PEREZ v. D'ILIO

Filing 20

OPINION. Signed by Judge Madeline Cox Arleo on 8/20/2019. (JB, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOSE ANTONIO PEREZ,
Civil Action No.

16-4767(MCA)

Petitioner,
OPINION

V.

STEVEN D’ILIO and
THE A:TCRNEY GENERA: OF TEE
STA:E OF NEW JERSEY,
Respcndents.

MADELINE COX ARLEO,

District Judge

INTRODUCTION

I.

This matter has been opened to the Court by the pro
Petition pursuant
of

Jose Antonio

below,

to 28

Perez

U.S.C.

§ 2254

(“Petitioner”)

the Court will deny the

.

(FCF No.
For the

1

se

(“Petition”))

reasons explained

Petition with prejudice and will

deny a certificate of appealability.
II.

FACTUAL BACKGROUND

& PROCEDURAL HISTORY

A. Factual Background
After extensive review of the
this case arises,
will

and to give context to this Opinion,

summarize briefly the

herein.

In doing

sizeable record from which

so,

the Court

facts pertinent to the analysis

the Court relies upon the

state courts’

fact recitations.1 See State v.
5431323,
No.

at *1

(N.J.

Super.

Perez,

Ct. App.

No.
Div.

A—4031-12T1,
Oct.

25,

2014 WL

2014);

ECF

10—11 at 4.
Petitioner and nine co-defendants were members of a gang

known as the Latin Kings.

Co-defendant Michael Rornero held a
1998.

Latin Kings meeting at his Jersey City home on June 29,

a drive—by shooting at Romero’s aoartment compex

The prior day,

1998

had occurred,

presumably in retaliation for a June 28,

street fight.

Romero believed he was the drive—by’s intended

target.

He wanted Latin Kings to retaliate by Kidnapping and

killing those responsible.

(ECE No.

10-7 at 10—11.)

Latin Kings gang members picked up Omar 4. Morante
Juan Cortes
11—12.)

(“Cortes”)

Jimmy Cabrera

Romero’s house.

(Id.

,

and Omar D. Morante

On June 29,
(“Omar W.”)

(“Omar D.”)

.

(Id.

at

also attended the meeting at

(“Cabrera”)
at 12j2

Pursuant to 28 U.S.C. § 2254(e) (1), “iJn a proceeding
instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a
determination of a factual issue made by a State court shall be
The applicant shall have the burden of
presumed to be oorreot.
rebutting the presumption of correctness by clear and convincing
1

evidence.”
The Appellate Division’s opinion during direct appeal does not
specify whether Omar D., Omar W., Cabrera, and Cortes were
atin Kings or were members of a rival gang. The
members of
court’s opinion (ECF No. 10—7 at 11—12) suggests they were a
“special problem” to Latin Kings. This raises the possibility
that they may have been members of Latin Kings, causing internal
2

2

David V.artinez drove Edwin Rivera’s

After the meeting,
Bronco,
Omar W.

Morante

Miguel Torres,

with Rivera,

car,

Jimmy Cabrera,

(“Omar 0/’)

(Omar is

Luis xodriguez,

with Jesus Rodriguez,

and Sfand Rajabzaden as passengers.

While they were stopped at a tollbooth,

(Id.

Omar W.

permission to leave the car to use the bathroom.

at 12-13.)
received

Instead,

he

asked someone to call the

went to a nearby Turnpike office,
and escaped.

and

Juan DeJesus drove

The group headed to Branch Brook Park in Newark.

State Police,

,

Luis Nanso drove his

and Petitioner as passengers.

Jesus Rodriguez’s vehicle,
Edwin Diaz,

Morante

Omar 0.

with Michael Romero,

twin brother)),

as passengers.

(“Ornar Wi’)

(“Cortes”)

Juan Cortes

Cortes was subsequently released.

Co

defendants concluded it was too risky to kill Cortes because he
had been seen by toll collectors with some of them during the
stop.

(Id.

at 9,

Brook Park,

15.)

and Cabrera were taken to Branch

Omar D.

where they were strangled to death and left lying

face down in the water.

(Id.

at 9.)

B. Procedural History
Following the
and Cabrera;

and

(I)

kidnappings of Omar 0.,

(2) murders of Omar W.

Omar W.,

and Cabrera,

Cortes,

ten co

such as the drive—by at Romero’s
strife to that organization
apartment. Their precise gang affiliation is unclear from the
record, but it is not dispositive of any of the issues in this
Opinion. They were all targeted victims of the crimes giving
rise to the instant matter, no matter their affiliation.
—-

3

defendants were charged with:

four courts of second—degree
four counts of first—degree

conspiracy to commit kidnapping;

four counts of second-degree conspiracy to commit

kidnapping;
murder;

two counts of murder;

and

two counts of felony murder;

two counts of attempted murder.

10—li at 4;

(ECE No.

ECF No.

lu—I.)

Six of the ten co-defendants pled guilty.

2014

Perez,

Perez,

at *1;

WL 5431323,

10—11 at 4;

ECF NO.

2014 WL

at *1.

5431323,

Petitioner and three others were tried before a jury
between January 24 and March 17,

and attempted murder of Omar W.
eighteen)

.

Cabrera,

Omar 0.,

and fifteen,
Omar W.

respectively);

(counts two,

restraint of Cortes
sixteen)

seven,

and Cortes

seventeen,

(counts one,

kidnapping of Omar D.,
and twelve,

eleven,

six,

Cabrera,

respectively)

and

criminal

;

(a lesser—included offense of count

(counts three,

respectively)

;

felony murders of Omar D.
(ECE’ Nos.

conspiracy to murder

second—degree conspiracy to murder Omar D.

;

•Dmar W.,

and Cortes

Omar W.,

(count

(counts fourteen arid

and Cortes

Petitioner was convicted of:

11—25.)

—

(counts nine and five)

mcraers of Cabrera and Omar 0.

;

10—24

kidnapping of Cortes

Petitioner was acquitted of:
sixteen)

(ECF Nos.

2000.

eight,

thirteen,

murder of Omar D.
and Cabrera

10—11 at 5 and 10—2;

ECF No.

Cabrera,

and

(court four)

;

and

(counts five and ten)
10—1.)

Petitioner was sentenced on April 5,
4

,

2000.

(ECF No.

11-26.)

two consecutive forty—year sentences for the first—

He received:

degree murder and felony murder convictions
ten)

,

(counts four and

with an eighty—five percent period of parOle
two concurrent thirty—year sentences for

ineligibility;

(counts two and twelve),

kidnapping
parole;

eighty—five percent without

and three concurrent twenty—year sentences

f0r

(counts

counts of conspiracy to murder and conspiracy to kidnap
thirteen,

and seventeen)

fifteen,

ineligibility on each.
Nanso,

Romero,

,

with ten years of parole

The remaining convictions merged.

(Ibid.)

and Petitioner filed notices of

Rodriguez,

appeal on or about September 13,

In a March

2000.

2005

8,

the Appellate Division affirmed

unreported decision,

Petitioner’s conviction and remanded for resentencing with
respect to application of the No Early Release Act
N.J.

Stat. Ann.

§ 2C:43—7.2.

(Id.

at 7;

ECF No.

(“NER]-\”)

10—7 at 95.)

The

New Jersey Supreme Court denied certification to the foursome on
September 23,

2005.

(ECF NO.

10—li at 7.)
2006.

Petitioner filed his first PCR petition on April 3,
(ECE Nos.
issues:

10—8,

(1)

10—9,

and 10—10.)

He raised the following

ineffective assistance of counsel

10—8 at 8—11;

ECF No.

10—10 at 8—11);

from the prosecutor’s summation
10—10 at 12—13);

(3)

(2)

(ECF No.

(“IAC”)

(ECF No.

fair trial deprivation
10—8 at 12—13;

ECF No.

due process deprivation from trial court’s

failure to address juror’s prayer meeting and expert testimony

skepticism
at 14—15)

and

10—10 at 13—14);

(ECE No.

;

(5)

cumulative error

the Honorable Peter V.

Ryan,

J.S.C.,

written opinion dated January 7,

Nos.

at 15)

11-28,

(id.

After

11—29,

and 11—30),

in an order and lengthy

2013,

denied the PCR petitions

Rodriguez,

Manso,

of co-defendants Romero,

(id.

11-27,

(ECF Nos.

evidentiary hearings

excessive sentence

(4)

and Petitioner.

(Ec

10—11 and 10—12.)
On or about April 29,

appeal of PCR denial.
issues:

2013,

Petitioner filed a notice of

10-13.)

(ECF No.

He raised the following

PCR denial should be reversed because trial counsel

(1)

did not advise Petitioner of his right to testify;

and

(2)

PCR

denial violated Petitioner’s right to effective assistance of
counsel.

Perez,

2014 WL 5431323,

at *1.

On October 28,

2014,

the

Appellate Division affirmed Judge Ryan in a written opinion.
(Ibid.)

On May 22,

certification.

State v.

(ECF No.

denied PCR.

Perez,

2015,

On December 9,
petition.

the New Jersey Supreme Court denied

2015,

10—18.)

(Ibid.)

115 A.2d 832

(N.J.

2015)

Petitioner filed a second PCR
On July 18,

2016,

the state court

Petitioner did not appeal the denial of his

second PCR petition.
Petitioner executed his § 2254 petition on July 29,
(ECF No.

1 at 20—21.)

The Clerk’s Office of this Court received

and docketed it on August 4,
grounds for relief:

2016.

(1)

2016.

(ECF 1.)

He raises eight

trial counsel error in denying
6

Petitioner’s notion for a mistrial with respect to prosecutor’s
improper and prejudicial statements made to the jury during
1 at 7);

(ECF No.

summation

at 8);

(id.

juror misunderstanding of

requiring that Petitioner’s sentence be

reasonable doubt,
vacated

(2)

trial court error in failing to excuse a

(3)

juror who “expressed feelings of tear and canger as a result of
being followed by certain persons on a lunch break and because
this was discussed with other jurors”

(id.

(4)

at 9);

trial

court error in denying Petitioner’s mction for acquittal at the
conclusion of the State’s case as to the kidnapping counts of
the indictment

at 10);

(id.

