JACKSON v. NOGAN et al
OPINION. Signed by Judge Susan D. Wigenton on 11/27/2017. (ek)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 17-1327 (SDW)
PATRICK A. NOGAN, et al.,
WIGENTON, District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Norman Jackson
(“Petitioner”) brought pursuant to 28 U.S.C. § 2254 challenging Petitioner’s state court conviction
(ECF No. 1). Following this Court’s Order to Answer, the State filed a response to the petition
(ECF Nos. 5-7), to which Petitioner has replied (ECF No. 9). For the following reasons, this Court
will deny the petition and deny Petitioner a certificate of appealability.
In its opinion affirming Petitioner’s conviction and sentence, the New Jersey Supreme
Court provided the following summary of the factual basis of this matter:
At about 8:30 p.m. on January 14, 2005, [Murul] Chowdhury was
driving his taxi through Paterson to pick up a customer.[ 1] He
stopped at a light on River Street, and noticed [Petitioner] walking
near the taxi. Without warning, [Petitioner] entered the taxi through
the right front door, sat in the passenger seat, and requested a ride to
Broadway, one of Paterson’s major roads, several blocks south of
the taxi’s location. Chowdhury, citing his customer waiting for him,
The New Jersey Supreme Court noted that as Petitioner did not testify at trial, the only testimony
as to these events provided at trial came from Chowdhury, the victim, and the officers involved in
Petitioner’s arrest. (Document 24 attached to ECF No. 5 at 5).
offered to take [Petitioner] to Broadway after picking up his
customer, but [Petitioner] demanded twice more that he be driven to
Broadway immediately. After the two men briefly argued,
[Petitioner] pulled out a gun, cautioning Chowdhury to “look at this
mother f****r.” [Petitioner] pointed the gun at Chowdhury’s chest,
and the driver acceded to his passenger’s demands and drove in the
direction of Broadway:
PROSECUTOR: When did you start driving? Was it
before he pulled the gun ou[t], or after he pulled the
PROSECUTOR: Why did you start to drive?
CHOWDHURY: Because he demanded we go to
With his gun pointed at Chowdhury, [Petitioner] asked for
money.[ 2] Chowdhury reached into his pocket and gave [Petitioner]
sixty-five dollars, the fares he had collected that evening.
[Petitioner] then demanded Chowdhury’s wallet and Chowdhury
I give it to him, my wallet. He took the money. He
give me my wallet back. Then he ask for it again, the
wallet. Then he look [at] everything, give it to me
back. Then he say, oh, f*** it. This wallet, I have
my fingerprint in there. So I – from my breath and I
like, wipe. Then he said, okay, put it in your pocket.
Then I put it in my pocket.
Having taken the money, [Petitioner] then ordered
Chowdhury to drive him through Paterson:
Then he say, okay, start driving. Still driving, then
he said, okay, take me to Broadway. And I driving
in Straight Street and make a left in like Broadway
Street and Straight Street. Then when I cross the like,
 Street, then he says, okay, pull up the car. Then I
pull up. Then he say, okay. Don’t drive, just park.
Chowdhury pulled the car over, and [Petitioner] left the car,
instructing Chowdhury to drive away slowly. Based on the start and
The Court also noted that it was not clear from the trial record whether the demand for money
occurred before or after Chowdhury began driving towards Broadway. (Document 24 attached to
ECF No. 5 at 6).
end locations testified to by Chowdhury, the total distance driven by
Chowdhury with [Petitioner] in his taxi was .8 miles, representing
approximately fifteen city blocks.
Almost immediately, Chowdhury flagged down a police
officer, who requested backup. Chowdhury and the officer followed
[Petitioner] into a park, where they were met by Officer Bizarro and
other police officers, and the group found [Petitioner]. After a brief
struggle, the officers handcuffed and arrested [Petitioner]. They
conducted a pat-down search which revealed the money taken from
Chowdhury, but no gun. The officers searched the park for the
weapon, turning up nothing. At the scene of the arrest, Chowdhury
identified [Petitioner] as the individual who had threatened and
robbed him at gunpoint.
The officers then transported [Petitioner] to Paterson police
headquarters, and Officer Bizzaro and another officer brought him
to an interview room. Officer Bizzaro commenced a more thorough
search of [Petitioner]. When the officer searched [Petitioner]’s
groin area, [Petitioner] resisted the search, and the two punched on
another and wrestled. Officer Bizzaro hit [Petitioner] with a metal
police baton, and when a second officer entered the room, she
assisted Officer Bizzaro in subduing [Petitioner]. With [Petitioner]
handcuffed, the officers searched him and found in his underwear a
“small caliber silver semi-automatic handgun” that was missing the
slide that delivers bullets into the gun’s chamber.[ 3] Following the
search, [Petitioner] was transported to a hospital, where he received
stitches for a cut above his left eye that he had sustained during his
altercation with Officer Bizzaro.
Later that night, Officer Bizzaro prepared and filed a report
of the incident that contained a material misstatement of the
evening’s events: it falsely stated that the officers found
[Petitioner]’s weapon at the scene of his arrest. He later testified
that he realized that his “negligence” in conducting an incomplete
search at the scene of [Petitioner]’s arrest could have endangered
officer’s lives, and had resulted in the police transportation of a
suspect carrying a gun, albeit a disabled gun. Noting that “there’s
no excuse,” Officer Bizzaro testified that he “typed up the – the
report stating that I found the weapon on the scene [of the arrest]
when, in fact, I did not.”
As the Appellate Division noted on direct appeal, a “later search of [Petitioner]’s jacket
uncovered the gun’s slide.” (Document 23 attached to ECF No. 5 at 1).
According to Officer Bizzaro, after he typed his false report,
he noted that he had put his partner’s “name on the bottom of a
report that wasn’t true.” He testified that he prepared a second report
later that night that made clear that [Petitioner]’s weapon was not
recovered until after he and [Petitioner] had scuffled at police
headquarters. According to his testimony, he left the first, false
report on the desk in the Detective Bureau, and gave the second,
correct report to his supervisor. He did not alert his superiors to the
discrepancy between his two reports, but later testified that he
assumed that his initial, false report regarding the recovery of
[Petitioner]’s weapon had been destroyed because he “never turned
it in.” In fact, both reports remained on file as the State’s case
against [Petitioner] proceeded.
In April 2005, the Passaic County Prosecutor’s Office
presented the State’s case to a grand jury. Called to testify before
the grand jury, Officer Bizzaro was questioned by an assistant
prosecutor who, he soon realized, had framed her questions based
upon his first report containing false information. She asked Officer
Bizzaro what he had recovered in his initial search of [Petitioner] in
[the] Paterson park. Notwithstanding the fact that his initial search
of [Petitioner] at the park had revealed only money, Officer Bizzaro
testified falsely before the grand jury that he had found a weapon on
[Petitioner] at the scene of his arrest in the park. Although he
“realized [that the prosecutor] was asking me questions off the
wrong report,” Officer Bizzaro “made a bad judgment call and
didn’t correct it.
