NIEVES v. NOGAN, ET AL

Filing 16

OPINION. Signed by Judge Madeline Cox Arleo on 6/22/18. (cm, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DiSTRICT OF NEW JERSEY
JANNY NIEVES,

:

Civil Action No.: 14-7676 (MCA)

Petitioner.
OPIN1O
V.

PATRICK NOGAN, et al.,

Respondent.

APPEARANCES:
Janny Nieves
Midstate Correctional Facility
P.O. Box 866
Wrightstown, NJ 08562
Petitioner, pro se
Maria Ines Guerrero
Essex County Prosecutor’s Office
50 West Market Street
Newark, NJ 07102
On behalf of Respondents
ARLEO, UNITED STATES DISTRICT JUDGE
I.

INTRODUCTION

Before this Court is the Petition for a writ of habeas corpus of Petitioner Janny Nieves
(“Petitioner”), brought pursuant to 28 U.S.C.

§ 2254. (ECF No. 1.) For the reasons set forth

below, Petitioner’s habeas petition is DENIED, and Petitioner is DENIED a certificate of
appealability.

II.

FACTUAL BACKGROUND & PROCEDURA HISTORY

The following factual summary is taken from the opinion of the Superior Court of New
Jersey, Appellate Division, affirming the denial of post-conviction relief (“PCR”):
Defendant was charged with first-degree murder, contrary to
N.J.S.A. 2C:1l—3(a)(l) and N.J.S.A. 2C:l1—3(a)(2); and seconddegree endangering the welfare of a child, contrary to N.J.S.A.
2C:24—4. Defendant’s motion to suppress certain statements he
made to law enforcement was denied. Thereafter. defendant was
tried before a jury.
At the trial, the State presented evidence, which established that
Yadira Obando (Obando) and defendant were involved in a
romantic relationship, and Obando became pregnant v ith
defendant’s child. She gave birth to iN. in February 2001. In April
2001, defendant and Obando moved to an apartment in Newark,
which they shared with others.
Obando testified that she and defendant constantly argued and often
engaged in physical altercations, in which defendant would strike
her. She said defendant hit the child and often shook her to get her
to stop crying. At some point prior to July 17, 2001, defendant told
Obando that he dropped the baby. The baby was not reacting, but
defendant and Obando did not take the child to see a doctor. The
child seemed to recover.
J.N. was not well on July 17, 2001, and Obando and defendant took
the child to the emergency room of a hospital in Newark. A
pediatric nurse examined the child, and she seemed to he in good
physical condition, but appeared to have an ear infection and upper
respiratory congestion. The nurse consulted with a doctor and
medication was prescribed.
According to Obando, sometime between July 17, 2001 and July 21.
2001, defendant struck J.N. in the back. However, neither defendant
nor Obando took the child to the hospital after this incident. On .July
21 or 22, the child was lethargic and she was vomiting. Obando said
that on July 23, defendant struck her and also struck J.N. Obando
left defendant alone with the child in their bedroom.

Thirty minutes later, Obando returned to feed the child. She said
defendant was holding the baby and appeared to he trying to get the
child to react. The baby’ s eyes were closed and she would not open
them. Obando and defendant took the child to the hospital. The
child was not breathing. She was transported to Beth Israel Ilospital

and placed in a pediatric intensive care unit (IC U). The child died
on July 26, 2001.
The State presented medical testimony’ indicating that JJ’. had a
bruise on the right side of her brain, a right temporal fracture and
multiple right parietal fractures. The child also had multiple rib
fractures, injuries to her liver and adrenal bruising. Dr. Timothy
Yeh (Dr. Yeh), the attending physician at the pediatric ICU at Beth
Israel where J.N. was treated, testified that the injuries occurred at
different times and were not accidental.
Dr. Yeh testified that J.N.’s injuries were consistent with being
shaken. The child’s brain injuries were caused by significant force.
by direct impact or shaking. He opined that the rib fractures were
caused by a squeezing type of force. He said the injuries to the
child’s liver and adrenal bruising were caused by an impact to her
back or abdomen.
Dr. Wayne Williams, the Assistant Medical Examiner in the
Regional Medical Examiner’s Office in Newark, performed the
autopsy on July 27, 2001. He stated that the cause of death was
blunt force injuries to the child’s head, chest and abdomen.
The jury found defendant not guilty of murder, but guilty of a lesserincluded offense, first-degree aggravated manslaughter. The jury
also found defendant guilty of second-degree endangering the
welfare of a child.
The trial court later denied defendant’s motion for a new trial and
sentenced defendant to twenty-five years of imprisonment on the
aggravated manslaughter charge, with a period of parole ineligibility
as prescribed by the No Early Release Act, N.J.S.A. 2C:43--7.2. The
court also sentenced defendant to a concurrent. eight-year term on
the endangering charge, and imposed various monetary sanctions.
State v. Nieves, Indictment No. A-2177-l 1T3, 2013 WI. 3213690. at *12 (N..I. Super. (‘i App.
Div. June 27. 2013).
3

