MAPLES v. WARREN et al
OPINION. Signed by Judge Brian R. Martinotti on 12/6/2016. (km)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GREGORY P. MAPLES, JR.,
Civil Action No. 12-933 (BRM)
MARTINOTTI, DISTRICT JUDGE
Before this Court is the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254
(Dkt. No. 1) submitted by Petitioner Gregory P. Maples, Jr. (“Petitioner”), a prisoner currently
confined at East Jersey State Prison in Rahway, New Jersey. (Dkt. No. 1.) For the reasons stated
herein, the Petition is DENIED. 1
To the extent that Petitioner’s claims are unexhausted, the Court denies them on the merits
pursuant to 28 U.S.C. § 2254(b)(2). 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas
corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State”); see Carrascosa v. McGuire, 520 F.3d 249, 255 n.10
(3d Cir. 2008) (“There is, however, a difference between granting an unexhausted habeas claim
on the merits and denying such a claim on the merits, as recognized by the plain language of
section 2254(b)(2) . . . . Denying an unexhausted claim on the merits is consistent with the
statute.”); Taylor v. Horn, 504 F.3d 416, 427 (3d Cir. 2007) (“Here, because we will deny all of
Taylor’s claims on the merits, we need not address exhaustion.”); Bronshtein v. Horn, 404 F.3d
700, 728 (3d Cir. 2005) (“We would permit Bronshtein to attempt on remand to establish a reason
to excuse his procedural default, but we find it unnecessary to do so because it is apparent that the
claims in question lack merit. Under 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.”).
This Court, affording the state court's factual determinations the appropriate deference, see
28 U.S.C. § 2254(e)(1), 2 will recount salient portions of the recitation of facts as set forth by New
Jersey Superior Court, Appellate Division:
The evidence would support a finding that on April 28, 2002,
defendant, drove the victim, Rashon Roy, to the parking lot of an
apartment complex. After defendant exited the car, another
passenger, Renato Santos, got out of the vehicle and shot Roy
multiple times. Witness testimony established that on April 25,
2002, defendant had accused the victim of trying to have him killed
while he was in Philadelphia with his young son. Defendant was
also involved in an incident during the early morning hours of April
26, in which another co-defendant held a gun to Roy's head and only
desisted from shooting him after defendant ordered him not to. On
this occasion also, defendant had asked Roy “why every time I go
somewheres I feel like my life being threatened?” There was also
testimony that on the morning of the murder defendant discussed
with co-defendants his belief that Roy had tried to have him killed
in Philadelphia, and that Roy was trying to take over defendant's
enterprise after defendant had “put [Roy] on his feet.”
State v. Maples, No. A-6934-03T1 (N.J. Super. Ct. App. Div. 2005).
A jury convicted Petitioner of first-degree murder, N.J.S.A. 2C:11-3, and conspiracy to
commit murder, N.J.S.A. 2C:5-2A(1). State v. Maples, No. A-6934-03T1. After merging the
conspiracy count into the murder count, the court sentenced Petitioner to thirty years in prison with
thirty years of parole ineligibility. Id. Petitioner appealed and the Appellate Division affirmed his
Pursuant to 28 U.S.C. § 2254(e)(1): “In a proceeding instituted by an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of
a factual issue made by a State court shall be presumed to be correct. The applicant shall have the
burden of rebutting the presumption of correctness by clear and convincing evidence.”
conviction and sentence. Id. The New Jersey Supreme Court subsequently denied his petition for
certification. State v. Maples, 884 A.2d 1265 (N.J. 2005). Petitioner filed a petition for postconviction relief (“PCR”) on April 20, 2006, which was denied by the PCR court and affirmed by
the Appellate Division. State v. Maples, No. A-5227-06T4, 2009 WL 901843 (N.J. Super. Ct. App.
Div. Apr. 6, 2009). The petition for certification was denied by the New Jersey Supreme Court on
June 3, 2009. State v. Maples, 973 A.2d 945 (N.J. 2009). Petitioner filed his second PCR petition
on July 14, 2009, and on August 4, 2009, the PCR judge issued a written decision denying the
petition as barred by New Jersey Court Rule 3:22–4 because the issues presented could have been
raised in his first PCR petition. State v. Maples, No. 02-09-1247 (N.J. Super. Ct. Law Div. 2009).
The Appellate Division affirmed, State v. Maples, A-1296-09T4, 2011 WL 2749682 (N.J. Super.
Ct. App. Div. July 18, 2011) and the New Jersey Supreme Court denied certification, State v.
Maples, 35 A.3d 680 (N.J. 2012).
On February 16, 2012, 3 Petitioner filed the instant habeas petition. (Dkt. No. 1.) He raises
the following twenty-six grounds for relief with supporting facts:
Ground 1: Trial court denied Petitioner his constitutional right to a
fair trial when it admitted extremely prejudicial evidence without
balancing the admissibility of the evidence.
The case was terminated on February 21, 2012 for Petitioner’s failure to submit an IFP
application or filing fee. On March 9, 2012, the case was reopened upon receipt of the filing fee.
On March 28, 2012, Petitioner notified the Court that he elected to have his petition decided on
the merits as filed, rather than withdrawing his petition and filing an all-inclusive § 2254 petition
pursuant to 28 U.S.C. § 2244(d). (See Dkt. Nos. 5, 6.) On April 16, 2012, an Order was entered
directing Petitioner to show cause as to why the petition should not be dismissed as time barred
under 28 U.S.C. § 2244(d). (Dkt. No. 8.) On October 9, 2012, the Court found Petitioner’s filings
to be timely and ordered Respondents to file an answer. (Dkt. No. 10.) Respondent’s Answer was
filed on January 7, 2013, prompting a series of filings from January to September 2013 regarding
the timeliness of the petition. (See Dkt. Nos. 16-20.) On March 10, 2015, the case was reassigned
from the Honorable Joel A. Pisano, U.S.D.J. to the Honorable Peter G. Sheridan, U.S.D.J., who
requested transcripts of the State v. Maples trial. Transcripts were filed on May 18, 2016, and the
case was transferred to the undersigned on August 8, 2016.
Supporting facts: Trial court incorrectly determined that
guns pulled out on victim was not a prior bad act or uncharged
crime. The state-ment [sic] has no based of fact and was prejudicial
Ground 2: [Petitioner] was denied his constitutional right to a fair
trial when the court permitted the state to present evidence indirectly
that the crime was over drugs.
Supporting facts: The [Petitioner] was not on trial for drugs
and he does not have a [sic] enterprise or business. And no evidence
of anyone “taking over what defendants doing or business.” [sic]
“Quote from prosecutor” [sic]
Ground 3: Trial court erred when it denied [Petitioner’s] motion for
Supporting facts: No evidence links defendant to crime.
Ground 4: Trial court denied [Petitioner] his constitutional right to
confront witness [sic] against him when denied his ability to
question the state’s witness[.]
Supporting facts: The Judge limited questions to state
witnesses, not given [sic] the defense the opportunity to present his
defense and the ability to make there [sic] case.
Ground 5: Petitioner is entitled to post conviction relief because his
Trial and Appellate attorney rendered ineffective assistance of
Supporting facts: During trial, and on appeal, [Petitioner’s]
attorneys rendered ineffective assistance of counsel. As a result of
the incompetent legal services that petitioner received, he was
unjustly convicted, sentenced, and denied appellate relief.
Therefore, Petitioner should be entitled to post-conviction relief.
Ground 6: Petitioner’s Trial attorney rendered ineffective assistance
of counsel by failing to object to prejudicial remarks by the
prosecution in opening statement.
Supporting facts: And he the [sic] prosecutor said
[Petitioner] who is kind of the head guy in this thing, thought that
the victim was trying to move him out and take over his business.
Ground 7: Counsel failed to object to the prosecution indirectly
referencing [Petitioner] and the victim being involved in illegal drug
This claim appears to be a “catch-all” of the claims that follow it, and is therefore dismissed as
Supporting facts: The prosecutor said the defendant and
victim did business together. And that they were involved in a
Ground 8: Counsel failed to object to the prosecution stating what
Petitioner was thinking.
