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

Filing 19

OPINION filed. Signed by Chief Judge Freda L. Wolfson on 9/14/2020. (jem)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CALVIN LITTLE,

Civil Action No. 17-4498 (FLW)

Petitioner,
v.

OPINION

GEORGE ROBINSON, et al.,
Respondents.

This matter has been opened to the Court by Petitioner Calvin Little’s (“Petitioner” or
“defendant”) filing of a Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Having reviewed the Petition, Respondent’s Answer, Petitioner’s Traverse, and the relevant
record, the Court denies the Petition for the reasons stated in this Opinion and also denies a
certificate of appealability.
I.

FACTUAL BACKGROUND & PROCEDURAL HISTORY1
On May 9, 2011, Petitioner assaulted and abducted his wife, Terrance Little. 2 On August

31, 2011, a Mercer County Grand Jury returned Indictment No. 11-08-0865I charging Petitioner
with kidnapping, first-degree, contrary to N.J.S.A. 2C:13-1b (Count I); aggravated sexual
assault, first-degree, contrary to N.J.S.A. 2C:14-2a(3) (Count II); carjacking, first-degree,
contrary to N.J.S.A. 2C:15-2 (Count III); and contempt, fourth-degree, contrary to N.J.S.A.
2C:29-9b (Count IV). ECF No. 13-1, Exhibit Grand Jury Ind No. 11-08-0865I, Aug. 31, 2011.

1

The factual background is taken from the record submitted by the parties; the facts related to
the individual claims for relief are discussed in the analysis section of the Opinion.
2

The facts related to the assault and abduction are detailed in the in the July 21, 2015 Order and
Written Opinion of Hon. Pedro J. Jimenez, J.S.C. denying Petitioner’s PCR. See ECF No. 13-22.
1

Pursuant to a plea agreement reached by the parties with the input of Superior Court
Judge Pedro Jimenez, Jr. pursuant to Rule 3:9–3(c), defendant pleaded guilty to first-degree
kidnapping, N.J.S.A. 2C:13–1(b). 3 See ECF No. 13-3, Exhibit Transcript of Plea Hearing, Jan.
31, 2013 (“Plea Hearing Transcript”). Judge Jimenez sentenced defendant to fourteen years in
prison, subject to an 85% period of parole ineligibility pursuant to the No Early Release Act
(“NERA”), N.J.S.A. 2C:43–7.2. See ECF No. 13-5, Exhibit Transcript of Sentence, Apr. 23,
2013 (“Sentencing Transcript”); ECF No. 13-6, Judgment of Conviction, Apr. 23, 2013.
Petitioner filed an excessive sentence appeal, and the Appellate Division affirmed the
sentence imposed. State v. Little, No. A–3160–13 (App. Div. June 3, 2014). The Supreme Court
denied certification. State v. Little, 219 N.J. 629 (2014).
Petitioner subsequently filed a petition for postconviction relief (“PCR”). See ECF No.
13-14, PCR, Superior Court, Law Division Mercer County, Indictment No. 11-08-0865I, Oct. 6,
2014. On July 17, 2015, the PCR court denied the PCR in a written decision. ECF No. 13-21,
Transcript of PCR Hearing, Jul. 17, 2015; ECF No. 13-22, PCR Order and Written Opinion, Jul.
21, 2015. Petitioner appealed, and the Appellate affirmed the denial of the PCR on February 24,
2017. State v. Little, No. A–0744–15T3, 2017 WL 728129, at *1–3 (N.J. Super. A.D. Feb. 24,
2017). The Supreme Court denied certification on May 19, 2017. State v. Little, 230 N.J. 404,
405 (2017).
The instant habeas Petition is dated June 14, 2017. See ECF No. 1 at 17. The Court
provided Petitioner with the required notice pursuant to Mason v. Myers, 208 F.3d 414 (3d Cir.

3

At the time of Petitioner’s plea, the parties had not reached an agreement on the recommended
length of the sentence. The State sought a fifteen-year prison term, while defendant argued for a
fourteen-year term. Pursuant to Rule 3:9–3(c), Judge Jimenez reviewed the parties’ respective
positions and advised that he planned to impose no more than a fourteen-year term, subject to his
review of the presentence report prior to sentencing.
2

2000), and Petitioner informed the Court that he wished to proceed on the Petition as filed. See
ECF Nos. 3-4. The Court directed Respondents to answer the Petition, and the Answer was filed
on August 29, 2018. ECF Nos. 5, 13. Petitioner filed his Traverse on May 17, 2019. ECF No.
18. The matter is fully briefed and ready for disposition.
II.

