DEJESUS v. D'ILIO et al

Filing 12

OPINION filed. Signed by Judge Brian R. Martinotti on 1/6/2017. (mps)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PEDRO DEJESUS,

Civil Action No. 13-5778 (BRM)

Petitioner,
v.

OPINION

STEPHEN D’ILIO, et al.,
Respondents.

MARTINOTTI, DISTRICT JUDGE:

Before this Court is a Petition for a Writ of Habeas Corpus (the “Petition”), pursuant to 28
U.S.C. § 2254, by Petitioner Pedro DeJesus (“Petitioner” or “DeJesus”). Upon review of all
submissions, this matter is decided without oral argument, pursuant to Fed. R. Civ. P. 78. For the
reasons stated below, the Court DENIES the Petition in its entirety and DENIES a certificate of
appealability.
I.

BACKGROUND
The Court recounts only the facts that are necessary to the instant Opinion. 1 Petitioner lived

with his girlfriend, Maria Castle (“Castle”), and her two minor children. On the evening of

1

The Court’s initial summary of the case is taken from the state court decisions denying
Petitioner’s appeal and petition for post-conviction relief. See State v. De Jesus, Case No. A5066-04T4, 2006 WL 3053704, at *1 (N.J. Super. Ct. App. Div. Oct. 30, 2006); State v. DeJesus,
Case No. A-1677-10T3, 2012 WL 5457335, at *1 (N.J. Super. Ct. App. Div. Nov. 9, 2012).

1

November 18, 2001, Petitioner was drinking and arguing with Castle about her sixteen year-old
daughter’s failure to attend school. Early the next morning, the sixteen year-old found her mother
on the front porch bleeding heavily. Castle told her daughter that Petitioner had stabbed her. Castle
later died as a result of her stab wounds. After his arrest, Petitioner cooperated with the police and
provided a sworn confession that he had stabbed Castle with a knife from the kitchen drawer. (See
Br. and App. on Behalf of Def. on Appeal of PCR (ECF No. 10-25) at 111-23.)
At trial, the State’s evidence included Castle’s dying declaration to her daughter, stating
Petitioner had stabbed her, and Petitioner’s custodial statement admitting he had done so after an
argument. Petitioner offered treatment reports and expert testimony opining he suffered from an
impaired mental state because of poly-substance dependence. The State countered with its own
expert disagreeing with that conclusion. At trial, defense expert, psychiatrist John Verdon (“Dr.
Verdon”), reviewed the report issued after Petitioner’s psychiatric examination. Dr. Verdon opined
that although Petitioner stabbed Castle, killing her, Petitioner’s judgment was impaired due to his
substance abuse such that he lacked the capacity to commit a knowing and purposeful murder. In
rebuttal, the State’s expert, forensic psychologist Louis Schlesinger (“Dr. Schlesinger”), testified
Petitioner neither suffered from addiction nor a mental disease or defect which would interfere
with his ability to act purposely and knowingly at the time of the stabbing. Petitioner was
ultimately found guilty of murder (count one), pursuant to N.J.S.A. 2C:11-3, and unlawful
possession of a weapon (count two), pursuant to N.J.S.A. 2C:39-4(d). Petitioner was sentenced on
the first count to a prison term of one to thirty years, without the possibility of parole, and on the
second count to a concurrent five-year term of incarceration.
At trial, the State brought a motion to introduce a statement of Denise Andrade
(“Andrade”), a friend of Castle’s, regarding Andrade’s telephone call to Castle on the night in

2

question. (See Tr. of Trial, Jan. 4, 2005 (ECF No. 10-7) at 7:1-11:16.) Andrade was prepared to
testify that (1) Castle told her during the phone conversation that Castle planned to come to
Andrade’s house that night with Castle’s six-year-old daughter and (2) Andrade overheard
Petitioner in the background stating something to the effect of “so that’s the way you want it Maria.
That’s the way I want it.” (See id.) With respect to the latter statement, the prosecution argued that
it was a statement against interest that undermined Petitioner’s intoxication claims. (Id. at 9:3-17.)
Defense Counsel argued that both statements should be excluded for several reasons: because the
phone conversation was remote, occurring approximately three hours before police were called to
the scene; because the case law relied upon by the prosecutor predated Crawford v. Washington,
541 U.S. 36, 53-54 (2004), which “changes all the rules about testimonial hearsay”; and because
the statements were ambiguous. (ECF No. 10-7. at 9:20-10:21.)
The trial court excluded the proposed testimony as hearsay and determined that it was not
admissible under any exception. (Id. at 11:14-16.) The trial court found that Castle’s statement that
she would go to Andrade’s house “could be very ambiguous. It doesn’t mean what she’s doing
there. It doesn’t necessarily mean she’s afraid of Mr. DeJesus or that Mr. DeJesus threatened her.”
(Id. at 11:1-4.) With respect to Andrade’s proposed testimony regarding what she heard Petitioner
say to Castle, the trial court stated as follows: “Also, what Miss Andrade heard Pedro say: ‘That’s
the way you want it.’ That again is an ambiguous statement. I don’t think it shows a state of mind
and so, therefore, I will not allow those statements in evidence. Okay.” (Id. at 10:22-11:16.)
Petitioner subsequently moved for a mistrial after the State’s expert, forensic psychologist
Louis Schlesinger, in the course of testifying, recounted portions of Andrade’s statement regarding
her telephone call to Castle on the night of the incident, despite the trial court’s prior ruling barring
the State’s use of Andrade’s statement in its case in chief. During Dr. Schlesinger’s testimony

