MEDINA v. JOHNSON et al

Filing 17

OPINION. Signed by Judge Susan D. Wigenton on 4/7/17. (cm, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ANGEL MEDINA,

Civil Action No. 16-2162 (SDW)

Petitioner,
v.

OPINION

STEVEN JOHNSON, et al.,
Respondents.

WIGENTON, District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Angel Medina
(“Petitioner”) brought pursuant to 28 U.S.C. § 2254 challenging Petitioner’s state court murder
conviction (ECF No. 1). Following an order to answer, Respondents filed a motion to dismiss the
petition as time barred (ECF No. 6), which this Court denied. (ECF No 9). Respondents thereafter
filed a response to the petition (ECF No. 11), to which Petitioner has replied. (ECF Nos. 14-16).
For the following reasons, this Court will deny the petition and will deny Petitioner a certificate of
appealability.

I. BACKGROUND
In its opinion affirming Petitioner’s conviction and sentence on direct appeal, the Superior
Court of New Jersey, Appellate Division, summarized the factual background of this matter as
follows:
On September 3, 2004, the Essex County Grand Jury returned [an
indictment], charging [Petitioner] with knowing or purposeful
murder, in violation of [N.J. Stat. Ann. §] 2C:3-11a(1) and (2)
(Count 1), unlawful possession of a weapon, in violation of [N.J.
Stat. Ann. §] 2C:39-5(b) (Count 2), and possession of a weapon for

1

an unlawful purpose, in violation of [N.J. Stat. Ann. §] 2C:49-4(a)
(Count 3).
The jury trial began on September 28, 2005[,] and continued
for five more trial days. Testimony was completed on October 18th.1
The trial judge charged the jury on October 19th. During the next
three days, the jury deliberated and requested read-backs of both
testimony and portions of the charge.
The jury returned on October 25th and continued its
deliberations. At the end of the day, the jury sent the following note
to the trial judge: “After four days of deliberations this jury cannot
arrive at a unanimous decision, and all 12 jurors believe that further
deliberations will not yield a different result.” In response to the
note, he excused the jurors for the day and directed them to return
the next day at 9 a.m.
The following day, the trial judge gave the jury a
supplemental charge about continuing their deliberations. After
further deliberations and read backs, including the entire charge on
the murder and possession for an unlawful purpose counts, the jury
returned guilty verdicts on all counts.
The trial judge sentenced [Petitioner] to an extended term of
40-years, with a 35-year parole ineligibility, on the murder charge.
He imposed a concurrent 5-year term on the unlawful possession
count. The remaining count, possession of a weapon for an unlawful
purpose, was merged with the murder.
The testimony at trial revealed the following facts relevant
to [Petitioner’s petition]. On December 31, 2003, Makisia Haskins
and her boyfriend Yusef Battle went to the Club Elaganza in
Newark. They arrived at the Club, which they described as being
dark, crowded and with loud music playing, after midnight. After
approximately ten minutes in the Club, Haskins saw people fighting
and recognized [Petitioner] to be one of the people involved.
Haskins became separated from Battle because of the fight, but
ended up being escorted out of the building by the Club’s security
personnel, along with [Petitioner] and Battle.
Haskins and Battle left the Club in Battle’s burgundy Honda
Civic and drove to Battle’s mother’s house. After sitting outside the

As the Appellate Division explained, there “was a hiatus in the trial because of a long weekend
following October 6th and the trial judge’s unavailability the following week.” (Document 23
attached to ECF No. 7 at 3 n. 1).
1

2

house for a few minutes talking with Battle, Haskins went into the
house and talked to Battle’s sister. After Battle called her on the cell
phone, she left the house and returned to the car, where she found
[Petitioner] in the car with Battle.
Haskins described Battle as being a little upset and
[Petitioner] as calm. They drove around with little conversation for
less than an hour, going nowhere in particular. They eventually
ended up at a store called King’s Fried Chicken, which is referred to
as the “Chicken Shack.” Battle parked the car down the street from
the store. [Petitioner] got out of the car and went into the store.
Haskins saw him talking to people in the store. She could not see
clearly into the store because the windows were “foggy.” She
described the lighting outside of the store as dark, but said that there
was light inside the store.
Battle then moved his car to a spot on the street right in front
of the Chicken Shack. After a few minutes, Battle got out of the car
and went inside to get a soda for Haskins. A few minutes later, six
or seven people, including [Petitioner] and Battle, came outside.
Haskins then saw [Petitioner] and two other males arguing in front
of the store. One was light-skinned and the other, the victim, was
dark-skinned and wearing a “colorful hat.” Haskins saw the lightskinned male trying to push [Petitioner] away, apparently to prevent
a fight. The arguing continued for about five minutes.
According to Haskins, shortly before she heard a shot,
[Petitioner] was face-to-face with the victim and only a few feet
away from him. The other male grabbed [Petitioner], but then let
him go. [Petitioner] started to walk closer to the victim. Haskins
testified that she did not see the shooting itself.
After she heard the shot, Haskins turned towards [Petitioner]
and saw the victim fall. [Petitioner] walked back to the car and got
in. At almost the same time, Battle got in the driver’s seat and they
drove away quickly. Haskins testified that they drove away going
about 70 mph and that [Petitioner] said he wanted to drive on the
highway.
According to Haskins, [Petitioner] told Battle he wanted to
stop at housing projects referred to as “Seth Boyden.” Haskins’
initial testimony was that she did not see anything in [Petitioner]’s
hands while they were driving around. She was subsequently shown
her statement to the police and then testified that she saw a gun fall
out of [Petitioner]’s pocket, which [Petitioner] picked up from the

