are required to afford state
courts due respect by overturning their decisions only when there could be no reasonable dispute
that they were wrong.”

Id.

Where a petitioner challenges an allegedly erroneous factual

determination of the state courts, “a determination of a factual issue made by a State court shall be
presumed to be correct [and the] applicant shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

B. Analysis
1. Petitioner’s Carjacking Testimony Claim
In his first claim, Petitioner asserts that the admission of testimony from the owner of the
Acura that she had been carjacked at gunpoint denied him a fair trial because that testimony was
“highly and unduly prejudicial.” (ECF No. 1 at 3). Initially, the Court notes that Petitioner here
seeks to challenge an evidentiary decision made by the state courts. Because “the Due Process
Clause does not permit the federal courts to engage in a finely-tuned review of the wisdom of state
evidentiary rules,” see Marshall v. Lonberger, 459 U.S. 422, 438 (1983), the admissibility of
evidence is generally a question of state law which is not cognizable in habeas corpus. See Keller
v. Larkins, 251 F.3d 408, 416 n. 2 (3d Cir. 2001) (“A federal habeas court . . . cannot decide
whether the evidence in question was properly allowed under the state law of evidence”). A
petitioner may therefore only establish his entitlement to habeas relief based on an evidentiary
decision by showing that the admission of the evidence in question denied him Due Process

4

insomuch as he was deprived of the “fundamental elements of fairness in [his] criminal trial.”
Glenn v. Wynder, 743 F.3d 402, 407 (3d Cir. 2014) (quoting Riggins v. Nevada, 504 U.S. 127, 149
(1992) (Thomas, J. dissenting)). “The Supreme Court has ‘defined the category of infractions that
violate ‘fundamental fairness’ very narrowly, based on the recognition that, beyond the specific
guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation.’” Id.
(quoting Medina v. California, 505 U.S. 437, 443 (1992)). “In order to satisfy due process,
[Petitioner’s] trial must have been fair, it need not have been perfect.” Id. (citing United States v.
Hasting, 461 U.S. 499, 508 (1983)). Thus, a Due Process violation will only occur in the context
of an evidentiary decision when that ruling was “so arbitrary or prejudicial that it rendered the trial
fundamentally unfair.” Scott v. Bartkowski, No. 11-3365, 2013 WL 4537651, at *9 (D.N.J. Aug.
27, 2013) (citing Romano v. Oklahoma, 512 U.S. 1, 12-13 (1994)).
In his petition, Petitioner contends that the car-owner’s testimony that her Acura had been
stolen during a gun-point carjacking prior to Petitioner’s driving of the car should not have been
admitted because it was unduly prejudicial. Prejudice, however, is not the sole determining factor
in admissibility determinations. Under New Jersey evidentiary rules, relevant, non-cumulative
evidence should be excluded only where “its probative value is substantially outweighed by the
risk of . . . undue prejudice, confusion of issues, or misleading [of] the jury.” State v. Rose, 19
A.3d 985, 1007-08 (N.J. 2011). Evidence is relevant where it has a tendency to prove or disprove
any act of consequence to the determination of a petitioner’s case, and a fact will therefore be
relevant where there is a logical connection between the proffered evidence and a fact in issue.
N.J. R. Evid. 401. While evidence of other crimes or wrongs is generally not admissible to prove
that the person charged acted in conformity therewith, such evidence is admissible under the New
Jersey rules for other purposes, such as where it is probative of motive, opportunity, intent,

5

preparation, plan, knowledge, identity or absence of mistake or accident where those matters are
relevant to the issues in dispute at trial. Rose, 19 A.3d at 1008. Where the alleged other crimes
evidence bears on facts which are intrinsic to the charged crime, however, that evidence need only
meet the balancing test of New Jersey Rule of Evidence 403 to be admissible, and the question of
the purpose for its admission as improper other crimes evidence need not be addressed. Id.
Evidence is considered intrinsic where it either directly proves the charged offense, or is committed
contemporaneously with the charged crime and facilitates the commission of that crime. Id. at
1009-10 (quoting United States v. Green, 617 F.3d 233, 248-49 (3d Cir. 2010)).
In this matter, Petitioner attacks the admission of the testimony of the car owner that her
car was stolen from her at gunpoint. One of the crimes with which Petitioner was charged, and of
which he was ultimately convicted, in this matter was receipt of stolen property –specifically the
stolen car. The State was therefore required to prove in this matter that the car in question was
stolen. See State v. Hodde, 858 A.2d 1126, 1128-29 (N.J. 2004); (see also Document 5 attached
to ECF No. 8 at 7). Thus, that the Acura was stolen was more than simply relevant in Petitioner’s
trial – that fact was directly at issue and an element of one of the crimes with which Petitioner was
charged. Because the stolen nature of the vehicle was highly relevant and probative of guilt, its
probative value clearly outweighed any prejudice resulting from the fact that Petitioner’s
possession of the car may have suggested he had some relationship with the carjacker. Thus, the
admission of the car-jacking evidence was clearly proper under New Jersey evidential rules, and
nothing in the record suggests that the admission of this evidence denied Petitioner a fair trial. 1

