WASHINGTON v. BONDS

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

:

ROBERT WASHINGTON, :

: Civil Action No. 17-3439(RMB)

Petitioner :

:

v. : OPINION

:

WILLIE BONDS, et al., :

:

Respondents :

:

BUMB, District Judge

This matter comes before the Court upon the Petition for a

Writ of Habeas Corpus under 28 U.S.C. § 2254 (Pet., ECF No. 1)

filed by Petitioner Robert Washington (“Petitioner”), an inmate

confined in South Woods State Prison in Bridgeton, New Jersey.

Petitioner alleged four grounds for relief in his habeas petition.

(Id.) However, Petitioner also simultaneously filed a “Pro Se Brief

in Support of Federal Habeas Corpus Petition” (“Petr’s Mem.”), in

which he asserted ten grounds for relief, overlapping with the

four grounds in his petition. (ECF No. 1-7.) Respondents filed an

answer opposing habeas relief and submitted the state court

record.1 (Answer, ECF No. 5.) Respondents addressed only the four

1 Petitioner supplemented the state court record, Exhibit 19, by

submitting three missing pages from his 2014 pro se supplemental

brief in support of his appeal of his first PCR petition. (Pro Se

Supplemental Brief on PCR Appeal, ECF No. 7.)

grounds for relief stated in Petitioner’s habeas petition.

(Answer, ECF No. 5.) The Court will address all ten claims raised.

On July 6, 2017, Petitioner filed a document with the Court,

which states, in pertinent part:

1. I am filing this certification in lieu of

my Federal Habeas Corpus Petition [] pursuant

to Court R. 402 for general admiss[ibility] of

Relevant Evidence in rebuttal to the

Respondent’s Answer. I am only rebutting a

small portion of the respondent’s answer being

that I am satisfied with my brief, and

application previously filed.

A) Attached are documents of Prima Facie

evidence to support my petition, in which are

first a copy of certain relevant pages of the

accusers [sic] medical record contradicting

claims by the respondent in regards to the

seriousness of the injuries in which were not

life threatening as said on page 21, in

addition revealing that the accuser was

discharged merely two days after the alleged

incident not three as also said on pg. 21,

plus evidence that there was no proof of

penetration to support a agg.Sexual Assault as

also falsely said by the respondent.

B) Also attached as highlighted are the dates

I was sent to prison which was 11-05-2009, and

my I.S.P. was revoked 10-28-2009 in which

contradicts the claims that I went to prison

on 8-10-2009 the day after my arrest. Plus a

page out of the presentence report showing the

same proof.

C) I also added a copy of the P.C.R.

transcripts the respondent said they don't

have, and in regards to the June 30, 2010

P.T.C. transcript which would’ve proved

several injustices that was also said by the

respondent to not have is a burden that is on

them. It is believed that statute 28 USCA

2254(e), (1) has been satisfied deeming that

on petitioner’s side there has been clear and

convincing evidence to rebut the presumption,

and also that the respondent has lied in so

many ways to have shown no honor in the fair

laws of the land and the U.S. Constitution.

(Cert. Pursuant to R. 402, ECF No. 6 at 1-2.)

On December 28, 2017, Petitioner filed a self-styled

“Certification Pursuant to R. 501 Privilege in General If

Appropriate.” (ECF No. 8.) The Court construes this document as

Petitioner’s reply to Respondents’ Answer. (Petr’s Reply, ECF No.

8.)

By Opinion and Order dated April 26, 2019, this Court found

that Petitioner presented a mixed habeas petition that was not

reviewable by this Court pursuant to Rose v. Lundy, 455 U.S. 509

(1982). (Opinion and Order, ECF Nos. 12, 13.) On the face of the

petition, Ground Four of Petitioner’s third PCR petition was not

fully exhausted because Petitioner did not appeal to the New Jersey

Supreme Court. Petitioner chose to withdraw this unexhausted claim

[Point Nine in Petitioner’s memorandum, ECF No. 1-7]) and proceed

only with the remaining claims in his habeas petition. (Letter,

ECF No. 15.) For the reasons discussed below, the Court denies the

habeas petition.

I. PROCEDURAL HISTORY

On December 10, 2009, Petitioner was indicted by an Atlantic

County grand jury for second degree luring or enticing a child

(Count 1); third degree criminal restraint (Count 2); first degree

aggravated sexual assault (Counts 3, 4, and 5); third degree

possession of a weapon for unlawful purposes (Count 6); fourth

degree unlawful possession of a weapon (Count 7); aggravated

assault (Count 8); and possession of a weapon by a convicted

person (Count 9). (Answer, Ex. 7, ECF No. 5-9.) On April 15, 2010,

the grand jury returned a superseding indictment, adding a charge

of attempted murder to the charges in the original indictment.

(Count 9). (Answer, Ex. 8, ECF No. 5-10.)

On October 22, 2010, Petitioner pleaded guilty to amended

Count 3, criminal sexual contact, and Count 9, attempted murder.

(Answer, Ex. 3, ECF No. 5-5; Ex. 9, ECF No. 5-11.) On January 7,

2011, the court sentenced Petitioner to a sixteen-year term of

imprisonment with an 85% parole disqualifier and five years of

parole supervision on Count Nine, and to a concurrent term of

eighteen months in prison on Count Three. The sentences were

concurrent with another sentence that Petitioner was serving. The

remaining counts were dismissed. (Answer, Ex. 10, ECF No. 5-12 at

1.)

On March 8, 2012, the Superior Court of New Jersey, Appellate

Division affirmed Petitioner's sentence, rejecting the claim that

the sentence was excessive. (Answer, Ex. 12, ECF No. 5-14.) On

April 4, 2012, Petitioner filed a motion for post-conviction relief

(“PCR”). (Answer, Ex. 13, ECF No. 5-15.) Following a hearing on

February 8, 2013, the court denied Petitioner's PCR petition.

(Answer, Ex. 6, ECF No. 5-8; Ex. 15, ECF No. 5-17.) Petitioner

appealed and the Appellate Division affirmed the PCR court on April

1, 2015. (Answer, Ex. 16, ECF No. 5-18; Ex. 20, ECF No. 5-22.)

On April 14, 2015, Petitioner filed a petition for

certification with the Supreme Court of New Jersey, seeking review

of the Appellate Division's ruling. (Answer, Ex. 21, ECF No. 5-

23.) In an order entered on July 10, 2015, the Supreme Court denied

the petition. (Answer, Ex. 22, ECF No. 5-24.)

On August 15, 20l5, Petitioner filed a second PCR petition.

(Pet., ¶1l(b)(3), ECF No. 1.) On October 21, 2015, the court issued

a letter decision and entered an order denying the application.

(Answer, Ex. 23, ECF No. 5-25; Ex. 24, ECF No. 5-26.) Petitioner

appealed the denial of his second PCR petition, but the PCR court

was affirmed by the Appellate Division on September 15, 2016, and

certification was denied by the New Jersey Supreme Court on April

6, 2017. (Answer, Ex. 27, ECF No. 5-29; Ex. 28, ECF No. 5-30.)

In the meantime, on February 5, 2016, Petitioner filed a third

petition for post-conviction relief. (Answer, Ex. 25, ECF No. 5-

27 at 2.) On April 1, 2016, the PCR court issued a letter decision

and entered an order denying the application. (Answer, Ex. 25, ECF

No. 5-27; Ex. 26, ECF No. 5-28.) Petitioner filed his federal

habeas petition on May 15, 2017.

II. BACKGROUND

Pursuant to a negotiated plea agreement, Petitioner pleaded

guilty to attempted murder and criminal sexual contact, and the

remaining counts were dismissed. (Answer, Ex. 3, ECF No. 5-5.)

During the plea colloquy, Petitioner admitted to the following. On

August 8, 2009, in Atlantic City, New Jersey, Petitioner attempted

to kill R.C., a stranger to whom he offered a ride, by stabbing

her with a knife in the neck, head and face. (Id. at 10-11.)

