WILLIAMS v. D'ILIO, et al

Filing 10

OPINION. Signed by Judge Anne E. Thompson on 4/11/2016. (km)

RECEIVED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

APR 11 2016
AT 8:30

WILLIAM T. WALSH

HONORABLE ANNE E. T~~~ON

KARL D. WILLIAMS,
Petitioner,

Civil Action
No. 15-1720 (AET)

v.

OPINION

STEPHEN D'ILIO,
Respondent.

APPEARANCES:
Karl D. Williams, Petitioner pro se
262764
SBI 436486-B
New Jersey State Prison
PO Box 862
Trenton, New Jersey 08625
Monica L. do Outerio, Esq.
Monmouth County Prosecutor's Office
132 Jerseyvill~ Avenue
Freehold, New Jersey 07728
Attorney for Respondent Stephen D'Ilio
THOMPSON, District Judqe:
I .

INTRODUCTION
Karl D. Williams, 1 a state prisoner confined at New Jersey

State Prison, has submitted a petition for a writ of habeas
corpus pursuant to 28

U.S~C.

§

2254. Respondent Stephen D'Ilio,

Administrator of New Jersey State Prison, opposes the petition.

1

Portions of the state court records list Petitioner's name as
Carl Williams. The Court adopts the spelling from the submitted
petition.

M

For the reasons stated herein, the petition shall be denied and
no certificate of appealability shall issue.
II.

BACKGROUND

The facts of this case were recounted below and this Court,
affording the state court's factual determinations the
appropriate deference, 28 U.S.C.

§

2254(e) (1), reproduces the

recitation of the facts as set forth by the Superior Court of
New Jersey, Appellate Division in its opinion denying
Petitioner's appeal from the denial of his post-conviction
relief ("PCR") petition:
On January 1, 2006, at approximately 10:30 p.m., Octavio
Pena was walking home from a convenience store in Belmar
after buying bubble gum. While talking on the phone, he
passed two black men. He paid no attention to them until
the
shorter
of
the
two,
later
identified
as
[Petitioner], grabbed him from behind and said, "Shut
up, give me your chain." Pena was wearing a thick gold
chain and [Petitioner] tried to grab him, but Pena pushed
him away and ran toward his house a short distance away
on 14th Avenue. [Petitioner] and the taller individual
pursued Pena. When Pena reached his front porch,
[Petitioner] began to fight him. Pena banged on his front
door and when his roommates turned the lights on, the
taller individual who was with [Petitioner] ran away.
[Petitioner] continued fighting with Pena until Pena's
three roommates came to his aid. Pena told his friends
that [Petitioner] was trying to take his chain~ Two of
the roommates held [Petitioner] while the third called
911.

Belmar police officer Darian Vitello responded to the
call. When he arrived at Pena's house, another officer
had already separated [ Petitioner] from Pena and his
roommates. Vitello called a translator so he could
interview Pena, who did not speak English. Vitello
observed
marks
around
Pena's
neck,
caused
when

2

[Petitioner] tried to grab his chain. Vitello arrested
[Petitioner] and later took photos of Pena's injuries.
A Monmouth County grand jury returned an indictment
charging [Petitioner] with one count of second-degree
robbery, N.J.S.A. 2C:15-1. During [Petitioner]'s jury
trial, the State called Pena, Vitello, and Patricia
Calton, who lived across the street from Pena. Calton
testified that on January 1, 2006, she and her fiancee
were watching television when they heard a loud
commotion, including yelling and profanities. She went
out to her back deck, which fronts onto 14th Avenue, and
observed a black man yell at a Hispanic man, "Give me
your fucking money, you spic." Calton observed the black
man grab the Hispanic around the neck. She called 911
and watched until the police arrived.
[Petitioner] called no witnesses. The jury deliberated
for a little more than one hour before returning a
verdict of guilty. On April 20, 2007, the trial court
sentenced [Petitioner] to an extended term of fifteen
years with an eighty-five percent period of parole
ineligibility.
State v. Williams, No. A-0779-12

(N.J. Super. Ct. App. Div. Mar.

