NELSON v. HOLMES et al
OPINION filed. Signed by Judge Anne E. Thompson on 6/6/2017. (mmh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JUN 0.7 2017
WILLIAM T. WALSH_
HONORABLE ANNE E. THOMPSON
MICHAEL D. NELSON,
No. 13-0705 (AET)
CHRISTOPHER HOLMES, et al.,
THOMPSON, District Judge:
Michael D. Nelson has submitted an amended petition for a
writ of habeas corpus pursuant to 28 U.S.C.
Petition, Docket Entry 5. Respondent Christopher Holmes opposes
the petition. Answer, Docket Entry 20. For the reasons stated
herein, the petition shall be denied and no certificate of
appealability shall issue.
I I .
The facts of this case were recounted below and this Court,
affording the state court's factual determinations the
appropriate deference, 28 U.S.C.
2254(e) (1), reproduces the
recitation of the facts as set forth by the New Jersey Superior
Court Appellate Division in its opinion denying Petitioner's
post-conviction relief ("PCR") appeal:
On April 30, 2000, the China Moon Chinese restaurant in
Trenton was the site of an armed robbery. While being
held at gunpoint, the owner of the restaurant handed
over approximately $300 to a masked man whose voice she
recognized as a frequent customer.
Police officers responded to the scene and interviewed
the owner. A physical description of the individual with
the gun was obtained and instantly broadcast to police
officers in the field. Nelson was observed a few blocks
away from the China Moon, and a chase ensued. With the
assistance of a canine, Nelson was soon discovered lying
on a deck in someone's backyard. When approached by a
police officer with the dog, Nelson blurted out, "I give
up, don't let the dog bite me," and "you got me, you got
me." Lastly, Nelson was reported as saying, "you got me,
I know I'm going to go to state prison for this." Less
than thirty minutes had elapsed from when the police
obtained a description of the robber to when Nelson was
After helping Nelson to his feet, the arresting officer
observed and recovered $299 in cash that had been
underneath Nelson's prone body. After receiving Miranda 1
warnings, Nelson offered to take the police to where he
had discarded the gun. Before he could do that, however,
another police officer found the weapon: a sawed-off
State v. Nelson, No. A-3078-10, 2012 WL 694756, at *l (N.J.
Super. Ct. App. Div. Mar. 6, 2012); R32. 2 A Mercer County grand
jury later indicted Petitioner on charges of first-degree
robbery, N.J. STAT. ANN. § 2C:l5-1 (Count One); second-degree
possession of a weapon for an unlawful purpose, N.J. STAT. ANN.·§
(Count Two); third-degree possession of a sawed-off
Miranda v. Arizona, 384 U.S. 436 (1966).
"R" refers to the exhibits submitted with Respondent's Answer,
Docket Entries 20 and 21. "Pa" refers to the appendix to the
Traverse, Docket Entry 26.
shotgun, N. J. STAT. ANN. § 2C: 3 9-3 (b)
(Count Three) ; third-degree.
theft by unlawful taking, N.J. STAT. ANN. § 2C:20-3(a)
Four); and second-degree certain persons not to possess a
firearm, N.J. STAT. ANN. § 2C:39-7 (b)
(Count Five). Answer at 23.
Trial counsel moved to suppress the evidence seized as the
result of a warrantless search. Officers Woodhead and Delli and
Detective Paccillo from the Trenton Police Department testified
at a motion hearing on behalf of the State over the course of
two days. 1T-2T.3 The trial court determined the money and
shotgun were properly seized by the officers. 2T78:4-9.
Petitioner's statements to the officers were admitted into
evidence after a Miranda hearing. See 3T68:1 to 73:8.
3 ·1T - Transcript of Motion to Suppress dated January 19, 2001.
2T - Transcript of Motion to Suppress dated January 26, 2001.
3T - Transcript of Miranda Hearing dated August.20, 2002.
4T - Transcript of Motion Hearing dated August 26, 2002.
ST - Transcript of Trial dated August 27, 2002.
6T - Transcript of Trial dated August 28, 2002.
7T - Transcript of Trial dated August 29, 2002.
8T - Transcript of Trial dated September 3, 2002.
9T - Transcript of Trial dated September 4, 2002.
lOT - Transcript of Trial dated September 5, 2002.
llT - Transcript of Trial dated September 10, 2002.