Petitioner appealed his conviction and sentence. The Appellate Division affirmed on
October 4, 2005 but remanded for matters related to his sentencing. State v. Nieves, Indictment
No. A-4274-03T4, 2005 WL 2447795 (N.J. Super. Ct. App. Div. Oct. 4, 2005). The New Jersey
Supreme Court denied certification on February 18, 2009. State v. Nieves, 966 A,2d 1079 (N.J.
2009). Petitioner filed a petition for PCR which was denied by the Superior Court on August 30.
2011. (ECF No. 13-13.) Petitioner appealed, and the Appellate Division affirmed the denial of
PCR on June 27, 2013. Nieves, 2013 WL 3213690. The New Jersey Supreme Court denied
certification on February 4,2014. State v. Nieves, 87 A.3d 771 (N.J. 2014). In December 2015.
Petitioner filed a habeas Petition with this court raising five grounds for habeas relief:
1. Trial court erred in denying a motion for acquittal.
2. Trial court erred in permitting statements introduced.
3. Trial court erred in restricting cross-examination of [P]etitioner’s co-defendant.
4. Trial court erred in failing to charge aggravated assault.
5. Petitioner was deprived [of] the effective assistance of counsel at trial.
(ECFNo. 1 at 5—12.)
Respondents submitted an answer in which they argue that Petitioners claims are
meritless, the Petition is time-barred, and Grounds Four and Five are procedurally baITed from
habeas review. (ECF No. 10.)
III.

STANDARD OF REVIEW

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

4

presented in his petition. See Harringlon v. Richter. 562 U.S. 86,98 (2011): Pricey. Vinceni. 538
U.s. 634, 641 (2003). District courts are required to give great deference to the determinations of
the state trial and appellate courts. See Renico v. Len, 559 U.S. 766. 773 (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.
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, 135 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

§ 2254(e)(1).

clear and convincing evidence.” 28 U.S.C.

Under these standards, the relevant state court decision that is appropriate for federal
habeas corpus review is the last reasoned state court decision. See Bond v. Beard, 539 l,3d 256,
289—90 (3d Cir. 2008). Furthermore, ‘when the relevant state-court decision on the merits
not come accompanied with.

.

.

...

does

reasons.. [w)e hold that the federal court should look through’
.

the unexplained decision to the last related state-court decision that does provide a relevant
rationale.” Wilson v. Sellers, 138 S. Ct. 1188, 1192(2018).
5

IV.

ANALYSIS
A. Ground One: Motion for Acquittal

In Ground One. Petitioner alleges that the trial court erred in failing to grant his motion Ihr
ajudgment of acquittal. (ECF No. 1-2 at 27—31.) He argues that there was a variance between the
indictment date of July 26, 2001, and the evidence presented at trial which reflected acts committed
before that date. Because of this variance, Petitioner claims that he was prevented from presenting
an effective defense. The Appellate Division, on direct appeal, found the claim meritless without
extended explanation. See Nieves, 2005 WL 2447795, at *1.
The record reflects that the indictment charged Petitioner for crimes committed “on the
26th day of July, 2001.” (ECF No. 13-1 at 4—5.) At the conclusion of the State’s case, defense
counsel moved for a judgment of acquittal arguing that no evidence was presented that Petitioner
“did anything on the 26t1 of July to this child.” (ECF No. 13-29 at 35.) The trial court denied the
motion as follows:
With respect to [the] defense motion for judgment of acquittal. the
broad test for such an application is whether evidence at that point
[i]n time is sufficient to warrant a conviction on the charge involved.
Specifically[,] the question the trial judge must determine is whether
viewing the State’s evidence in its entirety, be that direct or
circumstantial, giving the State the benefit of all its favorable
testimony[,] as well as all the favorable inferences which reasonably
could be drawn therefrom, a reasonable jury could find guilt of the
charges beyond a reasonable doubt. Clearly the State has so
demonstrated that with respect to both the first and second counts. I
don’t need to repeat the evidence which was submitted during the
course of the trial, it speaks for itself. Counsel has made specific
argument with respect to the fact that the indictment alleges
endangering the welfare of a child, which occurs specifically on the
date of July 26th, which coincidentally, not coincidentally, is the
date of death. In the indictment, of course, [serves] as notice to an
accused of charges being brought against him so he is able to
properly defend himself or herself against such charges. Broad
discovery was provided to defendant which detailed the specific
allegations of when the endangering took place and the endangering
6

consisted of, as offered by the State in its case, the care given to this
child, including the abuse suffered by the child during the course of
the months as we discussed in the testimony. The defendant had
notice of what the charges were, had notice of when it took place.
The mere fact that the indictment returned referred to only the date
of death, isn’t making that defective. The motion is denied.
(ECF No. 13-29 at 42—43.)
In assessing whether a variance violates a petitioner’s constitutional rights “[t]he true
inquiry

.

.

.

is not whether there has been a variance in proof but whether there has been such a

variance as to ‘affect the substantial rights’ of the accused.’ Berger v. Un/led States. 295 U.S. 78.
82 (1935) (citations omitted). “The general rule that allegations and proof must correspond is
based upon the obvious requirements

.

.

.

that the accused shall be definitely informed as to the

charges against him, so that he may be enabled to present his defense and not be taken by surprise
by the evidence offered at the trial

.

.

.“

Id. Based upon the analysis in Berger, the Third Circuit

has found that ‘a variance violates the Constitution only if it is likely to have surprised or otherwise
has prejudiced the defense.” Real v. Shannon. 600 F.3d 302, 303 (3d Cir. 2010).
Here, while the indictment alleged a single date, the trial court’s decision denying this
claim was neither contrary to, nor an unreasonable application of Supreme Court precedent. The

trial court noted that broad discovery was provided to the defense, detailing allegations over the
course of the short time the baby was alive. See 28 U.S.C.

