VILLEGAS v. D'ILIO et al

Filing 8

OPINION fld. Signed by Judge Susan D. Wigenton on 2/22/16. (sr, )

*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LEONARDO VILLEGAS,
Petitioner,
v.
STEPHEN D’ILIO, et al.,
Respondents.

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Civil Action No. 15-3420 (SDW)

OPINION

WIGENTON, District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Leonardo Villegas
(“Petitioner”) brought pursuant to 28 U.S.C. § 2254 challenging his state court conviction (ECF
No. 3), to which Respondents have responded (ECF No. 7). For the following reasons, this Court
denies the petition and no certificate of appealability shall issue.

I. BACKGROUND
In its opinion affirming Petitioner’s conviction, the New Jersey Superior Court – Appellate
Division provided the following summary of the facts evinced at Petitioner’s trial:
Jorge “Georgie” Gonzalez allegedly owed [Petitioner] money. On
September 30, 2003, Gonzalez was driving a rental car in Paterson,
when he passed William “Willie” Morales standing in front of 59
Summer Street. Morales was a homeless, regular drug user who
loitered in the hallway of Gonzalez's apartment building. Gonzalez
asked Morales to go for a ride and Morales agreed. The pair drove
through town, then drove back to Summer Street, where they parked
and smoked crack cocaine at approximately 2:30 p.m. Morales
testified at trial that he did not see a gun in Gonzalez's possession
that day.

At approximately 2:30 p.m., Marilyn Torres (Marilyn) saw
Gonzalez and Morales sitting in the car. A male teenager
approached Marilyn and said he was looking for “Georgie
[Gonzalez][.]” After Marilyn pointed out Gonzalez, the young man
walked into “Unlimited Kuts Barbershop” and approached
[Petitioner], who was getting his weekly haircut from his regular
barber, Franklin “Frankie” Torres (Frankie). The young man told
[Petitioner] that Gonzalez was outside, and asked, “What do you
want me to do, get [Gonzalez] out of the car and beat him up?”
[Petitioner] replied, “I'll take care of that.” When Frankie asked
[Petitioner] if there was a problem, [Petitioner] replied that he was
“going to hit somebody.” [Petitioner] then left the barbershop, midhaircut, with the young man following. Outside, the young man
pointed out Gonzalez. When the young man asked if [Petitioner]
was going to hurt Gonzalez, [Petitioner] replied, “I'll take care of it.”
[Petitioner] walked to his car, retrieved and put on a “hoody”
sweatshirt and a latex glove, and approached the passenger side of
Gonzalez's car. Gonzalez was sitting in the driver's seat and Morales
was in the passenger's seat.
[Petitioner] asked Gonzalez for the money he owed him, but
Gonzalez said he did not have the money and would pay defendant
later. After [Petitioner] twice more demanded the money, Gonzalez
said, “So what [are] you [going to] do?” and “What do you want me
to do, to get my gun?” 1 [Petitioner] pulled out a handgun and fired
multiple shots across Morales, striking Gonzalez at least five times,
killing him. [Petitioner] then went back to the barbershop, held
Frankie at gunpoint, and demanded re-entry. Frankie complied.
[Petitioner] then insisted that Frankie finish his haircut, but Frankie
refused. [Petitioner] then exited the barbershop through the back
door.
After the shooting, Morales hid in a nearby park until police
found him and took him to headquarters. The next day, Morales
gave a written statement, and after reviewing six photographs,
identified a photograph of [Petitioner] as the shooter, stating, “[T]his
really looks like the guy but I'm not sure [.]” Marilyn gave a sworn
statement to police the day after the shooting, and reviewed a photo
array that included a photograph of [Petitioner]. Marilyn identified
[Petitioner]'s photograph and signed it. However, at trial, Marilyn
1

