BLACK v. NOGAN
Filing
24
OPINION. Signed by Judge Madeline Cox Arleo on 12/5/2019. (dam, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JONATHAN BLACK,
Civil Action No.
16—8498(MCA)
Petitioner,
OPINION
V.
PATRICK NOGAN and
THE ATTORNEY GENERAL OF THE
STATE OF NEW JERSEY, et al.,
Respondents.
MADELINE COX ARLEO,
I.
District Judge
INTRODUCTION
This
matter
has
been
Petition pursuant to 28
Jonathan Black
opened
U.S.C.
(“Petitioner”)
.
to
§ 2254
the
Court
(ECF No.
1
by
the
pro
se
(“Petition”))
of
Petitioner purports to present his
habeas claims as nine grounds in the Petition. However, he in fact
asserts
fifteen claims,
since Ground Five asserts eight
claims.
(ECF No.
12—33.)
the
Court
will
1—2
deny
at
all
For
fifteen
of
the
the
reasons
separate
explained
Petition’s
below,
claims
prejudice and will deny a certificate of appealability.
with
II.
FACTUAL BACKGROUND & PROCEDURAL HISTORY
A. Factual Background
Petitioner’s convictions arose from several armed robberies
and related crimes in April 2004. This Court briefly reviews their
facts as pertinent to this Opinion.
1.
7—Eleven Robbery: April 20,
April
Or.
See 28 U.S.C.
20,
2004
at
approximately
2004,
12:22
§ 2254(e) (1)
•‘
12:22 a.m.
a.m.,
twc
masked
black males armed with handguns robbed a 7—Eleven store in Union,
New
Jersey
(“7—Eleven
Robbery”)
.
One
robber,
the
taller
and
skinnier of the two, wore a short-sleeve white t—shirt, long pants,
work boots,
and a mask. The shorter robber had “long black braids”
and was wearing work boots,
gloves.
a black jacket,
short blue jeans,
and
The men stole the money from two cash registers and left
the store. The store security cameras recorded the 7—Eleven Robbery
but provided no identifying information.
4981192,
at *1
(N.J.
Super.
Ct.
App.
Div.
State v.
Dec.
24,
Black,
2009 WL
2009)
(“Black
2009 II”)
2.
Quick Chek Robbery: April 20,
At around 1:00 a.m. on April 20, 2004
——
2004,
1:00 a.’u.
approximately thirty
“In 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 presumed to be correct. The applicant shall have
the burden of rebutting the presumption of correctness by olear
and convincing evidence.” 28 U.S.C. § 2254(e) (1).
2
minutes
males
after
the
entered
a
7-Eleven
Quick Chek
wore blue jean shorts,
and
a
black
counter,
face
The
two
--
mask.
He
armed,
in Union.
store
a white t-shirt,
The
masked,
skinnier
Timberland boots,
gloves,
had her take all the money out of the cash register,
and
other
robber
the
manager
robber
the
took
store’s
black
behind
placed the cash in a bag
*1.
Robbery
(“Quick Chek Robbery”)
was
light-skinned,
.
Black 2009 II at
had
shoulder—length
dreadlocks, and was “more muscular” than the other. He wore a black
hooded
sweatshirt,
black mask,
register,
blue
jean
shorts,
brown
Timberland
boots,
a
and no gloves. While the manager attempted to open the
the
muscular
robber
stood
on
the
other
side
of
the
threatening to kill her if she did not “hurry up.” He was
counter,
carrying a larger gun than the other robber.
Ibid.
During the robbery, customer Rodrigo Erazo entered the store.
The muscular robber pointed his gun at Erazo and told him to get
on the
floor or he would be
killed.
Ibid.
Police Sergeant Harry
Capko responded to the scene and found a shell casing behind the
counter.
Black 2009 II at *2.
3.
On April
Chek Robberies
in Union
Foot Locker Robbery:
26,
—-
2004
——
six days
after the
2004
7—Eleven and Quick
an armed robbery occurred at a Foot Locker store
(“Foot Locker Robbery”).
Following
April 26,
the
Foot
Locker
Black 2009 at *1.
Robbery,
police
DiGena took a report from the store’s manager
3
office
Pietro
(“the Manager”), who
stated that a customer
(“the Customer”)
during
was
the
2009 at
that,
but
ECF No.
8—17 at
silver,
away by
5-6.)
fender and
headlight” was partially
(“the Galant”)
camouflage
(Black 2009 at *1;
.
ECF
jacket” and the other wore “a
both armed with handguns.
4.
Roughly
Officer
(ECF No.
that
ECF No.
1—2
at
41—
the perpetrators were
8-17 at 8.)
The Vehicle Stop: April 28, 2004
four
DiGena
hours
after
Manager’s
the
and Officer Barry Cohen
patrol in a marked car on April 28,
a.m.,
*1;
(Black 2009 at
The Manager told Officer DiGena
42.)
report
to
police,
(“the Officers”)
were on
2004.
At approximately 12:23
they observed a silver 1995 Mitsubishi Galant with damage to
front,
right
fender
and
a
broken,
damages
matched
Robbery
perpetrators’
vehicle.
The
on Morris Avenue
near the
Foot
*1.
(Black
8—17 at 5—6.) Other witnesses reported that one robber wore an
black hooded sweatshirt.”
west
suspects.
and damage to the right
[a broken right front]
“olive green military
the
the
The Customer told the Manager
with gray tinted windows,
blocking the store’s exit
No.
turned
joon leaving the location, he had noticed “a 1995 Mitsubishi
Calant,
front
*1;
robbery
tried to enter the store
the
Customer’s
description
3ased on its broken headlight,
stopped the silver Mitsubishi
17 at 7.)
right
damaged
of
headlight.
the
vehicle
Locker store.
was
Locker
driving
Black 2009 at
the officers foliowed and then
(“The Stooped Vehicle”)
The Officers immediately requested backup.
4
Foot
These
.
(ECF No.
(Ibid.)
8—
They
instructed the car’s driver and three passengers
(“the Occupants”)
to roll down their windows “to see better into the car.”
8—17
No.
at
6—7;
Black 2009 II at
8—17 at 7.)
*2.)
(ECF No.
The Occupants complied.
While waiting for backup to arrive,
(ECF
the Officers
saw that “the front passengers were passing something back to the
rear seat passengers,” which suggested “they were trying to conceal
something.”
Police
instructed
Occupants
the
to
stop
their
movements, with which they complied only after several requests by
police.
(Black 2009 at
£4arano
soon
Coleman.
arrived
(EC? No.
*1;
at
the
ECF No.
scene
8—17
to
at
Sergeant
6—8.)
assist
Officers
Frank
DiGena
and
8-17 at 28-29.)
As Sergeant Marano and Officer OiGena apDroached The Stopped
Vehicle,
DiGena
noticed
that
the
matched the Manager’s description.
17
at
10
Vehicle,
saw
32.)
and
28j2
they used
facerrtasks
As
the
on
its
Upon DiGena’s questioning,
to the other Occupants.
to
wore
clothes
(Black 2009 at *1;
officers
flashlights
and gloves
Occupants
got
closer
illuminate
floor.
its
(ECF No.
to
that
ECF No.
The
Stopped
interior.
8—17
at
8—
They
10
and
Petitioner denied passing anything
(Black 2009 at *1; ECF No.
8—17 at 10—11.)
The Officers ordered the Occupants to exit The Stopped Vehicle
one-by—one and to sit on the curb.
2
(Black 2009 at *1;
ECF No.
8-
Sergeant )1arano had also been on the scene of the Foot Looker
Robbery after it occurred on April 28, 2004. (ECF No. 8—17 at 29—
31.
5
17 at 13,
17—19.) The police patted down the Occupants for weapons.
(Black 2009 at *1;
Sergeant
cushion
was
suggested
cushion,
11
and
to
him
saw
away
that
8—17
ECF No.
34—36.)
with
the
As
the
weapon
it
8—17 at 11.)
that
from
the
12
at
side
so,
hammer back
Marano
and
discharge,
To retrieve the Colt,
trunk.
There
he
its
side
(ECE No.
8-17 at 36.)
in a
which
been
have
vehicle,”
hidden.”
(Black
When he
saw
pulled
ECF No.
handle
the
safety
removed.
on
the
8—17 at
10—
of
Colt
a
Given
around the
the
car
to
(ibjd.)
location
second
semiautomatic handgun
identical to that of the
on the
first gun.
He also found: a knife with a six-inch blade
and Petitioner’s high school
identification card under the tire in the wheel well.
police
seat
the
Marano went
in the pocket of the driver’s door;
The
side]
Marano had to move a “speaker box” in
found a
driver’s
passenger
of
and 23.)
retrieve the gun through the trunk.
the
[rear
(Black 2009 at *2;
did
might
“the
“something may
“it popped cut.”
handgun
risk
Marano
pulled
xl;
2009 at
ECF No.
arrested
a::
four
separately to police headquarters.
Occupants
and
(ibid.)
took
them
(ECF No. 8—17 at 13.) The police
determined that Petitioner was the driver and wore a black hooded
sweatshirt.
Drake,
wore
The
a
front—seat
green
passenger,
military
later
jacket.
The
identified as
driver’s
side
Kevin
rear
passenger was identified as Ernest Oliver. The passenger side rear
passenger was identified as Tariq Yicamb.
6
(ECF No.
—2 at 43.)
?4cLamb, Oliver, and Black gave statements to the police about
the weapons
in The Stopped Vehicle as well
as
information about
various other robberies.
(Black 2009 at *2;
ECF No.
and
all
their
24.)
Police
advised
defendants
before they provided their statements,
those rights in writing.
(ECF No.
8—17 at 12—13
Miranda
rights
and all defendants
waived
of
1—2 at 43.)
Petitioner told the
officers at the scene that he borrowed The Stopped Vehice from a
friend’ s mother to go to the movies and to get “prom stuff.” Ibid.
Sergeant Michael Sanford, who was in charge of Union’s police
ballistics
lab,
testified at
trial
seized from The Stopped Vehicle
8—26 at 18 and 30—34.)
seized guns
12,
2004.
that
he
tested
the
(“the Weapons Evidence”)
two
.
guns
(ECE No.
The weapons test revealed that one of the
had been used in at a gas
(Black 2009 at *2;
ECE No.
station shooting on April
8—17 at 37.)
Sandford found
En route from Newark on April 12, 2004, Robert Walker and
Petitioner stopped for gas. After Walker opened the driver door to
request fuel, Petitioner reached across him while holding a gun
and stated to the station attendant: “Give me the damn money or
I’ll kill you” (the “Gas Station Shooting”). State v. Black, No.
a—3608—13T3, 2016 WL 2903612, at *1 (N.J. Super. Ct. App. Div. May
29, 2016) (“Black 2016”); State v. Black, 2009 WL 348548, at *2.
(N.J. Super. Ct. App. Div. Feb. 13, 2009) (“Black 2009”)
When the
attendant retreated in panic, Petitioner shot him in the chest and
ordered Walker to drive away. Black 2009 at *2. The attendant
survived the attack. Both the bullet and casing were recovered.
Ballistic tests connected the ammunition with one of the guns found
in the vehicle that Petitioner was driving after he committed other
crimes on April 28, 2004. Ibid. Petitioner, who was apprehended
following an April 26, 2004 armed robbery of a Foot Locker store,
as described above, confessed to the Gas Station Shooting but
repudiated his confession at trial, saying that his confession had
been manufactured by the police without any involvement on his
.
7
(Black 2009 at *2; ECF No.
weapons
were
fully
8-17 at 37.)
operable.
test—fired from the Colt
(ECF No.
Sandford found both seized
8—17
at
40-41.)
A
casing
.380 automatic handgun matched the
casing recovered from the scene of the Quick Chek robbery.
.380
(Id. at
34—35.)
5.
Petitioner’s Confession
After Petitioner’s April 28 arrest, pOlice transported him to
Union
:ownship
Jail.
According to
Rossi told him that “the first one
II
at
*3
Petitioner,
Approximately
fifteen
Petitioner,
[who]
Detective
Gregory
talks, walks.” Black 2009
hours
after
police
they brought him into an interrogation room.
arrested
Officer
In connection with the Gas Station Shooting, Indictment No.