28, 2014), Re 53 at 1-4. 2
Petitioner filed a direct appeal challenging a portion of
the jury instructions and the length of his sentence. State v.
Williams, No. A-1209-07

(N.J. Super. Ct. App. Div. Apr. 14,

2009), Re 24. Petitioner alleged the trial court erred. by
instructing the jury: "Before you retire to deliberate and reach
your verdict, it is my obligation to instruct you as to the
principles of law applicable in this case. You shall consider my
instructions in their entirety and pick out any particular

2

"Re" refers to Respondent's exhibits submitted with
Respondent's answer, Docket Entry 9.
3

instruction and overemphasize it." Id. at 3. The court reporter
submitted an affidavit certifying she had "inadvertently omitted
the word 'not' during [her] editing of the transcript of this
trial." Id. at 3-4. The instruction as given at trial stated:
"You shall consider my instructions in their entirety and not
pick out any particular instruction and overemphasize it." Id.
at 3 (internal quotation marks omitted)

(emphasis in original).

The Appellate Division found there was no legal error in the
charge and affirmed Petitioner's conviction and sentence. Id. at
4-5. The New Jersey Supreme Court denied certification on July
20, 2009. State v. Williams,

976 A.2d 386 (N.J. 2009).

Petitioner filed a timely PCR motion. PCR counsel filed a
motion requesting the production of Ms. Calton's phone records
in support of his argument that trial counsel was ineffective
for failing to investigate the discrepancy between Ms. Calton;s
and Detective Vitello's testimonies regarding who called 911
first. Motion for Telephone Records, Re 40. Following oral
argument, the PCR Court denied the motion on January 24, 2012.
Re 43. The PCR Court denied the petition without an evidentiary
hearing on June 27, 2012, PCR Order and Opinion, Re 49, and the
Appellate Division affirmed the dismissal, Re 53. The New Jersey
Supreme Court denied certification on January 23, 2015. State v.

Williams, 105 A.3d 1101 (N.J. 2015). This timely petition
followed.
4

Petitioner raises four grounds for this Court's
consideration:
I. I was arrested on the night of Jan. 1st 2006, and
charged with one count of robbery (second degree), the
State prosecuted me under New Jersey's robbery [statute]
(2C:15-1), that I used force while attempting to steal
property from the victim, because no property from the
victim was taken, the state's burden of proof was that
defendant attempted a theft, however the trial court
failed to define attempt to the jury, in violation of my
right to due process.3
II. The state's sole witness, Patricia Calton, was
contacted on the night of the incident, she told police
that she did not witness the incident. The State
contacted Ms. Calton one year after the incident and she
gave a statement claiming that she had in-fact witnessed
the incident. I filed a motion for Ms. Calton['s] phone
record on the night that she alleges to have called 911,
and was on the phone with the 911 operator while
observing the incident. The PCR court wrongfully denied
access to the telephone records. The State knowingly
suborned perjury from its sole witness, in violation of
my due process.
III. Ineffective assistance of appellate counsel, for
failing to raise the omitted jury instruction defining
the attempt element of theft/robbery, on di.rect appeal,
because there was no actual theft of the victim's
property. Petitioner was prosecuted under the attempted
theft element of N.J.'s robbery [statute] 2C:l5-1. In
violation of Petitioner's 6th and 14th Amendment rights.
IV. The state post-conviction relief court's denial of
defendant's petition for PCR is not supported by
sufficient credible evidence in the record. The court
based its denial on a brief submitted by PCR counsel
Michael G. Paul, when in fact PCR attorney Michael G.
Paul was removed from Petitioner's case, new counsel was
assigned and all briefs submitted by Mr. Paul were
withdrawn.

3 The grounds as presented in the petition were in all capital
letters. The Court has adjusted the text for ease of reference.
5

(Petition, Docket Entry 1 (emphasis in original)). The State
filed its answer and the state court record on July 27, 2015.
(Answer, Docket Entry 9). Petitioner did not file a traverse.
III. STANDARD OF REVIEW

Title 28 U.S.C. § 2254 permits a federal court to entertain
a petition for writ of habeas custody on behalf of a person in
state custody, pursuant to the judgment of a state court, "only
on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States." 28
U.S.C. § 2254(a).
With respect to any claim adjudicated on the merits by a
state court, the writ shall not issue unless the adjudication of
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.

