BLACK v. NOGAN et al
Filing
17
OPINION. Signed by Judge Madeline Cox Arleo on 11/29/2022. (sm)
Case 2:16-cv-09171-MCA Document 17 Filed 11/29/22 Page 1 of 23 PageID: 1788
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JONATHAN BLACK, Petitioner,
Civil Action No. 16-9171 (MCA)
v.
PATRICK NOGAN, et al.,
OPINION
Respondents.
This matter has been opened to the Court by Petitioner Jonathan Black’s (“Petitioner,”
“defendant,” or “Black”) filing of a Petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. Having reviewed the Amended Petition, Respondent’s Answer, Petitioner’s Reply Brief,
and the relevant record, the Court denies the Petition for the reasons stated in this Opinion, and
also denies Petitioner’s request for a hearing and a certificate of appealability (“COA”).
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A jury found Black guilty of second-degree aggravated assault, N.J.S.A. 2C:12–1(b)(1);
first-degree armed robbery, N.J.S.A. 2C:15–1; second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39–4(a); and third-degree unlawful possession of a weapon,
N.J.S.A. 2C:39–5(b) in connection with his shooting of a gas station attendant in the course of a
robbery. The trial judge sentenced defendant to an aggregate term of sixteen years with an
eighty-five percent parole disqualifier pursuant to the No Early Release Act (“NERA”), N.J.S.A.
2C:43–7.2.
Defendant appealed his convictions and the Appellate Division affirmed the convictions
but remanded for resentencing. See State v. Black, 2009 WL 348548 (N.J. Super. App. Div. Feb.
Case 2:16-cv-09171-MCA Document 17 Filed 11/29/22 Page 2 of 23 PageID: 1789
13, 2009) (Black I). The Supreme Court denied petition for certification. State v. Black, 199
N.J. 132 (2009).
After the judge resentenced Petitioner to the original term following remand, see 11T,
Petitioner appealed the sentence, and the Appellate Division affirmed by order dated December
16, 2010. 1 See Petitioner’s Exhibit A, State v. Black (Black II), A–6136–08 (App. Div. Dec. 16,
2010).
On July 10, 2009, Petitioner filed a petition for postconviction relief (“PCR”). See Ra5.
On December 16, 2013, the PCR court denied Petitioner’s PCR without an evidentiary hearing.
Ra8. Petitioner appealed, and the Appellate Division affirmed the denial of the PCR on May 19,
2016. See State v. Black, No. A-3608-13T3, 2016 WL 2903612, at *4 (N.J. Super. App. Div.
May 19, 2016). On October 14, 2016, the New Jersey Supreme Court denied certification. State
v. Black, 228 N.J. 50 (2016).
Petitioner submitted his original habeas petition for filing on December 2, 2016. See
ECF No. 1. Petitioner subsequently submitted an Amended Petition on September 13, 2017.
ECF No. 4. Respondents submitted their Answer on March 13, 2020. ECF No. 13. Petitioner
submitted his Reply Brief on June 19, 2020. 2 ECF Nos. 15, 16.
II.
STANDARD OF REVIEW
Section 2254(a) permits a court to entertain only claims alleging that a person is in state
custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
1
Respondents state in their Answer that Petitioner did not appeal his resentencing. Petitioner
contends that he appealed the resentencing, and has provided the Appellate Division’s Order as
Exhibit A to his Reply Brief. The Appellate Division’s decision affirming the denial of his PCR
likewise indicates that Petitioner appealed his resentencing, See State v. Black, No. A-360813T3, 2016 WL 2903612, at *1 (N.J. Super. App. Div. May 19, 2016).
2
Petitioner resubmitted his Reply Brief on June 26, 2020. ECF No. 16.
Case 2:16-cv-09171-MCA Document 17 Filed 11/29/22 Page 3 of 23 PageID: 1790
2254(a). Petitioner has the burden of establishing each claim in the petition. See Eley v.
Erickson, 712 F.3d 837, 846 (3d Cir. 2013). Under 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. No. 104-132, tit. I, §
101 (1996), 28 U.S.C. § 2244, federal courts in habeas corpus cases must give considerable
deference to determinations of state trial and appellate courts. See Renico v. Lett, 599 U.S. 766,
772 (2010).
Section 2254(d) sets the standard for granting or denying a writ of habeas corpus:
(d) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim(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).
Where a state court adjudicated a petitioner’s federal claim on the merits, 3 a federal court
“has no authority to issue the writ of habeas corpus unless the [state c]ourt’s decision ‘was
contrary to, or involved an unreasonable application of, clearly established Federal Law, as
determined by the Supreme Court of the United States,’ or ‘was based on an unreasonable
3
“For the purposes of Section 2254(d), a claim has been ‘adjudicated on the merits in State court
proceedings’ when a state court has made a decision that (1) finally resolves the claim, and (2)
resolves th[at] claim on the basis of its substance, rather than on a procedural, or other, ground.”
Shotts v. Wetzel, 724 F.3d 364, 375 (3d Cir. 2013) (citation and internal quotation marks
omitted).
Case 2:16-cv-09171-MCA Document 17 Filed 11/29/22 Page 4 of 23 PageID: 1791
determination of the facts in light of the evidence presented in the State court proceeding.’”
Parker v. Matthews, 567 U.S. 37, 40-41 (2012) (quoting 28 U.S.C. § 2254(d)).
