KLAH v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY et al

Filing 61

OPINION filed. Signed by Judge Peter G. Sheridan on 9/23/2020. (jem)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PETER KLAH,
Petitioner,

:

Civ. No. 16-879 1 (PGS)

:

OPINION

V.

ATTORNEY GENERAL STATE OF
NEW JERSEY, et a!.,
Respondents.

PETER G. SHERIDAN, U.S.D.J.
I.

INTRODUCTION
Petitioner Peter Klah (“Petitioner” or “Klah”) is a state prisoner proceeding pro se with a

second amended petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. (See ECF 42).

For the following reasons, the second amended habeas petition is denied and a certificate of
appealability shall not issue.
II.

FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the New Jersey Superior Court, Appellate

Division’s opinion on Petitioner’s direct appeal.
Trenton Police Detective Matthew Przemieniecki and his partner,
Officer Joseph D’Ambrosio, were driving an unmarked police
patrol car near the intersection of Monmouth and Clinton Streets in
Trenton on October 24, 2006, at 11:09 p.m., when Przemieniecki
heard a gunshot and saw the muzzle flash of a gun being fired by
defendant Peter Klah. According to Przemieniecki, after hearing
the gunshot and turning his head to the right in the direction of the
gunshot sound, he put his car in reverse to turn down Monmouth
street. He then had an unobstructed view as he watched defendant
fire a handgun at a man running down the sidewalk, who was later
identified as the victim, Charles Bennett. Przemieniecki then
observed defendant enter a silver Buick. Przemieniecki radioed
surrounding units and headquarters, relaying what he had

witnessed and indicating that the shooter was traveling down
Monmouth Street in a silver Buick. A marked police car, driven by
Officer Samuel Gonzalez, pulled into the intersection of Walnut
and Monmouth Streets to cut off the silver Buick’s path.
Upon exiting his vehicle, Przemieniecki approached the driver’s
side of the silver Buick with his weapon drawn; his partner
approached the passenger side. According to Przemieniecki, he
“approach[ed] the vehicle[,] opened the driver-side door and
removed the driver Chad Dillard from the vehicle.” At the
suppression hearing, Przemieniecki related the events that
followed.
...

Q: Were you able to get the occupants out?
A: Yes....
Q: And were both occupants asked out of the—
removed from the vehicle at that point?
A: They were.
Q: Now, initially when the occupants were removed
from the vehicle, were they patted down for your
safety?
A: Absolutely.
Q: Were any weapons located on Dillard at that
point?
A:No...
Q: After the occupants were removed from the
vehicle,
were the doors left open or closed?
A: They were left open....
Q: What did you do next?
A: Once both occupants were secured, they were
put into police vehicles, made sure the car was
secured and [I] basically just stood by to make sure
everything was the whole scene was secured....
Q: After those two individuals were secured, did
you have occasion to look in the interior of the
vehicle?
A: Yes, we did.
Q: And particularly why did you look in the
vehicle?
A: Again, because we just saw an individual enter
that same vehicle that just got done firing a handgun
...,

...

...

so—

Q: And no weapons were found on the occupants as
you got them out?
A: Absolutely....

2

Q: When you looked in the vehicle, what if
anything did you see?
A: Saw a clear bag.
Q: And based on your training and experience, what
did the bag look to have or contain
A: It looked to contain suspected CDS marijuana....
Q: In addition to the CDS, Detective, did you
observe any other contraband in the vehicle at that
time?
A: Yes.
Q: And what did you observe?
A: Handle of what appeared to be a handgun.
...

Przemieniecki did not touch or seize either item of contraband, and
a search warrant for the car was subsequently obtained. Detective
Thomas Ertel, an employee of the Trenton Police Department
Crime Scene Unit, responded to the scene of the shooting,
photographed the scene and removed the handgun and marijuana
from the car. Additionally, Detective Mark Berkeyheiser, also
from the Trenton Police Department Crime Scene Unit, recovered
four shell casings from the sidewalk in the area where
Przemieniecki had observed defendant standing.
Officer Douglas Moreland heard the radio call about shots being
fired and headed to the area to determine if anyone had been
struck. He observed a female screaming and pointing to a black
male, later identified as Charles Bennett, lying face down in the
street. Bennett was dead.
Dr. Raafat Ahmad, the Mercer County medical examiner,
performed an autopsy on the victim’s body and found the victim
had been shot four times. At trial, Dr. Ahmad testified that the
cause of death was perforating gunshot wounds to the heart and
lungs. She opined that the manner of death was “homicide.”
The handgun retrieved from the vehicle, the spent shell casings,
and the bullet recovered from the victim’s body were forwarded to
the New Jersey State Police Laboratory. Detective James Ryan, a
firearms expert employed as a supervisor in the New Jersey State
Police ballistics unit opined that the bullet and shell casings
recovered from the crime scene were fired from the weapon found
in the vehicle.
At the hearing on the motion to suppress, defendant argued that the
contraband was not in plain view; he also challenged the
constitutionality of his seizure on the grounds that the police
3

lacked probable cause to stop him. Judge Kelly denied the motion,
concluding:
I just don’t find there’s any justification for me to
find that there was a violation of constitutional
rights here by the stop and seizure of these two
parties under the totality of these circumstances
here [there was] a particularized suspicion that at
least when you see somebody shooting a handgun in
the middle of the street after 11 o’clock at night in
the City of Trenton, at someone who was running
down the street, there’s enough there in my opinion
to justify that stop.
...

...

State v. Klah, No. A-1271-10T3, 2012 WL 2427809, at *12 (N.J. Super. Ct. App. Div. June 28,
2012). Petitioner was found guilty of first-degree murder, second-degree possession of a weapon
for an unlawful purpose, third-degree theft by receiving stolen property and third-degree
possession of a controlled substance with intent to distribute on or near school property.
After appropriate mergers, the trial judge sentenced defendant on
the murder charge to an aggregate minimum term of seventy-five
years’ imprisonment, subject to an eighty-five percent minimum
period of parole ineligibility pursuant to the No Early Release Act
(NERA), N.J.S.A. 2C:43—7.2. The sentences on the other
convictions were to run concurrent to the sentence imposed on the
murder conviction.

Klah, 2012 WL 2427809, at *1.
The New Jersey Superior Court, Appellate Division affirmed the judgment of conviction
on direct appeal. See Id. The New Jersey Supreme Court denied certification on Petitioner’s
direct appeal. See State v. Klah, 65 A.3d 834 (N.J. 2013).
On December 27, 2013, Petitioner filed a post-conviction relief
(“PCR”) petition in the Law Division raising several ineffective
assistance of trial counsel claims. (ECF No. I ¶ 1 l(a)(3)-(5)). The
PCR court denied the petition without an evidentiary hearing on
June 30, 2014. (ECF No. 1 ¶J 1 1(a)(7)-(8)). The Appellate
Division affirmed, State v. Klah, No. A-5844-13, 2016 WL
1418315 (N.J. Super. Ct. App. Div. Apr. 12, 2016), and the New
Jersey Supreme Court denied certification on September 23, 2016,
State v. Klah, 151 A.3d 969 (N.J. 2016).
4

Petitioner submitted his § 2254 to this Court on November 24,
2016. (ECF No. 1). He indicated in his petition that he mailed a
second PCR petition to the Law Division on November 23, 2016.
(ECF No. ¶ 15). Petitioner filed an Amended Petition on December
16, 2016. (ECF No. 3). The Court ordered an answer or a motion
to dismiss based on timeliness from Respondent on January 25,
2017. (ECF No. 6). Respondents filed their answer on June 12,
2017. (ECF No. 12).

Klah v. Attorney Gen. ofNew Jersey, No. 16-8791, 2018 WL 3105427, at *1 (D.N.J. June 25,
2018). Thereafter, Petitioner moved for a stay and abeyance of this action so he could pursue a
second PCR petition which was granted. See id. at *23.
In March, 2019, Petitioner filed a second amended habeas petition (see ECF 42). The
second amended habeas petition raises the following claims:
1. Petitioner’s motion to suppress was improperly denied because Detective
Przemieniecki’s testimony was a pretextual fiction designed to conceal an unlawful
warrantless search of the vehicle (“Claim I”).
2. The trial court erred in charging the jury on flight (“Claim II”).
3. Comments made by the prosecutor during his opening statement prejudiced Petitioner’s
right to a fair trial (“Claim III”).
4. Dr. Ahmed’s testimony that the cause of death was homicide was plain error (“Claim IV”).
5. Petitioner’s seventy-five year sentence was manifestly excessive (“Claim V”).
6. Trial court error in admitting crime scene evidence (“Claim VI”).
7. Ineffective assistance of counsel in failing to call witnesses who would have challenged
the state’s theory of the case (“Claim VII”).
8. Ineffective assistance of counsel in failing to retain a ballistics expert (“Claim VIII”).