§ 2254(e)( I) (explaining that on

federal

habeas review “a determination of a factual issue made by a State court shall be presumed to be
correct.”). Thus, Petitioner was sufficiently informed of the charges against him to put him on
notice to prepare an effective defense. See Russell v. United States, 369 U.S. 749, 763 (1962)
(recognizing that the sufficiency of an indictment is measured by “whether the indictment contains
the elements of the offense intended to be charged and sufficiently apprises the defendant of what
he must be prepared to meet”) (internal quotations omitted); see also United States
7

v. Somers,

496

F.2d 723, 746 (3d Cir. 1974) (finding that a variance does not rise to the level of a constitutiona
l
violation unless the defendant was “so surprised by the proof adduced that he was unable to prepar
e
his defense adequately”); hut see Real, 600 F.3d at 308 (finding variance not unconstitution
al, in
part, because indictment there contained language of “on or about” the specific date) (emph
asis
added).
Furthermore. Petitioner has not shown that he was prejudiced by the evidence presented at
trial. Real, 600 F.3d at 303. As noted above, the extensive evidence against Petitio
ner was
presented to him prior to trial. See United States v. Miller, 527 F.3d 54. 70 (3d Cir. 2008)
(finding
that while government did not present direct evidence of crime committed on exact
date in the
indictment, variance did not prejudice petitioners substantial rights because he as
aware ot’
government’s evidence against him). Thus. the state courts’ denial of the motion for
a judgment
of acquittal was not an unreasonable application of Supreme Court precedent.
To the extent Petitioner is making a general argument challenging the suffici
ency of the
evidence against him, “a reviewing court must ask whether, after viewing the eviden
ce in the light
most favorable to the prosecution, any rational trier of fact could have found the essenti
al elements
of the crime beyond a reasonable doubt.” Eley v. Erickson, 712 F.3d 837, 847 (3d Cir.
2013)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). A court sitting in habeas review
may
therefore overturn a conviction for insufficiency of the evidence only ‘if it is found
that upon the
record evidence adduced at trial no rational trier of fact could have found proof of guilt
beyond a
reasonable doubt.” Id. (quoting Jackson. 443 U.S. at 324). ‘Under Jackson. federal courts
must
look to state law for the substantive elements of the criminal offense, but the minimum amoun
t of
evidence that the Due Process Clause requires to prove the offense is purely a matter
of federal
law.” Coleman v. Johnson. 566 U.S. 650, 655 (2012).

8

Here, given the testimony from Obando that Petitioner repeatedly hit. shook, and dropped
the baby (ECF No. 21—23), in addition to incriminating statements made by Petitioner that
he
dropped the baby on her head (ECF No. 13-22 at 17. 39), it is clear that a rational fact-finder could
have found beyond a reasonable doubt that Petitioner engaged in the reckless killing
and
endangering the welfare of the victim. Because the evidence in this matter was clearly sufficient.
the Appellate Division’s rejection of Petitioner’s claim was not unreasonable. Therefore,
this
claim for relief is claim.
B. Ground Two: Right Against Self-Incrimination

In Ground Two, Petitioner argues that his constitutional rights were violated by the
introduction of incriminating statements he made to the police. He explains that he was questioned
by a police officer about the circumstances of the baby’s injuries, without having been
administered Miranda warnings, in a manner likely to elicit an incriminating response. (ECF No.
1-2 at 32.) The Appellate Division denied the claim as meritless without explanation. See A’wvcs,
2005 WL 2447795, at *1.
The record reveals that prior to trial a Miranda hearing was held in which Officer Thomas
(“Thomas”) testified regarding the circumstances of Petitioner’s statement to him. (ECF No. 131
22 at 16.) At the hearing, Thomas testified that Petitioner arrived at the hospital some-time after
the victim’s mother. (Id.) Thomas explained that the hospital was arranged with a waiting area
with an inner conference room. (Id. at 14.) Inside the conference room was a D.Y.F.S. worker, a
doctor, the victim’s mother (Obando) and Thomas. (Id. at 19.) Other individuals such as a nurse,
a translator, the doctor, and an Essex County prosecutor came in and out of the conference room.

The record of the Miranda hearing also reveals that Petitioner made various other
incriminating statements. However, because the instant Petition only references his statement to
Thomas, the Court will not address the other incriminating statements.
9

(Id. at 24—41.) About fifteen minutes after Petitioner arrived, Thoma
s said he needed to speak
with Petitioner and waived for Petitioner to exit the conference room.
(Id. at 31, 36—37.) He then
asked Petitioner what happened to the baby. (Id. at 38.) Thomas read
from his notes that Petitioner
told him. “[t]he baby fell out of his arms and hit the concrete ground back
in June

.

.