(5)

Petitioner’s conviction and

sentence for felony murder should be vacated and dismissed
at 10—il)

;

(6)

(Id.

erroneous and prejudicial jury instruction on

felony murder based on failure to instruct on affirmative
defenses

(Id.

at 11);

(7)

trial court abuse of discretion in

imposition of consecutive sentences for murder and felony murder
(Id.

at 11);

and

(8)

excessive sentence based on disparity

between Petitioner’s and co—defendants’
On October 4,
9),
III.

2017,

sentences.

(Id.

Respondents filed an answer

to which Petitioner filed a reply.

(ECF No.

at 12.)

(ECF No.

16.)

SThNDAPD OF REVIEW

Under 28 U.S.C.

§ 2254 (a),

the district court “shall

entertain an application for a writ of habeas corpus

[o]n behalf

of a person in custody pursuant to the judgment of a State court
7

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.
v.

Richter,

634,

641

562 U.S.

(2003)

86,

98

(2011);

Price v.

See Ha rringt on
538 U.S.

Vincent,

District courts must attorci great deference to

.

the determinations of the state trial and appellate courts.
Renico v.

Left,

559 U.S.

766,

773

See

(2010)

Where state courts have adjudicated a claim on the merits,
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.
112,

114

§ 2254(d)(l)—(2).
(3d Cir.

2015)

See Conover v. Main,

(citing 28 U.S.C.

601 F. App’x

§ 2254(d)).

Federal law is “clearly established” for these purposes
where it is clearly expressed in “only the holdings,

as opposed

to the dicta” of the opinions of the United States Supreme
Court.

See Woods v.

Donald,

135 5.

Ct.

1372,

1376

(2015)

A decision is “contrary to” a Supreme Court holding within
the meaning of § 2254(d) (1)

if the state court “contradicts the
8

governing law set forth in

[the Supreme Court’sJ

cases” or if it

“confronts a set of facts that are materially indistinguishable
from a decision of th[e Supreme]
at a
06

[different]

Court and nevertheless arrives

result.” Williams v.

Taylor,

529 U.S.

362,

405-

(2000)
Under § 2254(d) (fl’s “‘unreasonable application’

clause,

a

federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from th{e
Supreme]

Court’s decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” Williams,
U.S.

at 413. With regard to § 2254(d) (1),

a federal court must

confine its examination to evidence in the record.
Pinholster,

563 U.S.

170,

and review under §

is limited to the record that was before the state court

that adjudicated the claim on the merits.
U.S.

See Cullen v.

(2011)

180—81

Petitioners carry the burden of proof,
2254(d)

529

at 100.

See Harrington,

562

“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.
at 102—03. 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
9

the presumption of correctness by clear and convincing
evidence.” 28

u.s.c.

§ 2254 (e) (1).

under these standards,

the relevant state court decision

that is appropriate for federal habeas corpus review is the last
reasoned state court decision.
289—90
IV.

See Bond v.

Beard,

539 F.3d 256,

Cir. 2008)

(3d

ANALYSIS

A. Ground One:

Prosecutor’s Prejudicial Summation Comments

Ground One alleges that the trial court erred when it
denied Petitioner’s motion for a mistrial that he filed as to
the prosecutor’s supposedly improper and prejudicial summation
comments.

(ECE No.

1 at 7

(“Mistrial claim”).)

claim contends that the prosecutor:
counsel

The Mistrial

unfairly criticized defense

(“Counsel Criticism Comment”); and improperly referred

to a witness’s courage on the stand
Counsel Criticism Comment:

(“Witness Courage Comment”).

In summation,

the prosecutor

referred to the summation claim by Romero’s counsel that an
investigator had coached defendant David Martinez to implicate
defendant Charles Byrd by repeatedly referring to his chin and
stroking it
29;

ECE No.

(an allusion to Byrd’s nickname).
11—19 at 29.)

(ECF No.

10—7 at

The prosecutor pointed out that there

was no evidence to support that theory,

stating:

Counsel yesterday took some liberties.
not saying they did it wrong, they’re
entitled to tell their version of the
10

I’m

evidence, but they said some things that
were not accurate. They’re allowed to tell
you what they think the evidence is, but
what they think the evidence is doesn’t
count. Vqhat counts is what the witnesses
said during that period.
They said several things. I wrote them down.
During that time, [Romero’s counsel] said
police officers
Lonnie Melendez said the
said, chin, can you help us, chin, my shinny
it was
chin, chinny chin (demonstrating)
story, it was amusing. It’s not
a wonderful
part of the case. There’s no evidence
anybody says that.
.

.

.

——

His job is to challenge the State’s
evidence. His job is to get his client off,
but when he makes up something like that,
somebody [in the jury room] has got to
say, time out, that’s a statement of a
defense attorney. He’s not doing anything
wrong, he’s legally entitled to do that, but
that’s not your tools.
(ECE No.

11—20 at 15—16.)

Defense counsel objected.
Lester,

Honorable Betty J.

objections outright.
Criticism Comment
his client off”
However,

——

—

(ECF No.

11—20 at 53—54.)

The

did not reject the defense’s

J.S.C.

(Judge Lester agreed that the Counsel

i.e., that defense counsel’s job was “to get
(ECE No.

was improper.

the judge found that,

in context,

10—7 at 30,

32.)

it was not so

egregious as to deprive any defendant of a fair trial.

“The

prosecutor did not disparage defense counsel or attempt to
elevate his own position.”

(Ibid.)

these curative instructions:

11

Nevertheless,

she issued

Mr. Bogdanski commented it is also a defense
attorney’s job to get his client off. This
is not accurate and should not be considered
by this jury. It is not the job of defense
counsel to get their clients off. :n other
words, this remark was improper, it
represents a misstatement of the defense
attorney’s position in the trial of a
His duty is to see to it
criminal case
that the lawful rights and privileges of an
accused dLC auL lliVnced dnd th0t he is not
convicted except on legal evidence and due
process of law. This is the role of defense
counsel.
.

.

.

The jury is, therefore, advised they are to
disregard that comment by Mr. Bogdanski. It
was an improper comment, and it should play
no role in your deliberations.
(ECE No.

11-20 at 53—54 and 58—60;

LOF No.

11—21 at 4—17 and

37.)
Witness Courage Comment:

During summation,

the prosecutor

commented on the “courage and oommitment to human life” that
Juan DeJesus showed when he took the witness stand:
For him to take the witness stand showed a
respect for human life, it showed courage.
He knows firsthand what those men over there
are capable of. He knows just what they can
atin King
do in the drop of a hat for
reasons. You can be ta<en out, but he had
the courage to come on that witness stand
and tell us what happened.
Did you hear any prior record about him?
Didn’t hear any other bad aots about him.
said, “I made a mistake”
.

He

.

He showed courage to come here. It’s a
courage you’ 11 have to show, you’ 11 all have
to show at some point.

12

(ECF No.

11—20 at 38;

ECE’ No.

10—7 at 29—30.)

After considering counsel’s objection to the prosecutor’s
comment
29,

(ECE No.

35—36)

,

11—20 at 53;

ECF No.

11—14,

11—21 at 5,

15—16,

Judge Lester found that there was no overreaching in

the Witness Courage Comment

——

i.e.,

that it required courage

for DeJesus to confront defendants and tell his story in court
because he saw firsthand what happened to the victims and would
naturally fear retribution.

(EC’ Nc.

10—7 at 31,

32—33.)

The

judge found the ccmment was “easily subject to the
which was that it

interpretaticn claimed by the prosecutor,

referred to courage needed generally in life,

and did not exhort

the jury to have the courage to return a guilty verdict.”
at 31.)

(Id.

Since the comment was susceptible of more than one

interpretation,

it was not so egregious as to lead to a
either by itself or in

deprivation of the right to a fair trial,
(ibid.)

combination with other statements.

While not outright rejecting defense counsel’s objections
Judge Lester curatively

to the Witness Criticism Comment,
instructed the jury that:

[The Witness Courage Comment] is subject to
Being a
more than one interpretation
is not a question of courage, it
juror
is a question of fairness, it is a question
of calm deliberation, without passion,
This is the
prejudice or sympathy
Courage has nothing
function of the jury
to do with that. You are to disregard the
.

.

.

.

.

.

.

.

.

13

.

.

.

made by counsel

[Witness Courage Comment]
during his summation.”
(ECE No.

11—21 at 35—36.)

Procedural History:
direct appeal.
rejected it,

(ECF No.

Petitioner raised the Mistrial Claim on
10—7 at 93.)

The Appellate Division

relying on the court’s rationale with respect to

Romero’s identical argument.

at 27—35 and 95.)

(Id.

The

Appellate Division found that Judge Lester’s curative
instructions as to the Counsel Criticism and Witness Courage
Comments had been “detailed and complete” and had been given at
an “appropriate time” at trial.

(Id.

at 27—28,

34

(agreeing with

Judge Lester that the comments were “isolated and rendered
harmless by curative instructions”).)
Petitioner raised the Mistrial Claim in his first PCR
petition.

10—8 at 12 and 10—10 at 12.)

(ECF Nos.

Division declined to reach the argument,

“as

[it]

The Appellate
w[as]

or should have been raised on defendant’s direct appeal,
exception applies.

R.

3:22—3; R.

and no

3:22—5.” Petitioner did not

raise the Mistrial Claim during appeal of PCR denial.
2014 WL 5431323,

raised

Perez,

at *1.

Applicable Law:

The United States Supreme Court has held

that prosecutorial misconduct is insufficient to overturn a
conviction unless it “so infect[s]

the trial with unfairness as

to make the resulting conviction a denial of due process.” Greer

14

v.

483 U.S. 756, 765

Miller,

DeChristoforo,

416 U.S.

(1987)
643

637,

(quoting Donnelly v.

(1974)).

It is not enough to

show that a prosecutor’s remarks were inappropriate or even
deserving of universal condemnation.
U.S.

168,

181

(1986)

misconduct must be

.

Darden

v.

To offend due process,

477

Wainwright,

“the prosecutorial

‘ot sutticient significance to Lsul lii Lito
483

denial of the defendant’s right to a fair trial.’” Greer,
U.S.

at 765

(1985)

(quoting United States v.

(1976))).
Cir.

(citing United States v.

See also Werts v.

2000);

Ramseur v.

Bagley,

Agurs,

Vaughn,

427 U.S.

228 F.3d 178,

983 F.2d 1215,

Beyer,

1239

97,

676

667,

473 U.S.

108

197—98

(3d

(3d Cir.