5

9. Ineffective assistance of counsel in failing to move to sever or object to evidence and
appellate counsel’s ineffectiveness for not raising this claim on appeal (“Claim IX”).
10. Ineffective assistance of counsel in failing to object to the opening and closing statements
of the prosecutor and appellate counsel’s ineffectiveness for not addressing the state’s
vouching for the police officer witness in closing argument (“Claim X”).
11. Reserving the right to raise additional issues (“Claim XI”).
12. Cumulative error deprived Petitioner of his due process and fair trial rights (“Claim XII”).
In May, 2019, the stay was lifted. (See ECF 44). Respondents filed a response to the second
amended habeas petition in September, 2019. (See ECF 51). Thereafter, Petitioner filed a reply in
support of his second amended habeas petition. (See ECF 55-2).
III.

LEGAL STANDARD
A writ of habeas corpus for a person in custody under judgment of a state court can be

granted only for violations of the Constitution, laws or treaties of the United States. See Engle v.

Isaac, 456 U.S. 107, 119 (1982); see also Mason v. Myers, 208 F.3d 414, 415 n.1 (3d Cir. 2000)
(citing 28 U.S.C.

§ 2254). Because Petitioner filed his petition for writ of habeas corpus after

April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L.
104—132, 110 Stat. 1214 (Apr. 24, 1996), applies. See Lindh v. Murphy, 521 U.S. 320, 326
(1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the
merits in state court proceedings unless the state court’s 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 state court. See 28 U.S.C.

§ 2254(d).

6

As a threshold matter, a court must “first decide what constitutes ‘clearly established
Federal law, as determined by the Supreme Court of the United States.” Lockyer v. Andrade,
538 U.S. 63, 71(2003) (quoting 28 U.S.C.
under

§ 2254(d)(1)). “[Cjlearly established federal law’

§ 2254(d)(l) is the governing legal principle set forth by the Supreme Court at the time the

state court renders its decision.” Id. (citations omitted). Having identified the governing principle
of federal law, a habeas court must also ask whether the state court’s application of clearly
established federal law was “objectively unreasonable.” See Williams v. Taylor, 529 U.S. 362,
409 (2000). Thus, “a federal court may not issue a writ simply because the court concludes in its
independent judgment that the relevant state court decision applied clearly established federal
law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411.
The AEDPA standard under

§ 2254(d) is a “difficult” one to meet; it is a “highly

deferential standard for evaluating state-court rulings, which demands that state-court decisions
be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). Review under

§ 2254(d)(1) “is limited to the record that was before the state court that adjudicated the claim on
the merits.” Id.
In applying AEDPA’s standards, the relevant state court decision that is appropriate for
federal habeas corpus review is the last reasoned state court decision. See Bond v. Beard, 539
F.3d 256, 289—90 (3d Cir. 2008). “Where there has been one reasoned state judgment rejecting a
federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest
upon the same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); see also Wilson v.
Sellers, 138 S. Ct. 1188, 1192 (2018) (federal courts should “look through” later unexplained
state court orders to find the last related state court decision that does provide a relevant
rationale); Blystone v. Horn, 664 F.3d 397, 417 n.15 (3d Cir. 2011). Furthermore, though

7

AEDPA deference remains appropriate even as to summary state court rulings, “[wihen a federal
claim has been presented to a state court and the state court has denied relief, it may be presumed
that the state court adjudicated the claim on the merits in the absence of any indication or state
law procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011) (citing
Harris v. Reed, 489 U.S. 255, 265 (1989)).
DISCUSSION

IV.

A. Claim I

Petitioner asserts in Claim I that the trial court erred in denying his motion to suppress in
because the officer conducted an unlawful warrantless search of his vehicle. In Stone v. Powell,
428 U.S. 465 (1976), the United States Supreme Court held that, “where the State has provided
an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not
be granted federal habeas corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at trial.” Id. at 494. This bar applies whether
the claim is potentially meritorious or not. See Deputy v. Taylor, 19 F.3d 1485, 1491 (3d Cir.
1994).
Petitioner does not claim he has not had a full and fair opportunity to litigate this Fourth
Amendment claim. Indeed, he raised this claim in the trial court and on direct appeal where it
was rejected. See Klah, 2012 WL 2427809, at *35• Thus, he is not entitled to federal habeas
relief on his claim that the state court decided his motion to suppress in error pursuant to the
Stone bar.

In his reply brief Petitioner also alludes to the purported failure of the arresting officers to
read him his warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). (See ECF 55-2 at
13-14). At the outset, this Court notes that raising this claim for the first time in his reply brief as

8

opposed to Petitioner’s amended habeas petition is grounds enough to deny this claim. See
McNeilv. Johnson, No. 18-10003, 2019 WL 3805118, at *1 (D.N.J. Aug. 12, 2013) (collecting
cases and noting the impropriety of raising a habeas claim for the first time in a reply brief).
Furthermore, it appears to be unexhausted by Petitioner’s failure to raise it in state court. See,
e.g., O’Sullivan v. Boerckel, 526 U.S. 838, 847 (1999) (announcing the rule “requiring state
prisoners to file petitions for discretionary review when that review is part of the ordinary
appellate review procedure in the State”); see also 28 U.S.C.

§ 2254(c) (“An applicant shall not

be deemed to have exhausted the remedies available in the courts of the State, within the
meaning of this section, if he has the right under the law of the State to raise, by any available
procedure, the question presented.”). Nevertheless, this court can still deny an unexhausted
claim on the merits provided it is not “colorable.” See Carpenter v. Vaughn, 296 F.3d 138, 146
(3d Cir. 2002) (quoting Lambert v. Blackwell, 134 F.3d 506, 5 14—15 (3d Cir. 1997) (construing
28 U.S.C.

§ 2254(b)(2))); see also 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas

corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.”).
Petitioner asserts he “was never read his [Miranda] rights and as the officer stated, he
was not under arrest therefore, the State should have dismissed the case.” (ECF 55-2 at 13).
Petitioner claims then that the mere failure to read him his Miranda rights constitutes a
constitutional violation in and of itself, warranting dismissal of his criminal convictions.
However, the United States Supreme Court has noted:
Our cases also make clear the related point that a mere failure to
give Miranda warnings does not, by itself, violate a suspect’s
constitutional rights or even the Miranda rule. So much was
evident in many of our pre-Dickerson cases, and we have adhered
to this view since Dickerson. See Chavez 538 U.S., at 772—773,
123 5. Ct. 1994 (plurality opinion) (holding that a failure to read
9

Miranda warnings did not violate the respondent’s constitutional
rights); 538 U.S., at 789, 123 S. Ct. 1994 (Kennedy, J., concurring
in part and dissenting in part) (agreeing “that failure to give a
Miranda warning does not, without more, establish a completed
violation when the unwarned interrogation ensues”); Elstad, supra,
at 308, 105 S. Ct. 1285; Quarles, 467 U.S., at 654, 104 5. Ct.
2626; cf Chavez, supra, at 777—779, 123 S. Ct. 1994 (Souter, J.,
concurring in judgment). This, of course, follows from the nature
of the right protected by the Self—Incrimination Clause, which the
Miranda rule, in turn, protects. It is “a fundamental trial right.”
Withrow, 507 U.S., at 691, 113 S. Ct. 1745 (quoting United States
v. Verdugo—Urquidez, 494 U.S. 259, 264, 110 S. Ct. 1056, 108
L.Ed.2d 222 (1990)). See also Chavez, 538 U.S., at 766—768, 123

S. Ct. 1994 (plurality opinion); id., at 790, 123 5. Ct. 1994
(Kennedy, J., concurring in part and dissenting in part) (“The
identification of a Miranda violation and its consequences, then,
ought to be determined at trial”).
It follows that police do not violate a suspect’s constitutional rights
(or the Miranda rule) by negligent or even deliberate failures to
provide the suspect with the full panoply of warnings prescribed by
Miranda. Potential violations occur, if at all, only upon the
admission of unwarned statements into evidence at trial. And, at
that point, “[t]he exclusion of unwarned statements is a complete
and sufficient remedy” for any perceived Miranda violation.
Chavez, supra, at 790, 123 5. Ct. 1994
...