04-10—1303
charged
Petitioner with:
second-degree aggravated
assault causing serious bodily injury, N.J. Stat. Ann. § 2C:12—
1(b) (1); first—degree armed robbery, N.J. Stat. Ann. § 2C:15—l;
second-degree possession of a weapon for an unlawful purpose, N.J.
Stat. Ann. § 2C:39—4(a); and third—degree unlawful possession of
a weapon, N.J. Stat. Ann. § 2C:39—5(b). Black, 2009 WL 348548, at
*1.
The jury found Petitioner guilty on all counts of the
indictment against him. Black 2009 at *1. Petitioner was sentenced
to an aggregate term of sixteen years in prison with an eighty—
five percent parole disqualifier, pursuant to the No Early Release
Act, N.J. Stat. Ann. § 2C:43—7.2 (“NERA”). Black 2009 at *1.
Petitioner
directly
appealed.
The
Appellate
Division
affirmed, remanding only for resentencing. Black 2009 at *1. After
the judge resentenced Petitioner to the original term following
remand, Petitioner appealed the resentence. The Appellate Division
affirmed. Black 2016 at *1. The New Jersey Supreme Court denied
certification. State v. Black, 970 A.2d 1048 (N.J. 2009).
On December 16, 2013,
Petitioner’s application for post—
conviction relief (“PCR”) as to the Gas Station Shooting was
denied. Black 2016 at *1. On May 19, 2016, the Appellate Division
affirmed. Ibid. On October 14, 2016, the New Jersey Supreme Court
denied certification. State v. Black, 154 A.3d 684 (N.J. 2016)
8
Christopher
Miranda
Baird
v.
Arizona,
verbally
384
u.s.
read
436
Petitioner
(1966)
his
rights
and gave him a
under
standard
Miranda waiver form. Petitioner signed the form and agreed to speak
Black 2009 II at *3
to police.
interrogation,
interview.
Confession,
Robbery,
Petitioner was calm and cooperative throughout the
Petitioner
(“Confession”)
During the approximately two hour
,
read
and
signed
his
initialing each page at the bottom.
statement
Ibid.
In his
Petitioner admitted to participation in the 7—Eleven
Quick
Chek
Robbery,
Foot
Locker
Robbery,
Gas
Station
Shooting, a Chinese restaurant armed robbery, and a Kids-R—Us armed
robbery.
He
stated
that,
when
pulled
contemplating an additional robbery.
6.
In June
over,
the
Occupants
Black 2009 at *3 n.
were
1.
Trial On Charges Related To The 7-Eleven And Quick
Chek Robberies
and July of 2006,
Petitioner stood trial alone
the 7—Eleven Robbery and the Quick Chek Robbery,
jointly with no objection from Petitioner.4
for
which were tried
(Black 2009 II at *4);
Indictment No. 04—10—1268 charged Petitioner with first—degree
robbery, possession of a weapon for an unlawful purpose, and
unlawful possession of a weapon in connection with the 7—Eleven
Robbery. (ECF No. 8—19 at 2.) Indictment No. 04-10-1269 charged
Petitioner with identical crimes as to the Quick Chek robbery.
(Ibid.) On June 16, 2006, the Honorable Joseph P. Perfilio, J.S.C.
granted the State’s motion to join the indictments for purposes of
trial. (Id. at 4—5.) Petitioner does not assert claims in his §
2254 Petition presently before this Court as to the Foot Locker
Robbery (see ECF Nos. 1 and 1-2), and state court records as to
criminal prosecution of Petitioner in connection with that robbery
are not in the habeas record before this Court.
“
9
The jury found him guilty of the following
8—29.)
ECF Nos.
8—20
charges;
two
2C:15—l;
second
purpose,
N.J.
-
counts
of
degree
Stat.
degree
first
possession
Ann.
robbery,
of
2C:39—4a;
§
a
weapon
and
third
for
Judge
Ann.
unlawful
degree
unlawful
(Black 2009 II
8—29 at 6—8.)
Perfilio
the
merged
for
convictions
degree
first
robbery and possession of a weapon for an unlawful purpose.
2009
II
*1;
at
§
an
possession of a weapon, N.J. Stat. Ann. § 2C:39—5b.
at *1 and *4. ECF No.
Stat.
N.J.
ECF
No.
at
8—30
5—7.)
The
judge
(Black
imposed:
two
consecutive fourteen-year terms subject to an eighty—five percent
disqualifier
parole
year terms
for
pursuant
each unlawfu
Black 2009 II at *1.
twenty—eight
disqualifier.
On
year
Thus,
to NERA5;
and two
concurrent
five-
possession of a weapon conviction.
Petitioner’s aggregate sentence was a
term
with
24,
2009,
an
eighty—five
percent
NERA
parole
Ibid.
December
the
Appellate
Division
affirmed
Petitioner’s conviction and sentence as to the 7—Eleven and Quick
Ohek Robberies.
2010,
Black,
(Black 2009 II at *1;
ECF No.
8—3.)
On March 18,
the New Jersey Supreme Court denied certification.
991 A.2d 232
(N.J.
State v.
2010).
‘A court imposing a sentence of incarceration for a crime of
the first or second degree enumerated in subsection d. of this
section shall fix a minimum term of 85% of the sentence imposed,
during which the defendant shall not be eligible for parole.”
N.J. Stat. Ann. § 2C:43—7.2a.
10
On December 16, 2013, the Honorable William A. Daniels, J.S.C.
PCR application as to the 7—Eleven and Quick
denied Petitioner’s
Chek Robberies.
May
2.)
2016,
19,
On
certification.
3,
State v.
7,
November
(ECF No.
New
the
8-15 at
Petitioner
(N.J.
filed his
from the
violation
warrantless
of
vehicle and the purportedly tainted search’s fruit
weapons and his confession)
of a mistrial;
;
(2)
by
Court
denied
2254
Petition
(I)
Fourth
Petitioner’s
seized
(i.e.,
due process violation from denial
the trial judge’s unconstitutional failure to
(3)
(4) constitutionally improper
instruct the jury on identification;
sumr.ation
8—15 at
2016)
§
search
On
1—2.)
(ECF No.
Supreme
Jersey
156 A.3d 167
Black,
2016,
ECF No.
setting forth the following claims:
1 at 15),
Amendment
2016,
1-22;
Division affirmed.
the Appellate
November
On
8-10 at
CEDE’ No.
the
denial
(5)
prosecutor;
of
fair
communication
due
trial
with
a
to
trial
sleeping
jurors;
witness;
(7) the trial judge’s improper comment to jurors regarding
jurcr
improper
(6)
the weight of witness testimony and regarding juror sleeping;
trial
improper
gesture
(8)
to
a
denial
of
fair
juror;
(9)
constitutional rights deprivation from the trial judge
due
nodding off during trial;
(“IAC”)
due
regarding
failure
to
counsel’s
to
jury
seek
removal
failure
to
the
judge’s
ineffective assistance of counsel
(10)
counsel’s
alleged
to
failure
to
misconduct;
of
seek
sleeping
a
seek
(11)
11
IAC
jurors;
mistrial
voir
additional
for
due
(12)
to
dire
counsel’s
IAC
purported
due
to
juror
(13)
misconduct;
proceedings;
(ECF Nos.
(14)
denial
of
due
process
due
cumulative errors; and
disjointed
to
(15)
trial
excessive sentence.
1 and 1—2.)
STANDARD OF REVIEW
III.
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.
98
(2011);
Price
v.
See Harrington v. Richter,
Vincent,
538 U.S.
courts must
afford great deference
state
and
766,
trial
773
appellate
courts.
634,
to the
See
641
562 U.S.
(2003).
District
determinations
Renico
v.
Lett,
86,
of the
559 U.S.
(2010)
Where
state courts
the district
court
have
adjudicated a claim on the merits,
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
law,
of,
clearly
established
Federal
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.
12
u.s.c.
28
114
§ 2254(d) (1)—(2)
(3d dr.
2015)
See Conover v. Main,
.
u.s.c.
(citing 28
601 F. App’x 112,
§ 2254(d)).
Federal law is “clearly established” for these purposes where
it is clearly expressed in “only the holdings,
dicta”
of
Woods v.
the
opinions
Donald,
of
135 5.
the
Ct.
United
1372,
supreme
states
1376
as opposed to the
court.
See
(2015)
A decision is “contrary to” a supreme court holding within 28
u.s.c.
§ 2254(d) (1)
law set forth in
set
a
of
decision
facts
of
[different]
th[e
if the state court “contradicts the governing
[the supreme court’s]
that
are
supreme]
result.”
cases” or if it “confronts
indistinguishable
materially
Court
Williams
nevertheless
and
v.
Taylor,
529
from
arrives
U.S.
362,
at
a
a
405—06
(2000)
under the “‘unreasonable application’ clause of § 2254(d) (1),
a
federal
habeas
the
identifies
court
correct
may
grant
governing
the
writ
legal
if
the
principle
state
court
from
th[e
supreme] court’s decisions but unreasonably applies that principle
to the facts of the prisoner’s case.” Williams,
529 U.s.
at 413.
With regard to 28 U.s.C. § 2254(d) (1), a federal court must confine
its
examination
Pinholster,
to
563 U.S.
evidence
170,
in
180—81
the
record.
Cullen
v.
(2011).
The petitioner carries the burden of proof,
§ 2254(d)
See
and review under
is limited to the record that was before the state court
that adjudicated the claim on the merits.
13
See Harrington,
562 U.S.
at 100.
“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.
102-03.
at
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).
Under these standards, the relevant state court decision that
is
appropriate
for
federal
reasoned state court
289—90
(3d Cir. 2008)
decision
reasons
on
.
.
.
the
habeas
decision.
.
See Bond v.
Furthermore,
merits
.
.
.
corpus
does
is
review
Beard,
the
last
F.3d 256,
539
“when the relevant state—court
not
come
accompanied
with
[w]e hold that the federal court should ‘look through’
the unexplained decision to the last related state—court decision
that does provide a relevant rationale.” Wilson v.
Ct.
IV.
1188,
1192
Sellers,
138 5.
(2018)
ANALYSIS
A. Ground One: Fourth iuendment Violation
Ground
One
argues
that
the
trial
Petitioner’s motion to suppress6 “violated
6
court’s
[his]
denial
of
Fourth Amendment
Prior to trial in June—July 2006, Petitioner filed a motion
admissibility of his
(“Suppression Motion”)
challenging the
14
right of protection against illegal search and seizure.”
1—2
at
4.)
Specifically,
he argues
that:
Cl)
(ECF No.
the April 28,
2004
warrantless seizure of the Weapons Evidence was improper;
and
his
illegal
Confession
following
vehicle search.
(Id.
that
at 4-7
Judge Wertheimer’s
seizure
was
fruit
of
the
(2)
(“Fourth Amendment Claim”).)
July 11,
2005 written opinion upheld the
search of The Stopped Vehicle and its Occupants as:
search pursuant to Terry v.
Ohio,
392
u.s.
1
a protective
(1968);
and,
in the
alternative, a search justified under the automobile exception7 to
the warrant requirement.8
This Court
review;
and
In
Supreme
lacks merit,
(1)
is barred from habeas
in any event.
Stone v. Powell Bars Habeas Review Of Ground One
Stone v.
Court
1—2 at 44—46 and 50—51.)
finds that Ground One:
(2)
1.
(ECF No.
Powell,
held
that
428
u.s.
“where
465
the
(1976),
the
State
has
united States
provided
an
Confession
and
the
Weapons
Evidence
(collectively,
“Seized
Evidence”). (Black 2009 at *1; ECF No. 1—2 at 50.) The state court
record indicates that Petitioner sought to suppress seized weapons
evidence and the perpetrators’ statements in both the Gas Station
Shooting trial as well as the trial on the 7—Eleven and Quick Chek
Robberies. (See ECF No. 1-2 at 41 and 47; ECF No. 8-17 at 1.) On
June 1, 2005, Judge Wertheimer held an evidentiary hearing on the
Suppression Motion (“suppression Hearing”). (ECF No. 8—17.)
