MALONEY v. NOGAN et al

Filing 21

OPINION filed. Signed by Judge Freda L. Wolfson on 4/19/2017. (mps)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

OSBORNE S. MALONEY,

Civil Action No. 14-1548 (FLW)

Petitioner,
v.

OPINION

PATRICK NOGAN, et al.,
Respondents.

I.

INTRODUCTION
This matter has been opened to the Court by Petitioner Osborne S. Maloney’s filing of a

pro se petition for a writ of habeas corpus challenging his New Jersey state court conviction
pursuant to 28 U.S.C. § 2254. For the reasons explained in this Opinion, the Court will deny the
petition and will also deny a certificate of appealability.
II.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The State alleged that Petitioner was part of a four-person conspiracy to commit a

targeted armed robbery of business owner Syoma (“Sam”) Shnayder and his wife Rita at their
home on August 19, 2005. The State’s theory of the case was that Igor Chichelnitsky was the
ringleader, Nathan Jakubov was driver of the getaway car, and Petitioner and Juan Rodriguez
executed the planned armed robbery, which went awry and resulted in Sam being shot in the
abdomen by Petitioner. The four men were arrested shortly after the robbery. 1

1

This overview is taken from the opinion issued by the New Jersey Supreme Court. See State v.
Maloney, 216 N.J. 91 (2013).
1

Rodriguez pleaded guilty to armed robbery and testified against Petitioner at trial. (See
ECF No. 13-1, Trial Tr. dated 9/22/2009 at 63:1-65-6.) At trial, Rodriguez testified that he,
Petitioner, and Jakubov “scop[ed] out” the victims’ home in Monroe Township on August 16 or
17, 2005. (Id. at 71:7-72:16.) On August 19, 2005, the three men returned to the victims’ home.
(Id. at 122:24-124:25.) Jakubov stayed in the car while Petitioner and Rodriguez walked towards
the home wearing black masks covering their faces. (Id. at 131:11-132:2.) Petitioner carried a
.38 caliber handgun and a knife, and Rodriguez carried a 9–millimeter handgun. (Id.) Rodriguez
testified that Petitioner put a knife to Sam’s throat and Rodriguez put hand ties on Sam’s hands.
(Id. at 125:9-126:15.) Rodriguez also testified that Rodriguez took $7000 dollars from a table in
the kitchen and two watches from the kitchen. (Id. at 126:20-127:6.) Rita came home during the
robbery, but managed to escape to a neighbor’s house, and Sam was shot in the left side of his
abdomen. (Id. at 127:25-130:9) Rodriguez testified that he was upstairs looking for more items
to steal when he heard the gunshot. (Id. at 127:7-16; 129:3-12.) Rodriguez further testified that
he came downstairs and saw Petitioner fleeing from the home. (Id.)
Rodriguez testified that he left the home and was discovered by police several blocks
away. The officer conducted a pat down search, which revealed two cell phones, two watches,
$7000 in cash, and a black mask in Rodriguez’ back pocket. (Id. at 132:17-133:13.) At police
headquarters, Rodriguez agreed to make a telephone call to Petitioner and Jakubov while the
police listened. In relevant part, Rodriguez asked Petitioner to come back and get him, and
informed them that he had $7000 and two expensive watches. 2 (Id. at 134:25-136:5.)

2

Although it is not mentioned in the New Jersey Supreme Court’s factual recitation, Rodriguez
recanted his testimony during a hearing outside the presence of the jury and then recanted the
recantation in front of the jury. At the hearing, Rodriguez, abruptly and without prompting,
declared that Petitioner actually had nothing to do with the crime, and stated that the crime was
committed by a man from Brooklyn named “Anthony,” and that Anthony had been killed
2

In contrast to Rodriguez’ testimony, Petitioner testified at trial that he was not a
participant in the planning or commission of the robbery. (ECF No. 13-3, Trial Tr. dated
9/28/2007 at 121-141.) He admitted that he had previously traveled in Jakubov’s car, and had
traveled to Monroe in Jakubov’s vehicle in early August 2005 with Jakubov and Rodriguez;
however, he denied knowing the purpose of the trip and denied that the two men asked Petitioner
to return to the area at a later date. (Id. at 126:17-129:3.) Petitioner admitted that on the day
after the armed robbery and shooting, he took a taxi from New York City to a hotel in Monroe
Township to pick up Rodriguez in the hopes of obtaining the proceeds from the sale of watches
stolen from the victim's home. (Id. at 129:16-133:6; 140:13-141:4.)
At trial, Petitioner testified as follows on direct:
[Defense Counsel]: Did you come down to Monroe Township
on August 20th, 3 o'clock in the morning?
[Defendant]: Yes, ma'am.
Q.
And how did you come to wind up coming down to
Monroe Township?
A.
All right. Nathan [Jakubov] was with a girl that I hooked
him up with.
Q.