Supporting facts: The prosecutor said that the Petitioner
thought the victim tryed[sic] to kill him. Thereby, [sic] implying a
Ground 9: [Trial] counsel failed to object to the prosecution
referencing a prior uncharged bad act in opening statement.
Supporting facts: In opening statements, the prosecutor also
stated that “The evidence you are going to hear, starting with
Thursday April 25th of 2000 Maples threatened the victim saying
“[sic]I’m going to kill you.”[sic] Petitioner was not charged with
terroristic threats. Combined, the states [sic] entire opening
statements was [sic] filled with improper commentary.
Ground 10: Petitioner’s Trial attorney rendered ineffective
assistance by describing [Petitioner] as a fearful man in his opening
Supporting facts: The references by the prosecutor were very
prejudicial. So instead of counsel correcting the image the jury
probably had of his client, counsel says that [Petitioner] is a fearful
man, who terrorizes people.
Ground 11: Petitioner’s attorney rendered ineffective assistance by
referencing the trial as a “show”.
Supporting facts: Counsel said, “So I know you are going to
have to listen to five lawyers. And that may be a fate worse than
death . . . I’m going to ask you to sit back and enjoy the show . . .”
Ground 12: Petitioner’s trial attorney rendered ineffective assistance
by failing to obtain a plea agreement on [Petitioner’s] behalf.
[no separate supporting facts stated]
Ground 13: Petitioner’s attorney rendered ineffective assistance of
counsel by failing to argue that the warrant for [Petitioner’s] arrest
Supporting facts: Petitioner argues that his attorney never
motioned to have his arrest warrant, and subsequent indictment,
dismissed based on lack of probable cause.
Ground 14: Petitioner’s trial attorney rendered ineffective assistance
of counsel by failing to have the co-defendant’s [sic] severed.
Supporting facts: It is well established that if it appears that
a defendant is prejudiced by a joinder of offenses or defendants, the
defense should motion to have the defendants severed and the
attorney should have his clients tried separately.
Ground 15: Petitioner’s trial attorney rendered ineffective assistance
of counsel by failing to argue that the prosecution was shifting the
burden of proof onto the defense.
Supporting facts: During summations, the prosecutor stated,
“Now what possible reason in the world would his witness have to
make up a story about defendant.[”] Counsel should have objected
because the defense has no burden of proof – the state does.
Ground 16: Petitioner’s attorney rendered ineffective assistance of
counsel by failing to request lesser included passion/provocation
[no separate supporting facts stated]
Ground 17: Petitioner’s attorney rendered ineffective assistance of
counsel by failing to aggressively argue on behalf of his client
Supporting fact[s:] During Petitioner’s sentencing hearing,
instead of diligently and aggressively arguing for a lesser sentence,
or raising mitigating factors, Mr. Zager pointed out that his client
will probably commit another crime.
Ground 18: Under State v. Rue, 175 N.J. (2002) [sic] Petitioner
argues that his trial and appellate attorneys were incompetent for the
Supporting fact[s]: Trial attorney failed to argue that his
sixth amendment right to counsel was violated whe[n] law
enforcement agents went to jail to speak to him.
Ground 19: Petitioner’s trial attorney rendered ineffective assistance
of counsel by failing to ask certain question on cross-examination.
Supporting facts: Petitioner attorney failed to address that
clothes given to woman were not tested for gun powder.
Ground 20: Defendant was denied effective assistance of counsel, at
his trial, and on direct appeal in violation of his constitutional rights
under both the Sixth Amendment of the United States Constitution
and Article I, paragraph 10 of the New Jersey Constitution.
Supporting facts: When counsel failed to:
1) Call Steven L. Bennett, who would have testified that
James Irwin and Ernesto barber were the persons responsible
for the shooting of Rashan Roy
2) Separate the trials of Renato Santos and defendant, which
would have allowed Santos to testify that he drove victims
3) Object to the prosecutor’s closing remarks regarding the
defense having an obligation to call Sergeant Isnardi as proof
that Isnardi would not have corroborated Sergeant Hayes’
testimony regarding Santos’ statement.
4) Object to the prosecutor vouching for the truthfulness of
Ground 21: Petitioner challengers his sentence of 30 years minimum
and 30 years maximum as illegal because both his minimum and
maximum as the lowest quantity and highest quantity cannot expire
at the same time. In fact, due to the judge’s application of NERA
and its 85% provision, the max term would expire in 25½ years, a
full 4½ before the minimum.
[no separate supporting facts stated]
Ground 22: The [Petitioner] is entitled to a full evidentiary hearing
pursuant to R. 3:22-10 because the [Petitioner] has presented a
prima facie case of [i]neffective assistance of counsel.[ 5]
[no separate supporting facts stated]
Ground 23: Defendant was denied effective assistance of Trial,
Appellate and P.C.R. Counsel in violation of his fourteeth and sixth
Amendment of the U.S. Constitution, and Article I paragraph 10 of
the New Jersey Constitution.
A. Counsel never investigated independent eyewitness Ms.
Barbara McKinnon who’s [sic] statement would have
impeached prosecutor’s star witness Ernesto Barber.
B. Counsel failure to investigate Ms. Ann Cormartie after
she was in contact with Steven Bennett after the shooting.
C. Counsel never cross-examine [sic] co-defendant Marvin
Worthy and Renato Santos. Worthy at trail [sic], Santos at
D. Counsel never argue [sic] a third-party guilt [sic] when
Because the Court will deny the Petition, Petitioner’s request for an evidentiary hearing is
dismissed as moot.
counsel had essential evidence of other parties that
committed said crime.
E. Counsel never ask [sic] for a mistrial when a police officer
was allowed to read a statement form a co-defendant that
was . . . [text cut off]
F. Counsel never objected to State’s witness Ernesto Barber
testifying in front of the jury in prison clothes and the
prosecutor’s references in closing arguments.
G. Counsel never investigate [sic] residing [sic] Judge
having ex-parte communications with a juror over the phone.
Ground 24: Prosecutor misconduct in violation of the [Petitioner’s
fourteenth Amendment of the U.S. and N.J. Constitution.
Supporting facts: The prosecutor’s witness made myriad
statements to police officers and subsequently changed what they
said at trial.
Ground 25: Fundamental injustice the [sic] [Petitioner] should have
never been charged of the murder of Rashon Roy.
Supporting facts: Carrying out the killing of Roy by way of
an order from the defendant. There is no evidence of a murder
committed by the defendant.
Ground 26: [Petitioner’s] 2nd P.C.R. claims should not be
Proceedurally [sic] barred under R. 3:22-4 or 3:22-5.
Supporting facts: Claims involved a violation of the
[Petitioner’s] 14th Amendment Constitutional right to a fair trial.
(Dkt. No. ¶ 12.)
A. Legal Standard
As amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
28 U.S.C. § 2254 provides, in pertinent part:
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district
court shall entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of a State
court only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.
(d) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the claim-(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding . . . .
28 U.S.C. § 2254.
“[Section] 2254 sets several limits on the power of a federal court to grant an application
for a writ of habeas corpus on behalf of a state prisoner.” Cullen v. Pinholster, 563 U.S. 170, 181
(2011); Glenn v. Wynder, 743 F.3d 402, 406 (3d Cir. 2014). 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.” Id.
A federal court’s authority to grant habeas relief is further limited when a state court has
adjudicated petitioner’s federal claim on the merits. See 28 U.S.C. § 2254(d). 6 If a claim has been
“[A] claim has been ‘adjudicated on the merits in State court proceedings’ when a state court
has made a decision that finally resolves the claim based on its substance, not on a procedural, or
other, ground.” Lewis v. Horn, 581 F.3d 92, 100 (3d Cir. 2009) (quoting Thomas v. Horn, 570
F.3d 105, 117 (3d Cir. 2009)). “Section 2254(d) applies even where there has been a summary
denial.” Pinholster, 563 U.S. 170, 187. “In these circumstances, [petitioner] can satisfy the
‘unreasonable application’ prong of § 2254(d)(1) only by showing that ‘there was no reasonable
basis’ for the [state court's] decision.” Id. (quoting Harrington v. Richter, 562 U.S. 86, 98
(2011)); see also Johnson v. Williams, 133 S. Ct. 1088 (2013) (“When a state court rejects a
federal claim without expressly addressing that claim, a federal habeas court must presume that
the federal claim was adjudicated on the merits—but that presumption can in some limited
circumstances be rebutted.”).
adjudicated on the merits in state court proceedings, this Court “has no authority to issue the writ
of habeas corpus unless the [state court’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, 132 S. Ct. 2148, 2151 (2012)
(quoting 28 U.S.C. § 2254(d)). However, when “the state court has not reached the merits of a
claim thereafter presented to a federal habeas court, the deferential standards provided by AEDPA
. . . do not apply.” Lewis, 581 F.3d at 100 (quoting Appel v. Horn, 250 F.3d 203, 210 (3d Cir.