The Appellate Division also noted that medical examiners found a knife on the victim’s person,
but did not find any evidence that the victim had possessed a gun. (Document 4 attached to
ECF No. 7 at 5).
2

testified that she had never seen [Petitioner] before and did not see
the shooter in the courtroom. When asked if [Petitioner] looked
similar to the shooter, Marilyn testified that he “look[ed] a little like”
the person she identified, but was “fat[ter].”
Duhamel Santiago was in the area when the shooting
occurred. He called his friend Luis “Sonic” Arriaza to find out
what happened, and arranged to meet in a van outside Arriaza's
home. Arriaza, Santiago, [Petitioner] (whom Santiago had known
for approximately five to seven months by the name “Bori”), and a
fourth man met in the van. Santiago described [Petitioner] as
“hyper and scared,” and he had “half a haircut” and a gun in his
hand. Santiago asked [Petitioner] “[W]hat happened?” [Petitioner]
explained that he had given Gonzalez three to four hundred dollars
to purchase a gun, but Gonzalez did not do so and “disappeared.”
[Petitioner] also said that while he was getting his haircut, he learned
Gonzalez was sitting in a nearby car, he went outside and argued
with Gonzalez, and then “whatever happened, happened.”
[Petitioner] also expressed frustration with Frankie, and suggested
he would “take care of him[ .]” Arriaza took the gun from
[Petitioner]'s lap and suggested [Petitioner] turn himself in. After his
arrest on an unrelated bench warrant, Santiago provided this
information to police and identified [Petitioner]'s photograph.
Police interviewed Frankie on the evening of the shooting
and again approximately one year later. Frankie provided two
formal statements, identified and signed [Petitioner]'s photograph,
and told the police he knew [Petitioner] for approximately four years
and cut his hair every week. At trial, Frankie identified [Petitioner]
as the man who left the barbershop and as the shooter.
Police also interviewed Jose Lugo, the barbershop owner
who worked at the chair next to Frankie. Lugo told police that he
was cutting hair at the time of the shooting and Frankie's customer
left the chair and barbershop just before the event. Lugo also
corroborated the details about how [Petitioner] used the
barbershop's rear door to escape following the shooting.
[Petitioner] testified and admitted being in the barbershop
getting a haircut at 2:30 p.m. on the day of the shooting. He denied
knowing or shooting Gonzalez, knowing Santiago, making
inculpatory statements to Santiago, or that the van meeting ever
occurred. [Petitioner] also testified that before his haircut he had
arranged to purchase marijuana. During the haircut, a friend told
3

him that the person with his marijuana was waiting half a block
away, and he walked to the area, but the marijuana never arrived.
[Petitioner] claims he stayed in the area for two to three hours then
returned to his aunt's house, where he resided. After learning that
night that the police were searching for him, defendant decided to
surrender. He was arrested on October 1, 2003, after surrendering
himself to the Passaic County Prosecutor's Office, accompanied by
his attorney.
At trial, [Petitioner] relied primarily on an identification
defense, and testified he did not know or shoot Gonzalez.
(Document 4 attached to ECF No. 7 at 4-8).
At the conclusion of Petitioner’s case in chief, Petitioner’s counsel elected not to call
Luis Arriaza, Petitioner’s co-defendant who had been severed from Petitioner’s case so that he
might be available as a witness, to testify on Petitioner’s behalf despite the fact that Arriaza
would purportedly have provided exculpatory testimony. (Document 32 attached to ECF No. 7
at 3). The trial judge, foreseeing the challenge that Petitioner raises regarding that decision in
his current habeas petition, therefore engaged defense counsel and Petitioner in the following
colloquy out of the presence of the jury:
THE COURT: Okay. [Defense Counsel].
[Defense Counsel]: We’re ready to proceed with
summations.
THE COURT: Okay. The defense is going to rest?
[Defense Counsel]: Yes.
THE COURT: All right. Then I need to make a record
about, obviously, you’re not going to call the [severed] codefendant Mr. Arriaza, correct?
[Defense Counsel]: That is correct.

