QUIXAL v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY et al
Filing
25
OPINION. Signed by Judge Susan D. Wigenton on 9/17/2018. (JB, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SILAS QUIXAL,1
Civil Action No. 16-8218 (SDW)
Petitioner,
v.
OPINION
PATRICK NOGAN, et al.,
Respondents.
WIGENTON, District Judge:
Presently before the Court is the pro se amended petition for a writ of habeas corpus of
Silas Quixal (“Petitioner”) brought pursuant to 28 U.S.C. § 2254 challenging Petitioner’s state
court conviction. (ECF No. 7). The State filed a response to the petition (ECF No. 12), to which
Petitioner has replied. (ECF No. 24). For the following reasons, this Court will deny the petition
and deny Petitioner a certificate of appealability.
I. BACKGROUND
In its opinion affirming Petitioner’s conviction, the Superior Court of New Jersey –
Appellate Division provided the following summary of Petitioner’s criminal trial and conviction:
Tried to a jury, [Petitioner] was convicted of aggravated sexual
assault upon a victim less than thirteen years of age, a crime of the
first degree, N.J.S.A. 2C:14-2a(1); endangering the welfare of a
child, a crime of the third degree, N.J.S.A. 2C:24-4a; and sexual
assault upon a victim less than thirteen years of age, a crime of the
second degree, N.J.S.A. 2C:14-2b. The trial court sentenced
[Petitioner] to nineteen years in prison, subject to the provisions of
N.J.S.A. 2C:43-7.2, the No Early Release Act (“NERA”), for
In his submissions to this Court, Petitioner has spelled his name as both “Quixcel” (ECF No. 1
at 2) and “Quixal” (ECF No. 3 at 1). For the sake of consistency, this Court will use “Quixal.”
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aggravated sexual assault; four years in prison for endangerment, to
be served concurrently; and nine years in prison, subject to NERA,
for sexual assault, to be served consecutively. . . .
[Petitioner’s] victim was S.B., who was six years old at the
time of the incident. S.B.’s mother had some plants she wished to
have repotted so she drove to a local nursery, taking S.B. and her
sixteen-month-old daughter with her. While they were waiting for
the plants to be repotted, S.B. became separated from her mother.
Her mother went through the store, calling for S.B. and found her at
the end of one the aisles. [Petitioner] was nearby, and S.B. had a
strange expression on her face. Her mother asked if S.B. had not
heard her calling for her, but S.B. did not answer. Her mother asked
what she had been doing, but S.B. said she could not tell her. Her
mother asked if [Petitioner] had told her not to say anything, and
S.B. nodded affirmatively. S.B.’s mother assured her she would not
be angry with S.B. and that [Petitioner] would not either. S.B. then
told her mother that [Petitioner] had kissed her and licked her; she
pointed to her vaginal area. S.B.’s mother went immediately to store
personnel to report what her daughter had told her and they
summoned the police.
Police Officer Michael Boccher of the Paramus Police
Department responded to the scene. He spoke with S.B., who
repeated what she had told her mother. Officer Boccher asked S.B.
if she could show him, where in the store the incident occurred. She
agreed and led him toward the rear. On the way, [Petitioner]
happened to pass by. S.B. spontaneously identified [Petitioner] to
Officer Boccher as the man who had assaulted her.
The police spoke to [Petitioner], who appeared nervous and
upset. When he asked what would happen to him if he told them the
truth, he was placed under arrest and verbally advised of his
Miranda rights. See Miranda v. Arizona, [384 U.S. 436] (1966).
S.B. was interviewed by Detective Barbara Stio of the
prosecutor’s Sex Crimes and Child Abuse Unit at the Audrey
Hepburn Children’s House. Detective Stio has been trained in
conducting forensic interviews of children in connection with claims
of sexual abuse. She repeated what she had told her mother. She
also said that [Petitioner] had taken out his penis and asked her to
touch it, but she refused. Following that interview, S.B. was
examined by a physician and her clothing was taken for
examination. Subsequent testing at the State Police laboratory
disclosed the presence of [Petitioner’s] DNA on S.B.’s underpants.
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After [Petitioner] was arrested, he was transported to the
prosecutor’s office, where he was again advised of his Miranda
rights and executed a written waiver. He was questioned by
Sergeant Cilento of the prosecutor’s sex crimes and child abuse
squad. Confronted with S.B.’s allegations, [Petitioner] confessed.
Following a pretrial hearing, [Petitioner’s] confession was ruled
admissible at his trial.
During [Petitioner’s] trial, the prosecution presented a
number of witnesses, including Detective Stio, who testified with
respect to her interview of S.B. and Sergeant Cilento, who testified
with respect to his interrogation of [Petitioner].
State v. Quixal, No. A-5879-07T4, 2010 WL 5419109, at *1-3 (N.J. Super. Ct. App. Div. Apr. 19,
2010).
In its 2016 opinion affirming the denial of Petitioner’s state court petition for postconviction relief, the Appellate Division additionally noted the following about the evidence
underlying Petitioner’s conviction:
The testimony at trial established that [Petitioner] worked at a
garden center. The six-year-old victim had come to the center with
her mother. When the child was separated from her mother, she
encountered [Petitioner] and asked for help to find her mother.
[Petitioner] took the child to a secluded area of the garden center,
kissed her on the lips, pulled her pants and underwear down and
licked her on her vagina. The child also reported that [Petitioner]
had taken out his penis and asked her to touch it, but she refused.
Shortly after the incident, the child gave a recorded
statement that was played at trial, and the child also testified at trial.
The State introduced DNA evidence taken from the inside of the
child’s underwear. The DNA analysis showed that cells from a
male’s saliva were found on the inside of the child’s underwear and
[Petitioner’s] DNA matched the DNA found on the underwear.
[Petitioner] also gave a statement to the police during which
he admitted to kissing the victim “on the vagina,” which he also
described as “[o]n top of the vagina.” [Petitioner’s] statement was
admitted at trial. At trial [Petitioner] testified that when he
encountered the child, she asked him to help her find her mother.