3

about what he referred to as the “prehomicidal context” of the case, Schlesinger repeated portions
of Andrade’s statement:
WITNESS: I also reviewed a statement by Denise Andrade.
One of the victim’s friends. She was in contact with the victim that
evening. She indicated in her statement that she called Maria. Maria
was going to go over there with the little girl Marjorie to spend some
time. In the process of a phone conversation Denise overheard in the
background the defendant saying so that’s what you want Maria.
Three times. Maria never arrived at Denise’s house. And so Denise
called about 10:15 to 10:20 in the evening. Denise said somebody
picked up the phone and then hung it right up again on DEFENSE COUNSEL: Judge, can I approach sidebar? [At sidebar]
This litany of statements really is not related to the diagnosis, and
all of these statements were precluded for various reasons during the
trial earlier. To let them in through this witness seems extremely
unfair to Mr. DeJesus. And I ask for a mistrial.
(See Tr. of Trial, Jan. 13, 2005 (ECF Nos. 10-11 & 10-12) at 159:12-160:7.) The prosecutor argued
that the statements were admissible in this context because Dr. Schlesinger had relied on them in
forming his opinion. (Id. at 160:8-20.) The court ruled, “I think it can come in here, but I don’t
want everything that was said, all sorts of things, to come in that weren’t put in the main case.”
(Id. at 161:3-6.) The Court denied the request for a mistrial (id. at 163:12-13), but instructed the
prosecutor to “be careful especially of things that I didn’t allow in the main case.” (Id. at 163:1415.) The court also offered to give the jury a curative instruction, but defense counsel responded,
“I don’t think you can cure the problem.” (Id. at 164:4-7.) There was no further testimony about
Andrade’s statement.
In charging the jury, the trial court also gave the following instruction regarding expert
testimony:
As a general rule[,] witnesses can testify only as to the facts known
to them. This rule ordinarily does not permit the opinion of a witness
to be received as evidence.
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However, an exception to this rule exists in the case of an expert
witness who may give his or her opinion as to any matter in which
he or she is versed and which is material to the case. . . .
You are not bound by such expert’s opinion. But you should
consider each opinion and give it the weight to which you deem it
entitled[,] whether that be great or slight or you may reject it.
In examining each opinion[,] you may consider the reasons given
for it, if any, and you may also consider the qualifications and
credibility of the expert.
It is always within the special function of the jury to determine
whether the facts on which the answer or testimony of an expert is
based actually exist. The value or weight of the opinion of the expert
is dependent upon[,] and is no stronger than[,] the facts on which it
is based.
In other words, the probative value of the opinion will depend upon
whether [,] from all of the evidence in the case[,] you find that those
facts are true.
You may in fact determine from the evidence in the case that the
facts that form the basis of the opinion are true, are not true, or are
true in part only and in light of such findings[,] you should decide
what effect such determination has upon the weight to be given to
the opinion of the expert.
Your acceptance or rejection of the expert opinion will depend,
therefore, to some extent on your findings as to the truth of the facts
relied upon.
(ECF No. 10-12 at 281:21-282:15); see also De Jesus, 2006 WL 3053704, at *1–2 (recounting
same). On this instruction, the jury found Petitioner guilty of murder, pursuant to N.J.S.A. 2C:113, and unlawful possession of a weapon, pursuant to N.J.S.A. 2C:39-4(d).
On direct appeal, Petitioner sought reversal of his conviction, contending in relevant part
that the trial court’s denial of his request for a mistrial was error. (See Pet’r’s Letter Br. and App.
on Appeal (ECF No. 10-17.) In his supporting brief, Petitioner argued that the admission of the
statement violated N.J.R.E. 703 and applicable state law. (Id. at 8-12.) Petitioner also stated,
without elaboration, that “the admission of the statement, through the backdoor of the expert’s

5

testimony deprived defendant of his state and federal rights to confrontation of witnesses against
him, as well as hi[s] more general rights to due process and a fair trial.” (Id. at 8.)
The Appellate Division rejected Petitioner’s argument and affirmed his conviction “[a]fter
a detailed analysis of the record in light of the applicable law,” finding that Petitioner’s “argument
[was] without sufficient merit to warrant discussion in written opinion.” De Jesus, 2006 WL
3053704, at *2 (citing N.J. Ct. R. 2:11-3(e)(2)). The Appellate Division provided the following
additional comments:
“In general, a trial court is afforded ‘considerable latitude regarding
the admission of evidence,’ and is to be reversed only if the court
abused its discretion.” State v. Nelson, 173 N.J. 417, 470 (2002)
(quoting State v. Feaster, 156 N.J. 1, 82 (1998)). Under this
standard, we will not substitute our judgment for that of the trial
court, unless the ruling is “so wide of the mark that a manifest denial
of justice resulted.” State v. Brown, 170 N.J. 138, 147 (2001)
(citations omitted). Defense counsel objected to Schlesinger’s
testimony after the statements were made. In reviewing the expert’s
entire testimony, the statement’s content was ambiguous. Any
possible prejudice was eliminated by the trial court’s ruling to limit
further testimony regarding Andrade’s statement. Moreover, the
instructions charging the jury “to determine whether the facts on
which . . . testimony of an expert is based actually exist” and further
stating that, “[t]he value or weight of the opinion of the expert is
dependent upon[,] and is no stronger than[,] the facts on which it is
based,” properly directed the jury. There is no support in the record
for a determination that the jury was unable to comply with these
instructions, State v. Winter, 96 N.J. 640, 648-49 (1984), or that the
remarks unfairly impacted the jury’s verdict in any way.
De Jesus, 2006 WL 3053704, at *2. 2 The New Jersey Supreme Court denied Petitioner’s petition
for certification. State v. DeJesus, 192 N.J. 68 (2007).
Petitioner subsequently filed a pro se post-conviction relief (“PCR”) petition alleging
ineffective assistance of counsel. (Pro Se PCR Pet. (ECF No. 10-24); see also ECF No. 10-25.)
2

The Appellate Division remanded for resentencing after the merger of count two into count
one. See De Jesus, 2006 WL 3053704, at *2.
6

Counsel was assigned and a hearing was held on October 21, 2009. (See Tr. of PCR Hr’g, Oct. 29,
2009 (ECF No. 10-16).)
On PCR, Petitioner argued in relevant part that trial counsel was deficient because he failed
to “adequately communicate and meet with the defendant during the pendency” of the case, and
did not review discovery prior to trial or “properly prepare” a defense. (ECF No. 10-25 at 37-47.)
Petitioner asserted counsel’s oversights left him “unable to speak freely” and unsure of the
proposed trial strategy, which caused uncertainty on the issue of whether Petitioner would exercise
his right not to testify. (Id.) Additionally, Petitioner argued his counsel was ineffective for failing
to ask for a passion/provocation charge. 3 (Id. at 14-19, 35.) He also argued his direct appeal counsel
was ineffective for failing to raise the passion/provocation issue on direct appeal. (Id. at 55-58.)
On PCR, Petitioner submitted a certification, dated February 11, 2009, in support of his
claims of inadequate attorney communication. (See ECF No. 10-27 at 166-69.) That certification
states that “from the very outset, [Petitioner’s] trial attorney did not keep [him] apprised of the
status of [his] case while it was pending.” (Id. at ¶ 2.) Petitioner further contends “although [his]
trial counsel did visit with [him] at the jail, counsel did not bring discovery with him so [they]
were able to go over the police report, statements and other materials necessary to prepare for
[Petitioner’s] case. Moreover, even during the trial of this matter, [Petitioner’s] attorney did not
come to see [Petitioner] at the jail to discuss [his] case or otherwise prepare for trial.” (Id. at ¶ 3.)
Petitioner contends the “only time that [he] was able to speak with [his] trial lawyer during the
trial was while [he] was in Court, or for just a few minutes in the Courthouse before the Court
proceedings.” (Id. at ¶ 4.) Petitioner contends, however, that he was not comfortable talking with

