BROWN v. JOHNSON

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

DANIEL TWIAN BROWN, HON. JOHN MICHAEL VAZQUEZ

Petitioner,

Civil Action

v. No. 16-6066 (JMV)

STEVEN JOHNSON, et al.,

OPINION

Respondents.

VAZQUEZ, District Judge:

I. INTRODUCTION

Presently before the Court is the petition pursuant to 28 U.S.C. § 2254 (“the Petition”)

(ECF No. 1) of Daniel Twian Brown. Petitioner is currently incarcerated in New Jersey State

Prison in Trenton, New Jersey. (ECF No. 1-1 at 20.) Following a forty-three count indictment

(ECF No. 1-8); a trial on robbery, burglary, firearm possession, assault, and related charges (ECF

No. 1-52); and re-sentencing (ECF Nos. 1-9 and 1-25), Petitioner is serving a sentence, in the

aggregate, of a life term of imprisonment with a consecutive forty-one year term subject to an

eighty-five percent parole ineligibility. State v. Brown, No. A-2374-12T3, 2014 WL 8808913, at

*1 (N.J. Super. Ct. App. Div. May 13, 2015); ECF No. 1-1 at 132; ECF No. 1-25.

For the reasons stated herein, the Court denies the Petition on the merits with prejudice.

No certificate of appealability shall issue.

II. BACKGROUND

A grand jury indicted Petitioner on forty separate criminal counts, including robbery,

firearm possession, and resisting arrest regarding six armed robberies over less than a one-week

period. State v. Brown, 2009 WL 2408568, at *1 (N.J. Super. Ct. App. Div. Aug. 7, 2009). On

June 9, 2006, a jury convicted Petitioner of six counts of first-degree armed robbery; three counts

of third-degree theft; nine counts of second-degree possession of a weapon for an unlawful

purpose; six counts of third-degree unlawful possession of a rifle; three counts of third-degree

possession of a handgun without a permit; one count of second-degree armed burglary; one count

of third-degree aggravated assault; one count of second-degree eluding; two counts of fourth-

degree resisting arrest; and two counts of second-degree possession of a weapon by a convicted

felon. Brown, 2014 WL 8808913, at *1. Between December 28, 2004 and January 1, 2005,

Petitioner and other assailants committed these crimes at various locations, including four gas

stations, a convenience store, and a catering truck in a parking lot. Petitioner also stole three

vehicles. Following his arrest, Petitioner confessed to all of the crimes, with the exception of the

robbery of the catering truck. Id. On September 26, 2006, the state court granted the State’s

motions for a discretionary extended term and to impose consecutive sentences for some of the

offenses. The court sentenced Petitioner, in the aggregate, to life imprisonment, with ninety-three

years, eight months and 106 days of parole ineligibility. Id.

Petitioner filed a direct appeal. On August 7, 2009, the Appellate Division of the Superior

Court of New Jersey (“Appellate Division”) reversed the convictions related to the unlawful

possession of a rifle but affirmed all other convictions. Brown, 2009 WL 2408568, at *22. The

Appellate Division also vacated the sentence imposed on two second-degree robbery convictions

because the sentences were greater than the range permitted under N.J. Stat. Ann. § 2C:43–6(a)(2);

and the sentencing judge failed to make sufficient findings in support of the aggravating, mitigating

and Yarbough factors.1 Brown, 2009 WL 2408568, at *2. The New Jersey Supreme Court granted

1 In State v. Yarbough, 498 A.2d 1239 (N.J. 1985), cert. denied, 475 U.S. 1014 (1986), the court

s e t f o r t h t h e f a c t o r s t o b e c o n s idered when deciding whether to impose consecutive or concurrent

sentences. The Yarbough factors essentially focus upon “the nature and number of offenses for

Petitioner’s petition for certification. State v. Brown, 988 A.2d 1177 (N.J. 2010). The Court

affirmed and modified the Appellate Division’s judgment, and it remanded for resentencing. State

v. Brown, 14 A.3d 26, 35 (N.J. 2011). On September 9, 2011, the trial court re-sentenced Petitioner

to the same aggregate term. Brown, 2014 WL 8808913, at *1; ECF No. 1-25.

On March 18, 2011, Petitioner filed a PCR petition. Id.; ECF No. 1-24 at 5. The court

denied PCR on August 30, 2012. Brown, 2014 WL 8808913, at *1; ECF No. 1-24 at 1-11. On May

13, 2015, the Appellate Division affirmed denial of PCR. Brown, 2014 WL 8808913, at *1.

Petitioner filed his habeas Petition on September 29, 2016, asserting the following seven

grounds2: (1) unconstitutionally warrantless arrest (ECF No. 1-1 at 58-67); (2) violation of

Petitioner’s Fourth, Fifth, and Fourteenth Amendment rights when the trial court failed to suppress

the statements he made after his warrantless arrest and the warrantless search of his girlfriend’s

apartment (id. at 67-78); (3) IAC by trial counsel (id. at 85-115); (4) IAC by appellate counsel (id.

at 115-23); (5) imposition of unconstitutionally cruel and unusual punishment (id. at 123-33); (6)

violation of Petitioner’s Sixth Amendment and due process rights when the trial court refused him

headphones to hear sidebars (id. at 133-34); and (7) cumulative errors. (Id. at 135.) On November

7, 2016, this Court ordered Respondents to answer the Petition (ECF No. 3), which they filed on

February 20, 2017. (ECF No. 7.)

which the defendant is being sentenced, whether the offenses occurred at different times or

p l a c e s , a n d w h e t h e r t h e y i n v o l ve numerous or separate victims.” State v. Carey, 775 A.2d 495

(N.J. 2001) (quoting State v. Baylass, 553 A.2d 326 (N.J. 1989)).

2 The Petition refers to four grounds but does not expressly set forth the basis for any of them.

(ECF No. 1 at 6, 8, 9 and 11.) Rather, the Petition directs: “See Memorandum of Law.” (Id.) This

Court construes the Petition’s supporting Memorandum to assert seven grounds for relief. (See

ECF No. 1-1 at 2-5.) The Court agrees with Respondents (see ECF No. 7 at 10-11) that some of

Petitioner’s ineffective assistance of counsel (“IAC”) allegations (see ECF No. 1-1 at 78-84)

purport merely to set forth the legal standard for IAC claims.

III. STANDARD OF REVIEW

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

custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §

2254(a). Petitioner has the burden of establishing each of his claims. See Eley v. Erickson, 712

F.3d 837, 846 (3d Cir. 2013). Under 28 U.S.C. § 2254, as amended by the Anti–Terrorism and

Effective Death Penalty Act, 28 U.S.C. § 2244 (“AEDPA”), federal courts in habeas corpus cases

must give considerable deference to determinations of the state trial and appellate courts. See

Renico v. Lett, 599 U.S. 766, 772 (2010).

28 U.S.C. § 2254(d) provides as follows:

(d) An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not be

granted with respect to any claim that was adjudicated on the merits

in State court proceedings unless the adjudication of the claim –

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

Where a state court adjudicated petitioner’s federal claim on the merits, a federal court “has

no authority to issue the writ of habeas corpus unless the [state] [c]ourt’s decision ‘was contrary

to, or involved an unreasonable application of, clearly established Federal Law, as determined by

the Supreme Court of the United States,’ or ‘was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.’” Parker v. Matthews, 567

U.S. 37, 40 (2012) (quoting 28 U.S.C. § 2254(d) ). The petitioner carries the burden of proof, and

review under § 2254(d) is limited to the record that was before the state court that adjudicated the

claim on the merits. See Harrington v. Richter, 562 U.S. 86, 98, 100 (2011). With regard to §

2254(d)(1), a federal court must confine its examination to evidence in the record. See

Pinholster, 563 U.S. 170, 180-81 (2011).

“[C]learly established law for purposes of § 2254(d)(1) includes only the holdings, as

opposed to the dicta, of [the Supreme Court’s] decisions,” as of the time of the relevant state-court

decision. White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (quoting Williams v. Taylor, 529 U.S.

362, 412 (2000) ). A decision is “contrary to” a Supreme Court holding within § 2254(d)(1) if the

state court “contradicts the governing law set forth in [the Supreme Court’s] cases” or if it

“confronts a set of facts that are materially indistinguishable from a decision of th[e Supreme]

Court and nevertheless arrives at a [different] result.” Williams, 529 U.S. at 405–06. Under the

“‘unreasonable application’ clause of § 2254(d)(1), a federal habeas court may grant the writ if the

state court identifies the correct governing legal principle from th[e Supreme] Court’s decisions

but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413.

Where a petitioner seeks habeas relief, pursuant to § 2254(d)(2), on the basis of an

erroneous factual determination of the state court, two provisions of AEDPA apply. First, AEDPA

provides that “a determination of a factual issue made by a State court shall be presumed to be

correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by

clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Miller–El v. Dretke, 545 U.S. 231, 240

(2005). Second, AEDPA precludes habeas relief unless the adjudication of the claim “resulted in

a decision that was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).

IV. ANALYSIS

A. Ground One: Warrantless Arrest In Violation Of The Fourth Amendment

Petitioner alleges that his warrantless arrest was “unlawful and illegal” in violation of the

Fourth Amendment of the United States and New Jersey Constitutions. (ECF No. 1-1 at 58

(“Unlawful Arrest Claim”).) On December 30, 2004, Petitioner went to an office building on the

“borderline of Hackensack and Hasbrouck” and stole a four-door car. Three men whom Petitioner

knew as Kenny (Kenyatta Clarke), Junior, and Jermaine accompanied Petitioner. Brown, 2009 WL

2408568, at *7. Based on Clarke’s statements, police arrested three other individuals who

participated in the crimes. These individuals also gave incriminating statements to police,

including naming Petitioner as a participant. All of the men arrested implicated Petitioner in these

crimes. Id. at *7. On January 1, 2005, Hackensack police officers arrested Petitioner, based on the

arrestees’ statements. Armed with a sworn complaint, the police went to the apartment of Chastity

Connor (“Connor”), whom police believed to be Petitioner’s girlfriend. Immediately after the

arresting officers knocked on the front door of Connor’s apartment, they heard a “crash” sound --

caused by Petitioner fleeing through a back window of the apartment, onto the roof of an adjacent

building. After a tense, twenty-minute standoff, Petitioner surrendered to the police. Id.

While in custody, and after waiving his rights under Miranda v. Arizona, 384 U.S. 436

(1966), Petitioner gave incriminating statements concerning his involvement in the various crimes.

Specifically, he admitted to stealing a Nissan and an Audi and to committing December 30, 2004

armed robberies of the Easy Shop in Garfield and the BP gas station in Hackensack. Id.

Arresting officer Detective Patrick Coffey testified at a March 7, 2006 motion to suppress

hearing Before the Honorable John A. Conte, J.S.C. He stated that he drafted and signed five

complaints against Petitioner on January 1, 2005. Id. at *13; ECF No. 1-27 at 9. Four complaints

listed his address as “406 Prospect”; the other listed his address as “45 Linden Street.” Petitioner

testified that his address was 406 Prospect Street. His girlfriend and her minor daughter lived at

45 Linden Street. Brown, 2009 WL 2408568, at *13. According to Detective Coffey, he “wasn’t a

hundred percent sure” where Petitioner lived when the Detective drafted the complaints, but he

did not believe that Petitioner lived with Connor. Detective Coffey listed 45 Linden Street as

Petitioner’s address on one of the complaints because co-defendants had told Captain Frank

Lomia, who was Detective Coffey’s supervisor, that Petitioner was at Connor’s apartment.

During direct appeal, Petitioner argued that his “arrest was illegal because the arrest

warrants were not jurated until days after he was in fact arrested, and thus any statement he made

or evidence seized must also be suppressed.” Id. at *11. The Appellate Division determined that

police did not lawfully arrest Petitioner “because the face of the warrant shows that it was issued

on January 3, 2005, two days after defendant’s actual arrest.” Brown, 2009 WL 2408568, at *13.