United States v. Patane, 542 U.S. 630, 641—42 (2004) (plurality opinion); see also Lee v. Emps.
of Union Twp. Mun. Court, No. 17-4229, 2018 WL 1535266, at *5 (D.N.J. Mar. 28, 2018)
(quoting Patane plurality opinion that failure to give Miranda warnings by itself does not violate
a suspect’s constitutional rights, much less the Miranda rule).
In this case, Petitioner’s Miranda claim is not related to the exclusion of unwarned
statements at trial. Instead, Petitioner seeks the dismissal of his criminal case in its entirety for
the officers’ purported failure to give Miranda warnings. As the plurality noted in Patane,
however, this purported failure, in and of itself, does not constitute a constitutional violation.
Thus, Petitioner fails to show that this Miranda claim is “colorable.”
Accordingly, for the foregoing reasons, Claim I is denied.
10

B. Claim II
Petitioner argues in Claim II that the trial court erred in charging the jury on flight. The
last reasoned decision on this claim was from the Appellate Division on Petitioner’s direct appeal
which analyzed this claim as follows:
Evidence of flight is generally admissible because it tends to
demonstrate a consciousness of guilt and is regarded as probative
of guilt. State v. Mann, 132 N.J. 410, 418 (1993). A mere departure
from the area does not, however, imply guilt. State v. Sullivan, 43
N.J. 209, 238 (1964). For a departure to constitute flight, “there
must be circumstances present and unexplained which, in
conjunction with the leaving, reasonably justify an inference that it
was done with a consciousness of guilt and pursuant to an effort to
avoid an accusation based on that guilt Id at 238—39. A jury
may find that a defendant fled the scene of a crime by finding that
he or she left intending to avoid apprehension for that crime. State
v. Wilson, 57 N.J. 39, 49 (1970). The propriety of admitting
evidence of flight and charging the jury on flight depends on
.“

the degree of confidence with which four inferences
can be drawn: (1) from the defendant’s behavior to
flight; (2) from flight to consciousness of guilt; (3)
from consciousness of guilt to consciousness of
guilt concerning the crime charged; and (4) from
consciousness of guilt concerning the crime charged
to actual guilt of the crime charged.
[State v. Latney, 415 N.J. Super. 169, 176 (App. Div.2010).]
In Latney, we concluded that the trial court erroneously charged
the jury on flight because there was no evidence that the
defendant’s flight resulted from consciousness of guilt for the
crime charged as opposed to consciousness of guilt for another
crime previously committed. Id. at 176—77.
The facts in the record show that defendant left the scene and did
not respond when the detective activated his overhead lights. He
did not stop while Przemieniecki pursued him en route until
another patrol car cut it off.
We are satisfied that the charge was not erroneous. Although the
issue of flight was contested, ultimately, the jury could make a
finding as to the nature of defendant’s conduct.
11

K/a/i, 2012 WL 2427809, at *5•

Habeas review ofjury instructions is limited to those instances where the instructions
violated a defendant’s due process rights. See Echols v. Ricci, 492 F. App’x 301, 312 (3d Cir.
2012) (citing Estelle v. McGuire, 502 U.S. 62, 7 1—72 (1991) (holding that “[tihe only question
for us is whether the ailing instruction by itself so infected the entire trial that the resulting
conviction violates due process”)); see also Middleton v. McNeil, 541 U.S. 433, 437 (2004)
(same). Furthermore, “a single instruction to a jury may not be judged in artificial isolation, but
must be viewed in the context of the overall charge.” Duncan v. Morton, 256 F.3d 189, 203 (3d
Cir. 2001) (quoting Cupp v. Naughten, 414 U.S. 141, 146-47 (1973)).
The Appellate Division’s denial of this claim was not an unreasonable application of or
contrary to clearly established federal law. The flight charge did not so infect the trial that
Petitioner’s convictions violated due process considering the facts in the record. By way of
example only as explained by the Appellate Division, Petitioner’s vehicle did not stop initially
when Detective Przemieniecki activated his emergency lights in pursuit after seeing Petitioner
shoot the victim. (See ECF 12-5 at 32-3 3). Accordingly, Claim II is denied.
C. Claim III
In Claim III, Petitioner asserts that the prosecutor’s comments during his opening
statement violated his right to a fair trial. Petitioner takes issue with the following comments that
began the prosecutor’s opening statement:
On October
2006, shortly after eleven p.m., Charles Bennett
was drawing his final breath. His teeth were smashed because he
fell face forward onto the sidewalk. His life boomed through the
holes in his chest. The person who put those holes in his chest sits
before you today, this man right here, Peter Klah.
(ECF 12-5 at 19).
12

The last reasoned decision on this claim was from the Appellate Division during
Petitioner’s direct appeal which analyzed this claim as follows:
Prosecutors are tasked with striking a “balance between promoting
justice and achieving a conviction.” State v. Williams, 113 N.J.
393, 447 (1988). Opening remarks geared solely at eliciting an
emotional response from the jury are inappropriate because they
tend to shift the focus away from the evidence, thereby producing a
result fueled by the jurors’ emotions rather than an independent
review of the State’s evidence. Black, supra, 380 N.J. Super. at
594—95 (finding a prosecutor’s summation that discussed how
medical examiners had to remove the organs from a child’s body to
determine the cause of death to be inappropriate because it was
intended to appeal to the jurors’ emotions). The Court has
recognized that “criminal trials are emotionally charged
proceedings. A prosecutor is not expected to conduct himself in a
manner appropriate to a lecture hail. He is entitled to be forceful
and graphic in his summation to the jury, so long as he confines
himself to fair comments on the evidence presented.” State v.
Frost, 158 N.J. 76, 83 (1999) (citation omitted).
The prosecutor’s language was evidently designed to create a vivid
mental image of the events that took place on October 24, 2006,
but it did not mischaracterize the evidence. Cf Frost, supra, 158
N.J. at 85. On the contrary, the prosecutor’s opening remarks were
consistent with evidence introduced during the trial. Even if these
remarks overstated the prosecution’s case, we conclude that the
remarks were incapable of producing an unjust result. Cf Atwater,
supra, 400 N.J. Super. at 337.
Klah, 2012 WL 2427809, at *6 (footnote omitted).

A criminal defendant’s due process rights are violated if prosecutorial misconduct renders
a trial fundamentally unfair. See Darden v. Waingright, 477 U.S. 168, 182—83 (1986). A habeas
petition will be granted for prosecutorial misconduct only when the misconduct “so infected the
trial with unfairness as to make the resulting conviction a denial of due process.” Id. at 181
(internal quotation marks and citation omitted). A prosecutorial misconduct claim is examined in
“light of the record as a whole” in order to determine whether the conduct “had a substantial and
injurious effect or influence” on the jury’s verdict. See Brechi v. Abrahamson, 507 U.S. 619, 638,
13

(1993). A “reviewing court must examine the prosecutor’s offensive actions in context and in
light of the entire trial, assessing the severity of the conduct, the effect of the curative
instructions, and the quantum of evidence against the defendant.” Moore v. Morton, 255 F.3d 95,
107 (3d Cir. 2001).
Respondents assert that “[tjhis claim was never brought before any state court.” (ECF 51
at 13). Thus, according to Respondents, this claim is unexhausted and the second amended
habeas petition should be dismissed as a “mixed” petition. (See id. at 13-14).
Respondents’ argument is factually incorrect. Petitioner raised this claim during his direct
appeal proceedings to the Appellate Division which denied the claim on the merits as indicated
above. Furthermore, Petitioner raised all his claims that he raised to the Appellate Division to the
New Jersey Supreme Court. (See ECF 12-15 at 5). The New Jersey Supreme Court denied the
petition for certification without comment. See Klah, 65 A.3d 834. Thus, Claim III is deemed
exhausted. See Riddick v. Edmiston, 894 F.2d 586, 589 (3d Cir. 1990); see also Williams v.