1992)

(federal habeas review of a prosecutor’s conduct in a state
trial is limited to determining whether it “‘so infect[ed]

the

trial with unfairness as to make the resulting conviction a
denial of due process’”

(quoting Greer,

483 U.S.

at 765)).

A reviewing court must “examine the prosecutor’s offensive
actions in context and in light of the entire trial,

the effect of the curative

the severity of the conduct,
instructions,

assessing

and the quantum of evidence against the
255 F.3d 95,

defendant.” Moore v. Morton,

K internal citations omitted)

.

107

(3d Cir.

2001)

As to prosecutorial remarks,

they

“must be sufficiently prejudicial in the context of the entire
trial to violate due process rights.” Werts,

15

228 F.3d at 198.

The Mistrial Claim Lacks Merit:

This Court has reviewed the

prosecutor’s summation in its entirety and in the context of the
evidence presented at trial.

The Counsel Criticism and Witness

Courage Comments did not rise to the level that would deprive
Petitioner of a fair trial.

The Appellate Division was

objectively reasonable in ruling that these two comments were
not egregious and that they did not deny Petitioner his right to
a fair trial. New Jersey courts did not unreasonably apply
clearly established federal law in rejecting Petitioner’s
challenges to the Counsel Criticism and Witness Courage
Comments.

The Counsel Criticism comment did not disparage

defense counsel or attempt to elevate the prosecutor’s position.
The Witness Courage Comment reasonably could have referred to
the courage required by “life generally”
31)

,

(see ECF’ No.

10—7 at

and not to that needed to return a guilty verdict.
This Court will deny relief on Ground One.
B. Ground Two:

Jury’s Misunderstanding Of Reasonable Doubt

Ground Two seeks to vacate Petitioner’s convictions because
the jury supposedly did not understand the concept of reasonable
doubt.

(ECF No.

1 at 8

(“Reasonable Doubt Claim”)

Reasonable Doubt Jury Charge At Trial:
the jury on reasonable doubt as follows,

Judge Lester charged

in pertinent part:

[U]nless each and every essential element of
an offense charged is proven beyond a

16

reasonable doubt, the defendant must be
found not guilty of that charge.
The burden of proving each element of a
charge beyond a reasonable doubt rests with
the State of New Jersey and that burden
never shifts. [I]t never becomes the
[defendant’s] obligation to prove his
innocence, nor offer any proof relating to
his innocence
The Prosecution must prove its case by more
than a mere preponderance of the evidence,
yet not necessarily to absolute certainty.
In criminal cases, the State’s proof must be
more powerful than {“more likely true than
not”], it must be beyond a reasonable doubt.
A reasonable doubt is an honest and
reasonable uncertainty as to the guilt of a
defendant after you have given a full and
impartial consideration to all of the
evidence in the case. A reasonable doubt may
arise from the evidence itself [or] from
lack of evidence
.

Proof beyond a reasonable doubt is proof
that leaves you firmly convinced of a
defendant’s guilt. In this world we know
very few things with absolutely certainty in
criminal cases. The law does not require
proof beyond every possible doubt. If you
are convinced of guilt, you must find
[defendant] guilty. If not firmly convinced
of guilt, you must give him the benefit of
the doubt and find him not guilty.
(ECF No.

11—21 at 36—37.)

Petitioner’s counsel did not object to

the reasonable doubt charge.
During deliberations,

(ECF No.

11—21;

ECF No.

1 at 8.)

the jury announced that it had

reached a unanimous verdict as to four co—defendants and asked
for a re—charge on reasonable doubt’s definition.
17

(ECE” No.

11—25

at 22,

and 38.)

26,

in full,

Judge Lester re—read,

the model

jury charge on reasonable doubt that she originally charged.
(ECF No.

32 and 38—39;

11—25 at 26,

Direct appeal:

On direct appeal,

co-defendants Manso and

Perez asserted the Reasonable Doubt Claim.
The Appellate Division rejected it,

10—7 at 63.)

ECF No.

10—7 at 63.)

(ECE No.

explaining as follows:

“Judges have been directed not to deviate from the definition of
reasonable doubt contained in the model jury charge. Moreover,
deliberative process is

judicial inquiry into the jurors’
prohibited . . .
influence[]
147 N.J.

.“

43,

[in situations of]

except
(ECF No.

60-61

10—7 at 63—64

(1996),

cert.

extraneous

. . .

[juror]

(citing State v. Medina,

denied,

520 U.S.

1190

(1997) .)

This Court finds that that the Reasonable Doubt Claim does
not merit habeas relief.
Applicable Law:

Questions relating to jury charges are

normally matters of state law and procedure,

and they do not

constitute claims for federal habeas review.

See Engle,

at 107.

456 U.S.

It is well—established that “a state court’s

misapplication of its own law does not generally raise a
constitutional claim.

The federal courts have no supervisory

authority over state judicial proceedings and may intervene only
to correct wrongs of constitutional dimension.” Smith v.
120 F.3d 400,
denied,

414

522 U.S.

(3d Cir.
1109

(citations omitted),

1997)

(1998) .

See also Engle v.
18

Isaac,

Horn,

cert.
456 U.S.

(1982);

107

Cir.),
F.

Zettlemoyer v.

cert.

Supp.

408,

denied,
412

Fulcomer,

U.s.

502

(D.N.J.

(1991);

902

1987).

309

923 F.2d 284,
Grecco v.

“[T]he fact that

(3d
66

O’Lone,

[an]

instruction was allegedly incorrect under state law is not a
basis for habeas relief.” Estelle v. McGuire,

502 U.S.

62,

71—72

1T991)
Consistent with this clearly established federal law,

a

habeas petitioner carries the burden when he or she atte2pts to
demonstrate that an erroneous instruction so prejudiced a jury
as to require a reviewing court to alter,
sentence.

vacate or set aside a

That burden “is ever greater than the showing required

to establish plain error on appeal.” Henderson v.
U.S.

145,

154

(1977).

Kibbe, 431

Petitioners must show that “‘the ailing

instruction by itself so infected the entire trial that the
resulting conviction violates due process,’
414 U.S.

141,

undesirable,

147

(1973),

erroneous,

(Cupp v.

not merely whether the

or even

Naughten,

‘instruction is

‘universally condemned.’” Id. A

habeas petitioner must establish that supposed instructional
error “had substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht v.
619,

637

(1993)

.

Abrahamson,

507 U.S.

The error must have resulted in “actual

prejudice.” Ibid.
In instructing a jury at the conclusion of a criminal
trial,

a court must convey the burden of proof of reasonable
19

doubt.

United States v.

Isaac,

134 F.3d 199

(3d Cir.

1998)

.

To

determine whether a trial court has adequately conveyed the
burden of proof to a jury,
instructions as a whole.

the reviewing court tust consider the

Due process is satisfied if the

instructions as a whole accurately convey the concept of
reasonable doubt.

TH

Jnry

ifltrC]Qfls

vin1at

nhi

prnrss nnly

where they have “operated to lift the burden of proof on an
essential element of an offense as defined by state law.” Smith,
120 F.3d at 416.
(1979)

See Sandstrom v.

Montana,

442

u.s.

510,

523

(a jury instruction suggesting that jury may convict

without proving each element of crime beyond reasonable doubt
violates constitutional rights);
364

(970)

ifl

re Winship,

397 C.S.

358,

(due process requires proof beyond reasonable doubt

of each fact necessary to constitute the crime with which
defendant is charged)
The Reasonable Doubt Claim Lacks Merit: After reviewing the
entirety of the jury instructions from Petitioner’s trial in
context,

this Court finds that they,

as a whole,

constitutional standards described supra.

met the

The reasonable doubt

charge provided the jury with a full understanding of;
definition of reasonable doubt;

the

and the fact that the State was

required as a matter of law to prove its case under that
standard.

specifically,

the instructions:

informed the jury that

Petitioner was to be presuned innocent unless proven guilty
20

beyond a reascnabie doubt;

instructed the jury as to what could

constitute reasonable doubt;

and explained that reasonable doubt

did not mean a finding of guilt beyond all possible doubt.
Significantly,

Judge Lester’s reasonable doubt instruction

and re—charge were consistent with State v.
1242

1996).

(N.J.

The Medina decision “directs’

not to deviate from the definition
contained in this opinion.” Medina,

685 A.2d

Medina,

trial courts

[of reasonable doubt]
685 A.2d at 1251—52.

Judge

Lester tracked precisely the language adopted in Medina.
No.

11—25 at 26,

32 and 38-39;

ECF No.

10—7 at 63;

(ECE

LOP No.

li—21

at 36—37.)
Petitioner argues that Judge Lester “had the duty and
obligation to clarify” her original instruction when providing
the re—charge

(ECF No.

1 at 9),

but he does not identify any

United States Supreme Court precedent requiring such
clarification.
authority,

This Court identifies no such precedential

either. As commanded by the New Jersey Supreme Court,

Judge Lester expressly followed Medina’s specific directive when
charging and re—charging on reasonable doubt.

These

circumstances do not make for habeas relief.
Petitioner also contends “it must be assumed that the jury
did not understand the initia

[reasonable doubt]

because jurors ‘request[ed]” a re—charge.
However,

(ECF No.

charge”
1 at 9.)

unsupported suppositions such as these do not satisfy
21

the constitutional standard for habeas relief on jury charge
claims.

Petitioner has not shown that the reasonable doubt

instruction or re—charge were fundamentally unfair or that they
?4oreover,

violated due process.
jury,

he has not demonstrated that the

in fact, misunderstood Medina’s short and plain reasonable

doubt charge as delivered by Judge Lester.
instructions,

presumed to follow courts’
481 U.S.

200,

Marsh,

Richardson v.

this Court has no basis upon which to

(1987),

211

Given that juries are

question the jury’s process or comprehension here as to the
concept of reasonable doubt. There is no principled basis fcr

compliance;

and

(1)

considering:

the Court to do so,

Judge Lester’s Medina

the principle that it is not the province of

(2)

federal habeas courts to intrude into and second—guess jurors’
deliberative process.
147

(3d Cir.

Fattab,

See United States v.

914 F.3d 112,

(“Once the jury retires to deliberate,

2019)

the

confidentiality of its deliberations must be closely guarded”)
United States v.