3

floor. After they arrived at the projects, [Petitioner] got out, went
into a building and came right back out again.
They then drove to the Ritz Hotel on the border of Newark
and Elizabeth. When they arrived at the hotel, [Petitioner] asked
Haskins to go into the office and get a room. After some reluctance,
the clerk rented her a room. Haskins used a fictitious name.
[Petitioner] also asked Haskins to request the clerk to make the
check-in time an hour earlier than it really had been, but the clerk
refused. Haskins returned to the car and handed the room key to
[Petitioner], who left the car. Battle and Haskins then drove to
Battle’s mother’s house.[]
Fermin Wilson[ 2] was a friend of the victim who was present
at the Chicken Shack at the time of the shooting. Wilson described
the victim as being in a good mood and acting normally. He knew
[Petitioner] because they had grown up in the same neighborhood.
Wilson is a member of a gang known as the “Bloods,” but testified
that the victim was not a member. Wilson believed that [Petitioner]
knew that [Wilson] was a member of the Bloods.
Wilson saw [Petitioner] and Battle come into the Chicken
Shack. Wilson thought that [Petitioner] looked angry. [Petitioner]
said that he had been “jumped,” presumably meaning at the Club.
According to Wilson, [Petitioner] had been jumped by members of
the Bloods. The victim and [Petitioner] then started arguing. A third
individual stepped between [Petitioner] and the victim to move the
two men apart.
After the victim left the Chicken Shack with the third
individual, [Petitioner] followed them outside. Wilson, who had
initially turned away from the front of the store, turned back towards
the front windows in time to see [Petitioner] walk behind the victim
and shoot him in the head. [Petitioner] walked away and got into a
red Honda Civic, which pulled away very quickly. Wilson left the
store and tried to help the victim, staying with him until the police
arrived.
Battle’s testimony concerning the preliminary events of the
evening was similar to that of his girlfriend, Haskins. Battle had
known [Petitioner] for a few years. Battle saw [Petitioner] and the
victim arguing in the Chicken Shack. After the victim and
[Petitioner] left the store, he was talking to Wilson when he heard a

Wilson, who was apparently imprisoned for a parole violation at the time of his testimony,
testified while wearing prison garb and shackles. (See Document 34 attached to ECF No. 7 at 3).
2

4

gun shot. Upon hearing the gun shot, Battle ran to the car because
he was concerned about Haskins. After [Petitioner] got into the car,
Battle dove away quickly. They drove around for a little while,
ending up at the Ritz Hotel.
Irena Suvhocka, an employee at the Ritz Hotel, testified that
someone came to the hotel in the early morning hours on January 1,
2004, and asked to rent a room. Suvhocka was asked to stamp the
check-in time one hour earlier than the actual time, but refused to do
so.
Dr. Thomas A. Blumfeld, the medical examiner, testified
that the victim had been shot in the back of the head. Based on the
toxicology tests done, the victim had a blood alcohol level of 0.085
and an alcohol level in his stomach of 0.104 at the time of his death.
[Petitioner] called two witnesses, but exercised his right not
to testify himself. Terrance Harris was inside the Chicken Shack on
the night of the shooting. He testified that the windows of the
Chicken Shack are “really blurry” and that one cannot really see
through them. One of the investigating officers, who had testified
for the State and was then called as a defense witness, testified on
cross-examination that when the police entered an apartment to
arrest [Petitioner], he started running and tried to jump out of a
window.
(Document 23 attached to ECF No. 7 at 2-9).
Following his conviction and sentencing, Petitioner filed an appeal, with the Appellate
Division affirming his conviction and sentence by way of a written opinion dated June 23, 2008.
(Id.). Petitioner then filed a petition for a writ of certification, which the New Jersey Supreme
Court denied on September 24, 2009. (Document 24 attached to ECF No. 7).
On December 18, 2008, Petitioner filed a petition for post-conviction relief. (Document
25 attached to ECF No. 7). That petition, however, was dismissed without prejudice on May 11,
2009. (See Document 34 attached to ECF No. 7 at 3 n. 3). Petitioner thereafter filed another
petition for post-conviction relief on March 8, 2010. (Id. at 3).

5

Following an evidentiary hearing at which both trial counsel and Petitioner testified, that
petition was denied on the merits on June 28, 2013. (Document 30 attached to ECF No. 7). In
denying the petition, the PCR judge made the following factual and credibility findings regarding
trial counsel’s alleged failings:
In this case, Petitioner asserts that his trial attorney (1) failed to keep
him appraised of his case status[,] (2) did not provide him with
discovery or other case materials[,] (3) did not discuss the State’s
witnesses and his trial strategy for those witnesses[,] (4) did not
discuss with him “testimony that might have been elicited during the
trial [if he had] chosen to take the witness stand on his [own]
behalf[,]” (5) lacked overall trial preparation[,] and (6) failed to
object to the State’s witness, Wilson, testifying in prison garb.
At the Evidentiary Hearing, [trial counsel Richard] Banas
testified regarding each of these accusations. Points (4) and (6) are
discussed separately in this opinion. With regard to keeping
Petitioner appraised of his case status, Banas testified that he met
with Petitioner daily during trial and more than two times outside of
the courtroom. He also met with Petitioner’s family members prior
to and during the trial. Banas testified that as defense counsel in a
homicide case, he represented Petitioner by presenting witnesses
and discussing their respective testimonies with Petitioner.
Petitioner was also actively involved in cross-examination strategies
of the Prosecutor’s witnesses. Moreover, Petitioner aided Banas
with the jury’s voir dire and offered personal letters written by . . . a
married woman with whom Petitioner was having a relationship.
Petitioner hoped [her] testimony would account for his whereabouts
during the early morning hours of January 1, 2004. From those
letters, Banas formulated a line of questioning that revealed
inconsistencies with [her] testimony on October 6, 2005. The
following day, [she] sought out the prosecutors to tell them that she
picked Petitioner up from the Ritz Hotel the morning of the
homicide. With input from Petitioner, Banas challenged the
credibility of each of the State’s witnesses. For instance, Wilson’s
friendship with Petitioner was questioned, the vantage point from
where he observed Coleman’s murder as well as conflicting
statements regarding the color of Petitioner’s alleged gun were also
reviewed. Additionally, Banas cross-examined Reed and tried to
argue that Reed’s initial statement to detectives was unduly
influenced. Banas also highlighted the fact that neither Haskins nor
Battle accrued accomplice liability charges. Moreover, Banas
claimed that he gave Petitioner discovery materials while he was in
6