4

THE COURT: All right. Now just so the record of today
reflects it. It’s well reflected in the record in this case, this case
involved the co-defendant, [Petitioner], and the co-defendant Luis
Arriaza, and there was a motion for a severance at the beginning of
the case and I heard the testimony of Mr. Arriaza in chambers in
the presence of his attorney without the presence of the prosecutor
or the defense counsel and Mr. Arriaza was in a position to say that
[Petitioner] was not present at or to say that he, Mr. Arriaza, was
not present at a meeting that Duhamel Santiago testified to very
soon after the killing where things were discussed about the killing
and admissions made by [Petitioner] about the killing.
According to Mr. Santiago, Mr. Arriaza was present at the
meeting and was the person who directed him, Mr. Santiago, to
this meeting. And I know after the severance motion [Defense
Counsel] met with Mr. Arriaza at the county jail, on a Sunday for
one thing and I believe has met with him again at the Passaic
County Jail and, apparently, the defense position is that he’s not
going to be called and I assume you’ve discussed this witness with
[Petitioner] is that right, [Defense Counsel]?
[Defense Counsel]: Correct.
THE COURT: [Do y]ou want to say anything for the
record as to why [Petitioner] is not calling the co-defendant who
[Petitioner] wanted to be his witness and was the reason this case
was severed when we started the trial?
[Defense Counsel]: I will merely say the following: we
were given the opportunity by the court to call Mr. Arriaza. The
court has made him available to us through the Sheriff’s
Department. I’ve interviewed Mr. Arriaza. I’m aware that he
gave exculpatory testimony in chambers, the exact nature of which
I don’t know but I will assume it was exculpatory [information]
which is consistent with my information. However, I’ve
discussed the matter and all facets of it with my client concerning
if he is called or there are additional issues that surfaced regarding
a cell phone, cell phone records. I’ve looked into everything.
Spoke to my client at length about it. And for the reasons that my
client and I have discussed we have both decided, that is, I decided
as a trial strategy and [Petitioner] agreed with me not to call Mr.
Arriaza as a witness in this case.

5

And I know hindsight is always 20/20 but I get paid to
make decisions and judgments and that’s what I did. Although in
this case [Petitioner] agrees with me as well.
THE COURT: [Do y]ou want to ask [Petitioner] about
that for the record[?]
[Defense Counsel]: [Petitioner,] you and I discussed
whether or not we should call Arriaza as a witness, correct?
[Petitioner]: Yes.
[Defense Counsel]: Did you, ultimately, agree that even
though you have a right to call him as a witness you’ve agreed
with my judgment not to call him as a witness is that correct or not
correct?
[Petitioner]: It’s correct.
THE COURT: Okay. You understand, [Petitioner], that
Mr. Arriaza would say he was never at a meeting with Mr.
Santiago and you and Shalik?
[Petitioner]: Yes.
THE COURT: And furthermore, in the midst of this trial,
your attorney was given a tape recording of a woman calling
Nextel, a phone company and according to the phone company
they tell her that the telephone number they provide was in fact out
of service from September 28, 2003 to I believe October 2nd or 3rd
of 2003 when the bill for that phone was paid and then it was
turned on. So that phone was out of service on September the
30th, 2003, according to this tape recording.
Now I don’t know who this lady is or what this phone . . .
is. But I gather that there is evidence to show that this is a phone
that Mr. Arriaza had on September 30th and since the phone was
out of order Mr. Santiago could not have called Mr. Arriaza at least
on that phone.
Now, I know your attorney has very carefully gone over
this evidence and whatever it is that could be put together from the
Nextel records and from this lady and from Mr. Arriaza, and none
of that is being pursued now. Do you understand that?
6

[Petitioner]: Now I’m understanding. I didn’t really
understand but now I do.
THE COURT: And I don’t know all that your attorney has
said to you about this area of the evidence, and how it might be
helpful and how it might not be helpful or even harmful, but
[Defense Counsel’s] choice is not to put any of this evidence into
your case in your defense in an effort to contradict Mr. Santiago.
Now I know this is much more with regard to Mr. Santiago,
with regard to Mr. Arriaza and the telephone, Mr. Arriaza has a
separate case pending of attempted murder and in that case there
are tape recordings supposedly of Mr. Arriaza saying that he wants
a certain person killed. He’s charged with attempted murder. So
he is, obviously, on the telephone based on the evidence in that
other case. And that phone is not a phone that is listed to him.
So there is the other evidence that he did have a phone at, I know
approximately a year later, if I remember correctly, that was not
his phone but that clearly is [his] voice on the tape and the State
says he is, he was using another phone that was not registered to
him on that occasion.
How that would play into this I don’t know. I wouldn’t
venture to say. But I know that [Defense Counsel] has discussed
this with you at great length, in fact, met with you over the
weekend based on what you were saying last week if you did have
that meeting; is that correct?
[Petitioner]: True.
THE COURT: Are you in agreement with that decision as
well not to go ahead with presenting any evidence dealing with this
business of the telephone records?
[Petitioner]: No problem.
THE COURT: That means you do agree with [Defense
Counsel]’s advice?
[Petitioner]: Yes.
THE COURT: Do you have any question about any part
of this? Don’t be afraid to ask if you do.
7