The grand jury returned an indictment, charging [Petitioner]
with multiple offenses including first-degree robbery, [in violation
of N.J. Stat. Ann. §] 2C:15-1, and second-degree kidnapping, [in
violation of N.J. Stat. Ann. §] 2C:13-1(b)(1). However, the Passaic
County Prosecutor’s Office subsequently learned of Officer
Bizzaro’s initial fraudulent report and false grand jury testimony,
and dismissed the indictment against [Petitioner]. The trial court
ordered that all internal affairs reports and investigations be turned
over to defense counsel. The Paterson Police Department
administratively disciplined Officer Bizzaro for his conduct with a
five-day suspension. [Petitioner] filed a civil suit against Officer
Bizzaro for damages alleged to have been caused by the officer’s
altercation with [Petitioner] and his false testimony before the grand
On January 2, 2007, a second grand jury returned a new
indictment, including the same charges as the original indictment.
In this second grand jury proceeding, Officer Bizzaro testified as to
the events recounted in his second, accurate report. [Petitioner]
moved to dismiss the indictment, citing Officer Bizzaro’s prior
official misconduct and false grand jury testimony. He also sought
the recusal of the Passaic County Prosecutor’s Office, and moved to
suppress the slide that had been a component of the gun found on
[Petitioner] during the officer’s second search. The trial judge
denied [Petitioner]’s motions, but severed some of the charges set
forth in the second indictment that did not relate to [Petitioner]’s
encounter with Chowdhury.
In August 2007, [Petitioner] was tried before a jury on seven
counts of the second indictment: first-degree robbery, [in violation
of N.J. Stat. Ann. §] 2C:15-1; fourth-degree aggravated assault with
a firearm, [in violation of N.J. Stat. Ann. §] 2C:12-1(b)(4); seconddegree possession of a weapon for an unlawful purpose, [in violation
of N.J. Stat. Ann. §] 2C:39-4(a); third-degree unlawful possession
of a weapon, [in violation of N.J. Stat. Ann. §] 2C:39-5(b); seconddegree kidnapping, [in violation of N.J. Stat. Ann. §] 2C:13-1(b)(1)
or (2); third-degree aggravated assault, [in violation of N.J. Stat.
Ann. §] 2C:12-1(b)(5)(a); and third-degree resisting arrest, [in
violation of N.J. Stat. Ann. §] 2C:29-2(a)(3).
During the five-day trial, the prosecution presented the
testimony of Chowdhury, Officer Bizzaro and other current and
former Paterson police officers. During the testimony of the State’s
witnesses, there were several references to extraneous proceedings
– litigation filed by [Petitioner] and administrative discipline
pertaining to [Petitioner]’s altercations with the officers and Officer
Bizzaro’s false grand jury testimony. The prosecutor alluded to
those referenced during his summation, and [Petitioner] moved for
a mistrial. The trial court denied the motion for a mistrial, but
instructed the jury regarding the referenced in the testimony to
extraneous legal proceedings. [Petitioner] declined to testify, and
the defense rested without calling witnesses. [Petitioner] did not, at
any time during the course of the trial, move for a judgment of
On August 9, 2007, the jury convicted [Petitioner] of firstdegree robbery, fourth-degree aggravated assault with a firearm,
second-degree possession of a weapon for an unlawful purpose,
third-degree unlawful possession of a weapon, second-degree
kidnapping, third-degree aggravated assault of a law enforcement
officer with no finding that the officer suffered bodily injury, and
third-degree resisting arrest. The trial court then instructed the jury
on the offense of second-degree certain persons not to have
weapons, [in violation of N.J. Stat. Ann. §] 2C:39-7, and the jury
convicted [Petitioner] of that crime.
[Petitioner] moved for a new trial. After denying the motion,
the trial court sentenced [Petitioner] to an extended term of thirty
years’ incarceration for the first-degree robbery charge with a period
of eighty-five percent parole ineligibility and a five-year term of
parole supervision under the No Early Release Act, [N.J. Stat. Ann.
§ 2C:43-7.2]. For the second-degree kidnapping charge, the trial
court sentenced [Petitioner] to ten years in prison with an eightyfive percent period of parole ineligibility pursuant to NERA, with
the sentence for the kidnapping offense to be served concurrently
with [Petitioner]’s other prison terms. After merging the appropriate
offenses into the first-degree robbery charge, the trial court
sentenced [Petitioner] on the remaining counts to terms of
incarceration to run concurrently with the thirty-year term imposed
for the armed robbery.
[Petitioner] appealed his conviction, raising six claims of
error by the trial court. An Appellate Division panel reversed
[Petitioner]’s conviction on the kidnapping count, but otherwise
affirmed his conviction.
(Document 24 attached to ECF No. 5 at 5-13).
Petitioner thereafter petitioned for certification with the New Jersey Supreme Court, and
the state cross-petitioned on the kidnapping issue. (Id. at 15). The New Jersey Supreme Court
granted certification on two issues – whether Petitioner was properly convicted of kidnapping
under New Jersey Law, and whether the trial court erred in denying Petitioner’s motion for a
mistrial based on alleged prosecutorial misconduct during summation. (Id.). On August 13, 2012,
the New Jersey Supreme Court affirmed Petitioner’s conviction in its entirety, and reinstated
Petitioner’s conviction for kidnapping as the record more than supported the conclusion that
Petitioner had either subjected Chowdhury to “substantial confinement” and forced him to move
Petitioner a “substantial distance” as required by the alternative prongs of the kidnapping statute.
Petitioner thereafter filed a petition for post-conviction relief (PCR) in September 2012
asserting various claims of ineffective assistance of trial and appellate counsel. (See Document 26
attached to ECF No. 5). Following an evidentiary hearing solely addressing Petitioner’s claim that
counsel failed to convey his plea counteroffer to the State during plea negotiations, the PCR court
denied that petition on March 14, 2014. (Document 22 attached to ECF No. 5). Petitioner
appealed, and the Appellate Division affirmed the denial of post-conviction relief by way of a
written opinion issued on June 6, 2016. (Document 25 attached to ECF No. 5). Petitioner
petitioned for certification, but his petition was denied by the New Jersey Supreme Court on
February 13, 2017. (Document 31 attached to ECF No. 5). Petitioner thereafter filed his current
habeas petition. (ECF No. 1).
A. Legal Standard
Under 28 U.S.C. § 2254(a), the district court “shall entertain an application for a writ of
habeas corpus [o]n behalf of a person in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.” A habeas petitioner has the burden of establishing his entitlement to relief for each claim
presented in his petition based upon the record that was before the state court. See Eley v. Erickson,
712 F.3d 837, 846 (3d Cir. 2013); see also Parker v. Matthews, --- U.S. ---, ---,132 S. Ct. 2148,
2151 (2012). Under the statute, as amended by the Anti-Terrorism and Effective Death Penalty
Act, 28 U.S.C. § 2244 (“AEDPA”), district courts are required to give great deference to the
determinations of the state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 772-73
Where a claim has been adjudicated on the merits by the state courts, the district court shall
not grant an application for a writ of habeas corpus unless the state court adjudication
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d)(1)-(2). Federal law is clearly established for these purposes where it is clearly
expressed in “only the holdings, as opposed to the dicta” of the opinions of the United States
Supreme Court. See Woods v. Donald, --- U.S. ---, ---, 125 S. Ct. 1372, 1376 (2015). “When
reviewing state criminal convictions on collateral review, federal judges are required to afford state
courts due respect by overturning their decisions only when there could be no reasonable dispute
that they were wrong.”
