CAMEL v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY et al
OPINION. Signed by Judge John Michael Vazquez on 10/13/2020. (lag, )
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NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ATTORNEY GENERAL OF THE
STATE OF NEW JERSEY, et al.,
Civil Action No. 17-5298 (JMV)
Vazquez, United States District Judge
Petitioner Kaseem Camel (“Petitioner”), a prisoner currently confined at New Jersey State
Prison in Trenton, New Jersey, has filed a pro se Petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. (D.E. No. 1.) For the reasons that follow, the Court denies the Petition and
denies a certificate of appealability.
FACTUAL BACKGROUND & PROCEDURAL HISTORY
The factual background and procedural history in this matter were summarized in part by
the New Jersey Superior Court, Appellate Division upon Petitioner’s direct appeal: 1
On the evening of November 29, 2006, someone shot three men
(John Mumford, Dale Fisher and Sheldon Oaks) in the courtyard of
the Grace Manor West townhouse complex in Newark. Mumford
died after being shot four times, Fisher and Oaks recovered and later
identified defendant as the shooter. However, at his trial they
repudiated those identifications.
The facts found by the Appellate Division are presumed correct pursuant to 28 U.S.C. §
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The police found an assault rifle and thirteen matching shell casings
on the ground not far from the scene of the shooting. They also
found a small handgun, which Oaks admitted was his. There was no
dispute that Mumford’s death was a homicide. At issue was the
identity of the shooter and the shooter’s degree of culpability. After
several days of deliberations, the jury acquitted defendant of murder
but convicted him of aggravated manslaughter of Mumford and two
counts of aggravated assault on Fisher and Oaks.
At the trial, the State presented testimony that the police arrived at
the scene of the shooting and found Mumford face down on the
ground, unresponsive. The EMT’s were called and pronounced him
dead. The police also found Oaks lying nearby wounded. Oaks was
taken to the hospital, where he gave the police a recorded statement
describing the shooting. He told the police that he, Fisher and
Mumford were sitting in the courtyard talking when they saw a man
approaching them from the right. The man suddenly began shooting
at them. Oaks and Fisher ran away, but were struck by bullets.
Mumford was killed. On December 1, 2006, Detective Michael
Chirico, who was not otherwise involved in the investigation, visited
Oaks in the hospital and showed him an array of photographs.
According to Chirico, Oaks identified defendant’s photo from the
array and “said that was the person that shot me and my friends.”
During his subsequent Grand Jury testimony, Oaks reluctantly
confirmed that he knew the person who shot him and that defendant
was the shooter. However, at defendant’s trial, Oaks insisted that he
really did not know who shot him and that he only identified
defendant because the police promised him that, if he did so he
would receive a reduced sentence for illegally possessing the small
handgun found at the shooting scene. Police witnesses denied
making him any such promise.
In his trial testimony, Fisher admitted meeting with the police on
November 30, 2006 and giving a statement describing the shooting.
His version of the incident was essentially the same as Oaks’
version, except Fisher saw two men approaching. He saw one of the
men start to walk away while the other continued to advance. The
latter suddenly began firing at Fisher and his companions. Fisher
met with the police on December 6 to view a photo array. According
to Detective Peter Chirico, Fisher identified a photograph of
defendant and wrote on the back that this was the person who
“walked up on us and shot us with the rifle.” Fisher confirmed that
information in a contemporaneous statement to the police. However,
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at the trial Fisher insisted that he only signed the back of defendant’s
photo because the police told him “he was the one who shot me.”
On cross-examination, Fisher admitted that a few months after he
gave his statement to the police, he received a favorable plea bargain
on drug charges that were pending at the time of the shooting. As
part of that plea deal, he received probation rather than a prison term.
He also admitted that he was allowed to remain on probation even
though he incurred a second drug charge thereafter. In response to
cross-examination, Fisher also insisted that he did not actually know
the identity of the shooter. On re-direct, he denied that the police
offered him favorable treatment in exchange for giving them any of
his prior statements. On re-cross- examination, he answered “yes”
when asked if he was “threatened with incarceration if [he] didn’t
agree to [his] identification of Mr. Camel.”
At the crime scene, the police found a semi-automatic rifle with two
live rounds in it as well as more than a dozen shell casings lying on
the ground. Expert testimony established that those casings were
fired from the rifle. The police also found a loaded twenty-two
caliber handgun, which Oaks later admitted was his, but they found
no twenty-two caliber shell casings.
Finally, the State presented testimony from Dr. Lila Perez, the
forensic pathologist in charge of the Northern Regional Medical
Examiner’s Office. Dr. Perez has conducted over 6000 autopsies
and reviewed hundreds of autopsies conducted by her subordinates.
She did not conduct the autopsy of Mumford’s body; that was
performed by Dr. Mambo, another pathologist in her office. Without
objection, Dr. Perez testified that she “adop[ted] Doctor Mambo’s
conclusions with regard to the cause of death and manner of death.”
She based her opinions on her review of Dr. Mambo’s report and on
photographs and X-rays taken during the autopsy. Her opinions
about the type and angles of the bullet wounds were based on the
photographs, which showed the size and shape of the wounds. She
testified that the appearance of the bullet wound to Mumford’s back
showed that the bullet entered at “a steep angle.” However, her
opinion as to the internal damage done by the bullet that entered
[decedent’s] back appeared to be based on Dr. Mambo’s report. She
testified, without objection, that [decedent’s] death was a homicide
caused by gunshot wounds. Defense counsel did not cross-examine
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On the fourth day of the trial, September 16, 2008, Juror Number
Three was missing at the start of the trial day. Although a phone call
to his mother revealed that he had “reported to the jury duty,” he
could not be found after a search of the courthouse. In response to
the judge’s inquiry, both the prosecutor and the defense counsel
responded that they had no objection to the judge removing Juror
Number Three and proceeding with thirteen jurors. However, the
judge declared an additional short recess, at the end of which Juror
Number Three was finally located in the courthouse and the trial
resumed with all fourteen jurors. The testimonial portion of the trial
concluded and the jury began an extensive period of deliberations.
After eight days of deliberations, on the morning of September 30,
2008, Juror Number Three brought in a letter from his high school
principal stating that he was a special needs student and, in light of
the number of days he had missed from school due to his jury
service, he was in danger of not being able to graduate. Telephone
calls from the court to the juror’s school and to his mother elicited
information that this juror had significant special needs in the form
of mental health issues. The judge also indicated that earlier in the
week, this juror had advised the court that he needed to take certain
standardized tests that week. Defense counsel opposed excusing the
juror and asked the judge to declare a mistrial based on the length of
time the jury had been deliberating. The prosecutor argued that,
although the jury had been deliberating for several days, they clearly
had not decided any issues because they were continuing to request
readbacks of testimony.
Based on State v. Williams, 171 N.J. 151 (2002), and State v.
Valenzuela, 136 N.J. 458 (1994), the judge determined that the juror
had “a valid personal reason” to be excused, because continued
service would jeopardize his high school graduation. He found that
there was “no conflict among any of the jurors,” the juror’s request
was completely unrelated to the jury’s deliberations, and there were
alternates available. The judge found releasing the juror would not
disadvantage either side. He also specifically noted that he was not
basing his decision on the juror’s special needs, which the court
could accommodate if necessary. After an alternate juror was
selected, the judge instructed the jury to “start your deliberations all
over again” from “the very beginning of the deliberation process,
just as if you are entering the jury room for the first time after
listening to my charges.” He instructed them to disregard all of their
prior deliberations and particularly to ignore any opinions that Juror
Number Three may have expressed. The reconstituted jury then
deliberated for the rest of the day.
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On the next day, October 1, 2008, the jury asked for additional
instructions on the law applicable to murder, attempted murder and
aggravated manslaughter. The judge gave an extensive re-charge on
those issues, without objection from counsel. In response to a second
question, later in the day, the judge gave the jury additional
instructions on the elements of murder. The jury deliberated for the
rest of that day.
On October 2, 2008, the jury resumed its deliberation. At lunchtime,
Juror Number One sent out a note that she could not “serenely
deliberate” and would like to communicate with the judge. The
judge asked the jury to clarify whether they were deadlocked on one
or more issues or simply having disagreements during their
discussions, which he indicated was normal. However, on being sent
back into the jury room, the jury continued deliberating without
sending out a clarification. Instead, after lunch they sent out a note
indicating that they had reached agreement “on four counts” but
were “still deliberating on one count.”
At this point, defense counsel asked the judge to voir dire Juror
Number One as to “why she feels she cannot serenely deliberate.”
In response, the judge asked Juror Number One (the foreperson) if
she “can . . . continue to deliberate.” She responded “[t]o be honest,
no.” She indicated that the subsequent note concerning the jury
continuing to deliberate on the one remaining count was “what the
majority wanted to do.” At that point, the judge gave an instruction
to the entire jury that all twelve jurors must deliberate but that if they
had reached a point where they could not reach agreement, they
must advise the court that “the jury is not going to reach an
agreement.” Three minutes later, the jury sent out a note that “all
12 jurors feel that they can continue to deliberate.”
At that point, defense counsel moved for a mistrial on all counts
based on possible coercion of Juror Number One. The judge denied
the mistrial motion. However, he recalled Juror Number One to the
courtroom and asked her if, when she wrote her note about “serenely
deliberating,” the jury had already “decided the four counts”
referenced in their previous note. She said “yes.” The judge sent her
back to the jury room, and shortly thereafter, the jury indicated that
they had reached a verdict.
State v. Camel, Indictment No. 07-08-2800, 2012 WL 996606, *1-5 (N.J. Super. Ct. App. Div.
Mar. 27, 2012).
Following the jury trial, Petitioner was convicted of aggravated manslaughter in violation
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of N.J.S.A. § 2C:11-4a(1); two counts of aggravated assault, in violation of N.J.S.A. § 2C:5–1 and
2C:12-1b(2); unlawful possession of an assault firearm, in violation of N.J.S.A. § 2C:39-5f;
possession of a weapon for an unlawful purpose, in violation of N.J.S.A. § 2C:39-4; and certain
persons not to have weapons, in violation of N.J.S.A. § 2C:39-7b. See Camel, 2012 WL 996606,
at *1. Petitioner was sentenced to an aggregate sentence of fifty years subject to the New Early
Release Act. Id. The Appellate Division affirmed Petitioner’s conviction but remanded for the
limited purpose of reconsidering and explaining the consecutive sentences and for clarification of
the Judgment of Conviction (“JOC”).
Id. at *8.
The New Jersey Supreme Court denied
certification on October 25, 2012. State v. Camel, 54 A.3d 811 (N.J. 2012).
Petitioner subsequently filed a petition for post-conviction relief (“PCR”), which the court
denied on October 31, 2014, after convening an evidentiary hearing. (D.E. No. 17-16.) On
September 29, 2016, the Appellate Division affirmed the PCR Court’s decision. State v. Camel,
Indictment No. A-2776-14T2, 2016 WL 5417412 (N.J. Super. Ct. App. Div. Sept. 29, 2016). On
February 1, 2017, the New Jersey Supreme Court denied Petitioner’s petition for certification.
State v. Camel, 159 A.3d 886 (N.J. 2017).