However, the court ruled that the unlawful arrest did not trigger automatic exclusion of seized

evidence or suppression of his statements. Id.

As to the physical evidence seized during Petitioner’s arrest, the Appellate Division found

that Connor had invited police into her apartment; she consented to a search after Detective Coffey

expressed concern about weapons in the apartment; and police saw “men’s clothing … items that

they seized in plain view.” Id. at *15, *16. These circumstances rendered the evidence seized to

be “sufficiently attenuated from the taint of [the arrest’s] constitutional violation.” Id. As to

Petitioner’s post-arrest statements, the Appellate Division ruled they had “no connection to, and

are otherwise attenuated from[,] the unlawful arrest.” Based on the record, the interrogating

officers “scrupulously adhered to [Petitioner’s] rights under Miranda.” Id. at *17.

Granting Petitioner’s petition for certification, the New Jersey Supreme Court affirmed and

modified the Appellate Division’s judgment. Brown, 14 A.3d 26. The Court ruled that (1) co-

defendants’ statements implicating Petitioner provided police with sufficient probable cause to

arrest him; (2) there was no seizure of any sort in Connor’s apartment; (3) by fleeing through a

window onto an adjacent roof and creating a standoff there, Petitioner transformed the situation

from an intended arrest in a third party’s private apartment to the public arena. There, police could

arrest him without a warrant based on probable cause that he had committed armed robbery; and

(4) police had authority to arrest Petitioner without a warrant for resisting arrest. Brown, 14 A.3d

at 32-35 (“Brown’s constitutional rights were not violated by his lawful arrest”).

In Stone v. Powell, 428 U.S. 465 (1976), the United States Supreme Court held that “where

the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a

state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained

in an unconstitutional search or seizure was introduced at his trial.” Id. at 495-96. As the Third

Circuit explained in Hubbard v. Jeffes, 653 F.2d 99 (3d Cir. 1981), Stone stands for the proposition

that “when a state prisoner raises a Fourth Amendment violation in a habeas petition, a federal

court may not consider the merits of the claim if the state tribunal had afforded the petitioner ‘an

opportunity for a full and fair litigation’ of his claim.” Id. at 102-03 (citing Stone, 428 U.S. at 494);

see also Marshall v. Hendricks, 307 F.3d 36, 82 (3d Cir. 2002) (“An erroneous or summary

resolution by a state court of a Fourth Amendment claim does not overcome the [Stone] bar”)

(citations omitted); Reininger v. Attorney Gen. of New Jersey, No. 14-5486, 2018 WL 3617962, at

*9 (D.N.J. July 30, 2018). Within the Third Circuit, a petitioner can avoid the Stone bar only by

demonstrating that the state system contains a structural defect that prevented full and fair litigation

of the Fourth Amendment claim.” Marshall, 307 F.3d at 82.

Here, Petitioner availed himself of that opportunity for a full and fair litigation of his

Unlawful Arrest Claim. He moved to suppress the “physical evidence obtained from the

warrant[less] search of Ms. Connor’s apartment.” (ECF No. 1-29 at 7-8.) The trial court held two

days of evidentiary hearings on the matter, during which both Petitioner and police testified. (ECF

Nos. 1-27 and 1-28.) The trial court denied the suppression motion. (ECF No. 1-29 at 9.)

Petitioner again presented his Unlawful Arrest Claim on direct appeal. Brown, 2009 WL 2408568,

at *11. The New Jersey Supreme Court rejected it. Brown, 14 A.3d at 32-35 (determining that

Petitioner’s warrantless arrest was lawful and supported by sufficient probable cause).

The Court concludes that the New Jersey courts provided Petitioner with an adequate forum

to present his Unlawful Arrest Claim. He had a full and fair opportunity to litigate his Unlawful

Arrest Claim in the state courts. He has failed to demonstrate any structural defect in the state

courts’ review of that claim. In accordance with Stone and its progeny, this Court may not consider

the Unlawful Arrest Claim. See Gilmore v. Marks, 799 F.2d 51, 57 (3d Cir. 1986); Hubbard, 653

F.2d at 103. The Court will deny Ground One as barred by Stone.

Even if Stone did not apply, Ground One lacks merit. The Constitution prohibits the

government from conducting “unreasonable searches” of “persons, houses, papers, and effects,”

U.S. Const. amend. IV. “The general rule in a criminal proceeding is that statements and other

evidence obtained as a result of an unlawful, warrantless arrest are suppressible if the link between

the evidence and the unlawful conduct is not too attenuated.” INS v. Lopez-Mendoza, 468 U.S.

1032, 1040-41 (1984) (citing Wong Sun v. United States, 371 U.S. 471 (1963)). Whether a search

is “unreasonable” is usually determined by the warrant requirement. City of Los Angeles v. Patel,

135 S.Ct. 2443, 2452 (2015) (quoting Arizona v. Gant, 556 U.S. 332, 338 (2009)). A warrantless

arrest by a law enforcement officer “is reasonable under the Fourth Amendment where there is

probable cause to believe that a criminal offense has been or is being committed.” Devenpeck v.

Alford, 543 U.S. 146, 152 (2004). See also Brown, 14 A.3d at 32-33 (“To search for the subject of

an arrest warrant in the home of a third party, the police must obtain a search warrant -- absent

exigent circumstances or consent”) (internal citations omitted).

Under these clearly established federal law principles, it was not contrary to or an

unreasonable application of U.S. Supreme Court precedent for the New Jersey Supreme Court to

find Petitioner’s arrest lawful. The New Jersey Supreme Court explained that police had probable

cause to arrest Brown for his behavior in resisting arrest: (1) Brown’s flight “transformed the

situation from an arrest in a third party’s private apartment … to the public arena, where the police

could arrest him without a warrant based on probable cause that he had committed armed robbery.”

Brown, 14 A.3d at 34; and (2) Brown’s standoff in police presence, “posing a risk to the officers

and the public[,]” provided “an alternative basis to arrest him … without a warrant for resisting”

Id. See Kentucky v. King, 563 U.S. 452, 459-60 (2011) (citations omitted).

For all of the foregoing reasons, Ground One of the Petition is denied in its entirety.

B. Ground Two: Unconstitutional Failure To Suppress Petitioner’s Post-Arrest

Statements

Petitioner argues that the trial court should have suppressed his post-arrest custodial

statements because police had no warrant to arrest him or to search Connor’s apartment. (ECF No.

1-1 at 67-78.) He claims violation of his Fourth, Fifth, and Fourteenth Amendment rights. (Id.)

Following pre-trial evidentiary hearings on Petitioner’s suppression motion, Judge Conte rejected

the motion as to Petitioner’s post-arrest statements. (ECF No. 1-29 at 9.) The trial judge found the

statements admissible because sufficient probable cause existed to arrest Petitioner: co-defendants’

statements implicated him, and Petitioner attempted to flee Connor’s apartment. (Id. at 11.) The

trial court also determined that, given the “facts and the totality of circumstances,” Petitioner

knowingly and voluntarily waived his Miranda rights.” (Id. at 12.)

To the extent Ground Two asserts that Petitioner’s inculpatory statements should have been

suppressed as fruits of his purportedly unlawful arrest (Petitioner’s “Poisonous Tree

Contention”),3 such assertion is a quintessentially Fourth Amendment argument. Stone again bars

such claim from habeas review. See Jones v. Superintendent of Rahway State Prison, 725 F.2d 40,

42 (3d Cir. 1984) (contention that defendant’s confession and all other evidence admitted at his

trial should have been suppressed as fruit of illegal arrest was not proper subject for consideration

by federal habeas corpus court under Stone). See also Jones v. Johnson, 171 F.3d 270 (5th Cir.

1999) (on federal habeas review, federal court could not reexamine petitioner’s Fourth

Amendment claim alleging that post-arrest statements should have been suppressed as “poisonous

fruit” of his illegal arrest, since state provided opportunity for full and fair litigation of petitioner’s

Fourth Amendment claim prior to trial and thus was barred by Stone).

The New Jersey courts provided Petitioner with an adequate forum to present Ground

Two’s Poisonous Tree Contention. He argued this point in his motion to suppress. Judge Conte

considered it at the evidentiary hearing and rejected it. (ECF No. 1-29 at 9-11.) The New Jersey

Supreme Court determined that Petitioner’s arrest was lawful and was supported by sufficient

probable cause. Brown, 14 A.3d at 32-35. There was no Fourth Amendment violation in the first

instance to taint his post-arrest statements. Petitioner has not demonstrated any structural defect in

the state courts’ review of his Poisonous Tree Contention. See Marshall, 307 F.3d at 82. Pursuant

to Stone, this Court may not consider that Fourth Amendment argument in Ground Two. See

Gilmore, 799 F.2d at 57; Hubbard, 653 F.2d at 103

To the extent Ground Two alleges violation of Petitioner’s Fifth and Fourteenth

Amendment due process rights as established in Miranda v. Arizona, 384 U.S. 436 (1966)

(Petitioner’s “Miranda Contention”), such assertion is without merit. Pursuant to the Fifth

3 Evidence obtained as a result of a Fourth Amendment violation ordinarily must be suppressed

a s “ f r u i t o f t h e p o i s o n o u s t r e e . ” Wong Sun v. United States, 371 U.S. 471, 487–88 (1963).

Amendment to the United States Constitution, applicable to the States through the Fourteenth

Amendment, “[n]o person ... shall be compelled in any criminal case to be a witness against himself

[.]” U.S. Const. amend. V; Malloy v. Hogan, 378 U.S. 1, 8 (1964). In Miranda v. Arizona, 384

U.S. 436 (1966), the Supreme Court of the United States held that

when an individual is taken into custody or otherwise deprived of

his freedom by the authorities … and is subjected to questioning, the

privilege against self-incrimination is jeopardized. Procedural

safeguards must be employed to protect the privilege … [He] must

be warned prior to any questioning that he has the right to remain

silent, that anything he says can be used against him in a court of

law, that he has the right to the presence of an attorney, and that if

he cannot afford an attorney one will be appointed for him prior to

any questioning if he so desires ... After such warnings have been

given, [he] may knowingly and intelligently waive these rights and

agree to answer questions or make a statement.

384 U.S. at 478–79 (footnote omitted).

When police question a suspect in custody without administering the required warnings,

Miranda dictates that the answers received be presumed compelled and that they be excluded from

evidence in the State’s case in chief. See Oregon v. Elstad, 470 U.S. 298, 317 (1985). A confession

taken during a custodial interrogation without the provision of Miranda warnings violates the

privilege against self-incrimination. See Thompson v. Keohane, 516 U.S. 99 (1995). After such

warnings and opportunity, “the individual may knowingly and intelligently waive these rights and

agree to answer questions or make a statement.” Miranda, 384 U.S. at 479. A waiver may be made

orally or may be implied from a suspect’s conduct. See North Carolina v. Butler, 441 U.S. 369,

373 (1979); United States v. Cruz, 910 F.2d 1072, 1080 (3d Cir. 1990), cert. denied, 498 U.S. 1039

(1991). The test for waiver is two-pronged: (1) the relinquishment of the right must have been

voluntary, “in the sense that it was the product of a free and deliberate choice rather than

intimidation, coercion, or deception”; and (2) the waiver “must have been made with a full

awareness of both the nature of the right being abandoned and the consequences of the decision to

abandon it.” Moran v. Burbine, 475 U.S. 412, 421 (1986) (internal quotations marks and citations

omitted). See also Dickerson v. United States, 530 U.S. 428, 434 (2000) (internal citations

omitted); Reinert v. Larkins, 379 F.3d 76, 88 (3d Cir. 2004) (internal citations omitted).

At the suppression motion hearing, Judge Conte correctly acknowledged the court’s

obligation to review the “totality of circumstances” surrounding Petitioner’s post-arrest

statements. (ECF No. 1-28 at 72). The court carefully scrutinized in great detail evidence of the

circumstances surrounding Petitioner’s post-arrest statements and whether he had waived his

Miranda rights -- including “the events that occurred and the background, experience, and conduct

of the defendant.” See Reinert, 379 F.3d at 88. At great length, the trial court heard testimony

from four police officers who were present at during Petitioner’s custodial statements. A brief

summary follows.

