GREEN v. JOHNSON

Filing 14

OPINION. Signed by Judge Esther Salas on 11/28/2020. (bt, )

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Not For Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
:
:
Petitioner,
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v.
:
:
STEPHEN JOHNSON,
:
:
Respondent.
:
____________________________________:
RICHARD GREEN,

Civil No. 17-8460 (ES)

OPINION

SALAS, DISTRICT JUDGE
Petitioner Richard Green (“Petitioner”), a prisoner confined at New Jersey State Prison in
Trenton, New Jersey at the time of filing, has submitted a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (D.E. No. 1, (“Petition” or “Pet.”). For the reasons stated below,
the Petition will be denied.
I.

BACKGROUND 1
The New Jersey Superior Court, Appellate Division provided the following factual

summary:
The evidence presented to the jury upon which the convictions were
based disclosed that during the early morning hours of May 9, 2005,
Plainfield police were dispatched to the area outside an apartment
building located at 709 West Front Street after Central received a
report of a gunshot. Upon their arrival, police found the victim,
Manuel Perez, lying face down and bleeding from the right side of
his head. Paramedics arrived shortly thereafter and pronounced
Perez dead within moments of their arrival. They noted, however,
that his skin was cool and surmised that Perez had been dead for
“some time.” No witnesses came forward to the scene at that time.
1

The factual background is taken from the record submitted by the parties; the facts related to
the individual claims for relief are discussed in the analysis section of the Opinion.

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The investigation into Perez's death led police to defendant, whom
Detective Francis Wilson was already interviewing in connection
with an unrelated matter. After taking a statement in the unrelated
matter, Detective Wilson asked defendant whether he would be
willing to answer questions related to Perez's death. Based upon
information Detective Wilson received from defendant at that time,
Detective Wilson called Detective Harvey Barnwell, the case
investigator from the Union County Prosecutor's Office. After
Detective Wilson summarized for Detective Barnwell the
information given by defendant, Detective Barnwell suggested they
re-advise defendant “of his constitutional rights so that [they] could
separate the two cases.” After re-administering Miranda warnings
and after defendant waived his rights, Detective Wilson proceeded
to take a written statement from defendant about what, if any,
involvement he may have had in the shooting.
Defendant initially told Detective Wilson he and a man named
Ronald Cherry were involved in the incident, but it was Cherry who
actually shot Perez. During the course of this statement, Detective
Wilson learned Cherry was incarcerated at the time of the shooting
and he confronted defendant with this information. Defendant was
then asked if he was still aware of his Miranda rights, to which
defendant respondent affirmatively. At that time, another written
statement was taken in which defendant stated that his friend, Troy
Keets, was really the person with him the night Perez was shot.
Defendant told Detective Wilson when he and Keets saw Perez
looking to purchase drugs, Keets ordered defendant to get “the
other” gun, which was broken. He admitted they planned to rob
Perez. Defendant told the detective he struck Perez on the back of
his neck with the broken gun, forcing Perez to bump into Keets,
which caused Keets's gun to go off, fatally wounding Perez. Keets
then repeatedly told defendant that he “didn't mean to do it.”
Witnesses from the neighborhood, who knew defendant and Keets,
testified. Carol Spann, a resident of 709 West Front Street, testified
that she saw defendant and Keets sitting together outside 709 West
Front Street the night of the murder, she heard a “pop,” and she
believed she heard Keets saying, “Let's get out of here.” Jamice
Purnell, who lived at 705 West Front Street, testified that defendant
and Keets were in her house prior to the shooting but eventually left.
She did not hear a gunshot, but her grandmother did. She went to
her grandmother's room to look outside, and when she returned to
her room, defendant and Keets were already there.
Purnell's aunt, Antoinette Whitley, who also lived at 705 West Front
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Street, testified that she saw Keets take a gun outside prior to the
shooting. She heard a gunshot shortly after the two men left.
Defendant and Keets then returned to the room afterwards. Keets
said the shooting was an accident and defendant remarked that Keets
did “something stupid.”
Damian Brown told police that “a few days after” Perez's death, he
received a call asking him to pick up a man who wanted to sell a
gun. He gave a physical description of the man he picked up that fit
Keets's description, but was unable to pick out Keets's picture from
a photo array. At trial, however, he testified the gun was his, and
Keets and defendant were doing him a favor “to sell it.” He claimed
his statement to the Prosecutor's Office “was different” than
reported, but when confronted with his statement, he agreed that
nowhere in the statement did he say the gun belonged to him.
Dwayne Fleming, a former county jail inmate, testified that
defendant visited his cellmate on June 27, 2005. According to the
cellmate, defendant said he shot a Mexican individual at 709 Front
Street because the individual had “stepped on his toes selling drugs.”
Defendant did not testify, nor did any witnesses testify on his behalf.
Defense counsel argued before the jury that police coerced the
statements he gave to them, that felony murder was not a possible
charge because Keets only intended to collect money he was owed,
and, therefore, there was no robbery.
State v. Green, No. A-0680-09T1, 2012 WL 2401674, at *1–2 (N.J. Super. Ct. App. Div. June 27,
2012)
The jury convicted Petitioner of felony murder, N.J.S.A. 2C:11–3(a)(3) (Count One);
second-degree armed robbery, N.J.S.A. 2C:15–1(a)(1), as a lesser-included offense of first-degree
robbery (Count Two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39–4a (Count Three); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39–5b
(Count Four). Id. at 1. Petitioner thereafter moved for a judgment notwithstanding the verdict
or, alternatively, a new trial, which the court denied. Id. at 2. At sentencing, the court imposed
a forty-year aggregate prison term, subject to an eighty-five percent period of parole ineligibility
under the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2. Id.
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Petitioner filed a direct appeal, and the Appellate Division affirmed the conviction and
sentence. Id. Petitioner filed a petition for certification, which was denied by the New Jersey
Supreme Court on January 6, 2013. State v. Green, 65 A.3d 835 (N.J. 2013). He thereafter filed
a petition for post-conviction relief (“PCR”), which the court denied on January 12, 2015. (D.E.
No. 12-12, Trial Court PCR Opinion (“PCR Opinion”)). The Appellate Division then affirmed
the denial. State v. Green, No. A-3584-14T2, 2017 WL 1034556 (N.J. Super. Ct. App. Div. Mar.
17, 2017). Petitioner’s petition for certification to the New Jersey Supreme Court was also
denied. State v. Green, 170 A.3d 302 (N.J. 2017).
On October 9, 2017, Petitioner filed the instant habeas petition, alleging five claims for
relief. (D.E. No. 1). Specifically, Petitioner argues that: (i) “by providing the jury with a flawed
and misleading example of accomplice liability in its instructions, the court created the possibility
tha[t] [Petitioner] would be wrongly convicted as an accomplice to robbery, and accordingly,
convicted of felony murder” (Ground One); (ii) “the Court erred in permitting the prosecutor, on
direct examination of Jamice Purnell, to read [substantial] portion of Purnell’s prior statement into
[the] record, in violation of procedural requirements” (Ground Two); (iii) “the court commit[ed]
reversible error in denying [Petitioner’s] motion for a new trial on robbery and felony murder
charges” (Ground Three); (iv) “trial counsel failed to effectively present petitioner’s defense,
which was that he did not confess to aiding and abetting a robbery, that the statement was actually
an agreement for Petitioner’s cooperation in the murder investigation, and that there was no proof
of a robbery to support a felony murder charge” (Ground Four); and (v) “trial counsel failed to
adequately confer with Petitioner about defense strategy; as a result, exculpatory testimony was
not produced and state witnesses were not properly cross-examined.” (Ground Five). (Id.).
Respondent filed an answer (D.E. No. 12 (“Answer”)) and Petitioner did not file a reply.
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II.

