CHAVIS v. NOGAN et al

Filing 12

OPINION. Signed by Judge Madeline Cox Arleo on 2/27/18. (sr, )

NOTFOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RENALDO CHAVIS.

Civil Action No.: 15-250 (MCA)
Petitioner,

v.

OPINION

PATRICK NOGAN, et al.,
Respondents.

APPEARANCES:
Renaldo Chavis
Bayside State Prison
P.O. Box Fl 4293
Route 47
Leesburg, NJ 08327
Petitioner, pro se
Lucille M. Rosano
Essex County Prosecutor’s Office
Essex County Veterans Courthouse
50 West Market St.
Newark, NJ 07102
On behalf of Respondents.
Arleo, United States District Judge
I.

INTRODUCTION
Petitioner Renaldo Chavis (“Petitioner”) has filed apro se Petition (ECF No. 7.) 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.

II.

FACTUAL BACKGROUND & PROCEDURAL HISTORY

On December 6. 2002.

a jury in

New Jersey Superior Court. Essex County found Petitioner

guilty on charges of second-degree reckless manslaughter. second-degree aggravated
assault. and
third-degree unlawful possession of a weapon. (ECF No. 7-5 at 2.) Petitioner was
acquitted on
the charges of murder, attempted murder, aggravated manslaughter, possession
of a firearm with
the purpose to use it against Terrell Germany and possession of a firearm with the
purpose to use
it against Moresse Germany. (ECF No. 7-32 at 3 8-39.) The charges stemmed from
the shooting
of two men, one of whom succumbed to his injuries shortly thereafter, outside of
a nightclub in
Irvington, New Jersey on March 25, 2001. At Petitioner’s trial, the surviving victim
as well as
other patrons and employees of the nightclub testified about the events surrounding
the shooting
as well as the shooting itself. (ECF No. 7 at Exhibits 24-31.)
On January 10, 2003, the court entered a judgment of conviction (.JOC’), and Petitio
ner
was sentenced to an aggregate 20-year term of imprisonment, subject to the No Early
Release Act
çNERA), N.J.S.A. 2C:43-7.2, requiring Petitioner to serve 85% of the sentence withou
t parole
eligibility. (ECF No. 7-5 at 2.)
Petitioner appealed his conviction to the New Jersey Superior Court, Appellate Divisio
n.
(ECF No. 7-7 at 168-69.) On October 15, 2004, the Appellate Division affirmed the convic
tion.
(ECF No. 7-9 at 2-2 1.) Petitioner sought certification from the New Jersey Suprem
e Court, but
his petition was denied on May 25, 2005. State v. Chavis, 183 N.J. 591 (2005).
Petitioner then filed a petition for post-conviction relief (“PCR”) on July 8. 2005. (ECF
No. 7-11.) The PCR Court denied relief on .July 28. 2006, and Petitioner filed a late-no
tice of
appeal on July 24, 2007. (ECF No. 7-12 and 7-15.) On July 19. 2011, the Appellate Divisio
n
affirmed in part and remanded in part the PCR Court’s decision. (ECF No. 7-17 at 26.)

The PCR court denied relief afier holding an evidentiary hearing on July 8, 2011. (ECF No. 7-35.
ECF No. 7-18.) Petitioner appealed on November 30, 2011. (ECF No. 7-19 at 3-4.) The Appellate
Division granted Petitioner’s motion to file as within time on January 12, 2012, but denied his
motion for reconsideration. (ECF No. 7-19 at 6 and 7-22 at 2-12.) On October 9. 2014, the New
Jersey. Supreme Court denied Petitioner’s petition for certification. Stale v. Chavis, 220 N.J. 39

(2014).

Petitioner filed the instant petition for habeas relief under

§ 2254 on January 8. 2015.

(ECF No. 1 at 17, 19.) Respondents filed their full Answer on September 11. 2015. (ECF No.
7.)
Petitioner filed a traverse on February 11, 2016. (ECF No. 8.) The matter is fully briefed and
ready for disposition.
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.
Effective Death Penalty Act, 28 U.S.C.

§ 2254, as amended by the Antiterrorism and

§ 2254 (“AEDPA”), federal courts in habeas corpus cases

must give considerable deference to determinations of state trial and appellate courts. See Renico
Len, 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 ot clearly established Federal law, as determined by the
Supreme Court of the United States; or

-3

(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 decisio ‘was
n
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 determ
ination of the
facts in light of the evidence presented in the State court proceeding.” Parker v.
Matthews, 567
U.S. 37, 40-4 1 (2012) (quoting 28 U.S.C.

§ 2254(d)).

