ROMAN v. STATE OF NEW JERSEY

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

:

EDWARD J. ROMAN, Sr., :

: Civil Action No. 16-7256(RMB)

Petitioner :

:

v. : OPINION

:

WILLIE BONDS, et al., :

:

Respondents :

:

APPEARANCES:

Robert C. Pierce, Esq.,

3350 Route 138, Bldg. 1, Suite 113

Wall, New Jersey, 07719

On behalf of Petitioner

Gretchen Anderson Pickering, Esq.

CAPE MAY COUNTY PROESCUTOR’S OFFICE

4 Moore Road-DN-110

Cape May Courthouse, NJ 08210

On behalf of Respondents

BUMB, District Judge

This matter comes before the Court upon the Amended Petition

for a Writ of Habeas Corpus under 28 U.S.C. § 2254 (Am. Pet., ECF

No. 13) filed on behalf of Petitioner Edward J. Roman, Sr.

(“Petitioner”.) Petitioner alleges seven grounds for relief from

his March 12, 2003 judgment of conviction for aggravated

manslaughter in the Superior Court of New Jersey, Law Division,

Cape May County. (Id.) Respondents filed an answer opposing habeas

relief and submitted the state court record. (Answer, ECF No. 18.)

Petitioner filed a reply brief on February 15, 2019. (Petr’s Reply,

ECF No. 21.) The amended petition will be determined on the record

pursuant to Federal Rule of Civil Procedure 78(b).

I. PROCEDURAL BACKGROUND

On March 12, 2003, a judgment of conviction on aggravated

manslaughter was entered against Petitioner after a jury trial in

the Superior Court of New Jersey, Law Division, Cape May County.

(Judgment of Conviction, ECF No. 18-17.) Petitioner was sentenced

to a 27-year term of imprisonment with an 85% parole qualifier.

(Sentencing Tr., ECF No. 18-16.) Petitioner filed a direct appeal

and his conviction was affirmed by the Appellate Division on

November 1, 2005. State v. Roman, (“Roman I”), 887 A.2d 715 (App.

Div. 2005). The New Jersey Supreme Court granted Petitioner’s

petition for certification, 188 N.J. 219 (2006), but then dismissed

the petition on January 18, 2007, as improvidently granted. State

v. Roman, 189 N.J. 420 (2007).

Petitioner filed a petition for post-conviction relief, which

was denied on August 13, 2008. (PCR Pet., ECF No. 18-27; PCR Court

Order, ECF No. 18-31.) On October 19, 2010, the Appellate Division

affirmed the PCR Court in part, and reversed and remanded in part

for a limited hearing. State v. Roman (“Roman II”), 2010 WL 4103531

(App. Div. 2010). The New Jersey Supreme Court denied Petitioner’s

petition for certification on March 16, 2011. State v. Roman, 205

N.J. 273 (2011).

The issue that was remanded to the PCR Court for an

evidentiary hearing as to whether trial counsel was ineffective by

refusing to call Dr. Shane as an expert witness for financial

reasons. (Am. Pet., ECF No. 18 at 18-19.) Following the hearing,

in an order dated June 14, 2012, the PCR Court denied relief. (PCR

Court Order, ECF No. 18-42.) The Appellate Division affirmed the

PCR Court on June 23, 2015. State v. Roman (“Roman III), 2015 WL

3843266 (App. Div. 2015). The New Jersey Supreme Court denied

certification on November 6, 2015. State v. Roman, 223 N.J. 404

(N.J. Nov. 6, 2015).

On September 12, 2016, Petitioner filed a motion for

resentencing pursuant to State v. Natale. (Not. of Mot., ECF No.

18-50.) A resentencing hearing was held on November 16, 2016, in

the Superior Court of New Jersey, Law Division, Cape May County.

(Resentencing Tr., ECF No. 18-53.) On November 30, 2016, an amended

Judgment of Conviction was entered, and the same sentence was

imposed. (Am. JOC, ECF No. 18-54.) Petitioner appealed, (Not. of

Appeal, ECF No. 18-56), but the Appellate Division affirmed his

sentence on May 3, 2017 (App. Div. Opinion, ECF No. 18-57.)

Petitioner filed his original habeas petition on October 14,

2016. (Pet., ECF No. 1.) Respondents filed a motion to dismiss the

petition as untimely. (Mot. to Dismiss, ECF No. 6.) The Court

denied Respondents’ motion to dismiss on August 17, 2018. (Order,

ECF No. 10.) Petitioner filed his amended petition on October 2,

2018. (Am. Pet., ECF No. 13.) Respondents filed an answer to the

amended petition on December 24, 2018. (Answer, ECF No. 18.)

Petitioner filed a reply on February 15, 2019. (Petr’s Reply, ECF

No. 21.)

II. FACTUAL BACKGROUND

The Appellate Division, on direct appeal, made the following

findings of fact.

Defendant and his girlfriend, Melanie Holton,

were the parents of twin seven-week-old boys.

Holton, the grandparents, and the babies'

godfather and defendant's best friend, Michael

Wilkins, all testified that defendant

appeared, before the unfortunate incident to

be a loving, protective, and fully involved

parent of the newborns.

On September 23, 2001, however, defendant was

babysitting the newborns while Holton was

shopping with a friend. While the newborns

were in defendant's care, Edward Jr. died.

Defendant's initial version of the death,

which he provided during a 9–1–1 call and

thereafter at the hospital, was that Edward

Jr. fell off a couch while defendant was

assisting the other twin.

An autopsy revealed, however, that Edward Jr.

died from multiple skull fractures,

hemorrhaging, front subdural bleeding and a

swelling of the brain that was allegedly

caused by blunt force to two different parts

of his head. The autopsy also revealed twenty-

seven fractures of the newborn's ribs in

various stages of healing. An examination of

the other twin disclosed seventeen rib

fractures also in different stages of healing.