12T - Transcript of Sentencing dated February 28, 2003.
13T - Transcript of Resentencing dated July 13, 2007.
14T - Transcript of Post-Conviction Relief Motion Proceedings
dated July 2, 2010.
Petitioner later sought to have the trial court direct the
state to turh over Officers Woodhead's and Delli's Internal
Affairs files. He had previously subpoenaed the files as he had
filed an excessive force complaint against them due to receiving
dog bites from Officer Delli's K-9 partner, Simba, and other
injuries during his arrest. See 3T14:21 to 15:23. The trial
court conducted an in camera review of the investigation file
and concluded there was "absolutely nothing in the internal
affairs file that would be appropriate to turn over to [trial
counsel]." 4T14:12-13. It stated that Petitioner could make his
allegations if he testified, but the complaint itself would not
be admissible. 4T14:20-24.
The State presented testimony from Officers Woodhead,
Delli, Jones, Detectives Mathes and Paccillo, and Lieutenant
Wittmer. The victim of the robbery, Yan Yang Hong, also
testified with the aid of an interpreter. During her direct
testimony, Ms. Hong testified she recognized the voice of the
robber as a customer of the restaurant. 7T40:6-8. As this was
the first time she mentioned recognizing the voice, the trial
court conducted a hearing outside of the jury's presence.
7T41:6. Ms. Hong then testified she had informed the prosecutor
and Detective Petracca that she recognized the robber's voice as
belonging to Petitioner during her meeting with them the prior
week. 7T48:20-21. Trial counsel requested a mistrial based the
fact that the prosecutor was now a potential witness to Ms.
Hong's statement and because Ms. Hong allegedly saw Petitioner
in shackles prior to her testimony. 7T54:19 to 55:9. The court
denied the motion as Detective Petracca was available to testify
about the meeting and there would not be a problem so long as
Ms. Hong did not mention she saw Petitioner shackled. 7T62:7 to
63:23. 4 When the jury returned, Ms. Hong testified she knew
Petitioner as a customer of the China Moon. 7T66:18-22.
The jury ultimately convicted Petitioner of first-degree
robbery and third-degree theft by unlawful taking. Petitioner
was acquitted of possession of a weapon for an unlawful purpose
and possession of a sawed-off shotgun. The possession of a
firearm by a convicted person charge was dismissed by the court.
R28 at 1-2. The trial court merged the convictions and imposed
an extended term of fifty-years with a twenty-five year period
of parole ineligibility. 12T75:9-20. Petitioner appealed, and
the Appellate Division affirmed the convictions but remanded to
the trial court for resentencing. State v. Nelson, No. A-1729-03
(N.J. Super. Ct. App. Div. Aug. 12, 2005), certif. denied,
A.2d 662 (N.J. 2005); R28. On July 13, 2007, the trial court
Detective Petracca later testified on behalf of the defense. He
testified Ms. Hong had identified a picture of Petitioner as a
frequent customer, but had not indicated that she recognized the
voice of the robber. 9T112:20 to 113:9. He further indicated
this interview of Ms. Hong was conducted without the assistance
of an interpreter. 9T113:15-18.
resentenced Petitioner to twenty years with a seventeen-year
period of parole ineligibility. 13T:34:10-15. The sentence was
upheld on appeal. State v. Nelson, No. A-3819-07
Ct. App. Div. May 28, 2009); R24 at 20.
filed a PCR petition on January 11, 2007, R19,
but it was held in abeyance until Petitioner's direct appeal was
concluded. The PCR court conducted a motion hearing on July 2,
2010 and denied the petition without ordering an evidentiary
hearing on August 30, 2010. 14T; R15. The Appellate Division
affirmed the order of the PCR Court, State v. Nelson, No. A3078-10, 2012 WL 694756 (N.J. Super. Ct. App. Div. Mar. 6,
2012), and the New Jersey Supreme Court denied certification on
July 12, 2012, State v. Nelson,
50 A.3d 41 (N.J. 2012).
Petitioner submitted a § 2254 petition on January 29, 2013.