Petitioner further admitted that he committed an act of criminal

sexual contact with R.C., by placing his mouth over her bra without

her permission to sexually gratify himself. (Id. at 11-12.)

In exchange for the guilty plea, the State agreed not to seek

an extended term of imprisonment and recommended an aggregate

sentence of sixteen years in prison subject to a statutorily-

mandated 85% parole bar, with the sentence to run concurrently

with the sentence that Petitioner was already serving. (Id. at 2-

3; Ex. 9, ECF No. 5-11 at 3.) Finding Aggravating Factors Two

(gravity and seriousness of the harm inflicted), Six (extent of

petitioner's criminal record), and Nine (need for deterrence), and

finding no mitigating factors, the court sentenced Petitioner in

accordance with the plea agreement. (Answer, Ex. 4, ECF No. 5-6 at

14-15.) Petitioner received one day of jail credit. (Answer, Ex.

10, ECF No. 5-12.)

Petitioner filed a petition for post-conviction relief.

(“PCR.”) (Answer, Ex. 13, ECF No. 5-15; Petr’s Pro Se Supp. Brief

to PCR Court, ECF No. 6 at 36-46.) The PCR court denied relief

after a hearing held on February 8, 2013. (Answer, Ex. 6, ECF No.

5-8.)

The Appellate Division made the following findings of fact on

Petitioner’s PCR appeal:

The following facts surrounding defendant’s

underlying convictions are pertinent to the

claims raised in his PCR petition. Defendant

pled guilty to attempted murder and criminal

sexual contact related to the August 2009

stabbing and sexual assault of a minor female.

The victim identified defendant as her

assailant, reporting she accepted a ride from

defendant, who then “attempted to pull down

[her] halter top and grab her breast.” When

she tried to flee, defendant “pushed her head,

striking … [it] on the dashboard” and stabbed

her “numerous times” in the face and neck. She

escaped by jumping out of a moving vehicle.

When these crimes occurred, defendant was on

conditional release under New Jersey’s

Intensive Supervision Program (ISP), for

unrelated offenses. The alleged violation of

ISP resulted in his immediate incarceration.

Defendant was charged in a ten-count

indictment.

Defendant entered his guilty pleas pursuant to

a negotiated plea agreement, which included

the State’s agreement to recommend an

aggregate sentence of sixteen years, subject

to the 85% period of parole ineligibility

imposed by the No Early Release Act (NERA),

NJSA 2C:43-7.2, to run concurrently to his

existing sentence, and not seek an extended

term sentence, N.J.S.A. 2C:44-3, despite

defendant’s three prior qualifying

convictions. The State also agreed to dismiss

all other charges. In addition to the sentence

set forth in the plea agreement, defendant was

ordered to pay the victim’s $150 medical

costs.

We considered defendant’s appeal challenging

the imposed sentence on this court’s Excessive

Sentence Oral Argument calendar. R. 2:9-11.

Defendant argued the sentence was manifestly

excessive and he was wrongfully required to

pay restitution, as represented by the $150

medical costs. The sentence was affirmed and

certification was not sought. State v.

Washington, No. A.-1449-10 (App. Div. Mar. 8,

2012).

Defendant filed a pro se PCR petition,

asserting trial counsel was ineffective during

sentencing. At the PCR hearing, defense

counsel argued the application of aggravating

factor two was erroneous, the sentencing judge

“double count[ed]” factors, and trial counsel

failed to argue defendant “led a law abiding

life for a substantial period of time, as he

had no prior convictions for violent crimes,”

N.J.S.A. 2C:44-1(b)(7). Defendant also sought

retroactive application of gap-time credits.

He requested an evidentiary hearing, alleging

facts supporting his claim existed outside the

record.

The PCR court denied defendant’s petition,

finding he failed to prove counsel’s

performance was deficient or the outcome of

the proceeding would have been different but

for counsel’s alleged errors. Even assuming

counsel raised every issue presented in

defendant’s petition, the judge concluded

defendant’s sentence was extremely lenient and

defense counsel “did a … good job negotiating

this [plea] down to [sixteen] years….”

Defendant’s claim for gap-time credits was

also rejected. The court found defendant’s ISP

violation negated his eligibility for credits.

This appeal ensued.

(Answer, Ex. 20, ECF No. 22.) On April 1, 2015, the Appellate

Division affirmed the PCR court and denied Petitioner’s newly

raised claim. (Id.)

Petitioner brought second and third petitions for post-

conviction relief, but the PCR court dismissed both petitions as

procedurally barred. (Pet., ECF No. 1, ¶11.) Petitioner appealed

the denial of his second PCR petition to the Appellate Division,

which affirmed the PCR court, and then he appealed to the New

Jersey Supreme Court, which denied certification. (Id.) Petitioner

did not exhaust his appeals of Ground Four of his third PCR

petition [Ground Nine in Petr’s Mem., ECF No. 1-7].

Petitioner filed a brief in support of his habeas petition,

raising ten grounds for relief (“Habeas Claims One through Ten”):

POINT ONE: The Petitioner’s 5th, 6th, and 14th

Amendment Federal, and State Constitutional

Rights were violated when trial counsel failed

to provide his Grand Jury Transcripts

POINT TWO: Petitioner was deprived of his 6th

and 14th Amendment Rights when his counsel

failed to argue that the prosecutor performed

malicious prosecution by withholding

exculpatory evidence and lying about evidence

to the grand jury

POINT THREE: Petitioner was deprived of his

6th and 14th Amendment Federal Constitutional

Rights when the court failed to properly

balance mitigating and aggravating factors in

determining a proper sentence at the

Defendant’s sentencing

POINT FOUR: Petitioner was deprived of his

constitutional rights to the effective

assistance of trial counsel, due process of

law and of his right to a fair trial since

trial counsel failed to object to the court

not awarding Gap and Jail time credits

POINT FIVE: Petitioner was deprived of his

constitutional rights to the effective

assistance of trial counsel, due process of

the law and of his right to a fair trial since

an inadequate factual basis existed for

attempted murder and criminal sexual contact

POINT SIX: Petitioner was deprived of his 6th

and 14th Amendment Rights when his trial

counsel and appellate counsel failed to argue

against the trial judge[’s] judicial mis-

conduct [sic] that stemmed from his unethical

comments from the bench

POINT SEVEN: Petitioner was deprived of his

constitutional rights to effective assistance

of trial counsel, due process of the law and

of his right to a fair trial since trial

counsel failed to object to the state failing

to return the Petitioner’s car and other

belongings which was [sic] seized by the State

POINT EIGHT: Petitioner was deprived of his

rights to the effective assistance of trial

counsel, due process of the law and of his

right to a fair trial since no basis existed

to assess a certain sexual offender[’]s

surcharge

POINT NINE: The Petitioner’s State and

Federal Constitutional rights were violated

when his trial counsel was ineffective by

misleading the petitioner about the plea

bargain number offered by the State at a

status conference [unexhausted and withdrawn

by Petitioner]

POINT TEN: Petitioner’s 5th, 6th and 14th

Amendment Rights were violated when the higher

courts erred in agreeing with the PCR

court[’]s denial of the petitioner’s second

P.C.R.

(Petr’s Mem., ECF No. 1-7.)

III. DISCUSSION

A. Exhaustion of Claims

Before a district court can consider an application for a

writ of habeas corpus by a person in custody pursuant to the

judgment of a State Court, the petitioner generally must exhaust

his state court remedies. 28 U.S.C. § 2254(b) provides:

(b)(1) 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 unless it appears that—

(A) the applicant has exhausted the

remedies available in the courts of the

State; or

(B)(i) there is an absence of available

State corrective process; or

(ii) circumstances exist that render such

process ineffective to protect the rights

of the applicant.

(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.

The Supreme Court explained the exhaustion requirement in

O’Sullivan v. Boerckel:

Because the exhaustion doctrine is designed to

give the state courts a full and fair

opportunity to resolve federal constitutional

claims before those claims are presented to

the federal courts, we conclude that state

prisoners must give the state courts one full

opportunity to resolve any constitutional

issues by invoking one complete round of the

State's established appellate review process.