On the evening of his arrest, Petitioner spoke with Captain Frank Lomia of the Hackensack

Police Department. He said Petitioner did not ask for a lawyer and did not refuse to speak with

police. (ECF No. 1-28 at 68.) Captain Lomia testified that “this [wa]s the second time [Petitioner]

was read his Miranda rights. [T]he Miranda form … was read to [Petitioner] … and [Petitioner]

… said yes to each of the questions and … then [Petitioner] signed the form.” (Id.) Judge Conte

noted that the Miranda rights form advised Petitioner of his constitutional rights “in big black bold

letters.” (ECF No. 1-28 at 68.) Petitioner signed not only the Miranda form but also a statement,

of which Judge Conte noted:

[T]he Miranda rights form [has] a waiver at the bottom … Of course

with defendant signing this[,] it flies in the face of his testimony

today.

[Exhibit] S-4 was a voluntary statement given by the defendant on

the computer … [He] initialed each page and he signed the last page.

(ECF No. 1-28 at 68 (“He never asked for a lawyer and he was never threatened or coerced”).) See

also ECF No. 7-9 at 78-84 (Petitioner’s statement given to Hackensack Police Department).)

Later that same evening, Detective Peter Schwartz of the Englewood Police Department

interrogated Petitioner. Brown, 2009 WL 2408568, at *8. Police again advised Petitioner of his

Miranda rights. He again waived those rights in writing on the Miranda form. Petitioner then

“indicated that he understood and wished to speak.” (Id.) Detective Schwartz testified that

Petitioner appeared “very calm” during the interrogation and his “demeanor was very

cooperative.” Id. Petitioner admitted that he stole the Ford Escort and committed the December

29, 2004 armed robberies of the River Edge BP gas station and the Englewood Mobil gas station.

At the conclusion of the interrogation, Detective Schwartz asked Petitioner if he wanted to add to

his statement. Id. at *9. Petitioner replied: “Yes. I am sorry and I wasn’t trying to hurt nobody. I

was trying to feed my family and I lost my job and I was going through a rough time.” Id. After

speaking to Detective Schwartz, Petitioner gave a statement confessing to stealing the Nissan and

Audi and to robbing the Easy Shop in Garfield. Id. at *10. As to this formal statement, Detective

Schwartz testified that Petitioner “gave answers to questions and he was given the opportunity to

make any changes on the form … He never invoked Miranda and he was never threatened or

coerced.” (ECF No. 1-28 at 69.)

Petitioner also waived Miranda and made a post-arrest admission to Detective Edward

Garnto of the Garfield Police Department. Detective Garnto testified at the suppression hearing

that he “advised defendant of his Miranda rights before speaking to him … Defendant signed the

[Miranda] waiver. He admitted his participation in the robbery … He was offered pizza.” (Id.)

Finally, Petitioner waived Miranda and gave a post-arrest statement to Detective Jeffrey

Telep of the Lodi Police Department. Detective Telep testified as the suppression hearing that he

advised Petitioner of his Miranda rights and that Petitioner signed the Miranda rights form.

Petitioner “ate pizza and soda prior to this statement. He was very cooperative.” (Id. at 69-70.)

Petitioner signed a formal statement. (Id.) See also Brown, 2009 WL 2408568, at *11 (“According

to Detective Telep, Petitioner was ‘very calm and cooperative,’ and he did not seem or say that he

was too tired or hungry to give a statement”).

In sharp contrast to this substantively consistent law enforcement testimony from four

different police departments, Petitioner (1) flatly denied having cognitive capacity the day of his

arrest, claiming that (a) he was feeling “woozy” after consuming a whole bottle of cognac and (b)

he had jumped out the apartment window because he “feared for Miss Connor and the baby”; (2)

claimed unawareness of his Miranda rights when he gave his statements; (3) testified that he had

repeatedly demanded counsel after his arrest; (4) suggested the involuntariness of his signed

statements; (5) denied receiving any written or verbal Miranda warnings; (6) alleged that police

never asked him questions before preparing his formal statements; (7) claimed that police

presented him with a completed statement form for his signature, which he signed only “because

of fear that police would do something to [my] family”; and (7) claimed that police never offered

or provided him with food. (ECF No. 1-28 at 70-71.)

After receiving all the evidence, the state court noted the far-fetched nature of Petitioner’s

version of the underlying facts. Judge Conte was incredulous at Petitioner’s contention that, despite

his five prior convictions, he had never before heard of Miranda. (ECF No. 1-28 at 72.) The Judge

noted the irresolvable inconsistencies among Petitioner’s post-arrest statements under oath that he

was involved in the robbery; his testimony that the words on his Miranda forms were not his; his

testimony that he never read his formal signed statements; and the evidence that police told

Petitioner to read every page of his statement and “if there’s any changes we’ll review them with

you.” (Id.)

Judge Conte commented on the implausibility of Petitioner’s version:

Defendant’s testimony today is totally incredulous. How could

anyone believe what he’s saying today? In order to believe

defendant then it would have to find the other four parties in this

case lied. They all lied deliberately to inculpate defendant. What

would they have to gain?

So the Court would have to find four parties lied. The Court would

have to find defendant committed perjury when he gave these

statements and he lied. The Court would have to find that when the

detectives questioned him and said what defendant said, they lied.

And what they wrote down was a lie and what defendant said in his

statements was a lie. Everybody lied before today. Everybody is a

liar and they all should be -- if they swore under oath, prosecuted for

perjury for being liars.

(ECF No. 1-28 at 72-73.)

Based on Petitioner’s lack of credibility and the persuasive facts of record, Judge Conte

refused to credit Petitioner’s version of events:

He swore under oath he was involved. Now today he says none of it

is true. That is the most incredulous story. Defendant has zero

credibility as a result of his testimony today. He committed perjury

today. His story is so far from reality, how could anybody in the

world sit and listen to these lies today? It is absolutely mind-

boggling that defendant would sit in court after he gave all of these

sworn statements to all these parties [and] say that he didn’t do it[,]

when all the other parties involved in the arrest said he was involved.

And for him to say, a man with over ten arrests and five convictions,

that he doesn’t know what Miranda is, oh please, how could

anybody sit in the courtroom and say that in America with that

background?

I don’t know if somebody is so naïve or they’re trying to kid the

Court, fool with the Court or think everybody else is so dumb that

they would fall for such a story that has no truth to it.

(Id. at 71-74.)

In light of that record, Judge Conte made this factual finding: “[T]he bottom line is

absolutely he was given Miranda warnings. There is no question … on that.” (Id. at 74.) Judge

Conte indicated that was “extremely satisfied that defendant was given Miranda warnings several

times orally and in writing and that he signed that he was given Miranda warnings.” (Id. at 73,

74.) The trial court denied Petitioner’s motion to suppress. (Id. at 74.)

On direct appeal, the Appellate Division rejected Petitioner’s claim that the trial court

should have suppressed his post-arrest statements as fruit of the poisonous tree and as

independently tainted by multiple violations of Petitioner’s Miranda rights. Brown, 2009 WL

2408568, at *16. Relying on both federal law and New Jersey cases applying it, the Appellate

Division was satisfied that police scrupulously honored Petitioner’s Miranda rights -- such that his

post-seizure statements were sufficiently attenuated from his arrest. Id. at *17 (citing Wong Sun v.

United States, 371 U.S. 471, 486 (1963); Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973);

Miller v. Fenton, 796 F.2d 598, 603 (3d Cir.), cert. denied, 479 U.S. 989 (1986); State v. Galloway,

628 A.2d 735, 747 (N.J. 1993); State v. Worlock, 569 A.2d 1314, 1327 (N.J. 1990); State v. Miller,

388 A.2d 218, 223 (N.J. 1978).) The New Jersey Supreme Court concluded that there was

“substantial, credible evidence in the record to support the [trial] court’s finding that Brown

voluntarily waived his rights” and that “[t]he statements he made while in police custody were

therefore admissible at trial.” Brown, 14 A.3d at 35.

This Court must presume the state courts’ factual findings that Petitioner voluntarily

waived his Miranda rights and that he voluntarily chose to give statements to police. See 28 U.S.C.

§ 2254(e)(1). Petitioner has not rebutted these findings by clear and convincing evidence or shown

that they were unreasonable in light of the evidence in the record. See 28 U.S.C. § 2254(d)(2);

Dickerson, 474 U.S. at 117 (“questions, such as the length and circumstances of the interrogation,

the defendant’s prior experience with the legal process, and familiarity with the Miranda warnings,

often require the resolution of conflicting testimony of police and defendant. The law is therefore

clear that state-court findings on such matters are conclusive on the habeas court if fairly supported

in the record”). The state courts’ factual findings are also well supported by the evidence of record.

Four police officers testified that they advised Petitioner of his Miranda rights multiple times, that

he was cooperative and calm during interrogation, and that he repeatedly waived his Miranda

rights. Petitioner claimed otherwise, but Judge Conte found him not credible. Petitioner has

presented nothing to this Court to overcome the presumption that the state courts’ factual findings

were correct.

In addition, after careful review of the very detailed and well-documented record, the trial

court’s suppression motion ruling (see ECF No. 1-28 at 65-74), and the New Jersey Supreme

Court’s determination (see Brown, 14 A.3d at 35), this Court cannot conclude that the state court

decisions were objectively unreasonable. Judge Conte considered the factors bearing on Miranda

waiver. He made extremely detailed factual findings to support his decision that Petitioner waived

his Miranda rights. The state court reasonably found that Petitioner gave his statements freely and

with an understanding of his rights. “Where the prosecution shows that a Miranda warning was

given and that it was understood by the accused, an accused’s uncoerced statement establishes an

implied waiver of the right to remain silent.” Berghuis v. Thompkins, 560 U.S. 370, 384 (2010).

With no evidence that Petitioner unambiguously invoked his right to remain silent, the

Appellate Division’s decision on the matter, too, is consistent with Miranda and its progeny. See

Berghuis, 560 U.S. at 381-82; see also Davis v. United States, 512 U.S. 452, 461-62 (1994) (“If

the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have

no obligation to stop questioning him”). Both state courts reasonably found no such evidence of

unambiguous Miranda invocation in this case. Instead, the record reflects that Petitioner received

the required Miranda warnings on several occasions -- from Detectives Coffey, Lomia, Schwartz,

Garnto, and Telep. (ECF No. 1-28 at 68-70.) He signed four Miranda rights forms. (Id.) He “never

asked for a lawyer.” (Id. at 68.) See also Colorado v. Connelly, 479 U.S. 157, 164 (1986) (coercive

police activity is a necessary predicate to the finding that a confession is not “voluntary” within

the meaning of due process).

The state courts correctly applied the governing federal law and reasonably determined the

facts in reaching their decisions that Petitioner waived Miranda and gave his custodial statements

voluntarily and knowingly. Petitioner has failed to demonstrate that the state court opinions, when

evaluated objectively and on the merits, resulted in an outcome that cannot be reasonably justified.

Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 891 (3d Cir. 1999). The record reflects that

Petitioner received the required Miranda warnings several times, initialed the statements of his

rights, signed the form, and repeatedly waived his Miranda rights. It was not objectively

unreasonable for the New Jersey courts to find Petitioner’s post-arrest statements admissible.

Therefore, to the extent Ground Two alleges violation of Petitioner’s Fifth and Fourteenth

Amendment due process rights, Petitioner’s claim lacks merit and is denied.

C. Ground Three: IAC By Trial Counsel

Petitioner argues that trial counsel rendered IAC by (1) “opening the door” during the

cross-examination of Lieutenant Novak to admission of co-defendants’ police statements

inculpating Petitioner (ECF No. 1-1 at 85-90 (“IAC Examination Claim”)); (2) not fully

investigating the case (id. at 91-94 (“IAC Investigation Claim”)); (3) performing deficiently in five

respects on the suppression motion (id. at 94-110 (“IAC Suppression Motion Claim”)); and (4)

ineffectively handling plea negotiations (“IAC Plea Claim”) (collectively, the “IAC Claims”). (Id.

at 111-115.)