What's that girl's name?

A.

Asia.

Q.

Do you know her last name?

A.
I don't recall her last name. I don't, ma'am, no. Nathan was
with Asia, the girl I hooked him up with. So, Asia called me and
said Nathan—

immediately after the crime. (See ECF No. 13-2, Trial Tr. 9/26/2007 at 50:2-51:25.) Rodriguez
stated that he named Petitioner because he had been pressured by police to name a codefendant.
(Id. at 51:18-25.) Rodriguez subsequently retracted that story in front of the jury, stating that he
was the victim of threats from fellow county-jail inmates regarding his testimony. (Id. at 109:1722; 139:11-140:8.) Rodriguez admitted during cross examination that he had lied to police for
eight hours after his arrest when he stated that he did not have a gun during the crime. (Id. at
118:13-23.)
3

[Assistant Prosecutor]: Objection, hearsay. [Judge]: Sustained.
Q.

Did you receive a telephone call that evening?

A.

Yes, ma'am.

Q.
And as a result of that telephone call—did the
telephone call come from Asia?
A.

Yes, ma'am.

Q.

As a result of that telephone call, did you do something?

A.

Yes, ma'am.

Q.

And what was that?

A.
I went to, I went—I reported to Asia as a result of that
telephone call, ma'am.
Q.

And then what happened?

A.
Then when I reported to her, she was telling me what
happened with Nathan.
Q.

Okay. And this was what time?

A.
This is about midnight. Midnight, a little past midnight,
yeah.
Q.

And what did you do after that? What happened after that?

A.
I got the property from Asia, Nathan's property, like his
chain, his wallet, his phone stuff, like that.
Q.

Where was Nathan if you know?

A.
She had told me that he had got arrested. He got pulled
over.
Q.

Okay. And then what happened?

A.
Then while I had the phone, Juan Rodriguez called. I
answered the phone. He told me that—
[Assistant Prosecutor]: Objection, hearsay. [Judge]: Sustained.
Q.

Did Juan Rodriguez ask you to do anything?

A.

Yes, ma'am.

Q.
And as a result of Juan Rodriguez asking you to do
something, what did you do?
A.
I called the cab, Liberty Cab ... and asked them, can I get a
cab to Jersey. He said I have to wait about 30 minutes, 30, 45
minutes, for a cab to take me to Jersey.
Q.

Did Juan tell you he had any money on him?

A.

No, no, ma'am.
4

Q.

What did he tell you he had on him?

A.

He told me—

[Assistant Prosecutor]: Objection.
A.

He told me he had two watches, ma'am. [Judge]: Sustained.

Q.
Did you have any reason to believe after speaking with
Juan that he had money to go hire his own cab or limousine from
where he was?
A.

No ma'am.

Q.

And did you go in the cab?

A.

Yes, ma'am.

Q.

And at some point, did you arrive in New Jersey?

A.

Yes, ma'am.

Q.

And what happened when you arrived in New Jersey?

A.
When I got in front of the hotel, I called him back and told
him I was in front of the hotel, to come outside, but as soon as I
looked around, there was a lot of cops around and they pulled me
out the car and leave me on the floor and asked me my name. I said
my name is Osborne Maloney.
(Id. at 130:5-133:6.) Petitioner also admitted at trial that he thought he would be reimbursed for
his taxicab fare by Rodriguez, and that he would be paid some money after two stolen watches
“were swapped.” (Id. at 140:13-141:4.)
At a conference to discuss the jury charge, Petitioner’s counsel requested that the jury be
instructed on attempted theft by receiving stolen property as a lesser-included offense of robbery.
(ECF No. 13-4, Trial Tr. (undated) at 56:12-60:13; 66:24-72:24.) The prosecutor objected,
arguing such charge lacked a rational basis in the record for a jury to find that Petitioner received
stolen property during the commission of a robbery. (Id.) The judge denied the request. (Id. at
75:3-79:12.) Petitioner did not request an accomplice liability instruction or object to the final
jury charge.
The jury found Petitioner guilty of second-degree conspiracy to commit armed robbery,
N.J.S.A. 2C:5–2 and 2C:15–1; second-degree conspiracy to commit burglary, N.J.S.A. 2C:5–2
5