“[C]learly established law for purposes of

§

2254(d)(l) includes only the holdings. as

opposed to the dicta, of [the Supreme Court’s] decisions,” as of the time of the relevan
t state-court

decision. White v. Woodail, 134 S. Ct. 1697, 1702 (2014) (quoting Williams v. Thy/or
, 529 U.S.
362, 412 (2000))). If a decision is “contrary to” a Supreme Court holdin within
g
28 U.S.C.

§

2254(d)(1), a federal habeas court may grant the writ if the state court identif
ies 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)(l), a federal court must confine its examination to evidence in the record
. Cu/len v.
Pinhoister, 563 U.S. 170, 180-8 1 (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 necess
arily apply.
First, AEDPA provides that a determination of a factual issue made by a
State court shall he
presumed to be correct [and] [t]he applicant shaH have the burden of rebutting the presum
ption of
corrections by clear and convincing evidence.” 29 U.S.C.

4

§ 2254(e)(1); see I’.ii/ier-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)(l)(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
(3d. Cir. 2007) (citing Stevens v. Delaware Corr. Cir., 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. Bendoiph, 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. Cii’. 2004).

This procedural bar applies oni

when the state rule is

“independent of the federal question presented] and adequate to support the

judgrnent.’

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 ofjustice.” 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 andlor 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 ofpetitioner’sj

5

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”).
IV.

ANALYSIS

The Petition raises six grounds for relief, five 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. Ineffective Assistance of Counsel
The Supreme Court set forth the standard by which courts must evaluate claims of
ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). 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 the
deficient performance prejudiced the defense. Id. This requires showing that counsel’s errors
deprived the defendant of a fair trial. Id.
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.” Id. 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

6

(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.
When assessing an ineffective assistance of counsel claim in the federal habeas context.
“[tjhe pivotal question is whether the state court’s application of the Strickland standard was
unreasonable,” which is different from asking whether defense counseFs performance fell below
Strickland’s standard.” Grant v. Locket!. 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 [directi review under the Strickland standard itself.” Id.
Federal habeas review of ineffective assistance of counsel claims is thus “doubly deferential.” Id.
(quoting Cullen v. Pinhoister, 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). “With respect to the sequence of
the two prongs, the Strickland Court held that ‘a court need not 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)).
1. Ground One: Ineffective Assistance of Trial Counsel for Failure to assert a SelfDefense Claim and Failure to Object to Trial Court’s Exclusion of a Self-Defense
Jury Instruction
Ground One of the Petition alleges that Petitioner was deprived of his Sixth Amendment
right to effective counsel due to trial counsel’s failure to pursue a theory of self-defense.
Specifically, Petitioner claims that counsel should have presented the self-defense theory in

7

addition to the misidentification theory which he employed at trial. (ECF No. 1 at 36). Petitioner
first raised this ineffectiveness claim before the Appellate Division on direct appeal.
Petitioner’s claim is based on trial counsel’s strategic decision not to pursue a self-defense
theory as an alternative to the mistaken identity theory that he presented at trial and counsel’s
alleged failure to object to the trial court’s omission of a self-defense jury instruction. He submits
that “there was ample testimony elicited, which supported the defense of self-defense” at his trial.
(ECF No. 1 at 24.) Petitioner then goes on to cite excerpts of trial testimony that support his
misidentification defense but do very little to support a self-defense theory. (Icr at 25-36.) The
only cited testimony that arguably would have supported a self-defense theory, is that of the
surviving victim Moresse Germany, recounting the decedent Terrell Germany’s statement that he
would “take care of it”, shortly before the shooting that took his life and left his brother injured.
(Id. at 27.) Petitioner argues that this testimony demonstrated Terrell Germany’s resolve to avenge

his brother who was just punched by another man who was later identified as Petitioner.
On appeal, Petitioner argued that the trial evidence supported the affirmative defense of
self-defense, particularly: (1) the surviving victim’s testimony that he provided contradictory
statements about whether he punched Petitioner back, (2) testimony that the Germany brothers
both consumed alcohol and marijuana in the hours leading up to the altercation, (3) that Terrell
Germany confronted Petitioner in response to his brother Moresse’s provocation “to avenge the
alleged assault by attacking appellant”. (4) Terrell Germany’s imposing size, standing at 5’9” and
weighing 297 pounds (5) Petitioner’s having been “cornered” by the Germany brothers after
,
1
Petitioner punched Moresse Germany. (ECF No. 7-7 at 58-59.)