A court begins the analysis under § 2254(d)(1) by determining the relevant law clearly
established by the Supreme Court. See Yarborough v. Alvarado, 541 U.S. 652, 660 (2004). Clearly
established law “refers to the holdings, as opposed to the dicta, of [the Supreme Court’s] decisions
as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).
A court must look for “the governing legal principle or principles set forth by the Supreme Court
at the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).
“[C]ircuit precedent does not constitute ‘clearly established Federal law, as determined by the
Supreme Court,’ [and] therefore cannot form the basis for habeas relief under AEDPA.” Parker,
132 S. Ct. at 2155 (quoting 28 U.S.C. § 2254(d)(1)).
A decision is “contrary to” a Supreme Court holding within 28 U.S.C. § 2254(d)(1) if the
state court applies a rule that “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 [the
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 [the Supreme Court’s]
decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529
U.S. at 413. However, under § 2254(d)(1), “an unreasonable application of federal law is different
from an incorrect application of federal law.” Harrington v. Richter, 562 U.S. 86, 101 (2011)
(quoting Williams, 529 U.S. at 410). “If this standard is difficult to meet—and it is—that is because
it was meant to be.” Burt v. Titlow, 134 S. Ct. 10, 16 (2013) (citations and internal quotation marks
omitted). The petitioner carries the burden of proof, and review under § 2254(d) is limited to the
record that was before the state court that adjudicated the claim on the merits. Pinholster, 563 U.S.
170, 181 (2011).
B. Decision 7
1. Ineffective Assistance of Counsel
The Sixth Amendment, applicable to states through the Due Process Clause of the
Fourteenth Amendment, guarantees the accused the “right . . . to have the Assistance of Counsel
for his defense.” U.S. Const. amend. VI. The right to counsel is the right to the effective assistance
of counsel, and counsel can deprive a defendant of the right by failing to render adequate legal
assistance. See Strickland v. Washington, 466 U.S. 668, 686 (1984).
A claim that counsel’s assistance was so defective as to require reversal of a conviction has
two components, both of which must be satisfied. See Strickland, 466 U.S. at 687. First, the
defendant must “show that counsel’s representation fell below an objective standard of
For the ease of the reader, the Court will group together Petitioner’s “grounds” as follows:
ineffective assistance of counsel; evidentiary issues; sufficiency of the evidence; confrontation
clause; illegal sentence; and PCR issues.
reasonableness.” Id. at 687-88. “[C]ounsel should be ‘strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable professional
judgment.’” Pinholster, 563 U.S. at 189 (citing Strickland, 466 U.S. at 690). “To overcome that
presumption, a defendant must show that counsel failed to act ‘reasonabl[y] considering all the
circumstances.’” Id. (citing Strickland, 466 U.S. at 688).
In addition, a “convicted defendant making a claim of ineffective assistance must identify
the acts or omissions of counsel that are alleged not to have been the result of reasonable
professional judgment.” Strickland, 466 U.S. at 690. The court must then determine whether, in
light of all the circumstances at the time, the identified errors were so serious that they were outside
the wide range of professionally competent assistance. Id.
To satisfy the prejudice prong, the defendant must show “there is a reasonable probability
that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at
695. “It is not enough ‘to show that the errors had some conceivable effect on the outcome of the
proceeding.’ . . . Counsel’s errors must be ‘so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.’” Richter, 562 U.S. at 104 (citing Strickland, 466 U.S. at 687) (internal
citations omitted). As the Supreme Court explained,
In making this determination, a court hearing an ineffectiveness
claim must consider the totality of the evidence before the judge or
jury. Some of the factual findings will have been unaffected by the
errors, and factual findings that were affected will have been affected
in different ways. Some errors will have had a pervasive effect on the
inferences to be drawn from the evidence, altering the entire
evidentiary picture, and some will have had an isolated, trivial effect.
Moreover, a verdict or conclusion only weakly supported by the
record is more likely to have been affected by errors than one with
overwhelming record support. Taking the unaffected findings as a
given, and taking due account of the effect of the errors on the
remaining findings, a court making the prejudice inquiry must ask if
the defendant has met the burden of showing that the decision
reached would reasonably likely have been different absent the
Strickland, 466 U.S. at 695-96.
The Supreme Court instructs a court need not address both components of an ineffective
assistance claim “if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at
697. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.” Id.
a. Prosecutor’s Remarks During Opening Statement (Grounds Six, Seven, Eight, Nine)
In Ground Six of the Petition, Petitioner argues his trial counsel was ineffective when he
failed to object to prejudicial remarks made by the prosecutor during his opening statements.
Specifically, the prosecutor allegedly said Petitioner is “kind of the head guy in this thing. Thought
that the victim was trying to move him out and take over his business.” In Ground Seven of the
Petition, Petitioner alleges trial counsel failed to object to remarks by the prosecutor in opening
statements about Petitioner’s involvement in illegal drug trafficking. In Ground Eight, Petitioner
contends trial counsel was ineffective when he failed to object to the prosecutor’s statement that
“Petitioner thought that the victim tryed [sic] to kill him. Thereby, implying a false motive.”
Finally, in Ground Nine, Petitioner asserts counsel rendered ineffective assistance when he failed
to object to prosecutor’s claim that Petitioner had previously threatened the victim.
On PCR appeal, the Appellate Division rejected these grounds for relief and affirmed for
essentially the reasons stated by the PCR court. Maples, 2009 WL 901843, at *3. The PCR court
stated the following with regard to the claims about the prosecutor’s comments:
Defendant's contentions, therefore, do not amount to ineffective
assistance of counsel in this court's view under the Strictland
[sic]/Fritz standard. Defendant's arguments that trial counsel failed
to object to prejudicial remarks by the prosecution in opening
statements has already been adjudicated specifically by the
Appellate Division and is procedurally barred under Rule 22-5.
Appellate Division specifically found there was no error in these
statements. They specifically addressed in their decision that in fact
counsel and the court and all of the witnesses were very careful not
to make any reference to any type of criminal enterprise in any way,
shape or form. And found that, quite frankly, that they went to great
lengths to talk about a business venture without conjuring up any
thoughts of untoward or illegal activity on the part of the defendant
or his co-defendants in their, quote unquote, business venture.
The defendant seems to submit that that [sic], the colloquialisms
used in the presence of the jury would conjure up nothing except the
inescapable conclusion that the prosecutor was referring to a drug
trafficking business or some other type of illegal activity. The
Appellate Division specifically addressed those concerns and in that
issue and ruled against the defendant in that regard. The matter is
not cognizable here.
(PCR Tr., Resp’t’s Br., Ex. J, (Dkt. No. 16-12) at 9:16-10:25.)
Petitioner has not shown the state court’s holding was contrary to, or involved an
unreasonable application of, clearly established Supreme Court precedent; nor was the decision
based on an unreasonable determination of the facts in light of the evidence presented in the state
court proceeding. With regard to Petitioner’s claims that counsel failed to object to comments
about his “business dealings” and “drug trafficking,” the Appellate Division specifically held on
direct appeal that the prosecutor and witnesses “scrupulously” refrained from mentioning
Petitioner’s involvement with drug dealing. Maples, No. A-6934-03T1. Since there was no
mention of drug dealing by the prosecutor, trial counsel cannot be deemed ineffective for failing
to object, as there was nothing to which he could have objected. Similarly, there was no prejudice
to Petitioner when counsel failed to object to any reference to Petitioner being the “head guy” of
the business, since there had been no reference to the “business” being drug trafficking. Rather,
Petitioner had only been identified as the head of the business in which the victim and he were
involved. Certainly, being identified as the head of a business cannot be deemed prejudicial.