.

he was not

taken to the hospital.” (Id. at 39.) After Petitioner’s statement to Thoma
s, they both returned to
the conference room and Thomas did not question Petitioner further
. (Id.) Thomas then testified
that some-time later, after speaking with the doctor and the D.Y.F.S. worker
, he placed Petitioner
and Obando under arrest. (Id. at 41.) Thomas testified that from start
to finish. Petitioner was
questioned by various individuals over the course of an hour. (Id. at 41.)
Thomas also stated that
he identified himself as an officer, he was in uniform and armed, but never told
Petitioner that he
was there to investigate a crime. (Id. at 30.)
Based on the testimony elicited at the Miranda hearing, the trial court found
Petitioner’s
statement to Thomas admissible, explaining on the record:
I make the following findings beyond a reasonable doubt:
The defendants brought their child to Columbus Hospital when sick
and the child was transferred to the critical care unit at Newark Beth
Israel Hospital. The parents were there for the purpose of obtaining
care and medical treatment for their sick child. They were not under
any form of nature of restraint. They were not detained in any way.
shape. manner or form. Evidence of that is the fact. for example.
that Mr. Nieves didn’t even get there until later. Evidence of that is
that there is testimony about people going in and out of the room,
including hospital people.
The testimony was that at the end of the whole discussion, that
everybody
the defendants, if you recall, were arrested in the
hallway outside. They were they were not restrained in any way.
Nobody suggested that they couldn’t leave if they earlier if they
wanted to. The conditions that were there were not in any way
conducive to leading any reasonable person to believe that. there
was any kind of custodial setting. The fact that Officer Thomas was
there.
in uniform.
with a gun in his holster, I guess, and Ms.
--

--

--

.

.

.

.

.

10

.

Bizek was there, as I
as I had known to he, perhaps. as a
representative of the Prosecutor’s Oftce. but so was the nurse to the
DYFS people.
--

While there may have been interrogation, I don’t think there’s a
whole lot of doubt about that, whether it be by the doctors or by the
DYFS workers, because interrogation is any words of action. that
that part of the police that the police should know or reasonably
likely to elicit any incriminating response from the suspect and you
want to consider, at least, the DYFS worker being there being part
of that process.
--

--

-

I suppose one can argue, pursuant to Rhode Island v. Innis. 446 U.s.
291, at Page 301
that there was question. Whether or not it was
likely to elicit an incriminating response from the suspect is an open
question, but.. I’ll give the defendants the benefit of the doubt on
that issue.
..

.

.

But I do say that there is no evidence to believe that the police were
intending to elicit an incriminating response. in any event. I believe.
under the circumstances, while the subjective intent of the police is
not necessarily controlling and. in fact, it’s the its the object of
circumstances that
that are more relevant, the suhjectie
circumstances are relevant to character are relevant to the extent
that it helps characterize the objective circumstances. And I don’t
believe that the design of the questions was to elicit an incriminating
response from the accused. I[t] simply
it was simply more to
figure out what was going on with the child and to obtain
information, both [of] which was necessary to treat the child and
what injuries were suffered and how to deal with them, but as well
to. investigate the crime. So there was an aspect of it there. So I
think it’s fair to say that we’re talking about interrogation and I’ll
leave it at that.
--

--

--

--

.

.

On the other hand, the issue is whether or not it was custodial.
Custody does not require a formal arrest. It does not require physical
restraint. It does not require handcuffs. The issue is what a
reasonable person, innocent of crime, in a defendant’s position.
would have thought. And that, of course, is State v. Godfrei. 1 3 1
N.J. Super 168. Affirmed 67 N.J. 267. Siu,’e v. Michelene (phonetic).
220 N.J. Super. 532 cert. den. 109 N.J. 40.Staie v. .\IcLaz,ghlin. 31()
N.J. Super. 242 cert. den. 156 N.J. 381.
I have to analyze, and I think the arguments that counsel made, what
were the totality of the circumstances? What was the length of the
interrogation? Was it a long or a short one? It was short. It was

11

approximately an hour. What kind of tension was involved? It was
not really tension at all. The people were free to go. It was a
conference room in a hospital.
That has to do with another issue. place. The surroundings. Where
did it occur? Was it in a police station or was it in a hospital? There
it was in a hospital.
The nature of the questions had to do with what had happened to the
child and what was causing the child problems. The the language
used in the questioning
by the doctor. by the DYFS worker.
There’s no suggestion that the questioning was accusatory in an
way.
--

.

.

.

The investigators were not familiar with the defendant. There’s no
evidence of any pressure applied. Really. this is not ver far
[from] the home of the defendant during the day. with his father
nearby, that was the place of the interview in State v. P.Z, 152 N.J.
86, but the circumstances surrounding the interview by the
caseworker, by the detective, by the policeman and by the
the
doctor do not demonstrate a coercive atmosphere.
Do not
demonstrate the defendant the defendants did not have complete
freedom to come and go. The the questions were not threatening.
The interview was not lengthy.
--

--

--

There is no suggestion that the the suspects knew that they were
the focus of any police investigation and there’s no suspect there’s
no evidence that the in fact. at that point in time they ere the
suspect of any of any investigation at that point. And there’s no
suggestion that the
a reasonable person, under those
circumstances, would have thought themselves to be a target of the
Prosecutor’s investigation and, therefore, not free to leave.
--

--

--

--

--

I’m satisfied in the circumstances, this was a statement [tol Officer
Thomas [that] was not a custodial interrogation, that Miranda did
not apply.
(ECF No. 13-23 at 98—103.)
The Fifth Amendment provides that “[n]o person

.

.