Petitioner raised the IAC Claims in his PCR petition. (ECF No. 7-11 at 55.) After correctly

setting forth the governing standard for IAC claims under Strickland v. Washington, 466 U.S. 668

(1984) and State v. Fritz, 519 A.2d 336 (N.J. 1987), the PCR judge rejected Petitioner’s arguments.

Judge Roma ruled that (1) counsel provided effective assistance throughout plea negotiations (id.

at 57-58); (2) counsel provided effective assistance in his examination of Lieutenant Novak (id. at

58-60); (3) Petitioner had not demonstrated prejudice as to counsel’s case investigation (id. at 60-

62); and (4) Petitioner failed to demonstrate prejudice as to counsel’s performance on the

suppression motion. (Id. at 62-63.) Petitioner raised the IAC Claims on appeal of PCR denial.

Brown, 2014 WL 8808913, at *2. The Appellate Division affirmed the PCR court’s rulings on the

IAC Claims, ruling that Petitioner failed to meet both Strickland prongs with respect to trial

counsel. Id. at *5.

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth the standard

governing claims of ineffective assistance of counsel. First, the defendant must show that counsel’s

performance was deficient. This requirement involves demonstrating that counsel made errors so

serious that he was not functioning as the “counsel” guaranteed by the Sixth Amendment. Id. at

687. Second, the defendant must show that he was prejudiced by the deficient performance. Id.

This requires showing that counsel’s errors deprived the defendant of a fair trial. Id. “With respect

to the sequence of the two prongs, the Strickland Court held that ‘a court need not determine

whether counsel’s performance was deficient before examining the prejudice suffered by the

defendant as a result of the alleged deficiencies.’” Rainey v. Varner, 603 F.3d 189, 201 (3d. Cir.

2010) (quoting Strickland, 466 U.S. at 697)). Counsel’s performance is deficient if his

representation falls “below an objective standard of reasonableness” or outside of the “wide range

of professionally competent assistance.” Strickland, 466 U.S. at 690. In examining the question

of deficiency, “[j]udicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689.

In addition, judges must consider the facts of the case at the time of counsel’s conduct and must

make every effort to escape what the Strickland Court referred to as the “distorting effects of

hindsight.” Id. The petitioner bears the burden of showing that counsel’s challenged action was

not sound strategy. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). Furthermore, a defendant

must show a reasonable probability that, but for counsel’s errors, the result of the proceeding would

have been different. Id. at 694.

When assessing an ineffective assistance of counsel claim in the federal habeas context,

“[t]he pivotal question is whether the state court’s application of the Strickland standard was

unreasonable,” which “is different from asking whether defense counsel’s performance fell below

Strickland’s standard.” Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (quoting Harrington v.

Richter, 562 U.S. 86, 101 (2011)). “A state court must be granted a deference and latitude that are

not in operation when the case involves [direct] review under the Strickland standard itself.” Id.

Federal habeas review of ineffective assistance of counsel claims is thus “doubly deferential.” Id.

(quoting Cullen, 131 S.Ct. at 1403). Federal habeas courts must “take a highly deferential look at

counsel’s performance” under Strickland, “through the deferential lens of § 2254(d).” Id. (internal

quotation marks and citations omitted).

As to the IAC Examination Claim, Petitioner alleges that trial counsel conducted an

examination of witness Lieutenant Frank Novak in a manner that opened the door to admission of

co-defendants’ statements inculpating Petitioner. (ECF No. 1-1 at 85.) Specifically, Petitioner

argues that “[e]ssentially, the jury was told that ‘another person,’ who was not subject to cross-

examination, told the police that [Petitioner] committed the robberies.” (Id.) At the time

Lieutenant Novak testified, the jury was already aware Petitioner had confessed to committing the

armed robberies at the convenience store in Garfield and the four gas stations in Lodi, River Edge,

Englewood, and Hackensack, and to stealing the three cars. However, Petitioner had not confessed

to the armed robbery of the catering truck in Teterboro. Brown, 2014 WL 8808913, at *3.

In an attempt to counter the impact of Petitioner’s confessions, defense counsel tried to

disparage the police investigation and challenge the basis for the criminal complaint issued against

Petitioner. On direct examination, Lieutenant Novak conceded that the victim did not identify

Petitioner as a perpetrator and that Petitioner did not confess to the crime. Id. Through Novak’s

direct examination, defense counsel established that (1) Petitioner never gave a statement or

confession regarding the Teterboro incident; (2) Mr. Toronto, the lunch truck victim, never

identified Petitioner as a perpetrator; (3) the December 31, 2004 arrest date listed in the complaint

was not the date of Petitioner’s arrest; (4) Novak knew on January 2, 2005 that Petitioner was in

custody but did not attempt to speak with him until January 10, 2005; and (5) Petitioner did not

admit that he said “Give me your money” during the Teterboro incident, as the complaint charged.

(ECF No. 1-46 at 63; ECF No. 1-47 at 1-12.)

At the conclusion of Novak’s direct examination, the prosecutor argued that counsel had

opened the door for the State to ask Novak why he believed Petitioner had robbed the catering

truck, and to elicit testimony that co-defendant Winston Durant (“Durant”) had identified

Petitioner to police as the person with the gun during the Teterboro robbery. The court agreed with

the State. The judge ruled the prosecution could elicit testimony aimed at correcting the impression

left by Novak’s direct examination that police had no information to support the complaint Novak

signed. Brown, 2014 WL 8808913, at *3; ECF No. 1-47 at 12-16. The State then introduced

testimony on Novak’s cross-examination that Durant gave a statement to the Lieutenant, telling

him what happened in the Teterboro truck case. (ECF No. 1-47 at 21.) Based on Durant’s

statement, police charged Petitioner with the Teterboro crime. (Id.) Novak testified that, after

interviewing the two other Teterboro perpetrators, he charged Petitioner with robbing the lunch

truck. Brown, 2014 WL 8808913, at *3.

Following Novak’s testimony, Petitioner moved for a mistrial based on the State’s cross-

examination, asserting that it violated Bruton v. United States, 391 U.S. 123 (1968) and petitioner’s

Sixth Amendment Confrontation rights. (ECF No. 1-47 at 33-34.) The court denied the

application. The trial judge reasoned that defense counsel’s direct examination of Lieutenant

Novak was “couched [] in terms of you had no information . . . and left the jury with the distinct

impression that [Lt. Novak] had no information whatsoever [to] . . . draft[] these complaints. You

can’t have it both ways . . . you can’t ask the questions and then expect not to have some type of

examination within those areas.” (Id. at 32-33.)

During the evidentiary hearing before the PCR court, trial counsel said that his defense

strategy had to address Mr. Brown’s confession. (ECF No. 1-55 at 18.) Counsel said that “one of

the ways [to do that] was to show the manner in which the police handled the case” and to show

the police made mistakes. (Id.) Counsel denied that he had opened the door to testimony about co-

defendants’ statements. (ECF No. 1-55 at 17, 20.) In ruling on the PCR petition, Judge Roma

concluded that counsel’s action was a “strategic decision.” (ECF No. 7-11 at 59 (relying on State

v. Buonadonna, 583 A.2d 747, 757 (N.J. 1991) to support the PCR court’s conclusion under

Strickland/Fritz).)

Affirming rejection of the IAC Examination Claim, the Appellate Division agreed with the

PCR court that trial counsel provided effective assistance on Novak’s direct examination. Given

jurors’ awareness that Petitioner had confessed to the other crimes, defense counsel “had no

alternative but to challenge the thoroughness of the police’s investigation and attempt to discredit

any evidence produced by the police, which included [Petitioner]’s confessions.” Brown, 2014 WL

8808913, at *4. The Appellate Division found as follows:

Clearly, counsel’s direct examination [of Lieutenant Novak] was

part of a strategy designed to minimize the damaging impact of

defendant’s confessions. If the defense attorney had not made this

effort than defendant had no chance of being acquitted of the crimes

to which he had confessed. The risk counsel took was reasonable,

especially in light of the fact that defendant’s sentence on the

robbery of the catering truck is running concurrently to other terms.

The strategy the defense attorney employed was hardly one that

“‘thwarted the fundamental guarantee of [a] fair trial.’”

Brown, 2014 WL 8808913, at *4 (citing State v. Castagna, 901 A.2d 363, 375 (N.J. 2006)).

Given the deferential standard applied to the state courts’ Strickland determination, the

Court concludes that the Appellate Division’s decision on the IAC Examination Claim was not

contrary to or an unreasonable application of Strickland and its progeny. The Appellate Division

was not objectively unreasonable in concluding that “counsel’s direct examination was part of a

strategy designed to minimize the damaging impact of [Petitioner]’s confessions.” Brown, 2009

WL 2408568, at *4.

Petitioner acknowledges that “the entire point of questioning Novak was to highlight …

the [Teterboro] complaint[’s] errors,” but he suggests that the actual questions posed by counsel

in furtherance of that objective were defective. (ECF No. 1-1 at 88 (arguing that counsel’s

questions “raised the issue of what, if any, information the complaint was based upon”).)

Petitioner, however, fails to give a reasonable analysis as to how the objective could have

otherwise been met.

In addition, to the extent Petitioner intends for Ground Three to implicate the Sixth

Amendment’s Confrontation Clause, his IAC Examination Claim still fails. In Bruton v. United

States, 391 U.S. 123 (1968), the United States Supreme Court held that a defendant’s right under

the Sixth Amendment’s Confrontation Clause was violated where a non-testifying co-defendant’s

hearsay confession inculpating the defendant as a participant in the crime was admitted into

evidence. Under Bruton, courts employ a two-step process to determine if admission of a co-

defendant’s hearsay statement violates the Confrontation Clause: (1) whether the contested

statement by an out-of-court declarant qualifies as “testimonial.”4 If not, admissibility is governed

solely by the rules of evidence; and (2) whether the witness is unavailable and there was a prior

opportunity for cross-examination. United States v. Berrios, 676 F.3d 118, 127 (3d Cir. 2012);

United States v. Shavers, 693 F.3d 363, 395 (3d Cir. 2012) (“a witness’s statement implicates the

Confrontation Clause only if it is testimonial”) (citing Berrios, 676 F.3d at 126).

Novak testified as follows:

Prosecutor: And you in fact interviewed Winston Durant, right?

Novak: Yes.

Prosecutor: He told you everything that happened in connection

with your case, right?

Novak: Yes.

Prosecutor: Based upon what Winston Durant told you, in part, [is]

why you charged the defendant [Brown] with these crimes?

Novak: Based on Winston Durant and I believe Tony Parham also.

(ECF No. 1-47 at 20-21.) While Novak never indicated what Durant actually said, the

plain implication of the testimony is that Durant inculpated Petitioner. Nevertheless, the Court

agrees with the state court’s ruling that once the credibility of Novak’s investigation was raised by

Petitioner, the door was opened to other aspects of the officer’s investigation.

“Testimonial” statements are those made by “witnesses” who “bear testimony,” such as by

4m a k i n g a “ f o r m a l s t a t e m e n t t o government officers,” and are not statements made casually to

a cquaintances. Crawford v. Washington, 541 U.S. 36, 51-52 (2004).

For these reasons, Petitioner has not met his burden as to Strickland’s defective

performance prong for the IAC Examination Claim. It was objectively reasonable for the Appellate

Division to affirm the PCR court’s decision that counsel made a tactical decision with Novak’s

examination. The state courts’ reasoning does not amount to an unreasonable application of the

Strickland standard. The Court will therefore deny habeas relief as to the IAC Cross-Exam Claim.5

Turning to the IAC Investigation Claim, Petitioner alleges that trial counsel failed to

adequately investigate the case by (1) not locating and subpoenaing Easy Shop shooting witness

Francisco Chichel (“Chicel”) (ECF No. 1-1 at 91); (2) failing to obtain Chastity Connor’s phone

records (id. at 92-94); and (3) failing to interview “every police officer who was assigned to

[Petitioner’s] arrest from the varying municipalities.” (Id. at 94) These three arguments

collectively comprise Petitioner’s IAC Investigation Claim.