Judge Wertheimer noted that both sides had agreed that police
lawfully detained The stopped Vehicle as the result of a broken
headlight. (Black 2009 at *2; ECF No. 1—2 at 42.)
In March 2006, Judge Wertheimer denied the defense’s motion for
reconsideration of Suppression Motion denial. (ECF No. 1-2 at 4951.) The Appellate Division affirmed. Black 2009 II at *45 and
*8
15
for
opportunity
claim,
and
full
fair
of
litigation
Fourth Amendment
a
a state prisoner may not be granted federal habeas
corpus
relief on the ground that evidence obtained in an unconstitutional
search or seizure was introduced at his trial.” Stone,
495—96.
As the Third Circuit explained in Hubbard v.
428 C.S. at
Jeffes,
653
Stone stands for the proposition that “when
F.2d 99 (3d Cir. 1981),
a state prisoner raises a Fourth Amendment violation in a habeas
petition,
a federal court may not consider the merits of the claim
‘an opportunity
if the state tribunal had afforded the petitioner
of his claim.” Hubbard,
for a full and fair litigation’
at
102—03
(citing
428
Stone,
82
Hendricks, 307 F.3d 36,
U.S.
at
F.2d
653
v.
see also Marshall
494);
(“An erroneous or summary
(3d Cir. 2002)
resolution by a state court of a Fourth Amendment claim does not
the
overcome
Attorney Gen.
(D.N.J.
bar”)
[Stone]
of New Jersey,
July 30,
2018)
.
(citations
No.
14-5486,
omitted) ;
v.
Reininger
2018 WL 3617962,
at *9
Petitioners can avoid the Stone bar only
by demonstrating that the state system contains a structural defect
that
prevented
claim. Marshall,
Here,
full
ar.d
fair litigation of
Fourth Amendment
the
307 F.3d at 82.
Petitioner
availed
himself
of
the
opportunity
full and fair litigation of his Fourth Amendment Claim.
to suppress the Seizure Evidence.
(Black 2009 at
*19;
for
a
He moved
ECF No.
1—2
The state court record on the Suppression Notion indicates that
Petitioner sought to suppress seized weapons evidence and the
16
The trial court held an evidentiary hearing on the matter,
at 50.)
during which Officer
No.
its
testified.
Sergeant Maranc
and
(ECF
The trial court denied the Suppression Motion as well
8—17.)
as
DiGena
(ECF
reconsideration.
then
Petitioner
his
presented
appeal,
which the Appellate
and *3.
Claim
Fourth Amendment
49—51.)
on
direct
*1
2009 at
Brown
rejected.
Division
and
41—46
at
1—2
No.
Brown 2009 II at *4
Jersey
courts
provided Petitioner with an adequate forum to present his
Fcurth
Court
This
therefore
that
concludes
the
New
Amendment Claim. He had a full and fair opportunity to litigate it
in the
He has
state courts.
defect in the state courts’
and 1-2.)
failed to demonstrate any structural
In accordance with Stone and its progeny,
not consider the Fourth Amendment Claim.
F.2d
51,
57
(3d Cir.
1986);
(contention
that
F.2d at
799
Jones
42
and
confession
defendant’s
103;
F.2d 40,
725
1
this Court may
See Gilmore v. Marks,
653
Hubbard,
Superintendent of Rahway State Prison,
1984)
(See ECF Nos.
review of that Claim.
v.
(3d Cir.
all
other
evidence admitted at his trial should have been suppressed as fruit
of
illegal
federal
Johnson,
arrest
habeas
was
corpus
171 P.36. 270
not
proper
court
(5th Cir.
under
for
subject
Stone)
.
consideration
by
Jones
v.
See
also
1999).
perpetrators’ statements in both the Gas Station Shooting trial
as well as the trial on the 7—Eleven and Quick Chek Robberies.
(See ECF No. 1—2 at 41 and 47; ECF No. 8—17 at 1.)
17
The Court will deny Ground One as barred by Stone.
2.
Even if
Ground One Lacks Merit
Stone did not bar habeas
review of Ground One,
the
Fourth Amendment Claim is without merit as well.
The
Constitution
prohibits
the
government
from
conducting
“unreasonable searches” of “persons, houses, papers, and effects.”
U.S.
Const.
amend.
IV.
“The general rule in a criminal proceeding
is that statements and other evidence obtained as a result of an
unlawful,
warrantless arrest are suppressible if the link between
the evidence and the unlawful conduct is not too attenuated.” INS
v.
Lopez—Mendoza,
v.
United States,
468 U.S.
1040—41
(citing Wong Sun
requirement
usually determines whether a search is unreasonable.
City of Los
Gant,
Patel,
556 U.s.
Any
135 S.Ct.
332,
evidence
338
471
(1984)
The warrant
Angeles v.
371 U.S.
1032,
(1963)).
2443,
2452
(quoting Arizona v.
(2015)
(2009))
obtained
in
connection
with
an
unauthorized
search must be suppressed as “fruit of the poisonous tree.”
v.
Brown,
U.S.
448 F.3d 239,
244
(3d Cir.
2006)
U.S.
(citing Wong Sun,
371
at 487—88)
Relevant in Petitioner’s case are the “protective sweep” and
“automobile” exceptions to the warrant requirement.
First,
exception,
as
to
the
protective
sweep
it is well established that police officers may,
under
certain circumstances,
warrant
requirement’s
conduct a protective,
18
security sweep of a
vehicle’s passenger compartment without a warrant during a lawful
investigatory vehicle stop. Michigan v. Long, 463 u.s. 1032,
(relying on
as
is
subject
searches
protective
valid
and
armed
1)
U.5.
392
Terry,
(1983)
Warrantless sweeps are permitted
.
when
there
to
u.s.
at
392
Terry,
dangerous.
reason
is
believe
27.
a
This
exception enables officers to ascertain whether a suspect is armed
and to neutralize the threat of harm.
articulable
believing
the
suspect
is
justify
and
officer
“the
I
I [
[
may
immediate control of weapons.” Maryland v. Buie, 494 U.S.
and
(citations
(1990)
Michigan,
(3d
at 1049;
463 u.s.
164,
167
Cir.
prudent
officer
believe
the
internal
driver
(citation omitted);
or
United States v.
(courts
2002)
would,
quotation marks
under
the
occupants
v.
U.S.
consider
present
Edwards,
53
omitted)
Robertson,
a
whether
totality
an
F.3d
of
police
specific
cn
based
dangerous
“the
where
applies
belief
reasonably
which”
facts
that
reasonable
a
possesses
officer
exception
sweep
protective
The
at 23.
Id.
325,
.
and
in
gain
332
Accord
305
F.3d
reasonably
circumstances,
immediate
616,
618
danger)
(3d
Cir.
1995)
In Petitioner’s case,
it was objectively reasonable for the
state courts to determine that the protective sweep exception. to
the
warrant
reauirement
applied.
Pclice
had
lawfully
Petitioner’s vehicle based on its broken headlight.
v.
Prouse,
440 U.s.
648
(1979).
stopped
See Delaware
The parties agreed on that issue.
19
Brown
*2.
at
2009
Petitioner’s
After
the
vehicle,
made
police
shows
record
lawful
that
that
of
stop
reasonably
police
suspected the Occupants might be armed and dangerous because:
(1)
The Stopped Vehicle had been sighted near the Foot Locker Robbery
location;
matched
victims;
(2)
the
the
two
by
provided
descriptions
that
Robbery
police sighted masks and gloves on the floor of the
(3)
Stopped Vehicle,
the
such as
Locker perpetrators
Foot
had used;
the police observed the front—seat passengers surreptitiously
(4)
passing
something
to
the
back
the
(5)
seat;
and
Stopped Vehicle,
car.
The
the stop
coupled with other evidence linking the Occupants
an armed robbery,
the
(6)
The suspicious movement within The
Ibid.
occurred after midnight.
denied
Occupants
engaging in the movements the police witnessed;
to
Locker
Foot
the
clothing
wore
passengers
front—seat
justified a continued search of
reasonably
reasonable
assumption
was
that
weapons
might
be
concealed within the automobile itself. A continued search of the
vehicle was necessary to ensure the safety of the three officers,
(See ECF No.
8—17 at
search of The
Stopped
who were out-numbered by the four Occupants.
6—7;
Black 2009 II at *2.)
Furthermore,
Vehicle
was
the
reasonable
scope of
under
the
the
police
circumstances.
Sergeant
Marano
initially limited his search to the area where he observed furtive
movements and where he noticed the seat cushion was pulled away.
(ECF
No.
1-2
at
44.)
Marano
pulled
20
on
the
seat
cushion,
which
revealed a Colt handgun, whose safety was off and whose hammer was
pulled back.
(Ibid.)
Marano then went through the trunk to secure
the weapon because of safety concerns.
a
leqitimate
Florida v.
concern
Royer,
460
when
assessing
u.s.
491,
500
(Ibid.)
the
Officer safety is
of
scope
a
search.
See
(1983)
For these reasons, it was objectively reasonable for the state
court to determine that the police search of The stopped Vehicle
met both prongs to the protective search exception:
suspicion of danger and
Second,
(2)
(I)
reasonable
justifiable scope of search.
as to the warrant requirement’s automobile exception,
police need not obtain a warrant before searching a vehicle when
they probable cause to believe it contains contraband. Maryland v.
Dyson,
527
separate
of
conceal
465,
exigency
automobile
search
u.s.
467
requirement.
exception
every
part
527
Dyson,
J.5.
to
the
warrant
requirement
of
the
vehicle
and
at
permits
contents
its
466.
The
“‘the
that
may
the object of the search,’” provided that probable cause
supports such search.
(3d Cir.
The automobile exception has no
(1999).
2014)
United States v. Donohue,
(quoting Gant,
556 U.S.
332).
764 F.3d 293,
300
A search’s validity
pursuant to the automobile exception depends on whether officers
had probable cause to believe that the vehicle contained,
time of the search, evidence of a crime. Donohue,
In Petitioner’s case,
state
courts
to
determine
at the
764 F.3d at 301.
it was objectively reasonable for the
that
the
21
automobile
exception
to
the
warrant requirement applied. As described infra, police had reason
to suspect that the Occupants might have possessed a deadly weapon.
Black 2009 II at *2;
Black 2009 at *1. Additionally,
the Officers
were involved in an ongoing investigation of events that occurred
close in time.
The
Black 2009 II at *1.
Stopped Vehicle,
than
the
Occupants
Black 2009 at *1;
there was
a possibility that
could access
ECF No.
Despite the Occupants exiting
the
car.
8—17 at 6—7,
to
the
warrant
requirement
Maryland,
527
U.S.
at
Donohue,
467;
17—19.)
F.3d at
*2;
The automobile
therefore
764
other
II at
(Black 2009
13,
exception
persons
applies.
Gant,
300;
See
556
332.
U.S.
Under
automobile
these
clearly
exceptions
to
established
the
warrant
protective
requirement,
sweep
it
was
and
not
contrary to or an unreasonable application of United States Supreme
Court
precedent
for
state
court
to
find
obtained the Seized Evidence as to both
and
(2)
(1)
the Confession. As to the latter,
Confession
poisonous
subsequent
tree
-
to
because
that
the
search
that
police
lawfully
the Weapons Evidence;
Petitioner’s arrest and
were
protective
not
sweep
fruit
and
of
the
automobile
exceptions applied to the search of The Stopped Vehicle. See Brown,
448 F.3d at 244
the
Fourth
(citing Wong Sun, 371 U.S. at 487—88). Accordingly,
Amendment
barred by Stone.
Claim
is
also
without
merit,
Ground One is denied habeas relief.
22
even
if
not
B. Ground Two: Mistrial Claim
Ground Two
Fifth
and
argues
that
Fourteenth
the
Amendment
Petitioner moved for mistrial
the back of an exhibit
court
trial
rights
denied
Petitioner’s
denying
by
a
mistrial.
jury saw information on
after the
during deliberations that
(“the Writing”)
inferentially connected him to an unrelated robbery involving
(ECF No. 1 at 7; ECF No. 1—2 at 7—10
shooting.
a
(“Mistrial Claim”).)