With regard to the prosecutor’s alleged comments about Petitioner’s state of mind and prior
bad acts, the Appellate Division, on direct appeal, determined that discussion of the events leading
up to the murder, specifically the threats allegedly made by Petitioner and possible motive, were
permissible. Maples, No. A-6934-03T1 (“[T]estimony concerning earlier threats by defendant and
co-defendants to kill the victim or to have him killed, and statements by defendant that would
explain his motive for the killing, constituted both evidence of a continuing conspiracy to kill the
victim and part of the res gestae . . . .”). In light of the fact that the Appellate Division found this
evidence admissible, counsel cannot thereafter be deemed ineffective for failing to object to the
prosecutor’s comments. The state court properly rejected Petitioner’s ineffective assistance of
counsel claims on these grounds. Accordingly, habeas relief is denied.
b. Trial Counsel’s Remarks During Opening Statement (Grounds Ten and Eleven)
In Ground Ten, Petitioner alleges trial counsel prejudiced Petitioner by describing him as
a “fearful man” in his opening statements. In Ground Eleven, Petitioner alleges trial counsel
prejudiced Petitioner by referring to the trial as a show. Petitioner raised these arguments in his
first PCR petition, the PCR Court denied relief, and the Appellate Division affirmed the denial.
(Dkt. No. 16-12, at 9:16-15:10); Maples, 2009 WL 901843, at *3-4.
As correctly argued by the State during the PCR proceedings, trial counsel’s comments
were in no way prejudicial, especially when taken in context. Counsel stated the following:
What the prosecutor doesn't tell you and what the evidence will
show is that on Friday night, after this alleged incident happened in
Yonkers, the victim gets in the car with his halfbrother, with my
client and they are going to go party. And not only do they do that
on Friday night where they get stopped by the police, and you will
hear about that, they do it on Saturday night. And the victim is so
terrified of my client he loans him his car. After they drop off – they
are dropped off at the hotel on Saturday night, he is so afraid to party
on Friday and Saturday that he gets back in the car with him on
Sunday morning because he is terrified that my guy is threatening to
kill him. You are going to have to figure all this out.
(Resp’t’s Br., Ex. L, State’s PCR Br. (Dkt. No. 19-15) at 11) (quoting Trial Tr. 5T, 37:24-38:13).
It is clear counsel was being sarcastic and making a point when he implied the victim was terrified
of the Petitioner since the victim had voluntarily chosen to socialize with Petitioner in the days
following Petitioner’s threat. The state court properly rejected this claim because counsel was
acting objectively reasonably and Petitioner did not suffer any prejudice.
With regard to counsel’s other allegedly objectionable comment, he stated the following
during his opening:
So I know you are going to have to listen to five lawyers. And that
may be a fate worse than death. But there is [sic] five pretty good
lawyers here. There is a great judge. And I'm going to ask you to sit
back and enjoy the show, so to speak. It is a murder case. Someone
died. It is not a show.
(Dkt. No. 19-15, at 12 (quoting Trial Tr. 5T, 39:6-39-12).) Taking the comment in context, counsel
was acting reasonably. He used colloquial phrasing to appeal to the jury, but also made it clear he
was not making light of the situation. Moreover, Petitioner suffered no prejudice because of this
innocuous choice of words. Since Petitioner cannot meet either prong of Strickland, the state court
appropriately denied relief.
c. Plea Agreement (Ground Twelve)
In Ground Twelve, Petitioner alleges trial counsel rendered ineffective assistance when he
failed to obtain a plea agreement. This argument was raised in Petitioner’s PCR petition, where it
was rejected by the state courts. Specifically, the Appellate Division stated, “There is no evidence,
however, that the State was interested in plea negotiations or was at any time prepared to offer
defendant a plea agreement.” Maples, 2009 WL 901843, at *3. Petitioner has not shown that the
state court’s holding with regard to this claim was contrary to, or involved an unreasonable
application of, clearly established Supreme Court precedent; nor was the decision based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding. In fact, it is clear counsel acted reasonably and Petitioner did not suffer any prejudice
as a result of counsel’s failure to obtain a plea agreement because, as stated by the Appellate
Division, there was absolutely no evidence the government had any interest in entering into a plea
bargain with Petitioner.
d. Arrest Warrant and Indictment (Ground Thirteen)
In Ground Thirteen, Petitioner alleges trial counsel was ineffective for failing to argue the
arrest warrant and indictment were defective. In support, Petitioner argues counsel “never
motioned to have [Petitioner’s] arrest warrant, and subsequent indictment, dismissed based on lack
of probable cause.” Petitioner raised this argument in his PCR petition, and the PCR court found
it lacked merit:
Defendant further claims counsel was ineffective for failing to argue
that the indictment should have been dismissed because it lacked
probable cause. Well, that’s exactly what an indictment is. A Grand
Jury has reviewed the evidence presented and in fact found there
was probable cause to believe that a crime had been committed and
the persons named committed the crime. That's what a true bill of
indictment is. So, it is impossible by definition for a matter that’s
been indicted to lack probable cause because the sole purpose of the
Grand Jury is to determine that probable cause exists.
To require his counsel to make that argument is in fact not
ineffective assistance of counsel. And in fact in this case trial
counsel did move to dismiss the indictment. And that application
was denied. Apparently, the defendant feels that it was ineffective
assistance of counsel to lose that motion. That's not so.
(Dkt. No. 16-12, at 11:15-12:8.) As correctly articulated by the state court, Petitioner’s ineffective
assistance of counsel claim on this ground is without merit. Trial counsel did in fact move to have
the indictment dismissed, the very act which Petitioner is now alleging counsel failed to do.
(Resp’t’s Supp. Br., Ex. 2, Motion Tr. (Dkt. No. 23-2).) Since trial counsel did challenge the
indictment, clearly Petitioner cannot meet the first prong of Strickland. The state court’s holding
with regard to this claim was not contrary to and did not involve an unreasonable application of
clearly established Supreme Court precedent; nor was the decision based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.
Accordingly, habeas relief is denied.
e. Severing of Co-Defendants (Grounds Fourteen and Twenty (b))
In Ground Fourteen and subsection (b) of Ground Twenty, Petitioner alleges trial counsel
rendered ineffective assistance when he failed to have the co-defendants severed. In support of this
ground, Petitioner argues that “if it appears that a defendant is prejudiced by a joinder of offenses
or defendants, the defense should motion to have the defendants severed.” Petitioner raised this
ground in his PCR petition and both the PCR court and Appellate Division rejected it as without
The defendant claims counsel was ineffective for failing to move to
sever the defendants at trial.
Again, trial counsel did raise this issue for severance or redaction
after the Miranda hearing regarding the co-defendant’s Santos’
statement to police. And the trial court ruled that the statement
would be admissible but would not permit any references
implicating any of the co-defendants. So only a redacted statement
So counsel in fact made the appropriate applications that the
petitioner says he failed to make. He didn't like Judge Turnbach’s
ruling. But those issues have been adjudicated on direct appeal and
are not cognizable here.
(Dkt. No. 16-12, at 9:16-15:10.) As correctly articulated by the state court, Petitioner’s ineffective
assistance of counsel claim on these grounds are without merit. Trial counsel did seek to have the
co-defendants severed and though he was not successful, the co-defendant’s statement was
redacted so as to remove any reference to Petitioner. Since counsel sought the very relief Petitioner
is claiming he failed to seek, clearly Petitioner cannot meet the first prong of Strickland. The state
court’s holding with regard to these claims was not contrary to and did not involve an unreasonable
application of clearly established Supreme Court precedent; nor was the decision based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding. Accordingly, habeas relief is denied on these grounds.
f. Prosecutor’s Remarks During Closing Statement (Grounds Fifteen and Twenty (c), (d))
In Ground Fifteen, Petitioner alleges trial counsel rendered ineffective assistance when he
failed to argue the prosecutor was shifting the burden onto the defense. More precisely, Petitioner
asserts that in his summation, the prosecutor questioned what motive a state witness would have
to lie about Petitioner. In Grounds Twenty (c) and (d), Petitioner alleges counsel was ineffective
when he failed to object to the prosecutor’s statement during closing remarks that the defense had
an obligation to call Sergeant Isnardi “as proof that Isnardi would not have corroborated Sergeant
Hayes’ testimony regarding Santos’ statement” and when the prosecutor vouched for the
truthfulness of Sergeant Hayes. Petitioner raised these claims in his first PCR petition, which were
summarily denied by the state courts.