Petitioner raised the IAC Investigation Claim in his PCR petition. (ECF No. 7-11 at 55,

60.) Judge Roma ruled that Petitioner failed to demonstrate the Strickland prejudice prong. (Id. at

61.) Specifically, the Judge determined that (1) “from the information deduced at the trial, it is

clear that trial counsel’s alleged errors [as to Chicel]6 would not have changed the outcome of the

case” (id. at 60-61); (2) there was no evidence that Petitioner made a call to Ms. Connor and, in

In addition, Petitioner’s sixteen-year sentence on the Teterboro incident runs concurrently with

5t h e o t h e r c o u n t s a g a i n s t h i m . B rown, 2014 WL 8808913, at *3. Even without considering

T eterboro, Petitioner is still sentenced as to the Hackensack, Lodi, and Englewood crimes.

Petitioner has not adequately explained how he can meet Strickland’s prejudice requirement in

light of this fact. See Parkin v. United States, 565 F. App’x 149, 152 (3d Cir. 2014) (discussing

concurrent sentence doctrine); United States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002)

(Strickland requires satisfaction of both the defective performance and prejudice prongs for an

IAC claim).

6 Judge Roma noted that trial counsel had, in fact, subpoenaed Chicel, although the subpoena

w as sent out late. (ECF No. 7-11 at 60 “[Counsel] was unable to locate the witness after multiple

attempts, including the use of detective agencies”).)

any event, “proof of [a] phone call made does not prove the contents of the phone call” (id.); and

(3) Petitioner’s contention about other police officer witnesses was “mere[] speculati[on] [as to

what] additional interviews would have produced to assist [P]etitioner.” (Id.) The Appellate

Division, “[a]fter carefully considering the record and the briefs,” found the IAC Investigation

Claim to be “without sufficient merit to warrant discussion in a written opinion.” The Court

affirmed Judge Roma’s PCR decision. Brown, 2014 WL 8808913, at *5.

The Appellate Division’s affirmance of Judge Roma’s rejection of the IAC Investigation

Claim was not objectively unreasonable. As to Chicel, Petitioner alleges that Chicel would have

given the jury “an alternative description of the [Garfield robbery] shooter.” (ECF No. 1-1 at 91.)

However, evidence at trial showed that Chicel “was not an eyewitness to the [Garfield robbery]

crime itself, was intoxicated at the time he first spoke with police, and failed to recall any part of

what he first reported to police during a second interview.” (ECF No. 7-11 at 60.) The record

suggests that Chicel would have suffered from a lack of reliability as a witness, given his

intoxication and gaps in recollection. Thus, Judge Roma’s conclusion about the absence of

prejudice does not amount to an unreasonable application of the Strickland standard. Petitioner

has not demonstrated that Chicel would have given specific testimony that more likely than not

would have altered the outcome of the case. See Strickland, 466 U.S. at 693.

As to Connor, Petitioner alleges that Connor’s phone records would have corroborated his

claim that he called her after Captain Lomia threatened to phone the New Jersey Division of Youth

and Family Services (“DYFS”). Petitioner argues that Lomia threatened a DYFS call about Connor

and Petitioner’s baby if he did not speak with police. (ECF No. 1-1 at 92-94.) However, Petitioner

offers no basis for this Court to abandon its requisite deference to Judge Roma’s finding that

Petitioner had not shown Strickland prejudice. He provides no evidence, and the Court finds none

in the record after careful review, that Petitioner in fact called Connor and spoke to her about

Lomia’s alleged DYFS threat. Moreover, as Judge Roma observed, the phone records would not

reveal the substance of any call with Connor.

As to interviewing police officers, Judge Roma’s rejection of the argument constituted a

reasonable application of the Strickland prejudice prong. Petitioner claims that “there would have

been a basis to contradict the testimony of the lead witness, Detective Coffey … [i]f counsel would

have spoken with the ten officers.” (ECF No. 1-1 at 94.) However, Petitioner has not put forth

facts or arguments showing how the aforementioned officers’ testimony would have changed

trial’s outcome. See Palmer v. Hendricks, 592 F.3d 386, 393 (3d Cir. 2010) (“[A] court should be

reluctant to convene an evidentiary hearing to explore the claims of a petitioner whose pleadings

are factually insufficient to suggest any entitlement to habeas relief”). See also ECF No. 7-11 at

60-61 (“Petitioner provides no evidence that any of the officers would provide any information

demonstrating a reasonable probability that the outcome of the case would have been different”).)

Petitioner has demonstrated neither what the officers specifically would have testified nor a

reasonable probability that such testimony would have changed trial’s outcome. There is,

therefore, no basis whatsoever for this Court to conclude that but for counsel’s alleged errors as to

the ten officers, the case’s result would have differed. See Strickland, 466 U.S. at 694.

Next, as to the IAC Suppression Motion Claim, Petitioner argues that counsel erred on the

suppression motion by (a) not attacking the State’s failure to obtain a search warrant before

entering Connor’s home (ECF No. 1-1 at 94-96); (b) failing to argue that the police did not

“scrupulously honor [his] right to remain silent” (id. at 96-100); (c) failing to develop the argument

that the police lacked probable cause to arrest (id. at 100-08); (d) not attacking the police’s failure

to announce their intent to arrest him before he fled (id. at 108-09); and (e) not pursuing the

police’s alleged threat to contact the DYFS about removing Petitioner’s child from Connor’s

custody (id. at 109-10).

Petitioner raised the IAC Suppression Motion Claim’s in his PCR petition. (ECF No. 7-11

at 62.) Judge Roma rejected all five arguments, ruling that Petitioner had not demonstrated

Strickland prejudice. (Id. at 62-63.) The Judge determined that counsel was not deficient under

Strickland as to the arguments concerning the search warrant, probable cause, or intent to arrest.

(Id.) Judge Roma determined that Petitioner had not demonstrated Strickland prejudice as to the

silence and DYFS assertions. (Id.) The Appellate Division, “[a]fter carefully considering the

record and the briefs,” found the IAC Suppression Motion Claim to be “without sufficient merit

to warrant discussion in a written opinion.” The Court affirmed Judge Roma’s PCR decision.

Brown, 2014 WL 8808913, at *5 (“We conclude defendant failed to meet both prongs of the

Strickland test”).

Under the deferential standard that applies to state courts’ Strickland determinations, the

Court find that the Appellate Division’s affirmance of Judge Roma’s ruling was sound. The record

supports the objective reasonableness of Judge Roma’s rulings. Since Petitioner was inside a third-

party home when police appeared, fled when police arrived, and was arrested on an adjoining

building’s roof, “the lack of a search warrant and any lack of probable cause to arrest the

[P]etitioner at Connor’s residence are irrelevant to this case.” (ECF No. 7-11 at 62.) As the New

Jersey Supreme Court determined, police had probable cause to arrest Petitioner in those

circumstances. Brown, 14 A.3d at 34. Therefore, counsel cannot reasonably be faulted for not

challenging the police’s failure to announce their intent to arrest. Such an announcement stood

little, if any, chance of success – Petitioner was in the process of fleeing. Furthermore, Petitioner

fled the scene to an adjoining roof and had a twenty-minute police standoff. Counsel again cannot

not be faulted for not challenging failure to announce arrest. (See id. at 62-63 (citing State v.

Branch, 693 A.2d 1272 (N.J. Super. Ct. App. Div. 1997) for the principle that “police do not

always need to announce their intention to arrest, especially where the circumstances of the arrest

demonstrate that the defendant knew he was being arrested”).) Petitioner has not sustained his

habeas burden. He has not pointed to any opinion in the Strickland line of cases with which Judge

Roma’s rulings were contrary or an unreasonable application regarding the search warrant,

probable cause, or intent to arrest arguments.

The record also supports the objective reasonableness of Judge Roma’s rulings as to

Petitioner’s silence and DYFS contentions. As to the silence argument, it was “mere speculation

on [P]etitioner’s part” that the officer accompanying Detective Coffey would have corroborated

Petitioner’s claim that police did not honor his right to remain silent. (See id. at 63 (“Therefore,

the [P]etitioner failed to show that counsel’s failure to pursue the … alleged[] assert[ion] [of]

Miranda rights would have changed the outcome”).) Further on this point, the Court refers to its

discussion above regarding the weight, content, and credibility of law enforcement’s testimony in

the state record versus that of Petitioner as to his interrogation and Miranda rights. In light of that

testimonial evidence before the state court, Judge Roma’s assessment about the speculative nature

of Petitioner’s silence argument was not based on an unreasonable determination of the facts. In

fact, Judge Roma pointed out that “it would have harmed [P]etitioner’s case had the detective

supported Detective Coffey’s testimony.” (Id.) Thus, Petitioner has not carried his Strickland

prejudice burden. He has not shown that “counsel’s failure to pursue [P]etitioner’s alleged[]

assert[ion] [of] his Miranda rights would [have] change[d] the outcome.” (Id.)

The DYFS argument is similarly based merely on Petitioner’s speculative contention about

what uncertain police testimony would or would not have shown. He has not demonstrated, much

less even argued, that police testimony about Lomia’s supposed DYFS threat would have not only

discredited Lomia’s version of events but also, more likely than not, altered trial’s outcome. The

trial court found that Petitioner’s suppression testimony, at best. strained credulity. And the trial

court’s determination is fully supported by the record.

For all of these reasons, the state courts’ rulings rejecting the IAC Suppression Motion

Claim are neither contrary to nor an unreasonable application of Strickland and its progeny. Nor

have those rulings resulted in decisions based on unreasonable determinations of the facts in light

of the evidence presented in state court proceedings. The Court will therefore deny habeas relief

as to the IAC Suppression Motion Claim.

As to the IAC Plea Claim, Petitioner argues that trial counsel ineffectively handled plea

negotiations. He claims counsel never explained that the State’s plea offers did not include an

extended term. (ECF No. 1-1 at 111-15.) The State initially offered a term of approximately twenty

years, subject to the No Early Release Act, N.J. Stat. Ann. § 2C:43-7.2 (“NERA”), but later offered

a thirteen or fourteen-year term, also subject to NERA. Petitioner rejected all offers. Brown, 2014

WL 8808913, at *4.

Petitioner asserted the IAC Plea Claim in his PCR petition. (ECF No. 7-11 at 55.) He

argued that he “received a more severe sentence at trial than he likely would have received by

pleading guilty.” (Id. at 57.) Counsel told the PCR court that Petitioner understood the sentencing

exposure if he entered a guilty plea. Specifically, counsel testified as follows:

Judge Conte asked [the prosecutor] on the record whether or not Mr.

Brown’s exposure included the possibility of a discretionary

extended term … [The prosecutor] indicated to Judge Conte that Mr.

Brown was discretionary extended term … Judge Conte asked Mr.

Brown if he understood what offer was out there. Mr. Brown said

he did. Judge Conte asked Mr. Brown if he was going to accept that

offer and Mr. Brown said he would not … [Petitioner] understood

that he wouldn’t get more time than the recommendation of the

State. I don’t know if it was even couched in terms of an extended

term. The time was fixed ... but whatever the [term of years was], it

wasn’t going to be any higher than that number. There was no

circumstance under which the judge could exceed that number ...

[W]e had very, very specific discussions about the amount of time

that he was facing and the amount of time that was being offered in

the plea bargains … [M]y discussion, at least, would be this is the

number that you would be facing … [Extended term] might have

come up when the issue was raised in court, either before Judge

Roma or Judge Conte, and when you put on the record what his prior

criminal history was, and you indicated that it was a discretionary

extended term, I might have explained that to him in the jail … [T]he

trial [in this case] was over six years ago. [My] testimony [is] to the

best of my recollection.