When he said he would help, the child kissed him and he kissed her
on her stomach. [Petitioner] denied sexually assaulting the child,
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and testified that he told the police what they wanted to hear because
he was afraid.
State v. Quixal, No. A-1966-14T2, 2016 WL 1637217, at *1-2 (N.J. Super. Ct. App. Div. Apr. 26,
2016) (footnote omitted). As the foregoing makes clear, “the evidence of [Petitioner’s] guilt at
trial was strong. The victim gave a statement and testified, [Petitioner] gave a statement, and there
was DNA evidence.” Id. at *3.
Following his conviction and sentence, Petitioner appealed.
5419109.
See Quixal, 2010 WL
On appeal, the Appellate Division affirmed his conviction, but remanded for
resentencing because “the trial court gave no reasons for imposing consecutive sentences.” Id. at
*3. The Appellate Division instructed “the trial court to determine anew whether consecutive
sentences are appropriate and, if it is satisfied they are, to place its reasons upon the record.” On
June 22, 2010, the trial court resentenced Petitioner to “the same term” of imprisonment.2 State v.
Quixal, 70 A.3d 749, 750 (N.J. Super. App. Div. 2013). The New Jersey Supreme Court denied
certification of Petitioner’s direct appeal on July 12, 2010. State v. Quixal, 999 A.2d 463 (N.J.
2010) (Table).
On or about May 12, 2014, Petitioner filed a counseled petition for post-conviction relief
(“PCR”) in the state trial court (the “PCR court”).3 (See Aug. 1, 2014 PCR Hr’g Tr. 3, ECF No.
2
Petitioner does not appear to have filed an appeal challenging the sentence he received as a result
of that resentencing.
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Petitioner submitted two pro se PCR petitions before filing the counseled PCR petition
referenced above. State v. Quixal, 70 A.3d 749, 751 (N.J. Super. App. Div. 2013). The trial court
denied both of those petitions. Id. The Appellate Division reversed, finding that based on the
circumstances and manner in which those uncounseled petitions were submitted, Petitioner’s
“State constitutional right to counsel when raising ineffective assistance of trial counsel [claims]
for the first time [during PCR proceedings was violated.]” Id. at 756. The Appellate Division
therefore “remand[ed] for consideration of an initial PCR petition after the appointment of
counsel.” Id. at 756 (emphasis added). In light of the foregoing, Petitioner’s 2014 PCR petition –
and the manner in which the state courts resolved the substantive claims raised therein – is the only
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12-28). Following briefing and a non-evidentiary hearing, the PCR court denied that petition by
way of an opinion and order. (ECF No. 12-10). The Appellate Division affirmed the denial of
PCR relief in all respects on April 26, 2016. Quixal, 2016 WL 1637217. Petitioner then filed a
petition for certification, which the New Jersey Supreme Court denied on September 12, 2016.
State v. Quixal, 151 A.3d 92 (2016) (Table). Petitioner’s current habeas petition followed.
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, 567 U.S. 37, 40-41 (2012). Under
the statute, as amended by the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2244
(“AEDPA”), district courts are required to give great deference to the determinations of the state
trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 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:
relevant PCR petition for purposes of this Court’s habeas review. Furthermore, Petitioner’s claim
that he was barred from filing subsequent PCR petitions is controverted by the foregoing
procedural history. (See Am. Pet., ECF No. 7 at PageID: 37 (Petitioner incorrectly claiming that
the PCR court barred him from presenting a second or subsequent PCR petition)). This claim
therefore fails to provide any basis for this Court to award habeas relief to Petitioner.
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(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).
The petitioner carries the burden of proof, and review under § 2254(d) is limited to the
record that was before the state court that adjudicated the claim on the merits. See Harrington v.
Richter, 562 U.S. 86, 98, 100 (2011). “[C]learly established law for purposes of § 2254(d)(1)
includes only the holdings, as opposed to the dicta, of [the Supreme Court’s] decisions,” as of the
time of the relevant state-court decision. White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (quoting
Williams v. Taylor, 529 U.S. 362, 412 (2000)); accord 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.” Woods, 125 S. Ct. at 1376. 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).
A federal court may not grant a writ of habeas corpus under § 2254 unless a petitioner has
“exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). In other
words, “a petitioner must ‘fairly present’ all federal claims to the highest state court before bringing
them in federal court.” Leyva v. Williams, 504 F.3d 357, 365 (3d Cir. 2007) (citing Stevens v.
Delaware Corr. Ctr., 295 F.3d 361, 369 (3d Cir. 2002) (quoting Whitney v. Horn, 280 F.3d 240,
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250 (3d Cir. 2002))). “This requirement ensures that state courts have an initial opportunity to
pass upon and correct alleged violations of prisoners’ federal rights.” Leyva, 504 F.3d at 365
(citing United States v. Bendolph, 409 F.3d 155, 173 (3d Cir. 2005) (quoting Duckworth v.
Serrano, 454 U.S. 1, 3 (1981))). To the extent that a petitioner’s constitutional claims are
unexhausted, this Court can nevertheless deny them on the merits under 28 U.S.C. § 2254(b)(2).
See Taylor v. Horn, 504 F.3d 416, 427 (3d Cir. 2007) (“because [this court] will deny all of
[petitioner’s] claims on the merits, [it] need not address exhaustion.”); Bronshtein v. Horn, 404
F.3d 700, 728 (3d Cir. 2005) (“Under 28 U.S.C. § 2254(b)(2), [this court] may reject claims on the
merits even though they were not properly exhausted, and [this court will] take that approach
here.”).
B. Analysis
1. Petitioner’s Excessive Sentence Claim
Petitioner argues that his sentence is excessive. (Am. Pet., ECF No. 7 at PageID: 26, 32).