Petitioner filed the instant petition for habeas relief under § 2254 on July 19, 2017. (D.E.
No. 1.) Respondents filed their Answer on January 22, 2018. (D.E. No. 17.) Petitioner filed a
reply on April 19, 2018. (D.E. No. 24.) The matter is fully briefed and ready for disposition.
Petitioner raises the following claims in his federal habeas petition:
1. The trial court erroneously replaced a juror after deliberations began and the trial
court erroneously denied a defense motion for a mistrial when a juror notified the
court that she could not deliberate. (D.E. No. 1 at 6.)
2. The trial court erroneously admitted hearsay testimony by allowing the testifying
medical examiner to read from an autopsy report created by another medical
examiner. (Id. at 9.)
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3. The trial court erroneously failed to provide a manslaughter jury charge as a lesser
included offense of aggravated manslaughter. (Id. at 10.)
4. “The trial court deprived defendant of his constitutional right to a meaningful
opportunity to present a complete defense.” (Id. at 11.)
5. The trial court erroneously failed to conduct a pre-trial identification hearing. (Id.
6. The trial court erroneously permitted a state witness to testify in prison garb and
arm and leg restraints. (Id. at 14.)
7. Petitioner was denied his right to effective assistance of counsel. (Id. at 15.)
8. Petitioner was denied his right to effective assistance of counsel as a result of
counsel’s failure to call Lakeesha Kelly as an alibi witness. (Id. at 17.)
STANDARD OF REVIEW
Section 2254(a) permits a court to entertain 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. § 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, 28 U.S.C. § 2254 (“AEDPA”), 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) provides in pertinent part as follows:
(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.
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28 U.S.C. § 2254(d).
Where a state court has adjudicated a petitioner’s federal claim on the merits, 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
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)). AEDPA deference applies
even when there has been a summary denial. Cullen v. Pinholster, 563 U.S. 170, 187 (2011)
“[C]learly established law for purposes of § 2254(d)(1) includes only the holdings, as
opposed to the dicta, of [the Supreme Court’s] decisions,” as of the time of the relevant state-court
decision. White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (quoting Williams v. Taylor, 529 U.S.
362, 412 (2000))). A federal court “may grant the writ if the state court arrives at a conclusion
opposite to that reached by this [Supreme] Court on a question of law or if the state court decides
a case differently than this [Supreme] Court has on a set of materially indistinguishable facts.”
Williams, 529 U.S. at 412-413 (internal quotation marks omitted). In addition, a federal court must
confine its examination to evidence in the record. Cullen, 563 U.S. at 180-81.
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 AEDPA apply. First, 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.” 28 U.S.C. § 2254(e)(1); see Miller-El v. Dretke, 545 U.S. 231,
240 (2005). Second, AEDPA precludes habeas relief unless the adjudication of the claim “resulted
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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).
Moreover, a federal court may not grant a writ of habeas corpus under § 2254 unless the
petitioner has “exhausted the remedies available in the court of the State.”
2254(b)(1)(A). To do so, a petitioner must “fairly present all federal claims to the highest state
court before bringing them in a federal court.” Leyva v. Williams, 504 F.3d 357, 365 (3d. Cir.
2007) (citing Stevens v. Delaware Corr. Ctr., 295 F.3d 361, 369 (3d Cir. 2002)). This requirement
ensures that state courts “have ‘an initial opportunity to pass upon and correct alleged violations
of prisoners’ federal rights.’” Id. (citing United States v. Bendolph, 409 F.3d 155, 173 (3d Cir.
2005) (quoting Duckworth v. Serrano, 454 U.S. 1, 3 (1981)).
In addition, a federal court may not grant habeas relief if the state court’s decision rests on
a violation of a state procedural rule. Johnson v. Pinchak, 392 F.3d 551, 556 (3d. Cir. 2004). This
procedural bar applies only when the state rule is “independent of the federal question [presented]
and adequate to support the judgment.” Leyva, 504 F.3d at 365-66 (citing Nara v. Frank, 488 F.3d
187, 196, 199 (3d Cir. 2007); see also Gray v. Netherland, 518 U.S. 152 (1996); Coleman v.
Thompson, 501 U.S. 722 (1991)). If a federal court determines that a claim has been defaulted, it
may excuse the default only upon a showing of “cause and prejudice” or a “fundamental
miscarriage of justice.” Leyva, 504 F.3d at 366 (citing Lines v. Larkins, 208 F.3d 153, 166 (3d
To the extent that a petitioner’s constitutional claims are unexhausted and/or procedurally
defaulted, a court can nevertheless deny them on the merits under 28 U.S.C. § 2254(b)(2). See
Taylor v. Horn, 504 F.3d 416, 427 (3d Cir. 2007); Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir.
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The instant Petition raises eight grounds for relief, which are reviewed in turn.
Trial Court Errors
1. Trial Court’s Erroneous Handling of Juror Issues
In ground one of his federal habeas petition, Petitioner asserts that the trial court
erroneously replaced a juror after deliberations began and the trial court erroneously denied a
defense motion for a mistrial when a juror notified the court that she could not deliberate. (D.E.
No. 1 at 6.) Turning to the first argument, Petitioner asserts that the trial court erroneously
permitted a juror to be substituted with an alternate juror after deliberations began. The state
responds that Petitioner has not raised a valid constitutional claim and the state court’s decision
was consistent with state and federal court of appeals’ precedent. (D.E. No. 17 at 16-17, 21-24.)
Petitioner initially raised the instant claim on direct appeal. See Camel, 2012 WL 996606
at *1. On habeas review, the district court must review the last reasoned state court decision on
each claim, Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991), which is the Appellate Division’s
opinion on direct appeal. The Appellate Division denied the claim as follows:
On this record, we find no error in the judge releasing Juror Number
Three. Rule 1:8–2(d)(1) permits the substitution of an alternate juror
during deliberations if a juror becomes ill or otherwise unable to
continue serving. “The Rule attempts to strike a balance between the
need for judicial economy, especially in the context of lengthy trials,
and the fundamental right of defendants to a fair trial by jury.”
Valenzuela, supra, 136 N.J. at 467. However, in order to avoid
interfering in the jury's deliberative process and impairing a
defendant's right to a trial by jury, the reasons for excusing a juror
must relate to the juror's “personal situation” and “not to his
interaction with the other jurors or with the case itself.” Id. at 468.
A juror's personal situation may include financial hardship.
Williams, supra, 171 N.J. at 156.
“If a court suspects that the problems with the juror are due to
interactions with other jurors, the court should instruct the jury to
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resume deliberations. If the jury remains unable to return a verdict,
the court should determine whether further deliberation would allow
the jury to reach a verdict. If the jury indicates intractable deadlock,
the court should declare a mistrial.” Valenzuela, supra, 136 N.J. at
On the other hand, if a juror's personal situation appears to justify
dismissal, the court must still consider whether the jury has
progressed so far in its deliberations that it is not realistic to expect
that the jury will be able to start its deliberations anew with the
Thus, where the deliberative process has progressed
for such a length of time or to such a degree that it is
strongly inferable that the jury has made actual factfindings or reached determinations of guilt or
innocence, the new juror is likely to be confronted
with closed or closing minds. In such a situation, it is
unlikely that the new juror will have a fair
opportunity to express his or her views and to
persuade others. Similarly, the new juror may not
have a realistic opportunity to understand and share
completely in the deliberations that brought the other
jurors to particular determinations, and may be
forced to accept findings of fact upon which he or she
has not fully deliberated.
[State v. Corsaro, 107 N.J. 339, 352 (1987).]
In that regard, it is important to consider not only the length of time
the jury had been deliberating, but whether the jury appeared to
already have made decisions on one or more counts, whether the
trial court provided a thorough charge on the jury's obligation to
begin its deliberations anew, and how long the jury took to render a
verdict after the substitution. State v. Williams, 377 N.J.Super. 130,
149 (App.Div.), certif. denied, 185 N.J. 297 (2005). “No bright line
rule in respect of the length of jury deliberations triggers a finding
that deliberations have progressed too far to permit the substitution
of an alternate.” Williams, supra, 171 N.J. at 169. And, we owe
deference to the trial judge's evaluation of a juror's situation. Id. at
Applying these standards, we find no basis to second-guess the trial
judge's exercise of discretion in excusing Juror Number Three. The
juror's situation was clearly personal to him and was completely
unrelated to the jury's deliberations. The possibility that he would be
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unable to graduate from high school due to excessive absences was
a hardship that justified excusing this juror. Further, although the
jury had deliberated for several days, the record strongly suggests
that it had not made any decisions on the verdict. The trial judge
thoroughly instructed the jury on its obligation to begin its
deliberations from the beginning. Thereafter, the newly-constituted
jury requested some additional instructions on the law and
deliberated for at least an additional day before advising the judge
that they had reached a partial verdict. Under these circumstances,
the trial judge did not abuse his discretion in excusing the juror or in
declining to declare a mistrial.
Camel, 2012 WL 996606 at *4-6.
At trial, once deliberations were under way Juror Number Three provided the court with a
letter from his high school assistant principal indicating that he was in jeopardy of not graduating
because of his several absences. (D.E. No. 18-14 at 5.) The trial judge then contacted the high
school as well as Juror Number Three’s mother for additional information.
(Id. at 8-9.)
Subsequently, Petitioner’s trial counsel moved for a mistrial, and the following colloquy occurred:
MR. KINSALE: Judge, I’m concerned about the length of
deliberations, the amount of time we have invested in deliberations
at this point, and the extent to which I would suggest to the Court
that deliberations have gone too far now for us to even substitute
somebody else in, and our only remedy may be a mistrial at this
THE COURT: And what would be the theory for a mistrial? You
have given me no basis. I have received no letter or position from
the jury that they are deadlocked, that they are tired, that they don’t
want to retire to deliberate. They haven’t said anything. They don’t
even know the issue going on with juror number three. They have
said nothing about not wanting to continue.
MR. KINSALE: But the suggestion is we may have a juror
deliberating who was unable to deliberate.
THE COURT: I don’t know whether he is or isn’t. That’s not a
determination I can make. I’m only bringing to you, first of all, the
letter that came to me by way of a letter.
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If you want juror number three to remain in there, that’s something
that you could indicate. I think that under State versus Valenzuela
that this particular juror has a personal issue which is exclusive of
deliberation and exclusive of any malice going on in the deliberation
I find that his personal issue and his handicap is one that should
excuse him, but I find also troubling that he may jeopardize
graduating from school, which is less of an issue to me than the issue
that he suffers from his special needs, but if you believe that based
on his special needs, he is a juror who can continue to deliberate,
than we can always talk about the sub-issue of his being in danger
There’s nothing before me right now in excusing juror number three
that has to do with how the jury is deliberating.
I have no idea where they are in their deliberations, and there’s
nothing to indicate that juror number three is a problem in the
deliberations. They seem to be getting along very well for the period
of time that they have been deliberating. There’s been no letters to
come out to say we are fighting. They are asking for work to
understand their case and they are deliberating.
MR. KINSALE: Your Honor, I’m going to ask that the jury be
permitted to continue deliberating without any interference from the
THE COURT: All right. Mr. Dirkin?
MR. DIRKIN: Your Honor, it’s clear that the issue with this juror
is personal and not something that has happened in the jury room.