(ECF No. 1-55 at 4, 5-6, 8, 10-11, 13) (emphasis added). Counsel also emphasized that Petitioner

did not want to plead to any of the offers made by the State. (Id. at 13.) Judge Roma found

counsel’s testimony “highly credible,” determined that “[P]etitioner was properly informed of all

plea offer,” and ruled that Petitioner had therefore not demonstrated Strickland defective

performance. (ECF No. 7-11 at 57-58.) Given that counsel informed Petitioner of the State’s plea

offer, Judge Roma also found Lafler v. Cooper, 566 U.S. 156 (2012) inapplicable. See id. at 57

(citing Lafler for the principle that “trial counsel must advise the defendant of plea offers from the

State under the Sixth Amendment”).

During appeal of PCR denial, the Appellate Division affirmed Judge Roma’s decision.

Brown, 2014 WL 8808913, at *5. The Court found that Judge Roma’s “findings are supported by

the testimony of a witness [the court] had the opportunity to see and hear.” Id. The PCR appellate

court expressly rejected Petitioner’s contention that he was unaware that the court would not

impose an extended term if he entered a guilty plea. Id.

The state courts’ denial of Petitioner’s IAC Plea Claim was objectively reasonable.

Petitioner has not shown Strickland deficient performance – i.e., that counsel’s representation “fell

below an objective standard of reasonableness” under the circumstances. See Jacobs, 395 F.3d at

102. The state court reasonably found credible trial counsel’s testimony that he did advise

Petitioner during plea negotiations about his extended term eligibility. The record supports that

finding. The PCR hearing transcript indicates that trial counsel did inform Petitioner of the State’s

offers. Counsel testified before the PCR court:

I remember very clearly having the discussion with Mr. Brown

about what a 13 or 14 years term would mean. And considering it

was NERA, I remember speaking to Mr. Brown and saying that if

he received 14 years, he’d be eligible for parole, I guess, in around

say, 12 years … And I told [him] that based on the jail credit and his

parole eligibility that he would be getting out of jail, under that term,

if he was paroled, in about ten or 11 years. [He] rejected that plea

offer. [His] attitude was that a ten or 11–year sentence to him … was

the same as a longer sentence or a life sentence. And he rejected the

plea offer ... There wasn’t a single plea that I ever had the impression

that he was considering.

(ECF No. 1-55 at 6, 13). See also ECF No. 7-11 at 57-58 (“[Defense counsel] stated that he advised

the [P]etitioner of all plea offers and discussed them with the petitioner. [He] additionally …

explained the final plea offer to the [P]etitioner and went to trial only at [Petitioner’s] insistence.

Mr. Kittner is an experienced trial lawyer, who has handled many cases before this Court”). The

Appellate Division correctly deferred to Judge Roma’s “findings which are substantially

influenced by his opportunity to hear and see the witness[].” Brown, 2014 WL 8808913, at *5.

This Court has no basis to abandon its deference to such findings, particularly where the

record corroborates -- independent of counsel’s testimony -- those findings about Petitioner’s

knowledge of the plea offers. Such independent validation includes (1) the State’s notification to

the Court and Petitioner of its plea offer on the record at the September 29, 2005 status conference

(see ECF No. 7-11 at 58); (2) the State’s communication on the record at the December 5, 2005

pre-trial conference that the final plea offer was eighteen years’ incarceration (id.); (3) the Court’s

confirmation at the pre-trial hearing that the Petitioner understood NERA’s applicability and his

discretionary extended term exposure (id.); and (4) Petitioner’s acknowledgment in a January 5,

2006 letter to Judge Conte that Petitioner “must soon decide whether or not to accept the State[’]s

offer 18 or 16 years imprisonment with a NERA trial.” (Id.)

In the face of such independent corroboration of the plea communications to Petitioner, his

reliance on Lafler v. Cooper, 566 U.S. 156 (2012) does not alter this Court’s decision. (See ECF

No. 1-1 at 112.) In Lafler, the State conceded that counsel’s advice -- that the prosecution would

be unable to establish intent to murder because the victim had been shot below the waist -- was

constitutionally deficient performance. That is not the case here. Petitioner’s contention that

counsel “prevented [him] from making an informed decision about plea bargaining” (ECF No. 1-

1 at 111) flies in the face of record evidence showing the contrary. Petitioner’s unsupported

assertions give this Court no reasonable basis to second-guess Judge Roma’s determination that

he was “properly informed of all plea offers” (ECF No. 7-11 at 57), rendering Petitioner’s Lafler

argument irrelevant.

For these reasons, the Appellate Division’s affirmance of Judge Roma’s ruling was not an

unreasonable determination of the facts in light of the evidence presented in state court. Indeed, it

is the only logical conclusion from the record. Given that “it is clear that the [P]etitioner was

aware of the plea offers and contemplated them” (ECF No. 7-11 at 58), Petitioner has not shown

that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed

by the Sixth Amendment.” See Strickland, 466 U.S. at 687. The state courts did not unreasonably

apply the governing federal standard in deciding that Petitioner did not demonstrate Strickland

deficient performance. The Court will therefore deny habeas relief as to the IAC Plea Claim.

D. Ground Four: IAC By Both Appellate Counsel

Mark Tabakman was Petitioner’s appellate counsel on direct appeal before the Appellate

Division. See Brown, 2009 WL 2408568, at *3. Petitioner contends that Mr. Tabakman rendered

deficient performance by (1) not challenging the trial court’s ruling concerning Novak’s testimony

(ECF No. 1-1 at 116-18); (2) not challenging jury selection via voir dire transcripts and arguments

about the jury’s racial composition (id. at 120); and (3) not challenging the denial of Petitioner’s

motion to sever counts of the indictment. (Id. at 120-23 (collectively, “Tabakman IAC Claim”).)

Jacqueline Turner was Petitioner’s appellate counsel on direct appeal before the New

Jersey Supreme Court. (See ECF No. 1-1 at 21.) Petitioner claims that she rendered deficient

performance by (1) allowing the State to supplement the record to show probable cause for

Petitioner’s arrest (ECF No. 1-1 at 119); and (2) conceding that the police had probable cause to

arrest Petitioner. (Id. at 120.) (ECF No. 1-1 at 119-20 (collectively, “Turner IAC Claim”).)

Petitioner raised the Tabakman IAC Claim in his PCR petition. (ECF No. 7-17 at 70-81;

ECF No. 7-11 at 55, 63-64.) Judge Roma correctly acknowledged that the Strickland test “is used

to assess the performance of appellate counsel” (see ECF No. 7-11 at 64 (citing State v. Morrison,

522 A.2d 473 (N.J. Super. Ct. App. Div. 1987)) and that “appellate counsel is not required to assert

every possible argument on appeal.” (Id. (relying on Jones v. Barnes, 463 U.S. 745, 754 (1983)).

Rejecting the Tabakman IAC Claim, the PCR court determined that Petitioner had not shown

Strickland deficient performance. (ECF No. 7-11 at 63-64 (“Appellate counsel is not required to

raise every non-frivolous issue that a defendant requests on appeal”) (citing State v. Gaither, 935

A.2d 782 (N.J. Super. Ct. App. Div. 2007).) The Appellate Division affirmed Judge Roma, finding

that Petitioner had also not shown Strickland prejudice. The Court summarily concluded that

Petitioner’s IAC arguments were “without sufficient merit to warrant written discussion.” Brown,

2014 WL 8808913, at *5.

Ineffective assistance of appellate counsel is analyzed under the Strickland standard. See

Albrecht v. Horn, 485 F.3d 103, 137 (3d Cir. 2007) (quoting United States v. Mannino, 212 F.3d

835, 840 n.4 (3d Cir. 2000)). Under that test, this Court finds that the IAC claims against Mr.

Tabakman are without merit.

Under the deficient-performance prong of Strickland, this Court presumes that Mr.

Tabakman’s choices were made in furtherance of a legal strategy. Mr. Tabakman made over one

dozen points on appeal, including a challenge to the denial of the motion for a mistrial. (See ECF

No. 7-11 at 64; ECF No. 7-4 at 1-3; ECF No. 7-2 at 1-3; ECF No. 7-1 at 1-3.) Mr. Tabakman’s

ninety-seven-page appellate brief (ECF No. 7-1 at 1-107) strongly suggests appellate counsel’s

competent comprehension of his client’s case and pertinent law. Of particular significance, he

could not challenge on appeal any issue not preserved in the record below, such as a challenge to

the jury’s racial composition. Petitioner’s criticism of appellate counsel’s election not to raise the

ruling concerning Novak and the defense’s opening the door fails as the Court has rejected the

same argument as to trial counsel’s performance.

At any rate, Petitioner has not shown Strickland prejudice -- i.e., that it is reasonably

probable that the outcome of the case would have been different if Mr. Tabakman had, for example,

challenged the trial court’s ruling on Novak’s testimony. Given that Petitioner’s sixteen-year

sentence on the Teterboro incident runs concurrently with the other counts against him, Brown,

2014 WL 8808913, at *3, he faces the same sentence as to the Hackensack, Lodi, and Englewood

crimes -- aside from the Teterboro crime. See Parkin v. United States, 565 F. App’x 149, 152 (3d

Cir. 2014) (discussing concurrent sentence doctrine). And as to the other offense, Petitioner

confessed.

Petitioner has also not shown it reasonably probable that the case’s outcome would have

differed if Mr. Tabakman had challenged denial the severance motion. As Judge Conte noted at

the March 28, 2006 motion hearing, New Jersey Rule of Court 3:7-6 allows two or more offenses

to be charged in the same indictment “if the offenses charged are of the same or similar character

or are based on the same actual transaction or on two or more acts or transactions connected

together or constituting parts of a common scheme or plan.” (ECF No. 1-29 at 12-13.) New Jersey

Rule of Court 3:15-2 “vests a trial court with discretion to order separate trials, if joinder would

prejudice unfairly a defendant.” (Id. at 13.) This “decision whether to sever an indictment rests in

the sound discretion of the trial court,” who is to “balance the potential prejudice to defendant’s

due process rights against the State’s interest in judicial efficiency.” (Id. at 14 (internal citations

omitted).) In performing that balancing, Judge Conte found “insufficient reason to sever these

trials” because the crimes “were common acts and … the evidence goes directly to all the parties

involved in one plan and scheme[.] [S]o therefore, there should be no severance.” (Id. at 15.)

Absent an abuse of discretion, appellate courts defer to trial courts’ severance decisions. Id. at 14

(internal citations omitted)). The Court can find no error in the trial court’s decision.

In light of the foregoing considerations, this Court is unable to find fault with the state

courts’ rejections of the Tabakman IAC Claim. Those rulings were neither contrary to nor an

unreasonable application of Strickland and its progeny. Nor have those rulings resulted in

decisions based on unreasonable determinations of the facts in light of the evidence presented

during Petitioner’s state court proceedings.

Respondents suggest that Petitioner also raised the claims as to Turner in his PCR petition.

(But see ECF No. 7 at 34; ECF No. 7-10 at 44-46 (citing to Petitioner’s PCR assertion of the

Tabakman, not Turner, IAC Claim).) Respondents state that the Appellate Division summarily

rejected the Turner arguments. (ECF No. 7 at 34.) However, the Appellate Division’s opinion does

not refer, either generally or specifically, to the Turner claims.

The PCR trial court referred only to Tabakman in its opinion. See Brown, 2014 WL

8808913, at *5; ECF No. 7-11 at 63-64. This Court reasonably construes that opinion to indicate

that only the Tabakman claim was presented on PCR. See ECF No. 7-11 at 63-64.)

To the extent that Petitioner did not fairly present the Turner issue to all three levels of the

New Jersey state courts, the claim is unexhausted.7 This Court can nevertheless deny it on the

merits under 28 U.S.C. § 2254(b)(2). See Taylor v. Horn, 504 F.3d 416, 427 (3d Cir. 2007) (“Here,

because we will deny all of [petitioner’s] claims on the merits, we need not address exhaustion”);

Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir. 2005) (“Under 28 U.S.C. § 2254(b)(2), we may

reject claims on the merits even though they were not properly exhausted, and we take that

approach here”). That is what the Court will do here.