This is especially true given the fact that the trial court gave a specific curative instruction
reiterating that Petitioner was not the carjacker and that the jury was not permitted to consider the
carjacking for any reason other than to establish that the care was in fact stolen. (See Document 5
attached to ECF No. 8 at 6). That defense counsel did not object to the testimony, and in fact
elicited further testimony on cross-examination regarding the nature of the carjacking committed
1

6

Likewise, to the extent that Petitioner contends that he was denied a fair trial because the
carjacking testimony consisted of improper other crimes evidence, his contention is without merit.
While the carjacking did involve another crime committed by a third party, that evidence was
admitted not to suggest any propensity for criminality on the part of Petitioner, but simply to
establish one element of the charged offense – that the car in question had in fact been stolen.
Thus, as the Appellate Division concluded, the fact that this other individual stole the car from the
owner was admitted precisely because it proved one element of a charged offense and was
therefore intrinsic to that charged crime. See Rose, 19 A.3d at 1009-10; see also Green, 617 F.3d
at 248-49. Because that evidence was intrinsic to the crime charged, and was not admitted to show
Petitioner’s propensity for criminal activity, it does not qualify as improper other crimes testimony,
and was properly admitted at Petitioner’s trial. Rose, 19 A.3d at 1009-10; see also Green, 617
F.3d at 248-49. The admission of this testimony therefore did not deny Petitioner his right to a
fair trial, and these evidentiary decisions of the state courts cannot form the basis for habeas relief
for Petitioner. Scott, 2013 WL 4537651 at *9. Petitioner’s claim that the carjacking evidence
denied him a fair trial is therefore without merit and must be denied.

2. Petitioner’s Claim that the Prosecutor Violated his Right to Remain Silent
In his next claim, Petitioner contends that the prosecutor in his criminal trial denied him
his right to remain silent by questioning why he did not provide the identity of the person he alleges
was the driver on the night of the Acura car chase to the police at questioning. Generally, it is
improper for a prosecutor to comment on a criminal defendant’s post-arrest silence following

by an unknown third party further suggests that counsel did not feel that this evidence denied
Petitioner a fair trial. (Id. at 6-8).
7

Miranda warnings because such warnings carry the “implicit assurance” that an arrestee’s right to
remain silent will not be used against him. United States v. Edwards, 792 F.3d 355, 357 (3d Cir.
2015); see also Doyle v. Ohio, 426 U.S. 610 (1976). A prosecutor therefore violates Due Process
where he causes “the jury to draw an impermissible inference of guilt from a defendant’s postarrest silence.” Edwards, 792 F.3d at 358 (quoting Gov’t of the V.I. v. Martinez, 620 F.3d 321,
335 (3d Cir. 2010). Because such a violation grows out of the implicit assurance of the nonpunitive nature of the right to remain silent, however, not all comments on silence will violate Due
Process. Gov’t of the V.I. v. Davis, 561 F.3d 159, 164 (3d Cir. 2009). One such situation where a
prosecutor may comment on post-Miranda silence is where a defendant gives the impression that
he has provided cooperation with the Government when he in fact has not. Doyle, 426 U.S. at 619
n. 11. Likewise, violations of the Doyle prohibition on comment on post-Miranda warning silence
are subject to harmless error analysis, and will not warrant habeas relief unless the alleged error
“had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. 619, 631-38 (1993).
In this matter, Petitioner testified that he had not been the driver during the car chase, but
that a Dennis Webster had instead been driving the stolen Acura. (See Document 13 attached to
ECF No. 8 at 28). On direct examination, Petitioner testified at length about the numerous
interviews he had with police from various departments, asserting that he had refused to give them
any information regarding Webster. (Id. at 8-12). During cross examination, the following
exchange occurred regarding that issue:
[The State]: . . . you were brought back to the Mountainside Police
Department, correct?
[Petitioner]: Yes.
[The State]: And they asked you again [about the alleged other guy]?
8

[Petitioner]: No.
[The State]: But somebody else asked you?
[Petitioner]: New York [detectives].
[The State]: Okay. And in New York you . . . weren’t going to give
your friend up, right?
[Petitioner]: No.
[The State]: You were going to protect him?
[Petitioner]: I tried.
[The State]: Okay. You tried. You succeeded. You . . . never
mentioned his name, correct?
[Petitioner]: To New York detectives –
[The State]: Yes.
[Petitioner]: – eventually I did, yes.
[The State]: You did?
[Petitioner]: Yes.
[The State asked who he told about Webster, to which Petitioner
responded that he told two detectives from Nassau County.]
[The State]: Did you . . . talk [about] this with your counsel?
[Petitioner]: About what?
[The State]: About [your telling the New York detectives about
Webster]?
[Petitioner]: I told him [they] came and interviewed me. Yeah, I
did.
[The State]: Ok.
....