Consequently, during the investigation of

Edward Jr.'s death, the Division of Youth and

Family Services temporarily removed the other

twin from the care of defendant and Holton.

On September 25th, the prosecutor's office

followed up on some statements taken at the

hospital and further interviewed defendant and

Holton. During this interview, the officers

were informed that Holton's parents had

retained an attorney to represent the couple.

The attorney requested that the police stop

interviewing defendant and Holton and inform

the couple that he advised them to stop

speaking with the police. The officers

informed defendant of the representation and

gave him the lawyer's phone number.

At trial, the officer could not recall whether

he had also informed defendant of the

attorney's advice to stop speaking with the

police. Defendant testified at trial that

after being given the attorney's phone number

he asked the officers what the attorney had

said. The officers allegedly responded that

they did not know, but if defendant did not do

anything wrong, he did not need an attorney.

In any event, one of the officers asked

defendant whether he wished to continue

speaking with them and defendant agreed by

signing a “Reed Advisory.” Defendant also

signed a Miranda Warning and Waiver of Rights

form and continued speaking with the police

until counsel arrived, when defendant

exercised his right to remain silent.

That night, one of the investigators received

a message from defendant's father on his home

answering machine. Defendant's father and the

investigator knew each other and had a social

relationship. When the investigator called

back, defendant's father asked the whereabouts

of his son and “what was going on.” The

investigator explained that “everything was

going fine with the questioning and they had

a few more questions to answer, but the lawyer

stopped it all” and that defendant “should

come back and finish his statement.” The

investigator told the father that “the autopsy

wasn't matching up with the questioning of ...

the statements that [defendant] was making.”

Defendant's father told the investigator that

his son wanted to return to clear everything

up. Defendant's father asked how his son could

come in or continue the statement. The

investigator advised defendant's father that

his son “ha[d] a right to hire a lawyer and

... a right to fire a lawyer[.]”

Later that evening, defendant came to his

parents' home seeking advice. Apparently

trusting the investigator, defendant's father

told defendant to go back the next day and

finish the statement without the attorney.

Defendant also spoke with his friend, Wilkins,

who also encouraged defendant to go back and

continue the statement.

The next day, September 26th, defendant fired

his attorney and reported to police

headquarters where an investigator and

detective continued defendant's

interrogation. Defendant received Miranda

warnings and waived his right to an attorney,

expressing his desire to revoke the previously

asserted right to remain silent and continue

with his statement.

Defendant began his statement by discussing

the details of the children's birth,

development, and care. The investigator was

impressed with defendant's knowledge of his

children and suspected, at that time, that

defendant was a very involved, interested

parent. When asked about the events of

September 23rd, defendant repeated his

original explanation of the incident. But,

this time, the investigator confronted

defendant with the autopsy report and said

there were “two kids in your house who are

seven weeks old. One kid is dead and the other

kid is following the same path, got multiple

injuries.” Considering “the autopsy, it didn't

happen the way you said it. Now there's

something very wrong here and this is what we

need to talk about.” The investigator

explained that the baby “could not get

injuries ... more than one head fracture[,]

from one fall,” by falling off a couch of that

height. At this point, “the tenseness in the

room was ratcheted up.”

Defendant then decided to tell the

investigator something he “really never told”

anyone and divulged the following second

version of the incident: “in his haste to save

the baby,” after Edward Jr. had fallen from

the couch, “he had picked the baby up and had

run toward the bedroom where he was going to

do CPR. But, in his haste, he tripped and the

baby fell out of his arms and now he hit the

floor.” When questioned about the newborn's

old injuries, however, defendant could not

provide any credible explanation. The

investigator was not impressed with the second

version and kept pressing defendant, who then

came up with a third version of the incident.

In the third version, defendant stated that,

when he dropped the baby, “he actually slid

across the floor and he hit the wall with some

force.” The investigator again expressed his

disbelief, but did not threaten, coerce, or

scream. In fact, throughout the examination,

the investigator claimed to have treated

defendant as if he were a father with a dead

son, not a criminal suspected of murder.

At some point according to defendant, both the

investigator and detective left the room, and

a woman lieutenant entered and began

questioning him. She told defendant that he

was lying and that his other son was going to

be placed for adoption. At that moment,

defendant claimed to be very upset and

testified at trial that he decided to tell the

investigators “whatever they want[ed] to

hear.”

The investigator disagreed with defendant's

recollection of this occurrence. He testified

that the lieutenant, who was his superior

officer, did not enter the room until after

the confession.

In any event, after the investigator had

informed defendant that his stories were not

jibing with the physical evidence, and the

tension had been significantly increased,

defendant asserted that he needed “to talk to

my parents; I want to talk to my father.” The

interrogating investigator, tried to find out

precisely what defendant meant. The

investigator asked “do you want to tell your

father first, and you're going to tell us?” In

response, defendant said “I want to talk to my

father.” The investigator then sat for maybe

thirty seconds, “mulling over where we were.”

He then got up and told defendant he was “going

to go get your father,” and he left the room.

The investigator did not attempt to contact

defendant's father. Instead, he spoke to his

superiors and wanted to check on the status of

the interview with Holton, who was also being

questioned at that time. About two or three

minutes later, the investigator reentered the

interrogation room intending to tell defendant

they were bringing in his father. When the

investigator reentered the room, defendant was

sobbing and telling a detective that he was

the murderer who killed his son.

The detective, who had remained with defendant

after the investigator left the room,

explained at trial that when the investigator

left, he thought defendant's parents would be

brought in. He “wasn't sure what was going to

happen next.” He asked defendant, according to

his trial testimony, “what's going on? ...

what do you want to talk to your parents about

and [defendant] says don't worry ... I'll tell

you what happened after I talk to my parents.”