and 2C:18–2; two counts of first-degree armed robbery, N.J.S.A. 2C:15–1; second-degree
burglary, N.J.S.A. 2C:18–2; second-degree possession of a weapon (a handgun) for an unlawful
purpose, N.J.S.A. 2C:39–4a; and third-degree criminal restraint, N.J.S.A. 2C:13–2.
The Appellate Division affirmed his convictions, but remanded the matter to correct
Petitioner’s judgment of conviction. See State v. Maloney, No. A-6320-06T3, 2011 WL
3180489, at *8 (N.J. Super. Ct. App. Div. July 28, 2011), aff'd, 216 N.J. 91, 77 A.3d 1147
(2013). Petitioner sought certification on two issues. First, Petitioner contended that his
convictions should be reversed based on the judge’s failure to instruct the jury sua sponte on
accomplice liability, pursuant to N.J.S.A. 2C:2–6 and State v. Bielkiewicz, 267 N.J. Super. 520
(App. Div. 1993). Second, Petitioner contended that reversal was required because the judge
refused to charge two lesser-included offenses as required by State v. Freeman, 324 N.J. Super.
463 (App. Div. 1999) and State v. Thomas, 187 N.J. 119 (2006). (See ECF No. 16, Petitioner’s
Letter Petition for Certification dated August 11, 2011.) The Supreme Court subsequently
granted certification, and affirmed the Appellate Division’s decision in a published Opinion. See
State v. Maloney, 216 N.J. 91 (2013). 3 Petitioner did not file a petition for post-conviction relief.
Petitioner’s initial habeas petition was docketed on March 10, 2013, but was unsigned
and was not submitted on the correct form. (See ECF No. 1.) Petitioner submitted a signed
Amended Petition on April 14, 2014. (ECF No. 6.) The Amended Petition raises a single
ground for relief which appears to combine the two grounds for relief that he raised to the New
Jersey Supreme Court: “Lack of accomplice liability instruction and trial court’s refusal to
charge the lesser-included offense of robbery deprived Petitioner of a fair trial.” (ECF No. 6,
Am. Pet. at 6.) The Court Ordered Respondent to file its Answer, which was submitted on June

3

The New Jersey Supreme Court’s decision is discussed in the Analysis section of this Opinion.
6

9, 2014. (ECF Nos. 7, 11.) Petitioner submitted his traverse on July 18, 2014. (ECF No. 19.)
The matter is fully briefed and ready for disposition.
III.

ANALYSIS
a. Standard of Review
Section 2254(a) permits a court to entertain only claims alleging that a person is in state

custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
2254(a). Petitioner has the burden of establishing each claim in the petition. See Eley v.
Erickson, 712 F.3d 837, 846 (3d Cir. 2013). Under 28 U.S.C. § 2254, as amended by the 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:
(d) An application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State court shall
not be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of the
claim(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d).

7

Where a state court adjudicated 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, 131 S.Ct. 770,
785 (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 within 28 U.S.C. § 2254(d) (1) if
the state court “contradicts the governing law set forth in [the Supreme Court’s] cases” or if it
“confronts a set of facts that are materially indistinguishable from a decision of th[e Supreme]
Court and nevertheless arrives at a [different] result.” Williams, 529 U.S. at 405–06. Under the
“‘unreasonable application’ clause of § 2254(d)(1), a federal habeas court may grant the writ if
the state court identifies the correct governing legal principle from th[e Supreme] Court's

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).
8

decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id., 529 U.S.
at 413. With regard to 28 U.S.C. § 2254(d)(1), a federal court must confine its examination 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).
b. Petitioner is not Entitled to Relief on his Habeas Claim
Petitioner raised two grounds for relief to the New Jersey Supreme Court. First, he
contended that his convictions should be reversed based on the judge’s failure to instruct the jury
sua sponte on accomplice liability, pursuant to N.J.S.A. 2C:2–6 and State v. Bielkiewicz, 267
N.J. Super. 520, 632 A.2d 277 (App. Div. 1993). Second, he contended that reversal was
required because the judge refused to charge two lesser-included offenses as required by State v.
Freeman, 324 N.J. Super. 463 (App. Div. 1999) and State v. Thomas, 187 N.J. 119 (2006). (See
ECF No. 16, Petitioner’s Letter Petition for Certification dated August 11, 2011.) Petitioner
appears to raise those same claims in his habeas petition, albeit as a single claim for relief. (ECF
No. 6, Am. Pet. at 6.)