Petition, Docket Entry 1. The Court administratively terminated
the petition on May 2, 2013 as i t was unable to determine
whether his claims were properly exhausted and to notify him as
to the consequences of filing a § 2254 petition. Memorandum
Opinion and Order, Docket Entries 3 and 4. Petitioner submitted
his amended petition on June 15, 2013. After receiving several
extensions of time, Respondent filed its answer on March 6,
2015. Petitioner informed the Court that he had not received the
transcript of the July 2, 2010 PCR hearing and moved to expand
the record. Docket Entries 24 and 25. 5 He filed his traverse on
April 8, 2015, and referenced the July 2, 2010 transcript.
Traverse at 3. The Court directed Respondent to file a new
certificate of service indicating the date Petitioner was served
with the transcript. Docket Entry 27.
This matter is now ripe for decision as the Court finds
that an evidentiary hearing is not warranted. See 28 U.S.C. §
2 2 5 4 ( e ) ( 2 ) ; Tay1 or v. Horn, 5 0 4 F . 3 d 4 16 , 4 3 5- 3 7 ( 3 d Cir. 2 0 0 7 ) .
III. STANDARD OF REVIEW
Title 28 U.S.C. § 2254 permits a federal court to entertain
a petition for writ of habeas custody on behalf of a person in
state 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." 28
U.S.C. § 2254(a).
With respect to any claim adjudicated on the merits by a
state court, the writ shall not issue unless the adjudication of
( 1) resulted in a decision that was contrary to, or
established Federal law, as determined by the Supreme
Court of the United States; or
The Court received a copy of the transcript on March 16, 2015.
Docket Entry 23.
(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.
A state court decision is "contrary to" Supreme Court
precedent "if the state court applies a rule that
contradicts the governing law set forth in [Supreme Court]
cases," or "if the state court confronts a set of facts
that are materially indistinguishable from a decision of
th[e] Court and nevertheless arrives at a result different
from [the Court's] precedent." Williams v. Taylor, 529 U.S.
362, 405-06 (2000). "[A] state-court decision is an
unreasonable application of clearly established [Supreme
Court] precedent if it correctly identifies the governing
legal rule but applies that rule unreasonably to the facts
of a particular prisoner's case." White v. Woodall, 134 S.
Ct. 1697, 1706, reh'g denied, 134 S. Ct. 2835 (2014). The
Court must presume that the state court's factual findings
are correct unless Petitioner has rebutted the presumption
by clear and convincing evidence. 28 U.S.C. § 2254(e) (1).
Petitioner raises six grounds for relief:
Trial Counsels [sic] failure to impeach Detective
affidavit of probable cause deprived Petitioner of
6th Amend. right to confront and cross-examine state
witness at trial.
identification claim on appeal was deficient
conviction an equivalent to failure to challenge
conviction at all.
impeachment purposes the Petitioner [ '] s complaint
of false arrest and excessive force against state
witness's [sic] violated the Confrontation Clause
of the Sixth Amend.
Counsels [sic] failure to include in motion to
suppress evidence the defects that occurred during
arrest prejudiced the outcome of the suppression
Counsel failure to incorporate the  dispatcher
Woodhead, Delli, Jones, and Lt Wittmer was a gross
Counsel's failure to call defense investigator as
a material fact witness deprived Petitioner of his
right to rebut testimony from Officer Jones
regarding the location of the weapon recovery. 7
12; Petitioner's Brief at 10-13. Respondent
asserts the petition is untimely and is otherwise
6 The Court has used the language appearing in Petitioner's
traverse for this point. Traverse at 9.
The Court has used the language appearing in Petitioner's
traverse for this point. Traverse at 20.
8 The answer contains mostly boiletplate and only briefly engages
with the actual facts of the case. Respondent is advised that
any future briefs that fail to sufficiently answer claims raised
will be stricken.
Respondent argues Petitioner has filed his
too late and is therefore barred by the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA") . This argument is
AEDPA imposes a one-year period of limitation on a
petitioner seeking to challenge his state conviction and
sentence through a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254. The limitation period runs from the latest
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the
time for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State
(C) the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the
right has been newly recognized by the Supreme Court and
made retroactively applicable to cases ori collateral
(D) the date on which the factual predicate of the claim
or claims presented could have been discovered through
the exercise of due diligence.
28 U.S.C. § 2244(d) (1). Respondent argues the petition is
untimely as it was filed more than one year after Petitioner's
conviction became final.