526 U.S. 838, 845 (1999).

“‘Fair presentation’ of a claim means that the petitioner

“must present a federal claim's factual and legal substance to the

state courts in a manner that puts them on notice that a federal

claim is being asserted.” Holloway v. Horn, 355 F.3d 707, 714 (3d

Cir. 2004) (quoting McCandless v. Vaughn, 172 F.3d 255, 261 (3d

Cir.1999) (citations omitted)).

B. Exhausted Claims Three and Four

Petitioner exhausted Habeas Claims Three2 and Four by raising

the same factual and legal basis for each claim in his first PCR

petition, in the Appellate Division, and by filing a petition for

certification in the New Jersey Supreme Court.

C. Petitioner’s Unexhausted Claims: Habeas Claims One, Two,

Five, Six, Seven, Eight and Ten

Petitioner failed to exhaust Habeas Claim One. Although he

raised related claims regarding prosecutorial misconduct before

the grand jury, he did not exhaust his claim that his trial counsel

was ineffective by failing to obtain the grand jury transcripts

2 Petitioner challenged the sentencing court’s weighing of

aggravating and mitigating factors under state law on his direct

appeal (Answer, Ex. 5, ECF No. 5-7) and he raised the issue of

ineffective assistance of counsel for failing to argue against

aggravating factors and for mitigating factors in his first PCR

proceeding. (Cert. Pursuant to R. 402, ECF No. 6 at 16; Answer,

Ex. 17, ECF No. 5-19 at 9; Ex. 21, ECF No. 5-23.)

before Petitioner pled guilty. If appropriate, the Court may deny

unexhausted claims on the merits pursuant to 28 U.S.C. §

2254(b)(2). The Court will discuss the merits of the unexhausted

claims below.

Habeas Claim Two alleges ineffective assistance of counsel

for failing to object to the prosecutor’s misconduct before the

grand jury. Petitioner raised another legal theory, prosecutorial

misconduct for failure to disclose exculpatory evidence to the

grand jury, in his first PCR appeal without having first raised it

before the PCR court. (Answer, Ex. 19, ECF No. 6 at 17.) When

Petitioner raised his claim of prosecutorial misconduct again in

his second PCR petition, the court denied it on procedural grounds.

(Answer, Ex. 23, ECF No. 5-25.) In any event, Petitioner did not

exhaust his claim that his counsel was ineffective by failing to

object to the prosecutor’s failure to disclose exculpatory

evidence to the grand jury. The Court will address the merits

below.

Habeas Claims Five and Seven are unexhausted because although

Petitioner raised the issues in his first PCR petition, he did not

appeal those issues. (Cert. Pursuant to R. 402, ECF No. 6; Exhibits

17, 19, ECF Nos. 5-19, 5-21.) The Court will address the merits of

Habeas Claim Five below.

Habeas Claim Seven is not cognizable on habeas review. “A

district court shall entertain an application for a writ of habeas

corpus in behalf of a person in custody pursuant to the judgment

of a State court only on the ground that he is in custody in

violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C.A. § 2254(a). Habeas Claim Seven is a challenge

to the State’s failure to return seized property rather than a

challenge to the judgment the led to Petitioner’s custody. See

Large v. Coleman, Civ. Action No. 08-1561, 2009 WL 222964 (W.D.

Pa. Jan. 29, 2009) (denial of motion for return of seized property

is not a matter a federal habeas court is authorized to review.)

Returning to Habeas Claim Six, Petitioner asserts that his

trial and appellate counsel were ineffective by failing to object

to biased comments by the court during pretrial, at sentencing and

in the PCR hearing. In his pro se PCR appeal, Petitioner asserted

that “[t]he sentencing court improperly displayed bias which

improperly effected [sic] its’ [sic] judgment and sentencing of

the Defendant. (Pro Se Supplemental Brief on PCR Appeal, ECF No.

7 at 6; Answer, Ex. 19, ECF No. 5-21 at 13-15.) He further alleged

that “the Post Conviction Relief Court Improperly displayed bias

which improperly affected its judgment of granting the defendant

relief.” (Answer, Ex. 19, ECF No. 5-21 at 15-17.)

Habeas Claim Six is unexhausted because Petitioner did not

raise the same legal basis in state court as in his habeas claim,

ineffective assistance of counsel for failure to object to the

court’s allegedly biased comments. See Lambert v. Blackwell, 134

F.3d 506, 517 (3d Cir. 1997) (claim is unexhausted if habeas

petitioner alleged ineffective assistance of counsel in state

court but alleged a different basis for the claim in his federal

habeas petition).

Habeas Claim Eight is also unexhausted. Petitioner raised

this claim in his first PCR petition (Cert. Pursuant to R. 402,

ECF No. 6 at 25) but he did not raise it on PCR appeal. (Answer,

Exhibits 17, 19, ECF Nos. 5-19, 5-21.)

In Habeas Claim Ten, Petitioner alleges that the state courts

erred in denying his second PCR petition on procedural grounds.

The Court will address this claim below.

D. Whether Petitioner is Entitled to an Evidentiary Hearing

If a claim was adjudicated on the merits by a state court,

the habeas petitioner is limited to the record before that state

court in seeking federal habeas relief under 28 U.S.C. §

2254(d)(1). Rapelje v. McClellan, 134 S. Ct. 399, 400 (2013)

(citing Cullen v. Pinholster, 131 S. Ct. 1388, 1400 (2011)).

“Section 2254(e)(2) continues to have force where § 2254(d)(1)

does not bar federal habeas relief.” Pinholster, 131 S. Ct. at

1401.

28 U.S.C. § 2254(e)(2) provides:

(2) If the applicant has failed to develop the

factual basis of a claim in State court

proceedings, the court shall not hold an

evidentiary hearing on the claim unless the

applicant shows that—

(A) the claim relies on—

(i) a new rule of constitutional

law, made retroactive to cases on

collateral review by the Supreme

Court, that was previously

unavailable; or

(ii) a factual predicate that could

not have been previously discovered

through the exercise of due

diligence; and

(B) the facts underlying the claim would

be sufficient to establish by clear and

convincing evidence that but for

constitutional error, no reasonable

factfinder would have found the applicant

guilty of the underlying offense.

By arguing that the records he proffers show by clear and

convincing evidence that his sexual assault of the victim did not

involve penetration, that the victim’s injuries were minor;

therefore, he could not have attempted to kill her, and that the

state courts incorrectly calculated credits against his sentence,

Petitioner relies on § 2254(e)(2)(B) in seeking an evidentiary

hearing to further develop his claims. (Petr’s Mem., ECF No. 1-7;

Cert. Pursuant to R. 402, ECF No. 6.)

1. Whether evidence refutes the Indictment for

Aggravated Sexual Assault

Petitioner argues that the victim’s medical records show by

clear and convincing evidence that his sexual assault of the victim

did not involve penetration, and he seeks an evidentiary hearing

to allow factual development of this claim. Petitioner, however,

pled guilty to a lesser offense that did not involve penetration,

criminal sexual contact. Therefore, evidence that the assault did

not involve penetration does not call into question Petitioner’s

conviction.

In his reply, Petitioner contends that the medical evidence

is pertinent to his guilty plea because he would not have pled

guilty to a lesser charge if he had known the medical records

belied the victim’s report. (Petr’s Reply, ECF No. 8 at 2-3.) But

the medical record proffered here (Cert. Pursuant to R. 402, ECF

No. 6 at 6) does not establish by clear and convincing evidence

that the sexual assault did not involve penetration, only that no

injuries were seen upon examination.

The victim reported to the police that she was sexually

assaulted, including vaginal penetration, and that she saw a condom

wrapper in Petitioner’s car and believed that he used a condom.

(Answer, Ex. 2, ECF No. 5-4 at 13-15, 20-21.) Although the medical

records do not establish vaginal penetration nor do they refute

that penetration occurred. Petitioner is not entitled to an

evidentiary hearing on this claim.