Specifically, the Writing referenced an Exxon station robbery
and
2009
shooting
II
but
did
*5•
The
at
not
mention
jury
sent
the
a
Petitioner
note
to
the
by
name.
Black
during
judge
deliberations, asking: “What is on the back of this board with the
map?
It references a
.45
this
case?
like
We
would
cal.
the
and
.380
court
to
in Union.
be
aware
Unconnected to
of
it.”
Ibid.
Defense counsel had previously noticed the Writing and requested
the State turn the board so it was not exposed to the jury. However,
neither side realized the Writing was being submitted to the jury
as an exhibit.
Ibid.
In denying Petitioner’s motion for mistrial,
found the Writing was potentially prejudicial,
Judge
Perfilio
but he ruled there
was no “overriding, absolute manifest necessity for [a] mistrial.”
(Ibid.)
Judge Perfilic instructed the jury as to the Writing;
It is completely unconnected to this case. It
case,
this
has
nothing
to do with
this
It went in there in error and
defendant
your perceptions are very, very good it seems.
You are to completely disregard anything that
.
.
.
23
was on that board.
[A]s I said, you can only consider evidence.
That wasn’t evidence. What is on the front was
evidence, the map. You can’t consider [the
Writing] in any way or have it enter into your
deliberations in any manner in any way at all.
:t shoud not prejudice either side in this
case. It was a mistake that was not caught.
x5
Black 2009 II at
testimony.
recuested
then
jury
The
(“Curative Instruction”)
a
of
read—back
Petitioner’s
A small portion of this testimony was redacted,
included a question and answer relating to the Writing.
Division
Appellate
The
Petitioner’s
necessity
rejected
appeal
because
direct
for
declaration
constitutional issues;
Black 2009 II at *6
of
a
the
Mistrial
there
mistrial;
no
Ibid.
Claim
no
was:
as it
during
manifest
implication
and no unjust result in Petitioner’s case.
(internal citations omitted)
The Mistrial Claim does not merit federal habeas relief.
asserts that the
(SCF No.
permit
1—2 at
the
It
state court erred as a matter of state law1° in
in
favor of
7—10.)
Fowever,
a mistrial
denying
of
federal
courts
giving the
Curative
Instruction.
“the Due Process Clause does not
to engage
in a
finely—tuned review of
the wisdom of state evidentiary rules.” Marshall v. Lonberger, 459
1C
Under New Jersey law, a motion for a mistrial may be granted
only in those situations where continuing the trial would result
in manifest injustice. State v. DiRienzo, 251 A.2d 99 (N.J. 1969)
The decision to deny a motion for mistrial is within the sound
discretion of the trial judge. State v. Winter, 477 A.2d 323 (N.J.
1984)
24
U.S.
422,
438
n.
6
(1983).
Habeas
claims
rely
that
exclusively
upon state law in asserting error in a state court’s evidentiary
ruling,
like
any
other
assertion
of
court
state
error
in
the
application of state law, do not warrant habeas relief. See Estelle
McGuire, 502 U.S.
V.
a
62,
67—68
(“it is not the province of
(1991)
federal habeas corpus to re—examine state—court determinations
of
408,
state—law
questions”);
416 n.
2
For
federal
a
(3d Cir.
see
also Keller
Larkins,
v.
251
F.3d
2001)
due
process
claim,
would
Petitioner
have
to
prove that he was deprived of fundamental elements of fairness in
his
criminal
Cir. 2014)
trial.
See
Glenn
v.
Wynder,
743
F.3d
127,
(citing Riggins v. Nevada, 504 U.S.
Lisenba
v.
California,
inquiry
is
limited
to
314
U.S.
whether
219,
the
236
state
149
(1941))
407
(3d
(1992)
and
402,
.
Due
ruling
court’s
process
was
so
arbitrary or prejudicial that it rendered the trial fundamentally
unfair.
See Romano v.
251 F.3d at 413.
category of
narrowly
Oklahoma, 512 U.S.
12—13
(1994);
Keller,
The United States Supreme Court has “defined the
infractions that violate
based
1,
on
the
recognition
‘fundamental
that
fairness’
[b]eyond
the
very
specific
guarantees enumerated in the Bill of Rights, the Due Process Clause
has limited application.” Medina v.
(1992).
“[Tb
been fair;
California,
505 U.S.
437,
443
[Petitioner’s]
trial must have
it need not have been perfect.” Glenn,
743 F.3d at 407
satisfy due process,
(citing United States v.
Hasting, 461 U.S.
25
499,
508
(1983)).
Here,
fail
to reference Petitioner
“would
have
regards
in
it”
to
to
(ECF No.
certain
for
order
but the
jury
speculate
with
67),
at
Writing
the
unreated to the
language was
8—28
and
conclusions
:ndeed,
at 67—68.)
(Id.
Petitioner.
No.
leap
to
only did the Writing
Perfilio decided that not
Judge
be
to
prejudicial
to
the jury itself suggested the
convenience
store
robberies.
(ECF
(“What is on the back of this board with the map?
8—28 at 56
Unconnected to this case”).) The Appellate Division found that
Judge Perfilic’s “curative instruction underscored these points.”
Black 2009 II at *6.
As
whether
to
this
fairness,
was
ruling
clearly
of
Petitioner’s
fundamental
violated
not
an
e.g.,
guilt:
unreasonable
There
law.
federal
established
evidence
substantial
mistrial
of
court
state
of
application
denial
was
Petitioner’s
incriminating statement; the bullet casing found at the Quick Chek
matching
the
gun
found
in
The
Stopped
Vehicle
that
Petitioner
drove; and the masks and gloves on the floor of that car. See Black
2009 II at
the
*6.
Appellate
On this record,
Division
to
find
it was objectively reasonable for
it
unlikely
the
jury would have
acquitted Petitioner but for its exposure to the Writing.
In short, although the Writing had the potential to prejudice
Petitioner,
Writing
the Curative Instruction
only
indirectly
referenced
Petitioner was not “deprived of
——
coupled with the fact the
Petitioner
-—
suggests
fundamental elements of
26
that
fairness
in his criminal trial,” see Glenn, 743 F.3d at 407,
mistrial
denial.
see
Petitioner,
in the
prejudice
2009
Black
jury’s
overwhelming
the
Furthermore,
II
*6,
at
as a result of
against
evidence
the
underscored
lack
of
Petitioner has
exposure to the Writing.
failed to establish any due process violation or undue prejudice
that
in
resulted
respect
to
a
denial
injustice
manifest
of
his
mistrial
unfair
an
or
Ground
motion.
trial
Two
does
with
not
warrant habeas relief ar.d will be denied.
C. Ground Three:
Jury Instruction Claim
Ground Three argues that the trial court deprived Petitioner
of his due process rights under the Fifth and Fourteenth Amendments
by
to
failing
identification.
Claim”).)
:n
instruct
on
jury
the
(ECF No. 1 at 8; ECF No. 1—2 at 10—11
claims
Petitioner
support,
[as]
.
.
.
cf
(“Instruction
“since
that
from either [the 7—Eleven Cr Quic:< Chek] store
issue
the
no
one
identified Ehim
involved in either robbery,” the “jury should have been
instructed that
consideration
they could take
[as to]
guilt.”
the
lack of
(ECF No.
identification
into
1—2 at 10—Il.)
Petitioner did not raise the Instruction Claim at trial. Black
2009
II
at
*6.
During
direct
Instruction
appeal,
the
reviewed
the
standard;
and rejected the Claim because:
never an issue at trial; and
instruction,
Claim;
(2)
applied
(1)
Appellate
the
Division:
“plain
error”
identification was
failure to give an identification
particularly in the absence of any request for one,
27
was
harmless
since:
(a)
the
State’s
case
did
not
rely
on
eyewitnesses placing Petitioner at either the 7—Eleven Robbery or
Quick
Chek
Robbery
scenes;
and
(b)
there
was
evidence of his involvement in those crimes.
other
substantial
at *6_7
Id.
This Court will deny the Instruction Claim for three reasons:
Ground Three Does Not Warrant Habeas Review: As noted
(a)
supra,
federal
convictions
courts’
based
on
habeas
a
powers
belief
that
applied a state evidentiary rule.
6.
The
only
evidentiary
question
decision
on
or
do
a
permit
not
trial
See Marshall,
habeas
is
instruction]
judge
of
incorrectly
459 U.S. at 438 n.
‘whether
the
itself
by
reversal
so
[challenged
infected
the
entire trial that the resulting conviction violates due process.”
Estelle,
502 U.S.
deference
states
procedure.
v.
Horn,
cert.
at 67—68 and 72.
in
See Crane v.
120
F.3d
Here,
regarding
determinations
Kentucky, 476 U.S.
400,
denied, 522 U.S.
Federal courts must afford the
414
1109
(3d Cir.
1997)
683,
690
evidence
(1986);
(citations
and
Smith
omitted),
(1998)
to the extent Petitioner asserts that Judge Perfilio’s
identification
instruction determination violated state law,
the
See Estelle,
502
Instruction Claim is not
reviewable
in habeas.
U.S. at 67—68; Romano, 512 U.S. at 12—13; Keller, 251 F.3d at 413.
Not
instructing the
jury on the absence
of any 7-Eleven Robbery
and Quick Chek Robbery witness identification of Petitioner as a
perpetrator was a matter of state evidence law. As such, it is not
28
reviewable by this Court.
Kibbe,
Henderson v.
923
F.2d 284,
has
Petitioner
431 U.s.
309
Isaac, 456 u.s.
See Engle v.
145
(3d Cir.)
denied,
cert.
,
shown due process
not
Fulcomer,
Zettlemoyer v.
(1977);
502
902
U.s.
or
deprivation
(1982);
107
(1991).
fundamental
unfairness to render the Instruction Claim reviewable on habeas.
Harmless Error;
(b)
Even in cases where constitutional
errors in evidence—related state court rulings have occurred, they
are subject to “harmless error” analysis
527 U.s.
Cir.
,
2003);
8—li
Horn,
i20
failure—to—instruct
(citing cases)
demonstrate
Lewis v.
(1999);
E’.3d
orinciple
This
Lewis,
e.g.,
See,
Under the harmless error test,
.
constitutional
that
error
United States,
F.3d 355,
348
Pinchak,
416—17.
at
contexts.
Neder v.
.
359
ir.cludes
F.3d
348
at
in
359
nust
a petitioner
resulted
(3d
“actual
prejudice.” That analysis asks whether the error had a “substantial
and
injurious
verdict.”
(citing
Eley
v.
v.
Brecht
also Fry v.
275—76;
effect
influence
v.
847
U.s.
619,
637—38
Cathel,
633
248,
F.3d
2013)
(993)).
See
(2007); Bond, 539 F.3d at
i21—22
112,
jury’s
Cir.
(3d
837,
507
551 U.s.
the
determining
in
F.3d
7:2
Erickson,
Abrahamson,
Pliler,
Adamson
or
260
(3d
Cir.
2011)
(citations omitted)
Judge
Perfiiio’s
identification
was
was
overwhelming.
evidence of
decision
harmless.
(ECF No.
The
8—10
instruct
to
not
evidence
at
[Petitioner]’s guilt;
29
12
[his]
of
the
jury
Petitioner’s
(°[T]here was
incriminating
on
guilt
substantial
statement;
the bullet casing found at the Quick Chek matching the gun found
in the car he was driving,
of
the
Consequently,
car”) .)
such evidence.
See Henderson,
instruction,
of
misstatement
an
Moreover,
against
(“An omission, or an
at 155
likely to be prejudicial
less
law”) .
the
omitted
than
a
instruction,
likely to be orejudicial than a misstatement of
notably,
is less
the law
Henderson,
.
is
u.s.
431
balanced
when
harmless,
omitting an
in
any purported error
was
instruction
identification
incomplete
and the masks and gloves on the floor
431 U.S. at 155. This means that “a petitioner
seeking habeas relief based on a trial court’s failure to give a
particular
instruction
that
demonstrating
prejudicial
that
431
24
u.s.