Petitioner was sentenced by the trial court on February 28,
2003. 12T. He filed his notice of appeal on November 20, 2003,
more than the 45-day period provided under New Jersey law for a
timely appeal. See N.J. Ct. R. 2:4-l(a). Respondent argues this
time counts towards the 365-day AEDPA limitations period; it
does not. Because the Appellate Division permitted Petitioner to
file an out-of-time direct appeal and vacated his sentence, the
judgment was not final within the meaning of§ 2244(d) (1) until
45 days after the Appellate Division denied the resentencing
appeal, State v. Nelson, No. A-3819-07
Div. May 28, 2009)
(N.J. Super. Ct. App.
See Burton v. Stewart, 549 U.S. 147, 156-57
(noting AEDPA limitations period does not begin "until
both [petitioner's] conviction and sentence 'became final by the
conclusion of direct review or the expiration of the time for
seeking such review'" (emphasis in original)); Berman v. United
States, 302 U.S. 211, 212
("Final judgment in a criminal
case means sentence. The sentence is the judgment.").
By the time his direct appeal concluded, Petitioner's PCR
petition was already properly filed in the state courts. R19. He
is therefore entitled to statutory tolling until the New Jersey
Supreme Court denied certification of his PCR appeal on July 10,
It does not appear from the record provided to the Court that
Petitioner sought certification from the New Jersey Supreme
Court to review the resentencing.
2012. See 28 U.S.C. § 2244 (d) (2). His petition was filed less
than one year later on January 29, 2013.
The Court finds that the § 2254 petition is timely under §
2244 (d) (1).
B. Confrontation Clause
In Ground Three, Petitioner asserts the trial court
violated his Confrontation Clause rights by excluding from
evidence his complaint against Officers Woodhead and Delli
for false arrest and excessive force. This claim was
decided on the merits on direct appeal.
"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 of confrontation.
. means more than being allowed to confront the witness
[t]he main and essential purpose of
confrontation is to secure for the opponent the opportunity
of cross-examination.'" Delaware v. Van Arsdall, 475 U.S.
(internal citations and quotation marks
omitted) (emphasis and alteration in original). The Supreme
Court has "'recognized that the exposure of a witness'
motivation in testifying is a proper and important function
of the constitutionally protected right of crossexamination.'" Id. at 678-79 (quoting Davis v. Alaska, 415
U.S. 308j 316-17
(1974)). "[A] criminal defendant states a
violation of the Confrontation Clause by showing that he
was prohibited from engaging in otherwise appropriate
cross-examination designed to show a prototypical form of
bias on the part of the witness, and thereby 'to expose to
the jury the facts from which jurors ...
appropriately draw inferences relating to the reliability
of the witness.'" Id. at 680
(quoting Davis, 415 U.S. at
318) (omission in original).
"[T]rial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on
such cross-examination based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the
witness' safety, or interrogation that is repetitive or only
marginally relevant." Id. at 679. Here the trial court concluded
Petitioner's "self-serving" complaint would not add anything to
the proceedings. 4T30:16-19. Unlike Van Arsdall, the trial court
did not prohibit Petitioner from pursuing an entire line of
questioning; only the complaint itself was excluded from
evidence. Trial counsel's cross-examination of the officers
covered the substance of the complaint, namely that the officers
used excessive force against Petitioner by allowing K-9 Simba to
bite him repeatedly, lied about where and how Petitioner was
arrested, and falsely arrested Petitioner. See R26 at 28;
3T14:24 to 15:9.
Trial counsel questioned Officer Woodhead at length about
Officer Woodhead's claims that Petitioner offered to show him
the shotgun's location, 6T116:2 to 117:24; the omission of
certain alleged facts from his report, 118:18 to 119:5, 121:22
to 122:13, 147:13-19; alleged inconsistent testimony at other
proceedings, 119:23 to 121:14, 149:15-22; and Petitioner's
complaint of being bitten by K-9 Simba, 121:22 to 122:13, 130:718.