6

28 U.S.C. § 2254(d).

A state court decision is "contrary to"

Supreme Court precedent "if the state court

appl~es

a rule that

contradicts the governing law set forth in [Supreme Court]
cases," or "if the state court confronts a set of facts that are
materially indistinguishable from a decision of th[e] Court and
nevertheless arrives at a result different from [the Court's]
precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
"[A] state-court decision is an unreasonable application of
clearly established [Supreme Court] precedent if it correctly
identifies the governing legal rule but applies that rule
unreasonably to the facts of a particular prisoner's case."
White v. Woodall, 134 S. Ct. 1697, 1706, reh'g denied, 134 S.

Ct. 2835 (2014).
"[A]n unreasonable application of [Supreme Court precedent]
must be objectively unreasonable, not merely wrong; even clear
error will not suffice." Id. at 1702.

(internal citations and

quotation marks omitted). "[A] state prisoner must show that the
state court's ruling on the claim being presented in federal
court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility.for fairminded disagreement." Ibid.
citations and quotation marks omitted).

7

(internal

"Where the state court has not addressed the merits of a
claim, and the merits of the claim are properly before [the
Court], then [§ 2254's] deferential standard of review does not
apply and [the Court] instead review[s] the claim de nova."

Breakiron v. Horn, 642 F.3d 126, 131 (3d Cir. 2011)

(citing

Porter v .. McColl um, 558 U.S. 30, 3 9 ( 200 9) ) . The Court must
nevertheless "presume that state-court factual findings are
correct unless the presumption is rebutted by clear and
convincing evidence." Ibid.

(citing 28 U.S.C. § 2254(e) (1);

Robinson v. Beard, 762 F.3d 316, 324 (3d Cir. 2014), cert.
'denied sub nom Robinson v. Wetzel, 136 S. Ct. 53 (2015).
IV. ANALYSIS
A. Ground One

In Ground One,

Petit~oner

asserts his due process rights

were violated when the trial court failed to sua sponte define
"attempt" for the jury as part of the robbery instruction.
Petitioner did not raise this claim before the state courts;
instead, as he himself admits,

4

he argued before the PCR Court

and to the Appellate Division that his trial counsel was
ineffective for failing to request this charge and that his
direct appeal attorney was ineffective for failing to raise the

/
4

See Petition at 6 !

(d) (2).
8

due process claim on direct appeal. He has therefore arguably
procedurally defaulted on his trial court-focused claim. 5

1. Procedural Default
"The doctrine of procedural default prohibits federal
courts from reviewing a state court decision involving a federal
question if the state court decision is based on a rule of state
law that is independent of the federal question and adequate to
support the judgment." Fahy v. Horn,
2 008 )
See

( citing Nara v. Frank,

516 F.3d 169, 187 (3d Cir.

4 8 8 F . 3 d 18 7 , 19 9 ( 3 d Cir . 2 0 0 7 ) ) .

also Collins v. Sct'y of Penn. Dept. of Corr., 742 F.3d 528

(3d Cir. 2014). "Procedural default occurs wheri 'a state court
declined to address a prisoner's federal claims because the
prisoner had failed to meet a state procedural requirement.'"

Fahy, 526 F.3d at 187 (quoting Coleman v. Thompson, 501 U.S.
722, 730 (1991)).
Here, it appears that Petitioner may have been precluded
under state law from challenging the trial court's failure to
sua sponte give the jury instruction defining "attempt." The
State argued before the PCR Court that Petitioner had
procedurally defaulted on his ineffective assistance claim "as a
flaw in a jury instruction is appropriately raised on appeal."