[Petitioner]: No.
THE COURT: All right. Thank you[, Petitioner].
(Document 32 attached to ECF No. 7 at 3-8).
Petitioner’s trial counsel was also provided an opportunity to place on the record his
strategic reasons for not calling Mr. Arriaza out of the presence of the State or the jury:
[Defense Counsel:] At the direction of the Court, I’m
placing upon the record my reasons for not calling Luis Arriaza
[as] a witness in this case, although he does possess what could be
considered exculpatory information [i]n that he contradicts the
State’s witness Duhamel Santiago.
The reasons that I’m not calling him are several. The ones
that were already put on the record and it’s a matter of record, so I
don’t have to go into them but that which concerned me the most,
and my client agreed with me, I discussed this with my client not
to call Mr. Santiago and that is on the record already. But I’ve
checked out the . . . phone number that Mr. Arriaza gave to us.
And although the phone number does check out, it comes back to
some girl and he says that was his phone, he used it. It’s still not
in his name[, s]o it gets a little tenuous.
In addition to that, I have information that he had access to
other cell phones, so that’s going to make it a little difficult [to
argue that Santiago couldn’t have called Arriaza]. Although he
does deny that this alleged meeting [ever] took place and it would
help in that regard, I wouldn’t be able to corroborate it, I don’t
believe it, with cell phone records.
In addition to that, and perhaps the biggest reason, I had the
opportunity to learn that another person present at the meeting was
a guy by the name of Shalik. 2 Shalik’s name surfaced during the
trial as being, I think it was . . . Thomas Murphy came out for the
first time during the trial. And I then found out that Thomas
Murphy is, in fact, a live person and his attorney is Kalman Geist.
2

The transcripts alternatively spell this name as “Shalik” and “Shaleek” which presumably have
the same phoenetic pronunciation. For the sake of consistency, “Shalik” is used throughout this
opinion.
8

And I know that Kalman Geist had some preliminary discussions
with the State to call Mr. Murphy as a witness, that’s the same
person, Shalik.
The State didn’t make him any offers. They weren’t going
to call him because it all surfaced at the last minute and the State
didn’t think it was fair to call a witness at this point. However, I
was concerned if I called Arriaza it would lengthen the trial. The
State would have an opportunity to adjourn it for a few days,
maybe they would rediscuss the matter with Mr. Geist and perhaps
this Murphy would be called as a rebuttal witness to Mr. Arriaza.
And my information is, from Mr. Geist, . . . that Thomas Murphy,
he would corroborate Santiago[‘s testimony] and that I did not
want to occur. I didn’t want to have two witnesses.
Now, they may never have called him but I couldn’t take
that chance and that’s my biggest concern I had, is that this guy
Murphy may surface and testify, now I[‘ve] got two people to deal
with, which would make it a lot more difficult. And I discussed it
with my client but I didn’t want the State to know that I learned
that Murphy would hurt us at the time of trial. I never interviewed
Murphy. But based upon what his lawyer said and he was ready
to make a deal with him if they would give him what he wanted
but they just couldn’t get together on the term of years or time or
whatever.
Other than [that] I felt, after analyzing this case, a jury in
this case is not going to convict [Petitioner solely] on the testimony
of Santiago. I think we neutralized him, so he’s not that important
in the total scheme of things, even though he does give inculpatory
information. And I didn’t want to make this a big issue and then
come out on the short end of it.
I believe that the jury, if they convict, it will be because
they believe Franklin Torres and not because of . . . Santiago.
So that’s basically my reasoning. And the record will
reflect that the only ones present are myself and the reporter.
(Document 39 attached to ECF No. 7 at 2-4).
The jury ultimately convicted Petitioner of first degree murder in violation of N.J. Stat.
Ann. §§ 2C:11-3(a)(1) or (a)(2), second degree possession of a weapon for an unlawful purpose
9