It’s clear that even if we just take the graduation aspect of it, I
believe it’s State v. Williams indicates that a financial hardship is
sufficient reason to dismiss a deliberating jury.
Certainly this man’s future and his ability to graduate from high
school would fall into that category. That’s before even getting to
the illness that he apparently suffers from that would, I think, qualify
as a juror who is ill and unable to continue deliberating.
Your Honor, for these reasons, I think, at this point, it’s appropriate
to place an alternate in the place of juror number three.
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I also submit that identity is a main component of this case and the
jury, just on Friday, it received a lengthy amount of read back on
identity. So it’s clear that the jury has not gone so far in the
deliberations that the substitution of an alternate juror would impact
this jury in any way.
So I would ask the Court to substitute in an alternate for juror
number three at this time.
THE COURT: All right. Can you give me a copy of State versus
MR. DIRKIN: If you give me a moment, your Honor.
THE COURT: Since you didn’t give me the citation.
MR. DIRKIN: 171 N.J. 151.
THE COURT: Why don’t you get the Court a copy and then I will
look at that.
MR. DIRKIN: I’ll do that right now.
THE COURT: Thank you. All right. Continuing on the record.
MR. KINSALE: Your honor, as to the graduation issue, I’m not
sure if that’s something we should be concerned about.
I think, given his circumstance, whatever it may be, and I would
suggest as vague as it is coming to us, if the school is trying to help
this guy out, juror number three out, they can make whatever
accommodations they can do to manipulate his scheduled agenda to
make graduation a reality for him; extra credit, extracurricular work.
I don’t think that falls in the hardship of State versus Williams, or
the case that the prosecutor speaks of. The illness, which I think is a
primary issue secondarily to the graduation issue, apparently
whatever issue he has, it’s controlled by medication. He is
medicated and, apparently for all intents and purposes, functional, I
THE COURT: So, if I understand, Mr. Kinsale, the fact that the
assistant principal indicates that he is in jeopardy of graduating and
he has missed eight days and should be dismissed immediately, you
don’t consider that a personal reason to excuse the juror?
Case 2:17-cv-05298-JMV Document 25 Filed 10/13/20 Page 15 of 52 PageID: 1343
MR. KINSALE: No, your Honor.
THE COURT: The juror brought the letter in, by the way. Just so
that the record is clear, it wasn’t sent to me by the school, it was
brought by the juror.
MR. KINSALE: I mean, my feeling is there are other measures the
school should take. I don’t think that that’s something they should
put on us, that if we keep him on jury duty, he doesn’t graduate.
He has been here for the last three weeks. We let him go back now
and now he’s able to matriculate. I don’t think it’s that simplistic.
You know, I don’t think we resolve that graduation issue by
releasing him from your duty. I think that’s a red herring.
THE COURT: A red herring?
MR. KINSALE: I think – I don’t think us keeping him here denies
this kid from graduating. If they want to recognize he is a special
needs kid, there are things I’m sure they can do to accommodate his
As we have indicated, there’s nothing to indicate that he is not able
to perform his civic duty as a juror, notwithstanding whatever
illness, as the prosecutor characterized it, whatever his mental
THE COURT: Yeah, I’m saying I don’t see anything in here that
would indicate his inability to continue, other than for a personal
reason. This is exclusively personal.
This is not an excusal because he’s at odds with anyone. It’s a
request to excuse him because he is a high school student who has
lost a number of days in class and in danger of graduating. He’s a
high school student. He’s not a college student.
He is a person who is in high school who happens to be of the age
that he could be on jury duty, 18 or older, but he is in jeopardy of
Whether they could provide measures to
accommodate him is something that I guess they will have to
determine if he is not excused, I could agree with that.
But the issue is, is this a personal reason to excuse the juror, and
strictly a personal reason. I don’t think that there’s anything before
me that would indicate that there’s any reason to excuse this juror,
other than personal. In other words, there’s nothing before me that
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says this juror is – he could be leading the deliberations for all I
There’s nothing to indicate that the deliberation process is a reason
to excuse him. It’s simply a personal reason that jeopardizes
something in his personal life, compounded by the fact that he has –
I indicated he has two issues before me; his special needs, and the
fact that he may not graduate based being on jury duty.
THE COURT: All right. I have considered the arguments of both
sides. I have considered the case that the State has provided, State
versus Williams, 171 N.J. 151. I have also considered the case of
State versus Valenzuela at 136 N.J. 458. I have reviewed the letter
which is submitted by the school, which will be marked as an
exhibit, and based on what I have seen in the case, I am satisfied that
the juror in this case, juror number three, needs to be excused.
I don’t believe it’s to the advantage of the defense or to the State to
excuse him at this point. I don’t believe it’s to the disadvantage of
the State or defense to excuse him.
I find that he has a valid personal reason which would jeopardize
something very dear to his life-long career, and that’s graduating
from high school.
The juror has sat on these deliberations for a period of time which
far exceeds what anyone expected him to do, but that’s not unusual.
It’s something that occurs. But to continue the juror on this jury and
jeopardize his ability to graduate does not make sense to this Court
if we have alternates to impose.
I also do not want to get to a point where the jury may get to a point
of fighting and then excuse a juror for a personal reason.
In other words, I know that come Thursday, that juror number three
has a standardized test and he can’t be here on Thursday. And I
don’t know how long this jury would deliberate, but I don’t want to
get to a point where there is a fight amongst jurors and then it
appears that juror number three is only being excused because there
is a conflict now and he has a personal reason. I could not excuse
him at that point for that.
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We don’t have that at this point in the case. There’s no conflict
among any of the jurors, none whatsoever, and I find this to be a
valid personal reason to excuse the juror.
I don’t even have to address this issue of his special needs. We
would attempt to accommodate a special needs person in accordance
with the Americans with Disabilities Act if we are given the
information to accommodate them.
We weren’t given the information, so there’s no accommodations
we really could make for the juror; but, again, I don’t have to reach
that point, in that failing to graduate, after being on the deliberating
jury and deliberating faithfully and in good faith, is enough reason
to excuse him.
So juror number three will be excused. We will select the alternate.
Mr. Samsudeen will place both names in a spindle. We will use the
same process we used to select the original jurors.
MR. KINSALE: Note my objection, your Honor.
THE CLERK: [J.M.], juror number four.
THE COURT: All right. [J.M.] will be inserted into the jury.
THE COURT: Ladies and gentlemen, juror number three has been
excused. An alternate juror has been selected to take his place.
Ladies and gentlemen, at this moment, you are a new jury. That
means you are to start your deliberations all over again. The State
and the defendant have a right to a verdict which is reached by 12
jurors who have had the full opportunity to participate in
deliberations from start to finish.
The alternate juror will enter the juror room with no knowledge of
any deliberations that may have already taken place.
The remaining jurors and the alternate juror must begin at the very
beginning of the deliberation process, just as if you are entering the
jury room for the first time after listening to my charges.
The initially selected jurors must disregard whatever may have
occurred and anything which may have been said in the jury room
since you entered the jury room after listening to my initial charges.
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In beginning your deliberations again, you are to give no weight to
any opinion which juror number three may have previously
expressed in the jury before he was excused. You must eliminate
any impact that juror number three may have had on your
Together as a new jury you shall consider the evidence all over again
as you conduct full and complete deliberations until you have
reached a unanimous verdict.
Again, ladies and gentlemen, you are a new jury. You are to start
anew. The instructions that I just provided to you, if you have any
questions concerning them, I will provide them again.
(D.E. No. 18-14 at 13-20, 24-26, 28-29.)
“[T]he Due Process Clause guarantees the fundamental elements of fairness in a criminal
trial.” Riggins v. Nevada, 504 U.S. 127, 149 (1992). In the field of criminal law, “the category of
infractions that violate ‘fundamental fairness’ [is defined] very narrowly based on the recognition
that, beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has
limited operation.” Medina v. California, 505 U.S. 437, 443 (1992). In order to satisfy due
process, Petitioner’s trial must have been fair, but it need not have been perfect. United States v.
Hasting, 461 U.S. 499, 508-09 (1983) (“T]here can be no such thing as an error-free, perfect trial,
and  the Constitution does not guarantee such a trial.”).
The state court’s decision was not an unreasonable application of clearly established
federal law. Here, Petitioner has not raised a valid constitutional violation. While the Supreme
Court has not addressed a claim of this nature, the United States Court of Appeals for the Third
Circuit has ruled that a trial court’s decision to substitute a juror once deliberations were under
way, was not a violation of the Petitioner’s Sixth or Fourteenth Amendment constitutional rights.
See Claudio v. Snyder, 68 F.3d 1573, 1576-77 (3d Cir. 1995). Petitioner has not established how
Case 2:17-cv-05298-JMV Document 25 Filed 10/13/20 Page 19 of 52 PageID: 1347
he suffered prejudice by the trial court’s substituting Juror Number Three, and within this context
violated his right to a fair trial. The trial judge clearly made all efforts to verify the issue of juror
number three’s personal conflict. The trial judge subsequently assigned an alternate juror and
instructed the jury to begin deliberations anew. Therefore, this claim is denied.
Petitioner also claims that the trial court erroneously denied a defense motion for a mistrial
despite Juror Number One expressing concerns about her ability to deliberate. (D.E. No. 1 at 6.)
Petitioner argues that the juror’s “deliberations appeared not to be an exercise of her free and
untrammeled will.” (Id.) To the extent that Petitioner is arguing that the trial court violated his
Sixth and Fourteenth Amendment rights to a trial by an impartial jury, the record belies this claim.
Respondents submit that not only has Petitioner not raised a constitutional claim, but also that the
state court properly applied state law principles on how a trial court should proceed under the
circumstances. (D.E. No. 17 at 26-28.)
Petitioner initially raised the instant claim on direct appeal. The Appellate Division
denied the claim as follows:
We likewise find no abuse of discretion in the judge's denial of a
mistrial when Juror Number One initially indicated that she could
not deliberate “serenely.” She did not indicate that she felt coerced
by her fellow jurors. After questioning her and simply being told
that she could not continue to deliberate, the judge followed
precisely the procedure set forth in Valenzuela. He instructed the
jury as a whole to resume deliberations and advise him, as a group,
if they could not reach a verdict because they were deadlocked.
Valenzuela, supra, 136 N.J. at 473. Shortly thereafter, the jury sent
out a note that they were not deadlocked.
After defense counsel requested a mistrial on all counts, the judge
re-interviewed Juror Number One and ascertained that her note
about serenely deliberating related only to the one count on which
the jury had not yet reached a verdict. The judge in no way suggested
that this juror should change her views on that count nor did any of
his instructions pressure the jury as a whole to reach a verdict. We
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find no abuse of the judge's discretion in denying the mistrial motion
and in allowing the jury to continue its deliberations.
Camel, 2012 WL 996606 at *6.
Here, the record reflects that once juror one sent her initial note, the trial court further
inquired of the jury’s ability to deliberate. The trial court’s inquiry was as follows:
THE COURT: I have a question: Juror number “ - - and it lists the
number, which I will not reveal - - doesn’t feel that - - has gender,
I will not reveal - - can continue, I believe this is “to serenely
deliberate” and would like to communicate with the Court about
Ladies and gentlemen, what I need you to do is to send me another
letter or note and indicate your concern. In other words, if you are
deliberating and you are at odds or disagreement, that’s part of
If you are at a point where you cannot reach an agreement, then I
need you to tell me that you are deadlocked on that issue. In other
words, you have a verdict sheet and it has a number of counts. I
need to understand this.