.

shall be compelled in any criminal

case to be a witness against himselfi.]” U.S. Const. amend. V. In Miranda v.Arizona. the Supreme
Court emphasized that the privilege against self-incrimination protects individuals from “informal
12

compulsion exerted by law-enforcement officers during in-cust
ody questioning. 384 U.S. 436.
461 (1966). To protect against the coercive effect of a custod
ial interrogation, the Supreme Court
requires law enforcement officers to recite what have come to
be known as Miranda warnings to
criminal suspects prior to questioning. Id. at 479.
A person is only subject to a custodial interrogation, however,
when both the elements of
custody and interrogation are satisfied. Rhode Island v. Innis,
446 U.S. 291. 300 (1980). A
criminal suspect is in custody if. given the circumstances
surrounding the interrogation. •a
reasonable person would have felt that he or she was not at liberty
to terminate the interrogation

and leave.” Thompson v. Keohane, 516 U.S. 99. 112 (1995).
Interrogation

ithin the meaning of

Miranda “refers not only to express questioning. but also
to any words or actions on the part ot
the police (other than those normally attendant to an arrest
and custody) that the police should
know are reasonably likely to elicit an incriminating response
from the suspect.’ Inn/s. 446 U.S.
at 301. The focus is on the “perceptions of the subject, rather
than the intent of the police.” id.
The state court decision on this matter was neither contrar
y to, nor an unreasonable
application ofMiranda and its progeny. The record does not establi
sh that a custodial interrogation
took place. As noted by the state court and verified by the
record. Petitioner arrived after the
victim’s mother, various individuals came in and out of the hospita
l conference room. Thomas did
not indicate that Petitioner was not free to leave, and he did not
express that Petitioner was the
subject of an investigation. Further, the questioning took place in
a hospital setting. l’homas never
actively displayed his weapon, and he did not force Petitioner to speak
with him. See (iniiedSiaies
v. King. 604 F.3d 125, 138 (3d Cir. 2010) (highlighting five factors
to consider in determining if a
suspect is objectively free to leave: “whether the officers told
the suspect he was under arrest or
free to leave”, the “location or physical surroundings of the interro
gation”, the “length of the

13

interrogation”, “whether the officers used coercive tactics such as hostile tones of voice.

the display

of weapons, or physical restraint” and “whether the suspect voluntarily submitted to
questioning.’)
(citation omitted). Instead, Officer Thomas simply asked Petitioner what had happen
ed to the
baby. Officer Thomas did not ‘subject [Petitioner] to a lengthy harangue. nor did
the] make
‘comments [that] were particularly evocative.” See United Stares v. Bonner, 469 F. App’x
11 9.
126 (3d Cir. 2012) (citing Innis 446 U.S. at 303). Thus, the state court did

not

unreasonably find

that a person in Petitioner’s shoes would have felt free to terminate the questioning. See Keoha
ne,
516 U.S. at 112.

Because the state court decision on this matter was not an unreasonable

application of Supreme Court precedent, the claim for habeas relief is denied.
C. Ground Three: Confrontation Clause

In Ground Three, Petitioner argues that his Sixth Amendment rights were violated when
the trial court restricted cross-examination of his co-defendant. Yadira Obando. regarding
her son
in Peru and her treatment for depression. (ECF No. 1-2

at

37.) I-Ic argues that this violated his

rights under the Confrontation Clause. (Jd.) The Appellate Division summarily rejecte
d this claim
when raised by Petitioner on direct appeal. See Nieves. 2005 WL 2447795. at * I
The record establishes that during voir dire of Ms. Obando, the trial court considered
defense counsel’s request to cross-examine Obando about her treatment for depression and her
reasons for leaving a son in Peru. (ECF No. 13-25 at 8—15.) Defense counsel was aware of these
facts from the transcript of Obando’s plea agreement. Defense counsel argued it was relevan
t to
bolster his theory of the case—that Obando was an unfit mother who caused the death of her child.
The trial court, with the agreement of both parties, agreed that it was permissible for
defense counsel to question Obando about her treatment for depression, (ECI” No. 13-25 at
10.)
Thus, on the aspect of depression. Petitioner’s argument is belied by the record. Regarding the

14

child in Peru, however, the trial court determine
d it was irrelevant and restricted defense counsel
from cross-examining Obando on that matter:
COURT: All right. The last the issue with
respect to the child in
Peru. I’m going to read the pertinent part
of the transcript [of the
guilty plea]. This is Miss Scocozza[’s] questions
to Miss Obando.
--

What year did you come to the United States?
“In 1998.
And did you have farnil in Peru?
Yes.
“Specifically do you have a son in Peru?
“Yes.
“How old was your son when you left Peru?
“Almost Five.
“And why did you leave your son behind in Peru
?
“For giving him a better life and a better education
.’
[COURT:] I think it would be speculative on
the defense part to
make an argument that she left him there
because she was
inferentially an unfit mother. So in that regard lrn
going to disallo
it.
DEFENSE COUNSEL: Just to be clear. I caili
go into the other
child in Peru or the circumstances by which she
left that child: is
that accurate?
COURT: Thats accurate. It’s not relevant.
(ECFNo. 13-25 at 15.)
The Confrontation Clause provides that “[i]n all
criminal prosecutions, the accused shall
enjoy the right. to be confronted with the witn
esses against him.
U.S. Const. amend. VI.
“[T]he main and essential purpose of confrontation
is
.