3

Although petitioner raised additional arguments in his PCR petition (ECF Nos. 10-25 & 10-24),
the Court’s factual recitation and analysis is limited to those arguments raised in this Petition.
7

his lawyer openly because “there was always a Sheriff’s Officer present” during these times. (Id.
at ¶ 4.) With respect to his decision not to testify at trial, Petitioner contends as follows:
Ultimately, I did not testify on my own behalf at my trial because I
was unable to speak freely with my lawyer and go over my case with
him. Certainly my trial attorney never discussed with me testimony
that might have been elicited during the trial should I have chosen
to take the witness stand on my own behalf.
(Id. at ¶ 6.) Petitioner also states in the Certification that he wrote to the Public Defender’s office
to address his concerns, and that the Deputy Public Defendant responded to him on June 18, 2003,
explaining that his trial counsel had been in trial for several weeks and thus had been unable to
communicate with clients. (Id. at ¶ 7.) Although the Deputy assured Petitioner that his counsel
would be in touch, counsel did not thereafter come to see him at the jail. Petitioner contends he
went to trial without knowing trial counsel’s strategy and “did not agree, nor would have agreed,
to allow trial counsel to concede my guilt during the trial.” (Id. at ¶ 8.) Finally, Petitioner’s
Certification states he tried to have his trial attorney removed from his case, but his application
was dismissed by the Court on February 3, 2003 and again on April 23, 2004. (Id. at ¶ 9.) To
support his lack of communication claim, Petitioner also offered the June 18, 2003 letter from
Theodore V. Fishman, his counsel’s supervisor, stating his attorney’s trial schedule prevented
communication with clients, but he would be in touch shortly after he had completed his next trial.
(See ECF No. 10-25 at 125.)
The PCR court denied his petition without an evidentiary hearing. (See ECF No. 10-16.)
On appeal, the Appellate Division relied on the findings of the PCR court, and rejected Petitioner’s
inadequate communication argument as follows:
The [PCR] court determined defendant’s challenge to counsel’s
alleged lack of communication “[wa]s merely a bald assertion.” The
PCR judge found:
8

Defendant’s certification in this matter omits the
necessary information to support his claim since he
does not indicate what information would have been
available to counsel had there been more
communication, what testimony he would have
given had he had the opportunity to communicate,
and most importantly, how that would have affected
the outcome of the trial.
Further, the [PCR] court determined the record specifically belied
defendant’s suggestion he was unaware of defense counsel’s general
strategy and did not know whether he would take the stand. The PCR
judge cited defendant’s colloquy with the trial judge, during which
defendant responded affirmatively when asked whether defense
counsel had discussed his right not to testify. The PCR judge further
noted: “Counsel explained the intended course of [trial] events to
the defendant on the record in open court”; both “the State’s
witnesses and defense experts reviewed the facts of the case with the
defendant”; and “[d]efendant was present for pretrial evidentiary
motions . . . [,] the presentation of the State’s case[,] and the
testimony of his own expert witnesses.” Consequently, the PCR
judge found defendant was apprised of the trial strategy. This
strategy included a “decision to admit to a lesser included crime to
avoid conviction on the greater [offense],” which “has been
recognized as [an] effective trial strategy.”
DeJesus, 2012 WL 5457335, at *1–2. The Appellate Division emphasized that Petitioner failed to
establish either prong of the Strickland/Fritz analysis:
As identified by the PCR judge, defendant omits disclosure of the
claimed excluded evidence; and his certification articulates no facts
which he would have offered had he taken the stand. Thus, the
general assertions of error gave the court no basis to assess whether
counsel’s conduct evinced ineffective assistance resulting in
prejudice to defendant. See State v. Mitchell, 126 N.J. 565, 579
(1992) (holding “specific facts” which “provide the court with an
adequate basis on which to rest its decision” must be articulated to
prove a basis for PCR).
In order to satisfy Strickland’s first prong, a defendant must show
how counsel’s performance was deficient, not simply say it was so.
Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L. Ed.2d at
693. “[B]ald assertions” of ineffectiveness will not be sufficient to
establish a prima facie case. State v. Cummings, 321 N.J. Super. 154,
170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, a
9

defendant “must allege facts sufficient to demonstrate counsel’s
alleged substandard performance . . . [,] supported by affidavits or
certifications based upon the personal knowledge of the affiant or
the person making the certification.” Ibid.
Also “complaints ‘merely of matters of trial strategy’ will not serve
to ground a constitutional claim of inadequacy[.]” Fritz, supra, 105
N.J. at 54 (quoting State v. Williams, 39 N.J . 471, 489, cert. denied,
374 U.S. 855, 83 S.Ct. 1924, 10 L. Ed.2d 1075 (1963), overruled in
part on other grounds, State v. Czachor, 82 N.J. 392 (1980)). See
also State v. Perry, 124 N.J. 128, 153 (1991) (refusing to secondguess counsel’s trial strategy). In fact, a defendant must demonstrate
counsel’s action “did not equate to sound trial strategy.” State v.
Castagna, 187 N.J. 293, 314 (2006) (internal quotation marks and
citations omitted). “Trial counsel may not be considered ineffective
merely because the trial strategy failed.” State v. Sheika, 337 N.J.
Super. 228, 243 (App. Div.), (citing State v. Davis, 116 N.J. 341,
357 (1989)), certif. denied, 169 N.J. 609 (2001). Strategic
miscalculations or trial mistakes by counsel are insufficient to
warrant reversal except in those rare instances where they are of
such magnitude as to thwart the fundamental guarantee of a fair trial.
State v. Thomas, 245 N.J. Super. 428, 432 (App. Div.1991), appeal
dismissed by 130 N.J. 588 (1992).
Here, no evidence suggests counsel was ill-prepared for trial.
Defendant’s complaint of counsel’s limited communication was
made eighteen months before trial commenced, and Fishman’s letter
adequately explains the basis for that lapse. Trial counsel filed a
number of pre-trial motions, secured an evaluation to assure
defendant’s competence to stand trial, challenged the admissibility
of proffered State evidence, and vigorously cross-examined the
State’s witnesses. Defendant offers no basis to challenge the
articulated defense strategy of admitting to a lesser offense in light
of the State’s overwhelming evidence of guilt. Nor does he articulate
how he was prejudiced. Also, the PCR judge’s reliance on the trial
record to reject defendant’s claimed lack of understanding of trial
strategy, including with respect to the exercise of his right to testify,
is well-supported.
Following our review of the arguments advanced, in light of the
record and the applicable law, we find no flaw in the PCR judge’s
determination that defendant’s claims of ineffective assistance
failed to satisfy either prong of the Strickland/Fritz test.
DeJesus, 2012 WL 5457335, at *4–5.