Hendricks, No. 00-4795, 2009 WL 2169230, at *4 (D.N.J. July 21, 2009) (noting where
Appellate Division denied claim as being without merit and New Jersey Supreme Court denied
certification, claim would be considered exhausted). Accordingly, this Court will apply AEDPA
deference in analyzing the Appellate Division’s denial of this claim as it is deemed exhausted.
The Appellate Division’s denial of this claim was not contrary to or an unreasonable
application of clearly established federal law. Indeed, as noted by the Appellate Division, the
prosecutor’s comments were based on evidence that was submitted at trial. For example, the
medical expert, Dr. Ahmad, testified that the victim had bullet holes in the back of his body

-

four entrance wounds and three exit wounds with one protruding bullet. (See ECF 12-6 at 49).
Dr. Ahmad also testified that the victim’s damage to his mouth was consistent with him falling

14

face down onto the concreate or sidewalk. (See Id. at 54). Accordingly, the challenged language
by the prosecutor during his opening statement was backed up by evidence produced at trial such
that the statements did not so infect the trial with unfairness to violate Petitioner’s due process
rights.
Additionally, it is worth noting that the jury was instructed as follows:
Regardless of what counsel said or I may have said recalling the
evidence in this case, it is your recollection of the evidence that
should guide you as judges of the facts. Arguments, statements,
remarks, openings and summations of counsel are not evidence and
must not be treated as evidence. Although the attorneys may point
out what they think is important in this case, you must rely solely
upon your understanding and recollection of the evidence that was
admitted during the trial.
(ECF 12-7 at 40) (emphasis added). The jury is presumed to have followed these instructions.
See Weeks v. Angelone, 528 U.S. 225, 234 (2000).

Accordingly, given the evidence produced at trial, coupled with the trial judge’s
instructions about counsel’s statements not being evidence, the denial of this prosecutorial
misconduct claim was not an unreasonable application nor contrary to clearly established federal
law. Thus, Claim III is denied.
D. Claim IV
Petitioner argues in Claim IV that Dr. Ahmad’s testimony that the cause of death was
homicide was irrelevant and prejudicial. The last reasoned decision on this claim was from the
Appellate Division during Petitioner’s direct appeal which analyzed this claim as follows:’
We reach the same result regarding defendant’s argument that his
right to a fair trial was prejudiced by the medical examiner’s
Respondents once again argue Claim IV is unexhausted because it was never raised in the state
courts. (See ECF 51 at 14-15). However, for similar reasons as discussed in Claim III, this claim
is exhausted as Petitioner raised it on direct appeal to the Appellate Division which denied it on
the merits as well as to the New Jersey Supreme Court in Petitioner’s request for certification to
the New Jersey Supreme Court.
15

testimony that the cause of death was homicide. Defendant did not
object to the medical examiner’s testimony; therefore, his argument
on appeal must be viewed utilizing the plain error standard. State v.
Baluch, 341 N.J. Super. 141, 184—85 (App. Div.), certf denied,
170 N.J. 89 (2001).
In Baluch, in response to an argument identical to that which
defendant advances here, we concluded that the medical
examiner’s testimony that the cause of death was homicide “was
the functional equivalent of ruling out the possibility that [the
victim’s] multiple injuries were self-inflicted or sustained as a mere
result of inadvertence (i.e., accident).” Id. at 185. We explained
that the testimony “was neither the expression of a forbidden lay
opinion unnecessary to the determination of a fact in issue within
the ken of an average juror, nor a prohibited direct opinion that
defendant was guilty of any form of homicide. Rather, it was a
legitimate expert opinion that the instrumentality and manner of
[the victim’s] death were a human agency [and] another
human being.” Ibid.
...

...

This is not an instance in which the medical examiner expressed a
direct opinion as to defendant’s guilt. Here, the medical examiner
did not testify that defendant murdered or recklessly caused the
death of the victim. Instead, the medical examiner’s testimony
supported a finding that the victim’s death was caused by another
human being, by excluding all other possible causes of death, such
as natural causes or self-inflicted wounds. See State v. Odom, 116
N.J. 65,77(1989). Cf State v. Jamerson, 153 N.J. 318, 337—41
(1998) (finding testimony that a death was “homicide” to be
inappropriate and restricting a forensic pathologist’s testimony to
the subject of mechanics of death).
Moreover, any error arising from Dr. Ahmad’s testimony was
harmless. Even if the medical examiner’s testimony were excluded
the evidence was unrefuted that the victim died of four gunshot
wounds, which a police officer observed defendant inflicted on the
victim.
Klah, 2012 WL 2427809, at *67.

It is well-established that the violation of a right created by state law is not cognizable as
a basis for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67—68 (1991) (“We have
stated many times that ‘federal habeas corpus relief does not lie for errors of state law.”)

16

(quoting Lewis v. Jeffers, 497 U.S. 764, 680 (1990)). Thus, a petitioner cannot obtain relief for
any purported errors in the state law evidentiary rulings at his criminal trial, unless they rise to
the level of a deprivation of due process. See Estelle, 502 U.S. at 70 (“[Tjhe Due Process Clause
guarantees fundamental elements of fairness in a criminal trial.”) (quoting Spencer v. Texas, 385
U.S. 554, 563—64, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967)). For a petitioner to prevail on a claim
that an evidentiary error amounted to a deprivation of due process, he must show that the error
was so pervasive as to have denied him a fundamentally fair trial. See Keller v. Larkins, 251 F.3d
408, 413 (3d Cir. 2001) (holding that admission of evidence may violate due process where the
evidence is so inflammatory as to “undermine the fundamental fairness of the entire trial”); see
also Cox v. Warren, No. 11—7132,2013 WL 6022520,

*

(D.N.J. Nov.13, 2013). Additionally, a

petitioner is not be entitled to federal habeas relief for any admission of testimony that is
considered harmless. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (alleged errors which
do not have a “substantial and injurious effect or influence in determining the jury’s verdict” are
considered harmless and do not warrant federal habeas relief).
The Appellate Division’s denial of this claim was not contrary to or an unreasonable
application of clearly established federal law. Dr. Ahmad’ s testimony did not rise to the level to
deprive Petitioner of his due process rights for the reasons given by the Appellate Division.
Furthermore, its harmless error finding was not contrary to or an unreasonable application of
clearly established federal law given the testimony produced against Petitioner at trial that
implicated him in the crime, which included eyewitness testimony as well as ballistic evidence.
Accordingly, Claim IV is denied.

17

E. Claim V
In Claim V, Petitioner asserts that his seventy-five-year sentence for murder was
manifestly excessive and that the trial court misapplied its sentencing discretion. The last
reasoned decision on this claim was from the Appellate Division on Petitioner’s direct appeal
which analyzed this claim as follows:2
Defendant argues that his sentence is excessive and represents a
clear misapplication of the trial court’s sentencing discretion
because the court did not “place on the record a qualitative analysis
of its reasons why the aggravating factors present merited the
imposition of the extra-minimum sentence.”
Criminal sentences are subject to limited appellate review. State v.
Cassady, 198 N.J. 165, 180 (2009). Despite this limited review,
“appellate courts are expected to exercise a vigorous and close
review for abuses of discretion by the trial courts[.]” Ibid.
(quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). In reviewing
a defendant’s sentence, we may not substitute our own judgment
for that of the trial court. Cassady, supra, 198 N.J. at 180. We must
assess the trial judge’s application of aggravating and mitigating
factors to determine whether it is based on substantial credible
evidence in the record. State v. Bieniek, 200 N.J. 601, 608 (2010).
We will modify a sentence “when the application of the facts to the
law is such a clear error ofjudgment that it shocks the judicial
conscience.” State v. Roth, 95 N.J. 334, 364 (1984).
In sentencing defendant, Judge Billmeier applied the following
factors: the nature and circumstances of the offense, N.J.S.A.
2C:44—la(1); the risk that defendant would commit another
offense; N.J.S.A. 2C:44—la(3); the extent of defendant’s prior
criminal record, N.J.S.A. 2C:44—la(6); and the need to deter him
and others from violating the law, N.J.S.A. 2C:44—la(9). He found
no mitigating factors. He then sentenced defendant to seventy-five
years’ imprisonment for first-degree murder.
Judge Billmeier’s findings regarding the aggravating and
mitigating factors are supported by substantial credible evidence in
the record. Judge Billmeier recited, on the record, defendant’s
criminal history, which included charges filed against defendant on
2