The detective stated that he had “known

[defendant] for a while .... you want to tell

me?” Defendant then “became very emotional and

he put his hands up like this and he said I

murdered my son.” Defendant then explained how

he “lost it” and “slammed the baby in between

[his] knees because he wouldn't stop crying.”

The detective was “shocked” and slid his chair

toward defendant, putting his arm on

defendant's shoulder to “comfort” him.

Upon the investigator's return, defendant was

crying: “I'm a murderer; I killed my son; I'm

a murderer.”

Defendant subsequently repeated the

confession to his parents and in a tape

recorded statement. However, defendant denied

ever striking the babies before, but admitted

to having been tempted to do so in the past.

He then stated that all previous versions of

the incident were not true. After the

recording was over, defendant listened to the

tape and signed an affidavit acknowledging his

taped statement and swearing that it was given

voluntarily and truthfully.

At trial, three medical experts testified that

Edward's injuries were the result of

intentional infliction of child abuse. The

head fractures were most likely caused by a

forceful striking of the head, although one

expert believed the fractures “could also have

occurred were the head to have been squeezed

between the knees of the individual holding

him.” The experts also opined that the rib

fractures on both left and right sides of

Edward Jr.'s rib cage were consistent with

squeezing the newborn. They were not caused,

as urged by the defense, at birth, by

administering CPR, or by hugging or burping

the babies. The experts also believed that all

of the fractures did not occur on the day of

Edward Jr.'s death, but some of the child's

ribs had been broken previously.

Defendant testified on his own behalf. He

first admitted pleading guilty as an accessory

to third-degree burglary when he was twenty

years old. He then testified to his

girlfriend's high risk pregnancy and delivery

of the twins. He portrayed himself as an

involved concerned parent, helping with doctor

appointments and caring for the babies.

He explained the September 23rd incident as

follows: he was exhausted and trying to feed

Edward Jr., but the baby refused to take the

formula and was moving his head from side to

side screaming. Defendant grabbed Edward Jr.

and unintentionally hit him against his knee

caps once and the baby became unconscious. As

a result, formula started to come out of the

newborn's mouth and nose, and defendant ran

into his bedroom trying to suction formula and

blow air into the baby's lungs.

Defendant admitted lying about the incident to

the 9–1–1 dispatcher, the police, hospital

personnel, his parents, and friends. He stated

that he told the investigators what they

wanted to hear because he wanted his other son

to stay with Holton and because he felt scared

and confused. He denied shaking, squeezing, or

abusing his children.

The jury acquitted defendant of aggravated

assault … and of endangering the welfare of

both twins…. However, the jury found defendant

guilty of aggravated manslaughter, as a lesser

included offense to first degree murder, of

Edward Jr.

State v. Roman, 887 A.2d 715, 718–22 (N.J. Super. Ct. App. Div.

2005).

On October 19, 2010, the Appellate Division made the following

findings upon review of the denial of Petitioner’s petition for

post-conviction relief.

Defendant argues in Point I that his privately

retained trial counsel did not call Dr. John

J. Shane, defendant's forensic pathologist,

because defendant did not have the funds to

pay the expert's $2500 testimonial fee. Dr.

Shane determined that the baby’s death was due

to “terminal hypoxia” caused by improper

resuscitation efforts, that his fractured

skull was caused by a single traumatic injury

to the occipital bone and that both babies'

fractured ribs occurred during childbirth.

Defendant maintains that he decided to testify

believing his expert would be called as a

witness. He also claims that the $50,000 fee

he paid his trial counsel included payment of

the expert. Whether or not defendant's payment

included expert fees, trial counsel should not

fail to call a needed expert witness due to

defendant's lack of funds without first

seeking assistance from the public defender.

See In re Cannady, 126 N.J. 486, 498 (1991);

In re Kauffman, 126 N.J. 499, 501-02 (1991).

Defendant argues that his forensic pathologist

might have persuaded the jury to convict him

of the second degree crime of reckless

manslaughter, N.J.S.A.2C: 11-4b(1). The trial

court found that defendant's incriminating

statement while in custody coupled with the

other evidence adduced by the State was so

strong that the Dr. Shane's testimony would

not have reasonably changed the jury verdict.

We are not so convinced. Dr. Shane's testimony

went to the very heart of the causation of the

child's death. The jury had concerns about the

strength of the State's case in that; they did

not convict defendant of causing the rib

injuries to either child. Evidence was

presented that defendant had been a caring,

involved parent. If trial counsel, knowing the

weaknesses in Dr. Shane's evidence, chose not

to call him for strategic reasons, such a

decision would not be evidence of ineffective

assistance of counsel. See State v. Castagna,

187 N.J. 293, 315 (2006). If the decision was

indeed made exclusively on economic grounds

without concern for trial strategy, however,

defendant might well be entitled to a new

trial if the court finds that the lack of the

expert testimony resulted in a "miscarriage

of' justice." See generally State v. Perez,

177 N.J. 540, 555 (2003). Accordingly, we are

constrained to remand the matter for an

evidentiary hearing limited to a determination

of whether defense counsel was ineffective in

failing to call Dr. Shane to testify at trial.

Defendant also argues that his trial counsel

was ineffective in not cross-examining the

State's medical examiner about his mistake in

another murder case which resulted in the

termination of his employment. Trial counsel

did tell the jury about this mistake in

summation. The medical examiner's prior error

was thus revealed to the jury; whether that

occurred in cross-examination or summation is

a matter of trial strategy.

Dr. Danielle Boal, the State's pediatric

radiologist, issued a report indicating she

would testify regarding the rib fractures and

that she had not seen the victim's CT scan.