9

Respondent contends in its Answer that Petitioner has not raised a constitutional claim
and has alleged only violations of state law, which do not support a claim for habeas relief.
(ECF No. 11, Answer at 8-11.) This Court agrees that Petitioner did not present his claims to the
New Jersey Supreme Court as federal claims. He did not point to any United States Supreme
Court decisional law, or even lower federal court decisions, in support of his claim. (See ECF
No. 16.) In Baldwin v. Reese, 541 U.S. 27, (2004), the Supreme Court held that a habeas
petitioner did not “fairly present” a federal claim where the petitioner failed to explicitly state
that the claim was federal and failed to cite federal law. Id. at 32–33. Cf. Howell v. Mississippi,
543 U.S. 440 (2005) (dismissal of writ of certiorari) (concluding that petitioner did not “properly
present his claim [to a state court] as one arising under federal law” because “[i]n the relevant
argument, he did not cite the Constitution or even any cases directly construing it, much less any
of [the Supreme] Court’s cases”). In his petition for certification, Petitioner did, however,
explicitly rely on his briefs submitted in the Appellate Division. (See ECF No. 16 at 1.)
Petitioner’s brief to the Appellate Division states in passing that the failure to charge Petitioner
on lesser included offenses “was in violation of [his] rights to due process and a fair trial under
both the Fourteenth Amendment and the corresponding provisions of the state constitution.”
(See ECF No. 15-2, Petitioner’s Appellate Brief at 23.) Petitioner’s appellate brief also cites to
Vujosevic v. Rafferty, 844 F.2d 1023, 1027-28 (3d Cir. 1988), and states that “[i]n the Third
Circuit, the failure to charge an appropriate lesser-included offense is a violation of the
constitutional guarantee of due process.” (Id.) Petitioner’s state court submissions otherwise do
not frame the issues in federal constitutional terms.
To the extent that Petitioner's constitutional claims were not fairly presented and are thus
unexhausted and/or procedurally defaulted, this Court can nevertheless deny them on the merits

10

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”).
Here, Petitioner’s claim deals with alleged errors in charging the jury. In this regard, the
United States Supreme Court and Third Circuit have made clear that it is not the role of the
federal courts to review state court jury instruction rulings that are based on state law; rather, the
federal court's “task is to determine whether [a petitioner] ‘is in custody in violation of the
Constitution or laws or treaties of the United States.’” Barkley v. Ortiz, 209 F. App'x 120, 124
(3d Cir. 2006) (rejecting claim based on the failure to charge accomplice liability which was
rooted in violations of state law) (quoting 28 U.S.C. § 2254); see also Estelle v. McGuire, 502
U.S. 62, 67–68 (1991) (“[I]t is not the province of a federal habeas court to re-examine state
court determinations on state-law questions.”). Questions relating to jury charges are normally
matters of state law and are not cognizable in federal habeas review. 5 See Engle v. Isaac, 456
U.S. 107 (1982); Henderson v. Kibbe, 431 U.S. 145 (1977); Zettlemoyer v. Fulcomer, 923 F.2d
284, 309 (3d Cir.), cert. denied, 502 U.S. 902 (1991); Grecco v. O'Lone, 661 F. Supp. 408, 412
(D.N.J. 1987). Only where the jury instruction is “so prejudicial as to amount to a violation of

5

Under federal law applicable in this habeas review, generally, matters of state law and
rules of procedure are not reviewable in a federal habeas petition. The Supreme Court has stated
that “it is not the province of a federal habeas court to reexamine state-court determinations on
state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). It is well-established that
“a state court's misapplication of its own law does not generally raise a constitutional claim. The
federal courts have no supervisory authority over state judicial proceedings and may intervene
only to correct wrongs of constitutional dimension.” Smith v. Horn, 120 F.3d 400, 414 (3d
Cir.1997) (citations omitted), cert. denied, 522 U.S. 1109 (1998).
11