“[C]learly established law for purposes of § 2254(d)(1) includes only the holdings, as
opposed to the dicta, of t[he Supreme Court’s] decisions,” at of the time of the relevant statecourt decision. White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (quoting Williams v. Taylor, 529
U.S. 362, 412 (2000)). A decision is “contrary to” a Supreme Court holding within 28 U.S.C. §
2254(d) (1) if the state court “contradicts the governing law set forth in [the Supreme Court’s]
cases” or if it “confronts a set of facts that are materially indistinguishable from a decision of
th[e Supreme] Court and nevertheless arrives at a [different] result.” Williams, 529 U.S. at 40506. Under the “‘unreasonable application’ clause of § 2254(d)(1), a federal habeas court may
grant the writ if the state court identifies the correct governing legal principle from th[e]
[Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s
case.” Williams, 529 U.S. at 413. As to 28 U.S.C. § 2254(d)(1), a federal court must confine its
examination to evidence in the record. Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011).
Where a petitioner seeks habeas relief, pursuant to § 2254(d)(2), on the basis of an
erroneous factual determination of the state court, two provisions of the AEDPA necessarily
apply. First, the AEDPA provides that “a determination of a factual issue made by a State court
shall be presumed to be correct [and] [t]he applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.” 29 U.S.C. § 2254(e)(1); see
Miller–El v. Dretke, 545 U.S. 231, 240 (2005). Second, the AEDPA precludes habeas relief
unless the adjudication of the claim “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)(2).
Case 2:16-cv-09171-MCA Document 17 Filed 11/29/22 Page 5 of 23 PageID: 1792
A petition for a writ of habeas corpus “shall not be granted unless ... the applicant has
exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1); Wilkerson
v. Superintendent Fayette SCI, 871 F.3d 221, 227 (3d Cir. 2017). This Court may, however,
deny petitioner’s unexhausted claim on the merits. 28 U.S.C. § 2254(b)(2) (“An application for
a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant
to exhaust the remedies available in the courts of the State.”).
III.
DISCUSSION
a. Ground One—Fourth Amendment Illegal Search and Seizure
In Ground One, Petitioner argues that his Fourth Amendment Rights were violated after
an illegal search and seizure. Petitioner was apprehended following another armed robbery of a
Foot Locker store and confessed to the earlier crime but repudiated his confession at trial. See
Black, 2009 WL 348548 at *1. In his confession, defendant admitted to participation in armed
robberies at a 7–Eleven, a Quick Chek, the Exxon gas station, a Foot Locker, a Chinese
restaurant, and a Kids R Us and that he and his accomplices were contemplating another
robbery. 4 Id. at *3, n.1.
On direct appeal, the Appellate Division summarized the facts surrounding Petitioner’s
Fourth Amendment claim and rejected it as follows:
Prior to trial for the gas station armed robbery, defendant
challenged the admissibility of his confession, arguing that it
should be suppressed as the fruit of an illegal search and seizure. A
hearing occurred, at which evidence was presented, which
4
Petitioner was also separately convicted of the armed robberies of the Quick Chek convenience
store and the 7–Eleven store (“the convenience store robberies”), which occurred thirty minutes
apart and six days prior to the Foot Locker robbery. See State v. Black, Nos. 04–10–01268, 04–
10–01269, 2009 WL 4981192, at *1 (N.J. Super. App. Div. Dec. 24, 2009). In connection with
the convenience store robberies, the trial court imposed two consecutive fourteen-year terms
subject to an eighty-five percent parole disqualifier pursuant to the NERA, N.J.S.A. 2C:43–7.2.
See id.
Case 2:16-cv-09171-MCA Document 17 Filed 11/29/22 Page 6 of 23 PageID: 1793
established that, during the evening of April 26, 2004, a Foot
Locker store located on Morris Avenue in Union was robbed.
Following the robbery, the victims reported that the crime had
been committed by four masked and gloved black men, one
wearing a black hoodie and one wearing a green camouflage
jacket. On the day after the robbery, a customer who had attempted
to enter the store while the robbery was in progress, but had been
turned away, informed the police that, upon leaving the location,
he had seen a 1995 silver Mitsubishi Galant with gray tinted
windows, a damaged front fender and a broken right front
headlight partially blocking the exit to the parking lot where the
Foot Locker was situated.
Shortly after midnight on April 28, a car matching the
description given by the customer was sighted by two police
officers, Pietro DiGena and his partner, Barry Coleman, driving
west on Morris Avenue in the vicinity of the Foot Locker store.
They stopped it. Following the stop, the officers ordered the car’s
occupants to roll down the windows and, while waiting for a backup unit to arrive, the officers observed the car’s passengers to be
passing something from the front to the back seat, and then they
observed the back seat passengers to be turning as though placing
an object or objects behind them. After the arrival of the second
police unit, DiGena approached the driver’s side of the car, and at
that time, he noted that the driver was wearing a black hooded
sweatshirt and the occupant of the front passenger seat was
wearing a green military jacket. Both items of clothing matched
descriptions of clothing worn by the perpetrators of the Foot
Locker robbery. Additionally, DiGena observed masks and gloves
on the floor of the vehicle. In response to questioning, the car’s
driver denied passing anything from the front to the back seat
while waiting for the police to approach.
The four were ordered to exit the vehicle and to sit on the
curb. Thereafter, the police searched the vehicle for weapons, and
in the process, moved the rear seat cushion, which was already
displaced, revealing a cocked and loaded handgun located in the
trunk, which the police viewed through a hole in the partition
between the cab and the trunk. Rather than reaching for the gun
from the cab of the car, the police opened the trunk to retrieve it,
finding two weapons. A subsequent weapons test revealed that one
of the guns had been used in the gas station robbery. All four of the
vehicle’s occupants were arrested and taken separately to
headquarters. Although four police vehicles were on the scene for
purposes of transport, at the time the search of the car took place,
only two vehicles and four officers were present.
Case 2:16-cv-09171-MCA Document 17 Filed 11/29/22 Page 7 of 23 PageID: 1794
Following the hearing, defendant’s motion to suppress was
denied. In a written opinion, Judge Wertheimer noted that both
parties had agreed that the police had lawfully stopped the car
containing defendant, his companions, and the guns as the result of
the broken headlight. See Delaware v. Prouse, 440 U.S. 648, 99 S.