Petitioner has failed to meet either prong of Strickland. As detailed by the government in
the PCR appeal, during his summation, the prosecutor stated the following with regard to the
testimony of state witness Hakeem Shabazz:
Now what possible reason in the world would Hakeem Shabazz
have to make that story up about Gregory Maples and Marvin
Worthy and Renato Santos? You haven't heard one word, didn't hear
one question on cross examination about what bone he has to pick
with any of them. Not one.
(Dkt. No. 19-15, at 12 (quoting Trial Tr. 10T, 94:13-94:18)).
With regard to Sergeants Hayes and Isnard, the prosecutor stated the following:
There have been a lot of other things that have been said here today.
Mr. Kinarney just flat-out accused Sergeant Hayes of lying. Where
is the tape? Well, he can't take a tape. Once Santos says, “I’m done
talking,” he can’t say anything else to him. That's just the way it is.
He says you have to take Hayes’ word for it? Well, you heard
Sergeant Hayes tell you yesterday or a couple of days ago -- excuse
me -- that once Santos told him what happened, he brought Sergeant
Isnardi back in the room, and Santos repeated it in front of Sergeant
Now, do you think for one second that if Mr. Kinarney thought
Sergeant Isnardi was going to say something different than Sergeant
Hayes said, he wouldn't have brought him in here? And if Hayes
was going to lie about it, since as Mr. Kinarney reported out this
morning, his report wasn’t filled out for about seven or eight days,
why wouldn’t he doctor-up the motive about who was getting run
over in Philly?
Because by then, he knows, at least from Barber and from both
Shabazz brothers, that it was Maples who claimed he had a problem
with the victim trying to kill him in Philly, not Santos having that
problem. So if you are going to lie about it, why not implicate
Maples through Santos, and make the stories all match up?
(Resp’t’s Supp. Br., Ex. 11, Trial Tr. 11T (Dkt. No. 23-11), at 106:5-107:7 (May 13, 2004).)
Certainly, these statements did not improperly shift the burden to the defense. Rather, the
prosecutor was simply summarizing evidence supporting the testimony from the state’s witnesses.
Declining to object to such statements is how any objectively reasonable attorney would have
acted. Moreover, Petitioner suffered no prejudice based on counsel’s decision not to object. The
jury was instructed and well aware that the state had the burden to prove Petitioner’s guilt and
these statements by the prosecutor during his closing argument did not in any way shift that burden.
The state courts properly rejected Petitioner’s claim on these grounds. Accordingly, habeas relief
g. Lesser Included Charges (Ground Sixteen)
In Ground Sixteen, Petitioner alleges trial counsel rendered ineffective assistance when he
failed to request lesser included charges of passion/provocation. Petitioner raised this issue in his
PCR petition and both the PCR court and the Appellate Division denied relief. As the PCR Court
Lastly, the defendant argues that counsel was ineffective for failing
to request a lesser included offense. And, again, while the record is
in stark contrast to this argument, he still puts forth this, because he
objected that the charges of lesser included offense were actually
While discussing the charges counsel stated, and I quote, I reviewed
the charge with my client. You have included lesser included
offense charges of aggravated manslaughter and reckless murder
under the count of murder. In nine out of 10 cases, judge, I would
ask for the charge. And I think the judge would give it even if I didn't
ask. My clients doesn't want those charges. We are having a little
dispute about that, but my client is of the opinion that it is, quite
frankly, all or nothing.
There is an indication that based upon the state's theory of this case
this was a planned murder. This wasn't passion provocation. This
wasn't a reckless shooting to constitute aggravated manslaughter.
This was a planned murder. A purposeful and knowing murder. And
that's the state's case.
Now he comes before this court and he says, his counsel was
ineffective because he didn't request the lesser included charges
including passion provocation manslaughter.
Now, I've heard some pretty ridiculous arguments before, but this
one rises to the level of absurdity to be considered by this court.
(Dkt. No. 16-12, at 12:23-14:1.) The Appellate Division found that “[r]egarding the failure to
seek a lesser-included offense charge, the trial record reflected that it was defendant's choice to
forego those charges, apparently against counsel's advice.” Maples, 2009 WL 901843, at *3-4.
As articulated by the state courts, the record establishes that trial counsel wanted to seek
lesser included charges, but Petitioner himself refused to allow it. Petitioner cannot now argue his
counsel was ineffective for failing to request such charges. Any objectively reasonable attorney
would have acted similarly. Petitioner cannot meet the first prong of the Strickland test, therefore,
the state courts properly denied relief on this ground.
h. Sentencing (Ground Seventeen)
In Ground Seventeen, Petitioner alleges trial counsel rendered ineffective assistance when
he failed to aggressively argue on behalf of his client during sentencing. To support this claim,
Petitioner asserts that, during his sentencing hearing, counsel failed to “diligently and
aggressively” argue for a lesser sentence; failed to raise mitigating factors; and pointed out his
client will “probably commit another crime.” Petitioner raised this issue in his PCR petition and it
was summarily denied by the state courts.
Even if the state courts had accepted Petitioner’s assertions and found counsel acted
unreasonably during sentencing, Petitioner cannot meet the prejudice prong of Strickland. He
was found guilty of first-degree murder pursuant to N.J.S.A. 2C:11-3, which carries with it a
mandatory minimum sentence of 30 years, with 30 years of parole ineligibility. See N.J.S.A. §
2C:11-3(b)(1) (“[A] person convicted of murder shall be sentenced . . . by the court to a term of
30 years, during which the person shall not be eligible for parole, or be sentenced to a specific term
of years which shall be between 30 years and life imprisonment of which the person shall serve 30
years before being eligible for parole.”) Since Petitioner received a sentence of 30 years with 30
years of parole ineligibility, the minimum sentence he could receive for a murder conviction, he
clearly suffered no prejudice as a result of trial counsel’s alleged errors during sentencing.
i. Interaction with Law Enforcement (Ground Eighteen)
In Ground Eighteen, Petitioner alleges trial and appellate counsel rendered ineffective
assistance pursuant to “State v. Rue, 175 N.J. (2002)” when they failed to argue Petitioner’s rights
were violated when law enforcement officials spoke to him at the jail. Petitioner raised this claim
in his PCR petition and it was denied by the state courts. The Law Division stated:
Lastly, the defendant argues that Appellate counsel failed to argue a
sixth Amendment right counsel was violated when law enforcement
agents went to speak to him while he was incarcerated. The
statement is unsupported by any of the evidence and fails to address
how his rights were violated, or how this in any way affected or
caused him prejudice in the trial. The bear [sic] assertion without
more does not rise to a level of ineffective assistance of counsel.
(Dkt. No. 16-12, at 9:16-15:10.) In its opinion upholding the lower court, the Appellate Division
stated, “No evidence of record supported defendant's claim that his Sixth Amendment right to
counsel was violated when law enforcement agents spoke to him while incarcerated; moreover, as
the PCR court noted, defendant ‘fail[ed] to address how his rights were violated, or how this in
any way affected or caused him prejudice in the trial.’” Maples, 2009 WL 901843, at *3-4.
Petitioner has not shown that the state court’s holding with regard to this claim was contrary
to, or involved an unreasonable application of, clearly established Supreme Court precedent; nor
was the decision based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding. The state courts properly examined this argument and
determined Petitioner has not established counsel acted objectively unreasonably in failing to raise
this issue on appeal; nor did he establish he suffered any prejudice whatsoever as a result of
counsel’s failure to raise this issue. Since he cannot meet either prong of Strickland, the state courts
properly denied him relief on this ground and this Court will deny habeas relief.
j. Inadequate Cross-Examination (Ground Nineteen)
Finally, in Ground Nineteen, Petitioner alleges trial counsel rendered ineffective assistance
when he failed to ask certain questions on cross-examination; namely, he failed to “address that
clothes given to woman were not tested for gun powder.” In his Reply, Petitioner clarified his
argument, stating that “the clothes given to Ms. Ann Cromartie from [Steven] Bennett 8 for a ride
to Irwin’s house was [sic] not tested fun [sic] gun powder. There was [sic] bullets at the scene that
didn’t match the two guns given to Officer’s [sic] by Barber so those clothes should have been
tested from Bennett to see if he had a gun.” (Reply 6.)
