KENNON v. JOHNSON et al

Filing 21

OPINION filed. Signed by Judge Brian R. Martinotti on 2/1/2019. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
MARQUIS A. KENNON,
:
:
Civil Action No. 16-0756 (BRM)
Petitioner,
:
:
v.
:
OPINION
:
STEVEN JOHNSON and ATTORNEY
:
GENERAL OF THE STATE OF
:
NEW JERSEY,
:
:
Respondents.
:
____________________________________:
MARTINOTTI, DISTRICT JUDGE
I.

INTRODUCTION
Before this Court is the Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28

U.S.C. § 2254 (ECF No. 1) by pro se petitioner Marquis A. Kennon (“Petitioner”) challenging his
criminal convictions and sentences imposed by the State of New Jersey for felony murder and
possession of a handgun without a permit. Petitioner is presently confined at New Jersey State
Prison in Trenton, New Jersey. (Id. at 1.) This Court has considered the Petition (ECF No. 1), the
Respondents’ Answer (ECF No. 12-1), the Petitioner’s Reply (ECF No. 14), and the record of
proceedings in this matter. For the reasons stated below, this Court DENIES the Petition in its
entirety and DENIES a certificate of appealability.

II.

BACKGROUND
This Court, affording state court factual determinations the appropriate deference, see 28

U.S.C. § 2254(e)(1), 1 will reproduce the recitation of facts as set forth by the Superior Court of
New Jersey – Appellate Division in State of New Jersey v. Marquis Kennon, A-0330-13T2 (May
28, 2015) (ECF No. 1-4 (“PCR Appellate Court”)). That court affirmed the February 28, 2013
decision by the Law Division of the Superior Court of New Jersey (“PCR Trial Court”) denying
Petitioner’s application for post-conviction relief (“PCR”). (ECF No. 1-3.) This Court recounts
from the PCR Appellate Court opinion only the facts pertinent to the instant Opinion, which that
court discerned from the record on appeal.
Petitioner’s convictions arose out of an apparent robbery on March 14, 1995 of a jewelry
store owned by husband and wife Jeffrey and Brenda Wolf. The State’s proofs indicated that the
plan to rob the store was hatched by Avram David Gottlieb (“Gottlieb”), a notorious career
criminal who resided in Kansas City, Missouri, and Harry Insabella, a distinguished New Jersey
dentist. Gottlieb allegedly recruited Petitioner, Robert Williams (“Williams”), and Michael Guhse
(“Guhse”) to assist in the robbery and supplied them with weapons. The State contended that the
robbery went awry when Jeffrey Wolf reached for a pistol and in the ensuing struggle with
Petitioner fired a number of shots, hitting both Petitioner and Brenda Wolf. Although Petitioner
survived and was captured shortly after the botched robbery, Brenda Wolf died instantly. At trial,
the defense asserted that the robbery was a sham arranged by Jeffrey Wolf to collect insurance.

1

Pursuant to 28 U.S.C. § 2254(e)(1), “[i]n a proceeding instituted by an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of
a factual issue made by a State court shall be presumed to be correct. The applicant shall have the
burden of rebutting the presumption of correctness by clear and convincing evidence.”
2

Petitioner did not testify at trial. The defense also suggested that Mrs. Wolf’s death was not
accidental, but was planned by Mr. Wolf. (ECF No. 1-4 at 3.)
Following the jury trial, Petitioner was convicted of first-degree felony murder, seconddegree conspiracy to commit robbery, first-degree robbery, second-degree possession of a firearm
for an unlawful purpose, and third-degree possession of a handgun without a permit. After
appropriate mergers, the trial court sentenced Petitioner to life imprisonment with thirty years of
parole ineligibility for felony murder, and to a concurrent five-year term with a two and one-halfyears of parole ineligibility for possession of a handgun without a permit. (ECF No. 1-4 at 2.)
Petitioner appealed his conviction and sentence. On June 1, 2000, the Appellate Division
rejected his arguments and affirmed his convictions. (ECF No. 1-2 at 1-25.)
On September 20, 2000, the Supreme Court of New Jersey denied Petitioner’s petition for
certification. (ECF No. 1-2 at 27.)
Petitioner filed a PCR petition. On February 28, 2013, the Honorable John H. Pursel, J.S.C.
denied Petitioner’s PCR petition and his motion for an evidentiary hearing. (ECF No. 1-3 at 1-24.)
Petitioner appealed denial of PCR. On May 28, 2015, the Appellate Division affirmed
denial of PCR. (ECF No. 1-4 at 1-19.)
On October 9, 2015, the Supreme Court of New Jersey denied Petitioner’s June 1, 2015
petition for certification. (ECF No. 12-40; ECF No. 12-41; ECF No. 1-4 at 20.)
Petitioner raises eight grounds for relief in his habeas Petition, seeking for this Court to:
issue a writ of habeas corpus; vacate his convictions for robbery, felony-murder, conspiracy to
commit robbery, and possession of a weapon for an unlawful purpose; and remand for a new trial.
(ECF No. 1 at 51.) In the alternative, Petitioner seeks an evidentiary hearing regarding exculpatory
evidence, counsel’s assistance at trial, and expert reports concerning “any evidence that may be

3

considered newly discovered.” (Id.) 2 Grounds One, Two, Three, and Four of the Petition allege
claims for ineffective assistance of trial counsel. Ground Five alleges cumulative effect of errors
by trial counsel. Ground Six asserts that appellate counsel rendered ineffective assistance. Ground
Seven contends that the State’s theories at Petitioner’s and Gottlieb’s trials were inconsistent, thus
violating the judicial estoppel doctrine. Ground Eight alleges the PCR trial court’s refusal to hold
an evidentiary hearing violated due process. (ECF No. 1.)
III.

LEGAL STANDARD
On habeas corpus review, courts may 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). Petitioners have the burden of establishing each claim in the petition. 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 cases must
give considerable deference to determinations of the state trial and appellate courts. See Renico v.
Lett, 559 U.S. 766, 772 (2010).
Section 2254(d) sets the standard for granting or denying a writ of habeas corpus:
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).

2

Given that this Court will deny the Petition in this case, Petitioner’s request for an evidentiary
hearing (ECF No. 1 at 51) is denied.
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Where a state court has adjudicated a petitioner’s federal claim on the merits, 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, 567 U.S. 37, 40 (2012) (quoting 28 U.S.C. § 2254(d)). Petitioners carry the burden
of proof, and § 2254(d) review is limited to the record that was before the state court that
adjudicated the claim on the merits. Harrington v. Richter, 562 U.S. 86, 99 (2011). “For purposes
of § 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) (citing Thomas v. Horn, 570 F.3d 105, 115 (3d Cir. 2009)).
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

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but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. A federal
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, “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).
A. Exhaustion and Procedural Default
i.

Exhaustion

Under AEDPA, this Court may not grant a writ of habeas corpus under 28 U.S.C. § 2254
unless the petitioner has exhausted the remedies available in the courts of the State or exhaustion
is excused under 28 U.S.C. § 2254(b)(1)(B). See Henderson v. Frank, 155 F.3d 159, 164 (3d Cir.
1998); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997); Toulson v. Beyer, 987 F.2d 984
(3d Cir. 1993). To satisfy the exhaustion requirement, “state prisoners must give the state courts
one full opportunity to resolve any constitutional issues by invoking one complete round of the
State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
“The burden is on the habeas petitioner to prove exhaustion.” DeFoy v. McCullough, 393 F.3d
439, 442 (3d Cir. 2005). The exhaustion doctrine mandates that the claim “must have been ‘fairly
presented’ to the state courts.” Bronshtein v. Horn, 404 F.3d 700, 725 (3d Cir. 2005) (quoting