Boone,

458 F.3d 321,

329

(3d Cir.

(“It is

2006)

beyond question that the secrecy of delibe rations is critical to
the success of the jury system”)
F.3d 940

2015)

(9th Cir.

.

See also Kyzar v.

Inst.,

(“on habeas review,
second-jury th[e]

780

(a federal habeas court may not second—
Conley v.

guess the jury’s credibility assessments);
Chillcothe Corr.

Ryan,

505 F. App’x 501,

505

Warden of

(6th Cir.

2012)

the federal courts are in no position to

[jury’s]

determination”);
22

Anderson v.

Sternes,

243 F.3d 1049,

(7th Cir.

1058

this habeas action

.

.

.

2001)

in

(“it is not our job

to second-guess the jury’s assessment

There are a myriad of reasons why any given jury could
request a re—charge on any particular instruction.

This Court

will not accept Petitioner’s invitation to read into the re
charge request here the “assumption”

1 at

(ECF No.

R—Q)

thpt

jurors were having difficulty comprehending the concept of
reasonable doubt.
The Court denies relief as to the Reasonable Doubt Claim.
C. Ground Three: Juror Influence Claim
Ground Three argues that Judge lester should have excused
juror number thirteen

(“Juror Thirteen”)

because he “expressed

feelings of fear and danger as a result of being followed by
certain persons on a lunch break and because this was discussed
with other jurors.”

(ECF’ No.

1 at 9

(“Juror Influence Claim”).)

Petitioner claims that Juror Thirteen told Judge Lester that
“during the lunch hour

[one day during triall

,

these persons

following him. As he was crossing the street,
laughed and joked so as to intimidate him.”
Petitioner,

four people were

(Ibid.)

According to

Juror Thirteen said that the individuals had not

been back in the courtroom since the incident.
according to Petitioner,

However,

Juror Thirteen reported being “afraid”

and “uncomfortable” because “[h] e believed this conduct was to
let him know that he was in danger.”
23

(Ibid.)

Petitioner argues

that Juror Thirteen “should have been dismissed because his
exposure had the capacity of influencing the result of the
trial”.

Petitioner contends that Judge Lester “should

(Ibid.)

r
have voir dired the entire jury in order to determine whethe
other[s

may have been exposed to such an encounter or were nade

aware of

[J]uror

(Ibid.)

[T]hirteen[’s.]”

The Record As To Supposed Influence On Juror Thirteen:
February 18,

On

Judge Lester announced that three jurors had

2000,

ce had
told the sheriff’s officer that someone from the audien
attempted to speak to them.

The judge determined that she should

question the jurors.
Juror fourteen reported that when she and juror eleven were
leaving the courthouse the day before,

someone who had been in
“What do

the courtroom audience walked up behind them and asked:
and no more was said.

you think?” She did not respond,

Juror

from
fourteen believed that this incident did not prevent her
remaining fair and impartial,
occurred.

(ECF No.

since no further questions

10-7 at 22—23.)

Juror eleven confirmed this account,
had responded:

though she said she

“I don’t know nothing.” She,

too,

believed the

being a
mere attempt to talk to her would not prevent her from
fair juror.

(Id.

at 23.)

to
Juror Thirteen said that no one had attempted to speak
him about the case.

He explained,
24

though,

that he had been

“followed by four people” who crossed the street each time he
did.

They “kind of laughed and joked as

That’s what the intention was.”

(Id.

to intimidate me.

[if]

(“the Incident”).)

He

believed that perhaps more juror security would be desirable,
“only because I know that there was a tactic that was executed
upon me when I was alone.”

(id.)

Juror ThiiLeii ieuuynlied the

individuals from the Incident as having been present in the
courtroom that morning.
the time.

(Id.

at 24.)

He said he was afraid at
to let him know he

He thought it was a scare tactic,

was in danger.

He added:

“Let’s put it this way.

I don’t like

(Id.)

being out in that hall when we’re waiting.”

However,

he

vehemently denied that he had a level of discomfort that would
(Id.

prevent him being a fair and impartial juror.

(“What’s

going on with the trial and what people are sitting here are two
different things,
know who they are,
all”).)

and the people that are sitting here,
what their allegiance is.

The judge asked:

I don’t

I know nothing at

“Do you feel you can be a fair and

impartial juror?” Juror Thirteen answered:

“Absolutely.”

(Id.)

Judge Lester instructed all three jurors not to discuss the
matter with the other jurors.

(Id.)

The judge:

defense’s request to excuse Juror Thirteen;

denied the

instructed the

entire jury as to how to treat approaches from outsiders;
instituted additional measures to keeping jurors away from
spectators.

(Id.; ECF No.

11—8 at 105—06.)
25

and

Direct appeal as to Juror Thirteen:

Defendants Rodriguez,

Romero,

and Perez raised the Juror Influence Claim on direct

appeal.

(ECE No.

rejected it.

10—7 at 22-25 and 94.)

(Id.

at 25.)

The Appellate Division

The court acknowledged federal cases

on Sixth Amendment law that “the accused has a constitutional
right to a trial by an impartial jury,” which

iiipiis

Llipt

defendant is entitled to a jury free of outside influences.”
(Ibid.

(internal citations omitted)

.

) Referring to state court

the Appellate Division noted that

cases on this principle,

“[t]he test for determining whether irregular influences on
jurors merit a new trial is whether it

‘could have a tendency to

influence the jury in arriving at its verdict in a manner
inconsistent with the legal proofs and the court’s charge.’”
(Ibid.

(internal citations omitted).)

Applying this law,

the Appellate Division ruled that Judge

Lester had “acted within her discretion” in denying the request
to excuse Juror Thirteen.

The court found that Petitioner and

his co-defendants:
[S]peculate[] that the juror was influenced
by fear to find him guilty on all counts.
However, influence cannot be inferred merely
because that was the verdict. As juror
thirteen made clear, he did not get any
message which way the outsiders might have
wanted to influence him, if at all, or, as
he said, what their “allegiance was.” The
incident was without content, and was
related to the trial only because he
26

recognized the people as spectators. F-Ic was
prompted to bring it to the attention of the
judge only to support additional protective
measures for the jury. [I]n this regard[,]
no error “clearly capable of producing an
unjust result” occurred in this context.
The New Jersey Supreme Court denied

10-7 at 27.)

(ECE No.

ceLL±fIdt±un.

State v.

Applicable Law:

Perez,

Const.

7.

2flfl4)

The Sixth Amendment guarantees every

criminal defendant “the right to a
jury.” U.S.

(N.

859 A.2d 692

amend. VI.

...

trial[]

by an impartial

Complementing this right are the

protections afforded by the Fourteenth Amendment’s Due Process
Clause,

which have “long demanded that,

provided the defendant,
Amendment requires it,

if a jury is to be

regardless of whether the Sixth
the jury must stand impartial and

indifferent to the extent commanded by the Sixth Amendment.”
Morgan v.
Maxwell,

Illinois, 504 U.S.
384 U.S.

333,

362

719,

(1966)

727

(1992);

Sheppard v.

(the Fourteenth Amendment

guarantees each criminal defendant the right to a trial by an
impartial jury free of outside influences)
Williams,

459 A.2d 641

(N.J.

1983)

.

Accord State v.

(“it has long been recognized

under the federal Constitution that a defendant is entitled to a
jury that is free of outside influences and will decide the case
according to the evidence and arguments presented in court in
the course of the criminal trial itself”)

27

The federal precedents governing when a third party’s
an
contact with a jury violates a criminal defendant’s right to

(“Rammer I”),
(“Rammer II”),

Rammer v.

Phillips,

455

u.s.

227

209

(1954)

(1956)

377

350 U.S.

United States,

and Smith v.

u.s.

347

United States,

impartial jury are Rernzrer v.

(1982).

If allegations of jury bias involve a third party’s contact
the
with a juror during a trial about the matter pending before
jury,

the contact is deemed presumptively prejudicial to the

defendant

.

F.3d 256,

266

(3d Cir.

2002)

.

prejudice is not conclusive.
Ren1mer 1,

at 229;

Rammer 1, 347 U.S.

347 U.S.

at 229).

United States v.

However,

Vega,

285

this presumption of

285 F.3d at 266

(citing

The trial court must conduct a

hearing to “determine the circumstances,
the juror,

Vega,

and whether or not

the impact thereof upon

[the contact]

was prejudicial,

in

pate.”
a hearing with all interested parties permitted to partici
Rammer 1,

347 0.5.

at 230.

The government has the burden of

the
rebutting the presumption by showing that the “contact with
juror was harmless to the defendant.” Id.
Vega,

285 F.3d at 266

at 229-30;

see also

(government must prove that the improper

“In a criminal case, any private communication, contact, or
trial
tampering directly or indirectly, with a juror during a
deemed
is
about the matter pending before the jury
presumptively prejudicial, if not made in pursuance of known
the
rules of the court and the instructions and directions of
dge of the
court made during the trial, with full knowle
at
parties.” Vega, 285 .3d at 266 (quoting Rammer 1, 347 U.S.
229)

3

.

28

.

.

communication did not and will not prejudice the defendant)

“If

.

is found to be harmful,” the trial court should

[the incident]

grant a new trial.

Rammer 1,

347 U.S.

at 229-30.

Remmer i’s rebuttable presumption only applies in cases
[about the matter pending

involving a “direct communication

between a juror and a third party durliiy

before the jury]

deliberations.” United States v.
Cir.

2001)

Lloyd,

269 F.3d 228,

238—39

(3d

(“This court has applied the presumption of prejudice

only when the extraneous information is of a considerably
serious nature.

In particular,

we have tended to apply the

presumption of prejudice when a juror is directly contacted by
third-parties”)
666

(3d Cir.

(citing United States v.

1993)

Console,

13 F.3d 641,

(discussing circumstances warranting

application of Rammer I’s presumption of prejudice and those
situations warranting Smith’s actual prejudice analysis)
Accord Vega,
705,

710

285 F.3d at 266

(3d Cir.

1993)

(citing Waldorf v.

and Console,

Shuta,

13 F.3d at 667).

3 F.3d
A new

trial will only be warranted if defendant proves that he was
actually prejudiced by the improper contact.
215,

Smith, 455 U.S.

