# WASHINGTON v. BONDS

> District Court, D. New Jersey · July 29, 2019

URL: https://www.frixlaw.com/law-library/cases/10266460

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** July 29, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NOT FOR PUBLICATION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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10266460. Public record. Not legal advice.