Ct . 1391, 59 L. Ed.2d 660 (1979). The judge then found the search
of the vehicle to have been justified as a protective search pursuant
to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L. Ed.2d 889
(1968). In finding reasonable suspicion that defendants were
armed, the judge relied on the fact that (1) the vehicle had been
sighted at the location of an armed robbery; (2) the two front-seat
passengers were wearing clothing that matched the descriptions
provided by the robbery victims; (3) masks and gloves were seen
on the car’s floor; (4) the officers observed the front-seat
passengers passing something to the back seat; (5) the observed
movements were denied by defendants; and (6) the stop occurred
after midnight. The judge also found the scope of the search to
have been permissible in the circumstances under standards
established in State v. Brown, 160 N.J. Super. 227, 231–35, 389
A.2d 507 (App. Div.1978). Alternatively, the judge determined
that the warrantless search could be justified under the automobile
exception to the warrant requirement as articulated in cases such as
State v. Cook, 163 N.J. 657, 751 A.2d 92. 664–71 (2000), finding
probable cause to have been established by “the vehicle's potential
link to an armed robbery, the masks and gloves on the floor of the
vehicle, and the furtive movements coupled with the denial of such
movements.” Additionally, the judge ruled that exigent
circumstances existed as the result of the ongoing robbery
investigation, the police’s reasonable belief that the car’s
occupants were its perpetrators, the mobility of the car, and the
danger to the police and others posed by the presence of the
weapons.
At trial before a different judge, testimony by Robert
Walker, an acquaintance of defendant’s who witnessed the gas
station incident, established that, on April 12, 2004, while
returning to Hillside from a gathering in Newark, Walker stopped
for gas, opening the door to request ten dollars worth of fuel.
While the door was open, defendant reached across Walker while
holding a gun and stated to the gas station attendant, “Give me the
damn money or I’ll kill you.” When the attendant retreated in
panic, defendant shot him in the chest and then ordered Walker to
drive off. The bullet passed through the attendant’s body, exited
through his armpit, reentered his arm, and again exited in the area
above the elbow. The attendant, although believing that he would
die, survived the attack. Both the bullet and casing were recovered,
and ballistic tests connected the ammunition with one of the guns
Case 2:16-cv-09171-MCA Document 17 Filed 11/29/22 Page 8 of 23 PageID: 1795
found in the vehicle that defendant was driving on April 28.
Defendant, testifying on his own behalf, denied any involvement
with the crime and stated that his confession had been
manufactured by the police without any involvement on his part
except to sign the fraudulently created document. The jury did not
accept defendant’s story, finding him guilty on all counts of the
indictment against him.
II.
On appeal, defendant challenges Judge Wertheimer’s ruling
that the search of the vehicle on April 28 and the seizure of the
weapons found in it was valid. We affirm, substantially for the
reasons set forth in the judge’s written opinion. In doing so, we
agree with the judge that there was no poisoned tree to bear
defendant’s confession as fruit, and that his confession was
admissible. We add only that the United States Supreme Court has
recently reaffirmed the validity of Terry stop and frisks in the
context of a police stop of a vehicle for an insurance-related
violation and the subsequent frisk of a passenger, suspected of
gang membership, who was removed from the vehicle. Arizona v.
Johnson, 2009 U.S. Lexis 868, 2009 WL 160434 (January 26,
2009). Although the decision differs factually from the
circumstances of the present case, its emphasis on the risk to the
police and the public as the result of the potential for a violent
encounter stemming, not from the stop itself, but from the fact that
evidence of a more serious crime might be uncovered during the
stop, has direct relevance here. In the circumstances presented, we
find the police’s conduct in searching the vehicle driven by
defendant, including the area behind the displaced back seat, to
have been reasonable and exigency to have been established as the
result of the even match between numbers of police present and
occupants of the vehicle and the likelihood that guns remained
secreted in that vehicle. Compare, State v. Dunlap, 185 N.J. 543,
549–51, 888 A.2d 1278 (2006) (finding no exigent circumstances
to be present when defendant was vastly outnumbered by
responding police, and his vehicle, thought to contain drugs, was
parked on a residential street).
Black, 2009 WL 348548, at *1–3.
As the record makes clear, Petitioner had the opportunity for a full and fair litigation of
this claim, and he is thus precluded from challenging the warrantless search in his federal habeas
Case 2:16-cv-09171-MCA Document 17 Filed 11/29/22 Page 9 of 23 PageID: 1796
petition. 5 See Ra 13 at 15 to 18. In Stone v. Powell, 428 U.S. 465 (1976), the petitioner argued
in his petition for writ of habeas corpus that evidence introduced at his trial was the result of an
illegal arrest. Id. at 494. The Supreme Court held that “the Constitution [did] not require that a
state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial” where petitioner was “provided an
opportunity for full and fair litigation of [the] Fourth Amendment claim” in the state courts. Id. at
482.
In this case, Petitioner presented his argument to the state courts in a motion to suppress
before the trial court, which was reviewed by the Appellate Division on direct appeal. Based on
evidence presented at the suppression hearing, the courts found that the officers conducted a
valid protective search pursuant to Terry v. Ohio, 392 U.S. 1 (1968). See Ra1 at 68; Ra3 at 8 to
5
Petitioner asserts in his Reply Brief that he should be permitted to challenge the warrantless
search because his attorney did not call him to testify at the suppression hearing and did not
permit him to cross examine witnesses. Petitioner cannot circumvent the Stone bar in this
manner. Although Petitioner would not be barred from asserting an ineffective assistance claim
regarding his counsel’s failure to call him to testify at the suppression hearing—had he raised
and exhausted that claim below—his direct claim is still barred by Stone. Moreover, “a
convicted defendant may assert a claim that the trial attorney gave ineffective assistance under
Strickland v. Washington, 466 U.S. 668 (1984), by failing to advise the defendant of his or her
right to testify.” United States v. Pennycooke, 65 F.3d 9, 13 (3d Cir. 1995) (full citation
omitted). And, if “in furtherance of trial strategy, defense counsel nullifies a defendant’s right to
testify over the defendant’s protest, the defendant clearly has been denied the right to testify.”