.

.

.

.“

to secure Jör the opponent the opportunity

15

ofcross-examination.”’ Delaware v. VcinArsdall. 475 U.S. 673. 678 (1986)
(internal citations and

quotation marks omitted) (emphasis in original). “[A] criminal defendant
states a violation of the
Confrontation Clause by showing that he was prohibited from engaging in otherw
ise appropriate
cross-examination designed to show a prototypical form of bias on the part
of the witness, and
thereby ‘to expose to the jury the facts from which jurors

.

.

.

could appropriately draw inferences

relating to the reliability of the witness.” Id. at 680 (quoting Davis v. Alaska
, 415 U.S. 308, 318
(1974)). Significantly, “the Confrontation Clause guarantees an opportunity
for effective crossexamination, not cross-examination that is effective in whatever way, and
to whatever extent, the

defense might wish.” Id. at 679 (quoting Delaware v. Fensterer, 474
U.S. 15. 20 (1985))
(emphasis excluded); see

(I/SO

Crane v. Kentucky, 476 1.LS. 683. 690 (1986) (wc have never

questioned the power of States to exclude evidence through the applica
tion of evidcntiar) rules
that themselves serve the interests of fairness and reliability—even if the
defendant would prelCr
to see that evidence admitted”).
In applying Van Arsdail, the Third Circuit has explained that “the denial
of crossexamination upon a proper subject for cross-examination is a ground for
reversal if the denial
appears to have been harmful.” United States v. Riggi, 951 F.2d 1368,
1376 (3d Cir. 1991).
“Whether the denial [of cross-examination] appears to have been harmfu
l depends on the
importance of the witness’ testimony, whether the testimony was cumula
tive, the presence or
absence of evidence corroborating or contradicting the testimony of the witnes
s on material points.
the extent of cross-examination otherwise permitted, and the overall strengt
h of the prosecu1ions
case.” Id.
The state court decision on this matter was neither contrary to. nor an unreas
onable
application of Supreme Court precedent. Petitioner has failed to demonstrate that
he was harmed

16

by the trial court’s decision to limit the scope of cross-exa
mination. See Riggi, 951 F.2d at 1376.
The defense theory of the case was that Obando was
an unfit mother who caused the death of her
child. The judge permitted defense counsel to questio
n the witness about her depression. l’he
record reflects that he did so consistently throughout trial.
(ECF No. 13-28 at 40: ECE No. I 3-3()
at 11.) Thus, defense counsel was able to pursue his
theory of the case, through which the
could draw appropriate inferences about the witness. Van
Arsdall, 475 U.S.

at

jur

680.

With respect to the child in Peru, defense counsel hoped
to bolster his theory of the case
based on extremely limited information gleaned from
the plea agreement record. Because crossexamination may be limited in the interests of fairness
and reliability, see Crane, 476 U.S. at 690,
the trial court’s decision finding the evidence speculati
ve and irrelevant was not unreasonable. See
United States v. Friedman, 658 F.3d 342, 356—57 (3d
Cir. 2011) (holding that because “limitation
on cross-examination did not inhibit [defense] argumen
t”, and ‘limitation was reasonable” it did
not deny defendant’s right to confront witnesses). Becaus
e the state court did not unreasonably
apply federal law, this claim for relief is denied.
D. Ground Four: Failure to Charge Aggravated Assa
ult

In Ground Four Petitioner alleges that the trial court erred
in failing to charge the jury on
aggravated assault as a lesser-included offense to murde
r. (ECF No. 1 at 10.) In support of his
claim, he explains that “[e]vidence existed [P]etition
er punched his co-defendant and some
punches contacted the victim.

.

.

supporting the fact he was guilty of only aggrav[a]ted assau
lt[.]”

(ECF No. I at 10.) Petitioner raised this issue on appeal
, and the Appellate Division found the
claim meritless without further explanation. 2 See Nieves,
2005 WL 2447795. at * 1.

2

Respondents contend that Grounds Four and Five are procedur
ally defaulted. To the extent
the claims are procedurally defaulted, this Court denies the
claims on the merits Sc c Haincen
Delaware, 212 F.3d 226, 251—51 (3d Cir. 2000) (exte
nding 28 LS.C’.
2254h)(2) vhich
.

17

Petitioner’s claim appears to rest on matters of state law. “[I}t is not the province of a
federal habeas court to re-examine state court determinations on state-law questions.” Estelle v.
McGuire, 502 U.S. 62, 67—68 (1991).

Consistent with this clearly established federal law,

questions relating to jury charges are normally matters of state law, and do not constitute claims
for federal habeas review. “[T]he fact that [an] instruction was allegedly incorrect under state law
is not a basis for habeas relief.” Id. at 71—72.
However, to the extent Petitioner’s argument can be construed as a federal claim, a habeas
court must consider whether the ailing instruction by itself so infected the entire trial that the
resulting conviction violates due process

.

.

.

not merely whether the instruction is undesirable.

erroneous, or even universally condemned.” Henderson v, Kibbe, 431 U.S. 145, 154 (1977)
(internal citation and quotation marks omitted). A state trial courts refusal to give a requested
jury instruction does not, by itself, create a federal habeas claim. Instead, a habeas petitioner must
establish that the instructional error “had [a] substantial and injurious effect or influence
in
determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation
and

quotation marks omitted). The error must have resulted in “actual prejudice.” Id at 637 (citation
omitted).
Significantly. the Supreme Court has never recognized that an individual has a due process
right to jury instructions on lesser-included offenses in non-capital cases

SeC. eg.. (Jilmorc’

‘.