due process and fundamental fairness will a habeas corpus claim lie.” Id. *6 “[T]he fact that [an]
instruction was allegedly incorrect under state law is not a basis for habeas relief.” Estelle, 502
U.S. at 71-72. Rather, the district court must consider “‘whether the ailing instruction by itself
so infected the entire trial that the resulting conviction violates due process,’ ... not merely
whether ‘the instruction is undesirable, erroneous, or even universally condemned.’” Henderson,
431 U.S. at 154 (quoting Cupp v. Naughten, 414 U.S. 141, 146-47 (1973)). Moreover, “[t]he
burden of demonstrating that an erroneous instruction was so prejudicial that it will support a
collateral attack on the constitutional validity of a state’s court judgment is even greater than the
showing required to establish plain error on direct appeal.” Id. A habeas petitioner who
challenges state jury instructions must “point to a federal requirement that jury instructions on
the elements of an offense ... must include particular provisions” or demonstrate that the jury
“instructions deprived him of a defense which federal law provided to him.” Johnson v.
Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997).
Here, Petitioner alleges that his constitutional rights were violated because the trial judge
declined to charge the jury on lesser included offenses. In Beck v. Alabama, 447 U.S. at 627, the
Supreme Court held that the death penalty may not be imposed “when the jury was not permitted
to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence
would have supported such a verdict.” See also Hopper v. Evans, 456 U.S. 605, 611 (1982)
(holding that due process does not require lesser included offense instruction in death penalty
case where there is no lesser included offense under state law). The Court left open the question
of whether instructions on lesser included offenses were required in non-capital cases. Id. The
Third Circuit has held that trial courts must, when requested, charge a lesser included offense so
that the jury does not convict a defendant of a crime more serious than the jury believes the

12

defendant actually committed merely because the jury believes the defendant had some degree of
involvement and does not want to set the defendant free. See Vujosevic, 844 F.2d at 1027 (citing
Keeble v. United States, 412 U.S. 205, 212–13 (1973)). But see Geschwendt v. Ryan, 967 F.2d
877, 884 n .13 (3d Cir.) (observing that the Supreme Court, in Schad v. Arizona, 501 U.S. 624
(1991), cast doubt on the theory that due process always requires the court to instruct on a lesser
included offense in non-capital offenses by applying a harmless-error standard; conviction of an
offense two rungs higher up the ladder is a reliable indicator that a jury would not have convicted
of the least included offense that was not charged), cert. denied, 506 U.S. 977 (1992); 6 see also
Gilmore v. Taylor, 508 U.S. 333, 342 (1993) (“Outside of the capital context, we have never said
that the possibility of a jury misapplying state law gives rise to federal constitutional error.”).
Other circuits have held that the failure to give lesser included offense instructions in a noncapital case does not present a constitutional question. See Johnson v. Keith, 726 F.3d 1134,
1135 n. 2 (10th Cir. 2013) (“[N]either this court nor the Supreme Court has recognized a federal
constitutional right to a lesser included instruction in non-capital cases.”); Carney v. Fabian, 487
F.3d 1094, 1098 (8th Cir. 2007) (“Because [t]he Supreme Court has never held that due process
requires the giving of lesser-included-offense instructions in noncapital cases, the trial court's

6

After the Court of Appeals decided Vujosevic, the United States Supreme Court rendered its
decision in Schad v. Arizona, 501 U.S. 624 (1991). In Schad, Petitioner was tried for capital
offenses, and in accordance with Beck, the jury was given the option of finding Petitioner guilty
of the noncapital offense of second-degree murder. See id. at 645-46. However, Petitioner argued
that the trial court should have charged the jury on every lesser included noncapital offense
supported by the evidence, in his case, robbery. See id. at 646. The Supreme Court disagreed,
stating that “the central concern of Beck simply is not implicated in the present case, for
petitioner's jury was not faced with an all-or-nothing choice between the offense of conviction
(capital murder) and innocence.” Id. at 647. In Schad's case, the jury was given a choice of
capital murder and second-degree murder, and the Supreme Court was “satisfied that the seconddegree murder instruction ... sufficed to ensure the verdict's reliability.” Id. at 647-48.
13