2. Whether evidence refutes the attempted murder

charge

Petitioner also claims that the victim’s medical records

establish by clear and convincing evidence that he did not attempt

to kill the victim. (ECF No. 6 at 1, ) Petitioner is wrong. In New

Jersey, there are three separate categories of attempt, “one of

which looks only to defendant’s own purpose,” subsection 2 of

N.J.S.A. 2C:5-1(a). State v. Smith, 621 A.2d 493, 504 (N.J. Super.

Ct. App. Div. 1993) cert. denied, 134 N.J. 476. This provision

states “a person is guilty of an attempt to commit a crime if,

acting with the kind of culpability otherwise required for

commission of the crime, … [he/she] does or omits to do anything

with the purpose of causing such result without further conduct on

his[/her] part.” N.J.S.A. § 2C:5-1(a)(2).

“[T]o be guilty of attempted murder [under this provision],

a defendant must have purposely intended to cause the particular

result that is the necessary element of the underlying offense—

death.” Smith, 621 A.2d at 504 (quoting State v. Rhett, 601 A.2d

689 (N.J. 1992)). If the defendant has done what he believes

necessary to result in murder, it is not necessary that his conduct

would more likely than not result in the victim’s death. Id. In

Smith, the defendant was guilty of attempted murder because he bit

the victim with the intent of causing the victim’s death by

spreading the HIV virus. Id. at 505. The low probability that the

Petitioner’s actions would cause the victim’s death was

irrelevant. Id.

Here, evidence was presented to the grand jury that Petitioner

repeatedly stabbed the victim in the head, face, neck and back

with while saying words to the effect of “die bitch.” (Answer, Ex.

2, ECF No. 5-4 at 12-13.) Even assuming the victim’s wounds were

not serious enough to cause death, Petitioner admitted he stabbed

the victim for the purpose of causing her death. The grand jury

testimony that Petitioner used the words “die bitch” while he

stabbed the victim in the face, head and neck supports the

inference that Petitioner’s purpose was to kill her. Petitioner

has not established by clear and convincing evidence that the state

courts erred in finding that he attempted to murder the victim.

Petitioner is not entitled to an evidentiary hearing to further

develop this claim.

3. Whether evidence refutes that Petitioner remained

incarcerated after his August 9, 2009 arrest

Petitioner also seeks a hearing to establish that he should

have been awarded jail credit and/or gap credit beginning August

10, 2009 through the date he was sentenced for violating I.S.P.

requirements, January 7, 2011. (Petr’s Mem., ECF No. 1-7 at 20.)

Petitioner seeks to establish, by offering various documents

showing dates of his incarceration, that he was not in prison the

day after his arrest, August 10, 2009. (Cert. Pursuant to R. 402,

ECF No. 6 at 1-2.) Petitioner contends that he was not in prison

until November 5, 2009, and his I.S.P was revoked on October 28,

2009. (Id.)

One of the documents submitted by Petitioner, a page from

Petitioner’s Presentence Report (“PSR”), states “On November 18,

2008 he was enrolled in ISP, but that was later revoked on October

28, 2009, after he was arrested for the present offense.” (Cert.

Pursuant to R. 042, ECF No. 6 at 4) (emphasis added). This

statement is consistent with his incarceration after his August 9,

2009 arrest.

The South Woods State Prison Face Sheet Report submitted by

Petitioner shows the date he was sentenced, not the date he was

arrested for the present offenses. (Id. at 5.) Finally,

Petitioner’s PSR is in the state court record, and it shows, in a

document approved on December 23, 2010, “Defendant currently in

State Prison on an ISP violation on Indictment 6-11-02621-D as of

8/10/2009 (original sentence of 05/04/2007 re-imposed).” (Answer,

Ex. 29, ECF No. 5-31 at 1) (emphasis added). Thus, Petitioner has

not shown by clear and convincing evidence that the state courts

erred in a factual finding, and Petitioner is not entitled to an

evidentiary hearing to further develop this claim.

E. Habeas Standard of Review

28 U.S.C. § 2254(d) provides:

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.

“Contrary to clearly established Federal law” means the state

court applied a rule that contradicted the governing law set forth

in U.S. Supreme Court precedent or that the state court confronted

a set of facts that were materially indistinguishable from U.S.

Supreme Court precedent and arrived at a different result than the

Supreme Court. Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013)

(citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). The

phrase “clearly established Federal law” “refers to the holdings,

as opposed to the dicta” of the U.S. Supreme Court’s decisions.

Williams, 529 U.S. at 412. An “unreasonable application” of clearly

established federal law is an “objectively unreasonable”

application of law, not merely an erroneous application. Eley, 712

F.3d at 846 (quoting Renico v. Lett, 130 S. Ct. 1855, 1862 (2010)).

In applying the deference required under § 2254(d), habeas courts

must look to the last state court adjudication on the merits of

the petitioner’s claim. See e.g. Greene v. Fisher, 565 U.S. 34, 40

(2011).

1. Habeas Claim One

There are two elements to a Sixth Amendment ineffective

assistance of counsel claim, deficient performance by counsel and

prejudice. Premo v. Moore, 562 U.S. 115, 121 (2011) (citing Knowles

v. Mirzayance, 556 U.S. 111, 122 (2009)). “[I]f the defendant makes

an insufficient showing on one [prong of the Strickland test]” a

court need not address the other prong. Strickland v. Washington,

466 U.S. 668, 697 (1984). “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.” Premo, 562 U.S. at 121.

For the deficient performance prong, “a person challenging a

conviction must show that counsel's representation fell below an

objective standard of reasonableness.” Id. (internal quotations

omitted) (quoting Harrington v. Richter, 562 U.S. 86, 104 (2011)).

A petitioner must overcome a “‘strong presumption’ that counsel's

representation was within the ‘wide range’ of reasonable

professional assistance.” Id. (quoting Richter, 562 U.S. at 104)

(quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)). The

burden a petitioner must meet is “‘that counsel made errors so

serious that counsel was not functioning as the counsel guaranteed

the defendant by the Sixth Amendment.’” Id. at 122 (quoting

Richter, 562 U.S. at 104) (quoting Strickland, 466 U.S. at 687)).

Habeas review of counsel’s performance is doubly deferential, and

the question is not whether counsel’s actions were reasonable but

whether there is any reasonable argument that counsel satisfied

Strickland’s deferential standard. Id. (citations omitted).

Strict adherence to the Strickland standard is essential

“when reviewing the choices an attorney made at the plea bargain

stage.” Premo, 562 U.S. at 125. To prove Strickland prejudice in

the context of acceptance of a plea offer, a petitioner must

“demonstrate ‘a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted

on going to trial.” Id. at 129 (quoting Hill v. Lockhart, 474 U.S.

52, 59 (1985)).

[W]here a plea has been entered without a full

trial or … even before the prosecution decided

on the charges … added uncertainty … results

when there is no extended, formal record and

no actual history to show how the charges have

played out at trial[, which] works against the

party alleging inadequate assistance.

Counsel, too, faced that uncertainty. There is

a most substantial burden on the claimant to

show ineffective assistance.

Id. at 132. Hindsight and second guesses in such a case are

especially inappropriate. Id.

Petitioner claims his trial counsel was ineffective by

failing to obtain the Grand Jury Transcripts and a Bill of

Particulars that Petitioner requested on June 30, 2010. (Petr’s

Mem., ECF No. 1-7 at 9.) Petitioner contends that if the grand

jury transcripts had been provided, he would have discovered the

prosecutor’s failure to support the charge of Aggravated Sexual

Assault Charge with evidence of penetration during the sexual

assault. (Petr’s Mem., ECF No. 1-7 at 11-12.) In his reply brief,

Petitioner asserts that he would not have pled guilty to the lesser

offense of Criminal Sexual Contact if he had learned there was no

evidence to support the victim’s accusation of sexual assault

involving penetration. (Petr’s Reply, ECF No. 8 at 2.)