Id. There is no presumption of prejudice in right to testify cases, however, and the defendant
must establish that he was prejudiced his attorney’s conduct. See Palmer v. Hendricks, 592 F.3d
386, 397, 400 (3d Cir. 2010) (finding that Petitioner’s assertion that he wished to testify in
support of his claim of self-defense to “tell his side of the story” was insufficient to establish
prejudice under Strickland). Here, Plaintiff conclusory claim that his attorney was ineffective for
failing to have Petitioner testify at the suppression hearing does not meet either prong of the
Strickland test.
Case 2:16-cv-09171-MCA Document 17 Filed 11/29/22 Page 10 of 23 PageID: 1797
9. Having reviewed the relevant record, the Court agrees with Respondents that Petitioner’s
claim is barred by Stone, supra. 6 As such, habeas relief on Ground One is denied.
b. Ground Two—Prosecutorial Misconduct
Next, Petitioner argues that he was denied his Fourteenth Amendment due process rights
by comments made during the prosecutor’s summation.
In summation, Black’s defense counsel argued that it was unreasonable to believe that
Black would have confessed to participation in the series of armed robberies, including this one,
having been informed of his right to remain silent as set forth in Miranda v. Arizona, 384 U.S.
436 (1966). Defense counsel asked the jury to “evaluate the credibility of these detectives.”
7T121-16 to 17. He continued to comment on the credibility and alleged actions of the
detectives, at length, stating:
Members of the jury, again common sense. Somebody is sitting
there, if you believe the detectives, being read their Miranda rights
and being told you don’t have to make a statement. You don’t have
to tell us anything. You can talk to a lawyer if you don’t have one.
All those are important rights if you don’t have one. All those are
6
Notably, when Petitioner challenged the results of the motion to suppress in his habeas petition
challenging his convictions for the Quick Chek and 7-Eleven robberies, this Court also
concluded that his Fourth Amendment challenge was barred by Stone:
the New Jersey courts provided Petitioner with an adequate forum
to present his Fourth Amendment Claim. He had a full and fair
opportunity to litigate it in the state courts. He has failed to
demonstrate any structural defect in the state courts’ review of that
Claim.... In accordance with Stone and its progeny, this Court may
not consider the Fourth Amendment Claim. See Gilmore v. Marks,
799 F.2d 51, 57 (3d Cir. 1986); [Hubbard v. Jeffes, 653 F.2d 99,
103 (3d Cir. 1981)]; Jones v. Superintendent of Rahway State
Prison, 725 F.2d 40, 42 (3d Cir. 1984) (contention that defendant’s
confession and all other evidence admitted at his trial should have
been suppressed as fruit of illegal arrest was not proper subject for
consideration by federal habeas corpus court under Stone). See also
Jones v. Johnson, 171 F.3d 270 (5th Cir. 1999).
See Ra13 at 17.
Case 2:16-cv-09171-MCA Document 17 Filed 11/29/22 Page 11 of 23 PageID: 1798
important rights that the criminal defendant has. And for you to
believe these detectives that these young men said I know I have a
right to remain silent. I understand that right. Nobody is threatened
me or coerced me, yet I’m gonna sit down and give you this
lengthy statement that is incriminating me for very serious crimes.
It just doesn’t make sense. Okay? So there’s the common sense
half.
7T122-7 to 21.
So the suggestion that it’s ridiculous that the detectives could make
up a story and give details and then force Mr. Black to sign it, why
not? Why couldn’t they? It’s done everyday. It’s done on
America’s Most Wanted. You see if when you turn the TV on.
7T125-18 to 23.
But the most important thing about those three goes back to what I
said in the beginning. Again use your common sense. Do you
really believe that three well experienced, well educated detectives
in the Union Police Department who admit they know the tools to
use to work on people, the tools to use to get them to talk, the tools
that were used to turn people against each other didn’t use any of
that here. Defies all reason and all common sense.
And why do they say that? Why do they get up here and tell you
that? If I’m not mistaken, it was Rossi who said it because they
know, you know, the State’s gonna get up and tell you well we
know Mr. Black must be lying because he’s facing a lot of time for
these charges and we know he doesn’t want to go there. That
means he must be lying to me. Well apply that same logic to a
detective. They know that if they get up and say hey, you know,
we didn’t do this right, times were mixed up because we forgot to
have him sign that form until after they interviewed him or we told
him yes, you better tell us what went on or we’re going to go get
your friend’s mother because it’s her car. Guns were found in her
trunk. Those things when you put them in context really do make a
lot of sense.
7T136-17 to 137-16.
Now the State can get up and argue to you everything I say about
the confession being coerced maybe it’s true but he still did it. But
think about it, members of the jury. If you can’t believe the police
about what they’re telling you, if you can’t believe what they tell
you about how they took the statement, if you can’t believe what
they’re telling you when they tell you they didn’t believe Mr.
Bennett until he started crying, why can you believe them about
everything else?