STANDARD OF REVIEW
Section 2254(a) permits a court to entertain only claims alleging that a person is in state

custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
2254(a). Petitioner has the burden of establishing each claim in the petition. See Eley v.
Erickson, 712 F.3d 837, 846 (3d Cir. 2013). Under 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. No. 104-132, tit. I, §
101 (1996), 28 U.S.C. § 2244, federal courts in habeas corpus cases must give considerable
deference to determinations of state trial and appellate courts. See Renico v. Lett, 599 U.S. 766,
772 (2010).
Section 2254(d) sets the standard for granting or denying a writ of habeas corpus:
(d) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d).

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Where a state court adjudicated a petitioner’s federal claim on the merits, 4 a federal court
“has no authority to issue the writ of habeas corpus unless the [state c]ourt’s decision ‘was
contrary to, or involved an unreasonable application of, clearly established Federal Law, as
determined by the Supreme Court of the United States,’ or ‘was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.’”
Parker v. Matthews, 567 U.S. 37, 40-41 (2012) (quoting 28 U.S.C. § 2254(d)).
“[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,” at of the time of the relevant statecourt decision. White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (quoting Williams v. Taylor, 529
U.S. 362, 412 (2000)). A decision is “contrary to” a Supreme Court holding within 28 U.S.C. §
2254(d) (1) if the state court “contradicts the governing law set forth in [the Supreme Court’s]
cases” or if it “confronts a set of facts that are materially indistinguishable from a decision of
th[e Supreme] Court and nevertheless arrives at a [different] result.” Williams, 529 U.S. at 40506. 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 but unreasonably applies that principle to the facts of the prisoner’s
case.” Williams, 529 U.S. at 413. As to 28 U.S.C. § 2254(d)(1), a federal court must confine its
examination to evidence in the record. 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

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“For the purposes of Section 2254(d), a claim has been ‘adjudicated on the merits in State court
proceedings’ when a state court has made a decision that (1) finally resolves the claim, and (2)
resolves th[at] claim on the basis of its substance, rather than on a procedural, or other, ground.”
Shotts v. Wetzel, 724 F.3d 364, 375 (3d Cir. 2013) (citation and internal quotation marks
omitted).
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apply. First, the AEDPA provides that “a determination of a factual issue made by a State court
shall be presumed to be correct [and] [t]he applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.” 29 U.S.C. § 2254(e)(1); see
Miller–El v. Dretke, 545 U.S. 231, 240 (2005). Second, the AEDPA precludes habeas relief
unless the adjudication of the claim “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d)(2).
In addition to the above requirements, a federal court may not grant a writ of habeas
corpus under § 2254 unless the petitioner has “exhausted the remedies available in the courts of
the State.” 28 U.S.C. § 2254(b)(1)(A). To do so, a petitioner must “‘fairly present’ all federal
claims to the highest state court before bringing them in federal court.” Leyva v. Williams, 504
F.3d 357, 365 (3d Cir. 2007) (citing Stevens v. Delaware Corr. Ctr., 295 F.3d 361, 369 (3d Cir.
2002)). This requirement ensures that state courts “have ‘an initial opportunity to pass upon and
correct alleged violations of prisoners’ federal rights.’” Id. (citing United States v. Bendolph,
409 F.3d 155, 173 (3d Cir. 2005) (quoting Duckworth v. Serrano, 454 U.S. 1, 3 (1981)).
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. Johnson v.
Pinchak, 392 F.3d 551, 556 (3d Cir. 2004). This procedural bar applies only when the state rule
is “independent of the federal question [presented] and adequate to support the judgment.”
Leyva, 504 F.3d at 365-66 (citing Nara v. Frank, 488 F.3d 187, 196, 199 (3d Cir. 2007); see also
Gray v. Netherland, 518 U.S. 152 (1996), and Coleman v. Thompson, 501 U.S. 722 (1991)).