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).
1. Petitioner’s prosecutorial misconduct claim
In his first claim, Petitioner argues that he was denied Due Process when the trial court
denied his motion for a mistrial based on alleged prosecutorial misconduct during summation. The
duty of a prosecutor in a criminal proceeding is to see that justice is done rather than to secure
convictions, and as such prosecutors must “refrain from [the use of] improper methods calculated
to produce a wrongful conviction.” Berger v. United States, 295 U.S. 78, 88 (1935); see also
United States v. Bailey, 840 F.3d 99, 124 (3d Cir. 2016). While a prosecutor “may strike hard
blows [during his summation], he is not at liberty to strike foul ones.” Berger, 295 U.S. at 88;
Bailey, 840 F.3d at 124. A criminal conviction, however, “is not to be lightly overturned on the
basis of a prosecutor’s comments standing alone, for the statements or conduct must be viewed in
context; only by so doing can it be determined whether the prosecutor’s conduct affected the
fairness of the trial.” United States v. Harris, 471 F.3d 507, 512 (3d Cir. 2006) (quoting United
States v. Young, 470 U.S. 1, 11 (1985).
Thus, a prosecutor’s improper comments during
summation will only warrant habeas relief where those comments “so infected the trial with
unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright,
477 U.S. 168, 181 (1986); see also Copenhefer v. Horn, 696 F.3d 377, 392 n. 5 (3d Cir. 2012).
Whether an adequate curative instruction addressing any improper comments was given will be
relevant to that determination, as will the strength of the evidence against the accused. Darden,
477 U.S. at 182.
The New Jersey Supreme Court summarized the factual background for Petitioner’s
contention as follows:
Here, [Petitioner] alleges prosecutorial misconduct
centering upon legal and administrative proceedings that arose from
Officer Bizzaro’s handling of the case, but were not relevant to the
issues before the jury in [Petitioner]’s criminal case. In its crossexamination of the State’s witnesses, the defense focused on Officer
Bizzaro’s misconduct. [Petitioner] suggested that police officers
misidentified [Petitioner] as the perpetrator, that the police work was
so flawed that it could not support a conviction, and that the officers
planted the gun on [Petitioner].
Three of the State’s witnesses testified about civil and
administrative proceedings that were extraneous to the criminal
charges. First, Sergeant Angel Perales testified on the State’s direct
examination, without objection from [Petitioner], that [Petitioner]
had filed a complaint against him alleging simple assault based on
the officer’s alleged punching and kicking of [Petitioner], and that a
court had noted “probable cause found” on [Petitioner]’s complaint.
Second, Officer Bizzaro testified about his altercation with
and search of [Petitioner], in the Paterson Police Department
interview room, and admitted to his false report and testimony
before the first grand jury. After the prosecutor inquired about the
Paterson Police Department’s administrative proceedings against
Officer Bizzaro, [Petitioner] made, and then withdrew, an objection
premised on relevancy grounds. The prosecutor’s questioning of
Officer Bizzaro then shifted from the officer’s administrative
punishment to [Petitioner]’s civil action against him:
PROSECUTOR: What was your punishment?
OFFICER BIZZARO: Five days suspension.
PROSECUTOR: And are you being sued?
OFFICER BIZZARO: Yes.
PROSECUTOR: By who?
OFFICER BIZZARO: [Petitioner].
PROSECUTOR: For what?
OFFICERR BIZZARO: A million dollars.
Defense counsel did not renew his objection, and this testimony was
Finally, in testimony elicited by [Petitioner], not the State,
Officer Bizzaro’s partner, Officer Anne Marie Mattina, touched on
civil litigation filed by [Petitioner]. Asked about her knowledge of
injuries sustained by [Petitioner] in his struggle against the officers
in the Paterson Police Department interview room, Officer Mattina
disclaimed familiarity with those injuries, noting that she “did not
receive a subpoena for – that I was getting sued from [Petitioner].”
Defense counsel did not move to strike Officer Mattina’s answer as
The challenged portion of the State’s summation occurred
near the close of the prosecutor’s remarks. The prosecutor disputed
[Petitioner]’s suggestion that Officer Bizzaro had planted the gun on
[Petitioner], but commented that the officer “obviously chose the
wrong path” when he lied about the officers’ recovery of the gun,
“not to plant something, not to frame an innocent, but not to get in
trouble.” He then ended his summation by citing the assault charge
against Sergeant Perales, the administrative discipline upon Officer
Bizzaro, and [Petitioner]’s civil litigation:
One day – you know, this case has another
component to it that’s not before you. Sergeant
[Perales] was charged with simple assault. One day,
he’ll have to deal with that Complaint. Officer
[Bizzaro] lost a week’s pay. He earned that at least.
He’s also being sued for a million dollars. Now,
that’s another issue. Maybe some of you will feel he
deserves to be bankrupted for the rest of his life for
what he did. And maybe some of you won’t.
He wanted – [Petitioner] wants somebody
else’s money that day. He was having a good day
when he was able to get it, that $78. And then he had
a bad day when Officer [Perales] was right there and
when the other officers caught him as he got out of
the cab. Then the day got better because Officer
[Bizzaro] chose to lie in a report. And now he wants
to be a millionaire. That’s all for another day.
Your call here today is to say, “Are we okay
with what he did? Are we okay with armed
robbery?” And I hope you’re not. Thank you.
Defense counsel promptly sought a mistrial or, in the alternative, a
limiting instruction. He argued that the jury had been misled into
concluding that by acquitting [Petitioner], he would be “rewarded
and become a millionaire.” The trial court denied the motion for a
mistrial, noting that the evidence upon which the prosecutor had
premised his comments had been admitted without objection, and
that [Petitioner]’s credibility was not in issue because he did not
testify. Ruling on [Petitioner]’s renewed motion for a mistrial the
following day, the trial court commented that the prosecutor’s
statements had been prompted by the defense’s understandable
focus on “what could reasonably be argued as amateurish police
work” in the case. However, the trial court agreed to give a limiting
instruction, rejecting language proposed by the defense by charging
the jury as follows:
Ladies and gentlemen, during the trial, you have
heard testimony about other lawsuits, criminal and
civil, related to this case. Those cases are separate
from this case, of course. Each matter must be
decided on its own individual merits. And the worth
of the claims and allegations made in those other
lawsuits will be the subject of separate proceedings
in each of those matters. You must not consider that
the verdict which you will return will in any way
impact on any other case.
The jury was thus informed that its verdict in the case before
it was unrelated to the outcome of any civil litigation or
administrative process involving the officers.
(Document 24 attached to ECF No. 5 at 20-24).
On direct appeal, both the Appellate Division and New Jersey Supreme Court found the
remarks of the prosecutor to be improper, but ultimately concluded that they did not deny Petitioner
a fair trial given the limiting instruction provided by the trial court, the fact that the comments in
question arose directly out of evidence admitted into the trial record without a non-withdrawn
objection, and the strength of the evidence against Petitioner. (Id. at 24-26). Having reviewed the
record, this Court agrees. While the comments in question were improper, in making them the
prosecutor himself noted that the issue of those extraneous matters was not before the jury.