The
will
it
Supp.3d 390,
F.
to
give
a
state
404
court’s
Del.
(D.
instruction
the
attack
collateral
a
support
burden
heavy’
‘especially
failure
validity of
constitutional
Pierce,
the
an
has
judgment.”
of
was
on
so
the
Kelium
v.
(citing Henderson,
2014)
at 154—55)
state
court
record compels
this Court
to conclude that
Judge Perfilio’s failure to give an. identification instruction was
not
an
error
of
dimension.
constitutional
It
substantial and injurious effect on the verdict. See,
348
F.3d at
473
F.
App’x
359-60;
123,
Government
127
(3d Cir.
of
the
2012)
Virgin
not
did
e.g.,
Islands
(failure
to
v.
have
a
Lewis,
Edict,
instruct
that
jury could consider a prior inconsistent statement as substantive
evidence was harmless where evidence of guilt “was overwhelming”)
30
State Court Rulings As To The Instruction Claim Were
(c)
Not
Contrary
To Any Federal
Precedent:
Petitioner has not
cited,
and this Court has not discovered, any United States Supreme Court
decisions requiring a trial court to instruct the jury regarding
the
absence
crime
No.
scene
of
eyewitness
“[as
to]
identification
guilt beyond a
of
a
defendant
reasonable doubt.”
at
the
(See
ECF
on
the
1—2 at 10—11.)
For
these
Instruction
reasons,
were
Claim
the
not
court
state
contrary
to,
decisions
or
clearly established federal law.
application of,
an
unreasonable
Ground Three is
denied on the merits.
D. Ground Four:
Summation Claim
Ground Four argues that the prosecutor’s summation “exceeded
the
bounds
rights.
of
(ECF
and
propriety”
No.
1
at
10
violated
Petitioner’s
(“Summation
Claim”).)
due
In
process
support,
Petitioner argues that “while the prosecutor did not directly state
that
the police had no motive to lie,
that message was actually
conveyed to the jury by repeated attacks on
that
the
testimony of
fabricated.”
At
(EC? No.
trial,
occasions
the
the
the
[Confession]
had been
1—2 at 11—12.)
defense
that
and
police
[P]etitioner’s theory
counsel’s
summation
testifying
police
suggested on
officers”
several
lacked
At trial, Union Township Police Sergeant Harry Capko, Officer
Barry Cohen, Sergeant Frank Marano, Detective Michael O’Brien,
“
31
the Assistant
credibility.’2 Following that summation,
Prosecutor
told the jury during the State’s closing:
Now, [Detectiv& Miller testified today. He is
Police
Union
the
28—year
of
a
veteran
[Detective]
aside
Now,
from
Department.
Miller,
the defendant also testified that
there were other detectives present. Also
veterans of the Union Police Department. I ask
a
fabricate
to
you why would they want
they were going to fabricate
statement? And if
a statement or they were going to fabricate
this case,
wouldn’t they have made it a
hundred percent?
(ECF No.
8—27 at
153.)
Neither side objected to these aspects of
the other’s summation.
The
Appellate
Division
rejected
the
Summation
Claim during
direct appeal in the 7—Eleven and Quick Chek Robbery case.
2009
Ii
at
[Petitioner],
*7
(“given
the
weight
of
the
evidence
Black
against
the prosecutor’s statement was not “clearly capable
Detective Gregory Rossi, Detective Robert Miller, and Sergeant
Michael Sandford testified for the prosecution. (ECE’ No. 8-23 at
91—92 and 132; ECF No. 8—24 at 49; ECF No. 8—25 at 4, 55, and 82;
ECF No. 8—26 at 17—18.)
12
For example, defense counsel: (1) stated the jury could “take
Detective Sandford’s testimony “with a grain of salt” since he
“didn’t know “whether the ammunition used to test fire th[e]
[robbery] gun was the same ammunition as the example that it was
being compared to”; and (2) suggested that Officer Cohen was
unreliable because he testified that the Occupants’ surreptitious
passing of objects between the front and back seats “[went on]
maybe a minute or two,” while defense counsel countered that
“get[ting] something from the front to the back seat of a compact
car doesn’t require a minute of wiggling around lie the officer
testified to.” (ECF No. 8—27 at 128—31, 133—35, 137—38, and 140)
(referring to “the questionable credibility of predominantly the
police witnesses”).)
32
of producing an unjust result”)
Ground Four wili be dented because the state court decision
were
it
rejecting
neither
Prosecutorial misconduct
conduct
so
was
DeChristoffaro,
reversal,
egregious
that
a
U.S.
416
U.S.
637
infraction and
567 U.S.
(1974))
:n
.
must
substantialiy prejudice a
37,
of
defendant
a
(2013); Darden
45
Donnelly
(citing
(1986)
statements
prosecutor’s
for reversal unless
deprived a
it
181
168,
477
Wainwright,
v.
a basis
is not
See Parker v. Matthews,
fair trial.
unreasonable
an
United States Supreme Court precedent.
application of,
the
nor
to,
contrary
order
warrant
to
constitute
defendant’s
v.
a
clear
a
fundamental
right to have the jury fairly evaluate the merits of the defense.
United States v.
680 A.2d 634
Young,
470 U.S.
cert.
(N.J.),
1,
denied,
11—12
State v.
519 U.S.
1021
Roach,
(1996).
(1985);
Federal
review is limited to determining whether the prosecutor’s
habeas
conduct
“so
infected
trial
the
unfairness
with
as
to
resulting conviction a denial of due process.” Donnelly,
at
make
416 u.s.
Prosecutors are permitted to respond to arguments
643.
the
raised
by defense counsel as long as they do not stray beyond the evidence
at
*9
(D.N.J.
June
159
(3d Cir.
In
156,
this
D’Ilio,
Evans v.
adduced at trial.
2016)
6,
No.
(citing
15—2132,
Reid v.
2016 WL 3219874,
Beard,
420
F.
App’x
2011)
case,
the
Petitioner’s Confession.
State’s
theory
turned
Law enforcement witnesses
33
largely
upon
supoorted the
Confession’s accuracy and lawfulness.
154—57
and
fabricated
(See
ECE
166.)
his
No.
witnesses’
Petitioner
Confession
1—2
at
knowledge
about
the
and
11—12.)
credibility,
at
(1)
e.g.,
ECF No.
8-27 at
that
police
contended
how
about
do
such as:
Colt
trial
lied
To
(See,
so,
he
they
obtained
the
attacked
it.
State
Detective Sandford’s lack of
.380 weapon line
(2)
colors;
Detective
O’Brien’s purportedly implicit acknowledgment of “bad police work”
when he “kind of chuckled” about “instruct[ing]
to preserve evidence”
——
which,
in Petitioner’s case,
the police “putting tape on the bullets
[and]
(3)
passing
“all
resulted in
[to] package[] as evidence
Officer
kinds
of
testimony
Cohen’s
things
around
in
about
the
the
Occupants
[Stopped Vehicle],”
despite the obstructed view from window tinting; and (4)
Miller’s
“extremely
detectives
shaky”
waited
“just
walking by the
on how
the possibility of fingerprints lifted off those
ruin[ing]
bullets”;
[officers]
credibility
until
due
[Petitioner]
his
to
grabbed
Detective
claim
one
that
of
them
cell and said I want to tell you all about these
robberies because I am tired of sitting in here. You didn’t promise
[Miller] is totally unbelievable.”
me anything, but I want to talk.
(ECF No.
8—27 at 128—31,
Therefore,
after
State’s witnesses who
prosecutor had to
issue with the
133—35,
the
137—38,
defense’s
and 140.)
summation
supported the Confession’s
address
those
attacks.
While
attack
on
the
lawfulness,
the
Petitioner
choices made by the prosecutor during
34
takes
summation,
looking at the trial as a whole,
none of the statements,
rendered
the resulting conviction a denial of due process. The State’s query
to the
jury
—
fabricate a(n]
——
did not
motive.
State
[officers]
“why would the[]
i.e.,
[incriminating: statement,” see ECF No.
influence
imprcpery
it met
Rather,
the
The
Appellate
to
8—27 at 153
State witnesses’
summation challenge
defense’s
credibility.
witnesses’
jury about
the
want
[would]
Division
to the
reasonably
found in these circumstances that “the prosecutor’ s corents were
a proper response to defense counsel’s closing argument,]” given
that
“a
respond
may
prosecutor
to
an
argument
made
by
defense
counsel during closing.” Black 2009 at *3,
Petitioner
suggest,
capable
not
has
demonstrated,
and
the
record
not
does
that the prosecutor’s challenged statements were clearly
of
producing
an
unjust
result.
Review
of
the
State’s
summation as a whole convinces this Court that there was nothing
so egregious as to deprive Petitioner of a fair trial.
132 S.Ct.
643.
at 2153;
Darden,
477
u.s.
at 181;
Donnelly,
See Parker,
416 U.S.
at
None of the comments challenged by Petitioner “infected the
trial with unfairness.” See Donnelly, 416 U.S. at 643. Furthermore,
the
weight
conclusion.
of
the
evidence
against
See Black 2009 Ii at *6
Petitioner
this
(referring to the Confession;
the bullet casing found at the Quick Chek,
in The Stopped Vehicle;
underscores
which matched the gun
and the masks and gloves on the floor of
that car)
35
Ground Four is denied in its entirety.
Ineffective
E. Ground Five: (1) Denial Of Fair Trial; and (2)
Assistance Of Counsel
types of claims:
Ground Five asserts two genera
of
Trial
(“Fair
jury
impartial
Amendment
Sixth
Petitioner’s
Claim”)
1 at 14;
ECF No.
1—2 at 12—33.)
and
;
assistance of trial and appellate counsel
fair
a
to
right
denial
(1)
trial
an
by
ineffective
(2)
(“IAC Claim”)
(ECF No.
.
Each of those two claims asserts
distinct sub-claims.
Petitioner’s Fair Trial Claim argues that:
Specifically,
(a)
some of the jurors were sleeping during the trial (“Sleeping Jurors
issue”)
;
one of the jurors spoke with a police officer witness
(b)
(“Outside Influence Issue”)
during a side—bar conference
;
Cc)
the
trial judge improperly commented to jurors about testimony weight
and
(“Comment
sleeping
juror
Issue”)
(d)
;
the
judge
trial
improperly gestured to a juror during testimony (“Gesture Issue”)
and
(e)
Issue”).
the
trial
(ECF No.
nodded
judge
off
during
(“Attention
trial
1—2 at 12—31.)
IAC
Petitioner’s
Claim
argues
that
trial
counsel
was
ineffective for:
(a) failing to seek additional voir dire regarding
jury misconduct
(“Voir Dire
of
those
jurors
(“Removal
mistrial
resuiting
Issue”).
(Id.
from
Issue”)
Issue”)
purported
at 25 and 32—33.)
36
;
(b)
and,
juror
failing to seek removal
(c)
failing
misconduct
to
seek
a
(“Mistrial
Jurors
Sleeping
Claim;
Six, And Eight
1. Fair Trial
Jurors Two,
Regarding
Issue
On the third day of trial, the prosecutor told the judge that
the
State’s
either
had
Simmons’s
whether
“felt
attorney
her
closed
eyes
(ECE
testimony.
Juror
Eight
juror
had
No.
8—23
actually
[“Juror
Eight”]
sleeping”
was
or
eight
during
Officer
It
uncThar
number
at
:45—46.)
fallen
asleep.
was
The
prosecutor
requested that Judge Perfilio “do whatever you fee: appropriate”
as a corrective measure.
(Id.
at 146.)
Judge Perfilio stated that
he had “also noticed” that Juror Eight speaking to another juror
during testimony.
both issues,
(Ibid.)
Judge Perfilio voir dired Juror Eight on
as follows;
COURT; Are you having trouble keeping awake?
JUROR EIGHT:
I’m tired.
COURT: [D]o you think you would be capable of
paying attention to the witnesses?
I’m
EIGHT:
JUROR
everything going on.