Trial counsel equally attacked Officer Delli's credibility
during cross-examination regarding the accuracy of K-9 Simba's
"track," 8T20:14 to 26:17, 64:4 to 65:16; his initial encounter
with Petitioner, 45:3 to 46:12, 48:3 to 49:1; and Petitioner's
allegations of being bitten, 46:13 to 47:16, 53:15 to 54:4,
57:25 to 59:7. Petitioner's medical records from Saint Frandis,
showing bites on Petitioner's left arm, were admitted into
evidence, 9T108:23 to 109:6; R26 at 60-64, and Officer Delli
admitted during cross-examination that he was informed there was
a wound on Petitioner's left arm,
9T57:25 to 58:6. See also
Moreover, as the Appellate Division noted, trial counsel
"repeatedly invited the jury to reject the State's theory of
culpability based upon the defense's contentions of police
misconduct." State v. Nelson, No. A-3078-10, 2012 WL 694756, at
(N.J. Super. Ct. App. Div. Mar. 6, 2012). He argued:
These are hospital records . . . . Why won't any officer
admit to it? It doesn't fit. It fits something. It fits
what [K-9] Simba did to Mr. Nelson back in the back of
85 Oak Lane. We have medical records for Michael Nelson
on May 1st of 2000, the early morning hours shortly after
the apprehension, and our clinical impression is dog
It says what it says. Provoked attack,
scratch, left arm. It makes note of a bruise on his leg.
Officer Delli says his· dog never got near him. How can
this be? It doesn't fit. Is the state going to ask you
to believe that Mr. Nelson, when he got to the police
station, decided to say he was bit by a dog, or was bit
by a different dog at a different time that night so he
had a fresh wound to show at the hospital [?] It's
ridiculous. The dog bit him.
I suggest to you Officer Delli let his dog loose. Officer
Delli tells you the dog never even went on the porch,
and the first time I saw the guy, he's lying on his belly
with his hands underneath him all the way against the
building ten feet away from the end of the leash. I ask
you how does a man who .is lying on his belly with his
hands under him ten feet away from the leash get bit on
the shoulder. I suggest to you that we' re hearing a
falsehood, and everything Officer Delli tells you from
that moment on is suspect.
10T37:7 to 38:4, 39:8-18.
Based on the record, the Appellate Division did not reach a
decision that was contrary to, or was an unreasonable
application of, established federal law when it determined there
was no merit to Petitioner's claim. It is a reasonable
conclusion that a jury would not "have received a significantly
different impression of [the officers'] credibility" had the
complaint been admitted given the other testimony and documents
in evidence. Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986).
Petitioner's Confrontation Clause argument fails.
C. Ineffective Assistance of Counsel
The remainder of Petitioner's claims are allegations of
ineffective assistance of trial and appellate counsels. These
claims are governed by the Strickland standard. Petitioner must
first "show that counsel's representation fell below an
objective standard of reasonableness." Strickland v. Washington,
466 U.S. 668, 688
(1984). He must then show "a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence
in the outcome." Id. at 694.
Furthermore, "[w]hen a federal habeas petition under§ 2254
is based upon an ineffective assistance of counsel claim,
pivotal question is whether the state court's application of the
Strickland standard was unreasonable,' which 'is different from
asking whether defense counsel's performance fell below
Strickland's standard.'" Grant v. Lockett, 709 F.3d 224, 232 (3d
(quoting Harrington v. Richter, 562 U.S. 86, 101
(2011)). "Federal habeas review of ineffective assistance of
counsel claims is thus 'doubly deferential.'" Id.
Cullen v. Pinholster, 563 U.S. 170, 190 (2011)).
1. Whether trial counsel was ineffective for failing to crossexamine
affidavit of probable cause (Ground One)
Petitioner's first claim of ineffective assistance by his
trial counsel concerns the failure to cross-examine Detective
Mathes as to alleged inconsistencies and falsehoods in his
affidavit of probable cause. "Detective Mathes declared in the
affidavit that a victim/witness statement led him to believe
that the petitioner was the culprit who committed the robbery in
this case . . . . Because the Police needed the assistance of an
interpreter on the above date to communicate with the victim in
[Cantonese] dialect, a statement was not actually memorialized
until the interpreter was available on May 9, 2000.
mentions or otherwise identifies he petitioner as being the
perpetrator of the crime in this matter." Petitioner's Brief at
6 (emphasis omitted) .