Likewise, the curative instruction given by the judge directly informed the jury that their verdict
was entirely separate and non-determinative of any outside civil matters. Given the strong
eyewitness testimony presented at trial from both police officers and Mr. Chowdhury and the direct
and responsive curative instruction, this Court can only conclude that the prosecutor’s remarks did
not deny Petitioner a fair trial, and that they did not deny Petitioner his right to Due Process.
Darden, 477 U.S. at 181-82. As such, the decision of the New Jersey Supreme Court to deny
Petitioner relief as to this claim was neither contrary to nor an unreasonable application of federal
law, nor did it involve an unreasonable reading of the facts of Petitioner’s trial. Petitioner is
therefore not entitled to habeas relief on this basis.
2. Petitioner’s Kidnapping Claim
In his next claim, Petitioner asserts that his kidnapping conviction must be vacated because
the state failed to prove that he either moved the victim a substantial distance or subjected him to
substantial confinement. Petitioner essentially raises a claim that the evidence presented at trial
was insufficient to support his conviction for kidnapping. When a petitioner presents a claim
challenging the sufficiency of the evidence against him, “a reviewing court must ask ‘whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.’” Eley, 712 F.3d
at 847 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). A reviewing court may therefore
overturn a conviction for insufficiency of the evidence only “if it is found that upon the record
evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a
reasonable doubt.” Id. (quoting Jackson, 443 U.S. at 324). “Under Jackson, federal courts must
look to state law for the substantive elements of the criminal offense, but the minimum amount of
evidence that the Due Process Clause requires to prove he offense is purely a matter of federal
law.” Coleman v. Johnson, 566 U.S. 650, 655 (2012). Under this “deferential federal standard,”
juries have “broad discretion in deciding what inferences to draw from the evidence presented at
trial” and federal courts must not “unduly impinge on the jury’s role as factfinder” by engaging
in “fine-grained factual parsing.” Id. So long as a rational fact finder could, given the benefit of
all reasonable inferences and viewing the facts in the light most favorable to the State, find all of
the essential elements of the crime in question beyond a reasonable doubt, a habeas claim based
on the sufficiency of the evidence must fail.
Petitioner asserts that there was insufficient evidence to support his conviction for
kidnapping insomuch as the evidence did not establish that he had subjected Chowdhury to either
substantial confinement or forced him to move a substantial distance. The New Jersey Supreme
Court rejected that argument, explaining that the statute under which Petitioner was convicted
required proof that Petitioner had either “removed the victim ‘from his place of residence or
business, or a substantial distance from the vicinity where he is found,’ or ‘unlawfully confine[d
the victim] for a substantial period.’ [N.J. Stat. Ann. §] 2C:13-1(b).” (Document 24 attached to
ECF No. 24 at 28). The Court further explained that the “substantial distance” element requires
only a showing that the victim was moved in such a way to isolate or expose him to an increased
risk of harm, and is not dependent on the defendant moving the victim any particular minimum
linear distance. (Id.). In essence, this element merely requires a showing that the victim, through
movement, was exposed to risk over and above that of any underlying crime, such as the armed
robbery involved in this matter. (Id. at 28-30). The New Jersey Supreme Court construed the
substantial distance element similarly. That element requires confinement for a period of time
“more than merely incidental to the underlying crime” which exposes the victim to an “enhanced
risk of harm” resulting from the confinement and isolation imposed by the defendant. (Id. at 3031).
Ultimately, the New Jersey Supreme Court found that the evidence produced at trial was
more than sufficient to permit a rational fact finder to find either of the two alternative elements
of a substantial distance or substantial confinement:
Analyzing this case in conformance with our prior decisions, we
hold that there was sufficient evidence to support the jury verdict
with respect to both the “substantial distance” and “substantial
confinement” elements of [N.J. Stat. Ann. §] 2C:13-1(b).
[Petitioner]’s constraints on his victim went beyond the acts that
were necessary to accomplish the armed robbery with which
[Petitioner] was separately charged. [Petitioner] did not simply
enter the taxi at the stoplight, brandish his weapon, demand and
collect money from Chowdhury, and depart the scene, leaving
Chowdhury in a position to promptly seek help. [Petitioner] isolated
Chowdhury, who was threatened with a gun and in a moving
vehicle, thus impeding Chowdhury’s ability to obtain assistance.
Instead, he repeatedly ordered Chowdhury to drive him to a location
[Petitioner] clearly exposed Chowdhury to an enhanced risk
of harm. Because [Petitioner] remained in the taxi after the robbery
was over and insisted that Chowdhury drive him to Broadway, he
kept the victim in an isolated and vulnerable position. [Petitioner],
brandishing a gun, forced Chowdhury to operate his taxi for several
minutes, through city streets, exposing him to the risk of a serious
accident, injury or death by virtue of a desperate attempt to escape,
or the danger of a confrontation between [Petitioner] and law
enforcement. The “linear distance” traveled was considerable, but
the increased risk of harm imposed on this victim was greater still.
The same considerations support [Petitioner]’s conviction
under the “substantial confinement” standard of [the statute]. The
isolation and vulnerability experienced by the victim in this case was
not coextensive with the armed robbery. As described at trial,
[Petitioner]’s robbery of the victim – demands for cash and a wallet
with which the victim immediately complied – consumed a short
span of time. Yet, the victim’s peril lasted significantly longer, as
he was threatened with a gun and compelled to drive through the
city of Paterson. He was thus exposed to a substantially extended
confinement and a substantially increased risk.
Although the record does not disclose whether the jury
premised its verdict on the kidnapping offense upon the “substantial
distance [element] or the statute’s “substantial confinement”
element, or both, there was ample evidence supporting [Petitioner]’s
(Id. at 33-35).
Having reviewed the evidence provided at trial, this Court finds that the New Jersey
Supreme Court involved neither an unreasonable application of federal law nor an unreasonable
application of the facts. As explained, under New Jersey law, the central question as to either
substantial distance or substantial confinement is the increased risk of harm imposed by the
distance traveled or length of confinement. In this matter Petitioner confined Chowdhury for
several minutes, forced him to drive nearly a mile through the city of Paterson, and did so under
the threat of attack with a gun, imposing upon Chowdhury a greatly increased risk of harm over
that imposed merely by the armed robbery Petitioner also inflicted upon Chowdhury. Given the
distance traveled, the increased risk of harm, and the length of time Chowdhury was confined and
placed in danger by Petitioner, the evidence in the record is more than sufficient to permit a
reasonable fact finder to conclude beyond a reasonable doubt that Petitioner both forced
Chowdhury to move a substantial distance, and confined him by way of the threat of being shot
for a considerable period of time, and the evidence was thus more than sufficient to support
Petitioner’s conviction for kidnapping. Petitioner’s sufficiency of the evidence claim therefore
fails and he is not entitled to relief on this basis.