10

The Appellate Division also rejected Petitioner’s contention that his trial counsel was
ineffective for failing to request a passion/provocation jury charge. Petitioner maintained his
statement to police supported reasonable provocation. In that statement, he describes his arguments
with Castle over her daughter, which occurred over several days, and a final argument that
culminated with Castle telling him to “get out” and pushing him, which caused him to “los[e][his]
mind.” (See ECF No. 10-25 at 111-23.) The Appellate Division rejected this argument as follows:
We reject [the passion provocation] claim as unfounded. We first
note the challenge to the jury instructions is procedurally barred as
it should have been presented on direct appeal. R. 3:22–4
(prohibiting post-conviction consideration of claims for relief which
could have been raised in prior proceedings, including direct
appeal). Notwithstanding this procedural bar, the PCR judge
considered the merits of defendant’s assertions, and properly found
no rational basis to support a passion/provocation charge.
“[T]he test for adequate provocation is provocation sufficient to
arouse the passions of an ordinary person beyond the power of his
or her control.” State v. Oglesby, 122 N.J. 522, 536 (1991) (citing
State v. Mauricio, 117 N.J. 402, 412 (1990)). Generally, “[a]dequate
provocation is not satisfied by ‘words alone, no matter how
offensive or insulting.’” State v. Docaj, 407 N.J. Super. 352, 368
(App. Div.) (quoting State v. Crisantos, 102 N.J. 265, 274 (1986)),
certif. denied, 200 N.J. 370 (2009). And “[e]ven in instances of
‘mutual combat,’ the defendant’s response must be proportionate to
the provocation.” Id. at 369 (citing Oglesby, supra, 122 N.J. at 536).
Defendant’s custodial statement asserts he and Castle were arguing
when she told him “to get out” and pushed him one time. No other
facts significant to passion/provocation were offered. Even evidence
revealing Castle actually struck defendant would be insufficient to
warrant a passion/provocation charge because the jury could not
have found “a single blow by an unarmed woman could have
aroused the passions of an ordinary man beyond the power of his
control.” Oglesby, supra, 122 N.J. at 536. See also Docaj, supra,
407 N.J. Super. at 359 (finding insufficient to support
passion/provocation charge the defendant’s wife’s rejection of his
plea to abandon divorce proceedings accompanied by a slap in the
face). In light of this record, there was no reasonable and objective
demonstration of provocation to warrant a passion/provocation
instruction. See State v. Abrams, 256 N.J. Super. 390, 397 (App.
Div.) (holding passion/provocation can be charged as a lesser
included offense to murder “only when there is a rational basis in
11

the evidence for a verdict convicting the defendant of such an
offense”) (citations omitted), certif. denied, 130 N.J. 395 (1992).
Therefore, we cannot find evidence showing trial counsel’s
representation was deficient due to the failure to request such a
charge.
DeJesus, 2012 WL 5457335, at *5. The New Jersey Supreme Court denied certification. State v.
Dejesus, 213 N.J. 538 (2013).
Petitioner raises three grounds for relief:
(A) GROUND ONE:
THE STATE COURT’S RULING AND PERMITTING THE
STATE’S EXPERT TO TESTIFY AS TO INADMISSIBLE
STATEMENTS TO POLICE BY A FRIEND [OF THE VICTIM]
WAS CONTRARY TO CLEARLY ESTABLISHED FEDERAL
LAW AND AN UNREASONABLE APPLICATION OF
FEDERAL LAW, THEREFORE THE WRIT SHOULD BE
ISSUED.
(B) GROUND TWO:
PETITIONER RAISES INEFFECTIVE ASSISTANCE OF
COUNSEL ON HIS TRIAL COUNSEL AND DIRECT APPEAL
COUNSEL FOR NOT PRESENTING THE ISSUE OF
PASSION/PROVOCATION IN VIOLATION OF HIS SIXTH
AMENDMENT [RIGHTS,] WHICH DEPRIVED DEFENDANT
OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF
THE LAW AND THE RIGHT TO A FAIR TRIAL. AMENDS. VI,
XIV, N.J. CONST. (1947) ART. 1 & 10.
(C) GROUND THREE:
THE
DEFENDANT
WAS
DEPRIVED
OF
HIS
CONSTIUTIONAL RIGHT TO TESTIFY ON HIS BEHALF AND
HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL,
TO CLEARLY ESTABLISHED FEDERAL LAW AND AN
UNREASONABLE APPLICATION OF FEDERAL LAW
THEREFORE, THE WRIT SHOULD BE ISSUED.
(ECF No. 1 at 9-19.) The matter was initially assigned to the Honorable Freda L. Wolfson. The
Court advised Petitioner of his rights pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000),
and Petitioner responded that he wished to have his Petition ruled on as filed. (ECF Nos. 3 & 5.)
12

The Court ordered the State to answer the Petition, and the State filed its Answer and the relevant
record on December 20, 2013. (ECF No. 10.) Petitioner did not file a traverse. On August 8, 2016,
the matter was transferred to the undersigned. (ECF No. 11.)
II.

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

“in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
Petitioner has the burden of establishing each claim in the petition. See Eley v. Erickson, 712 F.3d
837, 846 (3d Cir. 2013). Under 28 U.S.C. § 2254, as amended by the Anti–Terrorism and Effective
Death Penalty Act, 28 U.S.C. § 2244 (“AEDPA”), federal courts in habeas corpus cases must give
considerable deference to determinations of the state trial and appellate courts. See Renico v. Lett,
599 U.S. 766, 772 (2010).
Section 2254(d) sets the standard for granting or denying a writ of habeas corpus. The
statute reads as follows:
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(d).