The PCR court determined trial counsel did not err in
failing to highlight this alleged inconsistency during crossexamination because there was no inconsistency. "Although the
Defendant is correct that the victim witness statements were not
taken until a week or so later, the victim did make statements
to the responding officer describing the height, weight, and
clothing of the person who robbed her on the night of the
robbery." R15 at 14 (citing 9T89:·24 to 90:10). This is a
reasonable reading of the record, therefore the PCR Court did
not unreasonably apply Strickland in concluding that trial
counsel did not err. Because Petitioner has not established that
his trial counsel erred, the Court need not determine whether he
was prejudiced. See United States v. Cross, 308 F.3d 308, 315
(3d Cir. 2002)
("[F]ailure to satisfy either prong defeats an
ineffective assistance claim.").
Petitioner is not entitled to relief on this ground.
2. Whether trial counsel was ineffective for failing to
include the alleged defects in the complaint in his in motion to
suppress evidence (Ground Four)
Petitioner also argues the complaint issued against him was
defective, therefore the evidence seized by police should have
been suppressed. He asserts trial counsel was aware of the
procedural defects in the complaint but failed to raise them
during the motion to suppress. Contrary to Petitioner's
assertion that the state court did not address this claim, see
Petitioner's Brief at 10, the Appellate Division summarily
concluded this argument was without merit. State v. Nelson, No.
A-3078-10, 2012 WL 694756, at *3 (N.J. Super. Ct. App. Div. Mar.
(citing N.J. Ct. R. 2:11-3 (e) (2)). Therefore, this
Court must apply AEDPA "double deference."
Petitioner's argument that alleged defects in the issuance
of the complaint required the suppression of the evidence has no
merit. Petitioner was arrested and the money and shotgun were
seized without a warrant before the complaint was issued.
Whether there was a procedural defect in the issuance of the
complaint has no bearing on the admissibility of evidence that
was seized before the complaint was issued.
The only relevant question at the motion to suppress
hearing was whether any of the exceptions to the Fourth
Amendment's warrant requirement applied to the warrantless
seizure of the money and shotgun. The suppression cases cited by
Petitioner, e. g, Wong Sun,
are cases in which the
unconstitutional activity occurred before the search and
seizure, thereby tainting the discovered evidence, not after it.
As the alleged procedural defects in the complaint process
were irrelevant to the motion to suppress, trial counsel was not
objectively unreasonable for failing
raise that argument. The
Appellate Division was therefore not unreasonable in its
determination that Petitioner had not satisfied Strickland.
3. Whether trial counsel was ineffective for failing to use
the dispatcher logs during his cross-examination of Officers
Woodhead, Delli, Jones, and Lt. Wittmer (Ground Five)
Petitioner also asserts trial counsel erred by failing to
use the dispatcher logs,
see R26 at
during his cross-
examination of the officers. 11 Based on the record before the
Wong Sun v. United States, 371 U.S. 471 (1963).
Petitioner concedes trial counsel made a deliberate, strategic
decision not to use the dispatch log during cross-examination,
Traverse at 18, and the record supports this conclusion. See
12T7:19-25 ("I represent to the Court that I anticipate, and I
am certain that the documentation that Mr. Nelson wishes to
state courts, Petitioner has not shown that the state courts
unreasonably applied Strickland.
Petitioner asserts the PCR court's decision was
unreasonable because the records are not inadmissible hearsay.
Traverse at 16. However, the PCR court did not base its decision
on the records being hearsay; it concluded they were irrelevant.
It found that the dispatch logs were not created by the officers
contemporaneously with their radio transmissions and were
.instead created by police dispatchers. The court further found
that the time-stamps reflected the time the dispatchers created
each entry, not the time the actual event occurred. See R15 at
14-15. Nothing in the record or in Petitioner's submissions
contradicts those factual findings by clear and convincing
evidence or otherwise indicates that these findings are
unreasonable. 28 U.S.C. § 2254(e) (1). In light of those facts,
it is not an unreasonable conclusion that there was not a
reasonable probability the trial would have ended differently
had trial counsel used the logs to cross-examine the officers.
The state courts therefore reasonably applied Strickland, and
Petitioner's claim fails on this point.
present to the Court involves a different trial strategy or a
different presentation of the defense evidence which I will,
quite frankly, put on the record I rejected as_ trial
4. Whether trial counsel was ineffective for failing to
call the defense.investigator to rebut testimony from Officer
Jones regarding the location of the weapon (Ground Six)
Petitioner argued in his.PCR petition that trial counsel
should have rebutted Officer Jones' testimony regarding the
location of the shotgun by calling the defense investigator as a
witness. According to Petitioner, the investigator determined
that the shotgun could not have been retrieved from near a shed
located behind 80-82 Oak Lane as Officer Jones testified.