in violation of N.J. Stat. Ann. § 2C:39-4, and third degree unlawful possession of a weapon in
violation of N.J. Stat. Ann. § 2C:39-5(b). (Document 4 attached to ECF No. 7 at 2). Following
trial, Petitioner also pled guilty to possession of marijuana with intent to distribute within 1000
feet of a school in violation of N.J. Stat. Ann. §§ 2C:35-7 and 35-5(a). (Id.). At sentencing, the
possession for an unlawful purpose charge was merged into the murder charge, and Petitioner
received a sixty five year term of imprisonment on those counts subject to an eighty-five percent
parole disqualifier, a consecutive five year sentence on the unlawful possession charge, and a
concurrent three year sentence on the drug charge. (Id. at 2). Petitioner appealed, and the New
Jersey Appellate Division affirmed, rejecting, inter alia, Petitioner’s argument that he was
prejudiced by Duhamel Santiago’s testifying while wearing prison garb. (Id. at 1-17). The
New Jersey Supreme Court denied certification in March of 2009. State v. Villegas, 198 N.J.
474 (2009).
Petitioner then filed a petition for post-conviction relief (“PCR”) in which he raised the
ineffective assistance of counsel claims he presents in his current habeas petition. The trial
court denied that PCR petition on March 16, 2012. (Document 6 attached to ECF No. 7).
Petitioner appealed, and the Appellate Division affirmed in October 2014. (Document 7
attached to ECF No. 7). The New Jersey Supreme Court denied certification as to Petitioner’s
PCR petition in January 2015. State v. Villegas, 220 N.J. 269 (2015). Petitioner thereafter filed
the instant habeas petition in which he again argues that Duhamel’s testimony in prison garb
denied him a fair trial, and that counsel was ineffective in so much as counsel failed to call
Arriaza as a witness and failed to provide a Spanish language interpreter at pretrial meetings.
(ECF No. 3).

10

II. DISCUSSION
A. Legal Standard
Under 28 U.S.C. § 2254(a), the district court “shall entertain an application for a writ of
habeas corpus [o]n behalf of a person in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.” A habeas petitioner has the burden of establishing his entitlement to relief for each claim
presented in his petition based upon the record that was before the state court. See Eley v.
Erickson, 712 F.3d 837, 846 (3d Cir. 2013); see also Parker v. Matthews, --- U.S. ---, ---,132 S.
Ct. 2148, 2151 (2012). Under the statute, as amended by the Anti-Terrorism and Effective Death
Penalty Act, 28 U.S.C. § 2244 (“AEDPA”), district courts are required to give great deference to
the determinations of the state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 77273 (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, --- U.S. ---, ---, 125 S. Ct. 1372, 1376 (2015).
“When reviewing state criminal convictions on collateral review, federal judges are required to
11

afford state courts due respect by overturning their decisions only when there could be no
reasonable dispute that they were wrong.” Id. Where a petitioner challenges an allegedly
erroneous factual determination of the state courts, “a determination of a factual issue made by a
State court shall be presumed to be correct [and the] applicant shall have the burden of rebutting
the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