5

Petitioner does not ask this Court to consider whether his
trial counsel was ineffective for failing to request the
definition. He has therefore waived this claim.
9

Re 49 at 10. The PCR Court noted that "petitioner's claim is
that counsel was ineffective for failing to request the charge
and an ineffective assistance of counsel claim is generally
exempt from the bar of [N.J. Ct. R. 3:22-4] since such a claim
can encompass testimony and evidence not already in the record,
making it inappropriate for appeal." Ibid. The implication of
the PCR Court's statement is that while Petitioner was free to
raise his ineffective assistance claim for the first time on PCR
review, he would be procedurally barred from asserting the trial

court erred. However, both the PCR Court and the Appellate
Division found that the trial court's failure to define
"attempt" for the jury was not plain error under New Jersey law
in the course of their ineffective assistance of counsel
analysis. Re 53 at 11; Re 49 at 9.
Rather than dete,rmine whether Petitioner has procedurally
defaulted on this claim, especially since Respondent does not
argue before this Court that Petitioner has procedurally
defaulted, the Court will review and deny the claim on its
merits. Due to the reframing of the argument from an ineffective
assistance claim to a due process claim, it is not clear whether
there was a true decision on the merits by the state courts. The
Court will therefore give Petitioner the benefit of the more
lenient de nova standard of review as his claim would fail under
either a de nova or deferential standard. See Lewis v. Horn, 581
10

F.3d 92, 101 (3d Cir. 2009) ("[W]e need not resolve whether the
Pennsylvania Supreme Court's decision on direct appeal is
entitled to AEDPA deference because we conclude that, even if we
exercise de nova review,
reasons. 11 )

[Petitioner's] claim fails for several

•

2. Merits Review

Petitioner argues "[b]ecause no property from the victim
was taken, the State's burden of_proof was that Defendant
attempted a theft, however the trial court failed to define
attempt to the jury .

11
••

•

Petition at 5 (emphasis in

original) . Petitioner argued before the Appellate Division on
his PCR appeal that
[o]ne is gu£lty of robbery if, in the course
committing a theft, he inflicts bodily injury upon
uses force upon another. An act is considered to be
the course of a theft if it consists of an attempt
commit theft. N.J. STAT. ANN. § 2C:l5-1.

of
or
in
to

The trial judge's instruction to the jury as to the
elements of the crime of robbery included an instruction
that the "State must prove beyond a reasonable doubt
that the defendant was in the course of committing a
theft. In this connection you are advised that an act is
considered to be in the course of committing a theft if
it occurs in an attempt to commit the theft, during the
commission of the theft itself or in an immediate flight
after the attempt or commission.
However, the trial
judge did not include in the instruction an explanation
of what conduct is sufficient to constitute an attempt
to commit theft.
/1

Petitioner's PCR appellate brief, Re 50 at 18.

11

Federal "habeas precedent places an especially heavy burden
on a defendant who .

.

. seeks to show constitutional error from

a jury instruction that quotes a state statute." Waddington v.

Sarausad, 555 U.S. 179, 190 (2009)

(internal citation and

quotation marks omitted) . To show that the jury instruction
violated due process, Petitioner must show "both that the
instruction was ambiguous and that there was a reasonable
likelihood that the jury applied the instruction in a way that
relieved the State of its burden of proving every element of the
crime beyond a reasonable doubt." Id. at 190-91 (internal
citation and quotation marks omitted) . The instruction "must be
considered in the context of the instructions as a whole and the
trial record." Id. at 191 (internal citation and quotation marks
omitted). Moreover, "it is not enough that there is some slight

possibility that the jury misapplied the instruction, the
pertinent question is

~hether

the ailing instruction by itself

so infected the entire trial that the resulting conviction
violates due process." Ibid.
marks omitted)

(internal citation and quotation

(emphasis in original). "In other words, the

inquiry requires careful consideration of each trial's unique
facts, the narratives presented by the parties, the arguments
counsel delivered to the jurors

b~fore

they retired to

deliberate, and the charge as a whole." Williams v. Bea,rd, 637
F.3d 195, 223 (3d Cir. 2011)

(citing Waddington). "[T]he fact
12

that the instruction was allegedly incorrect under state law is
not a basis for habeas relief." Estelle v. McGuire, 502 U.S. 62,
71-72 (1991).
In the course of instructing the jury, the trial court
read the robbery statute, N.J. STAT. ANN. 2C:15-1, and summarized
the elements of the offense:
[T]he statute upon which this indictment is based
reads as follows: "A person is guilty of robbery if, in
the course of committing a theft, he knowingly inflicts
bodily injury or uses force upon another, or threatens
another with or purposely puts him in fear of immediate
bodily injury."
In order for you to find the defendant guilty of
robbery, the State is required to prove each of the
following elements beyond a reasonable doubt.
One: that the
committing a theft.

defendant

was

in

the

course

of

Two: that while in the course of committing a theft,
the defendant knowingly inflicted bodily injury or used
force upon another or threatened another with or
purposely put another in fear of immediate bodily
injury. "Another" is the victim.
Trial Transcript,

Re

2 at

106: 8-23.