6

Picard v. Connor, 404 U.S. 270, 275 (1971)). “Fair presentation means that a petitioner must
present a federal claim’s factual and legal substance to the state courts in a manner that puts them
on notice that a federal claim is being asserted.” Rainey v. Varner, 603 F.3d 189, 198 (3d Cir.
2010) (citations and internal quotation marks omitted). In sum, the exhaustion doctrine requires
the petitioner to afford the state courts “the opportunity to resolve the federal constitutional issues
before he goes to the federal court for habeas relief.” Id. (quoting Zicarelli v. Gray, 543 F.2d 466,
472 (3d Cir. 1976)); see also Gould v. Ricci, No. 10-1399-NLH, 2011 WL 6756920, at *2 (D.N.J.
Dec. 19, 2011) (explaining same). The exhaustion doctrine therefore requires a petitioner
challenging a New Jersey conviction under § 2254 to have fairly presented each federal ground
that is raised in the petition to all three levels of the New Jersey courts -- that is, the Law Division,
the Appellate Division, and the New Jersey Supreme Court. See O’Sullivan, 526 U.S. 838; Rose
v. Lundy, 455 U.S. 509 (1982).
ii. Procedural Default
Even when a petitioner properly exhausts a claim, a federal court may not grant habeas
relief if the state court’s decision rests on a violation of a state procedural rule. See Johnson v.
Pinchak, 392 F.3d 551, 556 (3d Cir. 2004). Federal habeas courts generally refuse to hear claims
“‘defaulted . . . in state court pursuant to an independent and adequate state procedural rule.’”
Johnson v. Lee, 136 S. Ct. 1802, 1803 (2016) (quoting Coleman v. Thompson, 501 U.S. 722, 750
(1991)). “State rules count as ‘adequate’ if they are ‘firmly established and regularly followed.’”
Id. (quoting Walker v. Martin, 562, U.S. 307, 316 (2011)). In New Jersey, the Appellate Division
frequently declines to consider claims that were not raised in the trial court first. See State v.
Robinson, 200 N.J. 1, 20 (2009) (“It is a well-settled principle that our appellate courts will decline
to consider questions or issues not properly presented to the trial court when an opportunity for

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such a presentation is available . . . .”) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234
(1973); State v. Coleman, Indictment No. 13-04-0210, 2016 WL 6937921, at *5 (N.J. Super. Ct.
App. Div. Nov. 28, 2016); State v. Dunlap, Indictment No. 10-07-0983, 2016 WL 207616, at *1
n.3 (N.J. Super. Ct. App. Div. Jan. 19, 2016). If a federal court determines that a claim has been
defaulted, it may excuse the default only upon a showing of “cause and prejudice” or a
“fundamental miscarriage of justice.” Leyva v. Williams, 504 F.3d 357, 366 (3d Cir. 2007) (citing
Lines v. Larkins, 208 F.3d 153, 166 (3d Cir. 2000)).
iii. Denial on the merits
To the extent that petitioners’ constitutional claims are unexhausted or procedurally
defaulted, a court can 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); Bronshtein, 404 F.3d at 728.
IV.

DECISION
A. Grounds One, Two, Three, and Four: Claims Of Ineffective Assistance Of Trial
Counsel
Petitioner asserts several claims of ineffective assistance of counsel (“IAC”) in Grounds

One, Two, Three, and Four of the Petition. The standard governing claims of IAC is well
established, as set forth by the two-prong test of Strickland v. Washington, 466 U.S. 668 (1984).
Under Strickland, a petitioner alleging an IAC claim:
(1)

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). 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 IAC must show that counsel’s representation “fell
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below an objective standard of reasonableness” under the circumstances. Id. The reasonableness
of 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; and
(2)

Must also affirmatively demonstrate 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, 692-93; Shedrick, 493 F.3d at 299. “It is not enough for the
defendant to show that the errors had some conceivable effect on the outcome of the proceeding.”
Strickland, 466 U.S. at 693. The petitioner must 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.”
Strickland, 466 U.S. at 694; see also Shedrick, 493 F.3d at 299.
“Because failure to satisfy either [Strickland] 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).
When a federal habeas petition under § 2254 is based upon an IAC 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 § 2254(d)(1) purposes, “an unreasonable application of federal law is different from an
incorrect application of federal law.” Grant, 709 F.3d at 232. “A state court must be granted a

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deference and latitude that are not in operation when the case involves [direct] review under the
Strickland standard itself.” Id. Federal habeas review of IAC 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.
This Court finds from review of the record that (1) denials of the IAC claims in Grounds
One, Two, and Three by the state courts were not contrary to or an unreasonable application of
United States Supreme Court precedent; and (2) while the IAC claim in Ground Four appears
procedurally barred, this Court may, and does, find that claim to be without merit, as this Court
now explains:
i. Ground One
In Ground One of the Petition, Petitioner argues that his “Sixth Amendment right to the
effective assistance of counsel, and Fourteenth Amendment right to Due Process were violated”
by his trial counsel’s: (a) failure to perform sufficient pre-trial investigation; (b) failure to
effectively move to suppress his Miranda statement; and (c) failure to present certain evidence
supporting Petitioner’s argument he had not waived his Miranda rights. (ECF No. 1 at 5-8.)
Petitioner raised these issues in his March 2010 PCR application and his March 2010, September
2010, and January 2012 PCR supplemental submissions. (ECF No. 1-4 at 7-10; ECF No. 1-5 at
15-26; ECF No. 1-6 at 1-12; ECF No. 1-7 at 3-9; ECF No. 1-8.) The PCR Trial Court denied these
claims on February 28, 2013. (ECF No. 1-3 at 8-14.) The PCR Appellate Court “agree[d] that
defendant failed to establish a prima facie case of ineffective assistance of counsel” and affirmed
on May 28, 2015. (ECF No. 1-4 at 1-19.) On October 9, 2015, the Supreme Court of New Jersey
denied Petitioner’s petition for certification. (ECF No. 1-4 at 20.)

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This Court finds that the PCR Appellate Court reasonably applied Strickland’s two-prong
standard (ECF No. 1-4 at 14-15) for each of Ground One’s IAC claims:
(1) Investigation-IAC Claim: Petitioner alleges that his counsel failed to perform sufficient
pre-trial investigation (referred to as the “Investigation-IAC Claim”). The PCR Appellate Court
rejected Petitioner’s Investigation-IAC Claim because he had not demonstrated that his counsel’s
failure to examine Wolf’s handgun, to establish the number of bullets fired by Wolf, or to establish
the shooting distance between Petitioner and Wolf had been deficient or had prejudiced Petitioner.
That court stated as follows:
Because there was no dispute that the bullet that killed Brenda Wolf
came from Jeffrey Wolf’s .357 caliber handgun, the fact that a police
officer copied down an incorrect serial number in his report would
have made no difference in the case. This officer was not a witness
to the shooting and merely retrieved the weapon after the incident
occurred. Thus, counsel’s failure to cross-examine the officer on this
irrelevant detail could not have resulted in altering defendant’s
convictions.
Similarly, defense counsel’s alleged failure to account for all of the
bullets and bullet fragments fired by Jeffrey Wolf did not constitute
ineffective assistance of counsel. The State’s ballistics experts could
not establish, by the weight of the bullets and fragments collected at
the scene, how many bullets were actually discharged from Jeffrey’s
gun. This enabled defendant’s attorney to argue that more than six
bullets were fired, and he produced testimony through a detective
that there may have been two bullets still left in defendant’s body.
Thus, it was not necessary to introduce defendant’s x-rays to show
that additional fragments were still in his body to support his
argument that Wolf shot his gun more than six times.
Defendant provided an expert’s report with his petition for PCR that
opined that defendant was shot while he was at least two and onehalf feet away from Jeffrey Wolf. Defendant asserted that his
attorney was ineffective because he did not obtain a similar report
at trial that could have been used to contest the State’s claim that
Wolf shot him during a struggle over the gun, which is what
defendant had previously told the police. Notably, however, the
expert did not test Wolf’s handgun and did not indicate whether his
conclusions were reached within a reasonable degree of scientific
certainty. Thus, had defense counsel obtained a similar report at
trial, it likely would have been deemed inadmissible. Moreover,
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defendant fails to explain how this “shooting distance” testimony, if
available at trial, would have affected the result. Again, there was
no dispute that Wolf shot defendant during the robbery.
(ECF No. 1-4 at 15-17.) The PCR Appellate Court determined that trial counsel’s assistance had
not been ineffective under Strickland, and his performance also had not prejudiced Petitioner. (Id.)
The volume and nature of the evidence supporting a guilty verdict in this case were strong.
As the PCR Trial Court observed: “The jury convicted the defendant within hours of deliberation
because of the strength of the State’s case.” (ECF No. 1-3 at 14.) In such context, counsel’s failure
to investigate the inconsequential issues of weapon serial number typos, Petitioner x-rays, and
shooting distances did not “f[a]ll below an objective standard of reasonableness” under the
circumstances. Jacobs, 395 F.3d at 102. Counsel’s decision not to pursue these issues for trial was
a strategic decision, which is generally afforded great deference on review, United States v. Dretke,
540 U.S. 668, 700-01 (2005); Strickland, 466 U.S. at 690-91; Jones v. Barnes, 463 U.S. 745, 75054 (1983), and which must be “[e]valuat[ed] from counsel’s perspective at the time[,]” Strickland,
466 U.S. at 689 (emphasis added) -- as the PCR Trial Court and the PCR Appellate Court did in
this case. Merely because the strategy of not introducing certain evidence might have been
unsuccessful does not mean that counsel was ineffective. See Lockhart v. Fretwell, 506 U.S. 364,
369 (1993); Kim v. United States, No. 05-3407, 2006 WL 981173, at *3 (D.N.J. Apr. 4, 2006).
This Court agrees with the state courts that trial counsel did not render ineffective assistance under
Strickland. Furthermore, counsel’s performance did not amount to Strickland prejudice upon
Petitioner because Petitioner has not demonstrated that, in the face of strong evidence of his guilt,
counsel’s election not to investigate serial number, x-ray, and bullet distance issues would have
resulted in a different outcome in the proceedings to a reasonable probability. See Strickland, 466
U.S. at 687, 692-93; Shedrick, 493 F.3d at 299.