Please send me a note. If what you are saying to me is that you are
not going to reach an agreement on a subject matter, tell me that.
We are not—I do not believe the jury will be able to reach an
agreement on, for example, count one or count two or all the counts.
If you have already decided some issues, you should say that as well
without revealing the verdict.
In other words, if you have decided an issue, say: Issue one, we
have resolved issue one. We are unable to resolve issue two. That’s
another way you can write it. This way I will have an idea of what
it is you are saying to me.
All right. So I don’t want you to tell me any verdicts in the note. I
simply need you to tell me whether you have reached any
agreements on any subject matter; and if you have not reached an
agreement on any subject matter, say that. We have not reached an
agreement on any subject matter and I don’t believe we will.
All right. Then I will address you at that point. Alright. Thank you.
Case 2:17-cv-05298-JMV Document 25 Filed 10/13/20 Page 21 of 52 PageID: 1349
(D.E. No. 18-16 at 4-5.)
The jury responded that it could deliberate and subsequently provided a note indicating
they had reached a verdict on four counts and were still deliberating on count one. (Id. at 28.)
After defense counsel moved for a mistrial, the trial court recalled Juror Number One for further
inquiry. The following colloquy then occurred:
THE COURT: I need a clarification. We are on the record, outside
the presence of all jurors except juror number one.
When you sent me the first note concerning serenely deliberating
and then I sent you back in, a note was sent out that the jury had an
agreement on four counts, but still deliberating on one count.
Without telling me what’s been decided, when you wrote the first
note, had the jury decided the four counts?
THE JUROR: Yes.
THE COURT: So your note only concerned the one count that was
THE JUROR: Correct.
THE COURT: All right. Thank you, ma’am. You can return.
(Whereupon, the juror is excused from the courtroom.)
THE COURT: All right. Continuing on the record outside the
presence of the jury.
I requested that clarification because as I said to Mr. Kinsale, I don’t
believe that any request for a mistrial would have applied to
something that had already been decided, but rather than speculate
what they did, I asked the juror what her concerns were to and that
would have been with respect to count one.
Notwithstanding her answers, I’m still denying your request for a
mistrial as it relates to count one, but I don’t know what authority
the defense would have to make a request for a mistrial on all counts
given what I thought, the questions was one count of the indictment.
Case 2:17-cv-05298-JMV Document 25 Filed 10/13/20 Page 22 of 52 PageID: 1350
(D.E. No. 18-16 at 33-34.)
In light of Juror Number One’s representation to the trial court, Petitioner’s argument that
her “subsequent deliberations” were not an exercise of her free will, fails. Petitioner has not
provided any facts or arguments as to why the juror’s deliberation was against her free will. The
record indicates that the trial court solely inquired about whether the jury could deliberate in light
of Juror Number One’s note, and nothing more. Even if this Court were to construe Petitioner’s
argument to mean that the juror was coerced by the trial court to continue deliberating, Petitioner’s
claim would be purely speculative. There is little constitutional precedent governing claims of this
nature, but Petitioner’s claim may fall under the limited ambit of precedent addressing jury
coercion. “Defendants have a right against coerced jury verdicts, and any potential coercion should
be measured based on the totality of the circumstances.” Clements v. Clarke, 592 F.3d 45, 58 (1st
Cir. 2010) (citing Lowenfield v. Phelps, 484 U.S. 231 (1988)). Here, the trial judge’s inquiry into
whether the jury could continue to deliberate in light of Juror Number One’s statement cannot
reasonably be construed as unconstitutional coercion. See id. at 52 (holding that trial judge’s
instruction for the jury to continue deliberating after conducting individual voir dire of the jurors
to determine whether one juror made a biased comment, was not improper). Consequently, the
state court’s decision was not an unreasonable application of the facts nor was it contrary to clearly
established federal law. Accordingly, this claim is denied.
2. Trial Court’s Erroneous Admission of Hearsay Testimony
Petitioner next submits that the trial court erroneously admitted Dr. Lila Perez’s hearsay
testimony in violation of the Sixth Amendment’s Confrontation Clause. (D.E. No. 1 at 9.)
Respondents contend that Petitioner waived this claim because he did not object to it at trial and
that the claim also fails on the merits. (D.E. No. 17 at 29-38.)
Case 2:17-cv-05298-JMV Document 25 Filed 10/13/20 Page 23 of 52 PageID: 1351
The Appellate Division denied the claim as follows:
We turn next to defendant's contention that Dr. Perez's testimony
included inadmissible hearsay and violated his rights under the
Confrontation Clause. Given the Supreme Court's previous
decisions, we consider it likely that the Court would deem an
autopsy report prepared by a state medical examiner's office to be
testimonial hearsay. See Bullcoming v. New Mexico, 564 U.S. 2705,
––––, 131 S.Ct. 2705, 2716–17, 180 L. Ed.2d 610, 622–23 (2011);
Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527,
2532–38, 174 L. Ed.2d 314, 321–28 (2009) (discussing testimonial
hearsay, and the legal status of “coroner's reports”). However, we
decline to definitively address the issue here, because defendant did
not raise the issue at trial, thereby waiving the issue for purposes of
appeal absent plain error. R. 2:10–2; see Melendez–Diaz, supra, 129
S.Ct. at 2534 n. 3, 174 L. Ed.2d at 323 (noting that confrontation
rights may be waived “by failure to object to the offending
evidence”). We find no plain error. See State v. Macon, 57 N.J. 325,
Defense counsel did not even cross-examine Dr. Perez, and with
good reason. There was no genuine issue at this trial about the cause
of Mumford's death. The police found his bullet-riddled body lying
in the courtyard, soon after the shooting incident that was described
by eyewitnesses Oaks and Fisher. No one, including the defense,
argued that his death was not a homicide. The issue in the case was
the identity of the killer. To the extent that the prosecution argued,
based on a couple of sentences of Dr. Perez's testimony, that the
autopsy proved an intentional murder, that argument failed; the jury
acquitted defendant of murder. Therefore, if Dr. Perez testified to
Dr. Mambo's observations about the trajectory of the bullet that
entered Mumford's back, any error was harmless. Macon, supra, 57
N.J. at 336.
We add one final observation. In failing to raise a hearsay objection
to Dr. Perez's testimony, defendant deprived the State of the
opportunity to explain Dr. Mambo's absence from the trial and the
opportunity to call him as a witness if he was available. The defense
also deprived the prosecution of the opportunity to elicit more
specific testimony from Dr. Perez to make clear whether her
opinions were based on Dr. Mambo's report or whether she had
reached, or could reach, her own independent expert opinions based
on the autopsy photos and X-rays or other sources besides Mambo's
report. See State v. Rehmann, 419 N.J.Super. 451, 457 (App
.Div.2011). In the context of this case, the interests of justice do not
require that we further address defendant's arguments, raised for the
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first time on appeal, concerning the admissibility of Dr. Perez's
Camel, 2012 WL 996606 at *7.
The Sixth Amendment’s Confrontation Clause, which is binding on the States through the
Fourteenth Amendment, provides: “In all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him.” U.S. CONST. AM. VI. The standard for
determining a Confrontation Clause violation was outlined in the United States Supreme Court’s
opinion in Crawford v. Washington, 541 U.S. 36 (2004). In Crawford, the Supreme Court held
that the prosecution could not use the police statement of a wife against her defendant husband at
trial, where the wife was unavailable as a witness due to the spousal privilege. Id. at 68-69. “[T]he
main and essential purpose of confrontation is to secure for the opponent the opportunity of crossexamination.’” Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986) (internal citations and
quotation marks omitted). In Crawford, the Supreme Court held that the Sixth Amendment’s
Confrontation Clause bars “admission of testimonial statements of a witness who did not appear
at trial unless he was unavailable to testify, and the defendant has had a prior opportunity for crossexamination.” 541 U.S. at 53-54. “[A] criminal defendant states a ... Confrontation Clause
[violation] by showing that he was prohibited from engaging in otherwise appropriate crossexamination designed to show a prototypical form of bias on the part of the witness [.]’” Van
Arsdall, 475 U.S. at 680 (quoting Davis v. Alaska, 415 U.S. 308, 318 (1974)). “Even after
Crawford, however, ‘[t]he [Confrontation] Clause ... does not bar the use of testimonial statements
for purposes other than establishing the truth of the matter asserted.’” Adamson v. Cathel, 633
F.3d 248, 256 (3d Cir. 2011).
As Respondents point out, while the Supreme Court has not addressed how an expert
witness’s testimony implicates the Confrontation Clause, this Court and others in this circuit have
Case 2:17-cv-05298-JMV Document 25 Filed 10/13/20 Page 25 of 52 PageID: 1353
denied similar challenges by criminal defendants. Indeed, “there is no “clearly established Federal
law” or “squarely established” rules concerning autopsy reports.” Johnston v. Mahally, 348 F.
Supp. 3d 417, 435 (E.D. Pa. 2018) (denying habeas relief to a petitioner who argued that a medical
examiner, who was not directly involved in performing certain autopsies, violated the
Confrontation Clause when he rendered expert testimony on the victims’ cause and manner of
death based on photographs of the corpses, toxicology reports, and the autopsy reports prepared
by his former colleagues).
Here, the record reflects that Dr. Perez, who was qualified as an expert without objection,
testified about the contents of the autopsy report of decedent, John Mumford. (D.E. No. 18-6 at
7.) The autopsy was conducted by Dr. Nobby Mambo. Dr. Perez testified that she reviewed the
autopsy report prepared by her former colleague, as well as the photographs and adopted Dr.
Mambo’s findings. (Id.) Petitioner’s trial counsel did not object to Dr. Perez’s testimony, nor did
he cross-examine her. (Id. at 12.) Petitioner has not demonstrated how the state court’s decision
was an unreasonable application of the facts or contrary to clearly established federal law.
Accordingly, this claim is denied.
3. Trial Court’s Failure to Give Manslaughter Jury Instruction was Error
Petitioner next submits that the trial court’s failure to sua sponte charge the jury on the law
of manslaughter was erroneous. (D.E. No. 1 at 10.) Respondents counter that the evidence at trial
did not support such an instruction particularly because “petitioner sprayed his victim with bullets
from a semi-automatic rifle.” (D.E. No. 17 at 38.) Respondents add that the state court’s ruling
was consistent with state and federal law that requires that jury instructions should be supported
by the evidence at trial. (Id. at 38-40.)
Case 2:17-cv-05298-JMV Document 25 Filed 10/13/20 Page 26 of 52 PageID: 1354
When denying this claim on Petitioner’s direct appeal, the Appellate Division ruled as
Defendants point III and IV are completely without merit and
warrant no discussion beyond the following comments. R. 2:113(e)(2). The judge was not required to sua sponte charge the jury on
reckless manslaughter, because the evidence would not support a
verdict on that charge. There was “no rational basis in the evidence”
to find that defendant was not guilty of aggravated manslaughter but
was guilty of reckless manslaughter. State v. Sloane, 111 N.J. 293,
299 (1988). We conclude that an assailant who sprays his victims
with gunfire from a semi-automatic rifle “is necessarily aware that
‘it is a practically certain’ this conduct will cause death or serious
bodily injury. N.J.S.A. 2C:2-2b(2).” State v. Mendez, 252 N.J.