Taylor, 508 U.S. 333, 342 (1993) (“[o]utside of the capital context. we have never said that the
possibility of a jury misapplying state law gives rise to federal constitutional error”); Beck v.
Alabama, 447 U.S. 625, 627 (1980) (holding it unconstitutional to impose a sentence of death

permits a federal court to deny unexhausted claims on the merits—to instances of procedural
default).
18

“when the jury was not permitted to consider
a verdict of guilt of a lesser included non-capital
offense”).
At the charging conference, the judge note
d that defense counsel requested a jury
instruction on aggravated assault as a lesser-inc
luded offense to murder. (ECF No. 13—29 at
43.)
The trial judge declined to give the charge,
stating he had not located any case law indicating
it
should be charged. (ECF No. 13—29 at 6.)
The state court decision on this matter was not
objectively unreasonable. The state court
found that the evidence did not support an instr
uction on aggravated assault. Based on the record,
the Court agrees and finds that Petitioner was
not deprived of a fair trial by the omission of jury
a
charge on aggravated assault. Dr. Timothy Yeh.
a State’s witness, testified that the baby’s death
was caused by multiple wounds inflicted that were
not accidental. (ECF No. 13-26 at 74 75.) Dr.
Yeh explained that the victim’s injuries were
the result of persistent pressure on the hah\ s hones
and were consistent with being shaken. (Id.)
Dr. Mark Rosovsky testified that the victim’s
fractures were consistent with children who
suffer non-accidental trauma, as the result of
“someone squeeze[ingj the baby too tight.” (ECF
No. 13-27 at 9.) He also testified that the brain
injury was likely the result of”[s]omeone smas
h[ing] the baby against a hard surface”. (Id.) Thus
,
Petitioner’s theory that he hit Obando and “som
e punches contacted the victim” which resulted in
the baby’s death, is not supported by the reco
rd. Further, Petitioner told Officer Thomas that
he
had dropped the baby on her head. (ECF No. 13-2
2 at 17, 39.) Additionally, Obando testified that
Petitioner hit the baby, shook her on more than
one occasion, and dropped her, (FCF No. 2 1—23.
)
While Obando did testify that at times when Petit
ioner hit her he also hit thc baby, the cihi ol
evidence at trial indicated that the victim’s
death was non-accidental and did not result from
punches directed at Obando. Consequently, there
was no rational basis for the jury to convict on

19

aggravated assault, as suggested by Petitioner. The state court’s decision in this regard was neither
contrary to, nor an unreasonable application of Supreme Court precedent. Accordingly. Petitioner
is not entitled to relief on this claim.
E. Ground Five: Ineffective Assistance of Counsel

In his final claim for habeas relief. Petitioner argues that his trial counsel was ineffective
in failing to interview two witnesses. Edwin Arca and his brother Eduardo Area. He explains that
the two individuals resided with Petitioner for a period and would have testified that “they never
observed him injure the victim.” (ECF No. I at 12.)
The Appellate Division on appeal from the denial of PCR denied this claim as follows:
To establish a claim of ineffective assistance of counsel, a defendant
must satisfy the two-part test established by Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
and adopted by our Supreme Court. State v. Fritz, 105 N.J. 42. 58
(1987). First, the defendant must show that his attorney ‘made
errors so serious that counsel was not functioning as the counsel’
guaranteed [tol the defendant by the Sixth Amendrnent.” Id. at 52
(quoting Strickland, supra, 466 U.S. at 687. 104 S. Ct. at 2064. 80
L. Ed. 2d at 693).
Second. the defendant must show that his attorneys “deficient
performance prejudiced the defense.” Ibid. (quoting Strickland,
supra, 466 U.S. at 687. 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The
defendant must establish that there is “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Ibid. (quoting Strickland, supra, 466
U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
Defendant alleged that his attorney was deficient because he failed
to call two witnesses in his defense, specifically Edwin Area and his
brother Eduardo Area. The PCR court correctly rejected this claim.
Determining which witnesses to call to testify is one of the most
difficult strategic decisions a trial attorney must make. State i’.
Arthur, 184 N.J. 307, 320 (2005).
A trial attorney must consider what testimony a
witness can be expected to give, whether the
20

witness’s testimony will be subject to
effective
impeachment by prior inconsistent stat
ements or
other means, whether the witness is
likely to
contradict the testimony of other wit
nesses the
attorney intends to present and thereby
undermine
their credibility, whether the trier of fact
is likely to
find the witness credible, and a variety
of other
tangible and intangible factors. Therefo
re, like other
aspects of trial representation, a defens
e attorney’s
decision concerning which witnesses to
call to the
stand is “an art,” and a court’s review
of such a
decision should be “highly deferential
.”
[Id. at 320—21 (citations omitted).]
Here, the PCR court correctly found that
defendant was not denied
the effective assistance of counsel becaus
e counsel did not call the
Area brothers at trial. Edwin Area and
his paramour shared the
apartment with defendant and Obando
at the time relevant to this
case. According to defendant, Edwin wou
ld have testified that he
did not mistreat or hurt the baby: how
ever. Edwin was not present
when defendant struck the child. Mo
reover, Eduardo never resided
with defendant and his family.
The record therefore supports the PCR
court’s finding that the
decision not to call these witnesses to
testify at trial was objectively
reasonable and defendant was not pre
judiced by the absence of their
testimony. As the court determined, def
endant has not shown that
the result here would have been differen
t if the Area brothers had
testified in his defense.
Nieves, 2013 WL 3213690. at *3_4•
The Sixth Amendment guarantees the
accused the “right