She did not mention skull fractures. Without

notice to the defense or submission of a

supplemental report, Dr. Boal reviewed the CT

scan one month prior to trial and testified

that the child had suffered a non-accidental,

severe brain injury. Defense counsel objected

to this testimony, which was not included in

her initial report. The trial court sustained

the objection. Defendant argues here that

trial counsel should have moved for a

mistrial, requested that the testimony be

stricken or requested a limiting instruction.

Although trial counsel's failure to request

this additional relief does not constitute

ineffective assistance of counsel, the State's

use of this testimony highlights the potential

importance of Dr. Shane's forensic testimony.

Defendant also alleges in his first argument

point that trial counsel was ineffective in

other respects that lack sufficient merit to

warrant discussion in a written opinion. R.

2:11-3e(2).

II.

In Point II defendant argues that the state

failed to provide him with material

exculpatory evidence pursuant to Brady v.

Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194,

1196, 10 L. Ed. 2d 215, 218 (1963). "In order

to establish a Brady violation, the defendant

must show that: (1) the prosecution suppressed

evidence; (2) the evidence is favorable to the

defense; and (3) the evidence is material.”

State v. Martini, 160 N.J. 248, 268 (1999).

"The evidence is material only if there is a

reasonable probability that, had the evidence

been disclosed to the defense, the result of

the proceeding would have been different."

United States v. Bagley, 473 U.S. 667, 682, S.

Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985).

Defendant argues that the failure to provide

a supplemental report from Dr. Boal and

opinions from the other State doctors

concerning the CT scan violated his Brady

rights. This expert forensic evidence was not

exculpatory in nature and does not implicate

defendant's rights under Brady. Defendant

further asserts that the State's failure to

provide information regarding the medical

examiner's botched autopsy resulted in a Brady

violation. The prior autopsy, however, was

known to defense counsel who used the

information in his summation. Moreover, this

autopsy was not directly related to the case

against defendant nor could it fairly be

considered exculpatory in nature. In addition,

defendant did not raise this issue on direct

appeal and thus it is not properly before the

court pursuant to Rule 3:22-4(a)(I).

III.

Defendant argues in Point III that he was

deprived of effective assistance of appellate

counsel. … Defendant argues appellate counsel

was ineffective in not raising the Daniels

issue. The Daniels case was decided after the

direct appeal was filed and was addressed by

us in our decision. Roman, supra, 382 N.J.

Super. at 58-59. This argument is therefore

precluded by Rule 3:22-5 as we adjudicated

this ground for relief on direct appeal.

Defendant argues that appellate counsel was

also ineffective in not raising the issue of

the prosecutor's misconduct in failing to

provide pre-trial discovery regarding Dr.

Boal's supplemental testimony. Appellate

counsel did raise prosecutorial misconduct on

appeal, but did not include the issue of the

pre-trial discovery violation. We do not find

that this omission merits the Strickland/Fritz

standard discussed above. This claim would not

have changed our finding that the cumulative

prosecutorial misconduct did not deprive

defendant of a fair trial. Roman, supra, 382

N.J. Super. at 61 (citing State v. Josephs,

174 N.J. 44, 124 (2002)).

IV.

Defendant argues in Point IV that he was

deprived of his Sixth Amendment right to

compulsory process. State v. Correa, 308 N.J.

Super. 480 (App. Div. 1998) (reversing a

conviction based on a violation of defendant's

Sixth Amendment right to compulsory process

because the terms of the plea agreement

provided that the State would not seek an

extended prison term for co-defendant if that

co-defendant refused to testify for

defendant.). He claims that the mother of his

children did not testify because she was

threatened by the Division of Youth and Family

Services (DYFS). Following the victim's death,

the surviving twin was removed from the

mother's custody by DYFS. Defendant claims

that she did not testify because she was told

she would not receive her child back if she

testified on behalf of defendant. The mother

was not a witness to the incident. Other

witnesses testified to the good care defendant

gave his children prior to the incident. Her

proffered testimony that she never observed

defendant abuse either baby would have been

cumulative. Defendant also presented no

competent evidence that the mother was

threatened by DYFS.

V.

In Point V, defendant maintains that the

aggregate errors denied him a fair trial. This

claim warrants little discussion. As we have

already concluded, many of the issues upon

which defendant claims error were not errors

at all and, to the extent there were any

errors, they did not deny him a fair trial.

We do agree in part with defendant's argument

in Point VI requesting an evidentiary hearing.

As set forth above, an evidentiary hearing is

necessary to determine the reasons for trial

counsel's decision not to call the defense

forensic pathologist. Accordingly, we remand

for an evidentiary hearing solely on the

question of whether trial counsel improperly

decided not to call Dr. Shane as a witness for

economic reasons.

Roman II, 2010 WL 4103531 (App. Div. 2010).

The PCR Court held an evidentiary hearing upon remand on

August 3, 2011, November 2, 2011, February 2, 2012, and March 20,

2012. (PCR Evid. Hrg. Tr., ECF Nos. 38-41.) After the hearing, the

PCR Court denied relief. (PCR Court Order on Remand, ECF No. 42.)

Petitioner appealed. On June 23, 2015, the Appellate Division made

the following findings, in relevant part:

On remand, the PCR judge held a two-day

testimonial hearing at which the State

presented testimony from defendant’s former

trial attorney, and the defense presented

testimony from Dr. Shane, defendant, his

mother, and two family friends. The testimony

is discussed in length in the PCR judge’s

comprehensive opinion issued on March 20,

2012, and need not be repeated here. For our

purposes, it is sufficient to summarize the

PCR judge’s findings, which are supported by

sufficient credible evidence.

The PCR judge believed the trial attorney’s

explanation for his decision not to call Dr.