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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, 504 F.3d at
366 (citing Lines v. Larkins, 208 F.3d 153, 166 (3d Cir. 2000)).
To the extent that a petitioner’s constitutional claims are unexhausted and/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) (“Here, because we will deny all of
[petitioner’s] claims on the merits, we need not address exhaustion”); Bronshtein v. Horn, 404
F.3d 700, 728 (3d Cir. 2005) (considering procedurally defaulted claim, and stating that “[u]nder
28 U.S.C. § 2254(b)(2), we may reject claims on the merits even though they were not properly
exhausted, and we take that approach here”).
III.

ANALYSIS
a. Petitioner’s Habeas Claims
As noted above, federal habeas corpus relief may not be granted with respect to any claim

a state court has adjudicated on the merits unless the state court’s decision denying relief
involves “an unreasonable application” of “clearly established Federal law, as determined by the
Supreme Court of the United States” or “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)(1), (2). Here, the relevant clearly established law derives from Strickland v.
Washington, 466 U.S. 668 (1984), which provides the standard for ineffective assistance of
counsel under the Sixth Amendment.
To establish ineffective assistance of counsel “a defendant must show both deficient
performance by counsel and prejudice.” Knowles v. Mirzayance, 556 U.S. 111, 122 (2009).

6

The Supreme Court instructs that a court need not address both components of an ineffective
assistance claim “if the defendant makes an insufficient showing on one.” Strickland, 466 U.S.
at 697. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.” Id.
To establish deficient performance, a person challenging a conviction must show that
“counsel’s representation fell below an objective standard of reasonableness.” Harrington v.
Richter, 562 U.S. 86, 104 (2011) (citing Strickland, 466 U.S. at 688). A court considering a
claim of ineffective assistance must apply a “strong presumption” that counsel’s representation
was within the “wide range” of reasonable professional assistance. Id. (citing Strickland, 466
U.S. at 689). The challenger’s burden is to show “that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. at 687.
With respect to prejudice, a challenger must demonstrate “a reasonable probability that,
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.” Id.
(citing Strickland, 466 U.S. at 694). It is not enough “to show that the errors had some
conceivable effect on the outcome of the proceeding.” Id. (citing Strickland, 466 U.S. at 693.
Counsel’s errors must be “so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Id. (citing Strickland, 466 U.S. at 687).
“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S.
356, 371 (2010). “Establishing that a state court’s application of Strickland was unreasonable
under § 2254(d) is all the more difficult” and focuses on “whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Harrington, 562 U.S. at 105.

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It is well established that defendants are “entitled to the effective assistance of competent
counsel” during plea negotiations. McMann v. Richardson, 397 U.S. 759, 771 (1970). In Hill v.
Lockhart, 474 U.S. 52 (1985) the Court held “the two-part Strickland v. Washington test applies
to challenges to guilty pleas based on ineffective assistance of counsel.” 474 U.S. at 58. As
usual, the performance prong of Strickland requires a defendant to show “‘that counsel’s
representation fell below an objective standard of reasonableness.’” 474 U.S. at 57 (quoting
Strickland, 466 U.S., at 688). “[I]n order to satisfy the ‘prejudice’ requirement, the defendant
must show that there is a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59. A defendant must
show that a decision to proceed to trial “would have been rational under the circumstances.”
Padilla, 559 U.S. at 372.
It is also well-established that “a defendant has the right to make a reasonably informed
decision whether to accept a plea offer.” United States v. Day, 969 F.2d 39, 43 (3d Cir.1992);
see also Hill, 474 U.S. at 56–57 (voluntariness of guilty plea depends on adequacy of counsel’s
advice); Von Moltke v. Gillies, 332 U.S. 708, 721 (1948) (“Prior to trial an accused is entitled to
rely upon his counsel to make an independent examination of the facts, circumstances, pleadings
and laws involved and then to offer his informed opinion as to what plea should be entered.”). A
petitioner has a Sixth Amendment claim when “the advice that he received was so incorrect and
so insufficient that it undermined his ability to make an intelligent decision about whether to
accept the [plea] offer.” Day, 969 F.2d at 43.
Here, Petitioner’s attorney at arraignment was Assistant Deputy Public Defender Jenna
Casper, Esq. (“Ms. Casper”). Ms. Casper subsequently withdrew, and Petitioner was represented
at the plea hearing and sentencing by Assistant Deputy Public Defender Jason Matey, Esq. (“Mr.