Super. 155, 161 (App. Div. 1991), certif. denied, 127 N.J. 560
Camel, 2012 WL 996606 at *7.
State court evidence-related determinations are normally matters of state law and not
reviewable in federal habeas proceedings. See Engle v. Issac, 456 U.S. 107 (1982); Henderson v.
Kibbe, 431 U.S. 145 (1977); Zettlemoyer v. Fulcomer, 923 F.2d 284, 309 (3d Cir. 1991).
Moreover, Petitioner has not demonstrated how the state court’s determination was contrary to
clearly established federal law. “[D]ue process requires that a lesser included offense instruction
be given only when the evidence warrants such an instruction.” Hopper v. Evans, 456 U.S. 605,
As Petitioner acknowledges, the trial court granted his counsel’s request to instruct the jury
on aggravated manslaughter. (D.E. No. 18-6 at 18-19.) In fact, the Court notes that the trial judge
asked trial counsel to support his request for an aggravated manslaughter charge in light of the
evidence that was presented. However, Petitioner has not pointed out how the trial evidence
supported a sua sponte instruction for the lesser included offense of manslaughter. Consequently,
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the state court’s decision was not an unreasonable application of the facts nor was it contrary to
clearly established federal law. Accordingly, this claim is denied.
4. Trial Court’s Erroneously Limitation the Defense’s Opportunity to
Petitioner next submits that the trial court erroneously denied his counsel an opportunity to
effectively impeach state witness Dale Fisher about any leniency he may have received from the
prosecution in his own criminal prosecution as a result of his cooperation as well as any motive to
kill the decedent to eliminate competition in the drug business. (D.E. No. 1 at 11-12.) Respondents
answer that the state court rightly affirmed the trial court’s decision to prohibit any testimony about
the possibility of Fisher’s motive to kill the decedent. (D.E. No. 17 at 43-48.)
During cross-examination, Petitioner’s counsel asked Fisher about his arrest in September
2006, two months before the decedent’s murder. (D.E. No. 18-5 at 32.) The Appellate Division
denied this claim on Petitioner’s direct appeal as followsDefense counsel’s theory of third-party guilt- that Fisher and Oaks
killed Mumford to eliminate a competitor- was entirely speculative
and therefore inadmissible. See State v. Koedatich, 112 N.J. 225,
299-300 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L.
Ed. 2d 803 (1989). This far-fetched theory was based on conjecture
and, since all the shell casings found at the scene came from the
same gun, it would have required the jury to believe that Oaks and
Fisher shot themselves.
Camel, 2012 WL 996606 at *8.
“Generally speaking, the Confrontation Clause guarantees an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and to whatever
extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985). While the
Confrontation Clause guarantees a criminal defendant the right to confront witnesses on crossexamination, a trial court retains “wide latitude insofar as the Confrontation Clause is concerned
Case 2:17-cv-05298-JMV Document 25 Filed 10/13/20 Page 28 of 52 PageID: 1356
to impose reasonable limits on such cross-examination based on concerns about, among other
things harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is
repetitive or only marginally relevant.” Van Arsdall. 475 U.S. at 678-79.
Here the Appellate Division’s reasoning as to why the trial court did not err in limiting
counsel’s inquisition as to a possible motive for either Fisher or Oaks to kill the decedent does not
run afoul of Petitioner’s Sixth Amendment rights. As the Appellate Division noted, this theory
was “entirely speculative”; in other words, it was not supported by evidence. Further, as the
Appellate Division noted, all of the shell casings at the crime scene came from the same firearm,
therefore, the defense’s proffered theory would require a fact finder to believe that at least one of
the victims shot themselves. Consequently, the state court’s decision was not an unreasonable
application of the facts nor was it contrary to clearly established federal law. Accordingly, this
claim is denied.
Petitioner also appears to be challenging the trial court’s decision to prohibit crossexamination about Fisher’s May 2007 arrest and subsequent disposition of that case. Petitioner’s
counsel objected to the trial court’s ruling (D.E. No. 18-5 at 39), however, the issue was not
addressed by the Appellate Division. Nonetheless, this Court will review the claim de novo. See
Granberry v. Greer, 481 U.S. 129, 131, 135 (1987) (noting that the exhaustion requirement is not
a jurisdictional requirement to habeas corpus jurisdiction and that a district court may deny a claim
on its merits despite non-exhaustion “if it is perfectly clear that the applicant does not raise even a
colorable federal claim.”).
At the sidebar discussion, counsel argued that the arrest was relevant because the state did
not initiate probation violation proceedings despite the re-arrest constituting a violation. (D.E. No.
18-5 at 41.) Although the trial court did initially prohibit this line of questioning, it subsequently
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allowed Fisher to speak about his May 2007 arrest. Therefore, despite the trial judge’s initial
opposition to allowing the testimony in, the court eventually permitted Fisher to testify about the
May 2007 arrest. Petitioner has therefore not demonstrated a valid constitutional claim with
respect to this testimony. Consequently, Petitioner’s claim is denied.
5. Trial Court’s Error in Not Convening a Pre-Trial Identification Hearing
Petitioner next submits that the trial court erred in not convening a sua sponte pre-trial
identification hearing. (D.E. No. 1 at 13.) Petitioner argues that because state witness and shooting
victim, Sheldon Oaks, testified that he informed law enforcement shortly after the shooting that he
could not identify who shot him, but was coerced to sign a photograph of petitioner, the court
should have convened an identification hearing. (Id.) The Appellate Division denied this claim
on Petitioner’s direct appeal as follows: “We find no plain error in the trial court's failure sua
sponte to require a Wade hearing. The central issue in the trial was not whether the identification
procedures the police used were unduly suggestive but whether Oaks' and Fisher’s recantations
were credible.” Camel, 2012 WL 996606 at *8.
At Petitioner’s trial, Sheldon Oaks recanted the statement that he provided to the police
shortly after the shooting (D.E. No. 18-3 at 16-17, 24-25), denied identifying anyone’s photograph
in a photo array (Id. at 33-35), and denied the testimony he gave to the grand jury. (D.E. No. 183 at 38, 81.) Oaks subsequently testified that he was forced to select and sign his name next to
Petitioner’s photograph from the photo array. (Id. at 67.) As a result of Oaks’ recantation, the
jury was allowed to hear the recorded statement he gave to the police. 2 (Id. at 23.) Oaks then
testified that although he did identify Petitioner as the shooter when the police met with him shortly
The recorded statement was not transcribed and is not part of the record before this Court. The
record reflects that the jury had a transcribed version of the statement in addition to the audio
statement. (D.E. No. 18-3 at 22-23.)
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after the shooting, it was only because they offered him an attractive plea deal in his own pending
firearm possession case. (D.E. No. 18-3 at 58-59, 64-65, 78.)
During the trial, Detective Chirico of the Newark Police Department testified about
meeting with Oaks, who was then hospitalized, shortly after the shooting to obtain a suspect
identification. (D.E. No. 18-5 at 7-15.) Detective Chirico testified that he had no knowledge of
the particular facts of the case and that his sole role in the case was to show Oaks a photo array of
possible suspects. (Id. at 7-8.) Chirico indicated that he was alone with Oaks and that he was even
unaware whether a photograph of the actual suspect was included in the photo array he presented
to Oaks. (Id. at 8, 15.) Chirico stated that Oaks viewed a photo array containing six photographs
and identified Petitioner’s photograph as that of the person who shot him. (Id. at 11.)
described Oaks’ demeanor as calm and noted that Oaks did not indicate any uncertainty. (Id. at
A Wade hearing is a preliminary inquiry to determine the admissibility of an identification.
United States v. Wade, 388 U.S. 218, (1967). A pretrial identification procedure violates due
process when the identification is (1) unnecessarily suggestive and (2) creates a substantial risk of
misidentification. United States v. Burnett, 773 F.3d 122, 133 (3d Cir. 2014) (citations omitted).
“An impermissibly suggestive identification procedure can occur in four settings: a show-up, a
photo array, a line-up and in court.” United States v. Brownlee, 454 F.3d 131, 137 (3d Cir. 2006).
Here, the record reflects that Oaks’ trial testimony was contradictory. He vacillated
between admitting that the handwriting (including the signature) on the photo array was his. He
reluctantly admitted that he did provide a statement, along with grand jury testimony, that
inculpated the Petitioner but attempted to justify his prior statements by making allegations of
coercion by law enforcement. Oaks was impeached by his own prior statements indicating that he
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was aware and could identify the person who shot him and his two friends. Therefore, despite his
reluctance to stand by his earlier statements once he was called to testify against Petitioner at trial,
the state court considered the matter to be an issue of Oaks’ credibility rather than the
constitutionality of the out-of-court identification process. In light of the record before this Court,
the state court’s decision was not an unreasonable application of the facts nor was it contrary to
clearly established federal law. Accordingly, this claim is denied.
6. Trial Court’s Erroneously Permitting Sheldon Oaks to Testify in Prison
Garb, Handcuffs, and Leg Restraints
Petitioner next submits that that the trial court should not have permitted Oaks to testify
while wearing prison-issued attire and arm and leg restraints. (D.E. No. 1 at 14.) Petitioner argues
that the prosecutor used Oaks’ attire to undermine his credibility by arguing in his summation:
“you saw something about Sheldon Oaks’ demeanor.” (Id.) He further argues that the trial court
should have held “(1) a hearing to determine whether the restraints were necessary for courtroom
security; or (2) the issuance of a limiting instruction advising the jury that the prison garbs and
handcuffs had no bearing on the witness’ credibility or the determination of the petitioner’s guilt.”
The Appellate Division denied the following claim on Petitioner’s direct appeal as follows:
Nor, in the context of this trial, was it plain error to permit Oaks to
testify in prison garb. In fact, in cross-examining Oaks and in his
summation, defense counsel made strategic use of Oaks' status, as a
convicted criminal allegedly offered leniency, to impeach the
credibility of his prior statements identifying defendant as the
Camel, 2012 WL 996606 at *8.
There is no Supreme Court precedent that supports Petitioner’s claim. The Supreme Court
has addressed a defendant’s prison–issued attire and visible restraints during trial. See Estelle v.
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Williams, 425 U.S. 501 (1976); see also Deck v. Missouri, 544 U.S. 622 (2005). However, this
right has never extended to prosecution or defense witnesses. See Thompson v. Warren, No. 11–
7164, 2014 WL 3778738 at *5 (D.N.J. July 31, 2014) (“[N]o extension of the Estelle v. Williams
holding to witnesses could be warranted, since the principal interest protected by the Due Process
Clause is the presumption of innocence accorded to criminal defendants: a concern wholly
inapplicable to even defense witnesses.”) (citations omitted)). Petitioner has not demonstrated that
his rights were violated by the witness’s appearance. In light of the record before this Court, the
state court’s decision was not an unreasonable determination nor was it contrary to clearly
established federal law.