I
listening.
do
hear
COURT: I’m just concerned about that. Also I
noticed at one point while there was a witness
on the stand you were talking to the one person
next to you.
JUROR EIGHT:
(ECE’ No.
8—24 at 2—4.)
I said I was cold.
You saw me.
Judge Perfilio instructed Juror Eight that
if she was having trouble concentrating or keeping awake, she would
“need to try to pay attention.”
(Id.
at
4.)
:n conclusion,
Judge
Perfilio asked Juror Eight “Do you think you’ll have any trouble
37
with
sides?”
know,
case
this
She
or
not?
replied:
“I
I
I
feel
don’t
fairly
deliberating
mean,
have
any
but
trouble,
(Id.
it’s antsy sittir.g here so lcng.”
after a while,
both
to
as
you
at 6.)
When questioned by Judge Perfilio about allegedly trying to
Juror Eight
responded that
she had tried to say “hi to [a] friend.” (Id. at 3.)
Judge Perfilio
speak with
someone
courtroom,
in the
admonished her not to talk to anyone,
as pure and clean of any possibl[e]
in order to “keep the trial
influence.”
(Ibid.)
(“Juror
Judge Perfilio similarly voir dired juror numbers two
Two”)
and six
closed.
(“Juror Six”)
,
who had been observed with their eyes
(Id. at 6—9.) Juror Two denied sleeping but said that “[i]t
does get a little repetitious
am nodding,
but
.
.
.
I mean,
I’m not going to say
I’m trying to catoh myself.”
(Id.
at 7-8.)
Six admitted:
“You caught me and I have caught myself.
you’re right,
you’ve
Judge
seen me nod out
reminded Jurors
Perfilio
where
a
juror
could
not
little bit.”
Two and Six of
paying attention to the testimony.
here
a
He stated:
deliberate
the
Juror
You know,
(Id.
at
9.)
importance of
“Once I had a case
because
they
couldn’t
remember some testimony because they fell asleep during the trial.”
(Id.
at
4.)
The
judge
instructed
jurors to raise their hands
if
(Id.
at
they could not hear or were having trouble concentrating.
7,
9—10,
and 17.)
38
Following this first voir dire of Jurors Two,
(“First Voir Dire”)
Juror Eight.
what
she
,
and Eight’3
the prosecutor asked Judge Perfilio to excuse
during
testimony.
(Id.
caught,
[Juror Eight]
know what
The State “[did not
missed”
Six,
at
Judge
11.)
Perfilio
again brought Jurors Two, Six, and Eight out for further voir dire
(“Second Voir Dire”).
(Id. at 14—17.’’) Each of these jurors stated
that they heard all the testimony.
(Id.
at 15.)
Juror
Ultimately,
Eight was designated as an alternate and did not contribute to any
of
the
jury’s
deliberations
objected to how the
45;
ECF No.
appea.
proceedings,
findings.
Defense
court conducted voir dire.
never
counsel
(ECF No.
8-28
did
(See
rot
raise
ECF
No.
the
1—2
Sleeping
at
33.)
Jurors
Thus,
Issue
during
during
PCR
the PCR court rejected the Sleeping Jurors :ssue as
procedurally barred under New Jersey Rule of Court 3:224J5
No.
at
8—10 at 15.)
Petitioner
direct
or
(ECF
8—10 at 10—12.) The PCR court nevertheless proceeded to address
Judge Perfilio’s First Voir Dire of Jurors Two, Six, and Eight
also included voir dire of juror number one for supposedly
talking to a witness, as discussed in the next section of this
Opinion, infra. (ECF No. 8—24 at 9-11.)
14 The Second Voir Dire also included Juror One,
in addition to
Jurors Two, Six, and Eight. (ECF No. 8—24 at 14—17.)
15 “Any around for relief not raised in the proceedings resulting
in the convicticn, or in a post-conviction proceeding brought
and decided prior to the adoption of this rule, or in any apeal
taken in any such proceedings is barred from assertion in a
proceeding under this rule unless the court on motion or at the
hearing finds: that the ground for relief not previously asserted
could not reasonably have been raised in any prior oroceeding.”
New Jersey Rule of Court 3:22—4 (a) (1)
‘
39
--
and reject
The court did so under the
Issue’s merits.
the
--
(Id.
at 11—13; ECF
Division affirmed,
substantially
rubric of IAC rather than the Sixth Amendment.
No.
8—15 at 5—6.)
The Appellate
The
Sleeping
Jurors
will
Issue
procedurally defaulted and is,
8-15 at 7.)
(ECF No.
for the reasons expressed by the PCR court.
denied
be
it
because
is
without merit.
in any event,
First, as to procedural default, a federal court may not grant
habeas relief if the state court’s decision rests on a prisoner’s
392 F.3d
violation of a state procedural rule. Johnson v. Pinohak,
551,
556
(3d Cir. 2004)
.
This procedural bar applies only when the
state rule is “independent of the federal question [presented] and
adequate
to
357,
365—66
196,
199
(3d Cir.
support
(3d Cir.
(3d Cir.
1999)
as
a
v.
2007)); McCandless v.
504
Frank,
F.3d
Vaughn,
488
petitioner
“cause” to excuse the default and actual
“prejudice”
unless:
claims
the alleged violation of
failure
that
at 366 (citing Lines v. Larkins,
“cause”
in
external
to
260
172 F.3d 255,
to
(1)
federal
law;
or
consider
the
claim
result in a fundamental “miscarriage of justice.” Leyva,
v.
187,
the
demonstrates
Coleman
F.3d
Williams,
v.
Leyva
(citing Nara
2007)
defaulted
result of
prisoner
judgment.”
Federal courts may not consider the merits of such
.
procedurally
establishes
the
Thompson,
501
208 F.3d 153,
u.s.
this
context,
the
petitioner
722,
750
that
40
cannot
504
the
will
F.3d
166 (3d Cir. 2000));
(1991)
circumstance
the
(2)
.
must
fairly be
To
demonstrate
be
something
attributed
to
him.
Leyva,
(internal citations omitted).
504 F.3d at 366
“[T]he
existence of cause for a procedural default must ordinarily turn
on
whether
external
to
the
the
defense
can
prisoner
impeded
rule.”
.
.
.
objective
some
that
show
comply
to
efforts
with
the
U.S.
478,
488
477
State’s
procedural
(1986).
To demonstrate fundanental miscarriage of justice in this
context,
a
New
of
No.
16—5705,
(citing
Cabrera
Egipciaco v.
Feb.
25,
(D.N.J.
30,
4451440,
No.
David
2017)
“actual
innocence.”
175
v.
See,
at
*11
F.3d 307,
12—4718,
an
is
adequate
and
It is clearly established and
rule.
New Jersey.
Barbo,
v.
Warren,
2015));
Nov,
WL
2019
3:22_45
Court
independent state procedural
regularly followed in
show
(internal citation omitted)
Rule
Jersey
v.
typically
must
petitioner
504 1. 3d at 366
Leyva,
Murray
Carrier,
factor
e.g.,
Hamilton
(D.N.J.
313
(3d Cir.
2015 tC 790108,
D’Ilio,
No.
(citing Cabrera,
2017
Sept.
WL
v.
17,
Nogan,
2019)
1999)
at *3_4
5951702,
and
(D.N.J.
at
*9
175 F.3d 307).
“Any ground for relief not raised in the proceedings resulting
in the conviction, or in a post-conviction proceeding brought and
decided prior to the adoption of this rule, or in any appeal taken
in any such proceedings is barred from assertion in a proceeding
under this rule unless the court on motion or at the hearing finds:
(1) that the ground for relief not previously asserted could not
reasonably have been raised in any prior proceeding; or (2) that
enforcement of the bar to precude claims, including one for
ir.effective assistance of counsel, would result in fundamental
injustice; or (3) that denial of relief would be contrary to a new
rule of constitutional law under either the Constitution of the
United States or the State of New Jersey.” N.J. Ct. R. 3:22—4.
16
41
Petitioner
raised
having
not
the
Jurors
Sleeping
on
Issue
and the PCR court having rejected it on that basis,
direct appeal,
therefore, procedurally defaulted. The state court’s
the :ssue is,
decision plainly states that an independent and adequate state law
ground bars
that
562 U.s.
Martin,
See Coleman,
Issue.
307,
(2011).
316
at
50: U.S.
737;
Walker
v.
Petitioner has not
In addition,
shown cause and prejudice, or a fundamental miscarriage of justice,
to excuse his procedural default.
his
traverse,
Petition,
See Coleman,
501 U.S. at 737.
and supporting materials,
In
Petitioner has
not demonstrated: that his violation of N.J. Ct. R. 3:22-4 resulted
from factors beyond his
with
efforts
respect
control;
to
claim;
his
(ECE Nos.
innocence of the crimes.
external
an
actual
impeded his
factor
or
prejudice;
1 and 1—2.)
See Leyva,
actual
504 F.3d
at 366.
Sleeping
The
Issue
Jurors
denied
is
as
procedurally
defaulted.
This Court’s discussion of that Issue will,
the
consider
fact
that
the
Division
Appellate
however,
affirmed
further
PCR
the
court’s alternative bases for the Sleeping Jurors Issue ruling
i.e.,
(1)
EC? No.
state
procedural default;
8—10
at
court’s
analysis,
10—11.)
alternate
however,
This
and
(2)
failure on the merits.
Court will,
merits—based
therefore,
rationale.
address
The
(See
the
further
does not alter the result for Petitioner.
42
——
With
deprived
was
Petitioner
whether
to
respect
a
of
constitutional right as a result of purportedly sleeping jurors,
States
United
“[t]he
review
court’s
into
.
.
cririnal
a
.
decidedly limited enterprise,
disrupt the finality of the
No.
2009 WL 3271370,
07—370,
Tanner
United States,
ti.
that
juror
the
and
trial
that
at *4
MacFarland,
2005)
.
No.
at *7
States
(D.N.J. Oct.
Del. Oct.
.
9,
seriously
.
Phelps,
(quoting
2009)
(1987))
120
107,
ignored
prej udiced
.
“Sleeping is
2005),
aff’d,
2005 WI 1828660,
at
by
304 F’.
see
omitted);
*7
of
portion
the
juror’s
the
2005
WL
App’x 135
(3d
Gaston
v.
05-cr-67,
No.
Sheika,
v.
7,
essential
an
was
citations
04—1168,
[a] llegations of
process.’” Durham v.
CD.
a
and a defendant must demonstrate both
defendant
the
(internal
2008)
Cir.
question
United
misconduct.”
2562969,
in
[trial]
483 U.S.
a form of jury misconduct,
‘
or inattentiveness
incompetency,
juror misconduct,
is
deliberations
jury’s
primarily because
‘
federal
‘a
that
opined
has
Court
Supreme
also
(D.N.J.
July 29,
A sleeping juror should be recved if the sleep has made it
“‘i.possible or that juror to perform his or her duties or would
otherwise
1828660,
deny
at
*7
the
defendant
(citation
a
fair
omitted).
trial.’”
However,
Gaston,
“[a]
2005
WL
defendant’s
‘general assertion that jurors slept through parts of the critical
presentation of the defendant’s evidence and cross examination are
too vague to establish urejudice.’” Id.
43
(citation omitted)
.
Under
these well—established principles, the Sleeping Jurors Issue fails
on the merits for two reasons.
First,
Six
either
of
the
and
counsel,
judge,
that
in fact,
case.
party’s
unconfirmed and inconsistent
the
among
elements
or
Two,
Eight,
Jurors
showr. that
substantive
through
Slept
Given
Petitioner has not
asleep,
[the juror]
was,
as opposed to daydreaming or concentrating with
eyes shut, would have significantly strengthened the argument that
a hearing was warranted.” See Ciaprazi v.
62,
(2d Cir.
64
Eight
were
2005)
.
sleecing,
151 F. App’x
Senkowski,
Six,
or
that
it
Even if one or more of Jurors Two,
Petitioner
has
not
demonstrated
occurred during a portion of trial essential to constitutionally
adequate deliberations.
revolves
Issue
around
three
day
all,
if not
Much,
of
the
of the Sleeping Jurors
trial.
following
The
(1) LaRenda Pridgen—Parrish, a Quick
witnesses testified that day:
Chek employee who had been working the night of the robbery
No.