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(2) Suppression-IAC Claim: Petitioner next claims that his counsel failed to effectively
move to suppress his Miranda statement with evidence concerning his medical condition at the
time of his Miranda waiver (referred to as the “Suppression-IAC Claim”). (ECF No. 1 at 5-7.) The
PCR Appellate Court rejected the Suppression-IAC Claim because Petitioner had not
demonstrated that his trial counsel’s failure to do so was ineffective or had prejudiced Petitioner.
That court stated as follows:
Contrary to defendant’s argument, his attorney was not ineffective
because he did not present medical testimony concerning his
condition at the time he waived his Miranda warnings. The expert
report defendant submitted with his petition for PCR was also
speculative. The expert stated that, because defendant had been shot,
he must have been in pain and, if he was in pain, this could have
affected his ability to voluntarily waive his rights.
However, as Judge Pursel found, the motion judge specifically
considered defendant’s medical condition when he determined that
defendant’s confession was admissible. Unlike the expert who
produced the report for defendant, the motion judge had the
opportunity to listen to the audio-tapes of defendant’s statements.
The judge found that defendant was quite coherent, alert, and
understood exactly what was going on during the interviews. Thus,
the record plainly indicates that even if defendant’s trial attorney had
presented similar medical testimony at the suppression hearing, it
would not have led to a different result.
(ECF No. 1-4 at 17-18.) The PCR Appellate Court agreed with Judge Pursel’s reliance on “the fact
that the judge who presided at the suppression hearing had the benefit of listening to the audiotapes of defendant’s confessions. Based on his review of those tapes, the motion judge concluded
[that Petitioner] understood as well as and was as coherent as the attorneys here in court. There is
no indication that he was having any problem understanding, any indication that he was anything
but coherent ... and alert.’” (ECF No. 1-4 at 9-10.) Thus, counsel’s assistance had not prejudiced
Petitioner. (Id. at 10 (“[T]he medical report [as to Petitioner’s condition at the time of Miranda
waiver], if produced at the suppression hearing, would not have made a difference in the result”).)

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Petitioner makes no demonstration challenging the state court’s conclusion as to his
medical condition and comprehension on the tapes. The PCR Appellate Court’s determination was
based upon the particular record in Petitioner’s case and a reasonable application of the Strickland
prongs to that record. Thus, the PCR Appellate Court’s upholding of the PCR Trial Court’s
determination that Petitioner had failed to show prejudice was itself sufficient to wholly defeat his
Suppression-IAC Claim. Since Petitioner was “quite coherent, alert, and understood exactly what
was going on during the interviews” (ECF No. 1-4 at 17-18), introducing evidence of his medical
condition at the suppression hearing would not have altered the result of the state court’s
determination on whether he had knowingly and voluntarily waived his Miranda rights. See United
States v. Whiteford, 676 U.S. 348, 362 (3d Cir. 2012) (a waiver is knowing and intelligent if the
defendant had full awareness of both the right being abandoned and the consequences of the
decision to abandon it). In short, trial counsel did not prejudice his client’s defense under
Strickland by failing to use evidence that would have been inconsequential to the defense at best
(as mere redundancy of medical testimony about Petitioner’s condition), and harmful to the
defense at worst (by giving evidentiary support for Petitioner’s coherent comprehension at the time
of his confession and thus his knowing and voluntary Miranda waiver). In considering Petitioner’s
Suppression-IAC Claim, this Court need not independently consider Strickland’s “deficient
performance” prong because both state courts reasonably determined that Petitioner failed to
satisfy the “prejudice” prong. He had not demonstrated that counsel’s performance
unconstitutionally harmed his defense.
(3) Waiver-IAC Claim: Petitioner next contends that his counsel failed to present certain
evidence supporting the assertion that Petitioner was not shot by Mr. Wolf during a struggle over
Mr. Wolf’s gun, but rather as Petitioner was running from the jewelry store and therefore could

14

not have waived his Miranda rights. Petitioner also contends that his counsel failed to present
medical testimony showing that Petitioner was in pain when he gave his various statements to
investigating detectives (referred to as the “Waiver-IAC Claim”). (ECF No. 1 at 5-7.) The PCR
Appellate Court rejected the Waiver-IAC Claim because Petitioner did not demonstrate either
deficient performance or prejudice from counsel’s performance. (ECF No. 1-4 at 17-18.) The PCR
Appellate Court thus found that counsel’s assistance had not been ineffective under Strickland and
his performance also had not prejudiced Petitioner. (Id. at 18.)
Since the applicable standard for deficient performance under Strickland is “reasonably
effective assistance under the circumstances,” as determined under the particular facts of each
case, viewed as of the time of the challenged conduct of counsel, see Jacobs, 395 F.3d at 102, this
Court finds that the PCR Appellate Court’s ruling is consistent with Strickland. Counsel cannot be
faulted for not introducing medical testimony about Petitioner’s medical state at the time of making
his waiver; the record suggests that such evidence would have shown, at most, Petitioner was
capable of making a constitutionally valid Miranda waiver:
Although the defense contends that [defendant] must have been
incoherent in some fashion, I find that he was perfectly coherent as
evidenced by that tape. One couldn’t come to any other conclusion.
He was quite coherent, alert, and understood exactly what was going
on. In fact, he was trying to make a deal, at least with [the first officer
he spoke to].
(ECF No. 1-4 at 10.) Thus, counsel acted reasonably in not presenting evidence that would have
directly contradicted Petitioner’s claim of ineffective Miranda waiver. The decision not to offer
evidence that was likely to be unhelpful to the defense strikes this Court as eminently sound and
reasonable, and not the substandard representation that Petitioner claims.
ii. Ground Two