The grand jury transcripts do not reveal that the prosecutor

either lied or failed to provide exculpatory evidence to the grand

jury.3 The second grand jury presentation is pertinent here because

Petitioner pled guilty to two counts in the superseding indictment.

Detective Brown testified that he investigated an allegation of

assault and sexual assault that led to the charges against

Petitioner. (Answer, Ex. 2, ECF No. 5-4 at 4.) A seventeen-year-

old female reported having been a victim of rape. (Id. at 5.) She

accepted a ride from a stranger who drove her to a park rather

than her destination. (Id. at 6-7.) Detective Brown said the victim

reported that Petitioner “forced her forward and he sexually

assaulted her from behind after removing her tampon” and that she

reported a vaginal penetration. (Id. at 13, 20.)

Detective Brown agreed that the lab report indicated that no

seminal material was detected, so there was no DNA examination

done. (Answer, Ex. 2, ECF No. 5-4 at 21.) However, Detective Brown

testified that the victim told him and the “SANE nurse” that she

3 The Court notes there is no federal constitutional duty of a

prosecutor to disclose exculpatory evidence to grand jury. U.S. v.

Williams, 504 U.S. 36, 52-55 (1992).

believed Petitioner may have used a condom because she saw a

discarded condom wrapper. (Id.) Further, because the victim had

her period at the time, she could not tell whether Petitioner had

ejaculated. (Id.) Petitioner’s DNA was discovered on the victim’s

bra, and the victim’s blood was found in Petitioner’s car. (Id. at

21-22.)

The grand jury transcripts do not establish that there was no

penetration during the sexual assault of the victim, despite the

lack of DNA evidence of semen. The prosecutor explained the lack

of DNA evidence by the victim’s report that she believed the

perpetrator used a condom. Because the grand jury transcripts did

not exonerate Petitioner of Aggravated Sexual Assault and indeed

supported Petitioner’s guilty plea to Criminal Sexual Contact, his

counsel was not ineffective by failing to obtain the grand jury

transcripts before Petitioner pled guilty. Habeas Claim One is

denied.

2. Habeas Claim Two

In Habeas Claim Two, Petitioner alleges ineffective

assistance of counsel for failing to argue that the prosecutor

withheld exculpatory evidence and lied about evidence to the grand

jury. (Petr’s Mem., ECF No. 1-7 at 11.) Again, Petitioner relies

on the victim’s medical records to show the prosecutor had no

evidence to support the Aggravated Sexual Assault charge in the

original indictment. (Petr’s Mem., ECF No. 1-7 at 11.) As discussed

above, Petitioner is not entitled to an evidentiary hearing on the

victim’s medical records and the prosecutor neither withheld

exculpatory evidence nor lied to the grand jury when he elicited

testimony that the victim reported a rape with vaginal penetration

to the police. Petitioner’s counsel was not ineffective by failing

to raise a meritless claim. Werts v. Vaughn, 228 F.3d 178, 203 (3d

Cir. 2000). Habeas Claim Two is denied.

3. Habeas Claim Three

Petitioner alleged, in Habeas Claim Three, that he was

deprived of his Sixth and Fourteenth Amendment Rights when the

trial court failed to properly balance mitigating and aggravating

factors in determining a proper sentence. Respondents assert that

Petitioner did not allege a Fourteenth Amendment violation on

direct appeal. (Answer, ECF No. 5, ¶9.) The Excessive Sentencing

Oral Argument Transcript is consistent with Respondent’s

assertion; Petitioner challenged the trial court’s findings of

aggravating and mitigating factors as a matter of state law not a

federal constitutional violation. (Answer, Ex. 5, ECF No. 5-7.)

Although Petitioner uses the words “14th Amendment” in the heading

of Habeas Claim Three, he cited only state law in support of his

claim that the trial court erred. (Petr’s Mem., ECF No. 1-7 at 14-

17.)

Nevertheless, the Court will address Petitioner’s related

claim, which he exhausted in his first PCR proceeding, that his

counsel was ineffective for failing to argue that there was no

basis for Aggravating Factor Two because all of the victim’s

“injuries were deemed minor according to Medical Records[;]” the

victim was 17-years old, which does not constitute “extreme youth”

under the statute, and the victim resisted by jumping out of a

moving vehicle, which is counter[-]indicative of Aggravating

Factor Two. (Id.)

Petitioner further argues that counsel was ineffective for

not arguing that a lesser sentence should be imposed because

mitigating factors were present. (Id. at 15.) Petitioner contends

Mitigating Factor One should have applied because the conduct did

not cause serious harm, according to the medical records. (Id. at

16.) Petitioner also contends Mitigating Factor Seven should have

applied because he has no violent history, and Mitigating Factor

Six should have applied because he was ordered to pay $150 in

restitution. (Id.) Petitioner contends he would have received a

lesser sentence but for his counsel’s errors at sentencing. (Id.

at 17.)

A habeas court must give deferential review of the highest

state court’s decision on the merits of a claim. The Appellate

Division, on Petitioner’s appeal of the first PCR proceeding,

rejected Petitioner’s claim. The court held:

Here, we reject these claims and conclude, as

did the PCR judge, defendant failed to prove

either prong required by Strickland and Fritz.

Notably, defendant faced a minimum extended

term of thirty years on the attempted murder

and sexual assault charges alone. See N.J.S.A.

2C:43-6(a)(1)[,] 7(a)(1). As part of his plea,

the State agreed not to seek an extended term.

Nothing in the record suggests the trial judge

would have approved a lesser sentence than the

recommended sixteen years.

Importantly, we find no evidential

support for application of the alleged

mitigating factors. Defendant repeatedly

stabbed and sexually assaulted the minor

victim. The mere suggestion his conduct did

not cause serious harm is preposterous.

Further, he has a prior criminal record

obviating application of factor seven. … In

addition, the alleged misapplication of

aggravating factor two was considered and

rejected on appeal.

(Answer, Ex. 20, ECF No. 5-22 at 9-10.)

The Appellate Division applied the Strickland standard of

review to Petitioner’s ineffective assistance of counsel claim

regarding aggravating and mitigating factors at sentencing. (Id.

at 6-7.) Therefore, the Appellate Division’s decision was not

contrary to clearly established federal law.

Further, the Appellate Division’s application of the

Strickland standard was not unreasonable. The record indeed

supports the Appellate Division’s finding that Petitioner’s sexual

assault and stabbing of the victim caused her serious harm, which

defeats Petitioner’s claim that his counsel was ineffective for

failing to argue in favor of Mitigating Factor One, that “the

defendant’s conduct neither caused nor threatened serious harm.”

The prosecutor argued that the victim had visible scarring on her

face from the cuts Petitioner inflicted and that she recently had

cosmetic surgery on her shoulder to repair a slash injury that had

scarred very badly. (Answer, Ex. 4, ECF No. 5-6 at 6-7.) The victim

was still in counseling for emotional injury. (Id. at 7.) The

sentencing court noted the victim would have physical and mental

scars for her entire life. (Id. at 14.) Additionally, Petitioner

threatened serious harm when he grabbed her by the neck and told

her it would be better if she did what he said and she wouldn’t

get hurt, and then struck her head against the dashboard. (Id. at

13.)

The record also supports the Appellate Division’s finding

that Mitigating Factor Seven was not applicable because Petitioner

had a prior criminal record. Mitigating Factor Seven provides that

“the defendant has no history of prior delinquency or criminal

activity or has led a law-abiding life for a substantial period of

time before the commission of the present offense.” N.J.S.A. 2C:44-

1(b)(7) (effective June 29, 2010 to August 9, 2015). The PSR

submitted to the sentencing court showed twelve arrests with seven

known convictions from 1999 to 2009. (Answer, Ex. 29, ECF No. 5-

31 at 12.) Petitioner’s most recent conviction was in 2007, for

possession and distribution of CDS in a school zone. (Id. at 12-

13.) Petitioner’s crimes against the victim here occurred in August

2009. Petitioner had not led a law-abiding life for a substantial

period of time before commission of the present offenses and was

not entitled to application of Mitigating Factor Seven.