custody. Although he could not specifically recall the exact date, he
also testified he gave Petitioner the Grand Jury transcripts. The
Court finds Banas’ testimony on these points to be credible and
negates these claims of Petitioner.
(Document 29 attached to ECF No. 7 at 13-14). The PCR judge also found credible trial counsel’s
testimony at the hearing that he had discussed with Petitioner his right to testify on his own behalf,
including the effect Petitioner’s prior convictions would have on his credibility if he testified, and
found credible trial counsel’s testimony that he told Petitioner that the decision whether to testify
was Petitioner’s alone to make and that Petitioner made that decision initially before trial and once
again when asked by the trial court whether he wished to testify. (Id. at 18-19). Petitioner
appealed, and the Appellate Division affirmed on May 11, 2015, “substantially for the reasons
expressed in [the PCR judge’s] thorough and cogent written opinion,” including the credibility and
factual findings quoted above. (Document 34 attached to ECF No. 7 at 12-15). Petitioner filed a
petition for certification, which was denied on January 29, 2016. (Document 35 attached to ECF
No. 7). This habeas petition followed. (ECF No. 1).

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
7

Act, 28 U.S.C. § 2244 (“AEDPA”), district courts are required to give great deference to the
determinations of the state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 772-73
(2010).
Where a claim has been adjudicated on the merits by the state courts, the district court shall
not grant an application for a writ of habeas corpus unless the state court adjudication
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d)(1)-(2). Federal law is clearly established for these purposes where it is clearly
expressed in “only the holdings, as opposed to the dicta” of the opinions of the United States
Supreme Court. See Woods v. Donald, --- U.S. ---, ---, 125 S. Ct. 1372, 1376 (2015). “When
reviewing state criminal convictions on collateral review, federal judges are required to afford state
courts due respect by overturning their decisions only when there could be no reasonable dispute
that they were wrong.”

Id.

Where a petitioner challenges an allegedly erroneous factual

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

B. Analysis 3

In addition to the claims discussed in full below, Petitioner attempts to raise in his petition three
blanket claims for which he has not provided any factual basis separate from his claims which are
discussed in full in this opinion. Specifically, Petitioner raises claims in which he asserts that his
claims should not be barred on procedural grounds, that he should have received an evidentiary
hearing on all of his claims, and that the state courts applied an improper standard by applying a
3

8

1. Petitioner’s Jury Instruction Claims
Petitioner asserts that the trial court erred and denied him Due Process both in giving a
flight charge which placed the onus upon Petitioner to explain his flight from the scene of the
shooting, and in charging the jury as to murder and passion/provocation manslaughter in such a
way as to suggest that the jury had to acquit Petitioner of murder before reaching the lesser
included passion/provocation manslaughter charge, in violation of New Jersey state law. “[T]he
fact that [an] instruction was allegedly incorrect under state law is not a basis for habeas relief.”
Duncan v. Morton, 256 F.3d 189, 203 (3d Cir.) (quoting Estelle v. McGuire, 502 U.S. 62, 71-72
(1991)), cert. denied, 534 U.S. 919 (2001). Thus, where a habeas petitioner raises a claim
challenging a state court instruction, he will be entitled to relief only where “the ailing instruction
by itself so infected the entire trial that the resulting conviction violates due process.” Id. (quoting
Henderson v. Kibbe, 431 U.S. 145, 154 (1977)). That the instruction in question was “undesirable,
erroneous, or even universally condemned” is insufficient in and of itself to warrant relief. Id.
Only if, after reviewing the challenged charge in the context of the overall jury instruction and
surrounding circumstances, the Court determines that the charge was so erroneous that it resulted
in a violation of due process should Petitioner receive habeas relief. Id.

plain error analysis to his ineffective assistance claims, which is patently unsupported by the record
and is in any event insufficient to warrant relief as all of his ineffective assistance claims are
without merit for the reasons discussed herein. As it does not appear that an improper standard
was used, as Petitioner does not appear to have been procedurally barred from raising claims in
the state courts, and as Petitioner did receive an evidentiary hearing, it fully appears that these
three claims, to the extent they are separate from the other claims discussed herein, are without
merit. To the extent that they are not separate from Petitioner’s merits claims, they are likewise
insufficient to warrant habeas relief for the reasons discussed herein.
9