Petitioner cannot meet either prong of Strickland. It is unclear what questions Petitioner
felt counsel should have asked during cross-examination and to what witness the questions should
have been directed. Moreover, it is mere speculation on the part of Petitioner that the clothes
contained any gun powder residue and even if it did, how that would prove Bennett had a gun.
As discussed more fully below, Steven Bennett is an individual who was present during the
commission of the crime.
Finally, Petitioner has not asserted any prejudice he suffered as a result of the failure to crossexamine an unspecified witness on this issue. Because Petitioner has failed to meet either prong
of the Strickland test, habeas relief will be denied on this ground.
k. Failure to Call Witness (Ground 20(a))
In subsection (a) of Ground Twenty of his Petition, Petitioner argues his trial counsel
rendered ineffective assistance when he failed to call Steven L. Bennett as a witness. In his Reply,
Petitioner argues Mr. Bennett would have testified that James Irwin and Ernesto Barber, two others
who were present during the incident, were responsible for the shooting of the victim. Petitioner
raised this issue in his first PCR petition and the state courts denied relief. Specifically, the
Appellate Division stated, “Defendant's contention that a witness named Steven L. Bennett would
have testified that two other individuals were ‘responsible for the shooting of [the victim],’ is not
supported in the record; therefore, the claim that counsel was ineffective for failing to call Bennett
to testify at trial is without merit.” Maples, 2009 WL 901843, at *3-4.
Here, Petitioner has not shown the state court’s holding with regard to this claim was
contrary to, or involved an unreasonable application of, clearly established Supreme Court
precedent; nor was the decision based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding. The state court properly determined Petitioner
had not met either prong of the Strickland test. There was nothing in the record to indicate Steven
Bennett would have provided such exculpatory testimony, and such unsupported statements by
Petitioner were insufficient to establish that counsel was ineffective. 9 Habeas relief will be denied
In his Reply, Petitioner does provide a copy of a report from the Ocean County Prosecutors’
Office containing notes from an interview with Steven Bennett conducted on November 24, 2003.
(Pet’r’s Reply (Dkt. No. 17-1), at Da34-36.) During that interview, Mr. Bennett indicated that,
while he was running from the scene of the crime, he also saw the victim running with him, as
on this ground.
2. Evidentiary Issues (Grounds One and Two)
In the first ground of the Petition, Petitioner argues the trial court improperly allowed
testimony regarding a prior incident between the victim and Petitioner. At trial, evidence was
introduced which established that Petitioner “was also involved in an incident during the early
morning hours of April 26, in which another co-defendant held a gun to [the victim’s] head and
only desisted from shooting him after defendant ordered him not to.” Maples, No. A-6934-03T1.
In the second ground of the Petition, Petitioner argues the trial court improperly allowed evidence
that indirectly indicated the crime was drug-related. Both grounds were raised on direct appeal and
denied by the Appellate Division:
We conclude, as did the trial judge, that the evidence concerning the
events from April 25 through April 28, 2002, prior to the murder,
did not constitute other crimes evidence for purposes of N.J.R.E.
404(b), and hence a Rule 104 hearing was not required pursuant to
State v. Cofield, 127 N.J. 328, 338 (1992). Testimony concerning
earlier threats by defendant and co-defendants to kill the victim or
to have him killed, and statements by defendant that would explain
his motive for the killing, constituted both evidence of a continuing
conspiracy to kill the victim and part of the res gestae. See State v.
Long, 173 N.J. 138, 154 (2002). Accordingly, we reject defendant's
contentions, for the reasons stated in the cogent oral opinion of
Judge Turnbach, set forth on the record on May 4, 2004.
We also reject defendant’s contention that the State improperly
placed other crimes evidence before the jury by referring, implicitly,
well as Mr. Irwin, another individual who was present. However, Mr. Bennett specifically stated
that he did not see who shot the victim. Additionally, Mr. Bennett had previously told police a
different story about the events of that night, which included a statement that he was behind a
building with a woman when the shots were fired and he did not see anything. Based on the
conflicting stories given by Mr. Bennett, there is nothing to indicate what his testimony would
have been, had counsel called him to the stand. Moreover, since both statements by Mr. Bennett
included the fact that he did not see who had actually shot the victim, as well as the fact that it was
not even Petitioner himself who shot the victim, there is no indication that, but for the failure to
call Mr. Bennett as a witness, the jury would have had reasonable doubt respecting guilt.
to defendant’s drug dealing. We find, to the contrary, that the
prosecutor and all of the State’s witnesses scrupulously refrained
from any mention of defendant's alleged involvement in illegal drug
sales. Any references to the defendant’s enterprise were carefully
couched in terms of defendant’s “business” or even more obliquely
in terms of “what [defendant’s] doing,” without describing the
nature of the business.
It is well-established that the violation of a right created by state law is not cognizable as a
basis for federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“We have stated
many times that ‘federal habeas corpus relief does not lie for errors of state law.’” (quoting Lewis
v. Jeffers, 497 U.S. 764, 780 (1990))). Accordingly, Petitioner cannot obtain relief for any errors
in state law evidentiary rulings, unless they rise to the level of a deprivation of due process. Spencer
v. Texas, 385 U.S. 554, 563-64 (1967) (“[T]he Due Process Clause guarantees fundamental
elements of fairness in a criminal trial . . . .”); accord Estelle, 502 U.S. at 70. For a habeas petitioner
to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must
show that the error was so pervasive as to have denied him a fundamentally fair trial. Keller v.
Larkins, 251 F.3d 408, 413 (3d Cir. 2001).
Both of Grounds One and Two in the Petition allege violations of state evidentiary rules.
Therefore, to obtain federal habeas relief, Petitioner must show that these violations deprived him
of due process. He cannot make such a showing. The state court properly considered the previous
incident between Petitioner and the victim and determined that it did not constitute other crimes
evidence but instead evidence of a continuing conspiracy. Petitioner has not shown that such a
determination was an error, never mind that it was an error that was so pervasive as to have denied
him a fundamentally fair trial. Petitioner’s claim regarding the “indirect evidence” that the crime
involved drugs likewise fails. As properly stated by the Appellate Division, the state trial court
was very careful to ensure that there was no mention of drugs during testimony. Given the fact that
drugs were not discussed, Petitioner certainly cannot establish that there was an error which denied
him a fundamentally fair trial. Habeas relief will be denied on both grounds.
3. Sufficiency of the Evidence (Grounds Three and Twenty-Five)
In Ground Three of the Petition, Petitioner argues that the trial court erred when it denied
his motion for an acquittal because there was no evidence linking Petitioner to the crime. Ground
Twenty-Five of the Petition raises a nearly identical claim. Petitioner raised this issue in his direct
appeal and it was summarily denied by the Appellate Division.
A sufficiency of the evidence claim is governed by Jackson v. Virginia, 443 U.S. 307, 318
(1979). “[I]n a challenge to a state criminal conviction brought under 28 U.S.C. § 2254—if the
settled procedural prerequisites for such a claim have otherwise been satisfied—the applicant is
entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no
rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Id. at 324; accord
McDaniel v. Brown, 558 U.S. 120, 121 (2010); Eley v. Erickson, 712 F.3d 837, 847 (3d Cir. 2013).
a reviewing court to review the evidence in the light most favorable
to the prosecution. Expressed more fully, this means a reviewing
court faced with a record of historical facts that supports conflicting
inferences must presume-even if it does not affirmatively appear in
the record-that the trier of fact resolved any such conflicts in favor
of the prosecution, and must defer to that resolution.