LEGAL STANDARDS
Section 2254(a) permits a court to entertain only claims alleging that a person is in state

custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Petitioner has the burden of establishing each claim in the petition. See Eley v.
Erickson, 712 F.3d 837, 846 (3d Cir. 2013). Under 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. No. 104-132, tit. I, §
101 (1996), 28 U.S.C. § 2244, federal courts in habeas corpus cases must give considerable
deference to determinations of state trial and appellate courts. See Renico v. Lett, 599 U.S. 766,
772 (2010).
Section 2254(d) sets the standard for granting or denying a writ of habeas corpus:
(d) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.
When a state court has adjudicated a petitioner’s federal claim on the merits, 2 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
2

“For the purposes of Section 2254(d), a claim has been ‘adjudicated on the merits in State court proceedings’
when a state court has made a decision that (1) finally resolves the claim, and (2) resolves th[at] claim on the basis of
its substance, rather than on a procedural, or other, ground.” Shotts v. Wetzel, 724 F.3d 364, 375 (3d Cir. 2013)
(citation and internal quotation marks omitted).

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in light of the evidence presented in the State court proceeding.’” Parker v. Matthews, 567 U.S.
37, 40–41 (2012) (quoting 28 U.S.C. § 2254(d)).
“[C]learly established law for purposes of § 2254(d)(1) includes only the holdings, as
opposed to the dicta, of t[he Supreme Court's] decisions,” at of the time of the relevant state-court
decision. White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (quoting Williams v. Taylor, 529 U.S.
362, 412 (2000)). A decision is “contrary to” a Supreme Court holding within 28 U.S.C.
§ 2254(d)(1) if the state court “contradicts the governing law set forth in [the Supreme Court’s]
cases” or if it “confronts a set of facts that are materially indistinguishable from a decision of th[e
Supreme] Court and nevertheless arrives at a [different] result.” Williams, 529 U.S. at 405–06.
Under the “‘unreasonable application’ clause of § 2254(d)(1), a federal habeas court may grant the
writ if the state court identifies the correct governing legal principle from th[e] [Supreme] Court’s
decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Williams,
529 U.S. at 413. As to 28 U.S.C. § 2254(d)(1), a federal court must confine its examination to
evidence in the record. Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011).
Where a petitioner seeks habeas relief, pursuant to § 2254(d)(2), on the basis of an
erroneous factual determination of the state court, two provisions of the AEDPA apply. First, the
AEDPA provides that “a determination of a factual issue made by a State court shall be presumed
to be correct [and] [t]he applicant shall have the burden of rebutting the presumption of correctness
by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see Miller–El v. Dretke, 545 U.S.
231, 240 (2005). Second, the AEDPA precludes habeas relief unless the adjudication of the claim
“resulted in a decision that was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).
To the extent that a petitioner’s constitutional claims are unexhausted and/or procedurally
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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) (“Here, because we will deny all of [petitioner’s]
claims on the merits, we need not address exhaustion”); Bronshtein v. Horn, 404 F.3d 700, 728
(3d Cir. 2005) (considering procedurally defaulted claim, and stating that “[u]nder 28 U.S.C.
§ 2254(b)(2), we may reject claims on the merits even though they were not properly exhausted,
and we take that approach here”).
III.

ANALYSIS
A.