Turning first to the flight charge claim, the trial court gave the following jury instruction
as to flight after instructing the jury that the burden was on the State to prove every element of the
charged offenses:
There has been some testimony in this case from which you may
infer that [Petitioner] fled shortly after the alleged commission of
the crime. The defense has suggested the following explanation:
that . . . shots [were] fired, and that [Petitioner] left the scene with
Yusef Battle. If you find [Petitioner]’s explanation credible, you
should not draw any inference of [Petitioner]’s consciousness of
guild from [Petitioner]’s departure. If, after consideration of all the
evidence, you find that [Petitioner,] fearing that an accusation or
arrest would be made against him on the charge or charges involved
in this indictment[,] took refuge in flight for the purpose of evading
the accusation or arrest, then you may consider such flight in
connection with all other evidence in the case as an indication or
proof of a consciousness of guilt. It is for you as judges of the facts
to decide whether or not evidence of flight shows a consciousness
of guilt, and the weight to be given such evidence in light of all the
other evidence in this case.
(Document 7 attached to ECF No. 7 at 11).
Petitioner contends that this instruction shifted the burden onto him. The Appellate
Division, however, rejected that claim on direct appeal, finding that the instruction given at trial
mirrored the model jury charge on flight, and specifically contained language indicating that the
jury, if it agreed with the explanation provided by the defense that Petitioner left with his friend
who was fleeing the shots, was free to draw no inference of consciousness of guilt from Petitioner’s
flight. (See Document 23 attached to ECF No. 7 at 14). The charge thus did not shift the burden
of proof, but instead permitted the jury to infer consciousness of guilt if it rejected the defense’s
argument and thus still required the State to prove facts showing that the reason for that flight was
Petitioner’s guilt rather than a response to the fear and flight of his friend and driver, Battle. The
Appellate Division held that such a charge is entirely appropriate under state law, (id.), and similar
charges are commonplace in the face of similar facts in federal prosecutions. See, e.g., United
10

States v. Moorefield, --- F. App’x ---, 2017 WL 1048057, at *2-3, 3 n. 15 (3d Cir. Mar. 20, 2017)
(collecting recent Third Circuit cases upholding flight charges). Viewed in the context of the entire
jury charge, including the charge specifically informing the jury that the burden was on the State
to prove every element of the case and the facet of the flight charge placing the choice of which
side to believe as to flight solely in the hands of the jury, it is clear that this flight charge was not
so erroneous that it rendered Petitioner’s trial violative of Due Process, and Petitioner is not entitled
to habeas relief on this basis. Duncan, 256 F.3d at 203.
Turning to the murder jury charge, the trial court gave the following instruction as to when
and how the jury should judge whether Petitioner should be found guilty of passion/provocation
manslaughter rather than murder:
The third element that the state must prove beyond a reasonable
doubt to find [Petitioner] guilty of murder is that [Petitioner] did not
act in the heat of passion resulting from a reasonable provocation.
Passion/provocation manslaughter is a death caused purposely or
knowingly that is committed in the heat of passion resulting from a
reasonable provocation. Passion/provocation manslaughter has four
factors which distinguish it from murder[: adequate provocation,
actual impassioning of Petitioner by that provocation, lack of a
reasonable period of cooling off time, and that Petitioner did not
cool off]. In order for you to find [Petitioner] guilty of murder, the
state need only prove the absence of any one of them beyond a
reasonable doubt.
[The trial judge then explained each of those four elements in greater
detail].
If you determine that the state has proven beyond a
reasonable doubt that there was not adequate provocation, or that the
provocation did not actually impassion [Petitioner], or that
[Petitioner] had a reasonable time to cool off, or that [Petitioner]
actually cooled off[; a]nd in addition to proving one of those four
factors you must determine that the state has proven beyond a
reasonable doubt that [Petitioner] purposely or knowingly caused
death, or serious bodily injury resulting in death, you must find
[Petitioner] guilty of murder. If on the other hand you determine
that the state has not disproved at least one of the factors of
11

passion/provocation manslaughter, beyond a reasonable doubt, but
that the state has proven beyond a reasonable doubt that [Petitioner]
purposely or knowingly caused death, or serious bodily injury
resulting in death, you must find him guilty of passion/provocation
manslaughter.
(Document 7 attached to ECF No. 7 at 20-21).
After completing the rest of the jury instruction, including the jury charges for the weapons
offenses Petitioner faced, the trial judge then described to the jury the verdict sheet to be used in
recording their verdict:
To assist you in reporting a verdict I prepared a verdict sheet that
you will have with you in the jury room. The verdict sheet is not
evidence, it’s merely a . . . document to assist you in recording your
verdict. . .
....
I’ll go over the verdict sheet with you now. I sets up the title of the
case and so forth.
[It b]egins with Count 1. Murder of Mutah Coleman
purposely or knowingly. Not guilty or guilty. It says if you find
[Petitioner] guilty of murder, then you move on to Count 2. If you
find [Petitioner] not guilty of murder, then you will consider
passion/provocation manslaughter as I have defined that[, m]ake a
determination, not guilty or guilty.
If you find [Petitioner] guilty of passion/provocation
manslaughter, then you move on to Count 2. If you found
[Petitioner] not guilty of murder, and not guilty of
passion/provocation, then you will consider aggravated
manslaughter. Not guilty or guilty.
[The Court then described the portions of the sheet referring to the
weapons offenses.]

(Id. at 27-28). Following several days of jury deliberations, and shortly before the verdict in this
matter, the jury requested that they be reread the jury charge. The trial court gave the murder and

12

passion/provocation manslaughter charges again, but did not repeat the portion of the charge
regarding the jury verdict sheet. (See Document 23 attached to ECF No. 7 at 12).
Petitioner contends that the discussion of the jury verdict sheet implied to the jury that they
should only reach the question of passion/provocation manslaughter after finding him not guilty
of murder, which he contends violates state law. When he raised this claim on direct appeal, the
Appellate Division concluded that, while the discussion of the verdict sheet may have been
somewhat misleading as Petitioner suggests, the trial court’s instruction as to the murder and
passion/provocation manslaughter was “correct and detailed.” (Id.). The Appellate Division in
turn concluded that the correct instructions in the main elements charge, coupled with the fact that
this “correct and detailed” instruction was repeated shortly before the verdict, while the allegedly
misleading verdict sheet language was not repeated, alleviated any chance that the jury was misled
as to the correct means or order of determining whether murder or passion/provocation
manslaughter was the correct charge. (Id. at 12-13). The Appellate Division found this to be
especially true in a case such as this one where “there was little if any evidence presented . . . to
support a finding of passion/provocation manslaughter.” (Id. at 13).
In the jury charge, the trial court specifically instructed that the jury could not convict
Petitioner of murder without specifically finding that the State had proven that Petitioner’s killing
of the victim was not the result of passion or provocation sufficient to support a lesser manslaughter
charge. That charge was repeated to the jury shortly before the verdict was reached. Likewise,
the trial court specifically stated that the verdict sheet, and the order and way it presented the
claims, was only meant to be used as a tool for recording a verdict, not as a trump over the detailed
instructions already provided. Thus, taking the challenged instruction in the greater context, it is
clear that the charge given to the jury was not so erroneous that it could have misled them as to the