13

Where a state court has adjudicated a petitioner’s federal claim on the merits, 4 a federal
court “has no authority to issue the writ of habeas corpus unless the [state c]ourt’s decision ‘was
contrary to, or involved an unreasonable application of, clearly established Federal Law, as
determined by the Supreme Court of the United States,’ or ‘was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.’” Parker
v. Matthews, 132 S. Ct. 2148, 2151 (2012) (quoting 28 U.S.C. § 2254(d)). 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. See Harrington v. Richter, 562 U.S. 86, 99 (2011).
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).
“[C]learly established law for purposes of § 2254(d)(1) includes only the holdings, as opposed to
the dicta, of t[he Supreme Court’s] decisions,” as of the time of the relevant state-court decision.
White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (quoting Williams v. Taylor, 529 U.S. 362, 412
(2000)). A decision is “contrary to” a Supreme Court holding under 28 U.S.C. § 2254(d)(1) if the
state court “contradicts the governing law set forth in [the Supreme Court’s] cases” or if it
“confronts a set of facts that are materially indistinguishable from a decision of th[e Supreme]
Court and nevertheless arrives at a [different] result.” Williams, 529 U.S. at 405-06. Under the
“‘unreasonable application’ clause of § 2254(d)(1), a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from th[e Supreme] Court’s decisions
but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. A federal

4

“For the purposes of Section 2254(d), a claim has been ‘adjudicated on the merits in State court
proceedings’ when a state court has made a decision that 1) finally resolves the claim, and 2)
resolves th[at] claim on the basis of its substance, rather than on a procedural, or other, ground.”
Shotts v. Wetzel, 724 F.3d 364, 375 (3d Cir. 2013) (citation and internal quotation marks
omitted).
14

court must confine its examination under 28 U.S.C. § 2254(d)(1) to evidence in the record. See
Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011).
Where a petitioner seeks habeas relief pursuant to § 2254(d)(2) on the basis of an erroneous
factual determination of the state court, two provisions of the AEDPA necessarily apply. First, the
AEDPA provides that “a determination of a factual issue made by a State court shall be presumed
to be correct [and] [t]he applicant shall have the burden of rebutting the presumption of correctness
by clear and convincing evidence.” 29 U.S.C. § 2254(e)(1); see Miller–El v. Dretke, 545 U.S. 231,
240 (2005). Second, the AEDPA precludes habeas relief unless the adjudication of the claim
“resulted in a decision that was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).
III.

DECISION
A. Admission of Expert Testimony
Petitioner first argues the admission of Andrade’s statement through the state’s expert, Dr.

Schlesinger, violated clearly established federal law. The Court and the State construe Plaintiff to
argue that the admission of the statement violated his federal rights under the Confrontation
Clause. The State, however, contends in its brief that this claim was not fairly presented to the state
court as a constitutional claim, and is thus barred under 28 U.S.C. § 2254 (b). 5 (ECF No. 10 at 3-

5

Pursuant to the AEDPA, a habeas petitioner must “fairly present” a federal constitutional claim
in order such claim to be available for federal habeas review. See 28 U.S.C. § 2254(b). In order
to “fairly present” his claim, a prisoner must present in state court the factual and legal substance
of his federal claim, in a manner that puts the state court on notice that a federal claim is
asserted. McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999) (citing Anderson v. Harless,
459 U.S. 4, 6 (1982)). In this case, the state court’s consideration of a petitioner’s federal
constitutional claim is not conclusive as to whether the claim was exhausted at the state level.
Even if the state court does not consider the claim, it is still exhausted if the state court had the
opportunity to address it. Nara v. Frank, 488 F.3d 187, 198 (3d Cir. 2007) (citing Bond v.
Fulcomer, 864 F.2d 306, 309 (3d Cir. 1989)). To the extent that Petitioner’s constitutional claims
were not fairly presented and are thus unexhausted and/or procedurally defaulted, this Court can
15

5.) With respect to the merits of the claim, the State asserts that at the time of Petitioner’s appeal,
and at present, there is no “clearly established federal law, as determined by the Supreme Court of
the United States,” that dictates that the admission of Dr. Schlesinger’s testimony recounting
Andrade’s statement violated the Confrontation Clause. (Id. at 6.) Finally, the State contends even
if the admission of the testimony violated the Confrontation Clause, the error was harmless. (Id. at
7.)
The Confrontation Clause of the Sixth Amendment, applicable to the States through the
Fourteenth Amendment, requires that a criminal defendant be given the right “to be confronted
with the witnesses against him,” and includes the right to cross-examine those witnesses. U.S.
Const. amends. VI, XIV; see Richardson v. Marsh, 481 U.S. 200, 206 (1987). This guarantee
applies to both federal and state prosecutions. See Pointer v. Texas, 380 U.S. 400, 403 (1965).
Here, Petitioner’s confrontation clause claim is governed by Crawford v. Washington, 541
U.S. 36 (2004). 6 Prior to the Supreme Court’s decision in Crawford, supra, Confrontation Clause
jurisprudence permitted testimonial hearsay to be admitted against a defendant, provided it bore
sufficient “indicia of reliability.” That standard changed with the Supreme Court’s decision in
Crawford. In Crawford, petitioner Michael Crawford had stabbed a man who allegedly tried to
rape his wife. At his trial, the State played a recording of the wife’s statement to the police for the
jury as evidence that the stabbing was not in self-defense, even though he had no opportunity for

nevertheless deny them on the merits under 28 U.S.C. § 2254(b)(2). See Taylor v. Horn, 504
F.3d 416, 427 (3d Cir. 2007) (“Here, because we will deny all of [petitioner’s] claims on the
merits, we need not address exhaustion.”); Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir. 2005)
(“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.”).
6

“Clearly established Federal law” for the purposes of the habeas statute is the law at the time of
the last state-court adjudication on the merits of the petitioner’s claim. See Greene v. Fisher, 565
U.S. 34, 38-40 (2011).
16

cross-examination. See 541 U.S. at 38-40. The Supreme Court held that a defendant’s Sixth
Amendment right of confrontation is violated by the admission of “testimonial statements of a
witness who did not appear at trial unless he was unavailable to testify, and the defendant had had
a prior opportunity for cross-examination.” Crawford, 541 U.S. at 56; see also Davis v.
Washington, 547 U.S. 813 (2006).
The Crawford Court stated, however, that the Confrontation Clause “does not bar the use
of testimonial statements for purposes other than establishing the truth of the matter asserted.” 7
541 U.S. at 59 n.9 (citing Tennessee v. Street, 471 U.S. 409, 414 (1985)); see also Adamson v.
Cathel, 633 F.3d 248, 256 (3d Cir. 2011) (“Even after Crawford, however, ‘[t]he [Confrontation]
Clause . . . does not bar the use of testimonial statements for purposes other than establishing the