As with Claims III and IV, Respondents mistakenly argue that this claim is unexhausted
because Petitioner never raised it in the state courts. (See ECF 51 at 16-17). This argument with
respect to Claim V is also factually inaccurate.
18

twenty-six occasions, resulting in eight municipal court
convictions, two New Jersey Superior Court convictions, one
North Carolina misdemeanor, and five Pennsylvania convictions,
four of which were misdemeanors. For these various infractions,
defendant received fines, the loss of his driver’s license, probation
or confinement in county jail. The judge’s conclusion that
aggravating factors (1) and (3) were present is supported by
substantial credible evidence. Judge Billmeier’s conclusion that
aggravating factor (9) applied is likewise supported by substantial
credible evidence. The judge found that defendant “led a life
where you constantly disregard the rules and laws of our society.”
The judge’s finding of no mitigating factors is also supported by
the record. While defendant does have a daughter, the judge
concluded defendant was not her sole caregiver and, noted that he
had a substantial arrearage in child support payments.
The seventy-five year sentence is within the statutorily permitted
range for first-degree murder. N.J.S.A. 2C:l 1—3b(l). The sentence
imposed does not shock the judicial conscience.
Klah, 2012 WL 2427809, at *7_8.

As a court in this District has aptly noted:
“A federal court’s ability to review state sentences is limited to
challenges based upon proscribed federal grounds such as being
cruel and unusual, racially or ethnically motivated, or enhanced by
indigencies.” Merritt v. Bartkowski, No. 11—3756, 2013 WL
4588722, at *15 (D.N.J. Aug. 28, 2013) (quoting Grecco v.
O’Lone, 661 F. Supp. 408, 415 (D.N.J. 1987) (citation omitted)).
Thus, a challenge to a state court’s discretion at sentencing is not
reviewable in a federal habeas proceeding unless it violates a
separate federal constitutional limitation. See Pringle v. Court of
Common Pleas, 744 F.2d 297, 300 (3d Cir. 1984). See also 28
U.S.C. § 2254(a); Estelle, 502 U.S. at 62, 67.
Burns v. Warren, No. 13—1929, 2016 WL 1117946, at *43 (D.N.J. Mar. 22, 2016). With respect

showing that a sentence is cruel and unusual,
[tihe Supreme Court has explained that the “Eighth Amendment,
which forbids cruel and unusual punishments, contains a narrow
proportionality principle that applies to non-capital sentences.”
Ewingv. Cal(fornia, 538 U.S. 11,20, 123 5. Ct. 1179, 1185, 155
L.Ed.2d 108 (2003) (citations omitted). A court must consider
three proportionality factors when evaluating Eighth Amendment
19

challenges: (1) the gravity of the offense and the harshness of the
penalty; (2) the sentences imposed on other criminals in the same
jurisdiction; and (3) the sentences imposed for commission of the
same crime in other jurisdictions. Solem v. Helm, 463 U.S. 277,
290—92, 103 5. Ct. 3001, 3010, 77 L. Ed. 2d 637 (1983). In
conducting this analysis, a court grants substantial deference to
legislative decisions regarding punishments for crimes. United
States v. Rosenberg, 806 F.2d 1169, 1175 (3d Cir.1986);
Miknevich, 638 F.3d at 186 (“Generally, a sentence within the
limits imposed by statute is neither excessive nor cruel and unusual
under the Eighth Amendment because we accord substantial
deference to Congress, as it possesses broad authority to determine
the types and limits of punishments for crimes.”).
...

The first factor acts as a gateway prong to the proportionality
inquiry. The Eighth Amendment, after all, only forbids sentences
that are “grossly disproportionate” for a conviction for the crime
involved. If the defendant fails to demonstrate a gross imbalance
between the crime and the sentence, a court’s analysis of an Eighth
Amendment challenge is at an end. Successful proportionality
challenges in non-capital cases are “exceedingly rare.” Ewing, 538
U.S. at 21, 123 S. Ct. at 1185 (quoting Rummel v. Estelle, 445 U.S.
263, 272, 100 S. Ct. 1133, 1138, 63 L. Ed. 2d 382 (1980)).

United States v. Burnett, 773 F.3d 122, 136—37 (3d Cir. 2014).
Petitioner fails to demonstrate that the Appellate Division’s denial of this claim was
contrary to or an unreasonable application of clearly established federal law. Indeed, a person
convicted of’ murder may “be sentenced to a specific term of years which shall be between 30
years and life imprisonment of which the person shall serve thirty years before being eligible for
parole.” N.J. Stat. Ann.

§ 2C:11-3(b)(1). Thus, Petitioner’s murder sentence fell within the

applicable statutory range. See, e.g., Burtrim v. D’Ilio, No. 14-4628, 2018 WL 1522706, at *17
(D.N.J. Mar. 28, 2018) (denying federal habeas relief on excessive sentence claim noting
petitioner’s sentence fell within statutory limits). Accordingly, Petitioner is not entitled to federal
habeas relief on Claim V.

20

F. Claim VI
Petitioner asserts in Claim VI that the trial court erred in permitting the state to admit
crime scene photos without laying a foundation for admitting the evidence. More specifically,
Petitioner argues that the investigator who took the photographs was not the person present at the
time the crime occurred. (See ECF 42 at 20). Petitioner raised this issue in his pro se brief on
direct appeal.3 The Appellate Division summarily denied this claim without discussion. See
Klah, 2012 WL 2427809, at *6. Nevertheless, as described supra Part III, this summary denial is
still entitled to AEDPA deference on federal habeas review. See Harrington, 562 U.S. at 99.
The Appellate Division’s denial of this claim was not contrary to or an unreasonable
application of clearly established federal law. As described in supra Part IV.D, Petitioner is not
entitled to federal habeas relief on a claim that the state court erred as a matter of state law. See
Estelle, 502 U.S. at 67-68. Thus, mere failure to authenticate under state law evidentiary rules
would not entitle Petitioner to federal habeas relief.
Instead, Petitioner must show that admitting the photographs made his trial
fundamentally unfair to violate his due process rights. See Keller, 251 F.3d at 413. Additionally,
Petitioner must show that admitting the photographs was not harmless error. See Brecht, 507
U.S. at 637. Petitioner fails to do so. Indeed, Petitioner’s trial included an eyewitness who saw
Petitioner shoot the victim. The eyewitness then followed Petitioner where he was eventually
captured by law enforcement. Furthermore, ballistics evidence of the gun found in the vehicle
Petitioner was traveling in was found to be the murder weapon to a scientific certainty. Given
this extremely strong testimony against Petitioner, even if this Court were to assume that the

As with Claims III, IV and V, Respondents incorrectly argue that Petitioner did not raise this
claim in the state courts. (See ECF 51 at 19-20). This argument is belied by the record and the
claim is considered exhausted.
21

photographs were admitted in error due to lack of authentication, this Court fails to see how
admitting them had a substantial or injurious effect on the jury’s verdict. Accordingly, Claim VI
is denied.
G. Claim VII
Petitioner argues in Claim VII that counsel was ineffective when he failed to call
witnesses that would have challenged the state’s theory of the case. Petitioner argues as follows
in his second amended habeas petition:
It is clear from discovery, that the petitioner and the victim
were friends, arid had spent the hours before the shooting hanger [sic]
our [sic] together and playing video games. [T]he jury, however never
heard about the relationship between the petitioner and the
victim. [T]hey also never heard that the victim, in the days leading
up to his death, was acting strangely, and avoided returning
to his home. [I]t appeared from the statements of friends and
family that he was afraid of someone. [C]learly that person was
not the petitioner. A good friend of the victim’s Shawn Johnson,
told investigator that the victim has: been acting weird the
last several days” and that “he was afraid to go outside” did
not want to go home. [C]o-defendant [C]hadd [D]illard [sici stated
that the petitioner and the victim had been at his house drinking
and playing games and there was no indication that anything was
wrong. [T]here is no indication, however, that trial counsels ought to
review or subpoena these witnesses.
(ECF 42 at 20 (internal quotation mark omitted)). In Petitioner’s reply brief, he alludes to other
witnesses that counsel did not call, including Saleemah Anderson and Tameka Walden Johnson, the
victim’s girlfriend. Petitioner states Anderson told police the victim and Petitioner had been at her
house with her boyfriend Chadd Dillard drinking and playing video games and there did not appear
to be any problem between them. (See ECF 55-2 at 28).
The Appellate Division during PCR proceedings decided this claim as follows:
To establish a prima facie claim of ineffective assistance of
counsel, a defendant must demonstrate the reasonable likelihood of
succeeding on the merits under the test set forth in Strickland v.
Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed.
2d 674, 697—98 (1984), which our Supreme Court adopted in State
22