Respondent submits that the medical examiner testified at trial that Terrell Germany’s weight
immediately before his death was “significantly more” than his normal weight as a result of
fluids used shortly after the shooting that expanded the volume of his body. (ECF No. 7 at 15.)
8

Respondents argue that the state court’s denial of this claim was reasonable. (ECF No. 7
at 23.) Moreover, Respondents direct this Court’s attention to the state court’s reasoning that a
self-defense claim would have been in direct conflict with Petitioner’s trial defense theories of
misidentification and sloppy police work. (Id. at 27.)
The Appellate Division disagreed with Petitioner’s contention that trial counsel’s strategy
to not raise self-defense was deficient. It noted:
The record on appeal contains conflicting testimony on the issue of
whether defendant had been present at the time of the shooting.
Thus, the defense strategy to highlight the State’s alleged failure to
prove defendant had been present was not ill-conceived. It follows
that a choice not to request a self-defense charge would be in
keeping with this strategy.
(ECF No. 7-9 at 16-17.)
Under New Jersey law, a”person may justifiably use force against another if he reasonably
believes that such force is immediately necessary for the purpose of protecting himself against the
use of unlawful force by such other person on the present occasion.” State v. Galicia, 45 A.3d
310. 325 (N.J. 2012). Therefore, a defendant must have had “an actual, honest, reasonable belief
in the necessity of using force.” Id. (internal quotations omitted). The use of deadly force is not
justifiable, “unless the actor reasonably believes that such force is necessary to protect himself
against death or serious bodily injury and is not justifiable if the actor knows he can avoid the
necessity of using it with complete safety by means of a retreat.” Id. (internal quotations omitted).
In this case, the facts elicited at trial show that prior to the shooting. Petitioner, despite
having just had a heated exchange with the Germany brothers, freely walked away from and back
towards the victims. (ECF No. 7-24 at 64-65.) On direct examination. Moresse Germany testified:
[Petitioner] came walking to me after he said that like he was going
to shake my hand so I thought that it finished like as far as leaving
everything alone but that’s when he got between me and my brother
9

and he turned around and shot my brother. My brother fell face first
and he turned back to me and pointed the gun at me.
(Id.)
Petitioner appeared to not only be free to walk to and from the victims, but he also appeared
to have given at least one of the victims the impression that the matter had been settled. Thus,
under the circumstances, Petitioner could not have had a reasonable belief that his life was
presently in such a danger that warranted use of deadly force. Giving the proper deference to the
Appellate Division’s determination that self-defense was not a realistic strategy under the
circumstances, a finding which is fully supported by the relevant facts, this Court cannot find that
counsel was unreasonable in choosing not to pursue a self-defense strategy here. Moreover,
because a self-defense theory is insupportable under these facts, Petitioner suffered no prejudice
as a result of counsel’s strategic decision, and thus Petitioner cannot show that counsel was
ineffective for that reason as well. The state courts denial of this claim was not an unreasonably
application of Strickland nor was the denial based on an unreasonable determination of the facts.
Additionally, Petitioner asserts that counsel failed to object when the trial court excluded
a self-defense jury instruction, thus prohibiting the jury from considering the self-defense theory
in addition to the misidentification defense theory.
On direct appeal, the Appellate Division examined the trial testimony and counsel’s
strategy and explained that a self-defense jury instruction could have been detrimental to
Petitioner’s defense. (ECF No. 7-9 at 14.) The Appellate Division reasoned that defense counsel’s
strategy to highlight the possibility of Petitioner being misidentified as the perpetrator in the
shooting was evident from trial testimony eliciting information such as Petitioner’s regularly being

10

confused with another individual. Edwards, and testimony that Petitioner already left the club by
the time of the shooting. (Id.)
A jury instruction is only proper when there is an evidentiary basis on which to premise
the instruction. See United States v. Wrensford. 866 F.3d 76, 91 (3d Cir. 2017) (citing Bishop v.
Mazurkiewicz, 634 F.2d 724, 725 (3d Cir. 1980)). As noted above, the evidence presented at trial
did not warrant a jury instruction on self-defense. “[Cjounsel cannot be found ineffective for
failing to raise a meritless claim.” Werts v. Vaughn, 228 F.3D 178, 203 (3d Cir. 2000).
For these reasons, the state court denial of this claim was also not an unreasonable
application of Strickland. The testimony of the surviving victim and the other eye-witnesses would
have directly contradicted a theory of self-defense. As such, this claim is denied.
2.

Ground Two: Ineffective Assistance of Trial Counsel for Failure to Object on Brady
Grounds

In Ground Two, Petitioner alleges that he was denied his Sixth Amendment right to counsel
due to trial counsel’s failure to raise a violation under Brady v. Maryland, 373 U.S. 83 (1963).
Petitioner now claims as he did in his PCR proceeding, that trial counsel failed to object to the
prosecution’s withholding of Moresse Germany’s written statement that was provided shortly after
the shooting to the investigating detective.