B. Analysis
1. Petitioner’s Prison Garb Claim
Petitioner argues that the trial court in this matter erred when it permitted a prosecution
witness, Duhamel Santiago, to testify while wearing prison garb. In Estelle v. Williams, 425 U.S.
501, 504-05 (1976), the Supreme Court held that the compelling of a criminal defendant to wear
prison garb during his trial had a negative effect on a Petitioner’s right to receive a fair trial as the
prison attire could undermine the presumption of innocence in the eyes of the jury, and thus such
a compulsion was inconsistent with Due Process. The chief purpose of preventing compelled
wearing of prison garb by criminal defendants was to protect a defendant’s presumption of
innocence, see Estelle, 425 U.S. at 503-05; see also Deck v. Missouri, 544 U.S. 622, 630 (2005).
The presumption of innocence, however, does not apply to the non-defendant witnesses at a
criminal trial. See Green v. Warren, No. 12-6148, 2013 WL 6865420, at *14 (D.N.J. Dec. 20,
2013). The Supreme Court has therefore never extended the Estelle rule regarding prison garb to
non-defendant witnesses. Id.
Even if the Estelle rule did apply to witnesses, the appearance of a prosecution witness in
prison garb was ultimately harmless to Petitioner as any prejudice resulting from the jury’s

12

negative reaction to the witness’s status would have harmed the prosecution’s case, and not
Petitioner’s. Indeed, because Santiago ultimately testified that he was a convicted prisoner, no
prejudice could have resulted from his testifying in prison garb because his criminal history was
placed before the jury by his own testimony. See Green, 2013 WL 6865420 at *14; see also Stahl
v. Henderson, 472 F.2d 556, 557 (5th Cir. 1973) (“[n]o prejudice can result from seeing that which
is already known); United States v. Brooks, 125 F.3d 484, 499 (7th Cir. 1997) (where even a
defense witness testifies that she is a convicted prisoner, any possible prejudice from the wearing
of prison attire is dispelled by that admission). Thus, even if Petitioner were correct that the
Estelle rule did apply to the State’s own witnesses, his claim would still fail because he was not
prejudiced by Santiago’s testifying while wearing prison garb because the wearing of that garb did
not have a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht
v. Abrahamson, 507 U.S. 619, 637 (1993). As such, Petitioner’s prison garb claim is without
merit, and the New Jersey Court’s decision denying that claim was neither an unreasonable
application of applicable law or facts. Petitioner is therefore not entitled to habeas relief on this
claim.

2. Petitioner’s ineffective assistance of counsel claims
Petitioner’s remaining two claims both assert that he received ineffective assistance of
counsel prior to and during his criminal trial. 3 The standard which governs such claims is well

3

Although he presents them as two distinct claims, Petitioner’s grounds one and two both assert
that Petitioner’s trial counsel was constitutionally ineffective in failing to call Petitioner’s codefendant, Luis Arriaza, as a witness at trial, and thereby deprived Petitioner of his defense at
trial. This Court therefore treats those two grounds as a single claim of ineffective assistance of
counsel. Thus Petitioner has presented only two ineffective assistance claims: one asserting
13