.

to have the Assistance of

Counsel for his defense.” U.S. Const. amen
d. VI. The right to counsel is the right to
the effective
assistance of counsel, and counsel can dep
rive a defendant of the right by failing to ren
der adequate
legal assistance. See Strickland v. Washing
ton, 466 U.S. 668, 686 (1984). A claim that
counsel’s
assistance was so defective as to require
reversal of a conviction has two compon
ents. both of
which must be satisfied. Id. at 687. First
, the defendant must “show that counse
l’s representation
fell below an objective standard of
reasonableness.” Id. at 687—88. To mee
t this prong. a
21

“convicted defendant making a claim of ineffective assistance must identify the acts or omissi
ons
of counsel that are alleged not to have been the result of reasonable professional judgment.” Id.
at
690. The court must then determine whether, in light of all the circumstances at the time,
the
identified errors fell ‘below an objective standard of reasonab1eness.’ Hinion v. ,rl!aha,na. 134 S.
Ct. 1081, 1088 (2014).
Second, a petitioner must establish that counsel’s “deficient performance prejudiced the
defense so as to deprive the defendant of a fair trial.” Strickland, 466 U.S. at 669. To establi
sh
prejudice, the defendant must show that “there is a reasonable probability that the result of trial
would have been different absent the deficient act or omission.” Id. at 1083. On habeas review,
it is not enough that a federal judge would have found counsel ineffective. The judge must find
that the state court’s resolution of the issue was unreasonable. Harrington. 562 U.S. at 101.
In support of his PCR Petition. Petitioner submitted a certification in which he stated that
Edwin Area and his brother Eduardo Area would have testified that Petitioner never hurt his child.
(ECF No. 13-16 at 118—19.) The certification states that Edwin rented the house where Petitioner,
Obando and the baby resided. (Id. at 118.) It further states that Edwin “waS present at the home
all the time when not working and was able to testify that I did not mistreat or hurt my child.

.

My attorney said that he had spoken with Mr. Arca but that his testimony would have been no
help. Mr. Area was present at the trial ready to testify but was not called.” (Id.) Petitioner also
stated that Eduardo Area had previously moved out of the home but ‘was at the home a lot for
meals and socializing and was also able to testify as to my care of my child.” (Id. at 118—19.)
The Appellate Division’s decision does not amount to an unreasonable application of
Strickland. The certification alone is simply not enough to demonstrate that trial counsel was

deficient in failing to call the witnesses. Obando testified that Petitioner mistreated her and the

22

victim in their bedroom, with no one else present. (ECF No. 13-28 at 37—38.) She also testified
that Petitioner told her he dropped the victim outside. (Id. at 23.) The fact that these two witnesses
would have allegedly testified that they never saw Petitioner mistreat the baby, does not account
for the times when Petitioner was alone with Obando and the baby, Thus. Petitioner has failed to
demonstrate that his counsel was deficient under Strickland. See Henderson v. DiGuglielmo, 1 38
F. App’x 463, 469 (3d Cir. 2005) ([c]ounsel’s failure to call a witness is precisely the sort of
strategic trial decision that Strickland protects from second-guessing.’) (internal quotation marks
and citation omitted); Hess v. Mazurkiewicz. 135 F.3d 905, 908 (3d Cir. 1998) (“[ojur review of
ineffective assistance of counsel claims does not permit us, with the benefit of hindsight, to engage
in speculation about how the case might best have been tried. We therefore accord counse
l’s
strategic trial decisions great deference.”)
Moreover, even if trial counsel was deficient in not calling the Area brothers as witnesses,
Petitioner still has not proven that, “but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” See Strickland, supra. 466 U.S. at 694. Petitioner made
various incriminating statements, and Obando gave detailed testimony of his abuse of the child.
Therefore, Petitioner has failed to demonstrate that calling the witnesses would have changed the
outcome of the trial. Because the state court’s reasoning does not amount to an unreasonable
application of Strickland, this claim is denied.
V.

CERTIFICATE OF APPEALABILITY

Under 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

23

____

____

___

of his constitutional claims or that jurists could conclude that the issues presen
ted here are adequate
to deserve encouragement to proceed further.” Miller-El u. Cockreii. 537 U.S. 322.
327 (2003):
see also Slack v. McDaniel. 529 U.S. 473, 484 (2000). Because jurists of reason
would not
disagree with this Court’s conclusion that Petitioner has failed to make a substa
ntial showing of
the denial of a constitutional right, Petitioner’s habeas petition is inadequate
to deserve
encouragement to proceed further. Accordingly, a certificate of appealability is denied
.
VI.

CONCLUSION
For the reasons stated above, the Petition for habeas relief is DENIED and Petitioner is

DENIED a certificate of appealability. An appropriate order follows.

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Madeline Cox Arleo
United States District Judge

24