7

Another threshold question for Confrontation Clause claims is whether the challenged
statement is testimonial. See Davis, 574 U.S. at 821. “If it is not, the Confrontation Clause has no
application.” Whorton v. Bockting, 549 U.S. 406, 420 (2007). The Crawford Court defined
“testimony” as “[a] solemn declaration or affirmation made for the purpose of establishing or
proving some fact. An accuser who makes a formal statement to government officers bears
testimony in a sense that a person who makes a casual remark to an acquaintance does not.”
Crawford, 541 U.S. at 51 (citations and internal quotation marks omitted). Although Crawford
did not create a definitive class of testimonial statements, the Supreme Court did identify
“various formulations” of testimonial hearsay, which generally include the following:
[E]x parte in-court testimony or its functional equivalent—that is,
material such as affidavits, custodial examinations, prior testimony
that the defendant was unable to cross-examine, or similar pretrial
statements that declarants would reasonably expect to be used
prosecutorially; extrajudicial statements . . . contained in
formalized testimonial materials, such as affidavits, depositions,
prior testimony, or confessions; [and] statements that were made
under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use
at a later trial.
Crawford, 541 U.S. at 51-52. Here, the record as a whole is unclear regarding the origins of
Andrade’s statement. The Appellate Division, in its Opinion, indicates Ms. Andrade’s statement
was “made to police” but does not otherwise explain the circumstances surrounding the taking of
the statement.
17

truth of the matter asserted.’”) (citing Crawford, 541 U.S. at 59). Non-hearsay use of statements
generally raises no Confrontation Clause concerns. United States v. Jimenez, 513 F.3d 62, 81 (3d
Cir. 2008) (“Nonhearsay use of evidence as a means of demonstrating a discrepancy does not
implicate the Confrontation Clause.”); United States v. Hinton, 423 F.3d 355, 358 n.1 (3d Cir.
2005) (“As we held in United States v. Trala, testimonial statements are admissible without prior
cross examination if they are not offered for their truth.”). However, the Confrontations Clause
may still be implicated if an expressly incriminating statement is used for non-hearsay purposes.
Adamson, 633 F.3d at 258-59 & n.8 (citing Street, 471 U.S. at 417). In such circumstances, “[a]n
appropriate limiting instruction is necessary to prohibit jury misuse of such evidence.” Adamson,
633 F.3d at 258 (3d Cir. 2011) (finding that admission of the accomplices’ statements without a
limiting instruction was contrary to clearly established Supreme Court precedent, and reversing
the District Court’s decision and granting habeas petition).
The two-part statement at issue was presented to the jury during the course of Dr.
Schlesinger testimony regarding the “pre-homicidal context” of the case, and was offered to
explain the basis of his expert opinion. 8 Thus, as the State has argued, the statement appears to
have been admitted for a purpose other than establishing the truth of the matter asserted, which is
a permitted purpose under Crawford.
Here, however, the Court need not decide whether the admission of the statement violated
the Confrontation Clause because any such error was harmless. On habeas review, a constitutional

8

As noted by the State, Plaintiff’s trial and appeal predate the Supreme Court’s decisions in
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), Bullcoming v. New Mexico, 564 U.S. 647
(2011), and Williams v. Illinois, 132 S. Ct. 2221 (2012), all of which addressed Confrontation
Clause issues arising in the context of expert testimony, albeit of a much different character than
the type of testimony offered here. The Court therefore does not rely on those decisions in
determining whether the admission of the statement violated clearly established federal law.
18

error is considered harmless unless it can be shown to have “‘had substantial and injurious effect
or influence in determining the jury’s verdict.’” Brecht v. Abrahamson, 507 U.S. 619, 622 (1993)
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946); see O’Neal v. McAninch, 513 U.S.
432, 439 (1995) (affirming that Kotteakos standard applies “in its entirety” to harmless error
analysis on habeas review); Fry v. Pliler, 551 U.S. 112, 121 (2007) (“We hold that in § 2254
proceedings a court must assess the prejudicial impact of constitutional error in a state-court
criminal trial under the ‘substantial and injurious effect’ standard set forth in Brecht . . . .”). Under
Brecht, if a habeas court has a “grave doubt as to the harmlessness of [a constitutional error], it
should grant relief.” O’Neal, 513 U.S. at 445. In conducting this analysis, the court looks to “a
host of factors,” such as “the importance of the witness’ testimony in the prosecution’s case,
whether the testimony was cumulative, the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of the prosecution’s case.” Delaware v.
Van Arsdall, 475 U.S. 673, 684 (1986).
The Third Circuit has previously applied the Brecht harmless-error analysis to habeas
review of evidentiary decisions regarding the introduction of evidence in violation of the
Confrontation Clause. See Adamson, 633 F.3d at 256 (Conducting a harmless error analysis on
habeas claim and “conclud[ing] that the accomplice statements, combined with the lack of a
limiting instruction, had a substantial and injurious effect on the jury’s verdict.”). Additionally,
district courts in other circuits have similarly found “[t]he intersection of state law evidentiary
rules, the nature of expert opinion evidence, and the constitutional issues raised in Crawford
potentially involve complex legal questions. However, there is no need to engage in such an
analysis if the challenged evidence was so insignificant that it could not have affected the jury’s

19

verdict.” See Abelar v. Foulk, Civ. No. CV 13-4401 CJC MRW, 2013 WL 8277137, at *3 (C.D.
Cal. Nov. 4, 2013), report and recommendation adopted, Civ. No. CV 13-4401 CJC MRW, 2014
WL 1457776 (C.D. Cal. Apr. 14, 2014).
Here, there was overwhelming evidence that Petitioner stabbed Castle during an argument,
including his own statement and the victim’s statement to her daughter. Any error in admitting Dr.
Schlesinger testimony regarding Andrade’s statement was harmless because both parts of the
challenged statement were ambiguous and shed no light on the issues of whether Petitioner had
the requisite state of mind to commit knowing and purposeful murder or was intoxicated at the
time he stabbed Castle. At best, the second part of the statement in which Andrade heard Petitioner
stating, “so that’s what you want Maria,” suggests that Petitioner and Castle were arguing prior to
her death, a fact that is abundantly clear from Petitioner’s statement to police. The first portion of
Andrade’s statement about Castle’s intention to go to Andrade’s house is also memorialized in
Petitioner’s statement to police. (See ECF No. 10-25 at 111-23.) Although the trial court did not
provide a curative instruction at the time the statement was introduced, such instruction was not
required under Street, because the statement was not expressly incriminating. Furthermore, the
trial court limited any further testimony regarding Andrade’s statement and properly charged the
jury regarding the weight to afford expert testimony.
For the reasons set forth above, Dr. Schlesinger’s recounting of Andrade’s statement could
not have “had substantial and injurious effect or influence in determining the jury’s verdict.”
Brecht, 507 U.S. at 622. Because any potential constitutional error in the admission of the
statement was harmless, Ground One of the Petition is denied.
B. Ineffective Assistance of Counsel