v. Fritz, 105 N.J. 42, 58, 519 A.2d 336 (1987). Defendant must

first show that his counsel’s performance fell below an objective
standard of reasonableness. The standard of “reasonable
competence” required of trial counsel, Fritz, supra, 105 N.J. at 60,
519 A.2d 336, “does not require the best of attorneys.” State v.
Davis, 116 N.J. 341, 351, 561 A.2d 1082 (1989). Defendant must
also show actual prejudice, that is, “a ‘reasonable probability’ that
counsel’s derelictions affected the outcome.” State v. Rountree, 388
N.J. Super. 190, 106 (App. Div. 2006), certif denied 192 N.J. 66,
926 A.2d 852 (2007) (quoting Fritz, supra, 105 N.J. at 58, 519
A.2d 336). “The error committed must be so serious as to
undermine [the court’s) confidence in the jury’s verdict.” State v.
Sheika, 337 N.J. Super. 228, 242, 766 A.2d 1151 (App. Div.),
certf denied 169 Ni 609, 782 A.2d 427 (2001).

If a petitioner for PCR demonstrates a prima facie case for
ineffective assistance of counsel, the trial court must hold an
evidentiary hearing. State v. Preciose, 129 N.J. 451, 462—63, 609
A.2d 1280 (1992). To establish such a prima facie case, however,
“a petitioner must do more than make bald assertions that he was
denied the effective assistance of counsel.” State v. Cummings, 321
N.J. Super. 154, 170, 728 A.2d 307 (App. Div.), certf denied 162
N.J. 199, 743 A.2d 852 (1999). Rather, the petitioner must allege
facts “supported by affidavits or certifications based upon the
personal knowledge of the affiant or the person making the
certification.” Ibid. (citing R. 1:6—6).
We agree that defendant failed to establish a prima facie case of
ineffective assistance of counsel. Judge Fleming concluded that
defendant’s trial counsel made a strategic decision not to call the
co-defendant and the victim’s girlfriend at trial, which did not
constitute deficient representation. We ascribe substantial
deference to defense attorneys in choosing which witnesses to call
at trial. See State v. Martini, 160 NJ 248, 266, 734 A.2d 257
(1999) (explaining that courts do not question counsels’ reasonable
professional judgments). Accordingly, defendant’s claim of
ineffective assistance in this regard does not overcome the first
prong of the Strickland/Fritz test because defendant has failed to
demonstrate that his counsel was ineffective in this regard.
Moreover, even if it were determined to be deficient performance,
defendant has not demonstrated that he was prejudiced in the
outcome of the proceedings by the omission of the testimony of
these witnesses.

23

Klah, 2016 WL 1418315, at *2. The Superior Court had similarly found that Petitioner failed to
establish either prong of Strickland on Petitioner’s clam that counsel was ineffective for not
calling Walden-Johnson and Dillard to testify. (See ECF 60). First, the Superior Court
determined that Petitioner failed to establish that counsel’s failure to subpoena these two
witnesses was anything other than trial strategy. (See id. at 10). Second, as to the prejudice
prong, the Superior Court noted as follows:
As there is no requirement that the prosecution establish a motive
to kill the victim, evidence that defendant and the victim played
video games together earlier in the day would not have impacted
the outcome of the proceedings where an eyewitness watched
defendant shoot the victim. The state’s theory of the case was that
petitioner gunned down the victim in cold blood and therefore the
fact that petitioner and the victim may have been playing video
games together earlier in the day does not negate the state’s theory
of the case. Petitioner does not argue that either of these witnesses
could establish an alibi or that either witness saw the shooting.
(Id. at 11).
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated the twoprong test for demonstrating when counsel is deemed ineffective. First, a petitioner must show
that considering all the circumstances, counsel’s performance fell below an objective standard of
reasonableness. See id. at 688; see also Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013)
(noting that it is necessary to analyze an ineffectiveness claim considering all circumstances)
(citation omitted). A petitioner must identify the acts or omissions that are alleged not to have
been the result of reasonable professional judgment. See Strickland, 466 U.S. at 690. Under this
first prong of the Strickland test, scrutiny of counsel’s conduct must be “highly deferential.” See
id. at 689. Indeed, “[c]ounsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690.
The reviewing court must make every effort to “eliminate the distorting effects of hindsight, to
24

reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Id. at 689. If counsel makes “a thorough investigation of law
and facts” about his plausible options, the strategic choices he makes accordingly are “virtually
unchallengeable.” Gov’t of Virgin Islands v. Weatherwax, 77 F.3d 1425, 1432 (3d Cir. 2006)
(citing Strickland, 466 U.s. at 690-91). If, on the other hand, counsel pursues a certain strategy
after a less than complete investigation, his choices are considered reasonable “to the extent that
reasonable professional judgments support the limitations on investigation.” Rolan v. Vaughn,
445 F.3d 671, 682 (3d Cir. 2006) (citing Strickland, 466 U.S. at 690-91).
The second prong of the Strickland test requires the petitioner to affirmatively prove
prejudice. See 466 U.S at 693. Prejudice is found where “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Id. at 694. A reasonable probability is “a probability sufficient to undermine confidence in the
outcome.” Id.; see also McBridge v. Superintendent, SClHoutzdale, 687 F.3d 92, 102 n.h (3d

Cir. 2012). “This does not require that counsel’s actions more likely than not altered the
outcome, but the difference between Strickland’s prejudice standard and a more-probable-thannot standard is slight and matters only in the rarest case. The likelihood of a different result must
be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 111-12 (2011) (internal
quotation marks and citations omitted).
“With respect to the sequence of the two prongs, the Strickland Court held that ‘a court
need not determine whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice... that course should be

25

followed.” Rainey v. Varner, 603 F.3d 189, 201 (3d Cir. 2010) (quoting Strickland, 466 U.S. at
697).
When assessing an ineffective assistance of counsel claim in the federal habeas context,
“[tjhe 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 v. Richter, 562 U.S. 86, 101 (2011)). “A state court must be granted a deference and
latitude that are not in operation when the case involves [direct] review under the Strickland
standard itself.” Id. Federal habeas review of ineffective assistance of counsel claims is thus
“doubly deferential.” Id. (quoting Cullen v. Pinhoister, 131 S. Ct. 1388, 1403 2011)). Federal
habeas courts must “take a highly deferential look at counsel’s performance” under Strickland,
“through the deferential lens of § 2254(d).” Id. (internal quotation marks and citations omitted).
The state courts’ denial of Petitioner’s ineffective assistance of counsel claim with
respect to counsel’s failure to call Tameka Walden-Johnson and Chadd Dillard as witnesses was
not an unreasonable application of Strickland. Indeed, as noted by both the Appellate Division
and the Superior Court, Petitioner failed to show prejudice given that these witnesses only went
to a possible lack of motive. However, the decision to deny this claim due to a lack of prejudice
was not unreasonable given that there was an eyewitness to the shooting which neither of these
witnesses negated whatsoever as aptly noted by the Superior Court. Furthermore, ballistic
evidence of the gun found in the vehicle Petitioner was traveling in matched that of the murder
weapon to a scientific certainty.
With respect to counsel’s failure to call Shawn Johnson and Anderson, it is not altogether
clear whether Petitioner raised these two witnesses as issues in his PCR proceedings as the state

26

courts only discussed Walden-Johnson and Dillard.4 However, even if these two witnesses were
not raised as potential witnesses counsel failed to call at trial, Petitioner would still not be
entitled to federal habeas relief because this claim would not be “colorable.” Carpenter v.
Vaughn, 296 F.3d 138, 146 (3d Cir. 2002) (quoting Lambert v. Blackwell, 134 F.3d 506, 5 14—15
(3d Cir. 1997) (construing 28 U.S.C.