13

nature of the inquiry into whether murder or passion/provocation manslaughter was the correct
crime, and thus Petitioner is not entitled to habeas relief in this matter for either of his jury charge
related claims. Duncan, 256 F.3d at 203.

2. Petitioner’s claims that the trial court denied him Due Process by delaying the conclusion
of his trial and in failing to ask the jury if further deliberations would help before sending
them to deliberate on the final day of deliberations
In his next series of claims, Petitioner takes issue with two instances in which the trial court
exerted its influence over Petitioner’s trial – first when the trial court scheduled the trial in a
“disjointed” fashion – specifically by adjourning the trial for ten days because of the trial judge’s
pre-scheduled vacation – and second when the trial judge requested that the jury in Petitioner’s
trial make one final attempt at reaching a verdict when they indicated difficulties in achieving a
unanimous result. As to the first claim, that the trial court somehow denied Petitioner Due Process
when the trial had to be adjourned for ten days because of the trial judge’s pre-scheduled vacation,
Petitioner has provided nothing but vague allegations that he was in any way prejudiced by the
delay. Because Petitioner has failed to present any evidence which would show that this delay in
his trial had a “substantial and injurious effect or influence in determining the jury’s verdict,” any
error on the part of the trial judge resulting from the ten day vacation delay was harmless and is
insufficient to warrant habeas relief. 4 See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

For the first time in his reply brief, Petitioner contends that this delay from the trial judge’s
vacation harmed his right to testify on his own behalf because he was “forced” to make the
determination of whether to testify before the judge’s vacation, rather than after all of the testimony
other than his own had been taken. For reasons which are expressed below, it is clear that
Petitioner was not denied his right to testify on his own behalf, and that counsel advised Petitioner
of that right prior to and during trial, and thus there is no evidence to support the assertion that the
delay at trial harmed Petitioner’s right to testify on his own behalf. In any event, because this

4

14

Petitioner next asserts that he was denied Due Process when the trial judge asked the jury
to make one last attempt at deliberations after they became deadlocked without first asking the
jurors whether more time might alleviate the deadlock. Petitioner contends that this ran afoul of
Due Process as it may have led to the jury reaching a conclusion it otherwise would not have
reached because they may have perceived they would not have been permitted to leave without
reaching a unanimous verdict. This assertion, however, patently ignores the statements the trial
court made to the jury, which strongly suggest that the trial court was asking the jury to give
deliberations one final attempt before he would declare a mistrial.
After four days of deliberation in this matter, the jurors informed the trial court that they
were deadlocked and did not think a verdict could be reached. The Court then excused the jury
for the night and instructed them to come back the following morning. (See Document 11 attached
to ECF No. 7). When the jury returned the following day, the trial judge informed them that he
would like them to continue deliberations for one more day. (Document 12 attached to ECF No.
7). To help in that endeavor, the trial judge gave them a supplemental instruction about their role
and the conduct of deliberations, at the conclusion of that instruction, the trial court made the
following statement: “I’m going to ask you to go back into the jury room and see if you can reach
a unanimous agreement. If you can, fine. If you can’t, then please notify us after you have
endeavored to do so.” (Id. at 4). The jury thereafter requested a rereading of the jury charge, after
which they reached a unanimous guilty verdict. (Id. at 4-15). Based on this context – that the trial
judge had already been told by the jurors that they didn’t think they would reach a verdict and the
trial judge thereafter instructing them to give one final attempt at deliberating before informing the

argument was raised for the first time in reply, the Court would be free to reject it for that reason
alone, although the Court need not do so because Petitioner’s claim that he was denied his right to
testify on his own behalf is unsupported in the record. See Judge, 119 F. Supp. 3d at 284.
15

court that a verdict was impossible – the Appellate Division rejected Petitioner’s argument because
Petitioner had failed to present any evidence which would suggest that the trial court’s actions
improperly influenced the jury’s verdict. (See Document 23 attached to ECF No. 7 at 19).
As the Appellate Division noted in its opinion, the instruction given by the trial court
specifically asked the jury, who at that point had been deliberating for only four, less than full,
days, to make one final attempt at reaching a verdict. The judge’s comments directly stated that,
if the jury could not reach a verdict that day, to notify the court, implying that the judge would
excuse them and declare a mistrial should they not reach a verdict after one final day of trying.
Given the context of this matter and the implication of the trial judge’s comments that the jury
need only make one final attempt at exhaustion, this Court concludes that Petitioner has failed to
show that the trial court’s direction that the jury make one final attempt at reaching a verdict had
a substantial and injurious effect upon the outcome of the jury’s deliberations, and Petitioner’s
claim must be denied as any error was harmless. Brecht, 507 U.S. at 637. In any event, Petitioner
has presented no decision of the Supreme Court to which the state courts’ decisions on this matter
were contrary, nor that these decisions unreasonably applied, and this Court is aware of no such
decision, and Petitioner would therefore not be entitled to relief for that reason as well. See 28
U.S.C. § 2254(d).