The trial

court

then

informed the jurors that "[t] he State must prove beyond a
reasonable doubt

that

the defendant was

in the

course of

committing a theft[,]" which the court defined as "occur[ing]
in an attempt to commit the theft, during the commission of
the theft itself, or in an immediate flight after the attempt
or commission." Id. at 106:22 to 107:6. "Theft" was defined
as "the unlawful taking or exercise of unlawful control over
13

property of another with the purpose to deprive him thereof."
Id. at 107:7-9.

The trial court defined "with purpose" and "purposely"
before moving onto the second element of robbery.
In addition to proving beyond a reasonable doubt that
the defendant was in the course of committing a theft,
the State must prove beyond a reasonable doubt that while
in the course of committing a theft, the defendant
knowingly inflicted bodily injury or used force upon
another.
Id. at 107:20-25. The court then defined "knowingly," "bodily

injury," and "force" for the jury. Id. at 108:1-25. The trial
court then repeated its instruction that it was the State's
obligation to prove both elements:

So, if you find the State has failed to prove these
elements beyond a reasonable doubt, then you must find
the defendant not guilty. If you find that the State has
proven these elements beyond a reasonable doubt, then
you must find the defendant guilty.
So let me tell you about them again. In order for
you to find the defendant guilty of the charge of
robbery, the State is required to prove each of the
following elements beyond a reasonable doubt.
One: that the
committing a theft.

defendant

was

in

the

course

of

Two: that while in the course of commit ting a theft,
the defendant knowingly inflicted bodily injury or used
force upon another or threatened another with or
purposely put another in fear of immediate . bodily
injury.
If you find that the State has failed to prove any
of those elements beyond a reasonable doubt, then you
must find the defendant not guilty. If you find that the
14

State has, did prove these elements beyond a reasonable
doubt, then you must find the defendant guilty.
Id. at 109:1-23.

Having reviewed the record, the Court finds that
Petitioner's claim of error in failing to define attempted theft
to the jury does not fall within the narrow set of circumstances
that warrants habeas relief. As explained above, to show that
the jury instruction violated his due process rights, Petitioner
must demonstrate that the instruction was ambiguous and that the
State was absolved of its duty to prove each element of the
charged crime. Waddington v. Sarausqd, 555 U.S. 179, 190-91
(2009) . Here, the Court need not determine whether the
instruction was ambiguous as Petitioner has not established that
the absence of the attempt definition resulted in a reasonable
likelihood that the jury applied the instruction in a way that
relieved the State of its burden of proving every element of the
crime beyond a reasonable doubt. See Henderson v. Kibbe, 431
U.S. 145, 155 (1977)

("An omission, or an incomplete

instruction, is less likely to be prejudicial than a
misstatement of the law."); Albrecht v. Horn, 485 F.3d 103, 129
(3d Cir. 2007)

(citing Henderson),

cert. denied sub nom Albrecht

v. Beard, 552 U.S. 1108 (2008). In fact,

Petitioner does not

argue the State was ever relieved of its burden.

15

Even if Petitioner had argued that the State was not
required to prove each element of attempted robbery, the record
would not support such an assertion. The trial court repeatedly
instructed the jury that it was the State's responsibility to
prove each and every element of the robbery charge beyond a
reasonable doubt, and that if it did not meet its burden, the
jury must find Petitioner not guilty. See Re 2 at 106:14-16,
109:1-10, 109:18-23. After giving this instruction once, the
trial court again reviewed the elements of the robbery charge
and charged the jury that "[i]f you find that the State has
failed to prove any of those elements beyond a reasonable doubt,
then you must find the defendant not guilty." Id. at 109:1-20.
The jury was clearly and unambiguously instructed that it was
the State's obligation to prove its case on each element, and
there is no evidence suggesting the jury did not follow
instructions.
Petitioner's defense at trial was that the victim
instigated a fight by yelling racial slurs at him. Petitioner
asserted that although he fought with the victim, he never tried
to take anything from the victim. Re 2 at 82:1 to 83:16; Re 53
at 8. In affirming the PCR Court's denial of Petitioner's
claims, the Appellate Division found that
the only two witnesses to the incident that testified at
trial, Pena and Cal ton, provided compelling evidence
that defendant intended and nearly succeeded in robbing
16