217—18.
In short,

allegations,

once a defendant makes jury partiality

a hearing must occur to determine the effect any

improper jury contact had on defendant’s trial.
U.S.

at

at 215.

See Smith,

The government must prove that the contact was
29

455

and when Smith applies,

harmless in order to avoid a re—trial;

the defendant must prove that he was actually prejudiced by the
contact in order to get a re-trial.
The Juror Influence Claim Is Without Merit; The Appellate
Division’s ruling

--

that Judge Lester did not abuse her

dlscretion in addressing the juror contact issue
at 95)

——

(EC? No.

10—7

was not contrary to or an unreasonable application ci

federal precedent for at least two reasons.
First,

the Incident did not convey any communication to

Juror Thirteen about Petitioner’s case.
Appellate Division correctly r.oted,
the first instance.

That is,

as the

there was no influence in

Juror Thirteen “did not get any message”

from the individuals on the street.

(ECF No.

10—7 at 27.)

The

individuals who followed him only “kind of laughed and joked as
[if]

to intimidate” him.

[that]

(Id.

at 23.)

Juror Thirteen “made clear

he did not get any message which way the outsiders night

have wanted to influence him,

if at all.”

(Id.)

Rather,

Juror

Thirteen harbored only a belief about the Incident as a scare
at 24.)

He expressly said he knew “nothing at all”

tactic.

(Id.

(ibid.)

about who the individuals were in relation to the trial.4

Under 28 U.S.C. § 2254(d), the state court findings of fact are
presumed to be correct; and Petitioner has failed to rebut that
presumption. Further, under § 2254(d) state court conclusions of
law are binding on a federal habeas court unless contrary to, or
an unreasonable application of, clearly established federal law,
as determined by the Supreme Court of the United States.
30

As the Appellate Division concluded,
without content.”

(Id.)

“[t]he

[lincident was

Petitioner has not shown there was

contact with Juror Thirteen about a matter pending before the
Therefore,

jury.

federal precedent does not mandate a

presumption of prejudice with respect to the Juror Influence
Claim.

The state courts’

rulings were not contrary to and did

not unreasonably apply United States Supreme Court precedent.
Second,

even assuming arguendo that the two individuals’
(ECF No.

trail of Juror Thirteen on the street

10—7 at 22—23)

constituted direct contact with him that triggered Remmer I’s
that would not change the

rebuttable presumption of prejudice,
outcome here.

The state court objectively and reasonably could

have determined that the probable effect of the two individuals’
non—verbal pursuit did not prejudice Petitioner’s case.

Indeed,

“the presumption of prejudice is effectively rebutted by a
juror’s credible profession of impartiality.” United States
Smith,

319 F.

States v.

Supp.2d 527,

Berry,

132 F.

533

(E.D.

App’x 957,

Pa.

965

2004).

(3d Cir.

V.

See also United
Juror

2005).

Thirteen made precisely such a professicn to the trial judge
here-

(ECF 10—2 at 23—24.)

Juror Thirteen did not indicate

anything that would prevent him from being fair and impartial,
or that the Incident would affect his vote

.

Rater,

affirmatively stated that he could remain impartial.
at 23—24.)
31

he
(ECF 10—2

Furthermore,

there was sufficient evidence apart from his

own subjective assessment to support the trial court’s
conclusion on the impact of the Incident.

For example,

Juror

Thirteen did not find the Incident significant enough to mention
to anyone until another juror said she had been approached.
No.

10—7 at 23.)

(ECE

This suggests that his level of fear was mild

and that his profession of impartiality was credible.
benefit of observinc his credibility,

Having the

Judge Lester concluded

that there had been no unconstitutional outside influences and
that similar concerns going forward could be addressed by
additional safety measures.
Petitioner points to nothing in the record demonstrating
otherwise.

Petitioner offered the state courts no showing that

Juror Thirteen voted in favor of conviction because of the
incident.
to him.

Petitioner presented nothing showing actual prejudice

Rather,

as the Appellate Division similarly noted of the

record before it,

claim

Petitioner bases the Juror Influence

mere “speculation]

that the juror was influenced by fear to

find him guilty on all counts.”
influence “cannot be inferred”

(ECF No.
(id.)

——

10—7 at 27.)

Yet,

juror

nor can unconstitutional

actual prejudice.
For these reasons,

the state court’s decision was

consistent with relevant federal precedent under either
scenario.

See Lloyd,

on

269 F.3d at 238—39;
32

Console,

13 F.3d at

666.

The state court reasonably could have

Cl)

that is:

determined that there was no considerably serious third-party
direct contact with Juror Thirteen so as to warrant Remmer I’s
rebuttable presumption;
that,

and,

alternatively,

(2)

the record shows

even if direct contact occurred and triggered Remmer l’s

presumption,

it was harmless because Juror Thirteen remained

impartial.
Ground Three will be denied.
IL Ground Four: Petitioner’s Motion For Acquittal At Trial
Ground Four argues that Petitioner’s motion for acquittal
as to the indictment’s kidnapping counts should have been
granted.

I at 10

(ECF No.

(“Acquittal Motion Claim”)

Ground

)

Four describes “[t]he underlying crimes in this matter” as the
attempted murder of Omar W.
D.

and Cabrera.

(Ibid.)

and Cortes,

and the murders of Omar

In support of Ground Four,

Petitioner

argues that “[t]he confinement of these persons was merely
incidental to the ultimate crimes that were committed
harm to the [m]
confinement.”

.

.

.

was not enhanced as a result of their
(Ibid.)

He argues that,

“[f]or these reasons,” his

:<idnaping conviction should be vacated.
Trial Record: At trial,
as to kidnapping.

(Ibid.)

all defendants moved for acquittal

Judge Lester denied the motions,

finding the

State had sustained its burden to show a prima facie case.
No.

1 at 10.)

The

(ElF

The judge determined that the kidnapping began not
33

when the victims were picked up in cars but rather at the gang
meeting at Romero’s home.
Direct Appeal:

(ECF No.

10—7 at 64.)

Petitioner raised the Acquittal Motion Claim

during direct appeal.

(ECF No.

10-7 at 94.)

Jersey Rule of Court 3:l8-l and N.J.

Relying on New

Stat. Ann.

the Appellate Division rejected the claim.

(Id.

§ 20:13—1(b),6
at 64—65.)

The

court also relied on New Jersey cases that have held that “to
support convictions for both kidnapping and another crime,

the

confinement must be more than merely incidental to the
underlying crime.”
this governing law,

(Id.

(internal citations omitted).)

Aoplyinq

the Appellate Division was “satisfied that

the evidence was sufficient to sustain the Kidnapping charges”
against Petitioner because “[cjonfinement is more than
incidental if it results in an enhanced risk of harm.”

(Ibid.)

Those were the circumstances as to the kidnappings here.

“At the close of the State’ s case or after the evidence of all
parties has been closed, the court shall, on defendant’s motion
or its own initiative, order the entry of a judgment of
acquittal of one or more offenses charged in the indictment or
accusation if the evidence is insufficient to warrant a
conviction.” New Jersey Rule of Court 3:18—1.
6 “A person is guilty of kidnapping if he unlawfully removes
another from his place of residence or business, or a
substantial distance from the vicinity where he is found, or if
he unlawfully confines another for a substantial period, with
any of the following purposes: (1) To facilitate commission of
any crime or flight thereafter; (2) To inflict bodily injury on
N.J. Stat. Ann. §
or to terrorize the victim or another
20:13—1(b).
34

This Court determines that habeas relief is not warranted
on the Acquittal Motion Claim.
Applicable Law;
cases de novo,

Federa

courts do not sit to retry state

but rather to review for violation of federal

constitutional standards. Milton v.
—3-77

(1972)

.

Wainwright, 407

J.S.

371,

In Milton the Supreme Court held that a habe

cnnrr

cannot close its eyes to the reality of overwhelming evidence of
guilt fairly established in the trial court.
Similarly,

Id.

at 377.

this Court cannot close its eyes to the evidence,

found by the state courts,

as

of a prima facie kidnapping case

against Petitioner at the close of the State’s case.
:n reviewing caims that trial evidence was insufficient
for a conviction,

habeas courts ask whether,

after viewing the

evidence in the light most favorable to the prosecution,

“any

rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Jackson v.
443 U.S.

307,

319

(1979).

This standard gives due regard to the
resolve conflicts in

factfinder’s ability to view the evidence,
it,

Virginia,

and draw reasonable inferences from it.

Ibid.

The reviewing

court does not re—weigh the evidence or re—determine the
credibility of witnesses whose demeanor the factfinder has
observed. Marshall

V.

Lonberger, 459 U.S.

422,

434

(1983)

Determination of witness credibility is within the factfinder’s
sole province and is not subject to review.
35

Virgin Islands v.

Isaac,

1179

50 F.3d 1175,

218

964 F.2d 193,

Pelullo,

(3d Cir.

United States v.

1995);
1992)

(3d Cir.

.

The habeas court does

not substitute its jcdgent for the factfinder’s.
55 F.3d 1059,

Scott,

Weeks v.

(5th Cir.

1061

e.g.,

See,

1995).

New Jersey law is consistent with these principles as to

Div.

4,

Aug.

acquittal,

at *3

2017 WL 3318303,

No. A—2708—14T3,

State v.

e.g.,

See,

review of acquittal motion rulings.

Super.

(N.J.

Ct. App.

(when considering a motion for judgment of

2017)

the trial court is to determine “whether,

viewing the

be that evidence direct or

State’s evidence in its entirety,
circumstantial,

Valdez,

and giving the State the benefit of all its

favorable testimony as well as all of the favorable inferences
a reasonable

which reasonably could be drawn therefrom,
[factfinder]

State v.

doubt”);
2007)

could find guilt of the charge beyond a reasonable
Samuels,

914 A.2d 1250,

(internal citations omitted)

.

A.2d 385,
1235—36
A.2d 488

388

(N.J.
(N.J.

(N.J.
Super.

1967)

See,

and State v.

Ct. App.

Div.

(N.J.

Jan.

31,

The court must view the

evidence most favorably to the state,
with the weight of the evidence.

1254

and ought not be concerned
e.g.,

State v.

Reyes,

236

Muniz, 375 A.2d 1234,

1977),

certif.

denied, 391

1978)).

The Acquittal Motion Claim Lacks Merit:

Ground Four lacks

merit for at least the following three reasons.