established:
[c]laims of ineffective assistance are governed by the two-prong test
set forth in the Supreme Court’s opinion in Strickland v.
Washington, 466 U.S. 668 (1984). To make out such a claim under
Strickland, a petitioner must first show that “counsel’s performance
was deficient. This requires [the petitioner to show] that counsel
made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed by the Sixth Amendment.” Id. at 687; see
also United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007).
To succeed on an ineffective assistance claim, a petitioner must also
show that counsel’s allegedly deficient performance prejudiced his
defense such that the petitioner was “deprive[d] of a fair trial . . .
whose result is reliable.” Strickland, 466 U.S. at 687; Shedrick,
493 F.3d at 299.
In evaluating whether counsel was deficient, the “proper
standard for attorney performance is that of ‘reasonably effective
assistance.’” Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). A
petitioner asserting ineffective assistance must therefore show that
counsel’s representation “fell below an objective standard of
reasonableness” under the circumstances. Id. The reasonableness
of counsel’s representation must be determined based on the
particular facts of a petitioner’s case, viewed as of the time of the
challenged conduct of counsel. Id. In scrutinizing counsel’s
performance, courts “must be highly deferential . . . a court must
indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland, 466
U.S. at 689.
Even where a petitioner is able to show that counsel’s
representation was deficient, he must still affirmatively demonstrate
that counsel’s deficient performance prejudiced the petitioner’s
defense. Id. at 692-93. “It is not enough for the defendant to show
that the errors had some conceivable effect on the outcome of the
proceeding.” Id. at 693. The petitioner must demonstrate that
“there is a reasonable probability, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694; see also Shedrick, 493 F.3d
at 299. Where a “petition contains no factual matter regarding
counsel failed to call Arriaza, and one asserting that counsel was ineffective for failing to provide
an interpreter during pre-trial meetings. (See ECF No. 3 at 20-29).
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Strickland’s prejudice prong, and [only provides] . . . unadorned
legal conclusion[s] . . . without supporting factual allegations,” that
petition is insufficient to warrant an evidentiary hearing, and the
petitioner has not shown his entitlement to habeas relief. See
Palmer v. Hendricks, 592 F.3d 386, 395 (3d Cir. 2010). “Because
failure to satisfy either prong defeats an ineffective assistance claim,
and because it is preferable to avoid passing judgment on counsel’s
performance when possible, [Strickland, 466 U.S. at 697-98],”
courts should address the prejudice prong first where it is dispositive
of a petitioner’s claims. United States v. Cross, 308 F.3d 308, 315
(3d Cir. 2002).
Judge v. United States, --- F. Supp. 3d ---, ---, 2015 WL 4742380, at *3-4 (D.N.J. 2015).
Petitioner first argues that counsel was ineffective in failing to call his severed codefendant, Luis Arriaza, as a witness at trial. Where a petitioner challenges counsel’s decisions
as to which witnesses to call at trial, courts “are ‘required not simply to give [the] attorney[] the
benefit of the doubt, but to affirmatively entertain the range of possible reasons [petitioner’s]
counsel may have had for proceeding as he did.’” Branch v. Sweeney, 758 F.3d 226, 235 (3d Cir.
2014) (quoting Cullen v. Pinholster, 563 U.S. 170, 196 (2011)). “Strickland requires that a
defendant ‘overcome the presumption that, under the circumstances, the challenged action might
be considered sound trial strategy.’ 466 U.S. at 689 (internal quotation marks omitted). If the
Government ‘can show that counsel actually pursued an informed strategy (one decided upon after
a thorough investigation of the relevant law and facts),’ the effectiveness of counsel’s assistance
is ‘virtually unchallengable.’ Thomas v. Varner, 428 F.3d 491, 500 (3d Cir. 2005).” United States
v. Graves, 613 F. App’x 157, 159 (3d Cir. 2015).
Here, it is abundantly clear that counsel’s decision not to call Luis Arriaza was a matter of
informed trial strategy and not deficient performance.

Presciently foreseeing the challenge

Petitioner now brings, the trial judge specifically asked counsel to place his reasons for failing to

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call Arriaza on the record, and counsel did so. (Document 32 attached to ECF No. 7; Document
39 attached to ECF No. 7). Counsel specifically stated in camera and on the record that his
decision not to call Arriaza was based on his perception that telephone records failed to corroborate
Arriaza’s testimony, that Arriaza’s testimony could only challenge the testimony of one of the
state’s lesser witnesses (Duhamel Santiago) and could do nothing to challenge much of the eye
witness testimony, and that calling Arriaza would permit the State to call a rebuttal witness –
Thomas Murphy, also known as Shalik. (Document 39 attached to ECF No. 7 at 2-3, Document
32 attached to ECF No. 7 at 4-13). Murphy, counsel suggested, would have contradicted the
testimony of Arriaza and buttressed the testimony of Santiago, thus defeating the entire purpose
of calling Arriaza. (Document 39 attached to ECF No. 7 at 2-3). Given counsel’s perception
that he had neutralized the testimony of Santiago on cross examination, counsel believed that
calling Arriaza was simply not worth the risk it entailed given the telephone records and the
possibility of the calling of Thomas Murphy as a rebuttal witness. (Id. at 4). Indeed, when he
was asked during trial whether he understood counsel’s reasons for not calling Arriaza, Petitioner
not only stated that he understood those reasons, but also that he agreed with the decision not to
call the witness. (Document 32 attached to ECF No. 7 at 5-8). It is thus clear from the record
that counsel’s decision not to call Arriaza was a matter of informed trial strategy, strategy with
which Petitioner ultimately agreed at trial. As such, that decision is “virtually unchallengable”
and Petitioner has failed to show that counsel was deficient in failing to call Arriaza. Thomas,
428 F.3d at 500. As Petitioner’s claim is without merit, it is clear that the decision of the New
Jersey Courts to deny Petitioner relief on this claim was neither an unreasonable application of
federal law nor the facts of Petitioner’s case, and Petitioner is thus not entitled to habeas relief.