More specifically, Petitioner claims that “[t]he [t]rial [c]ourt erred in imposing consecutive
sentences and imposing sentences in excess of the mid-point in the sentencing range” and that he
should have instead received a five-year prison term. (Id.). Petitioner claims that his “crimes[,]
while reprehensible, were less serious than the typical sexual assault.” (Id. at Page ID: 26). As
noted above, Petitioner challenged the sentence he received in the lone direct appeal he filed, and
as a result, the Appellate Division remanded for resentencing. See Quixal, 2010 WL 5419109 at
*3. Petitioner was then resentenced to “the same term” of imprisonment on June 22, 2010. Quixal,
70 A.3d at 750. Because Petitioner failed to appeal the sentence imposed on him at resentencing,
it does not appear that Petitioner properly exhausted this claim during his state court proceedings.
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However, because this Court finds this claim is without merit, it will be denied, notwithstanding
Petitioner’s failure to exhaust. See 28 U.S.C. § 2254(b)(2).
State sentences are generally matters of state law that fall outside of the purview of federal
habeas courts. See Chapman v. United States, 500 U.S. 453, 465 (1991) (“a person who has been
so convicted is eligible for, and the court may impose, whatever punishment is authorized by
statute for his offense, so long as that penalty is not cruel and unusual . . . and so long as the penalty
is not based on an arbitrary distinction that would violate the Due Process Clause of the Fifth
Amendment”) (citations omitted); see also Reid v. Ricci, No. 07-3815, 2008 WL 2984207, at *12
(D.N.J. July 31, 2008) (“absent a claim that the sentence constitutes cruel and unusual punishment
prohibited by the Eighth Amendment, or that it is arbitrary or otherwise in violation of due process
. . . the legality of [a petitioner’s] state court sentence is a question of state law”) (citations omitted).
Here, the facts do not indicate that the sentence Petitioner received was cruel and unusual,
or arbitrary in a manner that would violate the United States Constitution. The record reveals that
Petitioner was sentenced to an aggregate term of twenty-eight years imprisonment, consisting of:
(i) nineteen years for his conviction on count one, i.e., committing aggravated sexual assault upon
a victim less than thirteen years of age; (ii) five years for Petitioner’s conviction on count two, i.e.,
endangering the welfare of a child, to run concurrently to count one; and (iii) nine years for his
conviction for count three, i.e., committing sexual assault upon a victim less than thirteen years of
age, to run consecutively to count one. (See June 18, 2010 Sentencing Tr. 20-23, ECF No. 12-27).
The sentencing judge made clear that he imposed consecutive sentences on counts one and
three “because they were clearly independent, separate and distinct offenses.” (Id. at 21). The
judge also noted that Petitioner’s lack of any prior criminal history represented a mitigating factor
which he accounted for when imposing the sentence, but further noted that there were many other
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aggravating factors, including the “especially heinous, cruel and depraved” nature of Petitioner’s
crimes against a “particularly vulnerable [victim] because of her age” that were also taken into
consideration. (Id. at 20-23). The record further makes clear that the sentence imposed, while on
the higher range, did not go beyond the statutory maximum. See, e.g., Quixal, 2010 WL 5419109
at *3.
Based on these facts, it is clear that this is not one of those rare or extreme cases where the
sentence imposed was cruel and unusual, or arbitrary in a manner that would violate the United
States Constitution. See Lockyer v. Andrade, 538 U.S. 63, 77 (2003) (explaining that a state
sentence raises federal constitutional concerns only when it is grossly disproportionate to the crime
committed); United States v. Miknevich, 638 F.3d 178, 185–86 (3d Cir. 2011) (“a sentence within
the limits imposed by statute is neither excessive nor cruel and unusual under the Eighth
Amendment.”) (internal quotations and citations omitted); Apprendi v. New Jersey, 530 U.S. 466,
481 (2000) (“judges [are permitted] to exercise discretion . . . in imposing a judgment within the
range prescribed by statute). As such, this claim for habeas relief is denied.
2. Petitioner’s Jury Instruction Claim
Petitioner argues that the trial court’s jury charge was deficient because the court failed to
“instruct the jury that before considering [Petitioner’s] alleged out-of-court statement it must first
find such statements to be credible” and likewise failed to explain to the jury “that nonmemorialized oral statement[s] must be recorded with caution.”4 (See Am. Pet., ECF No. 7 at
Petitioner additionally claims – in incomprehensible fashion – that “[t]his error was not
compounded by the court’s refusal to instruct the jury with the false charge[.]” (See Am. Pet.,
ECF No. 7 at PageID: 34). Based on this convoluted language, it is unclear to this Court what
exactly Petitioner is referring to. Petitioner fails to bolster this assertion with additional record
evidence or other support and this Court has been unable to find any evidence in the record which
4
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PageID: 34). In other words, it appears that Petitioner claims that the trial court failed to properly
instruct the jury on the import of the pre-trial statements Petitioner and S.B. made to the police.
Petitioner does not explain how the trial court’s failure to include the-above referenced language
within the charge prejudiced his defense nor does he cite to any case law in support of this claim.
Moreover, it does not appear that Petitioner raised this issue on direct appeal or during PCR
proceedings. It therefore appears that Petitioner failed to properly exhaust this claim during his
state court proceedings. This Court will nonetheless deny this claim as being without merit,
notwithstanding Petitioner’s failure to exhaust. See 28 U.S.C. § 2254(b)(2).
That a jury “instruction was allegedly incorrect under state law is not[, in and of itself,] a
basis for habeas relief.” Duncan v. Morton, 256 F.3d 189, 203 (3d Cir. 2001) (quoting Estelle v.