Jury Instructions (Ground One)

In his first ground for habeas relief, Petitioner argues that the trial court’s jury instructions
on accomplice liability were “flawed and misleading” due to a hypothetical example the judge
used. (Pet. 4). Petitioner raised this claim in his direct appeal, where it was rejected by the
Appellate Division:
Defendant first argues the trial court erred when it provided a
misleading example of accomplice liability in its jury instructions,
creating the possibility defendant would be wrongly convicted as an
accomplice to robbery and felony murder. Because there was no
objection to the court’s instruction, we review the claimed error
under the plain error standard. R. 2:10–2. Under Rule 2:10–2,
errors or omissions will be disregarded by the appellate court unless
they were “clearly capable of producing an unjust result.” An error
is capable of producing an unjust result if, in terms of its effect in a
jury trial, the magnitude of the error was “sufficient to raise a
reasonable doubt as to whether the error led the jury to a result it
otherwise might not have reached.” State v. Macon, 57 N.J. 325,
336 (1971).
“[C]lear and correct jury instructions are essential for a fair trial.”
State v. Brown, 138 N.J. 481, 522 (1994). “A charge is a road map
to guide the jury, and without an appropriate charge a jury can take
a wrong turn in its deliberations. Thus, the court must explain the
controlling legal principles and the questions the jury is to decide.”
State v. Martin, 119 N.J. 2, 15 (1990).

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Under N.J.S.A. 2C:2–6(c),
A person is an accomplice of another person in the
commission of an offense if:
(1) With the purpose of promoting or facilitating the
commission of the offense; he
(a) Solicits such other person to commit it;
(b) Aids or agrees or attempts to aid such other
person in planning or committing it; or
(c) Having a legal duty to prevent the
commission of the offense, fails to make
proper effort so to do; or
(2) His conduct is expressly declared by law to
establish his complicity.
“[A] jury must be instructed that to find a defendant guilty of a crime
under a theory of accomplice liability, it must find that he ‘shared in
the intent which is the crime’s basic element, and at least indirectly
participated in the commission of the criminal act.’” State v.
Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div.1993) (quoting
State v. Fair, 45 N.J. 77, 95 (1965)). Here, the accomplice liability
charge applied to the charge of robbery. A person is guilty of
robbery if, in the course of committing a theft, he:
(1) Inflicts bodily injury or uses force upon another;
or
(2) Threatens another with or purposely puts him in
fear of immediate bodily injury; or
(3) Commits or threatens immediately to commit
any crime of the first or second degree.
An act shall be deemed to be included in the phrase
“in the course of committing a theft” if it occurs in
an attempt to commit theft or in immediate flight
after the attempt or commission.
[N.J.S.A. 2C:15–1(a).]

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The trial court, in its instructions on accomplice liability, provided
the following example to the jury:
Your friend calls you on the phone and says I need a
ride to the bank, I have to make a withdrawal. As
you pull up in front of the bank with your friend he
pulls out a gun and says I’ll be right back. You see
the gun and you now realize he is not making a
withdrawal, he is going to rob the bank. You sit and
wait in the car for him to return.
Your friend comes running out of the bank and
explains let’s get out of here before the cops arrive.
In this example you now have—you have now shared
the purpose for him to commit the act. You knew
he had the gun, you assisted him or aided him in
committing the crime.
You did this by driving him to the bank, waiting for
him, and then driving him away. You did all of this
knowing he was going to rob the bank. You shared
the purpose with him to commit the crime.
Therefore, you are an accomplice. The difference
between the two examples is the phrase share the
purpose to commit the crime.
Shortly after reciting the disputed example above, the court
specifically instructed the jury that it should only convict defendant
under accomplice liability if he had the requisite mental state:
It is not sufficient to prove only that the defendant
had knowledge that another person was going to
commit the crime charged. The State must prove
that it was . . . defendant's conscious object that the
specific conduct charged be committed.
To reiterate, the elements of accomplice liability are,
one, that an offense was committed, two, that this
defendant did aid, or agree, or attempt to aid another
in committing the offense, three, that the defendant’s
purpose was to promote or facilitate the commission
of the offense, four, that this defendant possessed the
criminal state of mind that is required to be proved
against the person who actually committed the
criminal act.
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We are satisfied the additional instructions to the jury following the
example made clear to the jury that mere awareness that another
person will commit a crime, without the specific intent that the crime
be committed, will not suffice for accomplice liability. The
example did not accurately illustrate the required mental state, but
any confusion was immediately clarified through the additional
instructions. Also, defendant admitted in his statement to police
that he and Keets shared an intention to rob the victim. Thus, we
conclude any confusion resulting from the example was not an error
clearly capable of producing an unjust result.
Green, 2012 WL 2401674, at *3–5.
That a jury “instruction was allegedly incorrect under state law is not a basis for habeas
relief.” Duncan v. Morton, 256 F.3d 189, 203 (3d Cir. 2001) (quoting Estelle v. McGuire, 502
U.S. 62, 71-72 (1991)). A petitioner can therefore only show his entitlement to habeas relief
based on an allegedly insufficient or improper jury instruction where the petitioner proves that “the
ailing instruction by itself so infected the entire trial that the resulting conviction violates due
process.” Id. (quoting Cupp v. Naughten, 414 U.S. 141, 146–47)). A reviewing court must
review a jury instruction in the context of the entire charge given by the trial court and in light of
the whole of Petitioner’s trial. See Id. (emphasis added). That a challenged instruction was
“undesirable, erroneous, or even universally condemned,” is insufficient to warrant habeas relief,
a petitioner can only prevail on such a claim by showing that the instruction rendered the trial
fundamentally unfair. Id.
Reviewing the jury instructions as a whole, the Court is satisfied Petitioner’s constitutional
rights were not violated. While the hypothetical situation discussed by the trial court at the
beginning of its instructions did not accurately illustrate the required mental state for an
accomplice, the instructions given shortly thereafter were accurate. Several times, the court
clearly stated that in order to find Petitioner guilty of robbery under the theory of accomplice
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liability, the jury must find beyond a reasonable doubt that he possessed the criminal state of mind
that is required to be proved against the person who actually committed the criminal acts. (D.E.
No. 12-30, Respondent’s Answer, Ex. 12T, Trial Tr. 33:20–22; 36:12–17; 37:9–12). In light of
the multiple occasions where the court unequivocally stated that Petitioner needed to have the
requisite mens rea to commit robbery, and that Petitioner confessed to having the intention to rob
the victim, the Court agrees with the Appellate Division that the instruction was not capable of
producing an unjust result. Duncan, 256 F.3d at 203; Mathias v. Superintendent Frackville SCI,
876 F.3d 462, 478–79 (3d Cir. 2017) (giving AEDPA deference and upholding the state court’s
conclusion that ambiguous jury instructions did not violate defendant’s constitutional rights).
Accordingly, the Court finds that this decision by the state court is not contrary to, and did not
involve an unreasonable application of, clearly established Federal law. Petitioner is not entitled
to habeas relief on this ground.
B.