20

In Grounds Two and Three of his Petition, Petitioner contends his trial and appellate
counsel provided ineffective assistance of counsel. The standard which governs claims of
ineffective assistance of counsel is well established; such claims are governed by the two-prong
test set forth in the Supreme Court’s opinion in Strickland v. Washington, 466 U.S. 668 (1984). To
support such a claim under Strickland, a petitioner must first show that “counsel’s performance
was deficient. This requires [the petitioner to show] that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Id. at 687; see
also United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007). To succeed on an ineffective
assistance claim, a petitioner must also show that counsel’s allegedly deficient performance
prejudiced his defense such that the petitioner was “deprive[d] of a fair trial . . . whose result is
reliable.” Strickland, 466 U.S. at 687; Shedrick, 493 F.3d at 299. In evaluating whether counsel
was deficient, the “proper standard for attorney performance is that of ‘reasonably effective
assistance.’” Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). A petitioner asserting ineffective
assistance must show that counsel’s representation “fell below an objective standard of
reasonableness” under the circumstances. Id. The reasonableness of counsel’s representation must
be determined based on the particular facts of a petitioner’s case, viewed as of the time of the
challenged conduct of counsel. Id. In scrutinizing counsel’s performance, courts “must be highly
deferential . . . a court must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.
Even where a petitioner is able to show that counsel’s representation was deficient, the
petitioner must still affirmatively demonstrate that counsel’s deficient performance prejudiced the
petitioner’s defense. Id. at 692-93. “It is not enough for the defendant to show that the errors had
some conceivable effect on the outcome of the proceeding.” Id. at 693. The petitioner must

21

demonstrate that “there is a reasonable probability, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694; see also Shedrick, 493 F.3d at 299.
“Because failure to satisfy either prong defeats an ineffective assistance claim, and because it is
preferable to avoid passing judgment on counsel’s performance when possible,” courts should
address the prejudice prong first where it is dispositive of a petitioner’s claims. United States v.
Cross, 308 F.3d 308, 315 (3d Cir. 2002) (quoting Strickland, 466 U.S. at 697-98); see also Judge
v. United States, 119 F. Supp. 3d 270, 280-81 (D.N.J. 2015).
Finally, when a federal habeas petition under § 2254 is based upon an ineffective assistance
of counsel claim, “[t]he pivotal question is whether the state court’s application of the Strickland
standard was unreasonable,” which “is different from asking whether defense counsel’s
performance fell below Strickland’s standard.” Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013)
(quoting Harrington, 562 U.S. at 101). For purposes of § 2254(d)(1), “an unreasonable application
of federal law is different from an incorrect application of federal law.” Grant, 709 F.3d at 232
(internal quotation marks omitted) (emphases in original). “A state court must be granted a
deference and latitude that are not in operation when the case involves [direct] review under the
Strickland standard itself.” Id. Federal habeas review of ineffective assistance of counsel claims is
thus “doubly deferential.” Id. (quoting Cullen, 563 U.S. at 189). Federal habeas courts must “take
a highly deferential look at counsel’s performance” under Strickland, “through the deferential lens
of § 2254(d).” Grant, 709 F.3d at 232. (internal quotation marks and citations omitted).
1. Ineffective Assistance of Trial and Appellate Counsel for Failure to Present Issue
of Passion/Provocation

22

Petitioner asserts his trial counsel was ineffective in failing to request that the jury be
provided a passion/provocation manslaughter charge as a potential lesser included offense, and his
appellate counsel was ineffective for failing to raise this issue on direct appeal. The State argues
this claim is barred under 28 U.S.C. § 2254(b), because it was not exhausted in state court. (ECF
No. 10 at 7-8.) With respect to the merits, the State argues the state court’s rejection of Petitioner’s
ineffective assistance of counsel, passion provocation claim, was neither contrary to nor an
unreasonable application of clearly established federal law. (Id. at 8.)
At trial, Petitioner’s counsel utilized the defense of poly-substance abuse, a theory
premised on showing that Petitioner was unable to form the requisite intent for a murder
conviction. Petitioner contends, however, that trial counsel should have also presented a
passion/provocation theory. 9 On PCR, Petitioner argued his statement to police supported
reasonable provocation. In that statement, he describes his arguments with Castle over her
daughter, which occurred over several days, and a final argument that culminated with Castle
telling him to “get out” and pushing him, which caused him to “los[e][his] mind.” (See ECF No.
10-25 at 111-23.)
The Appellate Division rejected Petitioner’s arguments. The court first found the challenge
to the jury instructions procedurally barred as it should have been presented on direct appeal.
DeJesus, 2012 WL 5457335, at *5. Next, noting that the PCR judge also considered the merits of
Petitioner’s assertions, the Appellate Division agreed with the PCR judge that there was “no
rational basis” under state law to support a passion/provocation charge in Petitioner’s case:
“[T]he test for adequate provocation is provocation sufficient to
arouse the passions of an ordinary person beyond the power of his
or her control.” State v. Oglesby, 122 N.J. 522, 536 (1991) (citing
9

Such a theory, however, would have been inconsistent with counsel’s primary defense that
Petitioner was unable to form the intent to kill.
23

State v. Mauricio, 117 N.J. 402, 412 (1990)). Generally, “[a]dequate
provocation is not satisfied by ‘words alone, no matter how
offensive or insulting.’” State v. Docaj, 407 N.J. Super. 352, 368
(App. Div.) (quoting State v. Crisantos, 102 N.J. 265, 274 (1986)),
certif. denied, 200 N.J. 370 (2009). And “[e]ven in instances of
‘mutual combat,’ the defendant’s response must be proportionate to
the provocation.” Id. at 369 (citing Oglesby, supra, 122 N.J. at 536).
Defendant’s custodial statement asserts he and Castle were arguing
when she told him “to get out” and pushed him one time. No other
facts significant to passion/provocation were offered. Even evidence
revealing Castle actually struck defendant would be insufficient to
warrant a passion/provocation charge because the jury could not
have found “a single blow by an unarmed woman could have
aroused the passions of an ordinary man beyond the power of his
control.” Oglesby, supra, 122 N.J. at 536. See also Docaj, supra,
407 N.J. Super. at 359 (finding insufficient to support
passion/provocation charge the defendant’s wife’s rejection of his
plea to abandon divorce proceedings accompanied by a slap in the
face). In light of this record, there was no reasonable and objective
demonstration of provocation to warrant a passion/provocation
instruction. See State v. Abrams, 256 N.J. Super. 390, 397 (App.
Div.) (holding passion/provocation can be charged as a lesser
included offense to murder “only when there is a rational basis in
the evidence for a verdict convicting the defendant of such an
offense”) (citations omitted), certif. denied, 130 N.J. 395 (1992).
Therefore, we cannot find evidence showing trial counsel’s
representation was deficient due to the failure to request such a
charge.
DeJesus, 2012 WL 5457335, at *5.
Here, the Appellate Division’s finding that trial counsel was not deficient for failing to
request a passion/provocation charge was neither contrary to, nor involved an unreasonable
application of, clearly established federal law as determined by the Supreme Court of the United
States, nor was it based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceeding. 10 Parker, 132 S. Ct. at 2151 (quoting 28 U.S.C. § 2254(d)).