Shane as a witness. The attorney explained

that, in addition to representing defendant in

the criminal case, he represented him in a

civil Title 9 action filed by the Division of

Youth and Family services. Dr. Shane testified

at the Title 9 trial, and the Family Part judge

did not find his testimony persuasive. The

Family Part judge’s written opinion, which

stated myriad reasons why that judge did not

find Dr. Shane to be a credible witness, was

introduced in evidence at the PCR hearing. The

trial attorney testified that defendant’s

ability to pay Dr. Shane as a witness in the

criminal trial was not an issue in his

decision. Rather, he did not call Dr. Shane as

a witness in the criminal trial because he did

not think the jury would believe his

testimony.

After hearing Dr. Shane testify at the PCR

trial, the PCR judge found that Dr. Shane had

been forced on cross-examination to concede

important points helpful to the State. The

judge further credited the trial attorney’s

testimony that, shortly before the trial, he

became aware of possible inaccuracies in Dr.

Shane’s curriculum vitae. The judge likewise

found believable the attorney’s explanation

that calling Dr. Shane as a witness would have

involved Dr. Shane repeating for the jury the

most graphic medical testimony about the

baby’s injuries, and the State then

reinforcing that testimony through rebuttal

witnesses. The attorney’s view at the time was

that the best defense was that whatever

happened to the baby occurred by accident;

additional gruesome medical testimony would

not have furthered the defense.

The judge also believed the attorney’s

testimony that he discussed these strategic

points with defendant, who agreed with the

strategy. The judge noted that, in many

respects, the trial attorney’s strategy was

successful, because the jury acquitted

defendant of most of the charges, including

first-degree murder.

The judge also believed the attorney’s

testimony that economic considerations played

no part in the decision not to call Dr. Shane

as a witness. The judge credited Dr. Shane’s

testimony that he would not have demanded his

fee in advance; that testimony was

corroborated by documentary evidence showing

that the doctor’s practice was to submit his

bills after he performed the work. The judge

was not persuaded by the testimony of

defendant and his lay witnesses.

After finding that defense counsel did not

render ineffective assistance by making a

strategic decision not to call Dr. Shane as a

trial witness, the judge added that he did not

find it likely that, even if Dr. Shane had

testified, it would have changed the outcome

of the trial.

. . .

Except as addressed below, defendant’s

arguments are without sufficient merit to

warrant discussion in a written opinion. R.

2:11-3(e)(2).

Pursuant to the terms of our limited remand,

the PCR judge’s factual findings and

credibility determinations are critically

important. The judge’s mandate was “solely” to

determine whether defendant’s trial attorney

refrained from calling Dr. Shane as a trial

expert for economic reasons or for strategic

reasons. Roman II, supra, slip. Op. at 14.

Based on the testimony that he found credible,

including the testimony of defendant’s former

trial attorney, the PCR judge found that

economics were not a factor in the attorney’s

decision, and the reason the attorney decided

not to call Dr. Shane as a witness for reasons

of trial strategy.

Our review of the PCR judge’s findings is

limited to whether they are supported by

sufficient credible evidence. State v. Nash,

212 N.J. 518, 540 (2013). We owe special

deference to the judge’s credibility

determinations, because he saw and heard the

witnesses testify. Ibid.; State v. Locurto,

157 N.J. 463, 474 (1999). Based on our review

of the transcripts, we find no basis to

disturb the judge’s factual findings, which

definitively answer the questions we posed in

remanding this case.

Roman III, 2015 WL 3843266 (App. Div. June 23, 2015).

III. THE AMENDED PETITION

Petitioner raises the following seven grounds for relief in

his amended habeas petition:

GROUND ONE: Edward Roman’s request while

being questioned by police was a re-assertion

of his right to remain silent, and thus the

police were required to reissue Miranda

warnings before continuing what amount[ed] to

custodial interrogation.

GROUND TWO: Whether viewed individually or in

combination, the Prosecutor’s comments and

conduct amount to misconduct which violated

Mr. Roman’s right to a fair trial.

GROUND THREE: The police violated Mr. Roman’s

Fifth Amendment rights at the hospital.

GROUND FOUR: Mr. Roman’s prison term (27

years) is of excessive duration.

GROUND FIVE: Mr. Roman received ineffective

assistance of trial counsel.

GROUND SIX: At trial, the Prosecutor violated

Edward Roman Sr.’s rights under Brady v.

Maryland.

GROUND SEVEN: Edward Roman Sr. was denied

effective assistance of appellate counsel.

(Am. Pet., ECF No. 13.)

IV. DISCUSSION

A. Habeas Standard of Review

28 U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

with respect to any claim that was adjudicated

on the merits in State court proceedings

unless the adjudication of the claim--

(1) resulted in a decision that was contrary

to, or involved an unreasonable application

of, clearly established Federal law, as

determined by the Supreme Court of the United

States; or

(2) resulted in a decision that was based on

an unreasonable determination of the facts

in light of the evidence presented in the

State court proceeding.

“Contrary to clearly established Federal law” means the state

court applied a rule that contradicted the governing law set forth

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

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

Supreme Court precedent and arrived at a different result than the

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

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

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

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

Williams, 529 U.S. at 412. Further, “‘clearly established Federal

law’ . . . is the governing legal principle or principles set forth

by the Supreme Court at the time the state court renders its

decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). If there

is no Supreme Court precedent on the issue presented, the state

court’s decision cannot be to the contrary. Woods v. Donald, 135

S. Ct. 1372, 1377 (2015).

A state court decision is “contrary to”

clearly established federal law if it “applies

a rule that contradicts the governing law set

forth” in Supreme Court precedent, Williams,

529 U.S. at 405, 120 S.Ct. 1495, or if it

“confronts a set of facts that are materially

indistinguishable from a decision of [the

Supreme] Court and nevertheless arrives at a

result different” from that reached by the

Supreme Court, id at 406, 120 S.Ct. 1495.