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In his final claim, Petitioner asserts that trial counsel was ineffective in failing to provide
him with a Spanish interpreter during pre-trial meetings. As Petitioner was provided with a
translator at trial, Petitioner does not contend that he could not understand the in-court proceedings,
but only that he could not fully understand counsel during meetings outside of trial and that as a
result he was not adequately prepared to testify in court and was unable to fully articulate his view
of the facts to counsel. Petitioner is, at best, vague about how he was prejudiced by this allegation
of deficient performance, as he asserts only that he felt unprepared to testify and was less credible
on the stand as a result. Petitioner likewise fails to argue what additional information beyond that
counsel made use of at trial he could have contributed had he and counsel been better able to
understand one another. Given the vague allegations as to Strickland’s second prong, it is difficult
to discern how exactly Petitioner was prejudiced by the alleged difficulties he had communicating
with counsel.
Putting prejudice aside for the moment, Petitioner’s own assertions and statements he made
at trial clearly undercut his argument. Petitioner admits in his petition, as he did before the PCR
court, that counsel encouraged him to bring friends and family to their meetings at trial, and that
Petitioner did so. Thus, it is not clear that there were any meetings where Petitioner was without
some form of translator.

Likewise, Petitioner’s statements during the colloquy regarding

counsel’s choice to not call Arriaza indicate that he and counsel were fully able to have lengthy
and complex discussions outside of the court room. Petitioner told the trial court that he had
discussed calling Arriaza at length with counsel, that he understood why Arriaza was not being
called, and that he agreed with that decision. When the court allowed him time to ask questions
or seek more information, Arriaza stated that he understood everything and had no questions. At

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no time did Petitioner assert that he could not understand counsel, or that he had any difficulty
understanding counsel at their meetings, especially in light of the fact that Petitioner was able to
bring friends and family to those meetings to act as a translator where necessary. Thus, it does
not appear that counsel was deficient, nor does it appear that Petitioner has shown, rather than
simply asserted, that he was prejudiced by counsel’s “failure” to provide a formal interpreter at all
out of court meetings, both of which would be fatal to Petitioner’s ineffective assistance of counsel
claim. Palmer, 592 F.3d at 395; Cross, 308 F.3d at 315.
In any event, Petitioner has failed to provide any caselaw in support of his assertions, and
this Court is aware of no Supreme Court holding which requires a formal interpreter at all extra
judicial meetings between a lawyer and his client. As such, Petitioner has failed to show that the
denial of this claim by the State courts amounted to an unreasonable application of law. Given
that Petitioner has provided no more than vague assertions as to prejudice and the facts suggest
that Petitioner understood his case, this Court likewise finds that the State courts did not rely on
an unreasonable interpretation of the facts at hand. Petitioner’s claim is therefore without merit,
and he is not entitled to habeas relief.

III. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a habeas
proceeding where that petitioner’s detention arises out of his state court conviction unless he has
“made a substantial showing of the denial of a constitutional right.” “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district court’s resolution
of his constitutional claims or that jurists could conclude that the issues presented here are adequate

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to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
For the reasons expressed above, Petitioner has failed to make a substantial showing that he was
denied a constitutional right as jurists of reason could not disagree that Petitioner’s claims are
without merit and he has not shown that the issues presented deserve encouragement to proceed
further. This Court shall therefore deny Petitioner a certificate of appealability.

IV. CONCLUSION
For the reasons stated above, Petitioner’s petition for a writ of habeas corpus is DENIED,
and Petitioner is DENIED a certificate of appealability. An appropriate order follows.

February 22, 2016

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

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