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In Ground Two of the Petition, Petitioner states that his constitutional rights “w[ere]
violated by counsel’s failure to effectively present evidence, or request jury instructions,
supporting the defense theory of the case” that the armed robbery incident arose from a
conspiratorial scheme to defraud the Wolfs’ insurance company (referred to as the “Insurance-IAC
Claim”). (ECF No. 1 at 8-12.) Specifically, Petitioner contends there was “a scheme [of] a fake
robbery to defraud the Wolfs’ insurance company. The goods removed during the fake robbery
would be taken to a local storage unit and left there. The Wolfs would then submit an insurance
claim to have the goods replaced. The defendants would be paid $30,000 in cash. [T]he Wolfs
were participants in the scheme; and thus [Petitioner] did not expect any resistance or gunfire.”
(Id. at 9.) Petitioner argues that his trial counsel’s “failure to obtain, or even request, relevant
financial documents [of the Wolfs] left Petitioner unable to show the insurance motive, and how
the Wolfs would profit in the scheme ... The financial condition of the Wolfs was relevant to
motive.” (Id. at 10.)
Petitioner raised this issue of financial record investigation during the PCR proceedings.
(ECF No. 1-5 at 23-25; ECF No. 1-6 at 11-12; ECF No. 1-8 at 4-5.) The PCR Trial Court denied
this claim as follows:
Defendant-petitioner submits that failure to conduct a diligent pretrial investigation into a possible insurance fraud motive
permanently deprived defendant-petitioner of potentially
exculpatory evidence. Prior to the beginning of trial, trial counsel
became aware of potential insurance claims arising out of the
robbery but failed to explore these claims. Trial counsel briefly
explored the issue on examination of Mr. Wolf …
Defendant-petitioner has provided a copy of the civil complaint
dated October 14, 1997 wherein plaintiff [Jeffrey Wolf] opposes
defendant Jewelers Mutual’s denial of insurance coverage …
An order dated October 20, 1998 granting Defendant Jewelers
Mutual Insurance’s motion for summary judgment was entered
16

based on Exclusion 8, an employee of an insured in the course of
employment. This order confirms that the reason for the insurance
coverage litigation was centered upon the relationship between Ms.
Wolf and her husband insurance holder Mr. Wolf, as opposed to a
denial of coverage based on exclusion 1, bodily injury expected,
directed or intended by an insured. Therefore while trial counsel
ought to have conducted an investigation into the insurance
litigation in order[,] the failure to do so did not amount to ineffective
assistance of counsel and was harmless error.
(ECF No. 1-3 at 11-12.) Affirming the PCR Trial Court, the PCR Appellate Court rejected the
Insurance-IAC Claim because Petitioner had not demonstrated that trial counsel’s allegedly
deficient performance had prejudiced him under Strickland:
[D]efense counsel was not ineffective for failing to have an
accountant review the Wolfs’ financial records. Defendant produced
such a report with his petition for PCR, but all it indicated was that
the Wolfs maintained poor records. It certainly did not demonstrate
that the Wolfs were engaging in insurance fraud. Instead, the report
merely stated that, had the accountant been retained at the time of
trial, he “might have” offered testimony supporting defendant’s
theory that the Wolfs participated “as conspirators in an insurance
fraud.” Thus, we agree that this speculative report provides no basis
for a finding that defendant’s attorney was ineffective.
(ECF No. 1-4 at 17.)
The PCR Appellate Court cited, relied upon, and reasonably applied the correct two-prong
Strickland standard for the Insurance-IAC Claim. (ECF No. 1-4 at 14-15.) This Court agrees that
Petitioner did not demonstrate the Strickland prejudice prong to support this claim. Analysis of the
Wolfs’ financial records showed, at most, poor record-keeping, rather than a fraudulent insurance
scheme. Thus, the purported financial analysis as to which Petitioner criticizes his counsel does
not exhibit the requisite “probability sufficient to undermine confidence in the outcome[.]”
Strickland, 466 U.S. at 693. Indeed, a financial analysis that would have been inculpatory of the
Wolfs does not even exist in the first instance: i.e., the accountant whom Petitioner himself relied
upon to support PCR only “might have” offered testimony suggesting an insurance scheme. (ECF
17

No. 1-4 at 17.) Such unconfirmed evidence of uncertain content does not represent a “reasonable
probability” that the result of the case would have been different, but for counsel’s supposedly
deficient omission. Hinton, 134 S. Ct. at 1083. Furthermore, Petitioner has not demonstrated that
an insurance fraud scheme by the Wolfs would have changed the verdict decision of reasonable
jurors -- who had before them strong evidence of Petitioner’s guilt. (ECF No. 1-3 at 14.) This
failure to demonstrate Strickland prejudice renders the Insurance-IAC Claim fatally defective.
iii. Ground Three
In Ground Three, Petitioner contends that his trial attorney misadvised him as to the
“constitutional right to testify on his own behalf” (referred to as the “Testify-IAC Claim”). (ECF
No. 1 at 12-14.) Petitioner raised this issue on PCR. (ECF No. 1-3 at 14-17; ECF No. 1-5 at 2637; ECF No. 1-6 at 12-15; ECF No. 1-7 at.) The PCR Trial Court denied this claim. (ECF No. 1-3
at 14-17. 3) The PCR Appellate Court “agree[d] that defendant failed to establish a prima facie
case of ineffective assistance of counsel” and affirmed. (ECF No. 1-4 at 18-19.) The PCR Trial
Court found that counsel could not have rendered deficient assistance because the trial judge had
advised Petitioner on the record of his right to decide whether or not to testify on his own behalf,
and Petitioner had made an “adequately informed and voluntar[y]” decision not to do so. (ECF

3

That court stated as follows: “The trial record confirms, beyond dispute, that on two separate
occasions Judge Coleman specifically advised the defendant that the decision to testify during the
trial was his and his alone. The record further confirms that Judge Coleman advised the defendant
[that] ‘no one’ could force or threaten him either to testify or not to testify. The record further
confirms, beyond dispute, that personally Kennon acknowledged those rights and told Judge
Coleman that he ‘choose’ not to testify. Furthermore, upon review of the trial transcripts, it is clear
that Defendant-petitioner’s decision to forego testifying on his own behalf was knowingly waived
with an understanding [that several prior convictions would be] sanitize[d] pursuant to Brunson.
Thereafter Defendant-petitioner made his decision to waive his right to testify. Furthermore, when
a defendant is represented by counsel, the trial court does not have a duty to advise defendant of
his or her right not to testify or to explain the consequences that the testimony may produce.
Therefore, this Court is convinced that the defendant-petitioner’s decision to forego his right to
testify was adequately informed and voluntarily waived.” (ECF No. 1-3 at 14-17.)
18

No. 1-3 at 17 (trial judge “equip[ped] defendant-petitioner with the knowledge necessary to make
a well informed decision whether to testify . . . . Thereafter[,] defendant-petitioner made his
decision”).) The PCR Appellate Court agreed with the PCR Trial Court and rejected Petitioner’s
Testify-IAC Claim because:
We agree with Judge Pursel’s rejection of defendant’s contention
that his attorney prevented him from testifying at trial and failed to
apprise him that he had the right to do so. The record clearly
indicates that the trial judge painstakingly discussed defendant’s
right to testify with him.
(ECF No. 1-4 at 18-19).
The PCR Appellate Court reasonably applied the two-prong Strickland standard for the
Testify-IAC Claim. (ECF No. 1-4 at 14-15.) The record of the trial judge’s “painstaking
discuss[ion] [with] defendant[] [of his] right to testify” flatly contradicted Petitioner’s subsequent
PCR “contention that his attorney prevented him from testifying at trial and failed to apprise him
that he had the right to do so.” (ECF No. 1-4 at 18.) Petitioner thus cannot make the requisite
deficient-performance showing under Strickland that “counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Strickland, 466 U.S.
at 687; see also Shedrick, 493 F.3d at 299. Petitioner received the very constitutional notice of his
right to testify upon which he bases Ground Three of the Petition. His Testify-IAC Claim thus
rings utterly hollow. Petitioner cannot raise an IAC claim simply because he is unhappy that trial
did not conclude as he wished. See Lockhart, 506 U.S. at 369; Kim, 2006 WL 981173, at *3
(“[T]hat [he] now appears unhappy with the result does nothing to change the fact that there is not
the slightest indication that petitioner received ineffective assistance of counsel”). In sum,
Petitioner seeks habeas second-guessing of a decision he himself made. (ECF No. 29-15 at 15-16.)
Petitioner’s expectations are misplaced.