Case 2:16-cv-09171-MCA Document 17 Filed 11/29/22 Page 12 of 23 PageID: 1799
7T138-5 to 16
Thereafter, in response to defense counsel’s closing arguments, the State argued the
following:
If you were to believe Mr. Black there were threats. They
threatened to arrest the owner of the car, Mrs. Ikharo. How bizarre
is that. How about arresting maybe his friend Suleiman Ikharo,
something that makes more sense. Mrs. Ikharo is the registered
owner of a car that she never even drove?
And how about this. If you were to believe the defense, if you were
to sit here and actually believe Jonathan Black’s testimony you
would have to believe this. You would have to believe, for lack of
a better word, fabricated evidence, made it up.
What do I mean by that? What other word would fit when a guy is
sitting in a room, Mr. Black says I’m not giving a statement;
doesn’t say anything, and the police are creating the statement on
their own; statement that Miller would actually read out loud the
questions that Miller was typing and read out loud the answers that
Miller was putting down for Black who Black says I wasn’t even
answering any questions. They just gave me the statement at the
end to sign. What sense does that make? You would have to
actually believe that all three of those detectives fabricated
evidence, made up that statement.
7T154-9 to 155-6.
And by the way, don’t you think if the police were gonna fabricate
a statement, because that’s really what we’re talking about make it
up, they would have made up a 10 page statement. Why do two
pages? Why don’t you put lots of details and throw everything you
can in; talk about oh, I don’t know the layout of the Exxon, how
the victim fell when he was shot, how far open the door was, what
the lighting was, where the police were. If the police were going to
fabricate this statement, don’t you think they could have done a
better job? But as the detective said, he asked the question, we
asked the questions, we put down what his answers were.
7T156-1 to 13.
What sense does that make that detectives are gonna fabricate a
statement would put at the end of the statement I’m sorry for what
I did?
7T156-23 to 25.
Case 2:16-cv-09171-MCA Document 17 Filed 11/29/22 Page 13 of 23 PageID: 1800
Petitioner’s counsel did not object to the prosecutor’s comments in summation.
Petitioner subsequently raised a prosecutorial misconduct argument on direct appeal, and the
Appellate Division rejected this claim as follows:
Defendant next challenges, as plain error, aspects of the
prosecutor’s summation that defendant claims exceeded the scope
of permissible argument by inferring that the police lacked any
motive to lie. We reject his position, finding that the prosecutor’s
comments were a proper response to defense counsel’s closing
argument. . . .
In evaluating the prosecutor’s closing, we note the absence of any
objection at trial, a circumstance that suggests that defense counsel
did not regard the prosecutor’s arguments as prejudicial at the
time. State v. Josephs, 174 N.J. 44, 126, 803 A.2d 1074 (2006),
State v. Engel, 249 N.J. Super. 336, 377, 592 A.2d 572 (App.
Div.), certif. denied, 130 N.J. 393, 614 A.2d 616 (1991). Further,
we note that a prosecutors are afforded considerable leeway in
summing up, “so long as their comments are reasonably related to
the scope of the evidence presented.” State v. Frost, 158 N.J. 76,
82, 727 A.2d 1 (1999). As a final matter, we note that we have
frequently held that a prosecutor may respond to an argument
made by defense counsel during closing. State v. Johnson, 287 N.J.
Super. 247, 266, 670 A.2d 1100 (App. Div.), certif. denied, 144
N.J. 587 (1996); State v. Hawk, 327 N.J. Super. 276, 284, 743 A.2d
325 (App. Div.2000); Engle, supra, 249 N.J. Super. at 379, 592
A.2d 572. We are also mindful of the principle that “[i]t is as much
[a prosecutor’s] duty to refrain from improper methods calculated
to produce a wrongful conviction as it is to use every legitimate
means to bring about a just one.” State v. Farrell, 61 N.J. 99, 105,
293 A.2d 176 (1972) (quoting Berger v. United States, 295 U.S.
78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935)). Our
review of the record in this matter, in light of these principles,
satisfies us that the prosecutor’s closing remained within proper
bounds in this case, and that it failed to create reversible error. We
therefore affirm defendant’s conviction.
Black, 2009 WL 348548, at *3.
Here, the Appellate Division did not unreasonably apply clearly established federal law
or unreasonably determine the facts in light of the evidence. A habeas claim based on
prosecutorial misconduct should be granted only where when the misconduct “so infected the
trial with unfairness as to make the resulting conviction a denial of due process.” Darden v.
Case 2:16-cv-09171-MCA Document 17 Filed 11/29/22 Page 14 of 23 PageID: 1801
Wainwright, 477 U.S. 168, 181 (1986) (internal quotation marks and citation omitted); see also
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). A prosecutorial misconduct claim is
examined in “light of the record as a whole” in order to determine whether the conduct “had a
substantial and injurious effect or influence” on the jury’s verdict. See Brecht v. Abrahamson,
507 U.S. 619, 637-38 (1993). Likewise, a “reviewing court must examine the prosecutor’s
offensive actions in context and in light of the entire trial, assessing the severity of the conduct,
the effect of the curative instructions, and the quantum of evidence against the defendant.”
Moore v. Morton, 255 F.3d 95, 107 (3d Cir. 2001).
Petitioner cannot meet the high standard for relief on his prosecutorial misconduct claim.