§ 2254(b)(2))); see also 28 U.S.C. §

2254(b) (2) (“An

application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure
of the applicant to exhaust the remedies available in the courts of the State.”).
counsel’s purported failure to call these two witnesses would fail because of Petitioner’s
failure to show prejudice for similar reasons as discussed by the Superior court with respect to
Walden-Johnson and Dillard. More specifically, given that there was a law enforcement
eyewitness to the shooting, nothing Petitioner submits about the testimony of these two witnesses
would have changed the outcome of the proceeding to a reasonable probability. Furthermore, as
noted above, ballistic evidence tied Petitioner as the perpetrator. Accordingly, Petitioner is not
entitled to federal habeas relief on Claim VII.
H. Claim VIII
In Claim VIII, Petitioner argues counsel was ineffective in failing to retain a ballistics
expert. The Appellate Division in Petitioner’s PCR proceedings analyzed this claim as follows:
Defendant also cites his trial counsel’s failure to retain a ballistics
expert as ineffective assistance. The PCR judge permitted
defendant to supplement the record with the report and findings of
a ballistics expert. The expert corroborated several aspects of the
State’s analysis, and only questioned whether defendant could have
been standing in the street where one of the officers identified he
was standing. The PCR judge was nevertheless correct in rejecting
defendant’s argument. The report submitted to the PCR court
confirmed the accuracy of the State’s ballistics analysis, and that
the testimony would have confirmed that the gun found in the
vehicle was the murder weapon.
‘

Neither party supplied this Court with Petitioner’s PCR filings.
27

Defendant asserts that trial counsel should, however, have
presented evidence contrary to the State’s evidence. Defendant’s
reliance on State v. Bryant, 237 N.J. Super. 102, 106—107, 567
A.2d 212 (App. Div.1988), for this proposition is inapposite.
Bryant was a juvenile waiver case in which defense counsel was
deemed ineffective for failing to present evidence at the waiver
hearing with respect to the juvenile’s potential for rehabilitation, a
vital component of such a hearing. Id. at 107, 567 A.2d 212. In this
case, there was no clear obligation for trial counsel to call an
expert for the purpose of disputing the detective’s testimony with
regard to the shooter, especially when such an expert may have
reinforced the state’s theory that the gun found at defendant’s feet
was the murder weapon.
Klah, 2016 WL 1418315, at * 3. The denial of this claim was not contrary to or an unreasonable

application of Strickland and its progeny. Petitioner fails to show how retaining a ballistic expert
would have changed the outcome of the trial to a reasonable probability. Indeed, the ballistic
expert Petitioner retained during the PCR proceedings seemed to reinforce the fact that the gun
found at Petitioner’s feet in the vehicle was the murder weapon. Thus, Claim VIII is denied.
I.

Claim IX
Petitioner argues in Claim IX counsel was ineffective for failing to sever the controlled

substance charge from the murder charge. Additionally, Petitioner asserts counsel was
purportedly ineffective in failing to object to prejudicial evidence being admitted at trial. The
Appellate Division analyzed this claim as follows:
Defendant also asserts that both his trial and appellate counsel
were ineffective because they failed to argue that the CDS counts
should have been severed from the indictment for trial purposes,
and because they failed to raise several issues under N.IR.E.
404(b) at trial and on appeal; namely, that the failure to sever
counts allows prejudicial evidence otherwise prohibited by V1R.E
• 404(b). We agree with Judge Fleming’s conclusion that joinder of
the criminal charges was appropriate because each offense was
criminal; the offenses arose from a similar episode; the prosecuting
officer knew of the offenses at the time the trial commenced; and
the offenses occurred within the jurisdiction of the same court. See
28

State v. Williams, 172 N.J at 361, 368, 799 A.2d 470 (2002)
(explaining the appropriate test to determine whether joinder or
severance is appropriate) (citing State v. Yoskowitz 116 NJ 679,
701, 563 A.2d 1 (1989)). Defendant does not successfully establish
that a motion to sever the counts would have been successful, and
defendant’s motion for an evidentiary hearing in that regard was
properly denied. State v. O’Neal, 190 N.J 601, 618—1 9, 921 A.2d
1079 (2007).
Klah, 2016 WL 1418315, at *3• The Appellate Division’s denial of this claim was not an
unreasonable application of Strickland. Petitioner fails to show that any motion to sever would
have been successful for the reasons expressed by the state courts that counsel was not
ineffective for failing to bring a meritless motion. See Werts v. Vaughn, 228 F.3d 178, 203 (3d
Cir. 2000) (“[C]ounsel cannot be deemed ineffective for failing to raise a meritless claim.”)
(citation omitted); United States v. Jackson, No. 09-5255, 2010 WL 1688543, at *8 (E.D. Pa.
Apr. 27, 2010) (“Under Strickland, Jackson’s appellate counsel cannot be ineffective for failing
to raise a meritless issue on appeal.”) (citing United States v. Sanders, 165 F.3d 248, 253 (3d Cir.
1999)). Accordingly, Claim IX is denied.
J.

ClaimX
Petitioner asserts in Claim X ineffective assistance of counsel in failing to object to

opening and closing statements of the prosecutor and appellate counsel’s ineffectiveness for not
addressing the state’s vouching for the police officer witness. To support this claim, Petitioner
specifically objects to the following statement given by the prosecutor during his opening
statement:
Well, what do you got? I have an eyewitness. I have someone
who is coming here this morning and will you that he saw Peter
[K]lah shoot Charles [B]ennett. Excuse me. but you may be
wondering, well, what is someone doing out at N]orth Clinton and
[M]onmouth at eleven o’clock at night. Brain [sic], why should we
believe this person? Well, I can tell you this, the eyewitness was
wOrking, [a]nd what was the eyewitness’s job? Ladies and

29

gentlemen, the person who saw Peter klah shoot the victim in the
back was a police officer.
(ECF 42 at 23). With respect to the prosecutor’s closing argument, Petitioner states that counsel
should have objected to the following:
1. The prosecutor’s statement that no other gun in the world could have committed the
murder besides the one found under the seat of the person he saw shoot the victim since it
exaggerated the state’s ballistic expert’s testimony.
2. The prosecutor’s speculation that not only did the victim have marijuana in his
bloodstream but that marijuana was found at the foot of Petitioner in the car.
(ECF 55-2 at 34).
The Appellate Division analyzed this claim as follows:
Defendant also contends that his counsel was ineffective for failing
to object to statements that the State made during opening and
closing arguments. The record does not demonstrate conduct “so
egregious as to deprive defendant of a fair trial.” State v.
Wakefield 190 N.J 397, 437, 921 A.2d 954 (2007) (citations
omitted).
Klah, 2016 WL 1418315, at * 3. This Court previously addressed what is needed to sustain a
prosecutorial misconduct claim; namely where the prosecutor’s remarks “so infected the trial
with unfairness as to make the resulting conviction a denial of due process.” See Darden, 477
U.S. at 181. Furthermore, with respect to impermissible vouching, a petitioner “must show that
the prosecutor assured the jury of a government witness’s credibility and that this assurance must
have been based on the prosecutor’s personal knowledge or other information outside of the
record.” United States v. McNeal, 588 F. App’x 164, 167 (3d Cir. 2014) (citing United States v.
Vitillo, 490 F.3d 314, 327 (3d Cir. 2007); United States v. Brennan, 326 F.3d 176. 183 (3d Cir.
2003)).