The state courts reasonably could have determined that Petitioner failed to demonstrate

both Strickland prongs. First, Petitioner himself expressly advised the New Jersey Supreme Court

that he did not concede the police had probable cause to arrest him. See State v. Brown, 14 A.3d

26, 29 n. 2 (N.J. 2011) (“[D]efense counsel conceded at oral argument that the police had probable

7 Under the AEDPA, this Court may not grant a writ of habeas corpus under 28 U.S.C. § 2254

u n l e s s t h e p e t i t i o n e r h a s e x h a u sted the remedies available in the courts of the State or exhaustion

is excused under 28 U.S.C. § 2254(b)(1)(B). See Henderson v. Frank, 155 F.3d 159, 164 (3d Cir.

1998); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997); Toulson v. Beyer, 987 F.2d 984

(3d Cir. 1993). To satisfy the exhaustion requirement, “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.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

The exhaustion doctrine therefore requires a petitioner challenging a New Jersey conviction

under § 2254 to have fairly presented each federal ground that is raised in the petition to all three

levels of the New Jersey courts -- that is, the Law Division, the Appellate Division, and the New

Jersey Supreme Court. See O'Sullivan, 526 U.S. 838; Rose v. Lundy, 455 U.S. 509 (1982).

cause to arrest Brown. Brown has submitted a pro se letter stating that he does not concede that

issue, which we have considered”). In light of this fact, the state courts could have determined that

Petitioner failed to show Strickland deficient performance. Counsel did not remove Petitioner’s

probable cause position from judicial attention. Rather, the New Jersey Supreme Court was aware

that Petitioner did not wish to concede that issue.

In any event, the record amply supports the New Jersey Supreme Court’s determination

that police had sufficient probable cause to arrest Petitioner. The Court based that probable cause

ruling on co-defendants’ statements inculpating Petitioner, on Petitioner’s flight from Connor’s

apartment, and on his creation of a post-flight standoff situation with police. Id. at 34. Thus, with

the cards stacked so heavily against Petitioner on the probable cause issue, this Court cannot say

that Ms. Turner’s concession of that issue was unconstitutionally deficient. See Strickland, 466

U.S. at 687 (petitioners must show “that counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed by the Sixth Amendment”). In the face of a robust record

of probable cause for arrest, the state courts reasonably could have found that Ms. Turner’s

concession of the issue did not fall below an objective standard of reasonableness. See Jacobs, 395

F.3d at 102. See also Strickland, 466 U.S. at 689 (in scrutinizing counsel’s performance, courts

“must be highly deferential [and] must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance”). The New Jersey Supreme Court

could have found that Ms. Turner acted reasonably in conceding a weakness in Petitioner’s case,

in order to strategically focus appellate efforts on stronger arguments. Pressing the weak issue of

probable cause could have detracted from the strength of others in the defense’s case.

Second, the state courts reasonably could have determined that Petitioner failed to

demonstrate Strickland prejudice. Petitioner has not shown that Ms. Turner’s probable cause

concession prejudiced his defense such that he was “deprive[d] of a fair trial whose result is

reliable.” See Strickland, 466 U.S. at 687. There is not a reasonable probability that the case’s

outcome for Petitioner would have been different, but for Ms. Turner’s concession. In the face of

the record support for probable cause to arrest, the New Jersey Supreme Court reasonably could

have determined that nothing counsel did could have prejudiced the case’s outcome. To the

contrary, the Supreme Court expressly found that probable cause did exist. Probable cause

manifests from the facts of record -- not from Ms. Turner’s concession. Nothing that counsel did

could have changed the overwhelming probable cause circumstances that Petitioner created.

Accordingly, the state courts’ rulings were neither contrary to nor an unreasonable application of

Strickland with respect to the Turner assertions.

The Court will therefore deny habeas relief as to the entirety of Ground Four.

E. Ground Five: Cruel And Unusual Punishment

Petitioner argues that his sentence amounts to cruel and unusual punishment in violation

of the Eighth Amendment of the federal Constitution. (ECF No. 1-1 at 123-33 (“Eighth

Amendment Claim”).) On September 26, 2006, the trial judge sentenced Petitioner, in the

aggregate, to life imprisonment, with ninety-three years, eight months and 106 days of parole

ineligibility. Brown, 2014 WL 8808913, at *1. On direct appeal, the Appellate Division on August

7, 2009 reversed the convictions related to the unlawful possession of a rifle; the Court affirmed

all other convictions. Id. The Appellate Division also vacated the sentence imposed on two second-

degree robbery convictions because the length of these sentences was greater than that permitted

under New Jersey Stat. Ann. § 2C:43-6(a)(2); and the sentencing judge failed to make sufficient

findings in support of aggravating and mitigating factors. (Id.) The New Jersey Supreme Court

affirmed and modified the judgment, remanding the matter for resentencing. Brown, 2014 WL

8808913, at *1; Brown, 14 A.3d at 35. On September 9, 2011, the trial court re-sentenced Petitioner

to the same aggregate term. Id.; ECF No. 1-25. He was convicted of twenty-seven counts, facing

seventeen sentences for the crimes. (ECF No. 1-25 at 4.)

Petitioner raised the Eighth Amendment Claim in his PCR petition. (ECF No. 7-11 at 55.)

Judge Roma rejected the argument, explaining that: (1) Petitioner’s sentence was permissible

under New Jersey Stat. Ann. § 2C:44-3(a); (2) the re-sentencing court “carefully weighed the

aggravating and mitigating factors” (id. at 64-65); (3) “the eight aggravating factors substantially

outweighed the sole mitigating factor” (id. at 65); and (4) consecutive sentence were appropriate

pursuant to factors in State v. Yarborough, 498 A.2d 1239 (1985). (ECF No. 7-11 at 65.) Affirming

Judge Roma, the Appellate Division was “not persuaded” by the Eighth Amendment Claim,

finding it without sufficient merit to warrant discussion. Brown, 2014 WL 8808913, at *1, *5.

This Court finds that Petitioner is not entitled to relief on the Eighth Amendment Claim.

A federal court’s ability to review state sentences is limited to challenges based upon “proscribed

federal grounds such as being cruel and unusual, racially or ethnically motivated, or enhanced by

indigencies.” See Grecco v. O’Lone, 661, F. Supp. 408, 415 (D.N.J. 1987) (citation omitted). Thus,

a challenge to state court discretion at sentencing is not reviewable in a federal habeas proceeding

unless the sentence violates a separate federal constitutional limitation. Butrim v. D’Ilio, No. 14-

4628, 2018 WL 1522706, at *16 (D.N.J. Mar. 28, 2018) (citing Pringle v. Court of Common Pleas,

744 F.2d 297, 300 (3d Cir. 1984)). See also 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62,

67 (1991); Lewis v. Jeffers, 497 U.S. 764, 780 (1990). A sentence that is within the limits imposed

by statute “is neither excessive nor cruel and unusual under the Eighth Amendment.” United States

v. Miknevich, 638 F.3d 178, 186 (3d Cir. 2011). That is the case here. Petitioner was sentenced

within statutorily prescribed limits.

Under New Jersey law, the ordinary term of imprisonment for first-degree robbery -- one

of Petitioner’s twenty-seven convictions -- is between ten and twenty years. N.J. Stat. Ann. §§

2C:15-1(b) and 2C:43-6(a)(1). New Jersey law also mandates that robbery is subject to NERA,

under which a defendant must serve eighty-five percent of his sentence before being eligible for

parole. See N.J. Stat. Ann. §§ 2C:43-7.2(a), (d)(9). New Jersey Stat. Ann § 2C:44-3(a) provides,

in pertinent part as follows:

The court may, upon application of the prosecuting attorney,

sentence a person who has been convicted of a crime of the first,

second or third degree to an extended term of imprisonment if it

finds one or more of the grounds specified in subsection a., b., c., or

f. of this section. [...] a. The defendant has been convicted of a crime

of the first, second or third degree and is a persistent offender.

N.J. Stat. Ann. § 2C:44-3. If a defendant is found to be subject to an extended term on a first-

degree crime, the New Jersey sentencing guidelines provide that the defendant may face up to life

in prison. N.J. Stat. Ann. § 2C:43-7(a)(2).

In this case, the state court granted the State’s motion for an extended term under New

Jersey Stat. Ann § 2C:44-3(a) based on Petitioner’s persistent offender status. Brown, 2009 WL

2408568, at *19. On this basis, Petitioner faced a maximum sentence of life in prison. Thus, even

Petitioner’s sentence as to first degree robbery alone was within the appropriate statutory limits.

In other words, having been convicted of the first-degree offense of armed robbery and thus being

subject to an extended term, Petitioner faced extended term imprisonment between twenty years

and life, New Jersey Stat. Ann. § 2C:43–7(a)(2); and a presumptive term of fifty years. N.J.S.A. §

2C:44–1(f)(1).8 He also faced a parole ineligibility term between one-third and one-half of the

8 “Unless the preponderance of mitigating factors set forth in subsection b. weighs in favor of a

l o w e r t e r m w i t h i n t h e l i m i t s a u thorized, sentences imposed pursuant to paragraph (1) of

subsection a. of N.J.S. 2C:43-7 shall have a presumptive term of life imprisonment. Unless the

preponderance of aggravating and mitigating factors set forth in subsections a. and b. weighs in

base term. N.J.S.A. § 2C:43–7c. But under NERA, New Jersey Stat. Ann. § 2C:43–7.2, these

terms carry parole ineligibility of 85% of the base extended term. Id. In other words, Petitioner’s

sentence was consistent with New Jersey state law.

Furthermore, courts have consistently rejected the argument that extended term sentencing

violates Eighth Amendment rights. The United States Supreme Court has previously held that

“the Eighth Amendment contains a ‘narrow proportionality principle,’ that ‘does not require strict

proportionality between crime and sentence’ but rather ‘forbids only extreme sentences that are

‘grossly disproportionate’ to the crime.’” Graham v. Florida, 560 U.S. 48, 59-60 (2010) (quoting

Harmelin v. Michigan, 501 U.S. 957, 997, 1000-01 (1991)).9 In Lockyer v. Andrade, 538 U.S. 63

(2003), the Supreme Court held that, “[t]he gross proportionality principle reserves a constitutional

violation only for the extraordinary case.” Lockyer, 538 U.S. at 77. “A court must consider three

proportionality factors when evaluating Eighth Amendment challenges: (1) the [offense’s] gravity

and the [penalty’s] harshness; (2) the sentences imposed on other criminals in the same

jurisdiction; and (3) the sentences imposed for commission of the same crime in other

jurisdictions.” United States v. Burnett, 773 F.3d 122, 136 (3d Cir. 2014) (citing Solem v. Helm,

463 U.S. 277, 290-92 (1983)). “In conducting this analysis, a court grants substantial deference to

legislative decisions regarding punishments for crimes.” Id.

Here, the sentencing judge relied on State v. Yarbough, 498 A.2d 1239 (N.J. 1985), cert.

favor of a higher or lower term within the limits authorized, sentences imposed pursuant to

p a r a g r a p h ( 2 ) o f s u b s e c t i o n a . of N.J.S. 2C:43-7 shall have a presumptive term of 50 years'

imprisonment[.]” New Jersey Stat. Ann. § 2C:44–1(f)(1).