Prior Statement During Testimony (Ground Two)

In Ground Two of his Petition, Petitioner argues that his constitutional rights were violated
when the state court permitted the prosecutor, on direct examination of Jamice Purnell, to read
substantial portion of her prior statements into the record. (Pet. at 6). Whether it was considered
a prior inconsistent statement or a recorded recollection, Petitioner argues its admittance was
improper under the New Jersey Rules of Evidence. (Id.).
Petitioner raised this argument on direct appeal and the Appellate Division found it to be
without merit:
Defendant next argues the trial court erred in permitting the
prosecution to read substantial portions of Purnell’s prior statement
into the record during her direct examination at trial. “[A]n
evidentiary determination made during trial is entitled to deference
and is to be reversed only on a finding of an abuse of discretion.”
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Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374
(2010). The rationale underlying such deference sterns from the
principle that “the decision to admit or exclude evidence is one
firmly entrusted to the trial court’s discretion.” Id. at 383–84.
Therefore, we will “uphold the factual findings undergirding the
trial court’s decision if they are supported by adequate, substantial
and credible evidence on the record.” MacKinnon v. MacKinnon,
191 N.J. 240, 253–54 (2007). Even when the dispute concerns a
trial judge’s evaluation of underlying facts, “we will accord
deference unless the trial court's findings went so wide of the mark
that a mistake must have been made.” New Jersey Div. of Youth
and Family Servs. v. M.M., 189 N.J. 261, 279 (2007). Additionally,
because defense counsel failed to object when portions of Purnell’s
testimony were read into the record, we view the claimed error under
the “plain error” standard. Martin, supra, 119 N.J. at 15; R. 2:102.
A witness’s prior statement, although hearsay, may be read into the
record if the witness is unable to testify fully and accurately because
of insufficient present recollection.
N.J.R.E. 803(c)(5).
Conditions precedent to the reading of such statements into the
record require that the statement be contained in a writing, that the
statement was recorded contemporaneously or close in time to the
subject matter of the statement, that the statement was made by the
witness or at the witness’s direction for the purpose of recording the
statement at the time that it was given, and that the statement
concerns a matter about which the witness had personal knowledge
at the time the statement was given. Ibid. Although the statement
may be read into the record, it may not be introduced as an exhibit.
Ibid.
During her testimony, Purnell repeatedly testified as to her lack of
recollection. She was given an opportunity to review her statement
but continued to testify as to a lack of recollection of specific facts
as set forth in her previous statement. While the prosecutor did not
ask Purnell whether her recollection had been refreshed after
reviewing her prior statement a number of times, defendant does not
dispute that the timing of the statement was in temporal proximity
to the shooting, that it concerned a matter about which Purnell, at
least at the time she provided the statement, had personal
knowledge, and that Purnell actually provided the statement.
Consequently, any error in permitting the prosecutor to read portions
of her testimony to the jury, without conducting a formal N.J.R.E.
104 hearing and without going through all of the prerequisites for its
use, was harmless.
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Green, 2012 WL 2401674, at *5–6.
Generally, the admissibility of evidence is a question of state law which is not cognizable
on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-70 (1991) (observing that
“federal habeas corpus relief does not lie for errors of state law” (quoting Lewis v. Jeffers, 497
U.S. 764, 780 (1990))); see also Marshall v. Lonberger, 459 U.S. 422, 438 (1983) (“[T]he Due
Process Clause does not permit the federal courts to engage in a finely-tuned review of the wisdom
of state evidentiary rules”). If, however, a petitioner can demonstrate that the admission of the
challenged evidence deprived him of the “fundamental elements of fairness in [his] criminal trial,”
then he may establish a Fourteenth Amendment due process violation. Glenn v. Wynder, 743 F.3d
402, 407 (3d Cir. 2014) (quoting Riggins v. Nevada, 504 U.S. 127, 149 (1992)). A petitioner must
show that state court's evidentiary ruling was “so arbitrary or prejudicial that it rendered the trial
fundamentally unfair.” Scott v. Bartkowski, No. 11-3365, 2013 WL 4537651, at *9 (D.N.J. Aug.
27, 2013) (citing Romano v. Oklahoma, 512 U.S. 1, 12-13 (1994)). Significantly, the United
States Supreme Court has “defined the category of infractions that violate ‘fundamental fairness’
very narrowly.” Dowling v. United States, 493 U.S. 342, 352 (1990).
Petitioner’s arguments relate solely to the failure of prosecutors and the court to undertake
the necessary procedural steps before admitting the statements. (Pet. at 6). The Appellate
Division found, however, that despite the trial court’s decision not to hold a hearing about its
admissibility, any such error was harmless because the necessary prerequisites were present such
that the statements were properly admitted. Green, 2012 WL 2401674, at *6. The Court does
not find that the state court’s decision was so arbitrary or prejudicial that it rendered the entire trial
fundamentally unfair. To the contrary, on cross-examination, counsel for Petitioner utilized Ms.
Purnell’s prior statement to suggest that she was merely “parroting” her mother when she gave it
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and it was therefore not reliable. (D.E. No. 12-25, Respondent’s Answer, Ex. 7T, Trial Tr. 72-25
to 73-4). Accordingly, the Court finds that this decision by the state court is not contrary to, and
did not involve an unreasonable application of, clearly established Federal law and Petitioner is
not entitled to habeas relief on this ground.
C.