36

Petitioner endeavors to challenge the state courts’

First,

acquittal rulings based on New Jersey kidnapping rules and its
procedural Rules of Court.

His claim presents a state law issue
Habeas relief is

that does not warrant federal habeas relief.

only available if a state prisoner is in custody in violation of
laws,

the Constitution,
U.S.C.

or treaties of the Uniteo States.

28

“[F]ederal courts may intervene in the state

§ 2254(a).

judicial process only to correct wrongs of a constitutional
dimension.” Wainwright v.

464 u.s.

Goode,

Ground Four raises a matter of state law.

78,

83

(1983)

The Acquittal Notion

Claim does not raise a federal constitutional question.
Pulley v.

465 u.S.

Harris,

second,

37,

41

Here,

.

See

(1984).

under the foregoing standard,

Petitioner has rot

demonstrated a “wrong of constitutional dimension,” Wainwright,
464 u.s.
To do so,

at 83,

to warrant habeas intervention on Ground Four.

he would have to show that,

process rights,

in violation of his due

the record was completely devoid of evidentiary

support for his kidnapping convictions.
Maroney,
U.S.

1045

397 F.2d 724,
(1969)

.

Here,

725

(3d Cir.

See Cunningham v.

1968),

cert.

denied,

393

the record demonstrates at least the

following evidence of his guilt.
Co—defendants Sfand Rajabzaden,
Michael Romero,
the June 29,

Luis Nanso,

Juan DeJesus,

Jesus Rodriguez,

Edwin Diaz,

and Petitioner left

1998 Orange Crush meeting at Romero’s home,
37

in

vehicles with the intended victims.
and 17.)

12-13,

10-7 at 10,

(ECF No.

co—defendants “understood that their orders were to
and cabrera at Branch Brook Park to retaliate for

kill” Omar D.

the drive-by shooting at Romero’s apartment complex.
Once at the Park,

11 and 17.)

(Id.

brawl ensued.

During the attack,

Fetitioner

Petitioner

after Rodriguez let go of Omar D.

grabbed Omar 0.

(ECF No.

“held Morante down while Romero beat him with a belt.”
17.)

10—7 at 16,

When Omar D.

at 10—

Nanso ordered “Set it off,” and a
17.)

at 15—16,

(Id.

continued resisting,

various co

defendants dragged him towards a lake as he screamed.

(Ibid.)

Petitioner and Romero tried to drown Omar D. When he stopped
moving,

Petitioner dragged him further into the lake and held

him underwater.

(Id.

at 17.)

State witness Luis Rodriguez

testified that Petitioner and Romero appeared to be trying to
drown Omar D.,

and when he stopped moving,

the body further into the water.

(Id.

Petitioner dragged

at 16.)

Omar 0.

and

cabrera were strangled to death and left lying face down in the
water.

(Id.

at 9.)

Factual issues determined by a state court
included)

are presumed correct,

(jurors

and petitioners bear the burden

of rebutting this presumption by clear and convincing evidence.
See Werts, 228 F.3d at 196

(citing 28 u.s.c.

§ 2254(e) (1)).

the face of the above—described record of guilt,
fails to offer the court any evidence
38

—-

and,

Petitioner

certainly,

he

In

offers no clear and convincing evidence

--

that any reasonable

trier of fact would be unable to find him guilty of kidnapping.
Having failed to do so,

he demonstrates no “wrong of
at 83,

464 U.S.

constitutional dimension,” Wainwright,

to merit

habeas intervention on the Acquittal Motion Claim.
the Appellate Division’s decision was not,

Third,
event,

either contrary to or an unreasonable application of
See Jackson,

relevant United states Supreme Court precedent.

u.s.

in any

443

It was objectively reasonable for the state courts to

307.

find sufficient evidence to support kidnapping charges against
See Coleman v.

Petitioner.
(per curiam)
curiam)

566 U.S.

Johnson,

Smith,

(quoting Cavazos v.

651

650,

(2011)

1

565 U.S.

(2012)
(per

(a federal habeas court may overturn a state court’ s

rejection of a sufficiency of the evidence challenge only if
that decision was “objectively unreasonable”
at 773).

559 U.S.

“)

(quoting Renico,

For purposes of conviction of both kidnapping

and another crime under New Jersey law,

taking a victim to a

secluded location where assailants may more easily attack
without being seen is sufficient to establish the creation of an
enhanced risk of harm.
Matarama,
certif.

(ECF No.

703 A.2d 278,

denied,

Petitioner,

153 N.J.

287
50

10—7 at 65—66

(N.J.

(citing State v.

Super. Ct. App.

(1998).)

took Cabrera and Omar D.

Div.

Co-defendants,

1977),

including

to a secluded section of

Branch Brook Park. The attacks on them there were not likely to
39

be observed and their cries for help not likely to be heard,
“thus greatly enhancing the risk to them.”
victims’

(Id.

at 66

(the

“confinements enhanced the risk of harm by isolating

them from their families,
Judge Lester,

and neighbors”).)

friends,

“viewing the State’s evidence in its entirety

and giving the StaLe L1i beitefiL of dll its favorable
testimony,

as well as all of the favorable inferences which

reasonably could be drawn therefrom,” could have determined that
“a reasonable

[factfinder]

could find guilt of the charge7 beyond
2017 WL 3318303,

a reasonable doubt.” See Valdez,
Samuels,

914 A.2d at 1254;

375 A.2d at 1235—36.

Reyes,

236 A.2d at 388;

at *3;
and Muriiz,

There is nothing in the record before this

Court suggesting that Judge Lester,

in following New Jersey

law’s well—established standard for acquittal motions,

arrived

at a result contrary to United States Supreme Court precedent.
Similarly,

the Appellate Division also could have reasonably

determined that Judge Lester had before her sufficient evidence
from which a factfinder could find Petitioner guilty of
kidnapping beyond a reasonable doubt.

He participated in the

initial meeting where Byrd ordered the Orange Crush to kidnap
the victims,

break their arms,

and kill them.

(ECF No.

11—7 at

As pertinent to Ground Four, Petitioner was indicted for
kidnapping in violation of N.J. Stat. Ann. § 2C:13—1(b) in
indictment counts: two (Omar Dj; seven (Cabrera); twelve (Omar
W.); and sixteen (Cortes)). (ECF No. 10—1 at 5, 10, 15, and 19.)
40

He was present at Rornero’s house when the victims were

23—25.)

brought there,
(ECE’ No.

house.

and he was responsible for keeping them at the
11—6 at 15-16.)

Co—defendants then took the

victims deep into a far section of the Park,
onlookers.

(ECF No.

Rornero,

11—11 at 22—24.)

out of view of
Rodriguez,

Diaz,

”Th.at.
etitionerthen”beatdownthevictims.
For all of these reasons,

the Court will deny habeas relief

on Ground Four.
EL Ground Five:

Conviction And Sentence For Felony Murder

Ground Five seeks to vacate and dismiss Petitioner’s
conviction and sentence for felony murder.
(“Felony Murder Claim”).)

I at 10—11

(ECF No.

Petitioner argues that his

In support,

of Cabrera,
felony murder charge was based on the kidnapping
Cabrera “was not actually killed by
Trial:
of:

[Petitioner]

first degree kidnapping of Omar 3.

(count twelve)

Omar W.

(count five)
ten).

;

(ECF No.

(count seven) ;
;

(Ibid.)

.“

Petitioner was convicted

Pertinent to Ground Five,

kidnapping of Cabrera

but

(count two)

;

first—degree

first-degree kidnapping of

first degree felony murder of Omar D.

and first degree felony murder of Cabrera

(oount

10—2.)

for
He received two concurrent thirty—year sentences
kidnapping
parole.

(counts two and twelve),

eighty—five percent without

His remaining convictions merged.

(ECF No.

10—3.)

The Appellate Division found “no basis” to

Direct appeal:

the Felony Murder Claim.

10—7 at 96.)

(ECF No.

The court agreed

with the State that Petitioner’s felony murder conviction should
be reversed only if the kidnapping convictions for both Cabrera
and Morante were reversed.
—kidnapp ng,

Furthermore,

at 97.)

(Id.

f1 nry mnrdnr

so th

The evidence supoorted

nonwi rr

nn

cnn N cI-Rnd.

it determined that a New Jersey jury need not

designate which felony theory it relies on as to felony murder
“if the evidence supports alternative felony theories.”
96

(internal citations omitted)

.

)

(Id.

at

The court noted that the

evidence in Petitioner’s case “could support the theory that
Cabrera was killed while
kidnapping ?4orante.”

[Petitioner]

(ECE No.

was engaged in

10-7 at 97.)

Thus,

the Appellate

Division affirmed the felony murder conviction.
The Felony Murder Claim Fails On The Merits:

The Felony

Murder Claim does not meet the requirements of 28 U.S.C.

§ 2254

for habeas relief for at least the following three reasons.
First,

the Felony Murder claim concerns state law.

Ground Five is not cognizable in federal habeas.
502 U.S.

at 67—68

Thus,

See Fstelle,

(“it is not the province of a federal habeas

court to reexamine state—court determinations on state—law
questions”);

Smith,

120 F.3d at 414

(“A]

state court’s

misapplioation of its own law does not generally raise a
constitutional claim”)

(citations and internal quotation marks
42

omitted);

Johnson v.

Rosemsyer,

117 F.3d 104,

110

(3d Cir.

1997)

ral errors
(“{Ejrrors of state law cannot be repackaged as fede
simply by citing the Due Process Clause.”).

“[A} mere error of

v.
state law is not a denial of due process.” Swarthout
562 U.S.

216,

222

Cooke,

(2011).

to,
adjudication of the Felony Murder Claim was contrary

or an

d States
unreasonable application of clearly established unite
Supreme Court holdings.

See 28 u.S.C.

§ 2254(d) (1)—(2).

That

serving as a
Court has never proscribed a kidnapping charge from
predicate offense to felony murder where,

as here,

the evidence

defendant
supports a theory that the victim was killed while a
was engaged in kidnapping.
Supreme Court law,

There is no clearly established

relating to Petitioner’s Felony Murder Claim,

with which the state courts’
Third,

the Felony Murder Claim suffers from a fatally

flawed premise.
Claim,

rulings could have been at odds.

As noted supra regarding the Acquittal Motion

the evidence at trial was sufficient to support the state

court rulings on the kidnapping charge.
319.