Eley, 712 F.3d at 846.

An “unreasonable application” of clearly established federal

law is an “objectively unreasonable” application of law, not merely

an erroneous application. Eley, 712 F.3d at 846 (quoting Renico v.

Lett, 130 S. Ct. 1855, 1862 (2010)). “‘[W]here the ‘precise

contours’ of [a] right remain ‘unclear,’ state courts enjoy ‘broad

discretion’ in their adjudication of a prisoner’s claims.’” Woods,

135 S. Ct. 1372, 1377 (quoting White v. Woodall, 572 U.S. 415, 424

(2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003) (in

turn quoting Harmelin v. Michigan, 501 U.S. 957, 998 (1991)

(KENNEDY J., concurring in part and in judgment).

A state court decision is based on “an

unreasonable determination of the facts” only

if the state court's factual findings are “

‘objectively unreasonable in light of the

evidence presented in the state-court

proceeding.’ ” Miller–El [v. Cockrell], 537

U.S. [322,] 340, 123 S.Ct. 1029 [2003]

(citing, inter alia, 28 U.S.C. § 2254(d)(2)).

Moreover, the factual determinations of state

trial and appellate courts are presumed to be

correct. Duncan v. Morton, 256 F.3d 189, 196

(3d Cir.2001). The petitioner bears the burden

of “rebutting the presumption by ‘clear and

convincing evidence.’” Rice v. Collins, 546

U.S. 333, 339, 126 S.Ct. 969, 163 L.Ed.2d 824

(2006) (quoting 28 U.S.C. § 2254(e)(1)).

Eley, 712 F.3d at 846. (footnote omitted).

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

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

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

40 (2011). If the highest state court decision did not provide

reasons for the decision, “the federal court should ‘look through’

the unexplained decision to the last related state-court decision

that does provide a relevant rationale.” Wilson v. Sellers, 138 S.

Ct. 1188, 1192 (2018).

B. Analysis

1. Ground One: Miranda Violation

In support of Ground One, Petitioner alleges the following

facts. On September 23, 2001, while in Petitioner’s care,

Petitioner’s son sustained injuries that required hospitalization.

(Am. Pet., ECF No. 13 at 1-2.) When the child died, the Lower

Township Police Department investigated for abuse. (Id. at 2.)

Petitioner’s attorney asserted Petitioner’s right to remain silent

on September 25, 2001. (Id.) The following day, through

Petitioner’s parents, the police asked Petitioner for an

interview. (Id.) Petitioner appeared at the police headquarters.

(Id.) At one point, he asked to speak to his parents “and otherwise

conveyed to the police that he was attempting to reassert his right

to remain silent.” (Id.) The police obtained statements from

Petitioner that were used to incriminate him at trial. (Id.)

In opposition to relief on Ground One, Respondents contend

Petitioner has overly simplified the events that occurred.

(Answer, ECF No. 18 at 53.) Respondents argue that Petitioner did

not reassert his right to remain silent when he asked to speak to

his father during the September 26 interview. (Id. at 55.)

Petitioner had fired his attorney and returned to give his

statement. (Id.) He was given written and oral Miranda warnings

and a waiver of rights form before continuing. (Id. at 56.)

During the interview, investigators told Petitioner his story

did not match the physical evidence, so Petitioner gave a different

story. (Id.) When his second story was questioned, he asked to

speak to his parents. (Id.) Petitioner did not ask to terminate

the interview or to speak to a lawyer. (Id.) When one of the

investigators left the room, ostensibly to get Petitioner’s

parents, the remaining investigator asked why he wanted to speak

with his parents. (Answer, ECF No. 18 at 56.) Petitioner then

confessed to murdering his son. (Id.)

Respondents conclude that the Appellate Division was correct

in determining that Petitioner never indicated that he wanted to

stop talking to investigators, only that he wanted a break to speak

to his parents. (Id. at 57.) The police were free to inquire as to

the reason for the request and were not required to accept the

request as an assertion of the right to silence. (Id.)

In reply, Petitioner states that his Miranda claim is based

on questioning by investigators on September 26, 2001. (Petr’s

Reply, ECF No. 21 at 45.) He argues that once he expressed his

desire not to speak with police, no matter the reason, the police

must cease questioning. (Id.) Petitioner contends he had the right

to rely on the assumption that when one investigator left to get

his parents, he would not be questioned in the meantime. (Id. at

46.) Thus, by asking why he wanted to speak with his parents,

police violated his right to remain silent. (Id.)

Miranda v. Arizona, 384 U.S. 436 (1966) is the clearly

established Federal law that governs habeas review of this claim.

In Miranda, the Supreme Court held that “the prosecution may not

use statements, whether exculpatory or inculpatory, stemming from

custodial interrogation of the defendant unless it demonstrates

the use of procedural safeguards effective to secure the privilege

against self-incrimination.” 384 U.S. at 444. Once a person has

been informed of his right to remain silent, any statement he does

make may be used as evidence against him; a person has a right to

the presence of an attorney, retained or appointed; and a person

may waive these rights if he does so voluntarily, knowingly and

intelligently. Id. If the person subject to custodial

interrogation “indicates in any manner and at any stage of the

process that he wishes to consult with an attorney before speaking

there can be no questioning.” Id. at 444-45.