Viewed in context, the prosecutor was not vouching for the credibility of the detectives. Rather,
in response to defense counsel’s summation challenging the credibility and actions of the police,
the prosecutor argued that the facts did not suggest that the police coerced petitioner or
fabricated his statement. In short, defense counsel challenged the credibility of the state’s
witnesses, and the prosecutor’s argument was a permissible response to that challenge. For these
reasons, the Court denies relief on Ground Two.
c. Ground Three-Excessive Sentence in Violation of the Eighth Amendment
Next, Petitioner challenges his sentence as being “manifestly excessive,” and in violation
of his Eighth Amendment Rights against cruel and unusual punishment. In his Amended
Petition, Petitioner appears to contends that the trial court improperly relied on aggravating
factors one and two in sentencing him. See Amended Petition at 29-32. On direct appeal,
however, the Appellate Division vacated Petitioner’s sentence and remanded the case for
resentencing after finding that the trial court improperly found aggravating factors one and two,
Case 2:16-cv-09171-MCA Document 17 Filed 11/29/22 Page 15 of 23 PageID: 1802
under N.J.S.A. 2C:44-1(a)(1) and (b)(2). In doing so, the court provided the following analysis
of Petitioner’s excessive sentence claim:
In Point III of his brief, defendant attacks his sentence of
sixteen years, subject to NERA, claiming that it was excessive, and
that the aggravating factors cited to support it were improperly
invoked. In that connection the judge relied upon aggravating
factors 1 (the nature and circumstances of the offense, arising from
the fact that, when the gas station attendant ran in panic, defendant
shot him); 2 (the gravity and seriousness of the harm inflicted by a
shot that, just by lucky happenstance, failed to cause death); 3 (the
risk that defendant would commit another offense); and 9 (the need
for deterrence). N.J.S.A. 2C:44–1a(1), (2), (3), and (9). Although
the judge found as a mitigating factor defendant’s lack of a prior
criminal record, N.J .S.A. 2C:44–1b(7), the judge found that the
aggravating factors “clearly and convincingly and substantially”
outweighed the single mitigating factor, justifying a sentence
above the mid-range.
We find the sentencing judge’s invocation of aggravating
factor 1 to have been mistaken. Defendant, as we have stated, was
convicted of second-degree aggravated assault under a provision
that required evidence that he had attempted “to cause serious
bodily injury to another, or cause[d] such injury purposely or
knowingly or under circumstances manifesting extreme
indifference to the value of human life recklessly cause[d] such
injury.” N.J.S.A. 2C:12–1b(1). At sentencing, the second-degree
aggravated assault conviction was merged with the first-degree
armed robbery conviction, and defendant was sentenced for the
robbery. In invoking aggravating factor one as justification for
imposing a sixteen-year sentence on that charge, the judge focused
on the circumstances under which serious bodily injury to the
victim was inflicted—a shooting at close range of a panicked but
otherwise unresisting victim. In doing so, the judge characterized a
mindset on defendant’s part that mirrored an element of the crime
of second-degree aggravated assault that had been merged into the
robbery conviction. We find that to have been double counting.
Similarly, in invoking aggravating factor 2, the judge did little
more than describe the serious bodily injury that elevated
defendant’s assault on the gas station attendant to a second-degree
crime. We thus find that factor to have been mistakenly invoked as
well. We thus remand for resentencing, expressing no opinion as to
whether the sixteen-year term that was imposed was appropriate in
the circumstance.
Defendant’s conviction is affirmed; his sentence is vacated,
and the matter is remanded for resentencing.
Case 2:16-cv-09171-MCA Document 17 Filed 11/29/22 Page 16 of 23 PageID: 1803
State v. Black, 2009 WL 348548, at *4. In light of the remand, Petitioner’s counsel did not raise
this issue in its Petition for Certification filed in the New Jersey Supreme Court on March 2,
2009. See Ra4.
On April 3, 2009, Petitioner appeared for resentencing. See 11T. The judge weighed the
aggravating and mitigating factors and found that aggravating factors three (risk that defendant
would commit another offense) and nine (need to deter), outweighed mitigating factor seven
(lack of prior criminal record). See 11T14-20 to 16-17; 11T17-2 to 7; see also N.J.S.A. 2C:441(a)(3); N.J.S.A. 2C:44-1(a)(9); N.J.S.A. 2C:44-1(b)(7). The Judge did not rely on factors one
and two at resentencing. The trial court then sentenced Petitioner to the original sentence of
sixteen years with an eighty-five percent parole disqualifier. Ra6 at 85; 11T17-8 to 10.
Petitioner appealed the outcome of the resentencing, which was denied by Order dated December
16, 2020. 7 See Black, 2016 WL 2903612, at *1.
Here, Petitioner’s excessive sentence claim fails to provide a basis for federal habeas
relief. As a general rule, federal courts will not review state sentencing determinations that fall
within statutory limits. Here, the sentencing range for a first-degree crime was 10-20 years. See
11T16:18-19. Petitioner’s sixteen-year sentence for first-degree armed robbery, in violation of
N.J.S.A. 2C:15-1, falls withing the range provided by state law, and his arguments relate to the
severity of the sentence imposed. As such, his excessive sentence claim is not cognizable on
habeas review. See Townsend v. Burke, 334 U.S. 736, 741 (1948) (when a state “sentence [is]
within the limits set by statute, its severity would not be grounds for [habeas] relief”); Jones v.
Superintendent of Rahway State Prison, 725 F.2d 40, 42-43 (3d Cir. 1984) (challenge to state
7
It is unclear whether Petitioner sought certification. Because Petitioner’s excessive sentencing
claim fails to state a claim for federal habeas relief, the Court need not resolve the issue of
whether Petitioner exhausted this claim.
Case 2:16-cv-09171-MCA Document 17 Filed 11/29/22 Page 17 of 23 PageID: 1804
court’s sentencing discretion is not cognizable in federal habeas); Smith v. Kerestes, Civ. 080061, 2009 WL 1676136, at *16 (E.D. Pa. June 15, 2009) (rejecting petitioner’s claim that his
state sentence was excessive because “absent a Constitutional violation, a federal court has no
power to review a sentence in a habeas corpus proceeding unless it exceeds statutory limits”);
Logmans v. Moore, No. 02-5622, 2005 WL 1106336, at *19 (D.N.J. Apr. 29, 2005) (“even if this
Court was of the opinion that the sentence was excessive ... it is well established that the severity
of the defendant’s sentence alone constitutes no ground for [habeas] relief”).