9 For example, the United States Supreme Court has upheld sentences of life in prison for a

defendant’s third nonviolent felony pursuant to Texas’ recidivist statute, Rummel v. Estelle, 445

U.S. 263 (1980); twenty-five years to life in prison for theft of golf clubs under California’s

Three Strikes sentencing scheme, Ewing v. California, 538 U.S. 11 (2003); and two consecutive

terms of twenty-five years to life in prison for two convictions for petty theft, also pursuant to

California’s Three Strikes law. Lockyer v. Andrade, 538 U.S. 63 (2003).

denied, 475 U.S. 1014 (1986), which sets out factors for determining whether sentences should be

consecutive or concurrent. (ECF No. 1-25 at 3-4.) This Court cannot review whether the state

court applied the Yarbough factors correctly, see Estelle, 502 U.S. at 67–68, but for Eighth

Amendment purposes the Court notes that the Yarbough factors are an amalgamation of other

jurisdictions’ criteria for imposing consecutive or concurrent sentences. Yarbough, 498 A.2d at

1245–48. Judge Roma found that “Yarbough factors #1 and #3 apply.”10 (ECF No. 1-25 at 4.)

Applying the constitutional proportionality principle’s first factor, this Court finds nothing in the

record to disturb the state court’s evaluation of offense gravity and penalty harshness.

Further, Petitioner’s sentence is consistent with sentences received by others convicted of

the same crime. See State v. Dudley, 2007 WL 209918, at *10 (N.J. Super. Ct. App. Div. Jan. 29,

2007) (upholding defendant’s extended term sentence of fifty years for first-degree robbery with

twenty-two years of parole disqualification); State v. Washington, 2008 WL 1733661, at *8 (N.J.

Super. Ct. App. Div. Apr. 16, 2008) (affirming extended term sentence of fifty years on armed

robbery conviction, since the sentence was not manifestly excessive or unduly punitive).

For all of these reasons, this Court concludes that the state court ruling on Petitioner’s

sentencing was not contrary to, or an unreasonable application of, clearly established Eighth

Amendment federal jurisprudence. The state sentence was not unconstitutional, in light of the facts

on the record below. Petitioner is not entitled to relief on his Eighth Amendment Claim.

F. Ground Six: Refusal To Allow Petitioner’s Use Of Earphones For Sidebar

Conferences

Petitioner argues that the trial court violated his Sixth Amendment and due process rights

10 See Yarbough, 498 A.2d at 1247–48 (“the crimes and their objectives were predominantly

i n d e p e n d e n t o f e a c h o t h e r ” ; a n d “the crimes were committed at different times or separate

places, rather than being committed so closely in time and place as to indicate a single period of

aberrant behavior”).

by not permitting him to listen to sidebars with in-court headphones. (ECF No. 1-1 at 133-34) At

trial, Petitioner participated in jury selection sidebar conferences by remaining seated at counsel’s

table and listening to the discussions through an earpiece. Brown, 2009 WL 2408568, at *19; ECF

No. 1-1 at 134. After jury selection, when the State began presenting evidence, he asked to

participate in sidebars by wearing that same earpiece. He argued that the same rationale that grants

a defendant a sidebar participation right during jury voir dire should apply during trial. Id. The

trial court disagreed. The judge stated that sidebar conferences during trial are “totally different”

from those during voir dire. The latter involve legal arguments, while the former implicate

observations that form jury challenges’ basis. The trial court thus found no authority to support

Petitioner’s request. (Id.; ECF No. 1-34 at 29-30.)

Petitioner raised the sidebar claim on direct appeal. Brown, 2009 WL 2408568, at *11. The

Appellate Division concluded that the trial court’s sidebar ruling did not amount to a basis to

reverse Petitioner’s convictions or conclude that trial produced an unjust result. Id. at *19.

Petitioner next asserted the claim in his PCR application. (ECF No. 7-11 at 64.) Judge Roma

rejected the claim as procedurally barred under New Jersey Rule of Court 3:22-5,11 since “the

issues were addressed and the challenge was dismissed by the Appellate Division.” (Id.) On appeal

of PCR denial, the Appellate Division found the sidebar claim to be without sufficient merit to

warrant written discussion. Brown, 2014 WL 8808913, at *5.

This Court finds that the sidebar claim is without merit for the following reasons. The

Sixth Amendment allows a defendant to make significant tactical decisions regarding his own case

11 “A prior adjudication upon the merits of any ground for relief is conclusive whether made in

t h e p r o c e e d i n g s r e s u l t i n g i n t h e conviction or in any post-conviction proceeding brought

pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such

proceedings.” New Jersey Rule of Court 3:22-5.

instead of being subjected against his will to counsel’s strategy. Faretta v. California, 422 U.S.

806 (1975); McKaskle v. Wiggins, 465 U.S. 168, 178 (1984). A defendant must have the

opportunity to “control the organization and content of his own defense, to make motions, to argue

points of law, to participate in voir dire, to question witnesses, and to address the court and the

jury at appropriate points in the trial.” Id. at 174.

“[U]nder [New Jersey] Rule [of Court] 3:16, a defendant, who requests it, ordinarily has a

right of presence at voir dire sidebar conferences.” State v. W.A., 875 A.2d 882, 884 (2005).

However, “presence at sidebar need not always mean physical presence.” Id. at 891. Where there

are security issues that militate against a defendant’s physical presence at a voir dire sidebar, a

court may utilize other methods to ensure a defendant is able to meaningfully participate in voir

dire. Id. at 892. These methods may include the use of electronic equipment, such as wireless

listening devices. Id. at 883. A defendant’s exclusion from sidebar, after having requested

presence, and in the absence of a substituted process, does not automatically warrant reversal. Id.

at 894. Rather, each case must be assessed under a harmless error analysis. Id.

The United States Supreme Court has not addressed whether a defendant’s exclusion from

sidebar conferences implicates the defendant’s constitutional rights. See United States v. Schwartz,

315 F. App’x 412, 416 n.1 (3d Cir. 2009); Davenport v. Ricci, No. 09-4997, 2012 WL 2863662,

at *13 (D.N.J. July 11, 2012). Instead, relevant Supreme Court precedent makes clear that voir

dire “is conducted under the supervision of the court, and a great deal must, of necessity, be left to

its sound discretion.” Connors v. United States, 158 U.S. 408, 413 (1895); accord Robinson v.

Johnson, No. 15-8097, 2018 WL 2859672, at *14 (D.N.J. June 11, 2018). Furthermore,

“[e]xclusion from a single sidebar conference conducted outside the jury’s presence does not

automatically deny one the right to self-representation; rather, it must be viewed in the context of

the trial as a whole.” United States v. Ottaviano, 738 F.3d 586, 598 (3d Cir. 2013) (internal

citations omitted). No United States Supreme Court decision has held that a trial court must permit

a criminal defendant to listen to trial sidebar conferences.

The record here suggests that other than the sidebar conferences he now challenges,

Petitioner was present for the entire trial. He was present in court and heard the arguments that

preceded and followed sidebars, as well as the trial court’s rulings on them. (See ECF Nos. 1-34 –

1-52.) Moreover, Petitioner was represented by counsel who participated in the sidebars and could

convey their content to him. (Id.) Given that he cannot point to any United States Supreme Court

precedent giving him a Sixth Amendment right to listen via headphones to post-voir dire sidebars,

Petitioner has not shown that the Appellate Division’s resolution of his sidebar claim was contrary

to clearly established federal law. 28 U.S.C. § 2254(d)(1).

Furthermore, Petitioner has not shown that his post-voir dire sidebar exclusion prejudiced

his defense. Indeed, he does not claim that such exclusion adversely influenced the jury’s verdict

(see ECF No. 1-1 at 134); this Court has not located any evidence in the record which suggests it

either. Petitioner does not complain about any particular position taken or conceded by counsel at

any specific sidebar conference. He also does not contend that any particular sidebar’s result would

have differed if he had been allowed to participate. A writ of habeas corpus may issue only if the

reviewing court finds that a constitutional error “had a substantial and injurious effect or influence

in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); accord

Szuchon v. Lehman, 273 F.3d 299, 319 (3d Cir. 2001). “Petitioner has not shown that had counsel

included Petitioner at sidebar, there is a reasonable probability the outcome of the trial would have

been different.” See Robinson, 2018 WL 2859672, at *15.

In light of the foregoing, Petitioner is not entitled to relief on his sidebar claim.

G. Ground Seven: Cumulative Errors

Petitioner argues that the errors alleged in his § 2254 Petition “in the aggregate … rendered

the trial and appellate process unfair.” (ECF No. 1-1 at 135) Petitioner raised the cumulative error

claim on direct appeal. Brown, 2009 WL 2408568, at *11; ECF No. 7-1 at 93. The Appellate

Division found it without sufficient merit to warrant written discussion. Brown, 2009 WL

2408568, at *12, *22. He also raised the claim in his PCR application. (ECF No. 7-17 at 87-88.)

Judge Conte found no merit to any of the PCR petition’s claims. (ECF No. 7-11 at 57-65.)

Petitioner did not raise the cumulative error claim in his appeal of PCR denial to the

Appellate Division or in his petition for certification to the New Jersey Supreme Court. (ECF No.

7-10 at 2-3; ECF No. 7-14 at 5; ECF No. 7-15 at 3.) Petitioner thus failed to exhaust the

Cumulative Error Claim by not fairly presenting it to all three levels of the New Jersey state courts.

See O’Sullivan, 526 U.S. at 838, 845); Rose, 455 U.S. 509; Henderson, 155 F.3d at 164; Lambert,

134 F.3d at 513; Toulson, 987 F.2d 984. A cumulative error claim is a distinct claim that is subject

to the exhaustion and procedural default doctrines. Collins v. Sec’y of Pennsylvania Dep’t of Corr.,

742 F.3d 528, 533, 541 (3d Cir. 2014). Nevertheless, this Court may, and will, deny this

unexhausted claim on the merits under 28 U.S.C. § 2254(b)(2). See Taylor, 504 F.3d at 427;

Bronshtein, 404 F.3d at 728 3d Cir. 2005).

“The cumulative error doctrine allows a petitioner to present a stand-alone claim asserting

the cumulative effect of errors at trial so undermined the verdict as to constitute a denial of his

constitutional right to due process.” Collins, 742 F.3d at 542. “Individual errors that do not entitle

a petitioner to relief may do so when combined, if cumulatively the prejudice resulting from them

undermined the fundamental fairness of his trial and denied him his constitutional right to due

process.” Id. (quoting Fahy v. Horn, 516 F.3d 169, 205 (3d Cir. 2008)). The test for a “cumulative

error” claim is whether the overall deficiencies “so infected the trial with unfairness as to make

the resulting conviction a denial of due process.” Muniz v. Powell, No. 13-178, 2015 WL 511618,

at *15 (D.N.J. Feb. 6, 2015) (citing Hein v. Sullivan, 601 F.3d 897, 917 (9th Cir. 2010) (relying

on Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)); see also Fahy, 516 F.3d at 205

(“Cumulative errors are not harmless if they had a substantial and injurious effect or influence in

determining the jury’s verdict, which means that a habeas petitioner is not entitled to relief based

on cumulative errors unless he can establish ‘actual prejudice’”).

Both the Appellate Division on direct appeal and the PCR court adjudicated the cumulative

error claim, finding no merit to it. The Court agrees. Given that there is no merit to the § 2254

Petition’s claims for individual errors, Grounds One through Six cannot yield a cumulative error

claim in Ground Seven. In short, there is no basis for habeas relief premised upon an alleged

accumulation of errors that does not exist. See, e.g., Muniz v. Powell, No. 13-178, 2015 WL

511618, at *15 (D.N.J. Feb. 6, 2015); Stewart v. United States, No. 12-346, 2014 WL 3573395, at

*12 (D.N.J. July 21, 2014).

For these reasons, Petitioner is not entitled to relief on his cumulative error claim.

V. CERTIFICATE OF APPEALABILITY

A petitioner may not appeal from a final order in a habeas proceeding unless he has “made

a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c). “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 that the issues presented here

are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322,

327 (2003). Because Petitioner has failed to satisfy this standard, the Court will deny him a

certificate of appealability.

VI. CONCLUSION

The Petition is denied with prejudice since all of its claims are without merit. A certificate

of appealability shall not issue. An appropriate Order accompanies this Opinion.

8/6/2019 s/ John Michael Vazquez

Date JOHN MICHAEL VAZQUEZ

U.S. District Judge