Ineffective Assistance of Counsel Claims
The Court turns to Petitioner’s ineffective assistance of counsel claims. Petitioner was
represented at trial by Sterling Kinsale, Esq.
The Supreme Court set forth the standard by which courts must evaluate claims of
ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). First, the
defendant must show that counsel’s performance was deficient. This requirement involves
demonstrating that counsel made errors so serious that he was not functioning as the “counsel”
guaranteed by the Sixth Amendment. Id. at 687. Second, the defendant must show that he was
prejudiced by the deficient performance. Id. This requires showing that counsel’s errors deprived
the defendant of a fair trial. Id. “With respect to the sequence of the two prongs, the Strickland
Court held that ‘a court need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which
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we expect will often be so, that course should be followed.’” Rainey v. Varner, 603 F.3d 189, 201
(3d. Cir. 2010) (quoting Strickland, 466 U.S. at 697)).
Counsel’s performance is deficient if his representation falls “below an objective standard
of reasonableness” or outside of the “wide range of professionally competent assistance.” Id. at
690. In examining the question of deficiency, “[j]udicial scrutiny of counsel’s performance must
be highly deferential.” Id. at 689. In addition, judges must consider the facts of the case at the
time of counsel’s conduct, and must make every effort to escape what the Strickland court referred
to as the “distorting effects of hindsight.” Id. The petitioner bears the burden of showing that
counsel’s challenged action was not sound strategy. See Kimmelman v. Morrison, 477 U.S. 365,
381 (1986). Furthermore, a defendant must show a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694.
When assessing an ineffective assistance of counsel claim in the federal habeas context,
“[t]he pivotal question is whether the state court’s application of the Strickland standard was
unreasonable,” which “is different from asking whether defense counsel’s performance fell below
Strickland’s standard.” Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (quoting Harrington v.
Richter, 562 U.S. 86, 101 (2011)). “A state court must be granted a deference and latitude that are
not in operation when the case involves [direct] review under the Strickland standard itself.” Id.
Federal habeas review of ineffective assistance of counsel claims is thus “doubly deferential.” Id.
(quoting Cullen v. Pinholster, 131 S.Ct. at 1403). Federal habeas courts must “take a highly
deferential look at counsel’s performance” under Strickland, “through the deferential lens of §
2254(d).” Id. (internal quotation marks and citations omitted).
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1. Ineffective Assistance for Failure to Request a Wade Hearing
Petitioner submits that his counsel was ineffective for failing to request a Wade hearing
despite law enforcement’s use of a suggestive identification procedure. (D.E. No. 1 at 15.)
Although Petitioner does not make any supporting arguments, the Court will consider the
arguments he submitted under his similar trial error claim.
The last reasoned state court decision with respect to this claim is the PCR Court’s decision.
The PCR Court denied the claim, explaining that
[d]efense counsel was not ineffective in his decision to withdraw the
motion for a Wade hearing. This argument was advanced by
Defendant on direct appeal. The Appellate Division found “no plain
error in the trial court’s failure sua sponte to require a Wade hearing.
The central issue in the trial was not whether the identification
procedures the police used were unduly suggestive but whether
Oaks’ and Fishers’ recantations were credible” p. 20 DP (a) 39.
Defendant is barred from asserting this prayer for relief in a postconviction relief. R. 3:22-5.
(D.E. No. 17-16 at 13-14.)
While the PCR Court denied the claim pursuant to New Jersey Rule of Court 3:22-5 as
having already been adjudicated, Petitioner’s claim on direct appeal was not an ineffective
assistance claim. See Camel, 2012 WL 996606 at *8. Furthermore, although Petitioner raised this
claim before the PCR Court, he did not appeal the denial to the Appellate Division. Therefore,
this claim appears to be unexhausted. Nonetheless, this Court will review the merits of the claim
de novo. See Granberry, 481 U.S. at 131, 135.
As already pointed out in this Court’s review of Petitioner’s stand-alone Wade hearing
claim, the record does not support that a suggestive identification procedure occurred. At
Petitioner’s trial, Detective Michael Chirico described how he obtained an identification from
Oaks. (D.E. No. 18-3 at 52-60.) Detective Chirico testified that he was selected to visit Oaks to
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obtain an identification because he had no familiarity with the facts of the case. (Id. at 54.) Chirico
also testified that Oaks was cooperative and identified Petitioner from the photo array. (Id. at 5859.) More importantly, the issue in the trial was not an alleged misidentification based on overly
suggestive procedures, with the witnesses standing by their prior identifications at trial. Instead,
the defense argued that the witness recantations should be believed. The trial court permitted the
defense ample opportunity to pursue this line of attack, which was (apparently) rejected by the
Therefore, Petitioner has not established how he was prejudiced by his counsel’s decision
not to request a Wade hearing. Petitioner’s claim is denied.
2. Ineffective Assistance of Counsel for Failure to Investigate Petitioner’s
Petitioner next claims that counsel was ineffective for failing to “investigate the facts and
circumstances” of his case. (D.E. No. 1 at 15.) Petitioner does not provide any facts or arguments
in support of this claim. The prosecution responds that this claim is belied by his trial counsel’s
testimony at the PCR hearing that he interviewed potential witnesses such as Petitioner’s girlfriend
before deciding against calling her as a trial witness. (D.E. No. 17 at 57.)
Although Petitioner did raise an identical claim before the PCR Court (D.E. No. 17-15 at
4), he did not appeal the issue to the Appellate Division. Therefore, this claim appears to be
unexhausted. Nonetheless, this Court will review the merits of the claim de novo. See Granberry,
481 U.S. at 131, 135.
Because Petitioner has provided very little information to support this claim in the instant
filing as well as in the PCR Court filing, the Court turns to the PCR evidentiary hearing transcript
for guidance. Petitioner’s trial counsel testified that he interviewed witnesses such as Petitioner’s
desired alibi witness, Lakeesha Kelly. (D.E. No. 18-19 at 41.) Further, Ms. Kelly also testified at
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the evidentiary hearing that she spoke with defense counsel about her recollection of Petitioner’s
whereabouts on the day of the shootings. (Id. at 55-56.)
Petitioner has not presented sufficient evidence to support his claim that counsel failed to
investigate in preparation for the trial. He has not demonstrated that his counsel was ineffective.
Even if Petitioner had pointed to sufficient facts, he has not demonstrated prejudice because he has
not adequately demonstrated what exculpatory evidence would have been revealed by such an
investigation. Therefore, this claim is denied.
3. Ineffective Assistance of Counsel for Failure Advise Petitioner of his
Petitioner next claims that counsel was ineffective for failing to advise him of his
sentencing exposure. (D.E. No. 1 at 15.) Petitioner submits the following:
On May 8, 2008, the state’s plea offer was 18 years’ imprisonment
with a NERA parole disqualifier, which petitioner signed and
rejected. Plea discussions continued thereafter, and, according to
trial counsel, the state’s plea offer went “down to 5 and then back
up,” resulting in a plea offer of seven years’ imprisonment with
NERA parole disqualifier.
(D.E. No. 1 at 16.)
Petitioner raised this claim before the PCR Court, and it was denied as follows:
The Prosecutor’s first plea offer to Kaseem Camel was a plea to first
degree murder as amended to second degree manslaughter N.J.S.A.
2C:11-4(B)(1) and 3rd degree unlawful possession of a weapon
N.J.S.A. 2C:39-4. At time of sentencing the state agreed to
recommend a prison sentence of 7 years with 85% parole
ineligibility pursuant to the No Early Release Act and the Graves
Act. (Defense Brief page 2).
In the Pretrial Memorandum the section provided for the
memorialization of the plea offer and sentence recommendations
reads “18 years pursuant to NERA.” The Pre Trial Memorandum
also reads that defense was asserting “No Special Defense.” (DB
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Defendant rejected the plea offer as evidenced by his signature on
the Pre Trial Memorandum at the time of the plea cut off.
Defendant’s [sic] that he was unaware of his exposure at the time of
the plea, and that defense counsel did not communicate the plea
offer(s) are belied by defendant’s signature on the pretrial
memorandum. . . . The Court finds no substantive evidence that the
trial defense counsel withheld any plea offers from the defendant.
(D.E. No. 17-16 at 14 (emphasis added).)
The Appellate Division affirmed the PCR Court’s denial, stating that “[b]ased on the facts
as [PCR Judge Verna G. Leath] found them, we agree that defendant’s trial counsel did not render
ineffective assistance. Rather, he communicated the State’s plea offers to defendant, and he
engaged in reasonable trial strategy in deciding not to call Kelly as a witness.” Camel, 2016 WL
5417412 at *2.
Ineffective assistance of counsel claims arising out of the plea process are analyzed under
the Strickland standard. See Hill v. Lockhart, 474 U.S. 52 (1985). Claims of ineffective assistance
of counsel in the context of a defendant rejecting a plea offer are considered under the standard set
in Lafler v. Cooper, 566 U.S. 156 (2012). The Supreme Court in Lafler considered the claims of
a petitioner who was allegedly advised by trial counsel to reject the plea offer based on the
likelihood of his acquittal at trial. Id. at 163. As with all ineffective assistance of counsel claims,
the petitioner is required to show that counsel’s performance was deficient and prejudicial. See
Strickland, 466 U.S. at 687. The petitioner’s showing that “the outcome of the plea process would
have been different with competent advice” is dipositive in establishing Strickland’s prejudice
requirement. Lafler, 566 U.S. at 163. “Knowledge of the comparative sentence exposure between
standing trial and accepting a plea offer will often be crucial to the decision whether to plead
guilty.” United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992).
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At Petitioner’s PCR evidentiary hearing, he denied having knowledge of any plea offers
extended to his attorney, other than an eighteen-year sentence, which he denied. (D.E. No. 18-19
at 81.) He testified having never seen what was identified as “defense exhibit number 2,” which
was described as “a plea offer from the State.” (Id. at 82). 3 Petitioner also testified that although
he did not shoot any of the three victims, he would have accepted a plea bargain for a seven-year
prison sentence had his trial attorney presented it to him. (Id. at 94-96.)
His trial attorney also testified about the plea negotiations as follows:
Q. Were there any plea offers in this case?
A. In homicide cases, in Essex, you know, it’s for the Defense to
approach the Prosecutor about a plea. I think that’s our more recent
At that time I think it was ongoing discussion about plea. I think on
paper the numbers hovered somewhere between 20 and 18. I
remember 20. It may have been as low as 18 at some point but as
the trial got upon us, the numbers went to as low as 5 and then
incrementally rose as I guess the State felt their case got better and
the Defense case looked worse.
I know at some point there was a discussion when the number was
5 and then I know there was some discussion when the number was
I think at some point I was fighting and at that point the State
withdrew any offer because I think these discussions went from the
outset of the case, I believe, on and through deliberations.
MR. TORAYA: Can I approach the witness, please?
Q. I am showing you D-1, D-2. Do you recognize that?
Q. You recognize that?
Petitioner testified at the PCR hearing that he did not learn of the document’s existence until
after he was convicted. (D.E. No. 18-19 at 97.)
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A. I recognize it.