(ECF No. 1 at 40.)

Petitioner first raised this

ineffectiveness claim during his PCR proceeding. As a result, the PCR Court determined that the
claim was barred under NJ Rule 3:22-4 and did not meet any of the exceptions. (ECF No. 7-12 at
6.) Notwithstanding this, after conducting the proper analysis, the PCR Court deemed the claim
unmeritorious.

(Id. at 7-10.)

This Court will consider the merits of this claim despite the

procedural default question. See Lambrix v. Singlerary, 520 U.S. 518, 525 (1997) (explaining that

11

“[j]udicial economy might counsel” bypassing a procedural-default question if the merits “were
easily resolvable against the habeas petitioner”)).
At trial, Germany provided testimony about his initial meetings with Detective Holmes,
including the first meeting, where he was not able to speak to the detective as he was still
recovering from his injuries. (ECF No. 7-24 at 71-72.)
Petitioner bases this claim on the following trial testimony from Moresse Germany:

Q: Now did there come a time thereafter while you were in the hospital that a detective
came to see you?
A: Yes.

Q: Do you recall his name?
A: Dt. Holmes.

Q: And while you were at the hospital were you able to speak to him verbally?
A: No.

Q: You couldn’t.
A: I had to write it down on a piece of paper, some paper.

Q: Did he come more than once to see you?
A: Yes.

Q: Did there come time when he was able to speak to you?
A: Yes.

Q: You were able to speak to him?
A: Yes.

Q: Did you remember if you looked at any photographs?
A: Yes.

12

Q: And where was that?
A: In the hospital.

Q: How were those photographs presented to you? By whom?
A: By Dt. Holmes. It was a little chart, I think it was like three people up top and three
people down the bottom.

Q: Okay. And you said people. What kind of people were in it?
A: All men, all guys.

Q: What color?
A: Black guys, bald head.

Q: Okay, And can you tell the members of the jury how these photographs were shown
to you? What you said if anything, what you did?
A: He just showed me them and asked me “Do you see the guy who shot you?” I said
“Yeah.” He told me to point him out and I pointed to the picture of Reynaldo Chavis.

Q: Did you do anything to the picture?
A: No, I just turned it over and signed it.

Q: Okay. What is the date on that you signed it?
A: 3/27/2001.

Q: Now, at some point were you released from the hospital?
A: Yes.

Q: And did you recall if you again spoke to the police?
A: Yes, once I got to my mom’s house.

Q: Who was that?
A: Dt. Holmes.

13

Q: All right. At that time, were you able to (remainder of this line is illegible)
A: Yes.

Q: And did you say Dt. Holmes took a statement from you?
A: Yes.

Q: Was it in written form.
A: No, typed.

Q: Typed?
A: Typed.

Q: Now did Dt. Holmes tell to you what to say in that statement?
A: No.

Q: Did he promise you anything if you gave a statement?
A: No.

Q: After he took the statement, did you read it sir?
A: Yes.

Q: Were you able to read it.
A: Yes.

Q: I am going to show you S 23 for identification.
THE COURT: Do you recognize what this is.

Q: What is it?
A: The statement I took at my mom’s house with Dt. Holmes.

Q: And how do you know it’s your statement?
A: Because I corrected

-

-

I put my initials by it.

Q: Did you sign the bottom?

14

A: Yes.

Q: You don’t remember? Now, I just want to show you something in your statement. You
gave this statement on what date, sir? Do you remember the date?
A: No.

Q; All right. Showing you the statement, does it refresh your recollection as to what you
gave it?
A: Yes.

Q: What date?
A: April

th
25

(ECF No. 7-24 at 7 1-74 and 76-79.)
The testimony supports Respondents’ submission, that the only written statement was that
which Germany provided to the detective on April 25, 2001, a month after the shooting. As for
Germany’s first meeting with Detective Holmes, it appears that the photo array where Germany
identified the Respondent’s photograph and signed and dated the back, was the only document
obtained. The record suggests that trial counsel’s reason for not objecting on Brady grounds, is
because it was clear that Moresse Germany did not provide a written statement prior to the one
given on April

th,
25

which was entered into evidence.

Under Brady, “the suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material to either guilt or to punishment

.

.

.

373 U.S. at 87. To establish a Brady violation, a defendant must show that: (1) the evidence at
issue is favorable, either because it is exculpatory or because it is impeaching; (2) the evidence
was suppressed by the state, either willfully or inadvertently; and (3) the omission of this evidence
prejudiced the defendant. Strickler v. Greene, 527 U.S. 263, 28 1-82 (1999).