In 1981, the Supreme Court in Edwards held that “law

enforcement officers must immediately cease questioning a suspect

who has clearly asserted his right to have counsel present during

custodial interrogation.” Davis v. United States, 512 U.S. 452,

454 (1994) (citing Edwards v. Arizona, 451 U.S. 477 (1981)). In

1994, in Davis, the Court addressed “how law enforcement officers

should respond when a suspect makes a reference to counsel that is

insufficiently clear to invoke the Edwards prohibition on further

questioning.” Id. The Court stated, “[n]othing in Edwards requires

the provision of counsel to a suspect who consents to answer

questions without the assistance of a lawyer.” Id. at 460. Further,

“if the suspect is ‘indecisive in his request for counsel,’ the

officers need not always cease questioning.’” Id. (quoting

Miranda, 384 U.S. at 474). Thus, the Court held, “after a knowing

and voluntary waiver of the Miranda rights, law enforcement

officers may continue questioning until and unless the suspect

clearly requests an attorney.” Id. at 461.

In the event that a suspect makes an ambiguous or equivocal

statement, clarifying questions by law enforcement might be good

practice, but the Court declined “to adopt a rule requiring

officers to ask clarifying questions.” Id. “[I]f the suspect’s

statement is not an unambiguous or unequivocal request for counsel,

the officers have no obligation to stop questioning him.” Id. at

461-62.1

The Appellate Division’s opinion on direct review is the

highest state court determination on the merits of Petitioner’s

Miranda claim. Although the state court relied on state law, it

concluded that “[d]uring interrogation, the police are permitted

to attempt to determine whether a request to take a break from the

interrogation is in fact an assertion of a defendant’s right to

remain silent.” Roman I, 887 A.2d at 728. Renewed Miranda warnings

were not necessary after the detective clarified that Petitioner’s

request to speak to his parents was not a re-assertion of his right

to remain silent. Roman I, 887 A.2d at 728

1 In 2010, the Supreme Court held that the standard announced in

Davis concerning ambiguous requests for counsel after a waiver of

Miranda rights also applied to ambiguous invocations of the right

to remain silent. Berghuis v. Thompkins, 560 U.S. 370, 382 (2010).

This case, however, was decided after the Appellate Division denied

Petitioner’s Miranda claim in 2005.

The Appellate Division’s opinion was neither contrary to nor

an unreasonable application of clearly established Federal law

because Davis requires an unambiguous assertion of a Miranda right

before law enforcement is required to cease questioning a suspect.

On September 26, Petitioner waived his Miranda rights and was

voluntarily interviewed by police. Petitioner’s request to speak

to his parents was not an unambiguous assertion of a Miranda right.

Consistent with Davis, the Appellate Division held that

police are permitted to attempt to determine whether an ambiguous

request was in fact an assertion of a defendant’s Miranda rights.

Petitioner responded to the question of why he wanted to speak to

his parents with his confession. The confession was not obtained

in violation of due process. Therefore, Ground One of the amended

petition is denied.

2. Ground Two: Prosecutorial Misconduct

In support of Ground Two, Petitioner alleges that his trial

was marred by objectionable commentary by the prosecutor in the

presence of the jury. (Am. Pet., ECF No. 13 at 4-5.) Petitioner

was tried for abusing his twin sons and killing one of them. In

the prosecutor’s opening statement, she repeatedly referred to

Petitioner’s conduct as unthinkable and unspeakable and said “you

don’t want to talk about things that are seen on kids. I mean we’re

all adults, it’s our job to protect them.” (Am. Pet., ECF No. 13

at 4.)

On cross-examination, the prosecutor referred to Petitioner

as “nothing more than a despicable liar.” (Id. at 5.) During

closing argument, the prosecutor used a football analogy to explain

why certain rib injuries to the twins could not have been

accidents. (Id.) Further, due to a discovery violation, the trial

court forbade the prosecutor from arguing about evidence of the

victim’s multiple skull fractures because the prosecutor elicited

such testimony from a witness without providing the defense advance

notice. (Id.) The prosecutor discussed this evidence in her closing

argument. (Id.)

In response to Ground Two, Respondents note that four of the

objectionable comments made by the prosecutor were raised on direct

appeal and addressed by the Appellate Division. (Answer, ECF No.

18 at 58.) The Appellate Division found that while the comments

were improper, they were harmless beyond a reasonable doubt. (Id.

at 64.)

As to Petitioner’s due process challenge to Dr. Boal’s

testimony about multiple skull fractures, Respondents note the due

process claim was raised for the first time in a post-conviction

relief petition, but the claim had been waived because it should

have been raised on direct review. (Id.) Respondents assert

Petitioner procedurally defaulted the claim by not raising it on

direct review and he has not shown cause and prejudice or a

fundamental miscarriage of justice to excuse the default. (Answer,

ECF No. 18 at 66.)

In Petitioner’s reply, he disagrees that the prosecutor’s

misconduct was harmless error. (Petr’s Reply, ECF No. 21 at 49-

50.) Petitioner further argues that appellate counsel’s failure to

raise the issue of prosecutorial misconduct was the cause for

procedural default of the claim. (Petr’s Reply, ECF No. 21 at 53-

54.) Petitioner contends the prejudice to him is that testimony of

a single skull fracture supports a theory of negligent or reckless

parenting and multiple skull fractures support the theory of

intentional homicide, which the prosecutor knew when she elicited

the improper testimony. (Id. at 54.)

The Court will address Petitioner’s claim regarding the

prosecutor’s reference to Dr. Boal’s testimony in Ground Six below,

in the context of whether appellate counsel’s failure to raise the

issue on direct appeal was cause and prejudice excusing

Petitioner’s procedural default of the prosecutorial misconduct

claim on direct review. The Court notes, however, that Petitioner,

in his PCR proceeding, asserted appellate counsel was ineffective

for not raising this issue of prosecutorial misconduct. The

Appellate Division held, “[w]e do not find that this omission meets

the Strickland/Fritz standard discussed above. This claim would

not have changed our finding that the cumulative prosecutorial

misconduct did not deprive defendant of a fair trial.” Roman II,

2010 WL 4103531, at *5. The Court restricts discussion of Ground

Two to the prosecutorial misconduct claims addressed by the

Appellate Division on direct review.