3. Petitioner’s Mistrial Claim
Petitioner next asserts that he was denied Due Process when the trial court refused to grant
him a new trial based on his surprise when one of the police officers testified at trial that he recalled
seeing Petitioner exit Chowdhury’s cab on the day of the robbery shortly before Petitioner’s arrest.
Petitioner essentially seeks relief based on an alleged violation of state discovery rules. Absent
certain specific circumstances such as Brady violation, 4 state discovery violations do not raise
Petitioner did not originally raise a Brady claim in his habeas petition. (ECF No. 1 at 23-24). In
his reply brief, however, Petitioner belatedly attempts to recharacterize his discovery violation
claim as raising a Brady violation. Because this argument was raised for the first time in reply,
this Court would be well within its discretion to decline to review Petitioner’s Brady argument.
See Judge v. United States, 119 F. Supp. 3d 270, 284 (D.N.J. 2015). That said, Petitioner’s
attempted Brady claim fails as the information he was not provided, that a police officer had seen
him exit Chowdhury’s cab shortly before the officer learned of the robbery, was not in any way
exculpatory or favorable to his defense. Indeed, it was directly inculpatory to the extent it was in
any way material. See Kyles v. Whitley, 514 U.S. 419, 432-34 (1995); see also United States v.
Risha, 445 F.3d 298, 303 (3d Cir. 2006) (Brady violation requires showing that the state suppressed
material evidence which was favorable to the defense). Because the missing information was not
favorable to Petitioner’s defense, Petitioner cannot show that he would be entitled to relief under
the Brady doctrine. Risha, 445 F.3d at 303.
federal constitutional issues sufficient to warrant habeas relief. See, e.g., Perez v. Glover, No. 10655, 2012 WL 481122, at *20 (D.N.J. Feb. 14, 2012); see also Marshall v. Hendricks, 103 F. Supp.
2d 749, 777 (D.N.J. 2000), aff’d in part and rev’d in part on other grounds, 307 F.3d 36 (3d Cir.
2002), cert. denied 583 U.S. 911 (2003). State discovery rule violations will therefore only provide
a basis for habeas relief where they “so infect the trial with unfairness as to make the resulting
conviction a denial of due process.” Marshall, 103 F. Supp. 2d at 777 (quoting Darden, 477 U.S.
Following trial and before his sentencing, Petitioner moved before the trial court for a new
trial, arguing that the State had failed to tell the defense that Officer Perales had seen Petitioner
leave Chowdhury’s cab moments before Chowdhury flagged him down and reported that
Petitioner had robbed him. (See Document 19 attached to ECF No. 5 at 8-20). Petitioner’s counsel
argued that this amounted to a discovery violation warranting a new trial as Petitioner had not been
informed that the officer could identify him as having left the cab before the robbery was reported
to him. (Id.). Both during Perales’s testimony and during argument on that issue, it was raised to
the Court that Perales claimed to have filed a report containing his having seen Petitioner leave the
cab, but that the report had been lost and had thus not been turned over to the Government. (Id.).
Nothing in the record suggests that the loss of the report was anything other than inadvertent. (Id.).
During argument, the State did present a copy of a detective’s report that had been turned over to
the Defense which clearly informed the Defense that Perales had told the detective that, while
traveling East on Broadway, he had been stopped by Chowdhury, who immediately pointed out
Petitioner as a man who had robbed him, at which point Petitioner fled and Perales gave chase,
with the foot pursuit ending in Petitioner being captured by other officers who had heard Perales’s
request for help in apprehending Petitioner. (Id. at 14). The trial judge ultimately denied
Petitioner’s motion for a new trial, finding that the evidence against Petitioner was overwhelming,
that the documents which had been turned over to Petitioner “very easily fit” with Perales’s trial
testimony that he had seen Petitioner, and that Petitioner was not prejudiced by the lack of Perales’s
report as he had been provided information about what Perales was to testify to and had cross
examined Perales extensively on the missing report. (Id. at 14-20).
As to Petitioner’s contention at that time that he might have pled guilty had he received the
report, the trial judge made the following observations:
. . . with regard to the argument that’s presented here about [the]
testimony of Officer [Perales] that was learned only at the time of
trial, the argument is that [Petitioner] may have accepted the plea
offer [if he had the report]. The State, recognizing that it had hurdles
to overcome [due to Officer Bizzaro’s actions], made a generous
plea offer. There is a record that is more than replete [with]
discussions with [Petitioner] about how big a gamble he was taking,
that he had the benefit of the State compromising enormously what
they were suggesting before these problems came to light through
the . . . defense attorney and [Petitioner], what they were asking for
as a settlement of this case and how dramatically that proposition
was dropped by the State in recognition of the fact that there was a
police officer who wrote a false report and testified falsely before
the grand jury.
And [Petitioner] had that option. That was available to him.
He . . . rejected that option. The [Petitioner] may believe . . . that he
is innocent and, of course, I wouldn’t have taken his plea if I had
any sense of that in the first place. And [Petitioner] has some civil
litigation going where he is seeking . . . huge compensation from
quite a number of individuals who are the subject matter of his civil
rights actions and maybe felt that he was jeopardizing that and, if he
got an acquittal, that [his civil case] would be that much more . . .
fortified[.] I really don’t have much detail on that except that I know
any number of lawyers have come to ask about the status of this case
because they represent various Defendants who apparently are the
subject of [Petitioner]’s . . . civil rights lawsuit.
So, I have no reason to believe, even at this very moment,
that there is any representation at all that [Petitioner]’s posture about
going ahead with this trial would be different had he known about
Detective [Perales’s] testimony on the specific point of his seeing
[Petitioner] actually alight from the cab . . . as opposed to having
seen him just immediately after he alighted from the cab because
certainly that much was known.
(Document 19 attached to ECF No. 5 at 18-19). The New Jersey appellate courts likewise rejected
this claim without further comment.
As noted by the trial court, Petitioner and counsel were clearly aware that Officer Perales
was behind Chowdhury’s cab around the time Petitioner left the cab, and that Chowdhury then
flagged down Perales and specifically pointed out Petitioner as a man who robbed him before
Perales and Chowdhury chased Petitioner through the park until he was apprehended by officers
assisting them in the chase. That Perales may have seen Petitioner leave the cab, then, was no
great leap from the information which was known to Petitioner prior to trial. In any event, it is
clear that Petitioner was not denied a fair trial simply because he was not aware that Perales had
seen him leave the cab. As noted by the trial court, Petitioner was able to use the lack of a report
to cross-examine Perales, and Petitioner was already aware that Perales had been there when
Chowdhury initially pointed Petitioner out as the robber. In light of the considerable other
evidence in the record, including the remaining testimony of Chowdhury and Perales as well as
the fact that Petitioner was found not only with a gun but also with the exact amount of money
Chowdhury had reported stolen, as well as the fact that Chowdhury and Perales essentially
followed after Petitioner from the time Chowdhury reported the robbery to the time of his capture,
it is clear that Petitioner was not prejudiced by his not knowing that Perales had seen him exit
Chowdhury’s cab as well, and that the lack of this information did not render Petitioner’s trial
unfair. Likewise, this Court finds the determination of the trial court that there was nothing in the
record to support the assertion that Petitioner may have accepted the plea offer had he known
Perales saw him leave the cab is neither an unreasonable application of federal law or the facts at
hand. Petitioner is therefore not entitled to habeas relief as to his discovery violation claim.