15

Here, counsel’s performance was not deficient for failing to compel the introduction of a
non-existent piece of evidence. The PCR Court found that, “Petitioner has not made a prima facie
showing that any such statement as he describes ever existed or that it contained any exculpatory
or contradictory material” and as such trial counsel could not have been ineffective for raising a
meritless issue. (ECF No. 7-12 at 9.) The state court could not conduct a Brady analysis because
Petitioner did not establish that this exculpatory or impeaching material even existed.
Accordingly, the PCR Court properly applied federal law in evaluating Petitioner’s ineffective
assistance of counsel claims with respect to Moresse Germany’s purported undisclosed writing.
Thus, Petitioner is not entitled to federal habeas relief on this claim.
3. Ground Three: Ineffective Assistance of Appellate Counsel for Failure to Raise the
Issue of the Trial Court’s Admission of Purported Hearsay
In Ground Three, Petitioner asserts that appellate counsel was ineffective for failing to
appeal the admission of witness Ayeesha Crawford’s testimony, where she repeated decedent
Terrell Germany’s, out-of-court statement identifying Petitioner as the assailant. (ECF No. 1 at
18-19.)
a. Exhaustion
In their Answer, Respondents argues that Petitioner should be precluded from raising this
claim because it is unexhausted. (ECF No. 7 at 37.) Petitioner first presented this claim in the
PCR proceeding. (ECF No. 1 at 20.) However, upon the PCR court’s denial of this claim, he did
not raise this issue in the appeal of the PCR decision. (ECF No. 15 and No. 17 at 5-6.) 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).

16

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.” Granberi

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)).
b. Merits of Petitioner’s Claim
Ineffective assistance of appellate counsel is judged by the Strickland standard. See
Albrechtv. Horn, 485 F.3d 103, 137 (3d Cir. 2007) (quoting United States

v. Mannino.

212 F.3d

835, 840 n.4 (3d Cir. 2000)).
Decedent Terrell Germany’s fiancé, Ayeesha Crawford, testified that she ran to Terrell
immediately after he was shot, (ECF No. 7-26 at 103.) When Crawford asked Terre!!, ‘are you
okay?”, Terrell replied, “Yeah. Ray shot me.” (Id.) Prior to Crawford taking the stand, one of the
investigating detectives testified that Crawford repeated Terrell Germanys statement, identifying
his assailant, when she spoke with the detective. Trial counsel preemptively objected to the
hearsay testimony before Crawford took the witness stand. (Id. at 86-88.) The trial judge agreed
that it was a hearsay statement but that it qualified under the excited utterance and/or dying
declaration exceptions to the prohibition on hearsay. (Id. at 87.)
In addressing Petitioner’s ineffectiveness claim, the PCR court stated:
The statement in question was not improperly considered a dying
declaration. In fact, although the trail [sic] court stated that the
statement could have fallen under the dying declaration or present
sense impression exception to the hearsay rule. it was actually
17

admitted as an excited utterance. Petitioner makes no contention
that the statement does not constitute an excited utterance and any
such contention, if made, would fail. Thus, Appellate counsel
cannot be deemed ineffective for failing to raise this meritless issue
on appeal.

(ECFN0. 7-12 at 11.)
Petitioner argues that the trial court’s admission of Terrell Germany’s statement violates
the Confrontation Clause of the Sixth Amendment.

(ECF No. I at 41.)

The standard for

determining Confrontation Clause violations in criminal trial proceedings was outlined in the
United States Supreme Courts opinion in Crawford v. Washingion. 541 U.S. 36 (2004).

In

Craiford. 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.
Here, the statement at issue fits squarely within the excited utterance exception to the
hearsay law. See Fed. Rule Evid. 803(2). This rule allows the use of statements “relating to a
startling event or condition made while the declarant was under the stress of excitement caused by
the event or condition.” Id. The declarant, Terrell Germany, who was lying in his fiancé’s lap
mere seconds after he was shot, identified his assailant in response to her questioning him about
whether he was okay. Assuming arguendo that Germany made that same statement to police
officers instead of his civilian fiancée, it would still arguably he considered non-testimonial.
Michigan v. Bryant. 562 U.S. 344. 368 (2011) (“[d]uring an ongoing emergency, a victim is most
likely to want the threat to her and to other potential victims to end, but that does not necessarily
mean that the victim wants or envisions prosecution of the assailant.”))
Petitioner argues that he received ineffective assistance of appellate counsel because the
attorney that represented him at the direct appeal stage failed to raise the trial court’s erroneous
18

admission of the purported hearsay. However. 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 subsequent sidebar discussion provided a robust record for direct
appeal counsel to analyze. After reviewing the trial court’s basis for admitting the contested
statenient, appellate counsel may have deemed it an unmeritorious argument to raise before the
Appellate Division.