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Matey”). Although Petitioner initially refused a Fifteen-year plea deal from the state while
represented by Ms. Casper, he subsequently pleaded guilty to a fourteen-year plea deal three
days later after Mr. Matey took over as his public defender. See ECF No. 13-2, Transcript of
Pretrial Hearing, dated January 28, 2013; see also Plea Hearing Transcript.
These facts provide the backdrop for Petitioner’s claims of ineffective assistance. In his
PCR, Petitioner argued that Mr. Matey rendered ineffective assistance by failing to: (1) raise a
diminished capacity defense based upon Petitioner’s alleged mental illness and intoxication; (2)
properly investigate his case; (3) advise him of all of the elements of kidnapping; and (4) present
appropriate mitigating factors at the time of sentencing. See ECF No. 13-19, Brief and Appendix
in Support of PCR (“PCR Appellate Brief”), May 14, 2015. As noted above, the PCR court
denied Petitioner’s claims in a written decision and without an evidentiary hearing. See PCR
Order and Decision. On appeal, Petitioner re-raised these claims; he also argued that he should
have received an evidentiary hearing on his ineffective assistance claims and that his claims
about ineffective assistance at sentencing were not procedurally barred in light of the denial of
his direct appeal. See PCR Appellate Brief.
The Appellate Division rejected Petitioner’s ineffective assistance claims as follows:
In a thorough written opinion, Judge Jimenez considered each of
[the ineffective assistance claims] and denied defendant’s petition.
The judge concluded that defendant failed to satisfy the two-prong
test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 2064, 80 L.Ed. 2d 674, 693 (1984), which requires a
showing that trial counsel’s performance was deficient and that,
but for the deficient performance, the result would have been
different.
Taking defendant’s contentions in turn, Judge Jimenez first found
that defendant failed to “produce[ ] any evidence of diminished
capacity due to mental illness or intoxication” other than his bald
assertion that he suffered from either or both of these conditions.
Because defendant’s petition for PCR did not contain “one iota of
documentation” supporting a diminished capacity claim, the judge
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concluded that defendant’s “trial counsel [could not] be found to
be ineffective for failing to introduce a bald assertion of
diminished capacity, unsupported by any actual evidence.”
Judge Jimenez next rejected defendant’s contention that his
attorneys failed to adequately investigate his case and the possible
defenses available to him. The judge noted that defendant had “not
proffered any valid issues that could have been raised at trial, but
were ignored by trial counsel, such as potential witnesses,
exculpatory evidence[,] or any valid defenses.” Instead,
defendant’s contention was once again nothing more than a bald
assertion without any factual basis.
In addition, the judge observed that defendant faced a thirty-year
sentence on the kidnapping charge, and an aggregate sentence of
over fifty years if he were also convicted of the three charges the
State agreed to dismiss as part of the plea agreement. However,
defendant’s attorneys were able to negotiate a plea with the judge’s
assistance pursuant to R. 3:9–3(c) for a maximum sentence of
fourteen years. Under these circumstances, Judge Jimenez
concluded that it would not have been rational for defendant to
refuse to accept the favorable terms of the plea agreement and
insist on going to trial.
In his PCR petition, defendant complained that his first trial
attorney left the case after she had a “communication breakdown”
with him and that the second attorney only represented him for
three days before defendant decided to accept the plea agreement.
However, Judge Jimenez found that the first attorney had to leave
the case because she was going on maternity leave and not because
of any dispute with defendant. Her replacement attorney was a
public defender in the same office and the first attorney “fully
advised” the new attorney “of the aspects of the case, the progress
of the case and all plea discussions.” In addition, defendant again
failed to identify any exculpatory information or witnesses that
either attorney should have discovered, but did not. Therefore, the
judge found that defendant failed to meet either Strickland prong.
Turning to defendant’s third argument, Judge Jimenez found there
was no support in the record for defendant’s contention that his
attorneys failed to advise him of the elements of the kidnapping
charge. Indeed, the defendant provided a factual basis in support of
his plea to this charge in response to his attorney's questions that
clearly incorporated all of the elements of the offense.
Defendant next asserted that the attorney who represented him at
sentencing was ineffective because he did not raise certain
mitigating factors. However, after carefully reviewing each of
these factors, Judge Jimenez concluded that none of them were
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applicable and, therefore, defendant’s attorney was not ineffective
by failing to assert them.
Moreover, on direct appeal, defendant unsuccessfully argued that
his sentence was excessive because Judge Jimenez erred by failing
to find these same mitigating factors at the time of sentencing.
Thus, even if the attorney were ineffective because he did not
specifically raise these factors, the judge concluded that defendant
still failed to meet the second prong of Strickland because the
result would not have been different had he done so.
Finally, Judge Jimenez determined that because defendant failed to
present a prima facie case of ineffective assistance of counsel, a
plenary hearing was not required under State v. Preciose, 129 N.J.
451, 462 (1992).
….
When petitioning for PCR, the defendant must establish, by a