3. Petitioner’s Ineffective Assistance of Counsel Claims
In his habeas petition, Petitioner presents several claims alleging that he suffered
ineffective assistance of trial and appellate counsel. The standard which applies to such claims is
well established:
[c]laims of ineffective assistance are governed by the two-prong test
set forth in the Supreme Court’s opinion in Strickland v.
16

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 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

17

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, 119 F. Supp. 3d 270, 280-81 (D.N.J. 2015).

a. Petitioner’s claim that counsel failed to prepare his case and prepare him to testify at trial
In his first ineffective assistance claim, Petitioner asserts that his trial counsel failed to
prepare for his case, failed to put on a proper defense on his behalf, failed to go over discovery
with Petitioner, and failed in advising him whether to testify at trial. The state PCR courts rejected
these claims based on the factual and credibility determinations made by the PCR judge following
an evidentiary hearing. The factual findings of the state PCR court are entitled to considerable
deference on habeas review. See, e.g., Dennis v. Sec’y, Penn. Dep’t of Corr., 834 F.3d 263, 281
(3d Cir. 2016). This Court can only reject a state court decision based on factual determinations
where those determinations were “objectively unreasonable in light of the evidence presented in
the state-court proceedings.” Id. (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). Such
factual determinations are thus presumed to be correct, and should only be rejected upon a showing
of clear and convincing evidence that the determination was unreasonable or incorrect. Id. At
Petitioner’s PCR hearing, his trial counsel testified that he frequently discussed Petitioner’s case
with Petitioner that they went over witnesses, trial preparation, and strategy together, and that they
discussed the pros and cons of Petitioner taking the stand, including the likelihood that Petitioner
would be impeached based on his criminal history if he chose to make the stand. The PCR judge
found counsel’s testimony to be more credible than that of Petitioner, and thus rejected Petitioner’s
claims that counsel failed to discuss with him discovery, trial strategy, and the witnesses against
him based on the credible testimony of trial counsel. Because Petitioner has failed to provide clear
and convincing evidence that these factual and credibility determinations were incorrect or
18

unreasonable, they are entitled to deference and must be presumed correct by this Court. Because
this Court does not find the PCR judge’s determinations to have been unreasonable in light of
counsel’s testimony at the PCR hearing that he and Petitioner discussed and went over the evidence
at length, including discussions of cross-examination strategy and whether Petitioner should have
taken the stand, those determinations require that the Court reject Petitioner’s claim that counsel
failed to prepare for trial with him.
The testimony of counsel, found credible by the state PCR judge, establishes that counsel
did prepare the case with Petitioner, met with him and his family frequently, and used discussions
with Petitioner to prepare for trial, and that counsel even considered Petitioner’s input during jury
voir dire and cross examination. That testimony also establishes that counsel discussed at length
with Petitioner whether Petitioner should take the stand, and that Petitioner was specifically told
that the decision of whether to testify was his alone. Trial counsel’s testimony likewise indicates
that Petitioner was given the chance to change his mind if he so chose at trial, and Petitioner elected
not to testify. This testimony, coupled with the credibility findings of the PCR judge, establishes
that Petitioner cannot show that his counsel performed deficiently in preparing him for trial and in
advising him not to testify on his own behalf, and Petitioner is therefore not entitled to habeas
relief on these bases. Strickland, 466 U.S. at 687
In addition to asserting that counsel prevented him from testifying by failing to properly
advise him as to his right to make the decision to testify, Petitioner also makes the stand-alone
claim that he was denied the right to testify on his own behalf. While the testimony of trial counsel
during the PCR counsel, in combination with the PCR judge’s factual and credibility
determinations, indicates that counsel was not ineffective in advising him on whether to testify and
informing Petitioner that the choice was his alone to make, the trial transcript also clearly

19

establishes that Petitioner was provided the opportunity to testify on his own behalf, and chose not
to do so, which effectively forecloses Petitioner’s claim that he was denied the right to testify on
his own behalf. Specifically, the following colloquy was conducted by trial counsel and the court
as to Petitioner’s choice not to testify:
[Banas]: [Petitioner], over the course of the trial of the past two
weeks, have we discussed the possibility of you testifying in this
case?
[Petitioner]: Yes.
[Banas]: You have been present for all the testimony that has been
presented. Is that correct?
[Petitioner]: Yes.
[Banas]: After hearing all of the testimony, and conferring with me,
have you made a decision that you choose not to testify in your own
defense?
[Petitioner]: Yes.
[Banas]: And the reasons for that is because of your prior criminal
history?
[Petitioner]: Yes.
[Banas]: And also the prospect of the cross examination by the
prosecutor. Is that correct?
[Petitioner]: Yes.
THE COURT: [Petitioner], you have had sufficient time to discuss
this with Mr. Banas?
[Petitioner]: Yes.
THE COURT: And without going into anything that would be
discussed between you and Mr. Banas, did he answer all your
questions concerning this decision?
[Petitioner]: Yes.

20

THE COURT: Has anyone threatened you in any way or forced you
in any way not to decide to testify?
[Petitioner]: No.
THE COURT: Now, you understand that this decision, at least as far
as I’m concerned for this trial, is a final decision, you’re not going
to testify in this case?
[Petitioner]: Yes.
THE COURT: And you’ve had sufficient time to think about this
decision. Is that correct?
[Petitioner]: Yes.
THE COURT: All right.
(Document 4 attached to ECF No. 7 at 95-96).
As this colloquy and the testimony of counsel at the PCR hearing establish, Petitioner was
aware that the decision of whether to testify was his. He had the opportunity to weigh that decision
against the risk of impeachment via his criminal history and the strength of the prosecution’s case,
and chose after full consultation with counsel not to testify. Thus, based on the factual record and
the testimony of counsel, in combination with the PCR court’s credibility determinations and the
deference due those determinations, it is clear that Petitioner was not denied the opportunity to
testify on his own behalf, and Petitioner’s contention to the contrary, whether as a stand-alone
claim or as a species of ineffective assistance claim, is without merit. The decision of the state
courts to reject those claims was thus neither an unreasonable determination of the facts or
applicable legal standards, and Petitioner is not entitled to habeas relief based on either counsel’s
preparation for trial or Petitioner’s decision not to testify at trial.