Moreover, appellate counsel may have considered the unlikelihood of

satisfying Strickland’s prejudice prong even if he did raise this claim.
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).
4. Ground Four: Ineffective Assistance of Appellate Counsel for Failure to Raise the
Trial Court’s Admission of Prejudicial Evidence
In Ground Four, Petitioner asserts that appellate counsel was ineffective for failing to
appeal the improper admission of a crime scene photograph from an unrelated case. (ECF No. 1
at 43-44.) It is noteworthy to mention that this claim is the most extensively-litigated claim in this
petition.
By way of background, this claim stems from the trial prosecutor’s decision to affix a crime
scene photograph to one side of a previously used poster board. (ECF No. 7-25 at 6.) The other
side of the poster board had a sketch depicting a crime scene from an unrelated homicide. (Id. at
6.) Upon showing this evidence to defense counsel before the start of witness Moresse Germany’s
testimony, defense counsel indicated that there was an unrelated homicide sketch on the back of
the poster board. (Id.) The prosecutor tried to remove the unrelated image without doing damage

19

to the entire poster board. (Id.) The trial resumed before the prosecutor could successfully remove
the unrelated image, therefore prompting the prosecutor to make sure that the jury could not see
the backside of the poster board in question as she was examining the witness about the
photograph’s contents. (Id. at 7.) The relevant image was admitted into evidence as S-47A over
defense objection. (Id.)
2
Petitioner first raised this claim in the PCR proceeding. (ECF No. 7-12 at 3.) Petitioner’s
appeal of the PCR denial resulted in a partial remand by the Appellate Division on the basis of this
particular claim. (ECF No. 7-17 at 19-22, 26.) The Appellate Division determined that the record
was devoid of any factual finding to support that appellate counsel’s performance was not
deficient. (ECF No. 7-17 at 22.) As a result, an evidentiary hearing was conducted before the trial
court. The assistant prosecutor who tried the case, served as the sole witness called to testify at
the evidentiary hearing. (ECF No. at 7-22 9 and No. 7-3 5.) She testified that upon realizing that
the photograph from the unrelated homicide was on the back of the poster, she decided to
physically hold the poster board up for the jury panel to see, rather than publishing the exhibit and
allowing the jury to physically handle the evidence. (ECF No. 7-35 at 7.) Additionally, she
testified that the unrelated image was removed from the poster board before the evidence was
submitted to the jury for deliberation and that defense counsel acknowledged this correction on
the record. (Id. at 7-8, 16.) Upon the close of the state’s case at the evidentiary hearing, the defense
proffered that the trial defense counsel’s testimony would be necessary to corroborate Petitioner’s
claims. (Id. at 16-17.) The judge denied PCR counsel’s request for an adjournment, reasoning

It should be noted that Respondents have not provided the portion of Petitioner’s postconviction relief filing where this particular claim was raised.

2

20

that PCR counsel had sufficient time to arrange for potential witnesses to make themselves
available for the evidentiary hearing. (Jd at 17.)
The PCR Court once again denied Petitioner’s application for relief after it made several
findings of fact. (Id. at 18-19.) Among other things, it found that the unrelated homicide image
was never viewed by the jury and that the image was eventually removed by the prosecution before
the evidence was sent to the jury room. (Id at 18.)
Petitioner appealed the PCR denial, asserting that the evidence presented at the evidentiary
hearing supported his ineffective assistance of appellate counsel claim and that remand is
appropriate so that he can call his trial attorney to testify. (ECF No. 7-20 at 15-29 and 7-22 at 8.)
The Appellate Division disagreed with Petitioner’s arguments. determining that the evidentiary
hearing established “that the jury did not see the irrelevant sketch and as such rendered his
ineffective assistance of counsel claim unmeritorious because he cannot meet Strickland ‘s second
requirement that petitioner demonstrates that the deficient performance was prejudicial. (ECF No.
7-22at11.)
Here, the Court agrees that even assuming appellate counsel was ineffective for failing to
raise the issue, Petitioner cannot show that he was prejudiced in light of the fact that the jury did
not view the unrelated image. As such. Petitioner fails to show that the state court unreasonably
applied Strickland or that the denial of this claim was the result of an unreasonable determination
of the facts. The Court will therefore deny habeas relief on this ground.