Petitioner's Brief at 12. He asserts the shed, "distinguishable
by red, black and white graffiti scrawled on the fa9ade of the
structure" was three blocks away on Laurel Avenue.
This Court's review is limited to the record that was
before the state court. Cullen v. Pinholster, 563 U.S. 170, 18182
(2011); Grant v. Lockett, 709 F.3d 224, 230-31
2013). Petitioner did not present the alleged photographs or
investigator report to the PCR court. R15 at 15; see also State
v. Nelson, No. A-3078-lOTl, 2012 WL 694756, at *4
Ct. App. Div. Mar. 6, 2012). There wa~ nothing in the record
before the PCR court that would support a conclusion that there
was a reasonable probability the result of the trial would have
been different had trial counsel presented Johnson as a witness.
Petitioner has not shown that the PCR court's application of
Strickland was unreasonable based on the record that was before
it; therefore, he is not entitled to habeas relief on this
5. Whether direct appeal counsel was ineffective for
failing to raise identification claim on appeal (Ground Two)
Petitioner's final claim for relief is that his counsel on
direct appeal was ineffective for failing to argue that the
trial court should have issued a jury instruction on Ms. Hong's
"surprise identification" of Petitioner during trial.
The PCR court concluded the trial court was not required to
provide an identification instruction because "there was no
fundamental issue of eyewitness identification in this case;
rather, Petitioner was identified and convicted based upon the
cumulative effect of circumstantial evidence and his own
incriminating states made to the arresting officers." R15 at 19.
It further found that "[a]lthough the victim testified that she
recognized Petitioner as a frequent customer of her restaurant
and the voice of the robber as that of a customer, she never
provided testimony specifically identifying Petitioner as the
robber." Ibid. The PCR court determined that the model jury
instruction on in-court identification did not apply because
there was no in-court identification and that appellate counsel
did not err by failing to raise it on appeal. R15 at 19. This is
a reasonable conclusion based on the record; 12
court did not unreasonably apply Strickland.
Furthermore, to establish the prejudice prong for a claim
of ineffective assistance of appellate counsel, Petitioner must
'reasonable probability' -
sufficient to undermine confidence in the outcome,' but less
than a preponderance of the evidence -
that his appeal would
have prevailed had counsel's performance satisfied
constitutional requirements." United States v. Cross, 308 F.3d
308, 315 (3d Cir. 2002)
(quoting Strickland, 466 U.S. at 694-
95). The Appellate Division reasonably applied Strickland when
it found that raising the charge issue on appeal "would have
been futile in light of the lack of an actual identification
having been made a significant issue at trial, and the abundance
of other evidence, albeit circumstantial, that linked Nelson to
the crimes." State v. Nelson, No. A-3078-10, 2012 WL 694756, at
(N.J. Super. Ct. App. Div. Mar. 6, 2012).
Petitioner asserts that Ms. Hong testified "that she
recognized the masked robber's voice as belonging to the
petitioner." Petitioner's Brief at 8. This testimony was outside
of the jury's presence. 10T41:6, 45:4-19. The jury only heard
Ms. Hong state that she recognized the robber's voice "[b]ecause
his voice is very rough and very low, and I recognize the voice.
The voice js the customer constantly come into my restaurant[,]"
10T40:6-8, and that she recognized Petitioner as a customer,
10T66:15 to 67:3.
As Petitioner has not met either prong of the Strickland
analysis, his claim fails.
D. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c), a petitioner may not
appeal from a final order in a habeas proceeding where that
petitioner's detention arises out of his state court conviction
unless he has "made a substantial showing of the denial of a
constitutional right." "A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the
district court's resolution of his constitutional claims or that
jurists could conclude that the issues presented here are
adequate to deserve encouragement to proceed further." Miller-El
v. Cockrell, 537 U.S. 322, 327
For the reasons expressed above, Petitioner has failed to
make a substantial showing that he was denied a constitutional
right. As jurists of reason could not disagree with this Court's
resolution of his claims, the Court shall deny Petitioner a
certificate of appealability.
For the reasons stated above, the habeas petition is
certificate of appealability shall not issue.
An accompanying Order will be entered.
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