8—23 at 76—91) ;
Quick
Chek
Robbery
(2)
Sergeant Harry Capko, who responded to the
scene
(id.
at
91—112) ;
(3)
Officer
Paulette
Simmons, who also responded to the Quick Chek Robbery (id.
31;
(4)
Officer Barry Cohen,
Marano,
who
Stopped Vehicle.
assisted
(Id.
at
2;
at 112—
who had been on patrol on April 28
and sighted The StopDed Vehicle
Frank
(ECF
(Id.
Officers
ECF No.
44
at 132—45); and
DiGena
8—17
at
and
(5)
Sergeant
Coleman
28—29.)
The
at
The
record
suggests
each witness
examination of
that
did encompass
certain
lines of questioning that were not dispositive as to guilt.
a
if
Even
(Officer Sinunons’ s law enforcement history) .)
id. at 112
history) ;
(establishing Sergeant Capko’s employment
9—23 at 92
SC? No.
e.g.,
juror
(See,
sleeping
been
had
times,
those
at
he
she
or
ultimately received relevant and dispositive robbery evidence for
Petitioner has not demonstrated otherwise.
deliberations.
This situation is not so significant as to deprive Petitioner
at *7; Morfiah v.
2016); Burns v.
Cir.
26
(D.N.J.
667 F.
City of Philadelphia,
Mar.
22,
Warren, No.
13—1929,
App’x 782,
2016 WL 1117946,
this
Underscoring
2016).
2005 Wi 1828660,
Gaston,
See, e.g.,
of his right to a fair trial.
784
(3d
at *25_
the
is
conclusion
fact that Judge Perfilio tcok extra care as to the three subject
Smith,
(N.J. Super. Ct. App. Div. June 18,
at *3
2196669,
v.
2012).
8—24
ECE No.
2—3;
United States v.
Pa.
Aug.
cases)
5,
See
State
1993 Wi 303286,
92—0592,
27
aff’d,
.
.
.
E’.3d 560
evidence
portions
(SC? No.
eyes”
Appellate Division’s
Court
No.
Ortiz,
1993)
and 17.)
2—10
at
(3d Cir.
1:994)
8—15 at
2012
WL
See also
at *2
(E.D.
(collecting
The generalized claim of jurors “nodding off a little bit”
.
with “closed
direct
SC? No.
8—10 at 13;
(SC? No.
as described above.
jurors,
that
as
does not undermine the
factual determination about
the
of the trial.”
presumes,
1—2 at 16)
it
juror
actually
See Smith,
must,
that
45
slept
“the absence of
through
2012 WL 2196669,
the
state
court
at
critical
*4
This
determined
jurors
that
correctly
at
sleep
not
did
trial.
U.S.C.
28
§
2254 (e) (1)
the
Second,
state
court’s
decision
how
on
address
to
the
Sleeping Jurors :ssue was not contrary to any federal precedent.
Petitioner has not cited, and this Court has not found,
supreme
States
court
decision
that
either:
into every instance of juror misconduct;
judge
must
inquire
or
extent;
further
determines
about
that
an
mandates
inquiry
delineates when a trial
juror misconduct,
an
any United
allegedly
and
sleeping
what
to
juror’s
deliberation is per se unconstitutionally violative of the right
to fair trial. Rather, trial courts enjoy “considerable discretion
in deciding how to handle a sleeping juror.” See Freitag, 230 F.3d
at 1023.
Ground Five is denied to the extent it relies on the Sleeping
Jurors Issue.
2. Fair Trial Claim:
Outside Influence Issue
Judge Perfilio received infornaticn on the third day of trial
juror number one
that
(“Juror One”)
“may have
been
speaking to
[and laughing with] the witness, the police officer [Simmons,]
was doing a sidebar conference.”
while
[the court]
at 2;
see also ECF No.
8—23 at 117—18;
ECF No.
(ECF No.
1—2 at 24.)
.
8-24
Judge
Perfilio voir dired Juror One “to make sure we know what is going
on”
(ECF No.
8—24 at 2):
46
[D]uring the course of one of ours
COURT:
sidebar conferences, it was noted by one of
the court staff that it looked like you were
speaking to the police officer witness.
JUROR ONE:
No.
any
under
You
Okay.
COURT:
cannot
circumstances communicate with the witnesses,
even a nod cr a hi or any of that.
JUROR ONE: I did nod to one of them. I can
tell you, forget who it was. I know I did nod
to someone like a smile to the person.
COURT: The only thing is we’re trying to keep
the integrity of the trial on that basis, that
you’re net a buddy to anyone. You’re here to
listen to the witnesses, make a judgment about
what you think about them, and that’s all I
want to bring to your attention.
JUROR ONE: I’m a reflexive smiler. That’s why
I’ll be aware of it in the future. Sure.
COURT: Just try to keep that in control. You
seem like a very gregarious person and that’s
the
with
that
can’t
but
you
fine,
do
witnesses, okay?
JUROR ONE:
(ECF’ No.
Okay.
8—24 at 9—ll.)’
To the extent Petitioner’s § 2254 Petition seeks to allege
that Juror One was among the allegedly sleeping jurors (see EC
No. 1—2 at 16—18 and 25), this Court notes that Judge Perfilio
also took corrective action as to Juror One on the issue of
purported juror sleeping. During the court’s Second Voir Dire
(see £CE’ No. 8—24 at 14—17), Juror One stated: “I have to admit
I didn’t see everything when the pictures were up here, but I’m
assuring that we’ll have an opportunity to look at those later?”
(Id. at 15.) Juror One asked whether he would be able to look at
the photographic evidence. (Ed. at 17.) Judge Perfilio assured
him that he would. (Ibid.)
17
47
“rests
it
that
on
squarely
(ECE
discreticn.”
8—10
No.
one.”
number
juror
to
trial
judge’s
POR
Petitioner’s
issue was
“The
addressed by
and a proper instruction was
the trial judge and handled properly,
given
the
of
(construing
14
8CR judge explained;
The
)
.
finding
issue
the
at
Issue,
argument as ineffective assistance of
petition as “framing th[e]
counsel)
Influence
rejected the Outside
The 8CR court
Appellate
The
(Ibid.)
Division
substantially on the basis of the 8CR court’s “thorough”
affirmed,
written opinion.
(ECF No.
8-15 at 2 and 7.)
The Outside Influence Issue does not merit habeas relief.
The Sixth Amendment guarantees every criminal defendant “the
right to a
v:.
.
.
.
Complementing
this
right
jury
if a
whether
the
impartial
to
is
indifferent
Amendment.” Morgan v.
v. Maxwell,
459 A.2d 641
384 U.S.
(N.J.
:n a criminal
during trial
about
(1954)
.
the
it,
extent
the
362
(1966)
.
jury
commanded
727
of
must
stand
the
Sixth
by
(1992); Sheppard
See also state v.
Williams,
1983).
case,
any private
communication with a juror
the matter pending before
presumptively prejudicial.
229
to
requires
regardless
defendant,
the
Illinois, 504 U.S. 719,
333,
Due
Fourteenth Amendment’s
the
provided
Amendment
Sixth
and
be
are
amend.
Those safeguards have “long demanded
Process Clause protections.
that,
Cor.st.
by an impartial jury.” U.S.
trial[
Remmer v.
the
jury is
deemed
United States, 347 U.S.
227,
The burden rests on the government to establish after
48
hearing
U.S.
that
an
ex parte
juror
situaticn
.
from every
communication
.
.
Remmer,
the Court
(1983),
a
with
347
may
juror
be
a
in
comprcmising
potentially
[because] it is virtually impossible to shield jurors
217
influence
or
contact
209,
placed
been
has
their vote.” Rushen,
455 U.S.
114
U.S.
464
Spain,
harmless.
was
contact
“[T]he constitution does not require a new trial every
harmless.
a
such
that
In Rushen v.
229.
at
recognized
time
notice
and
that might
affect
Phillips,
(quoting Smith v.
118
at
464 U.S.
theoretically
(1982)).
In Petitioner’s case,
the trial court conducted a voir dire
counsel.
in the presence of both parties’
Juror One flatly denied
having any conversation at all with Officer Simmons,
much less a
conversation regarding any “matter pending before the jury.” See
347 U.S.
Rammer,
(ECE No.
at 229.
8—24 at 9—li
(Juror One stated
that he only “nodded” to the witness merely because Juror One was
instinctively a “reflexive smiler”) .)
Federal
appellate
apply
courts
the
of
abuse
discretion
standard when reviewing decisions as to how to proceed in response
to allegations of juror misconduct.
147
F.3d 112,
is
in
a
(3d Cir. 2019).
superior position
to
observe
Voir
Dire
690
the mood
Fattah,
914
‘the trial court
“This is so because
predilections of the jury.’” Ibid.
3 F.3d 684,
United States v.
at
trial
and the
(citing United States v.Resko,
(3d Cir. 1993)). Juror One’s response at the Second
satisfied
the
trial
court
49
that
the
juror
had
not
conversed with Officer Simmons about a matter pending before the
jury in a manner that;
him
an
court’s
impartial
rejection
unfairly prejudiced Petitioner;
jury.
of
(See
the
XE’
No.
Outside
8—24
at
Influence
9—11.)
or denied
an
not
was
Issue
state
The
unreasonable application of clearly established federal law.
Of further note is the fact that Judge Perfilio found Juror
One could fairly deliberate,
and he admonished Juror One against
visual or verbal interaction with witnesses as trial went
forward.
Juror One readily agreed to refraining from innocuous
“nodding” to witnesses for the remainder of the trial.
(ECF No.
The Appellate Division found that “a proper
8—24 at 9—11.)
instruction was given to
[J]uror
[O]ne.”
(ECF No.
8—10 at 14.)
Nothing in the record suggests that Juror One transgressed Judge
Perfillo’s directive.
This Court
Appellate
finds that
Division
Issue ruling.
to
it was objectively reasonable fcr the
affirm Judge
Perfilio’s
Outside
Petitioner has not demonstrated that:
Influence
Juror One was
unable to render an impartial verdict based only on the evidence
and the court’s instructions; or the supposed interaction between
Juror One and Officer
“matter pending
before
Simmons during the
the
jury.”
sidebar related to any
see Remmer,
347
U.S.
at
229.
This Court sees no evidence in the record suggesting that it did.
Ground Five is denied to the extent it relies on the Outside
Influence Issue.
50
3. Fair Trial Claim: Comment Issue
Petitioner
argues
improper comments:
(1)
witnesses are critical”
that
Judge
Perfilio
made
the
following
telling Juror Eight that “only some of the
(ECF No.
1—2 at 18);
and
(2)
telling the
jury that the judge himself “had been nodding off during the course
of this trial,” which Petitioner contends “condoned]
the court.”
sleeping in
(ibid.)
At trial,
Judge Perfilio told Juror Eight during voir dire:
:f you’ re having trouble concentrating or
if something is boring,
keeping awake,
sometimes it is, don’t get me wrong, I nod off
occasionally in these cases, but we need to
try to pay attention because some of the
witnesses are critical. Once I had a case
where a juror could not deliberate because
they couldn’t remember some of the testimony
because they fell asleep during the trial. So,
that’s all I’m trying to protect [——] the
validity of the trial
.
(ECF N
.
8—24 at 4
.
(“Juror Eight Comment”)
Judge Perfilio similarly told Juror Two:
If you’re having trouble concentrating, raise
your hand so I can try to move it along. The
problem is if people fall asleep, that’s what
I was saying before, we once had a case here
where one of the jurors did nod off probably
more other than others, and as a consequence
that juror
when it came time to deliberatEd
couldn’t remember half of the testimony. So
that’s what’s important for us, to make sure,
[I]f
guarantee the integrity of the trial.
you’re having trouble, let me know. I oan give
you a break or give everyone a break, get some
coffee, or something like that.
(ECF No.