preponderance of the credible evidence, that he or she is entitled to
the requested relief. State v. Nash, 212 N.J. 518, 541 (2013);
Preciose, supra, 129 N.J. at 459. To sustain that burden, the
defendant must allege and articulate specific facts that “provide the
court with an adequate basis on which to rest its decision.” State v.
Mitchell, 126 N.J. 565, 579 (1992).
The mere raising of a claim for PCR does not entitle the defendant
to an evidentiary hearing and the defendant “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 (App.
Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts
should grant evidentiary hearings and make a determination on the
merits only if the defendant has presented a prima facie claim of
ineffective assistance. Preciose, supra, 129 N.J. at 462.
To establish a prima facie claim of ineffective assistance of
counsel, the defendant is obliged to show not only the particular
manner in which counsel’s performance was deficient, but also that
the deficiency prejudiced his right to a fair trial. Strickland, supra,
466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d 674 at 693 (1984);
State v. Fritz, 105 N.J. 42, 58 (1987). The United States Supreme
Court has extended these principles to a criminal defense
attorney’s representation of an accused in connection with a plea
negotiation. Lafler v. Cooper, 566 U.S. 156, 163, 132 S.Ct. 1376,
1384–85, 182 L.Ed. 2d 398, 406–07 (2012); Missouri v. Frye, 566
U.S. 134, 144, 132 S.Ct. 1399, 1407–08, 182 L.Ed. 2d 379, 390
(2012).
There is a strong presumption that counsel “rendered adequate
assistance and made all significant decisions in the exercise of
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reasonable professional judgment.” Strickland, supra, 466 U.S. at
690, 104 S.Ct. at 2066; 80 L.Ed. 2d at 695. Further, because
prejudice is not presumed, Fritz, supra, 105 N.J. at 52, the
defendant must demonstrate “how specific errors of counsel
undermined the reliability” of the proceeding. United States v.
Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80
L.Ed. 2d 657, 668 n.26 (1984).
We have considered defendant’s contentions in light of the record
and applicable legal principles and conclude that they are without
sufficient merit to warrant discussion in a written opinion. R. 2:11–
3(e)(2). We affirm substantially for the reasons expressed by Judge
Jimenez in his well-reasoned written opinion. We are also satisfied
that contrary to defendant’s contention in Point II of his brief, there
was no evidence of bias or any other reasons requiring the
assignment of a different trial judge to consider defendant's
petition for PCR.
State v. Little, 2017 WL 728129, at *1–3.
Petitioner re-raises the same ineffective assistance of counsel claims in his habeas
Petition and further asserts that the state courts erred in denying an evidentiary hearing on these
claims. See Petition at 6-13. As explained below, the Appellate Division, which affirmed
substantially for the reasons expressed by the PCR court, did not unreasonably apply Strickland
in the plea context or base its denial of relief on an unreasonable application of the facts in light
of the evidence.
As to the latter, Petitioner appears to assert that PCR court made unreasonable factual
findings when it determined that Ms. Casper left his case due to maternity leave and not due to a
dispute with Petitioner, and that Mr. Matey was fully advised of all aspects of the case by Ms.
Casper. Petitioner points to the transcript of the pretrial hearing, in which Ms. Casper stated that
she and Petitioner had a communication breakdown when they last spoke, and she did not know
whether he intended to accept the state’s fifteen-year plea deal. See Pretrial Hearing Transcript
at 2:1-23. In light of Ms. Casper’s statement at the pretrial hearing, Petitioner contends that she
withdrew due to a undisclosed dispute and not due to maternity leave, as determined by the PCR
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court. Petitioner also submitted a certification with his PCR stating that Mr. Matey was totally
unfamiliar with Petitioner’s case, did not review the elements of the crimes with him, and was
not interested in going to trial. See ECF No. 13-17, Amended Verified Petition for PostConviction Relief, Superior Court, Law Division Mercer County, Indictment No. 11-08-0865I.
He further asserts that his statement to the Court that Mr. Matey did an “excellent job” was
sarcastic. See id.; see also Plea Transcript, 8:22-24.
Here, Petitioner has not rebutted the PCR court’s factual findings by clear and convincing
evidence, see 29 U.S.C. § 2254(e)(1); see Miller–El, 545 U.S. at 240, or shown that state court
denied his PCR based solely on these erroneous factual determinations. Instead, the Appellate
Division denied relief on each ineffective assistance claim because Petitioner failed to meet the
Strickland test irrespective of these particular factual findings.
Petitioner’s claim that Mr. Matey failed to advise him of all of the elements of
kidnapping is refuted by the record, as Petitioner provided a factual basis in support of his plea to
this charge in response to his attorney’s questions that incorporated all of the elements of the
offense. See Plea Transcript, 9:10-13:18. Thus the state court did not unreasonably apply
Strickland when it rejected this claim.
The state court also did not unreasonably apply Strickland when it determined Petitioner
failed to show he was prejudiced by his attorney’s alleged failure to investigate and pursue a
diminished capacity defense based on his alleged mental illness and intoxication. Other than
bald assertions, Petitioner did not provide any evidence that additional investigation would have
uncovered facts tending to support a diminished capacity defense, or any other defense, at trial.
To show prejudice in this context, Petitioner must show that “there is a reasonable probability
that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going