21

5. Ground Five: Ineffective Assistance of Appellate Counsel for Failure to
Challenge the Sentence
In Ground Five, Petitioner alleges that appellate counsel’s failure to challenge his sentence
enhancement resulted in his ineligibility to potentially obtain relief vis-à-vis the Supreme Court’s
decision in Blakely v. Washington, 542 U.S. 296 (2004).
Petitioner first challenged the illegality of his sentence in his pro se PCR petition filed on
June 30, 2005. (ECF No. 7-11.) While Petitioner did not formulate any arguments about why the
sentence was illegal, he attached a law journal article that addressed the then-recent Blakely
decision. (Ià at 9.) Petitioner’s direct appeal was decided on October 15, 2004, four months after
the United States Supreme Court issued its Blakely decision. Petitioner now contends that he
alerted his appellate counsel of the Blakely decision and requested that counsel file supplementary
arguments to his then-pending direct appeal, in the wake of the new law. (ECF No. 1 at 45).
.”
3
Appellate counsel advised that he “would raise the claim on PCR as an illegal sentence motion
(Id.)
In Blakely, the United States Supreme Court held that the state trial court’s imposition of a
sentence enhancement that resulted in a sentence significantly over the statutory maximum without
ajury fact-finding is in violation of the defendant’s Sixth Amendment right. See Blakely, 542 U.S.
at 303, 308, 314-15. In the wake of the Blakeley decision, the Supreme Court of New Jersey
modified New Jersey’s Code of Criminal Justice’s scheme of presumptive sentencing by holding
that “a sentence above the presumptive statutory term based solely on a judicial finding of
aggravating factors, other than a prior criminal conviction” constituted a Sixth Amendment

Petitioner attached the referenced correspondence to his PCR application. (ECF No. 7-11 at
47-49.) It is unclear from those letters whether appellate counsel was alerted to the Blakely
decision before or after Petitioner’s conviction was affirmed on direct appeal.
22

violation. State v. Natale, 184 N.J. 458, 466 (2005). This decision also compelled the Court to
eliminate presumptive statutory terms. Id. at 487. The Natale court’s holding was a balancing act
in which the state complied with the Blakely decision while also maintaining the integrity of the
New Jersey Code. Id. at 489.
At the time of Petitioner’s sentencing, state law permitted the “sentencing court the limited
power to depart from the presumptive terms in NIS.A. 2C:44-1(t)(1) if it found a preponderance
of aggravating or mitigating factors. Natale, 184 N.J. at 484 (citations omitted). The sentencing
court here did not give any indication that it was considering the presumptive term, but even
assuming for argument’s sake that it was, Petitioner has not established how the new rule would
have lowered his sentence. Petitioner, who was convicted of two second degree offenses. faced a
statutory sentencing range of five to ten years on each of those counts, N1S.A. 2C:43-6(a)(2), and
a presumptive range of seven years. IVJ.S.A. 2C:44-1(f)(1)(C). However, the sentencing court
found five aggravating factors, one of which was based on a prior criminal conviction for a violent
offense, and no mitigating factors, before it sentenced Petitioner at the highest end of the
sentencing range. (ECF No. 7-33 at 23-25.)
The PCR Court found that Petitioner did not show that his sentence would have been
lowered had appellate counsel raised the issue on direct appeal in light of the sentencing court’s
findings of several aggravating factors and a lack of mitigating factors. (ECF No. 7-12 at 13.)
Furthermore, the PCR Court hypothesized what effect a resentencing pursuant to Na/ale would
have had on Petitioner’s sentence- none. (ECF No. 7-12 at 13.) The Appellate Division agreed
with the PCR Court’s supposition. (ECF No. 7-17 at 18.)
Due to the manner in which the trial judge addressed this claim of
ineffective assistance, defendant was afforded that relief as well.
The judge found: “[Rie-sentencing [pursuant to Natale and without
reference to the former presumptive sentencej would not have
23

resulted in any substantive change to the Petitioner’s sentence.”
From our review of the transcript of the initial sentencing
proceeding, the record supports the judge’s assessment. There is no
indication that the trial judge gave any consideration to the
presumptive sentences when he sentenced defendant in the first
instance. Accordingly, defendant cannot establish prejudice within
the meaning of Strickland.
Id.
The state courts essentially concluded that Petitioner had not established a claim for
ineffective assistance of his appellate counsel because he had not demonstrated prejudice.
Specifically, the state courts found that the arguments Petitioner raised in his PCR proceeding
lacked merit and therefore would not have succeeded if his appellate counsel had raised them on
direct appeal. As such, Petitioner could not establish a reasonable probability that the outcome of
his appeal would have been different but for this supposed deficient performance by appellate
counsel. This Court finds that the state court’s decision was not an unreasonable application of
Strickland’s prejudice prong. Thus, Petitioner is not entitled to habeas relief on this claim.
Accordingly, all of Petitioner’s claims of ineffective assistance of trial/appellate counsel
are denied.
B.