McGuire, 502 U.S. 62, 71-72 (1991)), cert. denied, 534 U.S. 919 (2001). Habeas relief is therefore
available based on an allegation that a petitioner’s jury instructions were improper only when “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). Where the challenge is a
failure to give an instruction, as it is in this claim, that burden is “especially heavy” because “[a]n
omission, or an incomplete instruction is less likely to be prejudicial than a misstatement of the
law.” Henderson at 155. This Court must consider the challenged jury instruction in the context
of the entire charge and the trial as a whole. Duncan, 256 F.3d at 203. That a challenged
instruction was “undesirable, erroneous, or even universally condemned,” is insufficient to warrant
suggests that the trial court refused to include a “false charge” for this claim. Ultimately, the same
legal analysis governing Petitioner’s other jury instruction-related claims demonstrates that
Petitioner is not entitled to habeas relief based on the trial court’s purported failure to include this
particular instruction.
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habeas relief. Id. A petitioner can only prevail on such a claim by showing that the instruction
rendered his trial fundamentally unfair. Id.
As noted above, Petitioner is challenging the trial court’s instructions to the jury with
respect to their consideration – and the underlying evidentiary value – of the pre-trial statements
which the victim and Petitioner made to police during the criminal investigation. The jury was
charged, in relevant part, as follows:
. . . . [Y]ou are the judges of the facts and as judges of the facts, you
are to determine the credibility of the various witnesses as well as
the weight to be attached to their testimony. You and you alone are
the sole and exclusive judges of the evidence, of the credibility of
the witnesses and the weight to be attached to the testimony of each
witness.
. . . . Whether or not [Petitioner] has been proven guilty
beyond a reasonable doubt is for you to determine based on all of
the evidence presented during the trial. Any comments by counsel
are not controlling.
It is your sworn duty to arrive at a just conclusion after
considering all the evidence which was presented during the course
of the trial.
....
. . . . You will only consider such facts which in your
judgment have been proven by the testimony of witnesses or from
exhibits admitted into evidence by the Court.
....
As the judges of the facts, you are to determine the
credibility of the witnesses, and in determining whether a witness is
worthy of belief and, therefore, credible, you may take into
consideration: The appearance and demeanor of the witness; the
manner in which he or she may have testified; the witness’s interest
in the outcome of the trial, if any; his or her means of obtaining
knowledge of the facts; the witness’[s] power of discernment,
meaning their judgment or understanding; his or her ability to
reason, observe, recollect and·relate; the possible bias, if any, in
favor of the side for whom the witness testified; the extent to which,
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if at all, each witness is either corroborated or contradicted, is
supported or discredited by other evidence; whether the witness
testified with an intent to deceive you; the reasonableness or
unreasonableness of the testimony the witness has given; whether
the witness made any inconsistent or contradictory statement; and
any and all other matters in the evidence which serve to support or
discredit his or her testimony.
Through this analysis, as the judges of the facts, you weigh
the testimony of each witness and then determine the weight to give
to it. Through that process you may accept all of it, a portion of it
or none of it.
If you believe that any witness or party willfully or
knowingly testified falsely to any material facts in the case with
·intent to deceive you, you may give such weight to his or her
testimony as you may deem it is entitled. You may believe some of
it, or you may, in your discretion, disregard all of it.
If any witness is shown knowingly to have testified falsely
concerning any material matter, you have a right to distrust such
witness’[s] testimony in other particulars, and you may reject all the
testimony of such a witness or you may give it the credibility you
may think it deserves.
(See Oct. 4, 2007 Tr. 85-91, ECF No. 12-24).
When reviewing the charge to the jury in this greater context, it is clear that the absence of
the additional language Petitioner claims should have been included in the jury charge did not
render Petitioner’s trial fundamentally unfair. The instructions make clear that the jury was to
consider only those facts which, in their judgment, were proven by witness testimony and the
exhibits admitted into evidence. It is therefore unsurprising that Petitioner’s counsel expressly
indicated that he had no objections to any portion of the trial judge’s charge to the jury. (See Oct.
4, 2007 Tr. 105:21-25, ECF No. 12-24). Furthermore, “[t]he evidence of [Petitioner’s] guilt [in
this case] was strong[.]” Quixal, 2016 WL1637217 at *2. It included the compelling testimony
of numerous witnesses and “DNA evidence taken from the inside of [S.B.’s] underwear” which
matched Petitioner’s DNA. Id. Based on the foregoing, it is clear that the jury charge in this
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matter did not render Petitioner’s trial fundamentally unfair. Duncan, 256 F.3d at 203. As such,
this Court finds that Petitioner is not entitled to habeas relief on his jury charge claim.
3. Petitioner’s Sufficiency of the Evidence Claim
Petitioner also asserts that “the State failed to prove ‘all’ the elements beyond [a]
reasonable doubt of the charges adjudicated.” (See Am. Pet., ECF No. 7 at PageID: 33). In so
doing, Petitioner essentially challenges the sufficiency of the evidence supporting the three charges
upon which he was convicted. It does not appear that Petitioner raised this issue on direct appeal
or during PCR proceedings, and that Petitioner therefore failed to properly exhaust this claim
before the state courts. This Court will nonetheless deny this unexhausted claim as being without
merit. See 28 U.S.C. § 2254(b)(2).
When a petitioner presents a claim challenging the sufficiency of the evidence against him,
“a reviewing court must 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.’” Eley, 712 F.3d at 847 (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)). A court sitting in habeas review may therefore overturn a conviction for insufficiency of
the evidence only “if it is found that upon the record evidence adduced at trial no rational trier of
fact could have found proof of guilt beyond a reasonable doubt.” Id. (quoting Jackson, 443 U.S.
at 324). “Under Jackson, federal courts must look to state law for the substantive elements of the
criminal offense, but the minimum amount of evidence that the Due Process Clause requires to
prove the offense is purely a matter of federal law.” Coleman v. Johnson, 566 U.S. 650, 655
(2012). Under this “deferential federal standard,” juries have “broad discretion in deciding what
inferences to draw from the evidence presented at trial” and federal courts must not “unduly
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impinge[] on the jury’s role as factfinder” by engaging in “fine-grained factual parsing.” Id. So
long as a rational fact finder could find all of the essential elements of the charged crimes beyond
a reasonable doubt given the benefit of all reasonable inferences and viewing the facts in the light
most favorable to the State, a habeas claim based on the sufficiency of the evidence must fail.