19

iv. Ground Four
In Ground Four, Petitioner alleges that, in violation of his Sixth and Fourteenth
Amendment rights, he “received ineffective assistance from Trial Counsel when counsel failed to
request a jury instruction for ‘Consent,’ or ‘Mistake of Fact’” (“Instruction-IAC Claim”). (ECF
No. 1 at 15-17.) The PCR Appellate Court “discern[ed] no basis for disturbing the [PCR trial]
judge’s finding that defendant’s argument about his attorney’s failure to request jury charges on
consent, mistake of fact, and causation was barred by Rule 3:22-4 because it could have been
raised on direct appeal. In addition, defendant’s argument that the record would have supported
these charges lacks merit. R. 2:11-3(e)(2).” (ECF No. 1-4 at 18-19.)
This Court finds that Petitioner’s Instruction-IAC Claim fails on the merits. 4
Ground Four contends that counsel should have requested that the trial court “explain to
the jury that the defendant could not be guilty of robbery if he reasonably believed the Wolfs were
participating in the events and therefore had their consent. [A] knowing intent is required to
commit robbery. Ignorance or mistake as to a matter of fact or law is a defense.” (ECF No. 1 at
15.) Such separate instructions were unnecessary though, because the trial court did, in fact, cover
the issue of Petitioner’s state of mind when charging the jury on robbery. (ECF No. 12-14 at 3738 (jury charge discussing the “knowing inflict[ion] [of] bodily injury upon another” element of
the robbery offense, which means “aware[ness] that it’s practically certain that [Petitioner’s]
conduct will cause such a result”). The trial court’s jury charges were exhaustive and thorough,
covering areas including: jurors’ duty to weigh the evidence, reasonable doubt, presumption of
innocence, burden of proof, witnesses’ credibility, direct versus circumstantial evidence,

4

While Petitioner’s Instruction-IAC Claim on habeas review appears to be procedurally
defaulted for failure to exhaust state remedies, Lundy, 455 U.S. at 522, this Court need not
address the issue of procedural default because the Claim lacks merit, as explained herein.
20

Petitioner’s election not to testify, expert witnesses, prior inconsistent statements, specific
elements of each charged offense (robbery, felony murder, theft, criminal homicide, conspiracy,
possession of a handgun, and possession with intent to use weapon unlawfully), and deliberation
process. (ECF No. 12-14 at 33-45.)
In this context of the robbery instruction, this Court cannot say that counsel’s performance
was deficient under Strickland. On habeas review, courts “must indulge a strong presumption that
counsel’s conduct falls within a wide range of reasonable professional assistance.” United States
v. Travillion, 759 F.3d 281, 289 (3d Cir. 2014) (quoting Strickland, 466 U.S. at 689, and Berryman
v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996)). It is not a stretch to engage in that presumption
here, given the professional judgment trial counsel exercised in considering the sufficiency of the
charges given to the jury, the type of instructions that the evidence at trial would or would not
support, and whether additional charges beyond those already provided by the trial judge would
confuse the jurors. See Branch v. Sweeney, 758 F.3d 226, 234, 235 (3d Cir. 2014) (quoting Burt v.
Titlow, 134 S. Ct. 10, 17 (2013) and Strickland, 466 U.S. at 690) (the IAC test is demanding, as
there is a “strong” presumption that counsel “rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment”)). As to Strickland’s prejudice
prong, Petitioner has not shown that separate jury instructions on consent or mistake of fact would
have exculpated him in the jury’s eyes to a reasonable probability, even in the face of all other
evidence of his guilt at trial. In these circumstances, he cannot demonstrate that, but for counsel’s
decision not to seek those separate jury charges, the trial result would have been different. See,
e.g., ECF No. 1-2 at 15, 17, 23-24. 5 Habeas petitioners must show that counsel’s conduct “more

5

“[T]he trial court correctly charged the jury that the State bore the burden of proving beyond a
reasonable doubt that defendant ‘knowingly inflict[ed] bodily injury or use[d] force upon another,
or threaten[ed] another with or put him or her in fear of bodily injury’ while ‘in the course of
21

likely than not altered the outcome in the case[.]” Strickland, 466 U.S. at 693. Petitioner has not
done so in Ground Four.
v. Ruling as to Grounds One through Four
In sum, the Appellate PCR Court rulings on the Investigation-IAC, Suppression-IAC,
Waiver-IAC, Insurance-IAC, and Testify-IAC Claims in Grounds One, Two, and Three were
neither contrary to, nor involved an unreasonable application of, clearly established federal law as
determined by the U.S. Supreme Court, nor were they 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).
Furthermore, while Ground Four’s Instruction-IAC Claim appears procedurally defaulted, it lacks
merit. Accordingly, Petitioner is not entitled to relief on his IAC claims. Grounds One, Two, Three,
and Four of the Petition are denied in their entirety.
B. Ground Five: Accumulation of Errors By Trial Counsel
In Ground Five, Petitioner contends that “[t]he Accumulation of Errors by Trial Counsel in the aggregate, if not individually - operated to deny the Petitioner effective assistance of
counsel.” (ECF No. 1 at 17.) In support, Petitioner relies upon his Investigation-IAC Claim,
Suppression-IAC Claim, and Instruction-IAC Claim. (Id. at 17-19.)
Under the cumulative effect doctrine, even if none of Petitioner’s claims on its own
amounts to a constitutional violation, the “cumulative effect of the alleged errors may violate due

committing a theft’ . . . . [T]he trial judge in this case instructed the jury on each element of the
crime. Moreover, he emphasized throughout his charge that the State bore the burden of proving
each element beyond a reasonable doubt … We also reject defendant’s contention that the trial
court failed to tailor its instructions to the facts of the case . . . . [T]he charge given, as a whole,
was consistent with the factual theories advanced by the parties. We perceive no sound basis to
disturb the sentence imposed. The sentencing court’s findings are supported by the record, and the
overall sentence is fair and reasonable.” (ECF No. 1-2 at 15, 17, 23-24 (June 1, 2000 Appellate
Division opinion denying direct appeal).)
22

process.” Sullivan v. Cuyler, 631 F.2d 14, 17 (3d Cir. 1980); Pursell v. Horn, 187 F. Supp. 2d 260,
374 (W.D. Pa. 2002) (“That the reliability of a state criminal trial can be substantially undermined
by a series of events, none of which individually amounts to a constitutional violation, is an idea
that has been accepted by nearly every federal court to have addressed the issue”). However, while
the Third Circuit has discussed the notion that cumulative errors may violate due process when
they undermine the reliability of the verdict, the U.S. Supreme Court has not clearly established
that habeas relief is warranted on the basis of alleged cumulative trial errors. See Chambers v.
Mississippi, 410 U.S. 284 (1973). Subsequent Supreme Court cases have interpreted Chambers
narrowly. See, e.g., United States v. Scheffer, 523 U.S. 303, 308 (1998). While Chambers does not
“clearly establish” that the cumulative effect of alleged trial errors denies due process, the test for
a “cumulative error” claim in this jurisdiction is whether the errors had “a substantial and injurious
effect or influence in determining the jury’s verdict,” meaning a petitioner “can establish ‘actual
prejudice.’” Fahy v. Horn, 516 F.3d 169, 205 (3d Cir. 2008). See also Hein v. Sullivan, 601 F.3d
897, 917 (9th Cir. 2010) (relying on Donnelly v. DeChristofaro, 416 U.S. 637, 643 (1974)) (test
for “cumulative error” claims is whether the overall deficiencies “so infected the trial with
unfairness as to make the resulting conviction a denial of due process”).
The PCR Appellate Court rejected Petitioner’s IAC-based cumulative errors claim. (ECF
No. 1-4 at 13.)
This Court agrees with that determination and also rejects his cumulative error claim.
Even accepting the cumulative error doctrine for purposes of this Petition, Ground Five is
a mere redundancy of Ground One’s Investigation-IAC and Suppression-IAC Claims and Ground
Four’s Instruction-IAC Claim which, as fully explained in the preceding sections above, do not

23

merit habeas relief. Those claims thus do not serve as bases for a meritorious cumulative error
claim in Ground Five.
First, the cumulative error analysis does not apply without errors by counsel to aggregate.
Obviously, there can be no successful claim for aggregation of errors when not one error exists in
the first instance. As this Court noted supra, counsel’s assistance that Petitioner challenges in his
Investigation-IAC and Instruction-IAC Claims was not defective. Thus, those claims in Grounds
One and Four provide no errors by counsel to aggregate for Ground Five.
Second, “a habeas petitioner is not entitled to relief based on cumulative errors unless he
can establish actual prejudice.” Fahy, 515 F.3d at 205. As this Court noted supra, counsel’s
assistance that Petitioner challenges in his Suppression-IAC Claim did not prejudice him. Nor did
counsel’s conduct that Petitioner challenged in his Investigation-IAC and Instruction-IAC Claims.
Thus, those three claims in Grounds One and Four demonstrate no prejudice to support Ground
Five’s cumulative error claim.
In any event, because of the strong case against him at trial, Petitioner cannot demonstrate
prejudice to merit cumulative error relief. For example, Petitioner gave statements to the police
after being released from the hospital, revealing previously undisclosed details concerning the
planning of the robbery, the commission of the crime, and its aftermath. (ECF No. 1-2 at 8.)
For example, Gottlieb had prepared a map that was shown to Petitioner, Williams, and
Guhse prior to the robbery. The map had been recovered in the course of the investigation. In his
statements to police, Petitioner identified the map as the one that had been shown to him
immediately before the robbery. (Id.; ECF No. 12-14 at 21 (“[Petitioner] indicated that was the
information they were going to use to plug into the scanner so Gottlieb could monitor the police
communications while they committed the armed robbery of the jewelry store . . . . [Petitioner]