8-24 at 7
(“Juror Two Comment”).)
51
Judge Perfilio analogously told Juror Six during voir dire;
I’m bringing people out I seem to notice who
are having a little problem concentrating or
staying awake, and we had a situation like
this once before in a jury trial where one of
the jurors apparently had nodded more than the
others and went in to deliberate and couldn’t
deliberate because they couldn’t remember the
trouble
having
[I]f you’re
testimony
concentrating, raise your hand and I’ll give
you a break.
.
(Id.
.
.
(“Juror Six Comment”).)
at 8—9
ruling: “This Court
The PCR court rejected the Comment Issue,
does not find these comments made to the jurors individually were
improper
served as a reminder for each of th[e]
to stay awake and pay attention without embarrassing any
[jurorsj
of
[The comments]
...
them.”
8—10
No.
(ECF
at
16.)
Petitioner
Comment Issue during appeal of PCR denial.
Jurors
Six,
Two,
raise
not
the
See Black 2016 at *2;
(on appeal of PCR denial, Petitioner challenged
ECF No. 8—15 at 6—7
the
did
and Eight Comments as
IAC,
fair trial,
not
claims)
This
Court
finds
Comment
the
that
state
prisoner
applying
for
federal court must first “exhaust[]
courts
of
the
State,”
unless
a
writ
of
28
“there
U.S.C.
52
only
corpus
habeas
in
the remedies available in the
is
an
absence
State corrective process or circumstances exist
process ineffective
not
is
in any event.
unexhausted but also without merit,
A
Issue
§ 2254(b) (1).
that
of
available
render such
See also Rose v.
Lundy,
506,
455
513
u.s.
515
509,
(1982);
Blackwell,
Lambert v.
cart. denied, 532 u.s.
(3d Cir. 1997),
919 (2001)
134
F.3d
(finding
that “Supreme Court precedent and the AEDEA mandate that prior to
determining the
whether
unexhausted
claims
[a]
is
[cetiticner]
required
the
to
[a
petition,
of
merits
courtj
present
to
courts”).
Lstate’sj
must
or
[his
The
consider
her]
exhaustion
requirement is intended to allow state courts the first opportunity
to pass upon federal constitutional claims,
policies
u.s.
129
of
comity
and
(1987); Rose,
federalism.
455 U.S.
in furtherance of the
Cranberry
See
v.
Greer,
at 516—18. Exhaustion also has the
practical effect of permitting development of a complete
record in state court,
See Rose,
455 U.S.
481
factual
to aid the federal courts in their review.
at 519.
A petitioner exhausts state remedies by presenting his
federal constitutional claims to each level of the state courts
empowered to hear those claims,
either on direct appeal or in
collateral post-conviction proceedings.
Boerckel,
526 u.s.
838,
847
(1999)
See, e.g.,
O’sullivan v.
(“requiring state prisoners
[in order to fully exhaust their claims]
to file petitions for
discretionary review when that review is part of the ordinary
appellate review procedure in the State”)
134
E.3d 506,
513
(3d Cir.
997);
;
28 U.S.C.
L•ambert v.
§ 2254(c)
Biackweli,
(“An
applicant shall not be deemed to have exhausted the remedies
available in the courts of the State,
53
within the meaning of this
if he has the right under the law of the State to
section,
raise,
by any available procedure,
the question presented”)
Once a petitioner’s federal claims have been fairly presented to
exhaustion is satisfied.
the state’s highest court,
v.
489 U.S.
Peoples,
270,
275
(1971).
(1989);
350
346,
Picard v.
the
Comment
trial
judge
(FCF No.
404 U.S.
Issue
See Toulson v.
Bayer,
1993)
(3d Cir.
987
The
Conncr,
The petitioner generally bears the burden to
prove all facts establishing exhaustion.
987 F.2d 984,
See Castille
in Ground
remarks argument
Five’s
he
Claim
Fair Trial
raised in his
1—2 at 18; Black 2016 at *2; ECF No.
raises
PCR petition.
8—10 at 16.) However,
Petitioner did not appeal the Comment Issue as a fair trial claim
and he did not seek certification from
to the Appellate Division,
the New Jersey Supreme Court.
(See ECF No. 8—15 at 6—7.) Therefore,
the Cornnent Issue appear- -jn exhausted.
To the
extent
that the
Comment
in Ground
Issue
Five’s
Fair
Trial Claim was not fairly presented to all levels of state court
and is thus unexhausted,
this Court
the merits under 28 U.S.C.
F.3d
728
416,
427
(3d Cir.
(3d Cir.
20C5)
on the merits,
can nevertheless deny it on
§ 2254(b) (2).
2007);
Bronshtein
This Court is
See Taylor v.
V.
Horn,
404
Horn,
504
F.3d 700,
free to der.y the Comment :ssue
and the Court does so for the following reasons.
Petitioner challenges the Jurors Two, Six, and
as “improper instruct[ions]” to the jurors.
54
Eight Comments
(ECF No.
1—2 at 18.)
how
matter
No
of
allegations
frames
Petitioner
reviewable
not
are
and thus violated a petitioner’s due process rights.
See also Pulley v.
at 72—73.
U.S.
habeas
fundamentally unfair proceeding;
the error resulted in a
unless:
however,
matter,
improprieties
trial
state
the
37,
465 U.S.
Harris,
502
Estelle,
41
(1984).
Petitioner has not made the requisite constitutional showing
fundamental
of
Six,
Two,
Eight
and
here.
unfairness
Comments
charges to the entire jury.
4—9.)
a
The Jurors Two,
reminder
for
each
Six,
of
awake and pay attention,
No.
16.)
8—10 at
before
(ECF No.
made
Perfilio
the
the
final
court’s
ECF No.
8—10 at 16;
and Eight Comments “served
,
that
8—24 at
as
stay
without embarrassing any of them.”
(ECF
jury charges
as a
[three particular
Perfilio’s
jurors]
(see ECF
reveals that he did not, as Petitioner alleges,
condone juror sleeping.
jurors
detailed
to
the[]
A review of Judge
No. 8—28 at 1—49)
Jurors
[merely]
including his preliminary and final instructions
whole,
the
Judge
Rather,
they were
instructed all of
Judge Perfilio:
to pay
all
attention to
the
evidence
because they were the triers of the facts; and deemed critical the
testimony of all witnesses.
(See,
e.g.,
8-20 at 5 and 8;
ECF No.
the most important function [of the
“A lot of judges say
really is listening to the evidence, and I think you
jury]
paid very strict attention to the evidence, which we all appreciate
[L]et me express my thanks and appreciation for you attention
You and you alone are the sole and exclusive judges
in the case
of the evidence, of the credibility of the witnesses, and the
You are judges
weight to be attached to the testimony of each
of the facts” (ECF’ No. 8—28 at 3—4, 9, and 42.)
18
...
.
.
.
.
.
.
.
55
.
.
must
you
facts,
3—4,
at
8—21
ECF No.
10
(“Since
attention
close
pay
sole
the
you’re
testimony.
the
to
the
of
judges
It’s
important that you carry with you into the jury room not only a
recollection
clear
was
testimony
the
what
of
also
but
It will be your
recollection of the manner in which it was given.
duty to pay careful attention to all of the testimony”),
ECF No.
a
and 14;
(“[I]t really is your recollection of the facts
8—28 at 10
that really counts in the case”)
evident
the
that
record
this
Reviewing
Jurors
a
as
whole
Six,
Two,
and
prejudicially impact the trial’s overall
served as
The Conents
Comments
construe
the
jurors’
attention;
as:
and
it
Eight
Comments
is
to
Jurors
and pay attention.
It
is
acknowledging the
trying
simultaneously underscoring the
to
put
not
did
fairness to Petitioner.
reminders
individual
stay awake
to
and Eight
abundantly
then,
Six,
reasonable
demands
at
jurors
wo,
to
placed upon
while
ease
their attention.
significance of
It is absurd to claim that those comments prejudiced Petitioner or
changed
outcome
the
indispensability
Perfilio’s
challenges
of
passing
of
at
trial.
jurors’
references
uninterrupted
They
attention
to
himself
attention
during
having
during
acknowledged the human side of jury service.
to
think,
as
Petitioner
suggests,
that
emphasized
simply
trial.
the
Judge
experienced the
trial
merely
It strains credulity
Judge
Perfilio
condoned
sleeping. ?urrhermore, viewed in an objectively reasonable manner,
56
Judge Perfilio’s use of “some” with respect to witness significance
was conversational, not literal.
No.
8—21 at 3—4,
10,
and 14;
(See FOP No.
ECF No.
8-20 at 5 and 8; FOP
8—28 at 10.)
Ground Five is denied to the extent it relies on the Comment
Issue.
4. Fair Trial Claim: Gesture Issue
Petitioner
argues
that
the
made “some sort of a gesture to
[J]uror
trial
judge
[J]uror
[E]ight when he noticed
[E]ight talking with another juror.”
During
Judge
Perfilio’s
voir
unconstitutionally
dire
of
(FOP No.
Juror
1—2 at 18.)
Eight,
following exchange occurred on the record:
COURT: I’m just concerned about [you hearing
everything that is going on]
Also I noticed
at one point while there was a witness on the
stand you were talking to the one person next
to you.
.
JUROR EIGHT:
You saw me.
I said I was cold.
COURT: Okay. Because you looked at me,
like that, with a smile. It was cold.
(ECF No.
I went
8—24 at 3.)
The POR judge,
“[i]n looking at the
[trial]
transcript,”
rejected the Gesture Issue:
[T]here is no evidence of impropriety. The
trial judge simply acknowledged that a juror
was cold in the courtroom
[T]he trial
judge acknowledging the temperature of the
courtroom and smiling is not outside the
normal bounds of behavior and does not in any
way
violate [the]
impartiality mandate
[of] State v. Ray, 43 N.J. 19, 25 (1964).
.
.
.
.
57
.
.
the
8—10
No.
(ECF
at
Petitioner’s
16—17.)
the trial judge’s
but does not specifically describe,
challenges,
and even made some sort
(“it appears that the trial judge smiled,
of a gesture,
N]umber
[J]uror
to
1—2 at 36
(ECE No.
alleged gesture during Juror Eight’s voir dire.
again
Petition
2254
§
[E]ight”) .)
This Court finds the state court’s ruling on the Gesture Issue
to
reasonable.
objectively
be
in
anything
that
record
the
has
Petitioner
identified
Judge
demonstrates
not
Perfilio’s
purported gesture was so prejudicial that it violated due process.
There
gesture
was
temperature.
the
in
nothing
is
anything
(See
iCE
record
8—24
No.
at
cannot
It
3.)
challenged
the
acknowledgment
than
more
that
suggesting
of
courtrocm
reasonably
be
construed as conveying to the jury that the judge was partial to
the
case.
State’s
the
Although
impression
jury’s
not
and
the
judge’s actual motivation is what matters for this Court’s inquiry,
the
Court
is
that,
confident
considered
when
in
context,
the
alleged gesture was superficial and meaningless in terms of trial
constitutionality.
record
indicating
gesture:
indicating
(1)
could
bias
in
Petitioner
the
that
be
of
See
identify anything
not
non—verbal
construed
favor
overstepped propriety.
does
the
Glenn,
58
by
and
State’s
743
temperature—related
jury
the
case,
F.3d
in the
at
as
or
407;
a
statement
(2)
otherwise
Rornano,
512
U.S.
12—13.
at
The Appellate Division’s ruling as to the Gesture
Issue was not inconsistent with any Supreme Court precedent.
Ground ?ive is denied to the extent it relies on the Cc
ent
Issue.
5. Fair Trial Claim: Attention Issue
Petitioner argues that Judge Perfilio “admitted on the record
he
that
had
[Petitioner’s]
been
also
nodding
(ECF No.
trial.”
1—2
course
of
Petitioner does
not
the
during
off
at
18.)
identify any portion of the trial transcript at which he alleges
the trial judge in fact dosed off.
(Ibid.)
Judge Perfilio told her:
During voir dire of Juror Eight,
COURT: If you’re having trouble concentrating
[let me
if
:
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