Here, the record makes clear that “[t]he evidence of [Petitioner’s] guilt was strong. The
victim gave a statement and testified, [Petitioner] gave a statement, and there was DNA evidence.”
Quixal, 2016 WL1637217 at *2. Indeed, there was ample evidence presented at trial which showed
that Petitioner “took the [six-year old victim] to a secluded area of the garden center [where
Petitioner was then working], kissed her on the lips, pulled her pants and underwear down and
licked her on the vagina[, and then took] out his penis and asked her to touch it.” Id. at *1. Thus,
a rational fact finder could easily have found that Petitioner sexually assaulted S.B. Petitioner’s
contention that there was insufficient evidence of his guilt is thus patently without merit. Because
the evidence in this matter was more than sufficient to convict Petitioner of aggravated sexual
assault upon a victim less than thirteen years of age, endangering the welfare of a child, and sexual
assault upon a victim less than thirteen years of age, Petitioner is not entitled to habeas relief on
his sufficiency of the evidence claim.
4. Petitioner’s Evidentiary Claims
Petitioner next contends that the trial court erred in “allowing the [State’s] use of out of
[court] statements, unauthenticated pictures, and testimony of [S]tate’s witnesses.” (See Am. Pet.,
ECF No. 7 at PageID: 33).
Claims challenging the admissibility of evidence are normally considered questions of state
law which are not cognizable in habeas corpus. See Marshall v. Lonberger, 459 U.S. 422, 438
14
(1983) (“the Due Process Clause does not permit the federal courts to engage in a finely-tuned
review of the wisdom of state evidentiary rules”); Keller v. Larkins, 251 F.3d 408, 416 n. 2 (3d
Cir. 2001) (“A federal habeas court . . . cannot decide whether the evidence in question was
properly allowed under the state law of evidence”); see also Estelle v. McGuire, 502 U.S. 62, 6770 (1991); Wilson v. Vaughn, 533 F.3d 208, 213-14 (3d Cir. 2008), cert. denied, 556 U.S. 1170
(2009).
Habeas relief is therefore only appropriate where a petitioner can show that the admission
of the evidence in question denied him Due Process under the Fourteenth Amendment by depriving
him of the “fundamental elements of fairness in [his] criminal trial.” Glenn v. Wynder, 743 F.3d
402, 407 (3d Cir. 2014) (quoting Riggins v. Nevada, 504 U.S. 127, 149 (1992) (Thomas, J.
dissenting)). The Supreme Court has “defined the category of infractions that violate ‘fundamental
fairness' very narrowly, based on the recognition that, beyond the specific guarantees enumerated
in the Bill of Rights, the Due Process Clause has limited operation.” Medina v. California, 505
U.S. 437, 443 (1992)). “In order to satisfy due process, [Petitioner’s] trial must have been fair, it
need not have been perfect.” Id. (citing United States v. Hasting, 461 U.S. 499, 508 (1983)). Thus,
a Due Process violation will only occur in the context of a state court evidentiary ruling when that
ruling was “so arbitrary or prejudicial that it rendered the trial fundamentally unfair.” Scott v.
Bartkowski, No. 11-3365, 2013 WL 4537651, at *9 (D.N.J. Aug. 27, 2013) (citing Romano v.
Oklahoma, 512 U.S. 1, 12-13 (1994)).
Here, Petitioner does not specify which particular evidence he believes was improperly
admitted nor does he cite to any case law in support of this claim. The record before this Court
shows that the only specific challenge to any of the trial court’s evidentiary rulings which
Petitioner pursued on appeal concerned the improper credibility assessments made by two police
15
officers during their testimony at trial.5 The Appellate Division considered and rejected the lone
evidentiary claim that Petitioner presented to it as follows:
During [Petitioner’s] trial, the prosecution presented a number of
witnesses, including Detective Stio, who testified with respect to her
interview of S.B. and Sergeant Cilento, who testified with respect to
his interrogation of [Petitioner]. [Petitioner] complains on appeal
that these witnesses improperly commented with respect to
credibility, Detective Stio expressing the view that S.B. was being
truthful, Sergeant Cilento the view that [Petitioner] was, at the outset
of the interrogation, being deceptive.
We agree with [Petitioner] that it is generally inappropriate
for one witness to comment upon the credibility of another witness.
State v. T.C., 347 N.J. Super. 219, 238 (App. Div. 2002), certif.
denied, 177 N.J. 222 (2003). Having reviewed the trial record,
however, we are satisfied that a reversal is not called for. We note
first that there was no objection at trial to these comments. R. 2:102. In addition, the comments of Detective Stio to which [Petitioner]
now objects were elicited during [Petitioner’s] cross-examination,
not during questioning by the prosecutor. Further, the trial court
clearly instructed the jury in its charge that determining the
credibility of the witnesses was their exclusive responsibility. We
presume that the jury followed the court’s instructions. See State v.
Manley, 54 N.J. 259, 271 (1969).
Quixal, 2010 WL 5419109, at *2.
Petitioner has presented this Court with no Supreme Court case to which this decision was
contrary, nor a case which the state court unreasonably applied. Because Petitioner has not shown
that the Appellate Division’s ruling was contrary to or an unreasonable application of relevant
Supreme Court decisions, he could only be entitled to habeas relief if the admitted evidence in this
5
The record confirms that Petitioner failed to claim that any other specific evidence was
improperly introduced at his trial on direct appeal or during his counseled PCR proceedings. For
example, while Petitioner claimed that trial counsel was ineffective for failing to argue that
Petitioner was not guilty of sexual assault based on the facts detailed in his confession to Sergeant
Cilento, Petitioner in no way challenged the trial court’s admission of that statement into evidence.