In his Reply Brief, Petitioner contends that his sentence violates the Eighth Amendment
in light of Miller v. Alabama, 567 U.S. 460 (2012) (holding that mandatory life without parole
for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s
prohibition on cruel and unusual punishments); see also Graham v. Fla., 560 U.S. 48 (2010)
(Eighth Amendment categorically prohibits the imposition of a life without parole sentence on a
juvenile offender who did not commit homicide).
This claim appears to be unexhausted, but it also fails on the merits. Here, Petitioner
received a sixteen-year sentence for the gas station robbery, not a life sentence without parole,
and he also acknowledges in his Reply Brief that he was over eighteen at the time of the gas
station robbery. 8
8
The Court recognizes that Plaintiff is serving additional consecutive sentences for the Quick
Chek and Seven-11 robberies, for which he was tried separately, and Petitioner argues that Miller
should be extended to situations like his. Federal habeas relief is available only for violations of
clearly established law, as established by the Supreme Court of the United States, and Petitioner
is unable to show that his sentence violates any clearly established federal law. Nothing in this
Opinion prevents Petitioner from seeking further relief in state court.
Case 2:16-cv-09171-MCA Document 17 Filed 11/29/22 Page 18 of 23 PageID: 1805
Because Petitioner’s excessive sentence claim is not cognizable on federal habeas review
and his claim regarding Miller and/or Graham fails on the merits, the Court denies relief on
Ground Three.
d. Grounds Four, Five, Six, & Seven—Ineffective Assistance of Counsel Claims
Petitioner’s remaining claims assert ineffective assistance of trial counsel; such claims
are governed by the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), which
constitutes “clearly established Federal law” for AEDPA purposes. Williams v. Taylor, 529 U.S.
362 (2000); Rainey v. Varner, 603 F.3d 189, 197 (3d Cir. 2010). A habeas petitioner asserting a
claim under Strickland must establish two elements.
“First, the defendant must show that counsel’s performance was deficient. This requires
a showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. In evaluating
counsel’s performance, “a court must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance[.]” Id. at 689. Thus, counsel’s
performance will be deemed deficient only if it “fell below an objective standard of
reasonableness.” Id. at 688. The question ultimately is “whether, in light of all the
circumstances, the [challenged] acts or omissions were outside the wide range of professionally
competent assistance.” Id. at 690.
“Second, the defendant must show that the deficient performance prejudiced the defense.
This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.” Id. at 687. To establish prejudice, “[t]he defendant must
show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result
Case 2:16-cv-09171-MCA Document 17 Filed 11/29/22 Page 19 of 23 PageID: 1806
of the proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. at 694.
In Grounds Four and Seven, petitioner contends that he was denied effective assistance of
trial counsel for failing to call the victim as a witness. The Appellate Division provided the
following facts as background for this claim:
In our February 2009 decision on defendant’s direct appeal, we
summarized the facts put before the jury:
[T]estimony by Robert Walker,[ 9] an acquaintance
of defendant's who witnessed the gas station
incident, established that, on April 12, 2004, while
returning to Hillside from a gathering in Newark,
Walker stopped for gas, opening the door to request
ten dollars worth of fuel. While the door was open,
defendant reached across Walker while holding a
gun and stated to the gas station attendant, “Give
me the damn money or I’ll kill you.” When the
attendant retreated in panic, defendant shot him in
the chest and then ordered Walker to drive off. The
bullet passed through the attendant’s body, exited
through his armpit, reentered his arm, and again
exited in the area above the elbow. The attendant,
although believing that he would die, survived the
attack. Both the bullet and casing were recovered,
and ballistic tests connected the ammunition with
one of the guns found in the vehicle that defendant
was driving on April 28. Defendant, testifying on
his own behalf, denied any involvement with the
crime and stated that his confession had been
manufactured by the police without any
involvement on his part except to sign the
fraudulently created document. The jury did not
accept defendant’s story, finding him guilty on all
counts of the indictment against him.
[Black I, supra, slip op. at 7.]
The gas station attendant who was shot was out of the country in
India during the trial and was deemed unavailable by the judge
without objection by either party.
9
“‘Walker’ is a pseudonym.” Black, 2016 WL 2903612, at *1 n.1.
Case 2:16-cv-09171-MCA Document 17 Filed 11/29/22 Page 20 of 23 PageID: 1807
Black, 2016 WL 2903612, at *1.
The PCR trial court rejected Petitioner’s ineffective assistance of trial counsel claim
premised on trial counsel’s failure to call the victim as a witness, finding, among other things,
that Plaintiff had not presented any support for his claim that the victim’s testimony would have
been helpful to his defense or that the victim was available to testify. See Ra8 at 1-12. The
Appellate Division agreed and rejected this claim as follows:
Defendant also speculates that the victim would have failed to
identify him and thus the jury would have found him not guilty.
Defendant does not present any support for the proposition that the
victim’s testimony, if defense counsel had been able to procure it,
would have been helpful to the defense. Defendant did not provide
a certification from the victim to support this claim nor did
defendant supply any evidence that the victim would be available
to testify at an evidentiary hearing. Both claims are therefore
speculative and do not rise to the level of a prima facie claim
meriting an evidentiary hearing.
Black, 2016 WL 2903612, at *3.