See Jackson,

443 U.S.

at

to vacate
Petitioner has demonstrated no meritorious basis

his kidnapping conviction.
despite his suggestion,

Thus,

that conviction does not,

serve to constitutionally taint his

felony murder conviction.

(ECF No.

1 at 11.)

premise of the Felony Murder Claim is flawed.
43

Accordingly,

the

This Court will deny relief as to Ground Five.
F. Ground Six:

Felony Murder Jury Instruction

Ground Six argues that the felony murder jury instruction
was erroneous and prejudicial.

Petitioner claims “the court

failed to charge the jury with respect to the affirmative
defense set forth in
No.

1 at 11

[New Jersey’s

felony murder statute

.“

(ECF

(“Jury Instruction Claim”)

The statutory affirmative defense to felony murder in N.J.
Stat. Ann.
defense.

§ 2C:ll—3(a) (3)

is also known as the “non—slayer”

This statute provides an affirmative defense to a

homicidal act if the defendant was not the only participant in
the underlying crime and the defendant:
(a) Did not commit the homicidal act or in
any way solicit, request, command,
importune, cause or aid the commission
thereof; and
(b) Was not armed with a deadly weapon, or
any instrument, article or substance readily
capable of causing death or serious physical
injury and of a sort not ordinarily carried
in public places by law—abiding persons; and
(c) Had no reasonable ground to believe that
any other participant was armed with such
weapon, instrument, article or substance;
and
(d) Had no reasonable ground to believe that
any other participant intended to engage in
conduct likely to result in death or serious
physical injury.
New Jersey Stat.

Ann.

§ 2C:l1—3(a) (3).

44

Trial:

Judge Lester charged the jury on felony murder as

follows:
The State contends, while the defendants
were engaged in the commission of the crime
they asphyxiated and
of kidnapping,
killed Omar D. Norante and Jimmy Cabrera.
.

.

.

This charge is based on a section of our
si-atiitps which

rpacls as

fnllnws:

Criminal

homicide constitutes murder when it is
committed when the actor is engaged in the
commission of kidnapping, and in the course
of such crime causes the death of a person
other than one of the participants.
Generally, it does not matter that the act
that causes death was intentional or
accidental. The perpetrator is as guilty of
felony murder as if he had purposely or
intentionally caused the murder, the act of
death.
The elements of the crime of felony murder
that the State must prove beyond a
reasonable doubt are as follows:
First, the State must prove beyond a
reasonable doubt on or about the date in
question a defendant was engaged in the
commission of the crime of kidnapping
secondly, the State must prove the death of
either victim was caused by the defendant;
and third, that the death of either victim
was caused at some time within the course of
the commission of kidnapping
.

.

(ECE No.

11—21 at 56—57,

70—72.)

.

Judge Lester explained at

length each element of these burdens of proof.
Direct appeal:

.

(Ibid.)

Petitioner’s Jury Instruction Claim on

direct appeal argued entitlement to a Non—Slayer Defense jury
instruction because Edwin Diaz,

not Petitioner,

45

actually killed

Relying on § 20:11—3 (a) (3)’s

97.)

10—7 at 93,

Cabrera.

(ECF No.

factors,

the Appellate Division rejected his argument.

97—98.)
that

“there was ample evidence

Contrary to his contention,

[he]

at

(Id.

knew that the other participants

‘intended to engage

in conduct likely to result in death or serious physical injury
to Cabrera.

He was present at all planning stages and at the

scene of the crimes,

and was unable to participate in Cabrera’s

killing only because he was in the process of killing Morante.”
(Ibid.)

the Appellate Division

Citing New Jersey case law,

stated that a Non—Slayer Defense jury charge is proper “if and
only if there is some evidence supporting it.”
98.)

That was not the case as to Petitioner.

at 84 and

(Id.

(Id.

at 97—98.)

The Jury Instruction Claim Fails On The Merits:

Petitioner

is not entitled to habeas relief on the Jury :nstruc:ion Claim
for at least the following two reasons.
First,
review.

Ground Six is not a federal claim subject to habeas

“Questions relating to jury charges are normally matters

of state law and not cognizable in federal habeas review.

[T]he

district court must consider “‘whether the ailing instruction by
itself so infected the entire trial that the resulting
conviction violates due process,’
instruction is undesirable,

Johnson,

*1:

2018)

Dec.

19,

..

erroneous,

condemned.’” Hill v.
(D.N.J.

.

No.

not merely whether

or even universally

15—6835,

(citing En’gle,
46

‘the

2018 WL 6649724,
456 3.5.

107;

at

431 U.S.

145;

Brown,

No.

04—4415,

2006 WL 2640624,

2006);

Grecco,

661 F.

923 E’.2d at 309;

Zett]emoyer,

Henderson,

Supp.

at 412.

at *8

(D.N.J.

12,

Sept.

A state trial court’s

refusal to give a requested jury instruction does not,
itself,

Porter v.

create a federal habeas claim.

by

a habeas

Instead,

petitioner must establish that the instructional error

had

:a

substantial and injurious effect or influence in determining the
507 U.S.

jury’s verdict.” Brecht,
marks omitted)

.

prejudice.” Id.

at 637

(citation and cuotation

The error must have resulted in “actual
at 637

(citation omitted).

Petitioner has not demonstrated any defect with the felony
He merely disagrees with Judge Lester’s

murder jury instruction.

election not to provide the Non—Slayer Defense.
undermines his criticism.

The record

The Appellate Division found that he

was not entitled to that defense under New Jersey law in the
first instance.
fourth element

The facts before the jury negated the statute’s
——

i.e.,

that Petitioner have no reasonable basis

to believe that another assault participant intended to engage
in conduct likely to result in death or serious physical injury.
(ECE No.

10—7 at 85

conjunctive,

(the Non—Slayer Defense’s

four elements “are

so all four must apply” in order for a defendant to

be entitled to the defense) .)

The evidence did not support the

statutory criteria for invocation of the Non—Slayer Defense.

47

“[Al

state court’s interpretation of state law,

including

one announced on direct appeal of the chalienged conviction,
binds a federal court sitting in habeas ccrpus.” See Bradshaw v.
Richey,

546 U.s.

state courts’

76

74,

(2005).

This Court must defer to the

interpretation of New Jersey law.

Scu.td,

Instruction Claim does not moot the habeas

Jury

The state court’s rejecticn of that claim is

standard of review.
not contrary to,

or an unreasonable application of clearly
See Estelle,

established United States Supreme Court holdings.
502 U.S.

at 71—72;

Johnson,

Deibridge v. Moore,
2005)

No.

117

F.3d at 1:0.

The Court finds

2005 WL 3008805

03-2793,

(D.N.J.

Nov.

9,

instructive on this point.
The Delbridge Court rejected a § 2254 petitioner’s

challenge to the trial
affirmative defense.

judge’s failure to charge a felony murder

The habeas court did so because that

defense is a creation of New Jersey law.

‘‘Taken as a whole,” the

challenged jury instruction “adequately explained the jury’s
role” in evaluating the evidence.

2005 WL 3008805,

at *6.

The

instructions “were neither ambiguous or misleading,” and they
“clearly explained that the jury was to determine whether the
peruinent evidenceJ
U.S.

at 155

was reliable.” Ibid.

(“An omission,

See Henderso:,

or an incomplete instruction,

likely to be prejudicial than a misstatement of the law”)

431
is less
.

Judge

Lester’s felony murder charge in the instant case was similarly
48

robust in scope.

Similar to the Delbridge court,

this Court

cannot find that the felony murder charge was faulty or
Petitioner does

infringed upon Petitioner’s due process rights.

not point to any United States Supreme Court precedent that
required Judge Lester to include a Non—Slayer Defense jury
charge under circumstances analogous to Petitioner’s here.

Thu-s

the Apoellate Division’s ruling was not contrary to or an
unreasonable application of clearly established federal law.
This Court

will deny habeas relief on Ground Six.

G. Ground Seven: Consecutive Sentences For Murder And Felony
Murder
Ground Seven argues that the trial court abused its
r
discretion when it imposed consecutive sentences for murde and
felony murder.

(ECF No.

1 at LI

(“Consecutive Sentence Claim”.)

ce
Petitioner argues that Judge Lester based Petitioner’s senten
“solely upon the multiple deaths of two people.

[The court}

did

the
not consider that the defendant did not actually kill one of
victims.”

(Id.

at 12.)

Direct Appeal:
state law grounds,

Reviewing the Concurrent Sentence Claim on
the Appellate Division rejected it because

sentencing considerations weighed in favor of consecutive
sentences.

For example,

“the crimes involved separate acts of

violence” and “the crimes involved multiple victims.”
10—7 at 41,

93,

98

(citing State v.

49

Yarbough,

(ECF No.

498 A.2d 1239

(N.J.

1985),

cert.

denied,

(1986).

1014

475 U.S.

acts of violence involved multiple victims,
sentences are ordinarily imposed.”

(Ibid.

)8

Where separate

“[c]onsecutive

(internal citations

omitted)
The Consecutive Sentence

Ground Seven Fails On The Merits:

Claim does not merit habeas relief tor at least two reasons.
First,

Ground Seven alleges a violation of state sentencing

law in imposition of consecutive sentences.

The Appellate

Division analyzed Petitioner’s claim pursuant to state
sentencing law.

(ECF No.

10—7 at 41,

98.)

93,

This Court cannot

reexamine state court determinations of state law.
U.S.

at 67—68;

Donnelly,

at 642.

416 U.S.

502

Estelle,

Sentencing is
which

generally considered a matter of state criminal procedure,
does not fall within the purview of federal habeas review.
Logmans v. Moore,
Apr.

29,

2005)

Cir.

1967),

No.

02—5622,

2005 WL 1106336,
Beto,

(citing Johnson v.

cert.

Jackson v. Meyers,

denied, 393 U.S.
374 F.2d 707,

868

711

at *19

383 F.2d 197,
(1968);

(3d Cir.

U.S.

(D.N.J.
198

(5th

ex rel.

1967).)