4. Petitioner’s Ineffective Assistance of Counsel Claims
In all of his remaining claims, Petitioner asserts that he suffered ineffective assistance of
both trial and appellate counsel. The standard applicable to such claims is well established:
[c]laims of ineffective assistance are governed by the two-prong test
set forth in the Supreme Court’s opinion in Strickland v.
Washington, 466 U.S. 668 (1984). To make out such a claim under
Strickland, a petitioner must first show that “counsel’s performance
was deficient. This requires [the petitioner to show] that counsel
made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed by the Sixth Amendment.” Id. at 687; see also
United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007). To
succeed on an ineffective assistance claim, a petitioner must also
show that counsel’s allegedly deficient performance prejudiced his
defense such that the petitioner was “deprive[d] of a fair trial . . .
whose result is reliable.” Strickland, 466 U.S. at 687; Shedrick, 493
F.3d at 299.
In evaluating whether counsel was deficient, the “proper
standard for attorney performance is that of ‘reasonably effective
assistance.’” Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). A
petitioner asserting ineffective assistance must therefore show that
counsel’s representation “fell below an objective standard of
reasonableness” under the circumstances. Id. The reasonableness
of counsel’s representation must be determined based on the
particular facts of a petitioner’s case, viewed as of the time of the
challenged conduct of counsel. Id. In scrutinizing counsel’s
performance, courts “must be highly deferential . . . a court must
indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland, 466
U.S. at 689.
Even where a petitioner is able to show that counsel’s
representation was deficient, he must still affirmatively demonstrate
that counsel’s deficient performance prejudiced the petitioner’s
defense. Id. at 692-93. “It is not enough for the defendant to show
that the errors had some conceivable effect on the outcome of the
proceeding.” Id. at 693. The petitioner must demonstrate that “there
is a reasonable probability, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694; see also Shedrick, 493 F.3d at 299. Where a
“petition contains no factual matter regarding Strickland’s prejudice
prong, and [only provides] . . . unadorned legal conclusion[s] . . .
without supporting factual allegations,” that petition is insufficient
to warrant an evidentiary hearing, and the petitioner has not shown
his entitlement to habeas relief. See Palmer v. Hendricks, 592 F.3d
386, 395 (3d Cir. 2010). “Because failure to satisfy either prong
defeats an ineffective assistance claim, and because it is preferable
to avoid passing judgment on counsel’s performance when possible,
[Strickland, 466 U.S. at 697-98],” courts should address the
prejudice prong first where it is dispositive of a petitioner’s claims.
United States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002).
Judge v. United States, 119 F. Supp. 3d 270, 280-81 (D.N.J. 2015).
a. Petitioner’s Plea-related Ineffective Assistance Claims
In his first ineffective assistance of counsel claim, Petitioner asserts that his trial counsel
did not convey a counteroffer he made to the prosecutor requesting an eight year sentence as
opposed to the ten years offered in the state’s final and best plea offer. As the Third Circuit has
The year after deciding Strickland, the Supreme Court slightly
modified the prejudice prong of the Strickland test in connection
with guilty pleas. See Hill v. Lockhart, [474 U.S. 52] (1985). . . .
The Court has re-emphasized that “[d]efendants have a Sixth
Amendment right to counsel, a right that extends to the pleabargaining process.” Lafler v. Cooper, --- U.S. ---, 132 S.Ct. 1376,
When addressing a guilty plea, counsel is required to give a
defendant enough information “ ‘to make a reasonably informed
decision whether to accept a plea offer.’” Shotts v. Wetzel, 724 F.3d
364, 376 (3d Cir. 2013) (quoting United States v. Day, 969 F.2d 39,
43 (3d Cir. 1992)), cert. denied, --- U.S. ---, 134 S.Ct. 1340 (2014).
We have identified potential sentencing exposure as an important
factor in the decisionmaking process, stating that “[k]nowledge of
the comparative sentence exposure between standing trial and
accepting a plea offer will often be crucial to the decision whether
to plead guilty.” Day, 969 F.2d at 43.
United States v. Bui, 795 F.3d 363, 366-67 (3d Cir. 2015).
The PCR court held a hearing as to Petitioner’s plea hearing claim. At that hearing,
Petitioner’s trial counsel testified that he conveyed any and all plea offers to Petitioner, that he did
not recall Petitioner ever suggesting he make a counteroffer, and would have conveyed a
counteroffer had he been asked to do so. (See Document 20 attached to ECF No. 5 at 40-42). In
contrast, Petitioner testified that counsel refused to convey that counteroffer and instead told
Petitioner that they should prepare for trial as they would win Petitioner’s case. (Id. at 19-37).
Petitioner also testified that, had that counteroffer been declined, he would have been willing to
accept the State’s last plea agreement. (Id.). Although Petitioner could have questioned counsel
as to what advice he gave regarding the offered plea deals, he did not pursue any questioning as to
The PCR court rejected Petitioner’s claim, making the following findings:
Now there is a credibility question here; and the credibility question
centers around whether or not I believe [Petitioner]’s contention that
he told [counsel] to go get [him an] eight [year plea offer] and [he’d]
take it and [counsel] didn’t do it; or is [counsel] telling the truth, that
[Petitioner] never asked [him] to go get [an eight year sentence]; if
he [had], [counsel testified he] would have done it.
Well, there’s two things I’ll focus on. I’m not even getting
into the fact that [counsel] is a 38 year officer of the court and an
attorney at law versus [Petitioner] who has a significant criminal
Who has the motive to lie here, that’s really it. Why would
[counsel, a public defender,] not convey a counteroffer to the
Prosecutor? He’s got nothing to gain by that. Doesn’t make more
money if this case goes to trial. If anything, it’s more work for him.
I’m sure given the choice of trying this case or giving the
counteroffer to the State and working out a plea, [counsel] with one
hundred percent certainty would have rather had the plea. And
there’d be no reason for him not to convey the counteroffer. He had
no interest in this case going to trial. Arguably [Petitioner] did if he
was trying to pursue a civil claim. But forgetting that now.
Let’s look at [Petitioner]’s motive to say this now. Well,
he’s got a lot of reasons to say this now. If I bought into it, he’d be
free, get a new trial. The State could never try this case again at this
posture. So he’s got nothing to lose and everything to gain by saying
[Counsel], on the other hand, has nothing to gain. And I find
him to be more credible. When I sat here and asked him those
questions and looked at him, I was more than satisfied from his tone,
his body language and the way he answered me that he was telling
the truth. And he has no reason not to tell the truth. Whereas,
[Petitioner] has a strong motivation to say this now.
And I would also note I reviewed the whole record.
[Petitioner] was not a defendant that sat there quiet and never
addressed the Court. He repeatedly addressed the Court on his own.
If he wanted [an eight year deal] – and he knows the system.