10

In some circumstances, adequate provocation may be shown through a course of ill treatment
that the defendant reasonably believed would continue. See State v. Guido, 40 N.J. 191, 191 A.2d
45, 56 (1963). The evidence adduced at trial suggested that Petitioner and Castle had been
24

Because the passion/provocation defense, as determined by state law, was not supported by the
evidence, counsel was not ineffective for failing to request that it be charged. An attorney cannot
be ineffective for failing to request a charge to which the defendant was not entitled. See Gov’t of
Virgin Islands v. Lewis, 620 F.3d 359, 372 (3d Cir. 2010). By extension, Petitioner’s direct appeal
counsel was not ineffective for failing to raise a meritless issue on appeal. 11 Accordingly, Ground
Two of the Petition is denied. 12
2. Ineffective Assistance of Counsel with Respect to Testimonial Election
Petitioner also contends his trial counsel failed to adequately communicate with him during
pretrial and trial proceedings, and that he did not testify on his own behalf because he was unable
to speak freely with his attorney. (ECF No. 1 at 17-19.) Petitioner further contends as follows:
“Had [Petitioner] been able to testify he could have explain[ed] to the jury exactly what went on
between him and the victim and provided a rational basis for a passion/provocation instruction to
the jury.” (Id. at 18.)

arguing about her daughter for a relatively short period of time over her failure to attend school,
and it is not unreasonable for the state court to have declined to apply this line of cases as the
evidence did not demonstrate a level and/or length of ill treatment sufficient to justify the charge
under state law.
11

Claims of ineffective assistance of appellate counsel are evaluated under the same Strickland
standard applicable to trial counsel. See Lewis v. Johnson, 359 F.3d 646, 656 (3d Cir. 2004). An
attorney’s decision about which issues to raise on appeal are strategic, and an attorney is not
required to raise every possible non-frivolous issue on appeal. See Jones v. Barnes, 463 U.S. 745
(1983); Smith v. Robbins, 528 U.S. 259, 272 (2000).
12

Petitioner argues the failure of his trial counsel to seek a passion/provocation charge and his
appellate counsel’s failure to raise this issue constitutes a per se violation of his right to effective
counsel. (ECF No. 1 at 12-13.) Thus, he appears to argue his counsel failed to act in accord with
the standards set forth in United States v. Cronic, 466 U.S. 648, 659-60, n.25 (1984), which
holds that prejudice may be presumed in limited circumstances, such as where “counsel is . . .
totally absent.” Because neither trial nor appellate counsel was deficient for failing to raise the
issue of passion/provocation, the Court need not separately address this argument.
25

A defendant has a constitutional right to testify on his or her own behalf. 13 See generally
Rock v. Arkansas, 483 U.S. 44, 49–53 (1987). “The Strickland standard is applicable when a
petitioner claims his attorney was ineffective by denying him his constitutional right to testify.”14
Palmer v. Hendricks, 592 F.3d 386, 394 (3d Cir. 2010) (citing Matylinsky v. Budge, 577 F.3d 1083,
1097 (9th Cir. 2009) (citation omitted)). Here, however, Petitioner has not alleged that he was
unaware of his testimonial right or that his counsel disallowed him to exercise it. (See ECF No.
10-27 at ¶ 6.) As both the PCR judge and the Appellate Division noted, the trial record indicates
that Petitioner did consult with counsel about the right to testify, that Petitioner did not want to
testify, and that Petitioner wanted an instruction requiring jurors not to draw an adverse inference
from his testimonial election. (See ECF No. 10-12 at 209:1-210:5.)
In considering Petitioner’s claims of inadequate communication and its impact on his
testimonial election, the Court need not consider whether trial counsel was deficient in his
communications with Petitioner, because the Appellate Division reasonably determined that
Petitioner failed to satisfy the prejudice prong of Strickland by failing to provide the facts he would
have offered in support of his passion/provocation defense had he taken the stand. See DeJesus,
2012 WL 5457335, at *4–5. Petitioner contends only that he “could have explain[ed] to the jury
exactly what went on between him and the victim and provided a rational basis for a
passion/provocation instruction to the jury.” (ECF No. 1 at 18.) It is dispositive that Petitioner’s
certification submitted on PCR fails to outline what, specifically, his hypothetical trial testimony

13

Under Third Circuit precedent, defense counsel has a duty to inform defendant of this right, but
a defendant may nevertheless waive it so long as the decision is “knowing and intelligent.”
United States v. Pennycooke, 65 F.3d 9, 11-13 (3d Cir. 1995).
14

The Third Circuit has held that an attorney’s failure to advise a defendant of his right to testify
in his own defense is not the sort of structural defect for which the automatic reversal rule is
reserved, and thus is subject to the Strickland analysis. See Palmer, 592 F.3d at 398.
26

would have been and how it would have supported a viable passion/provocation defense. As such,
Petitioner has made no showing at all as to the prejudice element of his ineffective assistance
claim, and his “stated desire to tell his side of the story falls far short of satisfying Strickland’s
prejudice element.” Palmer, 592 F.3d at 395 (internal quotations and citations omitted).
Accordingly, Ground Three of the Petition is denied.
C. Certificate of Appealability
Pursuant to 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a habeas
proceeding where that petitioner’s detention arises out of his state court conviction unless he has
“made a substantial showing of the denial of a constitutional right.” “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district court’s resolution
of his constitutional claims or that jurists could conclude that the issues presented here are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). For the reasons expressed above, jurists of reason could not disagree that Petitioner’s
claims are lacking in merit. Therefore, no certificate of appealability will issue pursuant to 28
U.S.C. § 2253(c)(1)(B). See Fed. R. App. P. 22(b)(1); 3d Cir. L.A.R. 22.2.
IV.

CONCLUSION
For the reasons expressed in this Opinion, the Court DENIES the Petition and DENIES a

certificate of appealability. An appropriate Order will follow.

Date: January 6, 2017

/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

27