Sufficiency of the Evidence (Ground Three)

In his third ground for relief, Petitioner argues that the trial court committed reversible
error in denying Petitioner’s motion for a new trial on robbery and felony murder charges.
Specifically, he states that the State did not present any evidence that he was guilty of robbery or
felony murder other than “a misunderstanding of defendant’s statement giving to investigators for
the felony murder and robbery.” (Pet. at 7). There were no witnesses who saw Petitioner shoot
the victim, and there were statements from the State’s witnesses corroborating that Mr. Keets was
the one with a reason to harm the victim. (Id.).
Petitioner raised this claim on direct appeal, where it was rejected by the Appellate
Division:
Defendant next asserts the trial court committed reversible error
when it denied his motion for a new trial on the robbery and felony
murder charges because the evidence before the jury was solely
based upon defendant’s uncorroborated confession. We disagree.
“The trial judge on defendant’s motion may grant the defendant a
new trial if required in the interest of justice.” R. 3:20-1.
However, a trial judge will set aside a jury verdict as against the
weight of the evidence only where “having given due regard to the
opportunity of the jury to pass upon the credibility of the witnesses,
it clearly and convincingly appears that there was a manifest denial
of justice under the law.” Ibid.
First, there was sufficient evidence presented during the trial
corroborating defendant’s statements to Detective Wilson.
Witnesses placed defendant and Keets at the scene prior to the
shooting; saw Keets leave the apartment with a gun; heard a
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gunshot; heard Keets say, “Let’s get out of here”; saw defendant and
Keets back in the apartment shortly after the gunshot was heard;
heard Keets say the shooting was an accident; and heard defendant
say Keets did “something stupid.” Additionally, the medical
examiner’s testimony that Perez had a one-and-one-quarter-inch
laceration on his head was consistent with a strike to the head with
a gun, further corroborating defendant’s confession that he struck
Perez in the head with his gun. Because of the corroborating
evidence and testimony, the trial court properly denied defendant’s
motion.
Green, 2012 WL 2401674, at *5.
When a petitioner presents a claim challenging the sufficiency of the evidence provided at
trial, “a reviewing court must ask ‘whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” Eley, 712 F.3d at 847 (quoting Jackson v. Virginia, 443 U.S. 307,
319 (1979)). A court sitting in habeas review may therefore overturn a conviction based on
insufficient evidence only “if it is found that upon the record evidence adduced at trial no rational
trier of fact could have found proof of guilt beyond a reasonable doubt.” Id. (quoting Jackson,
443 U.S. at 324). “Under Jackson, federal courts must look to state law for the substantive
elements of the criminal offense, but the minimum amount of evidence that the Due Process Clause
requires to prove the offense is purely a matter of federal law.” Coleman v. Johnson, 566 U.S.
650, 655 (2012). Under this “deferential federal standard,” juries have “broad discretion in
deciding what inferences to draw from the evidence presented at trial” and federal courts must not
“unduly impinge[ ] on the jury’s role as factfinder” by engaging in “fine-grained factual parsing.”
Id.
Petitioner was convicted of felony murder, N.J.S.A. 2C:113(a)(3) (Count One); seconddegree armed robbery, N.J.S.A. 2C:15-1(a)(1), as a lesser-included offense of first-degree robbery

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(Count Two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)
(Count Three); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (Count
Four). A person commits robbery if, during the course of committing a theft, “he inflicts bodily
injury or uses force upon another. An act shall be deemed to be included in the phrase ‘in the
course of committing a theft’ if it occurs in an attempt to commit theft or in immediate flight after
the attempt or commission.” N.J.S.A. 2C:15-1(a)(1). Felony murder is committed
when the actor, acting either alone or with one or more other
persons, is engaged in the commission of, or an attempt to commit,
or flight after committing or attempting to commit robbery . . . and
in the course of such crime or of immediate flight therefrom, any
person causes the death of a person other than one of the
participants.
N.J.S.A. 2C:11-3(a)(3).
As summarized by the Appellate Division, Petitioner told Detective Wilson that when he
and Keets saw Perez looking to purchase drugs, Keets ordered defendant to get “the other gun,”
which was broken. He admitted they planned to rob Perez. He further admitted that he struck
Perez on the back of his neck with the broken gun, forcing Perez to bump into Keets, which caused
Keets’s gun to go off, fatally wounding Perez. There was sufficient evidence presented during
the trial corroborating these statements to Detective Wilson.