Pena; nothing in their testimony provides a shred of
support to defendant's claim that this was a simple
assault.
[A] defendant can be convicted of robbery, even if the
theft is unsuccessful, if he or she (1) purposely takes
a substantial step (2) to exercise unlawful control over
the property of another (3) while threatening another
with, or purposely placing another in fear of, immediate
bodily injury. Al though defendant did not succeed in
removing Pena's cha~n, his conduct went well beyond mere
preparation and was unequivocally a substantial step in
the commission of the robbery.
We are satisfied that the failure to instruct the jury
as to attempt . . . was not error let a·1one plain error.
The testimony of Pena and Calton coupled with the
corroborating photographs of the injury to Pena's neck
suffered while defendant was trying to snatch his chain
established compelling evidence of defendant's guilt.
Re 53 at 11-12 (internal citations and quotation marks omitted).
There is no clear and convincing evidence in the record that
suffices to rebut the presumption that the appellate court's
finding that Petitioner completed a substantial step towards a
theft is correct; therefore, the Court must accept it as true.
Robinson v. Beard, 762 F.3d 316, 324 (3d Cir. 2014), cert.
denied sub nom Robinson v. Wetzel, 136 S. Ct. 53 (2015).

As there was sufficient evidence before the jury to meet
the State's burden on each element of the robbery charge, and
they were properly instructed as to the State's burden of proof,
Petitioner has not shown that the instructions as given so_
tainted his trial that he was deprived of due process. See
Henderson v. Kibbe, 431 U.S. 145, 154

17

(1977)

("The burden of

demonstrating that an erroneous instruction was so prejudicial
that it will support a collateral attack on the constitutional
validity of a state court's judgment is even greater than the
showing required to establish plain error on direct appeal.").
He is therefore not entitled to habeas relief on this claim.

B. Ground Two
In Ground Two, Petitioner challenges the PCR Court's
failure to grant his discovery motion for Ms. Calton's phone
records and the State's use of her allegedly perjured testimony.
Petition at 7. Petitioner is not entitled to relief on either of
these bases.
Petitioner's claim that the PCR court "wrongfully denied"
him access to Ms. Calton's phone records is not cognizable in
federal habeas. Section 2254 limits the federal courts' ability
to grant relief from a state court judgment "only on the ground
that he is in custody in violation of the Constitution or laws
or treaties of the United States.'' 28 U.S.C. § 2254(a)

(emphasis

added). "Thus, the federal role in reviewing an application for
habeas corpus is limited to evaluating what occurred in the
state . . . proceedings that actually led to the petitioner's
conviction; what occurred in the petitioner's collateral
proceeding does not enter into the habeas calculation." Hassine

v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998), cert. denied,
526 U.S. 1065 (1999). In other words "alleged errors in
18

collateral proceedings .

.

. are not a proper bas£s for habeas

relief from the original conviction. It is the original trial
that is the 'main event' for habeas purposes." Lambert v.

Blackwell, 387 F.3d 210, 247 (3d Cir. 2004), cert. denied, 544
U.S. 1063 (2005); see also Thomas v. Miner, 317 F. App'x 113,
115 ( 3d Cir. 2008)