A habeas

In State v. Yarbough, 498 A.2d 1239 (N.J. 1985), cert. denied,
475 U.S. 1014 (1986), the New Jersey Supreme Court set forth the
factors to be considered when deciding whether to impose
consecutive or concurrent sentences. The Yarbough factors
essentially focus upon ‘the nature and number of offenses for
which the defendant is being sentenced, whether the offenses
occurred at different times or places, and whether they involve
numerous or separate victims.” State v. Carey, 775 A.2d 495
(N.J. 2001) (quoting State v. Baylass, 553 A.2d 326 (N.J.
1989))
50

court will not re—evaluate a sentence unless it exceeds the
statutory limits or was arbitrary and capricious as to
constitute a due process or Eighth Amendment violation.
at *19

2005 WL 1106336,

(citing Jones v.

Rahway State Prison, 725 F.2d 40
40,

Lewis, 506 U.S.
153,

156—57

(D.N.J.

Jackson v.

(1992);

50

1990).

(3d Cir.

Logmans,

Superintendent of
Richmond v.

1984));

Bever, 750 F.

Supp.

Nothing in the record suggests that

is the case here.
Second,

Ground Seven alleges no separate federal

constitutional claim. A federal court may review a state
sentence only where the challenge is based upon ‘proscribed
federal grounds such as being cruel and unusual,
ethnically motivated,
661 F.

Supp.

at 415;

2344674 at *12
omitted)
297,

court may impose,
for his offense,
unusual

.

Velez v.

.

.

Lagana,
2015)

(D.N.J. May 14,

(3d Cir.

300

or enhanced by indigencies.” See Grecco,

See also Pringle v.

.

racially or

1984)

.

‘“[A]

No.

12—0430,

2015 WL

(internal citations

Court of Common Pleas, 744 F.2d
person is eligible for,

and the

whatever punishment is authorized by statute
so long as that penalty is not cruel and

and so long as the penalty is not based on an

arbitrary distinction that would violate the Due Process Clause
of the Fifth Amendment.” Chapman v.
465

(1991)

731

(1948) ;

(citations omitted);
Jones v.

United States, 500 U.S.

Gryger v.

Burke,

334 U.S.

453,

728,

Superintendent of Rahway State Prison, 725
51

F.2d 40,

42—43

(3d Cir.

1984)

.

under the governing statutes’

Judge Lester sentenced Petitioner
she also considered both

ranges;

the aggravating and the mitigating factors.
12;

ECF No.

10-3.)

personal hands

Judge Lester found;

utilized against
life”)
9—10;

“slow death and death by

and remarkable “degree of strength

D1orante]

while he fought very hard for his

(other internal citations omitted)
0F No.

11—26 at 7—

cruel;” the death of one sibling in

[that was]

the presence of another;

(ECF No.

10—7 at 94 and 99—101;

.

(See ECF No.

ECE No.

11—26 at

10—10 at 14—15.)

Petitioner fails to demonstrate, much less even allege,

that

Judge Lester’s decision co impose consecutive terms for murder and
felony murder

was

arbitrary

and

federal constitutional rights.

capricious

in

violation

of

his

His sentence was within New Jersey

law’s ranges for the crimes of which he was convicted.9 Under that

See N.J. Stat. Ann. § 20:13—2 (conspiracy to commit
kidnapping) (count one); 20:13—lB (kidnapping) (count two);
2C;5—2 and 20:11—3 (conspiracy to commit murder) (court three);
2C:ll—3a(l) (murder) (count four); 2C;11—3a(3) (felony murder)
(count five); 2C:5—2 and 2C:11—13—1 (conspiracy to commit
kidnapping) (count six); 2C:13—lb(l) (kidnapping) (count seven);
20:5—2 and 20:11-3 (conspiracy to commit murder) (count eight);
20:1l—3a(3) (felony murder) (count ten); 2C;5—2 and 20:13—1
(conspiracy to commit kidnapping) (count eleven); 2C:13—lb(1)
(kidnapping) (count twelve); 20:5—2 and 2C;1l—3 (conspiracy to
commit kidnapping) (count thirteen); 205—2 and 20:13—1
(conspiracy to commit kidnapping) (count fifteen); 2C:13—lb(1)
(criminal restraint) (count sixteen); and 20:5—2 and 20:11—3
(conspiracy to commit murder); N.J. Stat. Ann. § 20:43-6
(ordinary and mandatory terms for sentences of imprisonment);
ECF No. 10-3.

52

governing state law, his sentence “is not grossly disproportionate
to the crime he committed.” See Jenkins,
For these reasons,

2014 WL 2602177,

at *21.

Ground Seven is denied.

H. Ground Eight: Excessive Sentence
Ground Eight argues that Petitioner’s sentence was
excessive “because of the disparity between the

[Petitioner]’s

sentence and co-defendant[s]

(“Excessive

Sentence Claim”)

.

.“

(ECE Nc.

1 at 12

He compares his consecutive forty-year prison

)

sentences for Omar D.’s murder and Cabrera’s felony murder to:
(1)

luis Vanso’s consecutive thirty—year sentence for these

crimes;

and

(2)

Edwin Diaz’s twenty—year maximum exposure under

his plea agreement.
[Petitioner

(Ibid.)

Petitioner argues that “both

and )4anso actively participated in the murders of

Omar D. Morante and Jimmy Cabrera.”

(Ibid.)

Petitioner does not

specifically allege any particular constitutional violation from
the purportedly excessive and disparate sentence.
Direct appeal:

Relying on state case law,

Division rejected the Excessive Sentence Claim,

(ibid.)

the Appellate
explaining:

The disparity between [Petitioner] and Diaz
was well—supported because Diaz entered into
a plea agreement and cooperated with the
State
It is proper to take such
cooperation into account when sentencing
.

.

.

.

[Furthermore,] the trial judge believed that
the evidence against [Petitioner] was
overwhelming, and that the jury ‘gave Mr.
Perez a bit of a break’ by not finding
accomplice liability for the death of
53

Cabrera. [Judge Lester] expressly
noted
significant differences [between Petitioner
and Manso]
‘[Petitioner’s] actual
conduct led to the death of [a victim]
[T]he mindset of a person who’s willing to
do whatever he’s told for no other reason
than loyalty to an organization is a
dangerous mind
[There was] strength and
brutality to murder someone with your own
hands in this fashion. [T]his is a murder of
his own hands
It was not a fast death.
It was a slow death’
.

.

.

.

.

.

.

.

.

.

.

[J]udge Lester thus found [Petitioner]
more culpable than P.anso because he was
personally responsible for the death of
Morante, and the <illinc was particularly
brutal
(ECE No.

10—7 at 94 and 99—101; ECE No.

10—10 at 14—15)

The Appellate Division also found that the “[sentence]
disparity

[between Petitioner and Manso]

is not significant when

the proper parole ineligibility terms for both defendants are
considered.”

(Id.

at 98.)

Ground Eiaht Fails On The Merits:

The Excessive Sentence

Claim fails on the merits for at least the following reasons.
Eirst,

the Excessive Sentence Claim “is not cognizable

because a challenge to a state court’s discretion at sentencing
is not subject to review in a federal habeas proceeding.
Pringle,

See

744 F.2d at 300). According to the Third Circuit,

‘[t]he contention that gross disparity in sentences violates due
process or equal protection lacks merit.’” D’Aniioo v.
No.

11—4168,

2012 WL 3925881,

at *12

54

(D.N.J.

Sept.

6,

Balicki,
2012)

(“[Petitioner’s]

assertion that his sentence is nduly

disprocortionate to those given to his co—defendants presents
only a
43)

.

‘possible error of state law’”) (citing Jones,

725 E.2d at

Petitioner does not contend that his purportedly disparate

sentence constitutes cruel and unusual punishment or that it is
arbitrary or otherwise a due process.

Petitioner also makes no

contention that his sentence differed from Nanso’s because of
discrimination based on race,

sex,

or similar grounds that would

implicate the federal Constitution.

Rather,

Petitioner generally

alleges his sentence is unfair in conoarison to Manse’s.
id.;

ECF No.

reviewable

No.

1

at

14.

in this

10—4972,
Second,

Acoordinoly,

Ground Eight

habeas proceeding.

2014 WL 260.2:77,

at *21

is not

See Jenkins v.

(D.N.J.

See

June II,

Bartkowski,
2Q14)

Ground Eight fails the habeas standard of review.

Petitioner cites no United States Supreme Court case law holding
that the mere fact of disparity in co—defendants’
as between one who pleads guilty
who stands trial

-—

punishments

(such as Edwin Diaz)

——

and one

constitutes a due process violation.

The

Appellate Division’s decision was not contrary to or an
unreasonable application of Supreme Court precedent.
Third,

Petitioner does not cite any examples of similarly—

situated New Jersey defendants whom the Court might compare to
Petitioner and find that Petitioner’s sentence was eXcessively
disparate.

Ne has not even shown that,
55

at the very least,

he was

similarly situated to Manso.
U.S.

456,

464—65

(1996).

co—defendants does not,

See United States v.

“[A]

2015)

517

‘[d]isparity of sentence between

of itself,

discretion.’” United States v.
(3d Cir.

Armstrong,

show an abuse of

Bonfihio,

611 F. App’x 758,

(internal citations omitted)

760

Petitioner makes no

.

showing of discretionary abuse here.
For these reasons,
V.

the Court denies relief on Ground Eight.

CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C.

§ 2253(c),

unless a circuit justice or

judge issues a certificate of appealability (“COA”)

an appeal may

,

not be taken from a final order in a proceeding under 28 U.S.C.
2254.

A

applicant

certificate
has

made

of
a

appealability

substantial

may

showing

issue
of

constitutional

right.”

satisfies

standard by demonstrating that

could

this

disagree

constitutional
presented

are

with
claims

ruling

the
or

adequate

further.” Miller—El v.
Here,

28

reasonable

debatable.

U.S.C.

district
that
to

court’s

jurists
deserve

Coc]crell,
jurists

Accordingly,

56

the
of

a

petitioner
of

resolution

encouragement

would not

shall issue.

“A

jurists

322,

if

denial

could conclude

537 U.S.

no

the

2253(c) (2).

§

“only

§

the
to

327

Court’s

of

his

issues
proceed

(2003).

find the

reason

certificate

of

habeas

appealability

VI.

CONCLUSION

For all of the foregoing reasons, the Petition is denied with
prejudice on the merits and no certificate of appealability shall

issue.

Dated:

An appropriate Order follows.

,

2019
Madeline Cox Arleo
United States District Judge

57