Quixal, 2010 WL 5419109 at *2. The Court is likewise unable to locate any evidence in the record
which even remotely suggests that unauthenticated pictures were improperly admitted at trial.
16
matter denied him a fundamentally fair trial. In context, it is clear that the introduction of
Petitioner’s confession, the police officers’ above-referenced testimony, and any other such
heretofore unspecified State’s evidence introduced during Petitioner’s trial did not render that
proceeding fundamentally unfair. Petitioner is therefore not entitled to habeas relief on this claim.
Glenn, 743 F.3d at 407.
5. Petitioner’s Ineffective Assistance of Counsel Claims
Petitioner asserts that he received ineffective assistance of trial counsel. The standard
applicable to such claims is well established:
Claims of ineffective assistance are governed by the two-prong test
set forth in the Supreme Court’s opinion in Strickland v.
Washington, 466 U.S. 668 (1984). To make out such a claim under
Strickland, a petitioner must first show that “counsel’s performance
was deficient. This requires [the petitioner to show] that counsel
made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed by the Sixth Amendment.” Id. at 687; see also
United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007). To
succeed on an ineffective assistance claim, a petitioner must also
show that counsel’s allegedly deficient performance prejudiced his
defense such that the petitioner was “deprive[d] of a fair trial . . .
whose result is reliable.” Strickland, 466 U.S. at 687; Shedrick, 493
F.3d at 299.
In evaluating whether counsel was deficient, the “proper
standard for attorney performance is that of ‘reasonably effective
assistance.’” Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). A
petitioner asserting ineffective assistance must therefore show that
counsel’s representation “fell below an objective standard of
reasonableness” under the circumstances. Id. The reasonableness
of counsel’s representation must be determined based on the
particular facts of a petitioner’s case, viewed as of the time of the
challenged conduct of counsel. Id. In scrutinizing counsel’s
performance, courts “must be highly deferential . . . a court must
indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland, 466
U.S. at 689.
17
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
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. Counsel’s Failure to Argue That Petitioner Was Not Guilty of Sexual Assault Based on
Petitioner’s Confession to Sergeant Cilento
Petitioner first contends that counsel was ineffective because he failed to argue that
Petitioner was not guilty of aggravated sexual assault because he kissed S.B. ‘above’ and not ‘on’
the vagina.” (Am. Pet., ECF No. 7 at PageID: 26). The PCR court analyzed and rejected this
claim as follows:
In [Petitioner’s] confession, he explained what had occurred with
the victim while talking with the officers. He states:
Q: Where did you kiss her?
A: On top of the vagina.
[Petitioner] then further explained his conduct when
questioned by the officers as follows:
18
Q: When did you realize that what
you were doing was bad? You said
that you thought it was bad?
A: When I give the kiss on the vagina.
Petitioner also told the officers that when he kissed the
victim on the vagina, he used his lips only, and not his tongue. At
trial, [Petitioner] maintained that his entire confession was the result
of police threats and aggression. Therefore, trial counsel had tactical
reasons for making the decision not to put the argument of “on top
of” versus “on” the vagina before the jury at trial.
When reviewing counsel’s performance at the trial level,
judicial scrutiny must be highly deferential because “it is all too
tempting for a defendant to second guess counsel’s assistance after
conviction.” Strickland, 466 U.S. at 690. “Every effort [should] be
made to eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’ s challenging conduct, and to evaluate
the conduct from counsel’s perspective at the time. Strickland at
689; State v. Arthur, 184 N.J. 307, 318-319 (2005).
In this case, trial counsel’s decision not to argue the
distinction between “on top of the vagina” versus “on the vagina” to
the jury did not amount to ineffective assistance of counsel. In
addition to [Petitioner] giving explicit detail in his 13 page
confession, there was other evidence adduced at trial with regard to
[Petitioner] kissing the victim’s vagina. In fact, the victim herself
testified that [Petitioner], “kissed [her] on [her] lips and then he
licked [her] on [her] private.” Therefore, counsel not pursuing the
semantics of whether it was “on top” or “on” the victim’s vagina, in
the [Petitioner’s] own words, amounts to a tactical decision, and
therefore was not deficient performance.
Deficient performance is established by proving that
“counsel’s acts or omissions fell ‘outside the wide range of
professionally competent assistance’ considered in light of all the
circumstances of the case.” State v. Castagna, 187 N.J. 293, 314
(2006). Here, trial counsel made a strategic decision, which was not
“outside the wide range of professionally competent assistance.”
Therefore, [Petitioner] failed to make out a prima facie case of
ineffective assistance of counsel on this claim.
State v. Quixal, No. 06-11-2010-1, slip op. at 7-9 (N.J. Super. Ct. Law Div. Aug. 29, 2014)
(internal citations to record omitted) (available at ECF No. 12-10).
19
The Appellate Division affirmed the denial of PCR relief to Petitioner “substantially for
the reasons explained by [the PCR judge] in his written opinion.” Quixal, 2016 WL 1637217 at
*2. The Appellate Division agreed that Petitioner failed to demonstrate “that trial counsel was
ineffective” and “also made no showing that he was prejudiced” as a result. Id.
Having reviewed the relevant portions of the record, e.g., the transcript of the August 1,
2014 PCR hearing (see ECF No. 12-28), the written decisions of the PCR court and the Appellate
Division, etc., and giving appropriate deference to the state courts’ factual findings, see 28 U.S.C.
§ 2254(e)(1), this Court agrees with the PCR court and the Appellate Division that Petitioner failed
to establish either deficient performance by his trial counsel or resulting prejudice to his defense.