9

[Petitioner]: Yes, I did. I did. I told him they came and interviewed
me and he said, well, maybe that’s the reason they took three days
to charge me.
[The State]: And . . . you’ve been in the county jail . . . for the past
two years – withdraw that, Your Honor. The two years that this
investigation has been going on . . . . okay, and people have been
asking you questions that you knew you were going to come to trial
and you knew that you’re in trouble already –
[Defense Counsel]: Objection, your Honor.
(Document 13 attached to ECF No. 8 at 29-30). Following the objection, the Court held a sidebar
at which defense counsel argued that this amounted to improper comment on Petitioner’s silence
during the preceding years of the investigation, suggesting that Petitioner was obligated to reveal
Webster sooner. (Id. at 30). That objection went undecided as the court then adjourned for the
day, but the prosecutor abandoned that line of questioning upon the resumption of trial. (Document
14 attached to ECF No. 8).
Even if this Court were to assume that this exchange represents improper comment by the
State on Petitioner’s right to remain silent, a point which is not entirely clear in light of the fact
that it was Petitioner who brought the issue of his interrogations into question during his direct
testimony and Petitioner who volunteered that he later told police about Webster on cross
examination, it is clear that these comments were ultimately harmless. This brief exchange came
after numerous police officers had already testified that Petitioner was the driver and sole occupant
of the stolen Acura throughout the police chase, that some of them had seen Petitioner flee the
scene of the accident, and that Petitioner had been found injured shortly thereafter. In light of the
significant amount of eye-witness testimony identifying Petitioner as the sole occupant of the
Acura during the chase, the fact that Petitioner himself brought his interrogations with police into
evidence on direct examination, and the fact that the State never finished nor reiterated its question

10

which would have sought to elicit why Petitioner had not revealed Webster sooner, it cannot be
said that the brief exchange between the prosecutor and Petitioner regarding his eventual decision
to reveal Webster’s existence to New York detectives had a substantial and injurious effect upon
the outcome of Petitioner’s jury trial. Any harm this brief exchange could have done Petitioner
was minimal given the strength of the testimony from the various officers arrayed against
Petitioner and the fact that the State was prevented from actually asking the allegedly damaging
question by defense counsel’s objection and dropped that line of questioning upon the resumption
of testimony.

It is thus clear that Petitioner suffered no substantial and injurious effect from this

exchange, and as such any error that may have resulted from the admission of such testimony was
harmless and is insufficient to warrant habeas relief. Brecht, 507 U.S. at 638. Petitioner’s second
claim therefore must be denied.

3. Petitioner’s Claim that the Prosecutor Improperly Bolstered the Credibility of the State’s
Witnesses
In his final claim, Petitioner contends that the prosecutor improperly bolstered the
credibility of the police officer witnesses both during his cross examination of Petitioner and
during his summation. Specifically, Petitioner challenges the following exchange from his crossexamination which resulted from Petitioner’s testimony on direct that the officers at trial claimed
that he was the driver and sole occupant of the Acura even though he claimed he overheard them
at the scene speak about another passenger or driver:
[The State]: [Petitioner], you heard the testimony of a number of
police officers who were in here today, right?
[Petitioner]: Yes, I did.
[The State]: They’re all lying, right?
11

[Defense counsel]: Your Honor –
[Petitioner]: I’m not saying –
[Defense Counsel]: Can we be heard at sidebar, your Honor?
[Petitioner]: – but they’re mistaken about a lot of things.
[The Court]: Okay.
[Defense Counsel]: Objection.
[The Court]: Okay. That’s sustained. That’s too broad a question,
okay.
[The prosecutor then ceased this line of questioning and moved on
to other areas.]
(Document 13 attached to ECF No. 8 at 14).
Petitioner also takes issue with the following comments made by the prosecutor during his
closing arguments in response to lengthy attacks on the credibility of the testifying police officers
by defense counsel and made after the prosecutor discussed with the jury the essentially consistent
testimony of the various officers and the conflicting testimony of Petitioner:
And when you listen to th[e] transmissions [made by the various
officers during the car chase] the biggest thing you should get out of
it is the fact that they’re always talking about he, him, singular. Not
one time on that transmission are they talking about two people,
them, they, never happens. That is good evidence.
I would recommend you take it in there and listen to it
because it will show you that they were never looking for [more
than] one person, they always were looking for one person, and
listen to the end part. The end part they talk about [calling a] police
helicopter and as soon as they found [Petitioner] they cancelled it.
Why would you do that if you were looking for two people?
Once again, it’s going to come down to credibility. It’s going to
come down to who you think is telling the truth. The State [posits
that] the police are telling the truth.