Mitigating Factor Six states “the defendant has compensated

or will compensate the victim of his conduct for the damage or

injury that he sustained, or will participate in a program of

community service.” N.J.S.A. 2C:44-1(b)(6) (effective June 29,

2010 to August 9, 2015). The sentencing court ordered restitution

in the amount of $150. (Answer, Ex. 4, ECF No. 5-6 at 15.) The

Appellate Division held that “ordered payment of the victim’s

modest medical cost unaccompanied by factual support showing

defendant’s inability to pay, defeats this claim.” (Answer, Ex.

20, ECF No. 22 at 10.) The Appellate Division’s decision that

Mitigating Factor Six did not apply is not unreasonable because

Petitioner was ordered to pay only $150 in medical costs and the

victim sustained injuries from the stabbing that caused her visible

scarring, which resulted in at least one cosmetic surgery,

suggesting that Petitioner did not fully compensate the victim for

the damage she sustained.

Finally, Petitioner argues his counsel erred by failing to

object to application of Aggravating Factor Two because (1) there

were no life threatening injuries to the victim, (2) the victim

was seventeen, which is not “extreme youth”; (3) and the victim’s

act of jumping out of a moving vehicle to escape, and her alleged

resistance to the sexual assault are counter-indicative of

Aggravating Factor Two. (Petr’s Mem., ECF No. 1-7 at 14.)

The sentencing court described the crimes as follows:

Police were called … where a female had been

reported stabbed. The police met the victim

who indicated she was assaulted by a male …

after getting into his BMW in search of a ride

to a location. The Defendant was smoking

marijuana and attempted to pull down the

[victim’s] halter top and grab her breast. He

was told to stop. He grabbed her by the neck

and told her it would be better [if] she did

what he said and she wouldn’t get hurt. He

pushed her head, striking her head on the

dashboard, proceeded to rape her from behind.

She was trying to get up when he struck her in

the left side of her neck with an object. She

thought it was a punch, soon realized she had

been stabbed numerous times as the Defendant,

in fact, indicated at the time of his plea.

He would not let the victim out of the

car, started to drive away wherein the victim

actually jumped out of the vehicle. She was 17

years old at the time. The victim had numerous

visible injuries.

(Answer, Ex. 4, ECF No. 5-6 at 13-14.)

“On its face, the statute [N.J.S.A. 2C:44-1(a)(2)] does not

limit “vulnerability” to age or other physical disabilities of the

victim. It expressly includes “any other reason” that renders the

victim “substantially incapable of exercising normal physical or

mental power of resistance.” State v. O’Donnell, 564 A.2d 1202,

1207 (N.J. 1989).

The Appellate Division’s denial of Petitioner’s ineffective

assistance of counsel claim for failing to object to Aggravating

Factor Two was not an unreasonable application of Strickland

because the sentencing court properly applied this factor.

(Answer, Ex. 20, ECF No. 5-22 at 10.) Habeas Claim Three is denied.

4. Habeas Claim Four

In Habeas Claim Four, Petitioner asserts his counsel was

ineffective by failing to object to the sentencing court’s failure

to award gap-time and jail credits. As discussed above, Petitioner

is not entitled to an evidentiary hearing to further develop the

factual basis for this claim.

Petitioner argues that he was entitled to gap-time credit

under N.J.S.A. 2C:44-5(b)(2) because when he “was sentenced on

January 7, 2011 for the subject offense, he was serving a sentence

for violating the mandates of his Intensive Supervision Program.”

(Petr’s Mem., ECF No. 1-7 at 19.) According to Petitioner, the

“subject offense” occurred on August 10, 2009, which was prior to

the date his ISP was revoked, and he was sentenced for the

revocation on October 28, 2009. (Id.) Thus, he contends he should

have been awarded gap-time credits from October 28, 2009 through

January 7, 2011. Additionally, Petitioner contends that under New

Jersey Rule 3:21-8, he was entitled to jail credit from August 10,

2009 through October 28, 2009, the date I.S.P was revoked.4

4 This contradicts Petitioner’s assertion that he was not in prison

the day after his arrest, August 10, 2009.

Respondent maintains that because Petitioner was serving a

prison sentence in connection with another matter following his

arrest in this case, he is only entitled to jail credit for the

day of his arrest. (Answer, ECF No. 5 at 17.) He is not entitled

to gap-time credit, Respondent contends, because he committed the

present crimes after he was sentenced in an earlier case. (Id.)

The Appellate Division found that Petitioner’s claim for gap-

time credits was unfounded. (Answer, Ex. 20, ECF No. 5-22 at 10.)

The court held that for gap-time credit, a defendant must establish

that both new offenses occurred prior to the imposition of the

first sentence. (Id.) The court explained that Petitioner’s new

offenses were committed well after he was sentenced on prior

convictions, and the fact that he was returned to jail after

violating ISP was irrelevant because he merely continued his

previously imposed sentence. (Id., citing State v. Hernandez, 208

N.J. 24, 38, 26 A.3d 376 (2011)). The Appellate Division summarily

denied the claim for additional jail credit without discussion.

(Id. at 11.) The PCR court also addressed the claim for gap-time

credit without discussing the claim for jail credit. (Answer, Ex.

6, ECF No. 5-8 at 9-10.)

New Jersey Court Rule 3:21-8(a) states that “the defendant

shall receive credit on the term of a custodial sentence for any

time served in custody in jail or in a state hospital between

arrest and the imposition of sentence.” “[J]ail credits … are

earned prior to the imposition of the first custodial sentence …

once the first sentence is imposed, a defendant awaiting imposition

of another sentence accrues no more jail credit[.]” Hernandez, 208

N.J. 50.

N.J.S.A. 2C:44-5(b) (effective Jan. 29, 2001), Multiple

sentences; concurrent and consecutive terms provides, in relevant

part:

b. Sentences of imprisonment imposed at

different times. When a defendant who has

previously been sentenced to imprisonment is

subsequently sentenced to another term for an

offense committed prior to the former

sentence, other than an offense committed

while in custody:

(1) The multiple sentences imposed shall

so far as possible conform to subsection

a. of this section; and

(2) Whether the court determines that the

terms shall run concurrently or

consecutively, the defendant shall be

credited with time served in imprisonment

on the prior sentence in determining the

permissible aggregate length of the term

or terms remaining to be served; and

The New Jersey Supreme Court, in Hernandez, explained:

To demonstrate an entitlement to gap-time

credit, a defendant must establish three

facts: “(1) the defendant has been sentenced

previously to a term of imprisonment[;] (2)

the defendant is sentenced subsequently to

another term[;] and (3) both offenses occurred

prior to the imposition of the first

sentence.” Id. at 462, 815 A.2d 964 (citing

Carreker, supra, 172 N.J. at 105, 796 A.2d

847). If the defendant meets those

requirements, the sentencing court is

obligated to award gap-time credits. Ibid.

(citing Carreker, supra, 172 N.J. at 105, 796

A.2d 847).

208 N.J. at 38; 26 A.3d at 384 (N.J. 2011).

Petitioner’s PSR, contained in the state court record,

indicates that he was sentenced to a 5-year term of imprisonment

with an 18-month parole stipulation on May 4, 2007, for

distribution and possession of CDS in a school zone. (Answer, Ex.

29, ECF No. 5-31 at 13.) With respect to this sentence, Petitioner

entered the ISP program on November 18, 2008. (Id.) The ISP program

is “a program of conditional release from custody—a form of

intermediate punishment between incarceration and probation—for

certain carefully screened non-violent offenders.” See State v.

Abbati, 493 A.2d 513, 520 (N.J. 1985).

Petitioner was arrested for the present offenses on August 9,

2009. (Id. at 5.) The offenses that are subject of this habeas

proceeding were committed on August 8, 2009, which was after the

imposition of Petitioner’s February 1, 2007 sentence for

distribution and possession of CDS in a school zone. (Id.)