The right of an accused to present witnesses in his own defense “is a fundamental
element of due process of law.” Taylor v. Illinois, 484 U.S. 400, 409 (1988) (quoting
Washington v. Texas, 388 U.S. 14, 19 (1967)); see also State v. Sanchez, 143 N.J. 273, 290
(1996) (“few rights are more fundamental that that of an accused – to present witnesses in his
own defense”) (quoting Chambers v. Mississippi, 410 U.S. 284, 302 (1973)); State v. Garcia,
195 N.J. 192, 201-02 (2008). Both the Sixth Amendment to the United States Constitution and
Article 1, Paragraph 10 of the New Jersey Constitution guarantee the accused the right “to have
compulsory process for obtaining witnesses in his favor.” That guarantee provides a criminal
defendant with nothing less than “a meaningful opportunity to present a complete defense.” State
v. Garron, 177 N.J. 147, 168 (2003).
Case 2:16-cv-09171-MCA Document 17 Filed 11/29/22 Page 21 of 23 PageID: 1808
Here, however, Petitioner has not established that there is a reasonable probability that
outcome of his trial would have been different had his trial counsel called the victim to testify,
and the ineffective assistance claims fails on the prejudice prong. For this reason, the Appellate
Division did not unreasonably apply clearly established law or rely on an unreasonable
determination of the facts in rejecting this claim.
In Ground Six, Petitioner argues that he was deprived of a fair trial based on jury charge
improprieties given by the trial court. Specifically, Petitioner contends that the trial court
erred in providing written definitions of serious bodily injury and significant bodily injury in
response to the jury’s question and his counsel was deficient for failing to ask the Court to
provide additional written and oral charges. The Appellate Division summarized this claim as
follows:
In response to the jury’s question seeking the definitions of
“serious bodily injury” and “significant bodily injury,” the trial
judge, upon request by defense counsel, provided the jury with a
written copy of the portion of the jury charge containing those
definitions, without reading the charge to them. Defendant argues
that defense counsel should have asked the judge to furnish the
entire jury charge in writing with additional oral instructions, and
that defense counsel was ineffective for not making such a request.
He also claims that the judge’s responses to the jurors seeking
information outside of the evidence presented at trial was
prejudicial in that, by urging the jury to rely on the evidence
presented, the judge failed to discuss that a reasonable doubt could
arise from the lack of evidence presented.
State v. Black, 2016 WL 2903612, at *2.
The Appellate Division rejected the jury charge claims as follows:
The trial judge gave a complete version of the instructions
and charges orally in accord with the model jury charges.
Providing a copy of a part of those charges in writing without
reading those portions aloud again was a reasonable judicial
response to the jury’s request. Defense counsel’s decision to join
with the prosecutor in requesting this relief is a matter of trial
strategy. Strategic decisions that are objectively reasonable are
“‘within the wide range of reasonable professional assistance’ to
Case 2:16-cv-09171-MCA Document 17 Filed 11/29/22 Page 22 of 23 PageID: 1809
which an accused is entitled,” State v. Arthur, 184 N.J. 307, 333,
877 A.2d 1183 (2005) (quoting Strickland, supra, 466 U.S. at 689,
104 S. Ct. at 2065, 80 L. Ed.2d at 694), and an appellate court
“will not second-guess defense counsel’s trial decisions which rest
upon strategic or tactical considerations.” State v. Castagna, 376
N.J. Super. 323, 360, 870 A.2d 653 (App. Div. 2006), rev’d, on
other grounds, 187 N.J. 293, 901 A.2d 363 (2006). Defendant
gives no support for the proposition that, after giving a complete
charge, when the jury requests definitions already given orally,
providing a written copy of that portion of the charge without the
rest is prejudicial. Nor does he provide support for his argument
that by focusing the jury’s attention on the trial evidence the judge
negated his prior charge that “defendant may be found guilty by
reason of direct evidence, circumstantial evidence, a combination
of the two or a lack of evidence if it raises in your mind a
reasonable doubt as to the defendant’s guilt.”
Black, 2016 WL 2903612, at *3. Here, the Court agrees with the Appellate Division that
Petitioner has not shown either deficient performance by his counsel or prejudice in connection
with his jury charge claims. As such, the Court denies relief on Ground Six.
Finally, in Ground Five, Petitioner argues that appellate counsel was ineffective for
failing to raise the additional claims concerning trial counsel’s failure to call the victim to testify
and for failing to challenge the jury charge. The Appellate Division rejected the ineffective
assistance of appellate counsel claims for the same reasons that it rejected his ineffective
assistance of trial counsel claims. See Black, 2016 WL 2903612, at *2-4. Because the Appellate
Division did not unreasonably apply Strickland in rejecting the ineffective assistance of appellate
counsel claims, the Court denies relief on Ground Five.
e. Request for a Hearing & Certificate of Appealability
Because the Amended Petition is without merit, Black’s hearing request does not merit
further written discussion and is denied. See generally Zettlemoyer v. Fulcomer, 923 F.2d 284,
298 n.2 (3d Cir. 1991). Pursuant to Local Appellate Rule 22.2 of the Rules of the United States
Court of Appeals for the Third Circuit, at the time a final order denying a habeas petition is
Case 2:16-cv-09171-MCA Document 17 Filed 11/29/22 Page 23 of 23 PageID: 1810
issued, the district judge is required to make a determination as to whether a certificate of
appealability (“COA”) should issue. Having denied the claims in the Petition, the Court will also
deny a COA. Pursuant to 28 U.S.C. § 2253(c), a petitioner may not appeal from a final order in
a habeas proceeding unless he has “made a substantial showing of the denial of a constitutional
right.” See Slack v. McDaniel, 529 U.S. 473, 484 (2000); Miller-El v. Cockrell, 537 U.S. 322
(2003). Because Petitioner has not made a substantial showing of the denial of a constitutional
right, the Court will deny a COA.
IV.
CONCLUSION
For the reasons explained in this Opinion, the Court denies the Amended Petition, the
request for an evidentiary hearing, and also denies a COA. An appropriate Order follows.
________________________
Hon. Madeline Cox Arleo
United States District Judge
DATED: November 29, 2022.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?