refusal to give the heat-of-passion manslaughter instruction here cannot be contrary to clearly
established federal law.”) (internal citation and quotation marks omitted).
Here, the Court finds that the failure to give the lesser-included offense instructions was
not contrary to, or an unreasonable application of, Supreme Court precedent because the
Supreme Court has never held that the Due Process Clause guarantees the right of a defendant to
have the jury instructed on a lesser included offense in a non-capital case. Furthermore, the
lesser included offense instruction is constitutionally required in a capital case only when
warranted by the evidence; here, as discussed below, the New Jersey Supreme Court determined
that the lesser included offenses at issue here were not warranted by the evidence. Those
findings are entitled to a presumption of correctness under 28 U.S.C. 2254(e)(1), which has not
been rebutted by Petitioner.
In Petitioner’s case, the New Jersey Supreme Court analyzed the relevant state law
statutory provisions and found that the requested lesser included offenses of attempted theft by
receiving stolen property and conspiracy to receive stolen property do not overlap with the
offense of robbery:
We also conclude that defendant's request that the judge instruct
the jury on two lesser-included offenses of robbery—attempted
theft by receiving stolen property and conspiracy to receive stolen
property—was properly denied. The statutory elements of those
offenses, set forth above, do not overlap. Compare N.J.S.A.
2C:15–1a, with N.J.S.A. 2C:20–7a. We agree with the trial court
and the Appellate Division's reasoning that robbery is a crime
against a person, which focuses on the use of force or threatened
use of force against the victim. See N.J.S.A. 2C:15–1a. Attempted
theft by receipt of stolen property and conspiracy to receive stolen
property, on the other hand, are property crimes. See N.J.S.A.
2C:20–7a.
Maloney, 216 N.J. at 110. The New Jersey Supreme Court further found that “[b]eyond the lack
of shared statutory elements, the record does not provide a rational basis for charging attempted

14

theft by receipt of stolen property or conspiracy to receive stolen property as a lesser included
offenses of robbery” because Petitioner “testified that he had no involvement whatsoever with
the conspiracy, burglary, armed robbery or shooting of the victim.” (Id.) As such, the New
Jersey Supreme Court determined that the “factual scenario could not support a finding that
[Petitioner’s] requested attempt and conspiracy jury charges were lesser-included offenses.”
(Id.) Based on its review of the record, the Court determined that “the receipt of stolen property
offenses do not share a common factual nucleus with the robbery charge in this case” as “[t]he
robbery took place at the Shnayder's home hours before Rodriguez contacted defendant to
request a ride home. Defendant adamantly denied being present at the robbery and instead
testified that he only went to the hotel in the early morning hours after the robbery to pick up
watches that were stolen from the Shnayder's home.” Maloney, 216 N.J. at 110–11.
Furthermore, any error of state law regarding the New Jersey Supreme Court’s
determination cannot form the basis for habeas relief as habeas relief is not available for
violations of state law. See Estelle, 502 U.S. at 71–72 (“[T]he fact that the instruction was
allegedly incorrect under state law is not a basis for habeas relief.”); Engle, 456 U.S. at 119
(“Insofar as respondents simply challenge the correctness of the self-defense instructions under
Ohio law, they allege no deprivation of federal rights and may not obtain habeas relief”). In
addition, the finding that the evidence did not support instructions on the lesser included offenses
of attempted theft by receiving stolen property or conspiracy to receive stolen property is entitled
to a presumption of correctness under 28 U.S.C. 2254(e)(1) and Petitioner has not rebutted this
presumption of correctness by clear and convincing evidence. In sum, habeas relief is not
warranted on the alleged failure of the court to charge the jury on lesser included offenses
because this is not a death penalty case governed by Beck, and because the failure to instruct on a