He’s been through the system. If he didn’t get word back from
[counsel], on one of those occasions when he addressed [the trial
judge] I’m absolutely certain he would have said Judge, I don’t
know if [counsel] conveyed this offer I want, but I’m going to do it
I don’t believe for one second that [Petitioner] told [counsel]
[to] get [him an eight year sentence] and [he’d] take [that plea deal]
and [counsel] didn’t convey that offer.
What I believe happened, [Petitioner] rejected [the ten year
offer], did not make a counteroffer, went to trial, got convicted, got
hit with a heavy sentence and now he’s making this up to try to get
out from under [his sentence]. That’s what I believe. That’s my
(Document 22 attached to ECF No. 5 at 11-13). The Appellate Division affirmed this ruling,
finding that these credibility findings precluded Petitioner from receiving relief as Petitioner had
not established ineffective assistance of counsel.
Giving proper deference to the PCR court’s detailed credibility findings, and considering
them in light of the trial court’s observations during post-trial motions that the trial court and
counsel had extensively discussed the offered deals with Petitioner, this Court concludes that
Petitioner has failed to show that his counsel’s performance was deficient. Per the PCR court’s
credibility findings, which this Court must presume to be correct as Petitioner has utterly failed to
show by clear and convincing evidence that the PCR court was mistaken, see 28 U.S.C. §
2254(e)(1), Petitioner never requested a counteroffer be made, and counsel would have made such
an offer had Petitioner asked. Instead, Petitioner rejected the State’s plea offer and chose to
proceed to trial. As the PCR court determined that Petitioner never made the counteroffer that
forms the basis of this claim, and that counsel would have communicated a counter offer had it
been made, the PCR court’s rejection of Petitioner’s first ineffective assistance claim was not
contrary to or an unreasonable application of Strickland and Hill, and Petitioner is not entitled to
habeas relief on that basis.
In his habeas petition, Petitioner also attempts to assert that his trial counsel was ineffective
during plea negotiations as he did not explain to Petitioner the strengths and weaknesses of his
case prior to Petitioner’s rejection of the plea offer. As explained by the Appellate Division on
appeal from the denial of Petitioner’s PCR petition,
In his PCR petition and before the PCR judge, [Petitioner] argued
that his trial attorney was ineffective for failing to communicate a
counteroffer to the State. In [his first PCR appeal claim, Petitioner]
raises a different argument – that his trial attorney failed to
communicate to him the strengths and weaknesses in the State’s case
and why the State’s plea offer was reasonable. Plainly, the factual
basis for this argument could have been explored at the evidentiary
hearing. However, [Petitioner] did not raise this issue before the
PCR judge. He may not do so for the first time on appeal. State v.
Arthur, 184 N.J. 307, 327 (2005).
(Document 25 attached to ECF No. 5). It is thus clear from the record that Petitioner procedurally
defaulted his strengths and weaknesses claim, and was barred from proceeding on that claim
pursuant to a clearly established state court procedural rule by the Appellate Division. Id.
As the Third Circuit has explained,
A federal court will ordinarily not entertain a procedurally defaulted
constitutional claim in a petition for habeas corpus “[o]ut of respect
for finality, comity, and the orderly administration of justice.”
Dretke v. Haley, 541 U.S. 386 (2004). This is a reflection of the
rule that “federal courts will not disturb state court judgments based
on adequate and independent state law procedural grounds.” Id. at
[392-93]; see Wainwright v. Sykes, 433 U.S. 72, 81 (1977). The
principal exception to this general rule precluding federal review of
habeas claims that have been procedurally defaulted is for
petitioners who can show “cause and prejudice” for the procedural
default or that a “miscarriage of justice” will occur absent review.
Cristin v. Brennan, 281 F.3d 404, 414 (3d Cir.2002). An allegation
of “actual innocence,” if credible, is one such “miscarriage of
justice” that enables courts to hear the merits of the habeas claims.
Hubbard v. Pinchak, 378 F.3d 333, 338 (3d Cir. 2004). A showing of cause sufficient to escape
the procedural default bar requires that the petitioner present “‘some objective factor external to
the defense impeded counsel’s efforts’ to raise the claim.” Parkin v. United States, 565 F. App’x
149, 151-52 (3d Cir. 2014) (quoting United States v. Pelullo, 399 F.3d 197, 223 (3d Cir. 2005)).
Even where a petitioner can show cause, he is still required to demonstrate that he suffered actual
prejudice insomuch as the alleged errors “worked to his actual and substantial disadvantage
infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S.
152, 170 (1982). Here, Petitioner has utterly failed to present cause for his procedural default of
his claim, nor has he shown that he is actually innocent of the crime or will suffer a miscarriage of
justice absent review of his claim. He is therefore barred from proceeding on his second plearelated ineffective assistance of counsel claim. Hubbard, 378 F.3d at 338.
Even were this not the case, however, Petitioner’s claim would still fail as he has not shown
that he received deficient performance. Petitioner bases this claim entirely on one answer counsel
provided at the evidentiary hearing. Specifically, during cross-examination, Petitioner’s trial
counsel said that Petitioner told him that the “State’s supposed to make me a reasonable plea offer”
and counsel responded by asking Petitioner “what is a reasonable offer[?]” (Document No. 20
attached to ECF No. 5 at 13). From this one statement, taken out of context, Petitioner asserts that
counsel never discussed the strengths or weaknesses of his case nor advised him as to what was
reasonable under the circumstances. Despite having ample opportunity to do so, though, Petitioner
did not develop that claim in the slightest at his hearing.
This single out of context comment on which Petitioner bases his defaulted claim does not
support Petitioner’s assertion. Although counsel testified that he asked Petitioner what he thought
was a reasonable plea offer, counsel did not testify that he did not advise Petitioner as to the plea,
nor that he did not discuss with Petitioner his case. Instead, counsel’s testimony was intended to
show that Petitioner felt ten years was unreasonable. Counsel’s testimony, which the PCR court
found truthful and credible, further included a fact devastating to Petitioner’s claim – that
Petitioner insisted he was innocent and was not willing to plead guilty to the ten year offer. A
further problem for Petitioner arises out of the fact that the record also includes a finding by the
trial judge that Petitioner, his counsel, and the Court discussed how Petitioner was taking a big
“gamble” by proceeding to trial and not pleading guilty in light of the evidence against him.
(Document 19 attached to ECF No. 5 at 18-19). Thus, the only facts in the record on the claim
Petitioner raises suggests that, contrary to Petitioner’s unsupported assertions, that at least some
discussion of the strengths and weaknesses of the case and the risk Petitioner was taking by not
pleading guilty. Ultimately, because of Petitioner’s failure to develop this claim at his PCR
hearing, Petitioner has failed in any way to show that he suffered either deficient performance or
prejudice from counsel’s advice as to the plea. Thus, Petitioner’s second plea-related claim is both
procedurally barred and is without merit and provides no basis for habeas relief.
b. Petitioner’s Identification-related and Cumulative Ineffective Assistance Claims
In his next claim, Petitioner asserts that his trial attorney erred in failing to request a hearing
pursuant to United States v. Wade, 388 U.S. 218 (1967), so that Petitioner could challenge
Chowdhury’s identification of Petitioner at the park following his arrest. In order to show that he
was prejudiced by counsel’s failure to seek a Wade hearing, Petitioner “must show that he would
likely have prevailed on [his] suppression motion and that, having prevailed, there is a reasonable
likelihood that he would not have been convicted.” Thomas v. Varner, 428 F.3d 491, 502 (3d Cir.