(citing Hassine) . Petitioner is not entitled

to relief on this theory.
Petitioner's claim regarding the state's alleged knowing
use of Ms. Calton's perjured testimony does relate to his trial
proceeding and may be analyzed on federal habeas review.
However, Petitioner failed to exhaust this claim before the
state courts. Petitioner raised this claim in a pro se
submission to the PCR court dated May 20, 2010. Re 30 at 7. On
May 20, 2011, however, he wrote to the PCR court stating:
with the exception of the legal arguments contained in
roint III of his May 20, 2010 PCR Supplemental Brief
[ineffective assistance of trial counsel], petitioner
relin[q]uishes and deletes all remaining legal arguments
contained in his previously filed submissions . . . . An
objective review of those deleted arguments firmly shows
that they are without substantive merit . . . . Indeed,
it would be a waste of judicial resources to insist upon
and proceed with the May 20, 2010 submission.
Re 38 at 2 (emphasis in original) . Petitioner withdrew and
abandoned this claim before the PCR court,

6

6

and cannot now seek

Petitioner did argue to the PCR court that counsel was
ineffective assistance for failing to investigate Ms. Calton.
19

federal habeas relief on this ground he has conceded has no
merit.
Even if this Court were to consider this argument under the
more lenient de novo standard of review, Petitioner would not be
entitled to relief. The PCR Court found 7 trial counsel was not
ineffective for failing to investigate the alleged perjury as
there was no evidence Ms. Calton had in fact perjured herself at
trial: 8
No certifications or affidavits have been submitted
which suggest Calton had any reason to lie with regard
to what she saw that night, or that she now wishes to
recant her testimony. The allegation further assumes
prosecutorial and police misconduct which is also not
supported by the record. [Petitioner] claims that a
police report related to Calton's statement was backdated to the date of the incident. However, at trial,
counsel elicited testimony that Calton's statement of
her eyewitness account was taken on January 27, 2007,
more than a year after the incident on January 1, 2006.
The jury, therefore, heard about and considered the
length of time between the incident and the statement.

The Appellate Division determined Petitioner's ineffective
assistance of counsel claim based on the failure to investigate
the alleged perjury lacked sufficient merit to warrant
discussion, Re 53 at 12, therefore this Court must rely on the
factual findings of the PCR Court. Simmons v. Beard, 590 F.3d
223, 231-32 (3d Cir. 2009).
8 In order to in order to demonstrate a violation of the
Fourteenth Amendment's prohibition on the knowing use of
perjured testimony, "[Petitioner] mu~t show that (1) [Ms.
Calton] committed perjury; (2) the government knew or should
have known of [her] perjury; (3) the testimony went uncorrected;
and (4) there is any reasonable likelihood that the false
testimony could have affected the verdict." Lambert v.
Blackwell, 387 F.3d 210, 242-23 (3d Cir 2004).
7

20

Re 49 at 15. The court also noted that trial counsel "pursued
inconsistencies in her statement to police and her testimony at
trial, including the number of people who were present and
helped subdue petitioner. Counsei also questioned her regarding
her reasons for waiting almost a year to give a statement to
police." Id. at 14-15. Furthermore, the inconsistences in her
statements as to whether she only heard or actually witnessed
the altercation were explored at trial during cross-examination,
Re 2 at 65:8 to 70:10, and Ms. Calton admitted she had not told
the 911 operator or responding police officers that she
witnessed the incident, id. at 69:9-25. "Discrepancy [in a
witness's testimony] is not enough to prove perjury." Lambert v.

Blackwell, 387 F.3d 210, 249 (3d Cir. 2004). Petitioner has not
established Ms. Calton actually perjured herself at trial;
therefore, he is not entitled to habeas relief on that ground.
C. Ground Three
Ground Three asserts Petitioner's attorney on his direct
appeal was ineffective for failing to raise the issue of the
omitted jury instruction defining attempt. This claim was
decided on its merits by the Appellate Division, there£ore this
Court may not grant relief unless the decision was contrary to,
or involved an unreasonable application of, clearly established
Supreme Court precedent. 28 U.S.C. § 2254 (d) (1).

21

"Due process entitles a criminal defendant to the effective
assistance of counsel on his first appeal as of right.