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Petitioner fails to show that he is entitled to relief on any of the arguments within this
claim. First, he fails to show he was prejudiced when counsel failed to object to the alleged
vouching by the prosecutor of Police Officer Przemieniecki. As noted supra, the jury was
specifically instructed that the prosecutor’s opening statement was not evidence. (See ECF 12-7
at 40). The jury is presumed to have followed these instructions. See Weeks, 528 U.S. at 234.
Furthermore, Przemieniecki’s eyewitness testimony that Petitioner shot the victim was in effect
corroborated by the ballistics evidence which showed that the gun found under Petitioner’s seat
in the vehicle was the murder weapon to a degree of scientific certainty. Accordingly, in this
Court’s view, there is not a reasonable probability that, even assuming arguendo that counsel
should have objected to the prosecutor’s purported vouching for Przemieniecki during his
opening, that the outcome of the proceeding would have been different to a reasonable
probability. Petitioner’s argument that appellate counsel was ineffective for failing to raise this
issue on appeal fails for similar reasons as “claims of ineffective assistance of appellate counsel
are also governed by the Strickland standard.” See Lusick v. Palakovich, 270 F. App’x 108, 110
(3d Cir. 2008) (citing United States v. Mannino, 212 F.3d 835, 840 (3d Cir. 2000)).
Second, Petitioner objects to the prosecutor’s statements during closing argument
regarding exaggerating the ballistic evidence. The prosecutor stated during closing argument that
“the gun, the shell casings and the bullets are all a hundred percent match.” (See ECF 12-7 at
31). The prosecutor also stated during closing that the gun found in the vehicle had a “one
hundred percent guarantee” according to the ballistics expert as being the one that killed the
victim. (See Id. at 32). These statements by the prosecutor went beyond what the ballistics expert
testified to during trial. Indeed, the ballistics expert only testified “to a degree of scientific
certainty,” (see ECF 12-6 at 73), not to a one-hundred percent certainty. Nevertheless, this Court

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finds that Petitioner has not shown prejudice as it did not cause a fundamentally unfair trial.
Indeed, the jury was expressly instructed that the prosecutor’s closing argument was not
testimony. (See ECF 12-7 at 40). Furthermore, this case not only relied on the ballistics evidence,
but also on an eyewitness who saw Petitioner shoot the victim.
Third, Petitioner argues counsel was ineffective in failing to object to comments made by
the prosecutor during closing argument regarding marijuana being found in the victim’s
bloodstream and at the feet of Petitioner. (See ECF 12-7 at 28-29). Counsel was not ineffective
though for failing to object to these statements by the prosecutor as they were summarizing
evidence that was already in the record. (See ECF 12-5 at 33, 43-44; ECF 12-6 at 60).
For these reasons, Petitioner is not entitled to relief on Claim X.
K. Claim XI
Petitioner initially states in Claim XI that he reserves the right to supplement issues. By
itself, this claim would be insufficient to state any cognizable habeas claim. However, within
both his second amended petition and reply brief, Petitioner is more specific with respect to the
arguments within this claim. Most notably, Petitioner asserts:
1. Counsel was ineffective for failing to corroborate the testimony of Detective Moreland
who stated Przernieniecki’s partner on the night of the murder was Bernstein not
D’Ambrosio.
2. Counsel was ineffective in failing to call D’Ambrosio concerning Przemieniecki being
his partner and witness to the crime.
3. Failure to obtain co-defendant’s statement.
(See ECF 42 at 23; ECF 36-3 8).

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This Court will review these claims to determine whether they are “colorable” as they do not
appear to have been raised in state court.
Przemieniecki testified that D’Ambrosio was his partner on the night of the murder. (See
ECF 12-5--at 26). Detective Moreland though testified he thought it was Detective Bernstein who
was driving with Przemieniecki. (See id. at 95). Petitioner argues counsel was ineffective by
failing to call Detective D’Ambrosio to corroborate that he was Petitioner’s partner on the night
of the murder.
In Duncan v. Morton, 256 F.3d 189, 202 (3d Cir. 2001), the Third Circuit found that a
habeas petitioner’s failure to present any sworn testimony by the witnesses the habeas petitioner
claimed counsel should have investigated and called as a witness amounted to a failure to
establish Strickland prejudice. See id. (“In light of Duncan’s failure to present any sworn
testimony bySherman, he has failed to establish prejudice as a result of [counsel’s] failure to
interview Sherman.”) (emphasis added). Here, Petitioner fails to provide any statement from
D’Ambrosio whatsoever regarding what his testimony would have been had counsel called him
to testify. Accordingly, Petitioner fails to show to a reasonable probability that the outcome of
his trial would have been different had D’Ambrosio been called to testify. Furthermore, to
reiterate, the case against Petitioner was extremely strong. It included eyewitness testimony and
ballistic evidence that implicated Petitioner as the perpetrator. This further supports denying this
claim due to Petitioner’s failure to show prejudice.
Next, Petitioner alludes to not being provided a copy of a statement made by co
defendant Dillard. Petitioner asserts that this constituted a Brady v. Maryland, 373 U.S. 83
(1963) violation. A due process violation under Brady “occurs if: (1) the evidence at issue is
favorable to the accused, because either it is exculpatory or impeaching; (2) the prosecution

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withheld it; and (3) the defendant was prejudiced because the evidence was ‘material.’
Breakiron v. Horn, 642 F.3d 126, 133 (3d Cir. 2011) (citations omitted). Materiality requires “a
reasonable probability that, if the evidence had been disclosed, the result of the proceeding
would have been different.” Id. (citing Giglio v. United States, 405 U.S. 150, 154 (1972)).
Petitioner fails to show that he is entitled to relief pursuant to Brady. The record belies
Petitioner’s claim that he was not provided with a copy of Dillard’s statement. Indeed,
Petitioner’s counsel admitted to having received a copy of the statement and that he discussed it
with Petitioner prior to trial. (See ECF 12-3 at 15). Additionally, it does not appear that Petitioner
has come forward with any evidence to suggest that Dillard’s statement was either exculpatory or
impeaching.
Therefore, for these reasons, Petitioner is not entitled to habeas relief on Claim XI.
L. Claim XII
Petitioner asserts in Claim XII he is entitled to federal habeas relief due to cumulative
error. Petitioner raised a claim of cumulative error in his PCR proceedings. However, that
cumulative error claim only encompassed his ineffective assistance of counsel claims. Construed
liberally, Petitioner may be seeking to bring a cumulative error claim that encompasses all his
claims raised in his second amended habeas petition, not just his ineffective assistance of counsel
claims. Construed as such, the cumulative error claim appears to be unexhausted. See Cook v.
Nogan, No. 05-39 16, 2016 WL 6892080, at *26 (D.N.J. Nov. 22, 2016) (cumulative error claim
deemed unexhausted where Petitioner did not include all claims he seeks to bring within his
federal habeas cumulative error claim before the state courts). Nevertheless, this Court can deny
this claim on the merits if it is deemed not “colorable.”

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“Individual errors that do not entitle a petitioner to relief may do so when combined, if
cumulatively the prejudice resulting from them undermined the fundamental fairness of his trial
and denied him his constitutional right to due process.” Fahy v. Horn, 516 F.3d 169, 205 (3d Cir.
2008); see also United States v. Roland, 545 F. App’x 108, 117 (3d Cir. 2013). “Reversal is
warranted only when ‘the[] errors, when combined, so infected the jury’s deliberations that they
had a substantial influence on the outcome of the trial.” Roland, 545 F. App’x at 117 (quoting
United States v. Hill, 976 F.2d 132, 145 (3d Cir. 1992)); see also Albrecht v. Horn, 485 F.3d 103,
139 (3d Cir. 2007) (citing Brecht v. Abrahamson, 507 U.S. 619, 637, 113 5. Ct. 1710, 1721, 123
L. Ed. 2d 353 (1993)) (“Cumulative errors are not harmless if they had a substantial and
injurious effect or influence in determining the jury’s verdict, which means that a habeas
petitioner is not entitled to relief based on cumulative errors unless he can establish ‘actual
prejudice.”).
Petitioner has failed to show a “colorable” cumulative error claim. To reiterate, the case
against Petitioner was extremely strong. It included eyewitness testimony where the witness saw
Petitioner shoot the victim. Petitioner was then pursued and captured immediately thereafter by
police. Ballistics evidence also implicated Petitioner as the gun found beneath his seat in the
vehicle matched that of the murder weapon to a degree of scientific certainty. Accordingly,
Petitioner is not entitled to federal habeas relief on Claim XII.
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.

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§ 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). Applying this standard, this Court finds that a certificate of appealability shall not issue
in this case.
VI.

CONCLUSION

For the foregoing reasons, the second amended habeas petition is denied and a certificate
of appealability shall not issue. An appropriate order will be entered.

DATED:

2020

PETER G. SHERIDAN
United States District Judge

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