24

admitt[ed] that this was a robbery when he signed the photograph of David Gottlieb . . . . He
admitted it on [March] 16th [1996] [when he] g[ave] his statements to the police”).) Petitioner’s
fingerprints were found on the map. (ECF No. 12-14 at 25.)
Police also showed Petitioner a videotape of Williams and Guhse, which was taken when
the two men rented a car at LaGuardia Airport. Petitioner identified Williams and Guhse as the
“two people as people who participated [with Petitioner] in the armed robbery.” (ECF No. 1-2 at
8; ECF No. 12-14 at 22.)
Petitioner also related a conversation he had with Gottlieb in which Gottlieb mentioned
that he had been to the Wolfs’ store two weeks before the robbery and had seen a diamond worth
$25,000. (ECF No. 1-2 at 8; ECF No. 12-14 at 21-22 (“And David [Gottlieb] told me that his guy
said that there had never been anyone in the store, and there was only two people there, and it was
easy”).)
In light of evidence such as this, no reasonable probability exists that the result of
Petitioner’s case would have been different. Under the circumstances as demonstrated by the trial
evidence, counsel’s conduct did not unconstitutionally prejudice the defense.
Ground Five is denied.
C. Ground Six: Claim Of Ineffective Assistance of Appellate Counsel
In Ground Six of the Petition, Petitioner argues that his “Sixth Amendment right to the
effective assistance of counsel on direct appeal was violated by appellate counsel’s failure to
evaluate the entire trial record, and identify errors by trial counsel that were entirely on the record.”
(ECF No. 1 at 21.) In support of this claim, Petitioner alleges that appellate counsel “failed to
identify trial counsel’s failure to request jury instructions for the defenses of Consent and/or
Mistake of Fact” and “fail[ed] to identify the denial of due process based on the [S]tate’s adopting,

25

then denying, and later reasserting contradictory positions in order to gain an improper advantage.”
(Id. at 23.)
Petitioner did not raise this argument on PCR. (See ECF Nos. 1-3 and 1-4.)
Petitioner having failed to fairly present this claim to the state courts, it appears Ground
Six is unexhausted. This Court can nevertheless deny the claim on the merits under 28 U.S.C. §
2254(b)(2). See Taylor, 504 F.3d at 427; Bronshtein, 404 F.3d at 728. In other words, this Court
is free to deny Ground Six on the merits, and that is what this Court now does for these reasons:
First, this Court has already determined that the PCR Appellate Court was consistent with
United States Supreme Court precedent in determining that trial counsel was not ineffective under
Strickland for not requesting jury instructions on consent and mistake of fact. Exercise of strategy
is afforded great deference in evaluating deficient performance under Strickland, 466 U.S. at 690.
This Court cannot say that appellate counsel on direct appeal was deficient for not challenging the
reasonableness of trial counsel’s assistance -- assistance that the PCR Appellate Court later found
constitutional. Indeed, Petitioner himself acknowledges: “If trial counsel’s errors rise to the level
of ineffective assistance, then appellate counsel has duplicated trial counsel’s efforts.” (ECF No.
1 at 23.) As this Court has explained above, there were no errors by trial counsel for appellate
counsel to “duplicate.” Appellate counsel on direct appeal cannot be faulted for failing to assert
unconstitutional IAC by trial counsel when none existed in the first instance.
Second, the record does not support Petitioner’s contention that the State asserted
inconsistent theories at trial. (ECF No. 1 at 22 (“The state simultaneously claims Jeffrey Wolf is
both an innocent victim and an unindicted co-conspirator who hired Gottlieb, [P]etitioner, and the
others to come to New Jersey in the first place”).) Contrary to Petitioner’s characterization of the
prosecution’s position, the State’s Motion for Imposition of a Discretionary Extended Term

26

regarding Avram Gottlieb stated that “if the sentencing court believed the trial testimony of
Gottlieb, he was eligible for the imposition of an extended term of imprisonment under N.J.S.A.
2C:44-3c.” (ECF No. 12-1 at 46; ECF No. 12-42.) The State’s argument is not, contrary to
Petitioner’s description of it, the same as saying the Wolfs agreed to pay others to rob their store.
There were, therefore, no “contradictory positions” by the State at trial for appellate counsel to
“identify.” (ECF No. 1 at 23.) Appellate counsel cannot be faulted for failing to raise on direct
appeal purported trial counsel errors as to Due Process Clause deprivations when none existed in
the first instance.
Thus, Petitioner’s claims in Ground Six are without merit, even if not procedurally
defaulted under 28 U.S.C. § 2254(b)(1) for failure to exhaust.
Ground Six of the Petition is therefore denied.
D. Ground Seven: Violation Of Principles Of Judicial Estoppel By Upholding
Conviction On Direct Appeal
In Ground Seven, Petitioner argues: “In upholding Petitioner’s convictions on direct
appeal, New Jersey violated both Due Process and the principles of Judicial Estoppel.” (ECF No.
1 at 24.) Petitioner contends that New Jersey courts should be judicially estopped from upholding
his conviction because the State had inconsistent theories at trial as to Petitioner and his codefendants. (ECF No. 1 at 24-26.)
Specifically, Petitioner alleges that Gottlieb testified at his own trial as to the defense theory
of a fake robbery designed to facilitate an insurance scam; Petitioner argues that the State later
supported its post-trial motion for a discretionary extended term for Gottlieb by arguing that the
robbery was a “crime for hire” in which Jeffrey Wolf was involved. (Id. at 24.) When Petitioner
subsequently filed a motion for a new trial based on the “newly discovered evidence” of Gottlieb’s
testimony, the state court “informed trial counsel that his [advice to Petitioner had been] wrong
27

[because] [P]etitioner’s testimony [as to robbery-for-hire information obtained from Gottlieb]
would have been admissible under the ‘Co-Conspirator Exception to the Hearsay Rule.’” (Id. at
25; ECF No. 12-17.) The court, however, concluded that Petitioner had waived his right to testify
on the record. (ECF No. 1 at 25.)
Relying on the judicial estoppel doctrine, Petitioner now contends that he was denied due
process and effective assistance of counsel. He alleges that the State argued in Gottlieb’s trial that
Jeffrey Wolf was involved in the crime for hire, but that the State presents Wolf as an innocent
victim in Petitioner’s case. (Id. at 25 (“This permits the state to manipulate the system by
presenting contradictory theories to different tribunals”).)
In the alternative, Petitioner argues that the “Law of the Case doctrine” should apply to
vacate his sentence and remand for a new trial, in the event this Court rejects his judicial estoppel
theory. (Id. at 26.)
Petitioner advanced both the judicial estoppel and law of the case doctrines in his PCR
proceedings, which the PCR Trial Court rejected. (ECF No. 1-3 at 19-21. 6)

6

“Defendant-petitioner argues that under the judicial estoppel doctrine, the State cannot take
inconsistent positions with regard to Mr. Wolf’s participation in this armed robbery. Specifically,
defendant-petitioner-seeks this Court to take judicial notice that the State originally pursued a
theory that the Wolfs were innocent victims during the trials of both Kennon and Gottlieb but then
abandoned that theory at Mr. Gottlieb’s sentencing submitting to the Court the conspiracy crime
for hire aggravating factor. The Court found the aggravating factor (7) applicable. In the present
PCR petition defendant-petitioner submits that since Mr. Wolf’s role in the crime for hire
conspiracy was accepted by the Gottlieb sentencing court, this Court must find that the position
has been successfully asserted by the State, accepted by the Gottlieb sentencing Court, and as such
this Court is estopped from rejecting the contention that Mr. Wolf was a co-conspirator. In the
alternative defendant-petitioner submits that the law of the case doctrine must be applied . . . . The
State acknowledges that it did take the position in 1997 that Judge Arnold could sentence defendant
Gottlieb to an extended term based on Gottlieb’s own trial testimony that he committed the armed
robbery at the [j]ewelry store in exchange for the payment of money as contemplated by N.J.S.A.
2C:44-3c. However, the sentencing Court granted the State’s motion for an extended term at the
Gottlieb sentencing on the following two grounds: (1) Gottlieb was a persistent offender [and] (2)
Gottlieb was in possession of a stolen motor vehicle at the time he committed the underlying