Specifically, witnesses placed

Petitioner and Keets at the scene prior to the shooting; saw Keets leave the apartment with a gun;
heard a gunshot; heard Keets say, “[l]et’s get out of here”; saw Petitioner and Keets back in the
apartment shortly after the gunshot was heard; heard Keets say the shooting was an accident; and
heard Petitioner say Keets did “something stupid.” Green, 2012 WL 2401674, at *5. Finally,
the medical examiner’s testimony that Perez had a one-and-one-quarter-inch laceration on his head
was consistent with a strike to the head with a gun, further corroborating Petitioner’s confession

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that he struck Perez in the head with his gun. Id.
Having considered all said evidence, the Court cannot conclude that no rational trier of fact
could have found proof of guilt beyond a reasonable doubt. There was sufficient evidence for the
jury to convict Petitioner of felony murder, robbery, possession of a weapon for an unlawful
purpose and third-degree unlawful possession of a weapon. While Petitioner may point to other
evidence which disputes the testimony of the various state witnesses, such evidence goes to weight
rather than sufficiency. The Court must determine whether any rational trier of fact could have
found him guilty beyond a reasonable doubt when viewed in the light most favorable to the
prosecution. The Court finds that such a rational trier of fact could in this matter. Accordingly,
the Court finds the state court properly denied Petitioner’s request for a new trial based on
insufficiency of the evidence and that decision is not contrary to, and did not involve an
unreasonable application of, clearly established Federal law. Petitioner is not entitled to habeas
relief on this ground.
D.

Ineffective Assistance of Counsel (Grounds Four and Five)

In his fourth ground for relief, Petitioner argues that trial counsel failed to effectively
present Petitioner’s defense, which was that he did not confess to aiding and abetting a robbery;
rather, the statement was actually “an agreement for petitioner’s cooperation in the murder
investigation, and that there was no proof of a robbery to support a felony murder charge.” (Pet.
at 8). In his fifth ground, Petitioner argues that trial counsel failed to adequately confer with him
about defense strategy which resulted in the failure to call certain witnesses and address particular
cross-examination topics. (Pet. at 14).
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated the twoprong test for demonstrating when counsel is deemed ineffective. First, a petitioner must show
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that considering all the circumstances, counsel’s performance fell below an objective standard of
reasonableness. See id. at 688; see also Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (noting
that it is necessary to analyze an ineffectiveness claim in light of all relevant circumstances)
(citation omitted). A petitioner must identify the acts or omissions that are alleged not to have
been the result of reasonable professional judgment. See Strickland, 466 U.S. at 690. Under this
first prong of the Strickland test, scrutiny of counsel’s conduct must be “highly deferential.” See
id. at 689. Indeed, “[c]ounsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690.
The reviewing court must make every effort to “eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Id. at 689. If counsel makes “a thorough investigation of law
and facts” about his plausible options, the strategic choices he makes accordingly are “virtually
unchallengeable.” Gov’t of Virgin Islands v. Weatherwax, 77 F.3d 1425, 1432 (3d Cir. 2006)
(citing Strickland, 466 U.S. at 690–91). If, on the other hand, counsel pursues a certain strategy
after a less than complete investigation, his choices are considered reasonable “to the extent that
reasonable professional judgments support the limitations on investigation.” Rolan v. Vaughn,
445 F.3d 671, 682 (3d Cir. 2006) (citing Strickland, 466 U.S. at 690–91).
The second prong of the Strickland test requires the petitioner to affirmatively prove
prejudice. See 466 U.S at 693. Prejudice is found where “there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would have been different.”
Id. at 694. A reasonable probability is “a probability sufficient to undermine confidence in the
outcome.” Id.; see also McBridge v. Superintendent, SCI Houtzdale, 687 F.3d 92, 102 n.11 (3d
Cir. 2012). “This does not require that counsel’s actions more likely than not altered the outcome,
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but the difference between Strickland’s prejudice standard and a more-probable-than-not standard
is slight and matters only in the rarest case.

The likelihood of a different result must be

substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 111–12 (2011) (internal
quotation marks and citations omitted). A reviewing court may address the second prong first.
“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice .
. . that course should be followed.’” Rainey v. Varner, 603 F.3d 189, 201 (3d Cir. 2010) (quoting
Strickland, 466 U.S. at 697).
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, 709 F.3d at 232 (quoting Harrington, 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 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).
In his fourth ground for relief, Petitioner argues that trial counsel failed to effectively
present Petitioner’s defense, which was that he did not confess to aiding and abetting a robbery;
rather, the “confession” was actually and agreement to cooperate in the murder investigation “and
that there was no proof of a robbery to support a felony murder charge.” (Pet. at 8). Petitioner
alleges that there was support for this contention because his written statement contained a

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question mark when discussing the robbery and was not a declarative statement. 3 (Id.). He
claims it was a question because he was making sure he was saying the right thing for police.
(Id.). According to Petitioner, his counsel was ineffective for failing to present this defense.
Petitioner raised this argument in his PCR petition, where it was denied. Specifically, the
PCR court found that he was “procedurally barred” for his claim that trial counsel was ineffective
for failing to properly present his defense because Petitioner’s
allegations that he did not confess to the robbery was zealously
pursued by trial counsel. Further, the argument was again pursued
by appellate counsel and rejected by the Appellate Division.
Defendant also argued that there was no corroboration that a robbery
occurred nor corroboration for his confession in his motion for new
trial and on direct appeal.
(D.E. No. 12-12, PCR Court Opinion at 10).
Contrary to Petitioner’s arguments, it clear from a review of the state court record that
counsel did in fact argue that Petitioner did not confess to the robbery, as allegedly evidenced by
the question mark in Petitioner’s written statement. Counsel did so multiple times during the
cross-examination of Detective Wilson, (D.E. No. 12-23, Ex. 5T, Trial Tr. 162:12–170:12;176:16–
177:2) and during his summation to the jury (D.E. No. 12-29, Ex. 11T, Trial Tr. 63:21–24; 64:14–
22; 101:16–102:16; 70:13-71:1). During one exchange in particular, counsel repeatedly inquired
of Detective Wilson about the meaning of the question mark:
A. Well, he gives an answer.
Q. All right, read the jury the answer?
A. To rob the guy.
Q. Work with me here. It says to rob the guy?
3

The written statement reads as follows:
Q:
A:

Why did Troy tell you to go get you gun, What was the Planned?
To robbed the guy?