21

b. Petitioner’s claim that counsel was ineffective in failing to object to a prosecution witness
testifying while shackled and wearing prison garb
Petitioner next asserts that his trial and appellate counsel proved ineffective in failing to
object to a prosecution witness testifying in prison garb, including shackles. Petitioner also
contends that the trial court erred by failing to sua sponte give a limiting instruction regarding the
prison garb. In Estelle v. Williams, 425 U.S. 501, 504-05 (1976), the Supreme Court held that
compelling a criminal defendant to testify while wearing prison garb had a negative effect upon
the defendant’s right to a fair trial as prison clothing and shackles could have a tendency to weaken
the presumption of innocence in the eyes of the jury, and that requiring defendants to wear such
clothing thus did not comport with Due Process.

The principle chiefly motivating this

determination by the court was the paramount importance of the presumption that all defendants
are innocent until proven guilty, a presumption which does not apply to non-defendant witnesses
in a criminal trial. See Estelle, 425 U.S. at 503-05; see also Deck v. Missouri, 544 U.S. 622, 630
(2005); Green v. Warren, No. 12-6148, 2013 WL 6865420, at *14 (D.N.J. Dec. 20, 2013). The
Supreme Court has thus never extended this rule regarding the wearing of prison attire while
testifying to non-defendant witnesses in a criminal proceeding. Green, 2013 WL 6865420 at *14.
Even if the Estelle rule did apply to witnesses, including witnesses for the State such as the
one at issue here, any prejudice flowing from the wearing of prison garb by such a witness is
rendered harmless where the witness testifies that he is a convicted prisoner because that testimony
places his criminal status before the jury regardless of his attire. 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

22

prejudice from the wearing of prison attire is dispelled by that admission). In this matter, one of
the first pieces of testimony provided by the witness who testified at trial in prison garb and
shackles was that he was currently in prison for a violation of parole flowing from a prior felony
conviction. (See Document 2 attached to ECF No. 7 at 3-4). Because Wilson testified that he was
a felon who was currently in prison, even if the Estelle rule did apply to him as a prosecution
witness, Petitioner’s claim would fail because his testimony prevented his testifying in prison garb
from having a “substantial and injurious effect or influence in determining the jury’s verdict,”
rendering any error related to his having worn prison garb and shackles harmless and insufficient
to warrant habeas relief. Brecht, 507 U.S. at 637; see also Strickland, 466 U.S at 690-94 (requiring
showing of prejudice for ineffective assistance claim). Thus, as a stand-alone claim that the trial
court erred by permitting Wilson to testify in prison garb or by failing to give a limiting instruction
regarding that attire, any error was harmless, and Petitioner cannot establish his entitlement to
relief.
To the extent that Petitioner asserts that trial and appellate counsel were ineffective for
failing to challenge the prison garb issue, his claim must fail because he suffered no prejudice as
a result of that failing as Wilson testified that he was a felon. Thus, any aspersions Wilson’s felon
status may have cast on Petitioner as a friend of his existed regardless of the clothing Wilson wore,
and the wearing of shackles and prison garb was equally harmless and thus incapable of
establishing prejudice for the purposes of a Strickland claim. Likewise, to the extent that Petitioner
asserts that counsel was ineffective in failing to challenge Wilson’s attire based on state law, that
claim, too, is foreclosed. As the Appellate Division explained to Petitioner during the appeal of
his PCR petition, applicable state law at the time of Petitioner’s trial, while broader than Estelle,
applied the prison garb rule only to defense witnesses, and not to those called by the prosecution

23

such as Wilson. (See Document 34 attached to ECF No. 7 at 14-15). While the state courts have
since extended the rule, at the time of Petitioner’s trial there was no clear legal basis in New Jersey
for an objection based on the wearing of prison garb or shackles by a prosecution witness, and
counsel can therefore not be said to have been deficient in failing to presage the change in law to
that effect several years after Petitioner’s trial. (Id.). Because any prejudice arising from the
wearing of the prison garb was rendered harmless by Wilson’s own testimony, and because counsel
cannot be said to have been deficient in failing to object to Wilson’s attire based on the laws in
effect at the time of Petitioner’s trial, counsel cannot be said to have been ineffective. As such,
the state courts’ determination that Petitioner was not entitled to relief on the basis of either failure
of the trial court to prevent or provide a limiting instruction based on Wilson’s attire or based on
counsel’s failure to object thereto does not amount to an unreasonable determination of the facts
or federal law. Petitioner is therefore not entitled to habeas relief on either of these claims.

c. Petitioner’s claim that Appellate Counsel failed to raise his PCR issues on direct appeal
Petitioner also contends that his counsel on direct appeal was ineffective for not raising the
issues he raised during his post-conviction relief proceedings. While the Strickland standard
applies to appellate counsel just as it does to trial counsel, see Smith v. Robbins, 528 U.S. 259, 285
(2000), “it is a well established principle . . . that counsel decides which issues to pursue on
appeal,” Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996), and appellate counsel need not raise
every nonfrivolous claim a defendant desires to pursue. Jones v. Barnes, 463 U.S. 745, 751 (1983).
Because the heart of effective appellate advocacy lays in winnowing out weaker claims in favor
of those with a greater likelihood of success, see id.at 753; Smith v. Murray, 477 U.S. 527, 536
(1986), the Supreme Court has held that “[g]enerally, only when ignored issues are clearly stronger