12

....
And I really think the most important thing that [you] have
to do is really . . . to judge the credibility of [Petitioner] against [the
credibility of] the cops. I know I’ve said that, but I think that’s really
what it comes down to.
I think these cops are credible. [The] State contends that
[Petitioner] had a motive for . . . eluding [the police]. He had the
means to get away, a fast stolen car.
(Document 15 attached to ECF No. 8 at 9-10). No objection was made to these comments. (Id.).
It should also be noted in relation to these comments that, during the jury instruction, the trial judge
specifically advised the jury that they, and not counsel, were to judge the credibility of the
witnesses, and that the arguments, comments, openings, closings, and other remarks of counsel
were not evidence and “must not be treated as such.” (Document 15 attached to ECF No. 8 at 1213).
Petitioner contends that these comments, coupled with the question regarding the
truthfulness of the police, amounts to prosecutorial misconduct severe enough to warrant the
reversal of his conviction. Turning first to the issue with the State asking Petitioner whether the
police were lying, the Court notes that the various circuit courts are generally in agreement that it
is improper for a prosecutor to question a criminal defendant regarding the credibility of other
witnesses, which is instead the sole province of the jury. See, e.g., United States v. Harris, 471
F.3d 507, 511 (3d Cir. 2006). As the Supreme Court has yet to speak on the issue, however, a
failure to apply this rule by the state courts cannot be said to be contrary to federal law as
established in the holdings of the United States Supreme Court, and would therefore not constitute
grounds for habeas relief even if Petitioner could show that the state courts disregarded the issue.
See, e.g., Burns v. Warren, No. 13-1929, 2016 WL 1117946, at *42 n. 22 (D.N.J. Mar. 22, 2016).
Even if such a claim could warrant habeas relief, the Third Circuit has held that such a claim will
13

not warrant relief even on direct review absent the trial court permitting such a question over a
direct objection and resulting prejudice to the petitioner. Harris, 471 F.3d at 511-12. In this
matter, although the State did ask an arguably improper question regarding Petitioner’s opinion
about the veracity of the police officers, defense counsel objected to that comment and the trial
court upheld that objection, preventing the prosecution from further pursuing that line of
questioning. Likewise, because of the brief nature of the question, the trial court’s decision to
sustain the objection, and the jury instruction which specifically informed the jury that
determinations of credibility were for the jury and not the prosecutor or Petitioner to make, it is
clear that Petitioner suffered no substantial and injurious effect from the question, and that any
prosecutorial misconduct this question may represent was ultimately harmless and is therefore
insufficient to warrant habeas relief. Id.; Brecht, 507 U.S. at 638.
Petitioner’s claim regarding the State’s summation is similarly unavailing. Because a
prosecutor’s duty is to see that justice is done rather than to secure convictions, prosecutors are
bound to “refrain from [the use of] improper methods calculated to produce a wrongful conviction”
and thus, while a prosecutor “may strike hard blows [during his summation], he is not at liberty to
strike foul ones.” Berger v. United States, 295 U.S. 78, 88 (1935); see also United States v. Bailey,
840 F.3d 99, 124 (3d Cir. 2016). A criminal conviction, however, “is not to be lightly overturned
on the basis of a prosecutor’s comments standing alone, for the statements or conduct must be
viewed in context; only by so doing can it be determined whether the prosecutor’s conduct affected
the fairness of the trial.” Harris, 471 F.3d at 512 (quoting United States v. Young, 470 U.S. 1, 11
(1985). Thus, a prosecutor’s improper comments during summation will only warrant relief where
those comments “so infected the trial with unfairness as to make the resulting conviction a denial