Prosecutorial Misconduct

Finally, Petitioner alleges that prosecutorial misconduct during direct examination of
witness Ayeesha Crawford was in violation of his right to fair trial and due process. Petitioner
first raised this claim on direct appeal. (ECF No. 1 at 37.)
Petitioner contends that the prosecutor deliberately elicited the improper testimony and
.
4
failed to take “the requisite steps to ensure that his witnesses did not refer to ‘mug shots’ or any

Petitioner argues that Crawford initially referred to the photographs as mug shots” and further
along in her testimony, described them as photographs of ‘people that commit crimes.” The trial
transcript does not contain any testimony where Crawford used the phrase “mug shots.” For that
matter, the entire colloquy that Petitioner cites on page 14 of his petition is not in the trial
24

prior indications of arrest. (Id.) He argues that the witness’s testimony was prejudicial in that it
suggests that Petitioner had been arrested before and was predisposed to commit the crime as
charged. The Appellate Division noted that the reference was used once, in a ‘fleeting” manner

and had very little potential to impact the jury’s decision. (ECF No. 7-9 at 21.)
On direct examination, witness Ayeesha Crawford, testified about an out of court
identification she made of the Petitioner. (ECF No. 7-26 at 117-118.) When asked to describe the
identification process, the following colloquy ensued:

Q: Now did there come a time while you were at headquarters either before or after giving
the statement that you looked at some photographs?
A: Yes.

Q: Do you recall how those were presented to you?
A: Yes, it was a cardboard like six pictures on it.

Q: When you viewed those photographs. the photographs that were on there, what did the
5
photograph depict? What kind of people did it [depict?)
A: There were pictures of. I guess [people that commit) crimes, I guess.

Q: Well, what did they look like?
MR. FERRANTE: I object to that. I ask that it be stricken.
(ECF No. 7-26 at 117-118.)
Shortly after this objection, the trial judge gave a thorough limiting instruction that
included the following information:

transcript that was filed with the Court. (See ECF No. 1 at 37.)
The portion of the trial testimony from half of the word ‘depict” until “crimes” on the next line,
is partially illegible in the transcript that was submitted to the Court. As both parties have cited
to this testimony, the Court will accept their submissions of what the illegible text entailed.
25

The photographs are not evidence that the defendant has ever been
arrested or convicted of any crime. Such photographs come in the
hands of law enforcement from any variety of reasons including but
not limited to driver’s license applications, passports, A.B.C.
identification cards, various forms of Government employment,
private employment requiring state regulation including but not
limited to casino license applications, security guard applications, et
cetera, or from a variety of other sources completely unconnected
with criminal activity.
(ECF No. 7-26 at 120.)
Habeas review of a claim based on prosecutorial misconduct is limited to determining
whether the conduct “so infected the trial with unfairness as to make the resulting conviction
a
denial of due process.” Donnelly v. DeChristo/öro. 416 U.S. 637. 643 (1974). Furthermore.
a
prosecutorial misconduct analysis requires particular attention to be paid to “the fairness of trial,
not the culpability of the prosecutor.” Smith v. Phillips. 455 U.S. 209, 219 (1982).
Here, the prosecutor asked the witness a series of questions in order to lay a foundation.
before introducing the photo array into evidence. The witness did not seem to understand how
exactly to describe the photographs, thus describing them in the objectionable manner that she
did.
Rather than suggesting that the prosecutor was attempting to elicit improper testimony. it appears
from the line of questioning following the objection, that the prosecutor was attempting to show
that the identification procedure was lawful and not suggestive in any way. (ECF No. 7-26 at 118,
120-121.)
The state court determined that the witness’s statements did not so infect the trial to
prejudice the defendant from receiving a fair trial. The state court’s denial of this claim was not
an unreasonable application of clearly established federal law. First, as the Appellate Division
pointed out, the comment was made once and followed up by a series of questions that illuminated
what the prosecutor’s objective in asking these questions was. Furthermore, as noted by the
26

_____________________

Appellate Division, the jury was given a substantial limiting instruction almost immediately after
this problematic testimony was given. The jury is presumed to have followed the instructions
given to it by the trial judge. See Weeks v. Angelone. 528 U.S. 225. 234 (2000). Accordingly,
under such circumstances, the Court finds that petitioner is not entitled to habeas relief on this
prosecutorial misconduct claim.

V.

CONCLUSION
For the reasons discussed above, Petitioner’s habeas petition is denied.

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.

An appropriate order follows.

z

//
Dated

/
77

n
,

2018
MADELINE COX ARLEO
United States District Judge

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