24

than those presented, will the presumption of effective assistance of [appellate] counsel be
overcome.” See Robbins, 528 U.S. at 288 (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir.
1986)).
Here, Petitioner asserts that his appellate counsel was ineffective for failing to raise the
claims which he raised for the first time in his PCR petition, specifically his claims that he was
prejudiced by the disjointed trial schedule, by the testimony of a state witness in prison garb, and
Petitioner’s having allegedly been denied his right to testify. As discussed above, all of these
claims are clearly without merit, and it is therefore by no means clear that these issues were in any
way stronger than those raised on direct appeal. Because these claims are without merit, Petitioner
suffered no prejudice from counsel’s failure to raise them on direct appeal, and the Appellate
Division’s conclusion to that effect in denying this claim on appeal from the denial of Petitioner’s
PCR conviction was neither an unreasonable application of the law or facts. Robbins, 528 U.S. at
288. Petitioner is therefore not entitled to habeas relief on this claim as his claim of ineffective
assistance of appellate counsel is without merit.

d. Petitioner’s ineffective assistance claims regarding counsel’s conduct in advance of the
PCR hearing
Petitioner attempts to raise two further claims in this matter which are related to his trial
counsel’s conduct – first, that trial counsel either proved ineffective or denied him Due Process on
post-conviction relief when counsel failed to turn over Petitioner’s trial file to PCR counsel when
asked, and second, that trial counsel violated his professional duties when he spoke to the State in
advance of the hearing on Petitioner’s PCR petition. This second claim was raised for the first
time in Petitioner’s supplemental reply brief (ECF No. 16) and is therefore not properly before this

25

court and will be rejected for that reason. See Judge, 119 F. Supp. 3d at 284. Even if this claim
had been properly raised, Petitioner would still not be entitled to relief as counsel’s conduct in
relation to a PCR proceeding cannot form the basis for habeas relief. See, e.g., 28 U.S.C. § 2254(i)
(“The ineffectiveness or incompetence of counsel during Federal or State collateral postconviction proceedings shall not be a ground for relief in a proceeding arising under section
2254”). Likewise, as to Petitioner’s claim that counsel lost his trial file, Petitioner has failed to
show any prejudice that resulted from his inability to access the file which was apparently lost by
his trial counsel. Petitioner and his PCR counsel were more than capable of producing a PCR
petition containing numerous claims, and Petitioner has failed in any way to show that he has other
claims that he would have raised had counsel not failed to properly keep up with his file. As such,
Petitioner has failed to show prejudice, either under Strickland to the extent he intended to raise
these claims as ineffective assistance claims, or sufficient to show that any error was not harmless
under the Brecht standard. Petitioner has therefore failed to show that he is entitled to relief under
either of these claims.

e. Petitioner’s cumulative error claims
In his final two claims, Petitioner asserts that, even if his claims of either error by the trial
court or ineffective assistance claims are insufficient to warrant relief individually, Petitioner’s
claims cumulatively establish either that he was denied due process or that he was denied the
effective assistance of counsel.

To the extent Petitioner asserts that the alleged claims of

ineffective assistance of counsel establish ineffective assistance cumulatively if not individually,
that claim is without merit for the reasons discussed above – Petitioner has failed to establish a
claim of ineffective assistance of counsel in any of the claims he has raised in this matter, and

26

those claims fair no better cumulatively. Petitioner has failed to show that counsel was deficient
or that he suffered adequate prejudice, and his cumulative ineffective assistance claim must
therefore be denied. Strickland, 466 U.S. at 687-94.
To the extent Petitioner claims that the alleged errors of the trial court raised in Petitioner’s
non-ineffective assistance claims cumulatively indicate that he was denied Due Process, that claim
similarly must fail. Although errors “that individually do not warrant habeas relief may do so
when combined,”
a cumulative-error analysis merely aggregates all the errors that
individually have been found to be harmless, and therefore not
reversible, and it analyzes whether their cumulative effect on the
outcome of the trial is such that collectively they can no longer be
determined to be harmless. Cumulative errors are not harmless if
they had a substantial and injurious effect or influence in
determining the jury's verdict, which means that a habeas petitioner
is not entitled to relief based on cumulative errors unless he can
establish actual prejudice.
Albrecht v. Horn, 485 F.3d 103, 139 (3d Cir. 2007) (internal quotations and citations omitted),
cert. denied, 552 U.S. 1108 (2008). As with his ineffective assistance claims, Petitioner’s other
claims fair no better cumulatively than they do individually. Petitioner has failed to show that any
of the alleged errors above had a substantial and injurious effect upon the jury’s verdict, and, to
the extent any of Petitioner’s claims identify any errors at all, those errors were all clearly harmless
for the reasons discussed above. Because Petitioner’s claims, individually or cumulatively, fail to
demonstrate any prejudice to Petitioner, Petitioner is not entitled to habeas relief, and his petition
for a writ of habeas corpus must be denied. Id.

III. CERTIFICATE OF APPEALABILITY

27

Pursuant to 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a habeas
proceeding where that petitioner’s detention arises out of his state court conviction unless he has
“made a substantial showing of the denial of a constitutional right.” “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district court’s resolution
of his constitutional claims or that jurists could conclude that the issues presented here are adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Because all of Petitioner’s claims are either without merit or are otherwise insufficient to warrant
habeas relief, Petitioner has failed to make a substantial showing of the denial of a constitutional
right. As such, and because jurists of reason could not disagree with this Court’s denial of
Petitioner’s habeas petition, Petitioner’s claims are inadequate to deserve encouragement to
proceed further and Petitioner is denied a certificate of appealability.

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

Dated: April 7, 2017

s/Susan D. Wigenton_
Hon. Susan D. Wigenton,
United States District Judge

28