The state courts’ rejection of Petitioner’s claim that his counsel was ineffective for failing to argue
that he was not guilty of sexual assault because he kissed S.B. ‘above’ and not ‘on’ the vagina is
not contrary to, nor represents an unreasonable application of, Supreme Court precedent in light
of the facts at hand. As such, Petitioner is not entitled to habeas relief on this claim.
b. Counsel’s Purported “Failure to Investigate”
Petitioner also asserts that he is entitled to habeas relief based on counsel’s “failure to
investigate[.]” (ECF No. 7 at Page ID: 36). The standard applicable to claims that counsel was
ineffective in failing to call certain witnesses is similar to the above-referenced failure to
investigate standard. Again, Strickland requires that a petitioner “overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial strategy.” United
States v. Graves, 613 F. App’x 157, 159 (3d Cir. 2015) (quoting Strickland, 466 U.S. at 689)
(internal quotation marks omitted). When presented with such a claim, courts are “required not
simply to give [the] attorney[] the benefit of the doubt, but to affirmatively entertain the range of
possible reasons [petitioner’s] counsel may have had for proceeding as [he] did.” Branch v.
20
Sweeney, 758 F.3d 226, 235 (3d Cir. 2014) (alterations in original) (quoting Pinholster, 563 U.S.
at 195). Indeed, as this Court has explained:
In Strickland, the Supreme Court held that trial counsel “has a duty
to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.
In any
ineffectiveness case, a particular decision not to investigate must be
directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.”
466 U.S. at 691. “The failure to investigate a critical source of
potentially exculpatory evidence may present a case of
constitutionally defective representation,” and “the failure to
conduct any pretrial investigation generally constitutes a clear
instance of ineffectiveness.” United States v. Travillion, 759 F.3d
281, 293 n. 23 (3d Cir. 2014) (internal quotations omitted) . . . .
Where a [p]etitioner can show that counsel’s failure to
investigate amounts to deficient performance, he must still show
prejudice. In order to do so,
a defendant basing an inadequate assistance claim on
his or her counsel’s failure to investigate must make
“a comprehensive showing as to what the
investigation would have produced. The focus of the
inquiry must be on what information would have
been obtained from such an investigation and
whether such information, assuming admissibility in
court, would have produced a different result.”
United States v. Askew, 88 F.3d 1065, 1073 (D.C. Cir. 1996)
(quoting Sullivan v. Fairman, 819 F.2d 1382, 1392 (7th Cir. 1987));
see also United States v. Lathrop, 634 F.3d 931, 939 (7th Cir. 2011)
(“[w]hen a petitioner alleges that counsel’s failure to investigate
resulted in ineffective assistance, the petitioner has the burden of
providing the court with specific information as to what the
investigation would have produced”); United States v. Green, 882
F.2d 999, 1002 (5th Cir. 1989) (“A defendant who alleges a failure
to investigate on the part of his counsel must allege with specificity
what the investigation would have revealed and how it would have
altered the outcome” of Petitioner's case); accord United States v.
Garvin, 270 F. App’x 141, 144 (3d Cir. 2008).
Brown v. United States, No. 13-2552, 2016 WL 1732377, at *4-5 (D.N.J. May 2, 2016).
21
Here, Petitioner baldly claims only that his counsel “fail[ed] to investigate.” (ECF No. 7
at PageID: 36). Based on the record of PCR proceedings, it appears that this portion of Petitioner’s
ineffective assistance of counsel claim speaks to Petitioner’s argument to the PCR court that his
attorney did not adequately investigate additional information that Petitioner’s brother, Elfido
Quixal (“Elfido”), had regarding the circumstances surrounding Petitioner’s arrest and subsequent
confession. Petitioner argued to the PCR court that Elfido would have testified that the police
officers investigating S.B.’s sexual abuse claims acted “very abusively” towards Petitioner and
that this would have shown that Petitioner’s confession was coerced. Quixal, slip op. at 6.
Petitioner further claimed that counsel’s failure to call Elfido to testify at Petitioner’s pre-trial
hearing on the admissibility of Petitioner’s confession and at trial prejudiced his defense. Id. at 3.
The PCR court rejected this notion. It found that “the failure to call [Elfido, both] as a witness at
the pre-trial motion[, and during trial did not fall] ‘outside the range of professionally competent
assistance.’ . . . The decision not to call [Elfido as a] witness is not so egregious that [Petitioner]
was denied the effective assistance of counsel. Further, [Petitioner] does not show that counsel’s
performance deprived [him of] a reliable result under Strickland.” Quixal, slip op. at 6, 9.
The Appellate Division affirmed the denial of PCR relief to Petitioner “substantially for
the reasons explained by [the PCR judge.]” Quixal, 2016 WL 1637217 at *2. The Appellate
Division agreed that Petitioner failed to demonstrate deficient performance or prejudice based on
counsel’s decision to not call Elfido to testify, and correctly noted that “the evidence of
[Petitioner’s] guilt at trial was strong [where t]he victim gave a statement and testified, [Petitioner]
gave a statement, and there was DNA evidence.” Id.
Having reviewed the relevant portions of the record, and affording appropriate deference
to the state courts’ factual determinations, see 28 U.S.C. § 2254(e)(1), this Court finds that the
22
state courts’ rejection of Petitioner’s claim that his counsel was ineffective for failing to investigate
Elfido’s account of his arrest and for subsequently deciding to not call Elfido as a witness is not
contrary to, nor an unreasonable application of, Supreme Court precedent. As such, Petitioner is
not entitled to habeas relief on this claim.
c. Counsel’s Purported Failure to Adequately Prepare Petitioner to Testify at Trial
During PCR proceedings, Petitioner also claimed that his attorney failed to adequately
prepare him to testify. The PCR court provided the following explanation in rejecting this claim:
[P]etitioner claims that trial counsel’s failure to prepare [Petitioner]
to testify on his own behalf at trial resulted in his poor performance,
which amounted to ineffective assistance of counsel. [Petitioner]
maintains that his lack of preparation “negatively impacted” on his
trial performance.
There is no evidence that defense counsel’s failure to prepare
[P]etitioner to testify in court negatively impacted his performance
at trial. In this case, [Petitioner] had previously given a detailed, 13
page confession to the police, in which he detailed how he had
kissed the six year old child’s mouth, kissed her vagina with his lips,
but not his tongue, and then grabbed his own erect penis.