2005). The standard governing the admissibility of an out of court identification was established
by the Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 116 (1977). Under Manson, an
identification procedure violates due process and the resulting identification is therefore
inadmissible where the procedure used by the state was “unnecessarily suggestive and . . . create[d]
a substantial risk of misidentification.” United States v. Brownlee, 454 F.3d 131, 137 (3d Cir.
2006); see also United States v. Anthony, 458 F. App’x 215, 218 (3d Cir. 2012). Although
reliability is “the linchpin in determining the admissibility of identification testimony,” Manson,
432 U.S. at 114, the question of whether an identification is reliable need only be addressed where
the procedures used to procure that identification were themselves suggestive. Id. at 107-14; see
also State v. Henderson, 208 N.J. 208, 219-220 (2011) (Under New Jersey law a Wade hearing
need only be held where a criminal defendant “can show some evidence of suggestiveness”).
Although Petitioner takes issue with the fact that Chowdhury was asked to identify him in
the park at the time of his arrest, rather than via a formal lineup sometime thereafter, he provides
little information which suggests that this identification procedure was in any way suggestive. The
facts evinced at trial suggest instead that this impromptu identification procedure was merely the
result of the facts of this case – Chowdhury hurried to flag down an officer shortly after the
robbery, one of the officers involved had actually seen Petitioner leave the cab following the
robbery, and both Chowdhury and the police followed Petitioner into the park, where he was
detained and arrested. That Chowdhury then identified him was the result of the short time
between the robbery and the arrest, and Chowdhury’s presence at the scene of the arrest. Under
the circumstances, this Court finds that Petitioner has failed to show that the procedures used were
in any way suggestive, and as such Petitioner would not have been entitled to a Wade hearing even
had he requested one.
Assuming Petitioner could show suggestive procedure, Chowdhury’s testimony and the
testimony of the officers at trial clearly established that the identifications in this case were reliable.
Chowdhury was directly faced with Petitioner and his weapon during the dispute prior to the
robbery regarding whether he would take Petitioner to Broadway and throughout the travel to
Broadway as well as during the actual robbery. He had ample opportunity to view Petitioner, and
the identification occurred shortly after Petitioner left the cab. Indeed, one of the officers himself
testified to seeing Petitioner leave the cab and being able to identify Petitioner by the clothing he
had been wearing at the time. Additionally, Petitioner was found to possess the exact amount of
money Chowdhury had reported was stolen from him. Thus, both the testimony about the robbery
and arrest as well as the surrounding facts strongly suggest that Chowdhury’s identification of
Petitioner was reliable. As such, the identifications were admissible regardless of any suggestive
procedure. As a result, Petitioner has failed to show prejudice as any request for a Wade hearing
would not have resulted in the identifications being suppressed, and counsel was therefore not
ineffective in failing to seek the suppression of the identifications under Wade. Thomas, 428 F.3d
Petitioner also asserts that trial counsel’s alleged failures, both at the plea hearing and in
not requesting a Wade hearing cumulatively denied him the effective assistance of counsel. As
Petitioner has failed to show that counsel’s performance was deficient or that he was prejudiced in
any way by counsel’s actions, and as such his claims fail cumulatively for the same reason that
they fail individually – Petitioner has utterly failed to establish ineffective assistance of counsel
sufficient to warrant habeas relief. He is therefore not entitled to habeas relief based upon the
alleged ineffective assistance of trial counsel. Strickland, 466 U.S. at 687-94.
c. Petitioner’s Ineffective Assistance of Appellate Counsel Claim
In his final claim, Petitioner asserts that he also received ineffective assistance from his
appellate counsel insomuch as counsel did not raise on appeal the Wade issue discussed above, the
trial court’s denial of Petitioner’s motion to suppress the slide found in his jacket at the police
station, or the denial of his motion to dismiss the second indictment based on Officer Bizzaro’s
lying during his first grand jury proceeding. While the Strickland ineffective assistance standard
applies to appellate counsel just as it does to trial counsel, see Smith v. Robbins, 528 U.S. 259, 285
(2000), “it is a well established principle . . . that counsel decides which issues to pursue on
appeal,” Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996), and appellate counsel need not raise
every nonfrivolous claim a defendant desires to pursue. Jones v. Barnes, 463 U.S. 745, 751 (1983).
Because the heart of effective appellate advocacy is counsel’s winnowing out weaker claims in
favor of those with a greater chance of success, id. at 753; Smith v. Murray, 477 U.S. 527, 536
(1986), the Supreme Court has held that “[g]enerally, only when ignored issues are clearly stronger
than those presented, will the presumption of effective assistance of [appellate] counsel be
overcome.” See Robbins, 528 U.S. at 288 (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir.
Petitioner has made no such showing. While Petitioner asserts that counsel should have
raised the suppression of the gun slide, Petitioner provides little in the way of argument as to why
the gun slide, found in a search after the gun-related scuffle with Officer Bizzaro, should have
been suppressed. Petitioner likewise fails to fully explain why Bizzaro’s deceptions, which were
corrected before the second grand jury, required the dismissal of the second indictment against
him. As explained above, the Wade claim Petitioner wishes counsel had raised was also without
merit. In contrast to these vague and poorly defined claims, the claims counsel raised on
Petitioner’s behalf not only resulted in the Appellate Division finding in Petitioner’s favor as to
the kidnapping issue, but also resulted in the New Jersey Supreme Court taking Petitioner’s case
on both the kidnapping and prosecutorial misconduct claims. Thus, although Petitioner was
ultimately unsuccessful before the New Jersey Supreme Court, it is clear that the claims counsel
chose to raise were serious claims of sufficient merit to warrant a written opinion from the New
Jersey Supreme Court, as well as a temporary grant of relief by the Appellate Division. Given the
weak nature of the claims Petitioner asserts should have been raised and the clear (albeit not
ultimately successful) strength of the claims counsel did raise on appeal, Petitioner has failed to
show that counsel ignored claims stronger than those he did choose to raise, and Petitioner has
thus failed to show that appellate counsel’s performance was in any way deficient. Robbins, 528
U.S. at 288. Petitioner is therefore not entitled to relief on this claim, and the Appellate Division’s
rejection of this claim was neither an unreasonable application of federal law nor the facts at hand.
III. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a habeas
proceeding where that petitioner’s detention arises out of his state court conviction unless he has
“made a substantial showing of the denial of a constitutional right.” “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district court’s resolution
of his constitutional claims or that jurists could conclude that the issues presented here are adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Because all of Petitioner’s habeas claims are either without merit or are procedurally defaulted for
the reasons set forth above, he has failed to make a substantial showing of a denial of a
constitutional right, and the petition is not adequate to receive encouragement to proceed further.
This Court therefore denies Petitioner a certificate of appealability.
For the reasons stated above, Petitioner’s petition for a writ of habeas corpus is DENIED
and Petitioner is DENIED a certificate of appealability. An appropriate order follows.
Dated: November 27, 2017
s/ Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge
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