GRABOWSKI v. NOGAN et al
Filing
9
MEMORANDUM OPINION filed. Signed by Judge Brian R. Martinotti on 1/16/2019. (mps)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CLIFFORD GRABOWSKI,
Petitioner,
v.
PATRICK NOGAN, et al.,
Respondents.
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Civil Action No.: 16-3349-BRM
MEMORANDUM OPINION
M ARTINOTTI, DISTRICT JUDGE
Before this Court is a Petition for a Writ of Habeas Corpus (ECF No. 1), pursuant to 28
U.S.C. § 2254, brought by pro se Petitioner Clifford Grabowski (“Petitioner”), challenging a
conviction by the State of New Jersey for aggravated manslaughter and driving while impaired.
The State filed an Answer addressing the merits of Petitioner’s claims (ECF No. 8), and Petitioner
did not file a reply. For the reasons stated below, the Petition is DENIED.
The Petition essentially raises two claims. First, Petitioner asserts he received an excessive
sentence due to trial counsel’s ineffective assistance at sentencing, even though he received a
sentence bargained for pursuant to a plea agreement. The state court, in addition to addressing the
merits, ruled the claim procedurally barred by N.J. Ct. R. 3:22-4, because “defendant argues his
sentence was excessive, not that it was illegal. PCR will not be granted on excessive sentence
grounds.” (ECF No. 1-5 at 9.) “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)). New Jersey courts routinely bar excessive sentence
claims based on ineffective assistance of counsel. See State v. Osorio, Indictment No. 96-10-1550,
2016 WL 4527593, at *3 (N.J. Sup. Ct. App. Div. Aug. 30, 2016); State v. Wagner, Indictme nt
No. 10-07-1737, 2015 WL 3886403, at *2-3 (N.J. Sup. Ct. App. Div. June 25, 2015); State v.
Pessoa, Accusation No. 10-06-1204, 2014 WL 2117994, at *1 (N.J. Sup. Ct. App. Div. May 22,
2014); see also State v. Acevedo, 205 N.J. 40, 46 (2011) (“[M]ere excessiveness of sentence
otherwise within authorized limits, as distinct from illegality by reason of being beyond or not in
accordance with legal authorization, is not an appropriate ground for post-conviction relief and
can only be raised on direct appeal from the conviction.” (citation omitted)); State v. Evans,
Indictment No. 09-07-1249, 2017 WL 1208005, at *5 (N.J. Sup. Ct. App. Div. Apr. 3, 2017)
(“[W]e caution defendants not to cloak displeasure with a sentence as an ineffective assistance of
counsel claim. If a defendant believes his sentencing is excessive, direct appeal is the appropriate
avenue for relief.”). Although the state court also reached the merits of this claim, “a state
procedural bar may count as an adequate and independent ground for denying a federal habeas
petition even if the state court had discretion to reach the merits despite the default.” Johnson v.
Lee, 136 S. Ct. 1802, 1806 (2016) (citation omitted). As such, relief on this claim is denied. 1
Petitioner’s second claim is based on his allegation that “[t]rial counsel’s inadequate
assistance caused non acceptance to original plea offer of Reckless Manslaughter offered by the
State.” (ECF No. 1-2 at 6.) This claim was not addressed by the state court, likely because
“[a]ssigned counsel then filed an amended petition.” (ECF No. 1-5 at 5.) Nevertheless, the Court
construes the Petition as raising a claim under Martinez v. Ryan, 132 S. Ct. 1309 (2012), and
1
Although the Court does not reach the merits of Petitioner’s claim, the state court’s decision on
the merits was certainly a reasonable application of established federal law, based on a reasonable
determination of the facts.
2
attributes the lack of exhaustion of this claim in state court on PCR counsel’s apparent failure to
raise it. 2 Regardless, Petitioner’s claim makes little sense, since attorneys do not accept or reject
plea agreements; defendants do. Boyd v. Waymart, 579 F.3d 330, 351 (3d Cir. 2009) (“Because
there are weighty consequences at stake, the decision whether to plead guilty is an intensely
personal one that may be made only by the defendant.”).
To the extent Petitioner argues that counsel’s ineffective assistance led him to reject the
original plea,
a defendant must show that but for the ineffective advice of counsel there is a
reasonable probability that the plea offer would have been presented to the court . .
. , that the court would have accepted its terms, and that the conviction or sentence,
or both, under the offer’s terms would have been less severe than under the
judgment and sentence that in fact were imposed.
Lafler v. Cooper, 132 S. Ct. 1376, 1386 (2012). However, the only factual allegation regarding the
original plea asserted by Petitioner is that “prior to consideration and acceptance of the plea for
reasons unclear, that plea offer was rescinded by the state.” (ECF No. 1-2 at 4.) As such, Petitioner
asserts none of the elements required for a Lafler claim—there is no allegation that the origina l
plea offer was for less than the ten-year imprisonment he ultimately received, and no allegatio n
that had the offer been accepted, the trial court would have accepted it. Indeed, based on his single
factual allegation, it is not even clear that there was an offer he could accept and present to the trial
court; Petitioner does not allege that he rejected the original plea, but only that the State withdrew
the offer for reasons unknown. How or why counsel should be blamed for the State withdrawing
the offer is not explained by Petitioner. Without more, Petitioner’s claim is vague, conclusory, and
not entitled to relief. Anderson v. Pa. Att’y Gen., 82 F. App’x 745, 749 (3d Cir. 2003) (“[V]ague
2
Martinez held that in states, as it is in New Jersey, where ineffective trial counsel claims can only
be brought on PCR, failure to raise an ineffective trial counsel claim on PCR is good cause to
excuse the failure to exhaust. 132 S. Ct. at 1318.
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and conclusory grounds for habeas relief are subject to summary dismissal[.]” (citing United States
v. Thomas, 221 F.3d 430, 438 (3d Cir. 2000)); see United States v. McClellan, No. 16-2943, 2017
WL 2822315, at *1 (3d Cir. Jan. 3, 2017) (“[Habeas petitioner] cannot meet his burden of proving
ineffective assistance of counsel based on vague and conclusory allegations[.]” (internal quotations
and citation omitted)). Accordingly, relief on this claim is denied. Having denied all claims, the
Petition is denied. 3
Lastly, the Court denies a 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.
Date: January 16, 2019
/s/ Brian R. Martinotti___________
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE
3
Petitioner also raises a cumulative-error claim. Because the Court finds no error in the
aforementioned claims, there can be no cumulative error. See United States v. Herrera-Genao, 419
F. App’x 288, 296 (3d Cir. 2011) (“Herrera-Genao complains only of the cumulative effect of the
preceding claims; because we have found no error regarding those claims, Herrera-Genao's claim
of cumulative error also fails.”).
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