28

The PCR Appellate Court agreed with the PCR Trial Court:
Judge Pursel found that the doctrine of judicial estoppel did not
apply under the circumstances of this case. In raising this argument
at Gottlieb’s sentencing, the State did not agree with Gottlieb’s
claim that this was a “crime for hire” and, in fact, argued that the
sentencing judge should reject that claim. Moreover, there were
alternate bases for the extended sentence Gottlieb received since he
was a “persistent offender” under N.J.S.A. 2C:44-3a, and was in
possession of a stolen motor vehicle at the time of the offense,
N.J.S.A. 2C: 44-3f. 7 Thus, Judge Pursel found that the State was not
judicially estopped from contesting defendant’s claim that the
robbery was staged in order to commit insurance fraud.
***
[W]e also reject defendant’s argument that the State was ‘judicially
estopped’ from contending that there was no insurance fraud. As
Judge Pursel explained in detail, defendant’s contention on this
point is based upon his misreading of the State’s argument at
Gottlieb’s sentencing hearing. The State never took the position that
Jeffery Wolf agreed to pay defendant and his co-conspirators to rob
his store.
(ECF No. 1-4 at 19.)
This Court rejects both Petitioner’s judicial estoppel and his law of the case arguments
for the following reasons:

offense. Despite the State’s argument that for an extended term based on ‘crime for hire’ under
N.J.S.A. 2C:44-3f[,] the Gottlieb sentencing Court did not adopt that basis. Therefore this Court
is not compelled to adopt the ‘crime for hire’ position of the State which was considered but not
adopted by the Gottlieb sentencing court.” (ECF No. 1-3 at 19-21.)
7
“During his separate trial, Gottlieb claimed that he participated in the robbery ‘pursuant to an
agreement with Jeffrey Wolf whereby Mr. Gottlieb would be paid $30,000 as payment for carrying
out the robbery.’ The State disputed Gottlieb’s claim. At Gottlieb’s sentencing, the State argued
that he should be sentenced to an extended term under N.J.S.A. 2C:44-3. Subsection c of that
statute states that an extended sentence can be imposed if the defendant ‘committed the crime as
consideration for the receipt, or expectation of the receipt, of anything of pecuniary value the
amount of which was unrelated to the proceeds of the crime.’ N.J.S.A. 2C:44-3c. During its
argument in support of an extended term, the State argued that, if the sentencing court were to
accept Gottlieb’s claim that he engaged in a ‘crime for hire,’ the judge could sentence him to an
extended term. Because the State took this position at Gottlieb’s sentencing, defendant argued it
was estopped from claiming in his trial that the robbery was not planned by Jeffrey Wolf.” (ECF
No. 1-3 at 11-12.)
29

Judicial Estoppel: Judicial estoppel is a discretionary matter of equity that applies where:
(1) a party adopts clearly inconsistent positions at different times; (2) that party persuades a court
to adopt the earlier position, such that judicial acceptance of an inconsistent position in a later
proceeding would create the perception that one of the two courts was misled; and (3) this would
afford unfair advantage to the party or impose unfair prejudice on its opponent if the court adopted
the later inconsistent position. Lincoln v. Smithfield, 595 Fed. App’x 143, 145 (3d Cir. 2014) (citing
New Hampshire v. Maine, 532 U.S. 742, 750-51 (2001)).
None of these considerations supports application of judicial estoppel here. Even more
dispositive is that Petitioner has cited to no authorities applying judicial estoppel in a habeas
context analogous to this case. Indeed, this Court is aware of no such cases. Generally speaking,
judicial estoppel is not a doctrine commonly invoked in federal habeas proceedings, and it has no
application in support of Petitioner’s claims in this case, either. For example:
First, as the PCR Appellate Court noted, the State’s position during Gottlieb’s trial on the
“murder for hire” issue was not inconsistent with the State’s position on that issue during
Petitioner’s trial. In Gottlieb’s case, the State had argued that if the sentencing court believed the
trial testimony of Gottlieb, he was eligible for the imposition of an extended term of imprisonment
under N.J. Stat. Ann. § 2C:44-3c. (ECF No. 12-38 at 49.) As the State explains in its habeas
Response: “This did not mean that the State believed that Mr. Wolf or his wife agreed to pay others
to rob their store.” (Id.) The State never conceded during Gottlieb’s trial that the Wolfs agreed to
pay the defendants for robbery of the jewelry store. (ECF No. 12-42.) In fact, the State had argued
at Gottlieb’s sentencing that the court should reject the “murder for hire” claim (ECF No. 1-4 at
19), and the court relied for its extended term sentencing upon alternate bases of Gottlieb’s repeat
offender status and his possession of a stolen vehicle. (Id.) In Petitioner’s case, he characterizes

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the State’s position as one that posits Wolf is “an innocent victim.” (ECF No. 1 at 25.) Even
accepting Petitioner’s description as accurate for purposes of this Opinion, his characterization
would not present a situation warranting judicial estoppel. The State never pursued a claim that
Gottlieb was involved in a murder for hire scheme in his trial, so the State’s portrayal of Gottlieb
as an “innocent victim” (id.) is not “clearly inconsistent” with its prior position in 1997.
Second, because there is no inconsistency in the State’s positions in Gottlieb’s trial and in
Petitioner’s case, there would also be no threat that judicial acceptance of the State’s positions
would create the perception that the sentencing court was misled. In fact, since the Gottlieb
sentencing court considered but did not adopt “murder for hire” as a basis for extended term
sentencing (ECF No. 1-3 at 19-21), the risk of adverse perception does not exist. See New
Hampshire, 532 U.S. at 750-51 (“Absent success in a prior proceeding, a party’s later inconsistent
position introduces no risk of inconsistent court determinations and thus poses little threat to
judicial integrity”) (internal citations omitted).
Third, Petitioner has failed to show that the State’s position in his trial as to the nature of
Wolf’s involvement in the crime would impose an “unfair detriment” on Petitioner or give an
“unfair advantage” to the State. See New Hampshire, 532 U.S. at 751. Whatever the State’s
arguments were as to extended term sentencing at Gottlieb’s trial, nothing altered the State’s
obligation to prove at Petitioner’s trial all elements of all charged offenses beyond a reasonable
doubt. The State carried that burden. See ECF No. 1-3 at 14 (“The jury convicted the defendant
within hours of deliberation because of the strength of the State’s case”).)
In short, the state courts in this case declined to apply the judicial estoppel doctrine, and
this Court finds no clear error in their conclusions as to judicial estoppel. They simply found that

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it did not apply, and this Court agrees. The State never prevailed on the crime-for-hire theory,
and there is thus no basis for estoppel.
Law of the Case: “[T]he [law of the case] doctrine posits that when a court decides upon a
rule of law, that decision should continue to govern the same issues in subsequent stages of the
same case.” Arizona v. California, 460 U.S. 605, 618 (1983). “This rule of practice promotes the
finality and efficiency of the judicial process by ‘protecting against the agitation of settled issues.’”
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988) (quoting another source).
“The law of the case doctrine limits the extent to which an issue will be reconsidered once the
court has made a ruling on it.” Fagan v. City of Vineland, 22 F.3d 1283, 1290 (3d Cir. 1994).
Under this doctrine, once an issue is decided, it will not be relitigated in the same case,
except in unusual circumstances. The doctrine’s purpose is to promote the ‘judicial system’s
interest in finality and in efficient administration. Todd & Co., Inc. v. S.E.C., 637 F.2d 154, 156
(3d Cir. 1980).’” Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 165 (3d Cir. 1981). “A
court has the power to revisit prior decisions of its own or of a coordinate court in any
circumstance, although as a rule courts should be loath to do so in the absence of extraordinary
circumstances such as where the initial decision was ‘clearly erroneous and would work a manifest
injustice.’” Christianson, 486 U.S. at 817 (quoting Arizona, 460 U.S. at 618 n.8). “In other words,
the law of the case doctrine does not limit a federal court’s power, rather it directs its exercise of
discretion.” Lambert v. Blackwell, 387 F.3d 210, 236 n.20 (3d Cir. 2004) (citing Public Interest
Research Group of New Jersey, Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 116 (3d Cir.
1997)). Petitioner has cited to no authorities applying this doctrine in the habeas context, and
indeed this Court is aware of no such caselaw in this jurisdiction.