(D.E. No. 12-1, State’s Brief and Appendix on Direct Appeal, Appendix at 24a, Voluntary Statement of Richard
Green, June 3, 2005).

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A. To rob him.
Q. Is there a period there or is there a question
mark there?
A. Question mark.
Q. He's asking you what the plan was to rob the guy, isn't that a
question he's asking?
A. No, he's asking, he's answering the question above.
Q. With a questions mark next to it?
A. I can't answer with the question mark there, sir, I didn't type it.
Q. Wait a minute. You just told me that every question has a
question mark next to it, and every other statement has whatever
punctuation that goes with it. We just went through that, right?
A. Yes, sir.
Q. And so that particular question is asked what was the plan and
there is a question mark, right?
A. Yes, sir.
Q. And the answer to you has a question mark by it as well, right?
A. Yes, sir.
Q. He's asking you if we are to believe the statement to rob the guy?
Is that what he's asking you, isn't that what it says in the statement
he's asking a question?
(D.E. No. 12-23, Ex. 5T, Trial Tr. 167:3-168:5). Therefore, to the extent Petitioner claims his
attorney did not raise the question mark in the statement as an issue, he is incorrect.
Petitioner’s other arguments relate generally to counsel’s alleged failure to argue that there
was no proof of robbery nor was there any corroboration for his statement. However, the record
is replete with counsel’s arguments on this topic, including, but not limited to, his summation (D.E.
No. 12-29, Ex. 11T, Trial Tr. 59:8–16; 63:12–65:13; 67:5–68:5 & 72:1-12) and in his arguments
during his motion for a new trial (D.E. No. 12-32, Ex. 14T, Trial Tr. 3:9–20:1). For example, in
the motion for a new trial, counsel made the following argument:
So where is the conduct, separate and apart from the defendant's
statement, that would say that we were in the course of committing
this act? There’s nothing. There is absolutely not one bit of evidence.
You don't hear from anyone saying that the guy had money other
than the money that was found on him. You don't hear anybody
saying that the guy was doing anything -- I mean, one of the
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witnesses even said that it's a drug deal gone bad or something to
that effect, that Troy comes back and said it was a drug deal gone
bad, which means then, separate and apart from this now you have
an independent and you have actual independent evidence that
suggests this is why the guy's items are out of his pocket, because
it's a drug deal gone bad, he's trying to find money to purchase drugs,
he's anticipating purchasing drugs.
You've got one statement from the defendant saying it's a drug deal
gone bad. So you've got independent corroboration that there was
something going on the hallway that had the relationship to drugs,
not relationship to robbery. Nothing here in this case suggests
robbery, except the defendant's statement. And for him to be
convicted of his own statement, having not testified to it, it outside
of the parameters of what we try to do in the law, and this is why
there has to be independent corroboration of the statement and the
State has to prove robbery, and we suggest they haven't, beyond a
reasonable doubt.
(D.E. No. 12-32, Ex. 14T, Trial Tr. 17:22-18:25).
Because a review of the trial record reveals that counsel did make the various arguments
Petitioner identifies, the Court finds that he cannot establish the first prong of Strickland and
accordingly his fourth ground for habeas relief fails.

See Strickland, 466 U.S. at 697–98

(“[F]ailure to satisfy either prong defeats an ineffective assistance claim”); Jenkins v. Bartkowski,
No. 10-4972, 2014 WL 2602177, at *13 (D.N.J. June 11, 2014) (denying ineffective assistance
claim where counsel had raised the complained-of issues).
In his final ground, Petitioner argues that trial counsel failed to adequately confer with him
about defense strategy which resulted in the failure to call certain witnesses and address particular
cross-examination topics. (Pet. at 14). Specifically, Petitioner wanted to call Joanna Soler to
testify at trial about “Jiot Risot.” 4 (Pet. at 14). According to Petitioner, Mr. Risot “had the only
motivation to commit the crime due to his current girlfriend being the ex-girlfriend of the victim.”

4

Based on the record in state court, it appears this individual’s name is actually “Jiot Rosado.” (D.E. No. 1212, PCR Court Opinion at 9).