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lesser included offense does not violate due process where such an instruction is not supported
by the evidence.
Petitioner’s claim that he was deprived of a fair trial by the failure of the Court to sua
sponte charge the jury on accomplice liability also fails to state a federal claim for relief, as
Petitioner did not raise this claim as a violation of his federal constitutional rights. See Barkley,
209 F. App'x at 124 (rejecting claim based on the failure to charge accomplice liability because
the claim was raised as a violation of state law) (quoting 28 U.S.C. § 2254). “Furthermore, to
the extent that he tries to do so, [Petitioner] may not now raise federal legal or constitutional
arguments that he previously failed to raise in state court[]” absent a showing of “cause and
prejudice or that a fundamental miscarriage of justice would result.” Id. (citing Wenger v. Frank,
266 F.3d 218, 224 (3d Cir. 2001)(internal quotation omitted)). Here, Petitioner has not
suggested any grounds on which default might be excused. (See id.)
In rejecting Plaintiff’s argument that the trial court erred in failing to sua sponte charge
the jury on accomplice liability, the New Jersey Supreme Court analyzed the relevant state law
for providing a jury instruction on accomplice liability. See Maloney, 216 N.J. at 105-06. As
explained by the Court, “[w]hen the State’s theory of the case only accuses the defendant of
being a principal, and a defendant argues that he was not involved in the crime at all, then the
judge is not obligated to instruct on accomplice liability.” Maloney, 216 N.J. at 106 (citing State
v. Crumb, 307 N.J. Super. 204, 221–22 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998).
The Court then rejected Petitioner’s claim as follows:
We hold that the judge did not commit plain error by
failing to sua sponte instruct the jury on accomplice liability.
Further, even if defendant had requested such a charge, the
accomplice liability instruction would not have been warranted
because it was not grounded in a rational basis in the trial
evidence.
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First, we note that defendant's reliance on inconsistencies in
the jury's verdict to bolster his argument that the jury might have
convicted him as an accomplice rather than a principal is
unpersuasive because the verdicts are returned long after the jury
has been instructed. Moreover, “[o]ur system of justice has long
accepted inconsistent verdicts as beyond the purview of correction
by our court[ ].” State v. Kelly, 201 N.J. 471, 487, 992 A.2d 776
(2010).
Moreover, defendant was charged in the indictment as a
principal in the robbery and attempted murder. The State presented
proofs consistent with the theory that Rodriguez and defendant
were the only conspirators who entered the home and interacted
with Sam and his wife. Rodriguez testified that defendant shot
Sam. In addition, defendant's DNA was recovered from items
found in Jakubov's Lexus, which was driven to and from the scene
of the crime, long before the time he admitted that he returned to
Monroe Township in a taxi.
Defendant, on the other hand, testified that he did not go to
the victims' home the night of the robbery and shooting. Rather, he
admitted that his only involvement in this case arose when he
answered a call from Rodriguez made to Jakubov's telephone,
during which Rodriguez asked defendant to pick him up from a
hotel in New Jersey. Defendant went to the hotel expecting to
receive the proceeds of some of the items stolen during the armed
robbery.
We conclude that none of the evidence presented by the
State could support a jury finding that defendant was liable as an
accomplice rather than as a principal. Therefore, defendant
suffered no prejudice by the judge's failure to sua sponte charge
the jury on accomplice liability. See, e.g., Crumb, supra, 307 N.J.
Super. at 221– 22 [citations omitted].
Further, despite defendant's arguments, the evidence could
not support a finding that defendant had a lesser intent than that
required to commit robbery. See Crumb, supra, 307 N.J. Super. at
221–22, 704 A.2d 952. The jury had two options. It could credit
Rodriguez's testimony that defendant was equally involved in
planning and committing the robbery, or it could credit defendant's
contrary testimony. The evidence could not support a finding that
defendant was guilty as an accomplice in the armed robbery,
shooting or burglary.
Id. at 108-110.

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Once again, any error of state law regarding the New Jersey Supreme Court’s
determination that Petitioner is not entitled to an instruction on accomplice liability cannot form
the basis for habeas relief as habeas relief is not available for violations of state law. See Estelle,
502 U.S. at 71–72. In addition, the finding that the evidence did not support a sua sponte
instruction on accomplice liability is entitled to a presumption of correctness under 28 U.S.C.
2254(e)(1), and Petitioner has not rebutted this presumption of correctness by clear and
convincing evidence.
The Supreme Court has stated that the failure to give an instruction may violate due
process where the error “so infected the entire trial that the resulting conviction violate[d] due
process.” Henderson v. Kibbe, 431 U.S. 145, 154 (1997) (citation omitted). Here, however, the
Court agrees with the New Jersey Supreme Court’s finding that, if believed, the evidence against
Petitioner did not provide a rational basis for any of the requested instructions. Accordingly,
Petitioner has not shown that that the failure to provide charges on the lesser-included offenses
or on accomplice liability infected the entire trial and violated due process, and he is not entitled
to habeas relief. In summary, the New Jersey Supreme Court’s adjudication of this due process
claim was not based on an unreasonable determination of the facts in light of the evidence
presented and did not result in a decision that was contrary to, or involved an unreasonable
application of clearly established Supreme Court precedent. As such, the Court will deny relief
on Petitioner’s habeas claim.
c. The Court will Deny a 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

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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 follows.

/s/
Freda L. Wolfson
Freda L. Wolfson, U.S.D.J.
Date: April 19, 2017

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