14

of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986); see also Copenhefer v. Horn,
696 F.3d 377, 392 n. 5 (3d Cir. 2012).
While this general framework, which was applied by the state courts here, applies to all
claims of prosecutorial misconduct at summation, one more specific type of prosecutorial
misconduct is relevant here – improper vouching. As the Third Circuit has explained,
A prosecutor’s vouching for the credibility of a government witness
raises two concerns: (1) 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 (2) 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.
....
Our case law indicates that to find vouching two criteria
must be met: (1) the prosecutor must assure the jury that the
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. Thus, it is not enough
for a defendant . . . to assert that the prosecutor assured the jury that
a witness’ testimony was credible. The defendant must be able to
identify as the basis for that comment an explicit or implicit
reference to either the personal knowledge of the prosecuting
attorney or information not contained in the record. It follows that
where a prosecutor argues that a witness is being truthful based on
the testimony given at trial, and does not assure the jury that the
credibility of the witness based on his own personal knowledge, the
prosecutor is engaging in proper argument and is not vouching.
Likewise, prosecutorial comment that points to a lack of evidence in
the record which supports a defendant’s argument that the witness
is not credible is proper so long as the comment does not constitute
an assurance by the prosecutor that the witness is credible.
United States v. Walker, 155 F.3d 180, 184, 187 (3d Cir. 1998); see also Harris, 471 F.3d at 512;
United States v. Lore, 430 F.3d 190, 211-12 (3d Cir. 2005).

15

In this matter, the prosecution made one statement which, at least arguably could be said
to constitute improper vouching. While the vast majority of the prosecutor’s argument in this case
was proper comment made in response to defense counsel’s attacks on the credibility of the
testifying police officers, the prosecutor during summation did at one point make a statement of
personal opinion regarding the credibility of the police officers. Most of the comments made by
the prosecutor attesting to the credibility of the officers would not constitute vouching for the
simple reason that although the prosecutor suggested that the officers were credible, he did so
based entirely on the record – the consistency of the officers’ testimony, the consistency of that
testimony with the recorded radio record from the car chase and aftermath, and the cancelling of
the helicopter once Petitioner, and only Petitioner, was found. When the prosecutor made a blanket
statement of personal opinion, however, by simply asserting that he believed the officers were
credible, it was not clear whether this assertion arose out of the record evidence he had summarized
or represented his opinion based on outside knowledge. Thus, the prosecutor’s statement of
personal opinion presents a borderline case of improper vouching.
Even given that conclusion, however, it does not follow that Petitioner is entitled to relief
for exactly the reasons given by the Appellate Division on direct appeal – the record is absent of
any evidence suggesting that this one improper comment, surrounded as it was by fair comment
on the evidence and its credibility ramifications, in any way prejudiced Petitioner. As the
Appellate Division noted (see Document 5 attached to ECF No. 8 at 16-18), there was no objection
to this comment by the defense, suggesting that defense counsel doubted that the statement was so
prejudicial as to warrant an objection or request for a limiting instruction. Likewise, because this
comment was made amidst a review of the evidence which suggested that the officers were
credible, the more natural conclusion for the jury to reach would have been that this expression of

16

opinion was based on the trial evidence the prosecutor had just finished summarizing rather than
any outside information that went unmentioned during summation. Ultimately, the evidence of
Petitioner’s guilt at trial was strong – including as it did the consistent testimony of several police
officers involved in the chase all of whom testified to seeing only Petitioner inside of and leaving
the stolen Acura, which was in turn buttressed by the consistent radio recordings directly referred
to by the State as well as Petitioner’s injuries from the crash, countered only by Petitioner’s own
testimony. Thus, viewing the evidence in its entirety and the prosecutor’s comments in the context
of both summations, it is clear that the prosecutor’s lone arguably improper comment did not
prejudice Petitioner, did not have a substantial and injurious effect upon the outcome of the jury’s
deliberations, and certainly cannot be said to have rendered Petitioner’s trial unfair. As such, any
impropriety in the comments of the prosecutor are insufficient to warrant habeas relief, see Darden,
477 U.S. at 181; Harris, 471 F.3d at 512, and Petitioner’s habeas petition must therefore be denied
in its entirety.

III. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a habeas
proceeding where that petitioner’s detention arises out of his state court conviction unless he has
“made a substantial showing of the denial of a constitutional right.” “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 that the issues presented here are adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Because jurists of reason would not disagree with this Court’s conclusion that Petitioner’s claims

17

are without merit, Petitioner’s habeas petition is inadequate to deserve encouragement to proceed
further. As a result, this Court will deny Petitioner a certificate of appealability.

IV. CONCLUSION
For the reasons stated above, Petitioner’s petition for a writ of habeas corpus (ECF No. 1)
is DENIED and Petitioner is DENIED a certificate of appealability. An appropriate order follows.

Dated: March 20, 2017

_s/ Susan D. Wigenton___
Hon. Susan D. Wigenton,
United States District Judge

18