The Appellate Division denied Petitioner’s claim for

additional jail credit and gap-time credit in accordance with state

law. Therefore, Petitioner’s counsel was not ineffective by

failing to object to the sentencing court’s award of sentencing

credit. Habeas Claim Four is denied.

5. Habeas Claim Five

In his fifth habeas claim for relief, Petitioner asserts he

was deprived of his constitutional rights to the effective

assistance of trial counsel, due process of the law and of his

right to a fair trial because an inadequate factual basis existed

for attempted murder and criminal sexual contact. Petitioner

contends that his counsel did not lay an adequate factual basis to

support a conviction for criminal sexual contact, the elements of

which are an act of sexual contact using physical force, and that

the victim did not suffer severe personal injury. (Petr’s Mem.,

ECF No. 1-7 at 21.) Petitioner further argues that his counsel

failed to lay an adequate foundation for Petitioner’s guilty plea

to attempted murder because “according to the accusers [sic]

Medical Records all injuries were minor.” (Petr’s Mem., ECF No. 1-

7 at 21-22.) The state courts did not address this unexhausted

claim.

The elements of criminal sexual contact in the fourth degree

include an act of sexual contact with the victim under any of the

circumstances set forth in section 2C:14-2c(1)-(4). N.J.S.A.

2C:14-3(b) (effective Aug. 8, 1997). Relevant here, section 2C:14-

2(c)(1) (effective August 27, 2004 to March 16, 2012) provides

“[t]he actor uses physical force or coercion, but the victim does

not sustain severe personal injury.”

Petitioner pled guilty to Criminal Sexual Contact as follows:

THE COURT: And then also on August 8, 2009,

in Atlantic City, it’s alleged that you

committed an act of criminal sexual contact

with [the victim] without the permission and

with force or coercion in order to degrade or

humiliate her or to sexually gratify yourself.

Is that true?

MR. WASHINGTON: Yes.

THE COURT: What did you do, sir?

MR. WASHINGTON: I slobbed on her bra.

THE COURT: You placed your mouth.

MR. WASHIGNTON: I placed my mouth on her bra.

THE COURT: And her bra is clothing over her

breasts.

MR. WASHINGTON: Yes.

THE COURT: Did you do so to sexually excite

yourself?

MR. WASHINGTON: Yes.

THE COURT: Is the State satisfied?

MS. LOUGHNEY: Yes, your Honor.

THE COURT: She didn’t consent to your

behavior, is that right?

MR. WASHINTON: Yes.

THE COURT: She didn’t consent.

MR. WASHINTON: She didn’t consent, yes.

(Answer, Ex. 3, ECF No. 5-5 at 11-12.)

Petitioner’s guilty plea satisfied the elements of fourth

degree criminal sexual contact; he placed his mouth on her bra

over her breasts without her consent to sexually excite himself.

The sexual contact to which Petitioner pled guilty, placing his

mouth over the victim’s bra, did not cause the victim a severe

personal injury. Therefore, Petitioner’s counsel did not fail to

lay a foundation for Petitioner’s guilty plea to criminal sexual

contact.

Petitioner also pled guilty to attempted murder as follows:

THE COURT: … Count 9 alleges, sir, that on

August 8, 2009, that you were in Atlantic

City, is that true?

MR. WASHINGTON: Yes.

THE COURT: Who was [victim’s initials]?

MR. WASHINTON: [victim’s name]

THE COURT: And where were you when you

attempted to kill her?

MR. WASHINGTON: In Venice Park.

THE COURT: How did you attempt to kill her?

MR. WASHINTON: Stab.

THE COURT: With a knife?

MR. WASHINGTON: Yes.

THE COURT: Did you actually stab her?

MR. WASHINTON: Yes.

THE COURT: What kind of injuries did you

cause?

MR. WASHINGTON: Two cuts and one stab wound

to the neck, one stab wound to the neck and

one cut to the forehead and one cut to the

face.

THE COURT: Do you agree and admit that when

you took those actions against her, that you

were trying to take her life and cause her

death?

MR. WASHINGTON: Yes.

THE COURT: Is the State satisfied on that

count?

MS. LOUGHNEY: Yes, your Honor. Just for the

record [the victim] was a person who was not

known to the defendant prior to, say an hour

before the crime occurred.

THE COURT: So you found yourself in her

company somehow, sir. How did that happen?

MR. WASHINTON: I gave her a ride.

(Answer, Ex. 3, ECF No. 5-5 at 10-11.)

As discussed in Section III(D)(1), supra, “a person is guilty

of an attempt to commit a crime if, acting with the kind of

culpability otherwise required for commission of the crime, …

[he/she] does or omits to do anything with the purpose of causing

such result without further conduct on his[/her] part.” N.J.S.A.

§ 2C:5-1(a)(2). Petitioner stated that he stabbed the victim for

the purpose of causing her death. This is a sufficient basis for

attempted murder in New Jersey. Trial Counsel did not fail to

object to an insufficient factual foundation for Petitioner’s

guilty plea. Habeas Claim Five is denied.

6. Habeas Claim Six

Petitioner’s sixth ground for habeas relief is that his trial

counsel and appellate counsel failed to object to the trial judge’s

judicial misconduct that stemmed from his unethical comments from

the bench. Petitioner alleges the Honorable Michael A. Donio made

unethical remarks at a status conference on June 30, 2010, at

sentencing on January 7, 2011, and during the PCR hearing on

February 8, 2013, all in violation of the Judicial Code of Conduct.

(Petr’s Mem., ECF No. 1-7 at 23-24.)

Beginning with the June 30, 2010 status conference,

Petitioner alleges the trial court told Petitioner that he would

put him on the trial list, “and in 60 days would be his

destruction.” (Id. at 24.) Neither party was able to obtain a

transcript of this status conference, and the Court will accept

this allegation as true. Petitioner deemed this comment as a threat

and it caused him to reluctantly accept a plea at a later date.

(Id.)

Petitioner also complains of the following statements by the

court at the time of sentencing:

[The prosecutor]: As the Court is well aware,

she did have to jump from a moving vehicle,

half naked and she arrived on the front porch

of a person in Venice Park screaming for help

and bleeding from the attack.

The Court: Any way that story is incredulous

any way.

[Answer, Ex. 4, ECF No. 5-6 at 12.]

[to the victim] The Court: You’re a very brave

and beautiful young woman.

(Id. at 10.)

[The Court] However, Aggravating Factor Two

applies, Aggravating Factors Six and Nine

applies to this act by this career criminal

without any apparent remorse.

The words that come to my mind to

describe the totality quite frankly of this

event is words like cruel, despicable,

depraved, heinous and others. There is no

reason for this to happen to this young girl,

17 years old.

This issue, as you being attacked by her

with a cork screw, as I understand it, is

definitely not plausible in my view and it is

not worthy of any belief or credence by this

Court. Quite frankly, this is the type of case

that we see this young 19 year old at this

time, w[ith] not only physical, but more

importantly, mental scars for her entire life.

(Id. at 14.)

Finally, Petitioner complains of the following comments

made by the PCR court:

And now looking at Mr. Washington, now I can

remember this victim. And I remember this

victim, and what jogs my memory about her ever

more was her sincerity. And at page ten of the

transcript – and now I remember her because I

said something that I don’t say too often – I

said to her, “you’re a very brave and

beautiful young woman.” I remember her []now.

All right. She was very credible. She was very

believable. And, quite frankly, the story that

defendant gave at the time of the sentence,

compared with her story and the facts of the

case, were night and day. And, quite frankly,

his were not plausible.

. . . and she came into court and she told me

what happened and she was very, very

believable.

(Answer, Ex. 6, ECF No. 5-8 at 10-11.)

This is not a case where even one scintilla of

a moment, even in a weak moment, would I ever

consider lowering the sentence. In fact, to be

quite frank with you, as I read this and

remembered the case, you know, I was kind of

saying, well, you know, maybe I’ll find

something in here that will justify setting

aside this conviction and have this young man

go to trial. Because, quite frankly, he really

deserves more than 16 years when I go back and

rehash this. You know, and if he goes to trial,

extended term, first degree, could be looking

at 50, 60 years in prison. But that’s not my

function.