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(Id.). Petitioner also alleges that trial counsel failed to address certain topics on cross-examination
that Petitioner raised to him. (Pet. at 14). Petitioner does not provide any further information
about these cross-examination failures.
Petitioner raised these issues in his PCR petition, where they were rejected by the state
court:
Defendant argues that he received ineffective assistance of counsel
because trial counsel failed to adequately confer with defendant
about his defense strategy. Defendant alleges that trial counsel
failed to call Joanna Soler as a defense witness. Defendant
contends that Ms. Soler was a girlfriend of both Mr. Perez and
another individual named Jiot Risot. Mr. Risot had been
investigated as a possible suspect for Mr. Perez’s murder.
Defendant contends that Ms. Soler should have been called before
the jury to show that Mr. Risot had a motive to kill Mr. Perez due to
jealousy.
Defendant failed to proffer what Joanna Soler’s
testimony would be had she testified. Defendant is relying upon
four different conflicting statements Ms. Soler provided to the police
at the time of the investigation. Defendant has failed to
demonstrate how these conflicting statements would have altered
the outcome of the proceedings. In her second statement, Ms. Soler
implicated Jiot Rosado in the victim’s death, stating that she
arranged for the victim and Rosado to meet the night in question and
that the following day, Rosado told her that he killed the victim. In
her final statement to the police, Ms. Soler indicated that she had
lied during her previous statements, Ms. Soler’s statements were
inconsistent and not corroborated by any other witnesses or
evidence. There is no evidence to support a claim that her
testimony would have altered the outcome of the trial. In addition,
the trial record indicates Ms. Soler was unavailable. The petitioner
has not presented any facts to the contrary.
Further, defendant contends that trial counsel did not take his
suggestions for cross-examination of state witnesses. Defendant
contends that that there were inconsistencies between Detective
Wilson’s grand jury and trial testimony and that trial counsel failed
to cross-examine him about said inconsistencies. Further, trial
counsel failed to discuss the approaches he would take to crossexamine several state witnesses. Defendant contends that as result
of this failure to confer about cross-examination, the jury did not get
a fair picture of the evidence. The record shows that defense
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counsel utilized the grand jury transcripts during an aggressive and
thorough cross-examination of Detective Wilson. Defendant does
not outline what inconsistencies were present in Detective Wilson’s
testimony that were not used nor how they would have altered the
outcome of the case. As a result, defendant has failed to
demonstrate ineffective assistance of counsel on the part of his trial
attorney.
(D.E. No. 12-12, PCR Court Opinion at 9–10). On appeal, the Appellate Division upheld the
lower court’s decision. State v. Green, No. A-3584-14T2, 2017 WL 1034556, at *2 (N.J. Super.
Ct. App. Div. Mar. 17, 2017).
Contrary to Petitioner’s assertions, the state court record reveals that his attorney was aware
of Ms. Soler and Mr. Rosado and he specifically cross-examined Detective Wilson about both
individuals. (D.E. No. 12-23, Ex. 5T, Trial Tr. 14:7–22:22; 207:24–210:25). Detective Wilson
testified that both the victim and Mr. Rosado were dating Ms. Soler at the time of the victim’s
murder. (Id.). In addition, Petitioner’s attorney did not “fail to investigate” Ms. Soler as a
possible witness; counsel informed the court that he was attempting to locate her but his
investigator learned that she had left the country. (Id. at 218:11–14). Petitioner has not disputed
this statement by counsel or pointed to contrary evidence.
The state court also reviewed Ms. Soler’s four statements to police, which at various times
implicated and exculpated Mr. Rosado in the death of Mr. Perez, and concluded there was no
evidence to suggest her testimony would have altered the outcome of the trial. (D.E. No. 12-12,
PCR Court Opinion at 9–10). Her final statement to police indicated that Mr. Rosado was not
involved and that all her previous statements had been lies. Having considered the PCR court’s
conclusion that Ms. Soler had left the country and the lack of evidence as to what her testimony
would have been had she been called to testify, this Court finds that the state court’s rejection of
his ineffective assistance of counsel claim on this ground was not contrary to, or an unreasonable
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application of, clearly established Federal law; nor was it based on an unreasonable determination
of the facts in light of the evidence presented. See Duncan, 256 F.3d at 201–02 (observing that a
showing of prejudice “may not be based on mere speculation about what the witness[ ] [his
attorney] failed to locate might have said”) (quoting United States v. Gray, 878 F.2d 702, 712 (3d
Cir. 1989)); Gregg v. Rockview, 596 F. App’x 72, 77 (3d Cir. 2015) (Strickland requires that
“[c]ounsel . . . make reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary”).
The Court finds Petitioner’s claim regarding his counsel’s cross-examination of Detective
Wilson to be similarly without merit. 5 As stated by the PCR court, counsel conducted a thorough
cross-examination of Detective Wilson, using his grand jury testimony to do so when necessary.
(D.E. No. 12-12, PCR Court Opinion at 9–10). The cross-examination of Detective Wilson was
in-depth and far-reaching. The various questions Petitioner contends were lacking, (such as that
he corrected his name and date upon reviewing his statement, who took his first statement and why
weren’t they called to testify) are not such that there is a reasonable probability that the result of
the proceeding would have been different. (D.E. 12-8, Petitioner’s Brief and Appendix in Support
of PCR Petition, Pro Se Addendum at Da 6 26–28). Accordingly, the state court’s rejection of his
ineffective assistance of counsel claim on this ground was not contrary to, or an unreasonable
application of, clearly established Federal law; nor was it based on an unreasonable determination

5

Petitioner does not provide any specific information regarding counsel’s alleged deficiencies during his
cross-examination of the state’s witnesses. The Court can only surmise that it is the same issue regarding Detective
Wilson’s testimony he raised in his PCR petition in state court. (D.E. 12-8, Petitioner’s Brief and Appendix in
Support of PCR Petition at 13). He discusses the testimony of other state witnesses, but it does not appear he had an
issue with their cross-examination. (Id. at Da 28–29). In fact, the allegedly problematic testimony of the individuals
is clearly contained in the record. Instead, it appears that Petitioner highlighted the testimony of these individuals for
the PCR court because he believed that it generally shows a lack of corroboration for his confession. (Id. at Da 28)

6

The Appendix submitted in the PCR court was paginated in numerical order, with the prefix of “Da.”

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of the facts in light of the evidence presented.
IV.

CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken from a final order in a proceeding under 28 U.S.C.
§ 2254. A certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies
this standard by demonstrating that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). Here, Petitioner has failed to make a substantial showing of the denial of a constitutional
right. Thus, no certificate of appealability shall issue.
V.

CONCLUSION
For the above reasons, the § 2254 habeas petition is denied, and a certificate of

appealability will not issue. An appropriate Order follows.

s/Esther Salas
Esther Salas, U.S.D.J.

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