McDaniel, 558 U.S. at 133 (internal citations and quotations omitted); see also House v. Bell, 547
U.S. 518, 538 (2006) (“When confronted with a challenge based on trial evidence, courts presume
the jury resolved evidentiary disputes reasonably so long as sufficient evidence supports the
The Supreme Court emphasized that “the standard . . . does not permit a court to make its
own subjective determination of guilt or innocence.” Jackson, 443 U.S. at 320, n.13. “‘[A]
reviewing court must consider all of the evidence admitted by the trial court,’ regardless whether
that evidence was admitted erroneously,” McDaniel, 558 U.S. at 131 (quoting Lockhart v. Nelson,
488 U.S. 33, 42 (1988)), and “under Jackson, the assessment of credibility of witnesses is generally
beyond the scope of review,” Schlup v. Delo, 513 U.S. 298, 330 (1995). The question is “whether,
viewing the evidence in the light most favorable to the state, it was objectively unreasonable for
the Appellate Division to conclude that a rational trier of fact could have found, beyond a
reasonable doubt that [petitioner] was guilty . . . .” Kamienski v. Hendricks, 332 F. App’x 740, 747
(3d Cir. 2009).
Petitioner first raised this issue in his motion for acquittal at the close of the state’s case at
trial. The court denied the motion, stating the following:
All right-Well, with regard to this matter, as counsel's aware, the
court accepts the evidence presented by the State, views it in its most
favorable light, and gives the State the benefit of reasonable
inferences that can be drawn there from.
During the course of the trial here, to the best of my recollection,
I've heard testimony of the Shabazz brothers, who were brothers of
the victim, with regard to a course of conduct involving the
defendants. Worthy, Santos and Maples and the victim, starting
three days prior to the murder of the victim.
The course of conduct was rather violent in nature, in that guns were
possessed by the defendants, two of the defendants, and threats were
exchanged, and there was an indication that there was some concern
that one of the defendants thought the victim tried to do him physical
harm in Philadelphia, and threats were exchanged and guns were
displayed starting three days prior to April 28th. And that's the best
of my recollection.
I have heard testimony that on April 28th the defendants Worthy and
Maples appeared at the Highpoint condominium complex in
Lakewood early in the morning; they spoke with Mr. Barber, a
State's witness, as well as the accused Irwin in this case, allegedly-that's the testimony -- and there was some discuss, even at that that
point by the defendant with Worthy about the events three days
earlier, and the fact that, you know, violence could be done to the
victim in this case.
Worthy and Maples left and went – I think it was Worthy who
returned in the Acura. They both left in the Jeep. Worthy returned
in the Acura. There was testimony that Worthy then, along with
several others including Mr. Barber, went and retrieved a handgun
at Winteringham Village in Toms River, and returned to the
And there was testimony that, shortly thereafter, the green Jeep was
again in the parking lot of the Highpoint complex, and in the green
Jeep was the defendant Worthy with the defendant Santos. The
defendant Maples entered the Jeep, and there was testimony that the
shots were fired and that the victim came out of the Jeep and started
to run, not very well, apparently, having been shot, and that the
defendant Santos then pursued him and kept shooting at him until
he fell dead.
Once again, it's not up to the court to pass upon the credibility of the
evidence, but merely to note the presence of evidence and that it is
sufficient in nature to justify submission of the case to the jury, along
with all the ballistics information and other items that have been
admitted into evidence.
So, all of the motions are denied.
(Trial Tr. 10T, Resp’t’s Supp. Answer, Ex. 10 (Dkt. No. 23-10) at 50:10-52:12.) The Appellate
Division summarily affirmed.
Looking at the evidence in the light most favorable to the prosecution, the trial court
properly found that there was a credibility issue regarding the testimony of Mr. Barber which the
jury needed to evaluate. It was not up to the court to make that credibility determination; rather the
court only needed to find the existence of sufficient evidence for a rational trier of fact to find
Petitioner guilty beyond a reasonable doubt. Having made that finding, the court properly denied
Petitioner’s motion for acquittal. Thus, the New Jersey court's adjudication of Petitioner's
sufficiency of the evidence claim was not contrary to, or an unreasonable application of Jackson
and its progeny, and Petitioner is not entitled to habeas relief on Grounds Three and Twenty-Five.
4. Confrontation Clause (Ground Four)
Ground Four of the Petition raises a claim under the Confrontation Clause. Petitioner
alleges that his rights were violated when the trial court limited his ability to question a state
witness at trial. During the cross-examination of state witness Detective Scott Frey, a forensic
crime scene processor, Petitioner’s attorney attempted to ask whether he was “aware that on April
28, 2002, the Sunday of the shooting, that Mr. Maples' sister's boyfriend lived at the High Point
apartment building?” (Resp’t’s Supp. Answer, Ex. 6, State v. Maples, No. 02-09-1247 (N.J. Super.
Ct. Law Div. 2007), Trial Tr. 6T (Dkt. No. 23-7), at l14:25.) The prosecutor objected on the basis
of relevancy and assuming facts not in evidence. Id. The trial court sustained the objection and the
following transpired at sidebar:
THE COURT: First of all, I sustained the objection, because if he is
going to respond, it would necessarily be a hearsay response, unless
he lived there too. If you want to ask him that, whether he lived there
too, if he knows anybody else that lives there you can get a
foundation that way. But other than that, its going to be hearsay.
MR. ZAGER: Well, I would think, Judge - MR HEISLER: Judge, I'm pretty sure the detective has no idea. And
Mr. Zager putting out this fact of, Are you aware of whether
somebody lives in this . . . he's trying to tell the jury that's a fact.
THE COURT: Sure. That's something that will have to come in his
MR. HEISLER: Yeah.
MR. ZAGER: I think I'm entitled to ask the question knowing that
there may be somebody on the witness stand who is going to testify
he's aware of it.
MR. HEISLER: What relevance does it make whether he's aware of
it or not?
MR. ZAGER: I don't care he's - - he's going to argue to the jury Mr.
Maples' van was there, and this whole thing was set up. And I'm
certainly allowed to question him- THE COURT: You could produce evidence, “Oh contraire,” as they
MR. ZAGER: I should be allowed to do it through his witnesses,
THE COURT: Yes, hearsay- MR. ZAGER: Judge - THE COURT: - - unless he talked to Gregory Maples, and Gregory
Maples said something.
MR.ZAGER: If he's - THE COURT: Even then it might be self-serving.
MR. ZAGER: I'll note my objection.
(Id. at 115:14-116:25.) Petitioner raised this issue on direct appeal, but it was summarily denied
by the Appellate Division.
“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him . . . .” U .S. Const. Amend. VI. The right is secured for defendants in
state as well as federal criminal proceedings by the Fourteenth Amendment. See Pointer v. Texas,
380 U.S. 400, 403 (1965). The protections of the Confrontation Clause necessarily include the
right to cross-examination of a witness. See Smith v. Illinois, 390 U.S. 129, 131 (1968). The scope
of such cross-examination is, generally, that broad and basic information cannot be excluded; for
instance, where credibility is at issue, the trial court cannot ordinarily prohibit defendant from
inquiring into a witness’s identity and residence. See id. Such questions are “not only an
appropriate preliminary to the cross-examination of the witness, but . . . [are] an essential step in
identifying the witness with his environment, to which cross-examination may always be
directed.” Id. at 132 (quoting Alford v. United States, 282 U.S. 687, 693 (1931)). In other words,
the defendant must be able “to make a record from which to argue [that the witness] might have
been biased or otherwise lacked that degree of impartiality expected of a witness at trial.” Id.
However, the right to cross-examination is not without limits, as “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). Thus, the scope of cross-examination regarding a particular line of inquiry falls
necessarily “within the sound discretion of the trial court,” and “it may exercise a reasonable
judgment in determining when [a] subject is [inappropriate].” Alford, 282 U.S. at 694. “[T]rial
judges retain wide latitude . . . to impose reasonable limits on such cross-examination based on
concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’[s]
safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986).
Petitioner only raises this ground based on a violation of state evidence rules. However,
the violation of a right created by state evidentiary law is not itself cognizable as a basis for federal
habeas relief. See Estelle, 502 U.S. at 67–68. Moreover, even if the Court were to presume
Petitioner intended to raise a Confrontation Clause violation, he is still not entitled to habeas relief.