Q. Can you tell us what D-1 is?
A. D-1 is a plea cutoff form. Client determines that he wants to go
to trial, it’s where he’s advised of what the maximum penalties are
for the crimes that he is charged with if convicted after trial, the
extent to whether he’s Extended Term or not, the extent to which
presumptive prison time applies to the various counts, parole
ineligibility applied and some other information about his
background and the extent to which any sentence or plea would
affect any open charges. What the plea offer was and just some
other minutia with regard to unfinished discovery and whether he
was advised of his right to be here or not.
Q. What was the plea offer?
A. The offer on the plea cutoff date for the date this document was
filed which was May 8, 2008, 18 years pursuant to N.E.R.A.
Q. Is that your writing on that document I assume?
A. I see my signature on the last page. I recognize my handwriting
Q. Filled out pretrial memo?
A. That’s correct.
Q. Before filling that out, you went over it with Mr. Camel?
Q. He signed, right?
A. Yes. It appears to be his signature here.
Q. So after that date you were given another plea by the State; Is
A. After that date discussions went on and on and we discussed
many numbers. I indicated a 5 was discussed and a 7 was discussed.
I think we went from 18 to 15 to 10, down to 5 and then back up.
Q. Do you remember if any of those discussions were memorialized
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A. I am sure some of them were.
Q. D-2 in front of you. You recognize that document?
A. D-2? I recognize it.
Q. I recognize it.
A. D-2 appears to be a Plea Request to Recommend Disposition
dated the 9th of December, at least was signed the 9th of December,
9th of January 2008, 9th of September 2008.
Q. So that was after the Pretrial memo, after the plea cutoff?
A. That’s correct.
Q. And what was that offer?
A. That offer at that time was 7 years pursuant to N.E.R.A.
Q. Was that communicated to the defendant?
A. All plea offers that were made by the State were communicated
to the defendant.
Q. Did you even do that in writing?
A. Did I do it in writing? We have oral conversation. “The State
is making a recommendation of 5 years. Are you interested?” If he
is the Prosecutor will get an offer from his Supervisor. If you are
not interested - - you know it’s just talk, you express a number and
it’s just talk, “Are you interested?” “No, I am not.” That’s some of
the many discussions we’ve had regarding plea offers.
Q. You didn’t have the defendant sign anything?
A. No, that’s not necessarily my protocol.
Q. Why isn’t that your protocol?
A. I feel I have an open relationship with my client. We speak, I
tell him the offer. It’s not a secret. For some reason I kind of feel
but it’s just my protocol.
Q. The pretrial memorial is done on the record? The plea cutoff?
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A. That would be done on the record.
Q. The defendant signs that?
A. That’s correct.
Q. Okay, but you didn’t think it was important in this case to put
anything in writing or memorialize anything from the defendant that
he was not offered 7 years, correct?
A. I didn’t think it was important, no, I didn’t - - won’t say that I
didn’t think it was important.
(D.E. No. 18-19 at 21-25 (emphases added).)
Petitioner argues that he was unaware of his “penal consequences” had he been convicted
at trial, however the record reflects that his trial attorney went over a “plea cut-off” form that
discussed his sentence exposure, including the potential maximum sentence. (D.E. No. 18-19 at
22.) At the evidentiary hearing, Petitioner did not deny that he signed that particular document.
(Id. at 81.) To the extent that Petitioner appears to be arguing that his trial attorney never conveyed
the seven-year plea offer, the state court’s decision was not an unreasonable application of the
facts nor was it contrary to clearly established federal law. At the PCR hearing, trial counsel
testified that several plea offers were discussed with Petitioner but Petitioner chose to stand trial.
As a result, the state court found that trial counsel did relay all plea offers to his client and rejected
Petitioner’s ineffective assistance claim. Consequently, he has not made out a meritorious
ineffective assistance claim. Accordingly, this claim is denied.
4. Ineffective Assistance of Counsel for Failing to Object to Sheldon Oaks
Testifying While Wearing Prison-Issued Attire, Handcuffs, and Leg
Petitioner submits that his counsel was ineffective for failing to object to state witness,
Sheldon Oaks, testifying in prison-issued garb, handcuffs, and leg restraints. (D.E. No. 1 at 15.)
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While Petitioner raised this claim in his initial PCR filing (D.E. No. 17-15 at 4), it does not appear
to have been addressed in the court’s opinion. (D.E. No. 17-16.) Petitioner did not appeal the
issue to the Appellate Division, however. Nonetheless, this Court will review the merits of the
claim de novo. 4
As previously discussed in this Court’s analysis of Petitioner’s similar trial court error
claim, see supra Section IV, A 6, Oaks attire and restraints did not implicate Petitioner’s
constitutional rights. As the Appellate Division pointed out when denying Petitioner’s related trial
court-error claim, “in cross-examining Oaks and in his summation, defense counsel made strategic
use of Oaks status as a convicted criminal allegedly offered leniency, to impeach the credibility of
his prior statements identifying defendant as the shooter.” See Camel, 2012 WL 996606 at *8.
Counsel’s strategic decision was not unreasonable. Petitioner has not demonstrated how counsel’s
performance was deficient. Therefore, this claim is denied.
5. Ineffective Assistance of Counsel for Failing to Consent to the Trial
Court’s Offer to Provide a Jury Instruction on Why a Witness was Seated
Petitioner next claims that his counsel was ineffective for not accepting the trial court’s
offer to provide a jury instruction as to why a state witness, Sheldon Oaks, was already seated in
the witness stand prior to the jury’s entering the courtroom. (D.E. No. 1 at 15.) While Petitioner
raised this claim in his PCR filing (D.E. No. 17-15 at 4), it does not appear to have been addressed
in the PCR court’s opinion. (D.E. No. 17-16.) However, Petitioner did not appeal the issue to the
Nonetheless, this Court will review the merits of the claim de novo.
Respondents assert that counsel may have declined the instruction “because it would have undercut
On direct appeal, Petitioner unsuccessfully raised a trial court error claim because Oaks was
allowed to testify in prison garb and arm and leg restraints. However, that claim was not raised in
the context of ineffective assistance. See Camel, 2012 WL 996606 at *8.
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counsel’s strategic decision to use Oaks’ status as a convicted criminal supposedly offered lenience
to impeach Oaks’ credibility.” (D.E. No. 17 at 62.)
At Petitioner’s trial, Oaks was already seated in the witness stand before the jury re-entered
the courtroom from a lunch recess. (D.E. No. 18-2 at 108.) After Mr. Oaks was excused as a
witness, the trial court inquired of whether counsel wanted any special instructions in light of Mr.
Oaks’ being seated at the witness stand before the jury entered. (D.E. No. 18-3 at 98.)
THE COURT: The record will reflect that Mr. Oaks was on the
stand when the jury came out, and I have just indicated, he was on
the stand when they left.
Are there any special instructions that either side would like me to
give concerning his being on the stand when they came in or on the
stand when he left as opposed to why he didn’t walk in and out in
their presence as most witnesses do?
MR. DIRKIN: No, Your Honor.
THE COURT: Mr. Kinsale?
MR. KINSALE; No, your Honor.
THE COURT: Do you agree, Mr. Camel?
THE DEFENDANT: Yes.
THE COURT: Thank you.
Here, Petitioner has not provided any arguments to support how the outcome of his trial
would been different had counsel requested the trial court to provide the instruction.
Respondents point out, the defense was not interested in keeping Oaks’ status as a convicted
criminal from the jury. Petitioner’s counsel made a strategic decision that was not unreasonable.
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Petitioner had not demonstrated ineffective assistance on this point. Therefore, this claim is
6. Ineffective Assistance of Counsel for as to Dr. Perez’s Testimony
Petitioner next claims that his counsel was ineffective for failing to object to Dr. Perez’s
testimony where she referenced another medical examiner’s autopsy report as well as for failing
to cross-examiner Dr. Perez. (D.E. No. 1 at 15.) While Petitioner raised this claim in his initial
PCR filing (D.E. No. 17-15 at 4), it does not appear to have been addressed in the court’s opinion.
(D.E. No. 17-16.) However, Petitioner did not appeal the issue to the Appellate Division.
Nonetheless, this Court will review the merits of the claim de novo. 5
The Court previously discussed, and rejected, Petitioner’s similar claim as to the hearsay
issue. As to Petitioner’s argument that counsel should have cross-examined Dr. Perez, the
Appellate Division pointed out when denying Petitioner’s related trial court-error claim:
Defense counsel did not even cross-examine Dr. Perez, and with
good reason. There was no genuine issue at this trial about the cause
of Mumford’s death. The police found his bullet-riddled body lying
in the courtyard, soon after the shooting incident that was described
by eyewitnesses Oaks and Fisher. No one, including the defense,
argued that his death was not a homicide. The issue in this case was
the identity of the killer.
See Camel, 2012 WL 996606 at *7.
Petitioner has not demonstrated how counsel’s failure to object to Dr. Perez’s testimony or
his counsel’s decision not to cross-examine her affected the outcome of the trial and he therefore
failed to show prejudice. As the Appellate Division note, Mumford’s homicide was not contested.
Accordingly, this claim is denied.
On direct appeal, Petitioner unsuccessfully argued that Dr. Perez’s testimony improperly relied
on inadmissible hearsay as to Dr. Mambo’s report. See Camel, 2012 WL 996606 at *7. However,
that claim was not raised in the context of ineffective assistance.
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7. Ineffective Assistance of Counsel for Failure to Challenge the Trial Court’s
Recharge on Attempted Murder and Aggravated Manslaughter
Petitioner next argues that counsel was ineffective for failing to object to the trial court’s
“extensive recharge” on the elements of attempted murder and aggravated manslaughter. (D.E.
No. 1 at 15.) While Petitioner raised this claim in his initial PCR filing (D.E. No. 17-15 at 4), it
does not appear to have been addressed in the court’s opinion. (D.E. No. 17-16.) However,
Petitioner did not appeal the issue to the Appellate Division. Nonetheless, this Court will review
the merits of the claim de novo.
During deliberations, the jury sent a note asking for an explanation of the crimes of
attempted murder and aggravated manslaughter. (D.E. No. 18-15 at 4.) After providing the
instructions for both offenses, the trial judge asked the parties whether they objected to the
instructions as provided. (Id. at 19.) Both attorneys answered that they did not. (Id.)
To show that a jury instruction violated due process, Petitioner must show “both that the
instruction was ambiguous and that there was a reasonable likelihood that the jury applied the
instruction in a way that relieved the State of its burden of proving every element of the crime
beyond a reasonable doubt.” Waddington v. Sarausad, 555 U.S. 179, 190-91 (2009) (internal
citation and quotation marks omitted). The instruction “must be considered in the context of the
instructions as a whole and the trial record.” Id. at 191 (internal citation and quotation marks
omitted). Moreover, “it is not enough that there is some slight possibility that the jury misapplied
the instruction, the pertinent question is whether the ailing instruction by itself so infected the
entire trial that the resulting conviction violates due process.” Id. (internal citation and quotation
marks omitted). “In other words, the inquiry requires careful consideration of each trial's unique
facts, the narratives presented by the parties, the arguments counsel delivered to the jurors before
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they retired to deliberate, and the charge as a whole.” Williams v. Beard, 637 F.3d 195, 223 (3d
Cir. 2011) (citing Waddington, 555 U.S. 179).