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to trial.” Hill, 474 U.S. at 59 (emphasis added). In this regard, Petitioner faced a thirty-year
sentence on the kidnapping charge alone, and an aggregate sentence of over fifty years if he were
also convicted of the three charges the State agreed to dismiss as part of the plea agreement.
Petitioner’s attorneys were able to negotiate a plea for a maximum sentence of fourteen years.
The PCR court determined that it would not be rational for defendant to refuse to accept the
favorable terms of the plea agreement and insist on going to trial, and Petitioner has not provided
any evidence to suggest he would have insisted on going to trial given this exposure. Thus the
state court did not unreasonably apply Hill in finding that Petitioner failed to show he was
prejudiced by his attorney’s failure to investigate or raise a diminished capacity defense. Thus,
this claim fails even if Mr. Matey’s performance was deficient, as Petitioner contends.
Petitioner also asserts that his counsel failed to argue mitigating factors at sentencing.
The record, however, shows that the trial court considered a motion for a downward departure
and that Petitioner spoke at sentencing and asked the trial court to consider mitigating factors,
but the trial court concluded that none of them were applicable. See Sentencing Transcript at
2:19-9:9. On direct appeal, the Appellate Division also rejected Petitioner’s arguments that the
trial court erred by not finding mitigating factors three, seven, eight, and nine. See ECF No. 139, Transcript of Excessive Sentence Oral Argument, Jun. 3, 2014; ECF No. 10, Order, State v.
Little, A-003160-13T5 (Jun. 3, 2014), Superior Court, Appellate Division. Under these
circumstances, the state court did not unreasonably apply Strickland in finding that Petitioner
failed to show he was prejudiced by his counsel’s failure to argue for mitigating factors at
sentencing.
Finally, Petitioner asserts that the Appellate Division erred in finding that he was not
entitled to an evidentiary hearing. Because the Court finds that the state court did not

14

unreasonably apply Strickland in denying Petitioner’s PCR, the Court likewise rejects
Petitioner’s claim that the state court erred in denying him an evidentiary hearing on his
ineffective assistance claims.
a. Certificate of Appealability
The Court will also deny a certificate of appealability (“COA”). Pursuant to 28 U.S.C. §
2253(c), a petitioner may not appeal from a final order in a habeas proceeding unless he has
“made a substantial showing of the denial of a constitutional right.” Because Petitioner has not
made a substantial showing of the denial of a constitutional right, the Court will deny a COA.
IV.

CONCLUSION
For the reasons expressed in this Opinion, the Petition is denied and the Court declines to

issue a certificate of appealability. An Appropriate Order follows.

s/Freda L. Wolfson
Freda L. Wolfson
Chief U.S. District Judge
DATED: September 14, 2020

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