States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002)

11

United

(citing Evitts

v. Lucey, 469 U.S. 387, 396 (1985)). In determining whether
appellate counsel was ineffective, the Court applies the
standard set forth in Strickland v. Washington, 466 U.S. 668
(1984). See Smith v. Robbins, 528 U.S. 259, 285-86 (2000); Smith

v. Murray, 477 U.S. 527, 535-536 (1986). Petitioner must first
"show that counsel's representation fell below an objective
standard of reasonableness." Strickland,
must then show "that there is a

466 U.S. at 688. He

'reasonable probability' -

'a

probability sufficient to undermine confidence in the outcome,'
but less than a preponderance of the evidence -

that his appeal

would have prevailed had counsel's performance satisfied
constitutional requirements." Cross, 308 F.3d at 315 (quoting

Strickland, 466 U.S. at 694-95).
The Court need not address whether appellate counsel's
performance was deficient as Petitioner has not shown he was
prejudiced by the failure to raise the jury instruction argument
on direct appeal.

Ibid.

(noting courts may begin with the

prejudice prong "[b]ecause failure to satisfy either prong
defeats an ineffective assistance claim") . The Appellate
Division correctly identified Strickland as the governing
standard, Re 53 at 11, and found that there was "ample evidence
22

in the record to support each element of the robbery charge."
The court cited the PCR court's decision on the attempted theft
instruction:
The testimony and evidence demonstrated that defendant
started a physical altercation with the victim for the
purpose of taking his gold chain and money. While
grabbing for the chain, defendant verbally demanded the
victim's
money.
The
only
reason
defendant
was
unsuccessful was because the victim was able to fight
off the defendant and subdue him.
Id. at 8. After distinguishing Petitioner's case from its

precedent in State v. Gonzalez, 723 A.2d 1278 (N.J. Sup. Ct.
App. Div.), certif. denied, 753 A.2d 573 (N.J. 1999), the
Appellate Division ultimately concluded that "the failure to
instruct the jury as to attempt . . . was not error let alone
plain error." Id. at 11. The Court is bound by the New Jersey
court's interpretation and application of New Jersey state law
and, therefore, accepts the Appellate Division's conclusion that
the trial court was not required to define "attempt" for the
jury. This indicates that had appellate counsel argued on appeal
that the trial court should have given the attempt instruction,
the result would have been the same.
Giving deference to that finding, and this Court having
previously found that Petitioner's due process rights were not
violated by the omission of this instruction, Petitioner has not
established he was prejudiced by appellate

couns~l's

failure to

raise this argument on direct appeal. Because "counsel cannot be
23

deemed ineffective for failing to raise a meritless claim," the
New Jersey court was not unreasonable in its application of
Strickland when it concluded that appellate counsel was not
deficient in failing to challenge the omission of the attempt
definition. Ross v. Dist. Attorney of the Cnty. of Allegheny,
672 F.3d 198, 211 n.9 (3d Cir. 2012)
228 F.3d 178, 202

(quoting Werts v. Vaughn,

(3d Cir. 2000)). It is not at all likely that

the outcome of the appeal would have changed absent appellate
counsel's alleged error, therefore Petitioner

ha~

not

established that the Appellate Division unreasonably applied
Strickland.
D. Ground Four
Petitioner's final basis for habeas relief rests on a claim
of error by the PCR court. Petitioner alleges the PCR court
improperly relied on a brief submitted by his first PCR attorney
that was withdrawn after that attorney ceased representing
Petitioner. As previously noted, claims of error by the PCR
court are not proper bases for habeas relief. Lambert v.
Blackwell, 387 F.3d 210, 247

(3d Cir. 2004), cert. denied, 544

U.S. 1063 (2005); Hassine v. Zimmerman, 160 F.3d 941, 954 (3d
Cir. 1998), cert. denied,

526

U.S~

1065 (1999). Petitioner's

challenge to the PCR court's consideration of a brief submitted
by an attorney who subsequently withdrew from representation is
"inappropriately advanced as a substantive claim in a habeas
24

petition." Thomas v. Miner, 317 F. App'x 113, 115 (3d Cir.
2008). Habeas relief is denied.

E. Certific•te of

Appe~lal>ility

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, Petitioner has failed to make a substantial showing that
he was denied a constitutional right. As jurists of reason could
not disagree with this Court's resolution of his claims, the
Court shall deny Petitioner a certificate of appealability.
V. CONCLUSION

For the reasons stated above, the habeas petition is
denied. A certificate of appealability shall not issue. An
accompanying Order will be entered.

~TH~l?o~
U.S. District Judge

25