Here, Petitioner just describes the re-instruction as “extensive.” However, the trial court
articulated that it “reread  the entire charges as requested.” Petitioner has not demonstrated how
he was prejudiced by counsel not objecting to the trial court answering a jury note about an offense
by re-reading the instructions related to the offense. Petitioner has not pointed to any error
contained in the re-instruction. Petitioner has not demonstrated prejudice. Accordingly, this claim
8. Ineffective Assistance for Failing to Call Alibi Witnesses
Lastly, Petitioner claims that his counsel was ineffective for failing to interview and or call
several alibi witnesses including: Damarco, Lakeesha Kelly, Adam Horton, and Kevin Villa. (D.E.
No. 1 at 15.) While Petitioner raised this claim before the PCR Court, he only appealed the claim
relating to Lakeesha Kelly. See Camel, 2016 WL 5417412 at *1. Therefore, this Court will
review the claims as it relates to the balance of the individuals, de novo.
Petitioner submits that his girlfriend at the time of the shooting, Lakeesha Kelly, should
have been called to testify as an alibi witness on Petitioner’s behalf. (D.E. No. 1 at 15-16.)
Petitioner does not support his argument with any relevant facts but rather recounts Kelly and his
trial counsel’s testimony at the PCR evidentiary hearing. (Id.) The Court also addressed Ms. Kelly
above as to Petitioner’s claim concerning his counsel’s failure to investigate.
The Appellate Division affirmed the PCR Court’s denial of the claim as follows:
After holding an evidentiary hearing at which defendant, Kelly, and
defendant’s former trial counsel testified, Judge Verna G. Leath
rejected those claims. Based on the attorney’s testimony, the judge
found that . . . that trial counsel had interviewed Kelly prior to the
trial, and had determined that there were significant weaknesses in
her proposed testimony and an alibi defense was unlikely to
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succeed. According to the attorney, Kelly claimed that one the day
of the killing, defendant came home from work before 5:00 p.m. and
stayed home all night thereafter. However, the attorney testified that
Kelly was not clear in her recollection of the time and was unable to
explain how she allegedly recalled defendant’s time of arrival on
that particular evening. Nor were Kelly or defendant able to
document the claim that defendant was actually employed in
November 2006. Judge Leath noted similar problems in Kelly’s
PCR hearing testimony. She found that trial counsel was not
ineffective in deciding not to call Kelly as a witness.
After reviewing the record, we find no basis to second-guess Judge
Leath’s evaluation of witness credibility, and we conclude that her
decision is supported by substantial credible evidence. See L.A.,
supra, 433 N.J. Super. at 17. Based on the facts as she found them,
we agree that defendant’s trial counsel did not render ineffective
assistance. Rather, he communicated the State’s plea offers to
defendant, and he engaged in reasonable trial strategy in deciding
not to call Kelly as a witness.
See Camel, 2016 WL 5417412 at *1-2.
Petitioner has not shown how counsel’s performance was deficient because of his failure
to call Ms. Kelly, especially in light of his counsel’s stated rational for not calling her and Ms.
Kelly’s own testimony at the PCR evidentiary hearing. The Court specifically notes the PCR
Court’s summary of the testimony with respect to the alibi witness claim:
Lakisha Kelly testified at the evidentiary hearing. Kelly and Camel
are the parents of four children. On November 29, 2006 she recalls
that Camel came home from work, ate dinner and played video
games with their children before going to bed. On cross
examination she faltered and was not definitive as to Camel’s time
of arrival. In addition, during the trial Ms. Kelly had been charged
with obstruction of justice for allegedly approaching a juror
protesting Camel’s innocence, during a break in the trial
proceedings. She was not indicted on those charges. She insisted
that Camel had been at work and that she been available to testify at
trial but was not asked to do so.
Sterling Kinsale, Esq., Camel’s trial attorney testified at the
evidentiary hearing. He indicated that calling Kelly as a witness
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during trial would be more problematic then [sic] helpful to the [sic]
Camel’s case and he did not recommend moving forward with an
alibi by defense.
Kinsale reviewed the initial incident report on November 29, 2006
and noted that the Camel was not arrested until four months later.
He indicated that the passage of time influenced his decision to not
allow Kelly to testify in addition to her inability to recall specifically
the events of the day in November.
Camel testified at the evidentiary hearing. Camel indicated that he
told his trial attorney that his boss and Kelly could testify to his
whereabouts during the night of the incident. Camel testified that
his attorney believed that he did not punch a time card at work and
Ms. Kelly had a bias to possibly lie for him, they were not good
witnesses on his behalf.
(D.E. No. 18-19 at 10-11.)
Petitioner’s counsel’s PCR testimony reflects a reasonable, strategic decision not to call
Kelly. In light of the record, the state court’s decision was not an unreasonable application of the
facts nor was it contrary to clearly established federal law. Accordingly, this claim will be denied.
Petitioner next submits that his trial counsel was ineffective for failing to interview his
former supervisor, Damarco, as a potential alibi witness. (D.E. No. 1 at 15.) The instant petition
does not indicate what Damarco’s testimony would have entailed. However, a review of the state
court record reveals that Petitioner’s supervisor, on the day that the shooting occurred, was named
Damarco. (D.E. No. 17-15 at 4.)
At Petitioner’s PCR evidentiary hearing, Petitioner testified about his discussions with his
trial counsel regarding calling his supervisor as a witness.
Q. What did you talk about regarding your boss?
A. I told him my boss could verify I got off work at four o’clock.
He told me being though I don’t punch a time card it was no good,
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no use to call my boss because I didn’t punch in and out on a
I told him that I didn’t punch in and out and he said my boss was
(D.E. No. 18-19 at 75.) Petitioner also testified that he travelled approximately thirty minutes by
bus from his place of employment to his home that evening. (Id. at 77.)
Notwithstanding Petitioner’s insistence that his supervisor could have provided for his
whereabouts shortly before the shooting occurred, Petitioner has not produced any evidence from
Damarco indicating the same. Damarco, for example, did not testify or even submit an affidavit
at the PCR hearing reflecting that he (Damarco) was an alibi witness.
Petitioner has not
demonstrated that counsel was ineffective. Accordingly, this claim will be denied.
Petitioner next submits his trial counsel was ineffective for failing to interview or call
“Adam Horton and/or parole officer Kevin Villa” as potential alibi witnesses. (D.E. No. 1 at 15.)
Petitioner does not provide any facts about who Adam Horton was or how either of these
individuals’ testimony may have impacted his defense. 6 See Habeas Rule 2(c)(2), (providing that
a habeas petitioner must “state the facts supporting each ground.”) Accordingly, this claim will
9. Trial Counsel Was Ineffective for Failing to Cross-Examine Detective
Petitioner next submits that his trial counsel was ineffective for failing to cross-examine
Detective Vincent Vitiello. (D.E. No. 1 at 15.) While this claim was considered and denied by
Although Petitioner raised the claim before the PCR Court, it did not consider the claim.
Petitioner’s state court filings do not provide any additional information about these individuals’
identities or the substance of their potential testimony.
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the PCR Court (D.E. No. 17-16), Petitioner did not appeal the issue to the Appellate Division.
Nonetheless, this Court will review the merits of the claim de novo.
Detective Vitiello testified at Petitioner’s pre-trial Gross 7 hearing. The state moved for the
hearing once they determined that state witness, Sheldon Oaks, would be recanting his prior
statement to the police. (D.E. No. 18-2 at 5.) Detective Vitiello testified that he took an audio
statement of Oaks shortly after the November 2006 shooting in question. (Id. at 62.) After the
prosecutor conducted his direct examination of Detective Vitiello, the defense asked the following:
Q. Officer, were you aware of Mr. Oaks’ criminal background at
A. I am sure that I did - - before speaking to him, I did check his
criminal background, yes.
(Id. at 64.)
At Petitioner’s PCR evidentiary hearing, trial counsel was asked about why he conducted
such a limited cross-examination of Detective Vitiello.
Q. I am sorry, my question is why didn’t you cross examine either
of these two witnesses? That’s my question.
A. At the Gross hearing?
Q. Yeah. At the Gross hearing.
A. The witnesses had indicated – I think if I recall correctly, I
reviewed the transcript, I think it was already established that the
witness had said enough in portions of the testimony that I felt that
those statements were going to come in.
In my usual practice if I am going to be subjected to especially
officers at trial that I am not necessarily familiar with, I don’t like
to, you know, expose myself so much so in a Gross hearing in a
hearing that I feel I am going to loose [sic] any way.
Under New Jersey law, a hearing is required to determine the reliability of a witness’s prior
inconsistent out-of-court statement. State v. Gross, 121 N.J. 1 (1990).
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I felt those statements were going to come in. I felt it’s a pro forma
kind of motion that we do as defense attorneys where once the
witness who we have no control over acknowledges this statement
in a form, that it’s pretty much going to come in. I pull back and I
wait to see what other angles I can use to my advantage at trial rather
than extensive cross examination on an officer who may not be
familiar with me and herego [sic] sometimes you loose [sic] in some
instances the element of surprise of such attack at trial.
(D.E. No. 18-19 at 33-34.)
Petitioner has not shown how trial counsel’s performance was deficient just because he
thought trial counsel could have conducted a more rigorous cross-examination of Detective
Vitiello. Mr. Kinsale’s testimony was that he strategically limited his examination at the pre-trial
hearing so as to not to limit the effectiveness of his trial cross-examination of the same witness.
Petitioner has not demonstrated how counsel was ineffective for employing this particular strategy.
Accordingly, this claim is denied.
10. Ineffective Assistance of Counsel for Waiving Petitioner’s Right to be
Present at All Stages of the Trial
Petitioner lastly claims that his trial counsel was ineffective for failing to ensure his
presence at all stages of the trial. (D.E. No. 1 at 15.) While Petitioner raised this claim in his PCR
filing (D.E. No. 17-15 at 4), it does not appear to have been addressed in the court’s opinion. (D.E.
No. 17-16.) Nor did Petitioner appeal the issue to the Appellate Division. Nonetheless, this Court
will review the merits of the claim de novo.
At Petitioner’s PCR evidentiary hearing, trial counsel was asked about his decision to
waive Petitioner’s presence during portions of the trial. (D.E. No. 18-19 at 45.) Mr. Kinsale
testified that he did not recall any portion of the trial where Petitioner was not present for the
proceedings. (Id.) Upon review of the trial record, this Court did not observe that Petitioner was
excluded from any of the trial proceedings. Petitioner’s claim that he was not present for portions
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of the trial is belied by the record, and therefore his ineffective assistance claim fails on this ground.
Petitioner’s claim is denied.
CERTIFICATE OF APPEALABILITY
This Court must determine whether Petitioner is entitled to a certificate of appealability in
this matter. See Third Circuit Local Appellate Rule 22.1. The Court will issue a certificate of
appealability if the petitioner “has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). Based on the foregoing analysis, Petitioner has not made a
substantial showing of denial of a constitutional right, and this Court will not issue a certificate of
For the reasons discussed above, Petitioner’s habeas petition is denied. An appropriate
Order accompanies this Opinion.
Dated: October 13, 2020
JOHN MICHAEL VAZQUEZ
United States District Judge
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