The limitation of Detective Frey’s cross-examination regarding an issue completely unrelated to
his testimony, which also assumed facts not in evidence, was well within the discretion of the trial
court. Further, the state court ruling was not contrary to, and did not involve an unreasonable
application of, clearly established federal law. Accordingly, this ground for habeas relief is denied.
5. Illegal Sentence (Ground Twenty-One)
In Ground Twenty-One of the Petition, “Petitioner challenges his sentence of 30 years
minimum and 30 years maximum as illegal because both his minimum and maximum as the lowest
quantity and highest quantity cannot expire at the same times. In fact, due to the judge’s application
of NERA and its 85% provision, the max term would expire in 25 ½ years, a full 4 ½ before the
Absent a claim that a sentence constitutes cruel and unusual punishment prohibited by the
eighth amendment, or that it is arbitrary or otherwise in violation of due process, the legality and
length of a sentence are questions of state law over which this Court has no jurisdiction under §
2254. See Chapman v. United States, 500 U.S. 453, 465 (1991) (holding that under federal law,
“the court may impose . . . whatever punishment is authorized by statute for [an] offense, so long
as that penalty is not cruel and unusual . . . and so long as the penalty is not based on an arbitrary
distinction that would violate the Due Process Clause of the Fifth Amendment”); see also Grecco
v. O’Lone, 661 F. Supp. 408, 415 (D.N.J. 1987). Here, Petitioner was convicted of first degree
murder and received the lowest possible sentence for said crime under New Jersey law. See
N.J.S.A. § 2C:11-3(b)(1) (“Murder is a crime of the first degree but a person convicted of murder
shall be sentenced . . . by the court to a term of 30 years, during which the person shall not be
eligible for parole, or be sentenced to a specific term of years which shall be between 30 years and
life imprisonment of which the person shall serve 30 years before being eligible for parole.”)
Certainly, this sentence does not violate his federal constitutional rights. Habeas relief is denied.
6. PCR Issues (Grounds Twenty-Three, Twenty-Six)
In Ground Twenty-Three of the Petition, Petitioner argues that PCR counsel 10 was
ineffective for failing to raise the following errors committed by trial counsel:
A: Counsel never investigated independent eyewitness Ms. Barbara
McKinnon who’s [sic] statement would have impeached
prosecutor’s star witness Ernesto Barber.
B. Counsel [sic] failure to investigate Ms. Ann Cromartie after she
was in contact with Steven Bennett after the shooting.
C. Counsel never cross-examine co-defendant Marvin Worthy and
Renato Santos. Worthy at trail [sic], Santos at hearing.
D. Counsel never argue [sic] a third party guilt when counsel had
essential evidence of other parties that committed said crime.
E. Counsel never ask [sic] for a mistrial when a police officer was
allowed to read a statement from a co-defendant that was [cut off]
F. Counsel never objected to State’s witness Ernesto Barber
testifying in front of the jury in prison clothes and the prosecutor’s
references in closing arguments.
G. Counsel never investigate [sic] residing [sic] judge having exparte communication with a juror over the phone.
(Pet. ¶ 12(23).) In Ground Twenty-Five, Petitioner challenges the PCR court’s determination that
his second PCR petition was procedurally barred under state court rules.
In the Petition, it was not clear as to whether this claim was brought against trial, appellate or
PCR counsel. Petitioner lists all three, but then underlines only PCR counsel. However, in his
Reply, Petitioner clarifies, stating that “PCR counsel was ineffective for failing to raise that
counsel failed to . . . . ” (Dkt. No. 17, at 7.)
As set forth in this Opinion, Petitioner is entitled to federal habeas relief for violations of
the Constitution, laws or treaties of the United States. See 28 U.S.C. § 2254(a). Claims based on
state law error are not cognizable. See Estelle, 502 U.S. at 67–69. Furthermore, “the federal role
in reviewing an application for habeas corpus is limited to evaluating what occurred in the state or
federal proceedings that actually led to the petitioner's conviction; what occurred in the petitioner's
collateral proceeding does not enter into the habeas calculation.” Hassine v. Zimmerman, 160 F.3d
941, 954 (3d Cir. 1998); see also Lambert v. Blackwell, 387 F.3d 210, 247 (3d Cir. 2004)
(“[H]abeas proceedings are not the appropriate forum for Lambert to pursue claims of error at the
PCRA proceeding.”); 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during
Federal or State collateral post-conviction proceedings shall not be a ground for relief in a
proceeding arising under section 2254.”).
Therefore, Petitioner's claim that his PCR counsel was ineffective for failing to advance
his claims regarding trial counsel’s performance and his claim that the PCR court erred in its
application of New Jersey court rules are not properly before this Court as grounds for habeas
relief. Accordingly, these claims are denied. See Davis v. New Jersey, No. 12–5748, 2014 WL
2615657, at *17 (D.N.J. June 12, 2014); Vreeland v. Warren, No. 11–5239, 2013 WL 1867043, at
*4 n.2 (D.N.J. May 2, 2013).
7. Prosecutorial Misconduct (Ground Twenty-Four)
In Ground Twenty-Four, Petitioner raises a claim for “prosecutor misconduct in violation
of the defendant’s fourteeth [sic] Amendment of the U.S. and N.J. constitution.” (Pet. ¶ 12(24).)
In support, he states only that the “prosecutor’s witnesses made myriad statements to police
officers and subsequently changed what they said at trial.” Id. In his Reply, Petitioner provided
Halim Shabazz testifies to an incident in Yonkers N.Y. how
Petitioner and Co-Defendants pulled guns on him and the victim and
threatened them, well he told Officer Vincent Frulio. The Officer
testified to what he told him, that he was sleep and the victim told
him the next day (Exhibit P) portion of Indictment Hearing. And the
Prosecutor that was prosecuting the case was the prosecutor at that
Indictment Hearing. Ernesto Barber even admitted to lying to police
and jury. This was very improper misconduct for a representative of
the Law to engage in. The Prosecutors job is to prosecute guilty
person's in violation of the Law, not Innocent person's that are
suppose to be protected by the Law. No one said they'd seen
Petitioner get into an Acura and leave the area but, State's Witness
Barber, No Corroborating Witness. But there is a few witnesses that
saw Barber come from where the victim lay shot and left in his truck
(Exhibit H). The Prosecutor knows these facts. the Prosecutor used
false information and knew the information to be false. Therefore
committing Misconduct in violation of the Defendant's rights that
are guaranteed under the U.S. Constitution.
(Reply 8.) Petitioner raised this issue in his second PCR appeal, which the Appellate Division
denied as procedurally barred. Maples, 2011 WL 2749682, at *2.
Federal habeas review is limited to determining whether the prosecutor's conduct “so
infected the trial with unfairness as to make the resulting conviction a denial of due process.”
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). In making this determination, courts must
examine the entire proceedings of the case. Id. Courts must consider the prosecutor's conduct, the
effect of curative instructions, and the strength of the evidence. Moore v. Morton, 255 F.3d 95,
107 (3d Cir. 2001) (citing Darden v. Wainwright, 477 U.S. 168, 183 (1986); Donnelly, 416 U.S.
Though the exact nature of Petitioner’s claim is not clear, it appears he is alleging
misconduct on the part of the prosecutors because they used witnesses who had made inconsistent
prior statements to police. However, the decision to use said witnesses certainly did not “infect the
trial with unfairness.” In fact, defense counsel used the prior inconsistent statements of the state’s
witnesses to impeach their trial testimony, thereby potentially undermining their credibility in the
eyes of the jury. (Resp’t’s Supp. Answer, Exs. 6, 8, Trial Tr. 6T, 8T.) Simply stated, none of
Petitioner’s allegations in anyway infected the trial with unfairness and the resulting conviction
did not violate his due process rights. Habeas relief is denied on this ground.
III. 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.
For the above reasons, the § 2254 habeas petition is denied, and a certificate of
appealability will not issue. An appropriate Order follows.
Dated: December 6, 2016
/s/Brian R. Martinotti
BRIAN R. MARTINOTTI, U.S.D.J.
UNITED STATES DISTRICT JUDGE
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