(Id. at 12.)

This falls, quite frankly, under the category,

in my view, of being very careful what you ask

for in this world because you just may get it,

at some point.

And, Mr. Washington, what you’re asking

for here – – I’m not sure you really thought

it through, because remembering this girl and

looking at the discovery and listening to all

the arguments made at the time of sentence,

this was a – – this was indicted as an

attempted first degree murder. And to walk out

with a 16 year NERA sentence was a borderline

gift/Christmas present is what it was.

And you – – you’re right, you’re shaking

your head back there. That young man

understands that walking out with what you did

is a borderline Christmas present. Okay.

And – – but like I say, I would be

derelict in duty if I went beyond the four

corners of the record to find a reason to grant

your PCR so that you could go to trial and get

the sentence that you, probably, richly

deserve. . . .

Two, I found and still find that [Aggravating

Factor Two] applies. This was a 17 year old

very small young lady and that the seriousness

of the harm inflicted, cutting her neck and

penetrating her from behind, you know, she was

particularly vulnerable due to her extreme

youth and incapable of exercising normal

physical or mental power of resistance. So I

found that to be an aggravating factor and, I

think, it is an aggravating factor in the

case, especially, after she came in and

addressed the Court.

(Answer, Ex. 6, ECF No. 5-8 at 13-14.)

So, you know, Mr. Washington, you could file

an appeal and maybe some Appellate Division

will reverse what I’m doing here today. That

won’t upset me. Okay. Bring it back and we’ll

try it. You know, that’s not a problem.

But, like I say, my personal feelings on

this cannot enter into what I do, legally,

okay. I can’t do that.

(Id. at 14.)

Respondents countered that Petitioner failed to demonstrate

how he was harmed by any of these statements, given that he

resolved the charges in this matter by negotiating a plea agreement

with the State that dramatically reduced the punishment he could

have received at trial, and the terms of the agreement were

mutually agreeable between Petitioner and the State. (Respt’s

Brief, ECF No. 5 at 23.) Furthermore, the PCR court stated its

decision was guided by the law and not based on personal feelings.

(Id.) Respondents also note that the Appellate Division affirmed

the PCR’s court’s denial of this claim without discussion because

it lacked sufficient merit to warrant specific consideration.

(Id.)

There is a due process right to a fair trial before a fair

tribunal. Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868,

876 (2009). “As the Court has recognized, however, ‘most matters

relating to judicial disqualification [do] not rise to a

constitutional level.’” Id. (quoting FTC v. Cement Institute, 333

U.S. 683, 702 (1948)). “Personal bias or prejudice ‘alone would

not be sufficient basis for imposing a constitutional requirement

under the Due Process Clause.’” Caperton, 556 U.S. at 877 (quoting

Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820 (1986)). Where a

petitioner alleges actual bias, the issue is “whether, ‘under a

realistic appraisal of psychological tendencies and human

weakness,’ the interest ‘poses such a risk of actual bias or

prejudgment that the practice must be forbidden if the guarantee

of due process is to be adequately implemented.’” Id. at 883-84

(quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)).

“‘[J]udicial remarks during the course of a trial that are

critical or disapproving of, or even hostile to, counsel, the

parties, or their cases, ordinarily do not support a bias or

partiality challenge.’” United States v. Bertoli, 40 F.3d 1384,

1412 (3d Cir. 1994) (quoting Liteky v. U.S., 114 S. Ct. 1147, 1157

(1994)) (discussing statutory judicial disqualification under 28

U.S.C. § 455(a)).

Here, the only pre-trial comment was that trial would lead to

Petitioner’s destruction. In light of the fact that the trial judge

is not a finder of fact, this comment is insufficient to show that

there was such a risk of prejudgment that there was no guarantee

of due process at trial.

The remarks by the sentencing judge concerning the

credibility of the victim and the defendant were not improper; the

defendant and the victim spoke at sentencing in support of their

positions on the sentence. The sentencing court was required by

statute to weigh the aggravating and mitigating factors, including

the nature and circumstances of the offense and whether or not the

offense was committed in an especially heinous, cruel or depraved

manner; and the gravity and seriousness of harm inflicted on the

victim. See N.J.S.A. 2C:44-1(a). Therefore, it was proper for the

sentencing court to comment on facts of the case and the

credibility of the statements made by the defendant and the victim

at the sentencing hearing.

Finally, the remarks by the court at the PCR hearing show

that although the court found the crimes heinous, that the

defendant was not at all credible and probably deserving of a

longer sentence than was imposed under the plea agreement, the

court reiterated that the law obligated him to put his personal

feelings aside and deny relief, although doing so permitted

Petitioner to maintain the benefit of a very favorable plea bargain

of sixteen years. The court’s comments throughout the proceedings,

together with the court’s legal analysis at sentencing and on PCR,

indicate that Petitioner was not deprived of due process due to

bias of the court. Therefore, neither trial nor appellate counsel

were ineffective by failing to raise the issue of judicial bias.

Habeas Claim Six is denied.

7. Habeas Claim Eight

In Habeas Claim Eight, Petitioner contends he was deprived of

his rights to the effective assistance of trial counsel, due

process of the law and of his right to a fair trial since no basis

existed to assess a certain sexual offender[’]s surcharge.

Petitioner contends the sentencing court referred to the $100

charge as a “Sexual Assault Surcharge” but it was in fact a fine

under N.J.S.A. 2C:43-3.7, which required advance notice. (Petr’s

Mem., ECF No. 1-7 at 28.) Petitioner contends his counsel was

ineffective for failing to object to the lack of notice. (Id.)

N.J.S.A. § 2C:43-3.7 (effective 2002) provides:

In addition to any other penalty, fine or

charge imposed pursuant to law, a person

convicted of an act of aggravated sexual

assault or sexual assault under N.J.S.2C:14-

2, or aggravated criminal sexual contact or

criminal sexual contact under N.J.S.2C:14-3,

shall be subject to a surcharge in the amount

of $100 payable to the Treasurer of the State

of New Jersey for use by the Department of

Community Affairs to fund programs and grants

for the prevention of violence against women.

Petitioner’s claim is frivolous. The statute requires a

sentencing court to impose a $100 surcharge on a person convicted

of criminal sexual contact, and there was no basis for defense

counsel to object. Habeas Claim Eight is denied.

8. Habeas Claim Ten

In his tenth claim for relief, Petitioner contends “the Higher

Courts erred in agreeing with the P.C.R. Courts [sic] denial of

the Petitioner’s second P.C.R.” Petitioner raised the following

claims in his second PCR petition: (1) the trial court improperly

displayed bias in imposing the sentence upon the Defendant; and

(2) the Defendant was denied his right to fair trial because of

the State’s failure to disclose exculpatory evidence to the grand

jury. (Answer, Ex. 23, ECF No. 5-25 at 2.) Petitioner argues that

the state courts erred in finding his second PCR petition untimely.

In addressing Petitioner’s unexhausted claims, the Court has

addressed the substance of the claims brought in Petitioner’s

second PCR petition. Therefore, Ground Ten is moot.

IV. CERTIFICATE OF APPEALABILITY

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. 28 U.S.C. § 2253(c). A

certificate of appealability may issue “only if the applicant has

made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree

with the district court’s resolution of his constitutional claims

or that jurists could conclude the issues presented are adequate

to deserve encouragement to proceed further.” Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003).

For the reasons discussed above, Petitioner has not made a

substantial showing of the denial of a constitutional right.

Therefore, the Court will deny a certificate of appealability.

V. CONCLUSION

In the accompanying Order filed herewith, the petition for

habeas relief under 28 U.S.C. § 2254 is denied.

Dated: July 29, 2019

s/Renée Marie Bumb

RENÉE MARIE BUMB

United States District Judge