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Petitioner’s argument relying upon the law of the case doctrine need not detain this Court
long.
No matter the “theory of the case” the State relied upon at trial, this Court would still have
to determine whether the state court decision upholding Petitioner’s conviction on direct appeal
was a violation of the U.S. Constitution or any federal statute. The law of the case doctrine is
irrelevant to this Court’s decision on that inquiry. What matters is whether the Appellate Division’s
decision on direct appeal was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the U.S. Supreme Court. Furthermore, the issue upon
which Petitioner seeks to have this Court declare to be law of the case -- i.e., Gottlieb’s
“involve[ment] in the charged crimes” (ECF No. 1 at 25) -- was never previously determined by
any state court and thus could not, in any event, serve as a mandate for law of the case doctrine.
Moreover, the law of the case doctrine is, generally speaking, court-specific and instructs judges
or appellate panels to follow the rulings of earlier courts that rendered decisions in a given case.
Thus, to the extent Petitioner is arguing law of the case should bind an appellate or collateral
authority, he is incorrect.
Petitioner has not demonstrated the Appellate Division’s opinion upholding his conviction
on direct appeal was contrary to, or involved an unreasonable application of, clearly established
federal law, as determined by the U.S. Supreme Court. For all of the foregoing reasons, Ground
Seven of the Petition is denied.
E. Ground Eight: Violation Of Due Process From PCR Trial Court’s Failure To
Hold Evidentiary Hearing On PCR Petition
In Ground Eight, Petitioner states that the PCR trial court’s “refusal to grant an evidentiary

33

hearing denied [him] Due Process 8 since he met the proper, prima facie standard requiring an
evidentiary hearing to resolve the issues presented in his [PCR] petition.” (ECF No. 1 at 27
(emphasis in original). 9)
Citing the standard set forth in State v. Preciose, 129 N.J. 460 (1992), the PCR Trial Court
had rejected Petitioner’s claim for an evidentiary hearing because it “fell short of the standard
required to obtain [such a] hearing. Defendant-petitioner has made mere bald assertions with no
evidentiary support thereto. [His] blanket statements, case theories and beliefs regarding certain
investigatory omissions [by trial counsel] without any evidence or factual support do not meet the
burden required in this petition.” (ECF No. 1-3 at 5, 22-23.)
On appeal of PCR denial, the Appellate Division also cited the applicable standard for PCR

8

Petitioner brings his habeas Petition as a pro se litigant. A pro se pleading is held to less stringent
standards than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106
(1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and any supporting
submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151
F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989).
While Petitioner had not raised due process as a ground for relief in PCR proceedings (see ECF
No. 12-22; ECF No. 12-23 at 2; ECF No. 12-35 at 2-3; ECF No. 12-19) -- which would render his
claim in Ground Eight of the habeas Petition unexhausted under 28 U.S.C. § 2254(b)(2) -- this
Court is free to liberally construe Ground Eight and review it on the merits. This Court denies it
on that basis, as explained herein.
9

“Because the PCR Court never granted an evidentiary hearing, trial counsel was never
called to explain why: A. He failed to complete reading the discovery until less than 3 weeks
before start of trial. B. Never explained why he was still seeking subpoenas for relevant financial
and insurance information after the beginning of trial. C. Never explained his failure to call a
medical expert or present available evidence to explain to the Court and/or jury how [P]etitioner’s
medical condition could affect his confession. D. Never explained how that failure subsequently
caused counsel to fail to point out to the Court that the forensic facts revealed in various expert
reports directly refuted Petitioner’s confession and called into question its reliability. E. Never
explained why the advice he had given to [P]etitioner regarding his right to testify was contrary to
long-existing law and precedent, and F. Never explained why he failed to seek jury instructions
related to consent, mistake of fact, or intervening cause when those instructions were relevant and
necessary for the jury to consider . . . . The PCR Court should have granted an evidentiary hearing
in order to clarify the content of Counsel’s advice, and determine to what extent counsel erroneous
advice has prejudiced the [P]etitioner.” (ECF No. 1 at 44.)
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evidentiary hearings and noted that the PCR Trial Court had been “able to fully address defendant’s
contentions by reviewing the voluminous trial record, defendant’s petition for PCR, and the expert
reports he provided.” (ECF No. 1-4 at 14-15, 19.) The PCR Appellate Court agreed that “[b]ecause
[Petitioner] did not establish a prima facie case of ineffective assistance of trial counsel, an
evidentiary hearing was not required.” (Id. (“[T]rial courts should grant evidentiary hearings only
if the defendant has presented a prima facie claim of ineffective assistance under both prongs of
the Strickland/Fritz test … In this case, we agree with Judge Pursel that defendant failed to
establish a prima case of ineffective assistance of counsel”) (citing State v. O’Donnell, 435 N.J.
Super. 351, 369-70 (App. Div. 2014)).)
The N.J. Supreme Court denied a petition for certification. (ECF No. 1-4 at 20.)
On habeas, petitioners cannot obtain relief for any errors in state law evidentiary rulings,
unless they rise to the level of a Due Process Clause deprivation. Estelle, 502 U.S. at 70. It is not
the province of a federal habeas court to reexamine state-court determinations on state-law
questions. Nor do federal courts’ habeas powers permit reversal of convictions based on a belief
that a trial judge incorrectly interpreted a state evidentiary rule. The only question for a habeas
court is “whether the [challenged evidentiary decision or instruction] by itself so infected the entire
trial that the resulting conviction violates Due Process.” Estelle, 502 U.S. at 72.
Here, Petitioner has not shown that any state court decision rejecting an evidentiary hearing
for his IAC claims denied him rights guaranteed by the Due Process Clause. As explained at length
above in this Opinion, Petitioner has never alleged any facts that, if proved, would entitle him to
relief on any IAC grounds set forth in his PCR petition or his habeas Petition. Thus, an evidentiary
hearing was and is not necessary to establish the truth of any allegations pertinent to his IAC
claims’ disposition. Petitioner having failed to make the threshold proffer necessary for IAC, there

35

was no state law error that could have risen to the level of Due Process Clause deprivation. Thus,
his Petition’s request for a new trial on this basis does not merit further written discussion. There
was and is no basis for an evidentiary hearing on IAC. 10
Accordingly, Ground Eight of the Petition is denied. See Zettlemoyer v. Fulcomer, 923
F.2d 284, 298 n.2 (3d Cir. 1991) (petitioner not entitled to evidentiary hearing based on “bald
assertions and conclusory allegations”); Mayberry v. Petsock, 821 F.2d 179 (3d Cir.), cert. denied,
315 484 U.S. 946 (1987).
V.

CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken from a final order in a proceeding under 28 U.S.C. §
2254. A certificate of appealability may issue “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. 2253(c)(2). “A petitioner satisfies this standard
by demonstrating that jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Here, Petitioner has failed to make a substantial showing of the denial of a constitutional
right. Thus, no certificate of appealability shall issue.

10

Furthermore, failure to hold an evidentiary hearing on PCR review -- as a stand-alone claim -is itself not a cognizable claim in federal habeas. Petitioner has no federal right to an evidentiary
hearing or other relief denied by a state PCR court, as infirmities in a state PCR proceeding do not
raise constitutional questions in a federal habeas action. See Hassine v. Zimmerman, 160 F.3d 941,
954 (3d Cir. 1998) (“what occurred in the petitioner’s collateral proceeding does not enter into the
habeas calculation”). Since errors in Petitioner’s state PCR proceedings, even if presumed present,
were collateral to his conviction and sentence, they could not give rise to a claim for federal habeas
relief.
36

VI.

CONCLUSION
For the above reasons, the § 2254 habeas petition is DENIED, and Petitioner is DENIED

a certificate of appealability. An appropriate Order follows.

Date: February 1, 2019

/s/Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
United States District Judge

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