[Petitioner] was confronted with this confession when he decided to
testify on his own behalf at trial. This Court does not agree that trial
counsel’s alleged lack of preparing [Petitioner] negatively impacted
his testimony, rather [Petitioner] was subjected to cross-examination
based on his own pretrial confession.
Therefore, [P]etitioner fails to make a prima facie claim of
ineffective assistance of counsel under Strickland because counsel’s
conduct was not '’deficient’, nor is there a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” State v. Nunez-Valdez, 200
N.J. 129, 138-39 (2009) (quoting Strickland[, 466 U.S. at 694]
(1984)).
Quixal, slip op. at 6-7 (internal citations to record omitted).
23
The Appellate Division affirmed “substantially for the reasons explained by [the PCR
judge] in his written opinion.” Quixal, 2016 WL 1637217 at *2. The Appellate Division noted
that this issue “relate[d] to trial strategy and [Petitioner] made no showing that trial counsel was
ineffective” or “that he was prejudiced” as a result. Id.
This Court agrees with the PCR court and the Appellate Division that Petitioner failed to
establish either deficient performance by his trial counsel or resulting prejudice to his defense.
This Court therefore finds that the state courts’ resolution of this claim is not contrary to, nor an
unreasonable application of, relevant Supreme Court precedent. As such, Petitioner is not entitled
to habeas relief on this ineffective assistance of counsel-related claim.
d. Counsel’s Failure to Object to Testimony Opining on Petitioner and S.B.’s Credibility
Petitioner also argues that counsel proved ineffective in failing to object to those portions
of Detective Stio and Sergeant Cilento’s testimony at trial in which they expressed opinions about
the credibility of S.B. and Petitioner, respectively. (ECF No. 7 at PageID: 26, 36). The PCR court
provided the following explanation in rejecting this claim:
[P]etitioner claims that trial counsel’s failure to object to the
testimony of two of the State’s witnesses at trial who offered
opinions of credibility resulted in ineffective assistance of counsel.
[Petitioner] raised this issue on his direct appeal. The Appellate
Division[, in its opinion affirming Petitioner’s conviction on direct
appeal,] noted that it is generally inappropriate for a witness to
comment on the credibility of another witness. However, the
Appellate Division stated that the trial court gave clear instructions
to the jury that determining the credibility of a witness was their
exclusive responsibility. Therefore, the comments made by the
State’s witnesses did not rise to the level of warranting a reversal of
[Petitioner’s] conviction. This Court agrees with the Appellate
Division’s analysis, and finds that the curative instruction given by
the trial judge to the jury resolved any issue with the witnesses’
testimony as to credibility.
Quixal, slip op. at 9 (internal citations omitted).
24
The Appellate Division affirmed the denial of PCR relief to Petitioner “substantially for
the reasons explained by [the PCR judge.]” Quixal, 2016 WL 1637217 at *2. The Appellate
Division also added the following:
[Petitioner’s] arguments concerning ineffective assistance of trial
counsel all relate to trial strategy and [Petitioner] made no showing
that trial counsel was ineffective. See State v. Parker, 212 N.J. 269,
279 (2012) (explaining that counsel’s alleged deficiency must be
“serious” and that a defendant “must overcome a strong
presumption that counsel rendered reasonable professional
assistance”) (quoting and citing Strickland, [466 U.S. at 687].
Moreover, the evidence of [Petitioner’s] guilt at trial was strong.
The victim gave a statement and testified, [Petitioner] gave a
statement, and there was DNA evidence. Accordingly, [Petitioner]
also made no showing that he was prejudiced by any alleged
ineffective assistance of counsel.
Quixal, 2016 WL 1637217 at *2.
Having reviewed the relevant portions of the record, and giving appropriate deference to
the state courts’ factual findings, see 28 U.S.C. § 2254(e)(1), this Court agrees that Petitioner failed
to establish either deficient performance by his trial counsel or resulting prejudice to his defense
during state court proceedings.
The state courts’ rejection of Petitioner’s final ineffective
assistance of counsel-related claim is not contrary to, nor an unreasonable application of, relevant
Supreme Court precedent based on the facts in the record. As such, Petitioner is not entitled to
habeas relief on this claim.
6. Additional Miscellaneous Claims Raised by Petitioner
Petitioner also baldly claims that: (i) the state courts “categorically presum[ed] him to be
an illegal immigrant[;]” (ii) the State of New Jersey does not have jurisdiction over him in a manner
sufficient to imprison him; and (iii) he was denied his right to an allocution. (ECF No. 7 at PageID:
33-34). Petitioner fails to cite to any facts in the record which substantiate these claims. This
25
Court has also failed to locate any such factual support in the record. Petitioner likewise fails to
cite to any legal authority, persuasive or otherwise, which even marginally suggests that Petitioner
would be entitled to habeas relief based on these claims. This Court is similarly unaware of any
such legal authority which suggests that habeas relief is appropriate based on the foregoing,
factually unsubstantiated, one-off assertions. Moreover, Petitioner does not appear to have raised
any of these arguments in the state courts. This Court rejects each of these specious claims as
factually unsupported and legally meritless.
III. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a habeas
proceeding where that petitioner’s detention arises out of his state court conviction unless he has
“made a substantial showing of the denial of a constitutional right.” “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district court’s resolution
of his constitutional claims or that jurists could conclude that the issues presented here are adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Because all of Petitioner’s habeas claims are without merit for the reasons expressed above, he has
failed to make a substantial showing of a denial of a constitutional right, and his petition is not
adequate to receive encouragement to proceed further. This Court therefore denies Petitioner a
certificate of appealability.
26
IV. CONCLUSION
For the reasons stated above, Petitioner’s petition for a writ of habeas corpus is DENIED
and Petitioner is DENIED a certificate of appealability. An appropriate order follows.
s/ Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge
Dated: September 17, 2018
27
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