The “clearly established Federal Law” for a denial of due

process claim based on prosecutorial misconduct is the Supreme

Court’s decision in Darden v. Wainwright, 477 U.S. 168 (1986).

Parker v. Matthews, 567 U.S. 37, 45 (1986). A prosecutor’s improper

comments violate the Constitution “only if they ‘so infected the

trial with unfairness as to make the resulting conviction a denial

of due process.’” Id. (quoting Darden, 477 U.S. at 181) (quoting

Donnelly v. DeChristoforo, 416 U.S. 627, 643 (1974)).

“Particularly because the Darden standard is a very general one,”

courts have “‘more leeway … in reaching case-by-case

determinations[.]” Id. at 48 (quoting Yarborough v. Alvarado, 541

U.S. 652, 664 (2004)).

The Appellate Division’s decision on direct appeal is the

highest state court decision on the merits of this claim. The

Appellate Division found that

prosecutorial excesses occurred in the opening

statement and that misconduct transpired when

the prosecutor argued that adults need to

protect children, analogized the newborns’

broken ribs to a football player’s, and cross-

examined by implying that defendant’s presence

during the presentation of the State’s case

was improper. Yet, such flaws alone do not

justify a reversal of the conviction. … When

all of the offending conduct is considered

against the strength of the State’s evidence

we cannot conclude that the prosecutor’s

tactics deprived defendant of a verdict that

fairly reflected the evidence. … The evidence

against defendant was strong and could easily

have justified the murder conviction sought by

the prosecutor, yet defendant was acquitted of

murdering Edward Jr. and convicted of lesser-

included aggravated manslaughter. Defendant

was also acquitted of the endangering and

aggravated assault charges that related to his

conduct toward both twins preceding Edward

Jr.’s death. It seems evident that, because

the charges of conduct preceding the infant’s

death were based upon the forty-four fractured

ribs of the newborns, the jury apparently was

not swayed by the prosecutor’s misleading

football-player analogy.

State v. Roman, 887 A.2d at 725.

Key here is the Appellate Division’s finding that “[w]hen all

of the offending conduct is considered against the strength of the

State’s evidence we cannot conclude that the prosecutor’s tactics

deprived defendant of a verdict that fairly reflected the

evidence.” Evidence at trial showed Petitioner lied about the cause

of E.R.’s injury upon immediately seeking medical treatment and he

lied repeatedly thereafter. Petitioner first said E.R. fell off

the couch and hit his head. This story was unconvincing because

seven-week-olds cannot roll on their own and a short fall from a

couch would not create enough force to cause E.R.’s significant

head injuries. Then, Petitioner said that after the baby fell off

the couch, he picked him up but tripped and dropped the baby. He

later added that when dropped, the baby slid across the floor and

hit his head against the wall with some force.

Ultimately, Petitioner confessed to killing his son by

slamming his head between his knees because he would not stop

crying. At trial, Petitioner testified that the baby accidently

fell against his knees. On top of these changing stories,

Petitioner was also shown on cross-examination to have lied about

his lack of complicity in a past conviction for burglary.

The prosecutor’s indiscretions seem small in comparison with

evidence properly used to convict Petitioner of aggravated

manslaughter of E.R. The Appellate Division’s determination that

defendant was not deprived of a verdict that fairly reflected the

evidence at trial was not contrary to or an unreasonable

application of Darden’s rule that the Constitution prohibits only

prosecutorial misconduct that “so infected the trial with

unfairness as to make the resulting conviction a denial of due

process.” Therefore, Ground Two of the amended petition is denied.

3. Grounds Three and Four

In his reply brief, Petitioner withdraws Grounds Three and

Four of the amended petition because his claims were based on state

rights not federal constitutional rights. (Petr’s Reply, ECF No.

21 at 56.)

4. Ground Five: Ineffective Assistance of Trial

Counsel

There are two elements to a Sixth Amendment ineffective

assistance of counsel claim, deficient performance by counsel and

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

v. Mirzayance, 556 U.S. 111, 122 (2009)). “[T]here is no reason

for a court deciding an ineffective assistance claim to approach

the inquiry in the same order or even to address both components

of the inquiry if the defendant makes an insufficient showing on

one.” Strickland v. Washington, 466 U.S. 668, 697 (1984). “If it

is easier to dispose of an ineffectiveness claim on the ground of

lack of sufficient prejudice, which we expect will often be so,

that course should be followed.” Premo, 562 U.S. at 121.

For the deficient performance prong, “a person challenging a

conviction must show that counsel's representation fell below an

objective standard of reasonableness.” Id. (internal quotations

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

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

representation was within the ‘wide range’ of reasonable

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

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

The burden a petitioner must meet is “‘that counsel made

errors so serious that counsel was not functioning as the counsel

guaranteed the defendant by the Sixth Amendment.’” Premo, 562 U.S.

at 122 (quoting Richter, 562 U.S. at 104) (quoting Strickland, 466

U.S. at 687)). “Reliance on ‘the harsh light of hindsight’ … is

precisely what Strickland and AEDPA seek to prevent.” Richter, 562

U.S. at 107 (quoting Bell v. Cone, 535 U.S. 685, 702 (2002)).

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

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

whether there is any reasonable argument that counsel satisfied

Strickland’s deferential standard. Id. at 105 (citations omitted).

Petitioner alleges the following instances of ineffective

assistance of trial counsel.

a. Failing to call Dr. Shane to testify about

cause of death

Defense counsel hired a forensic pathologist, Dr. Shane, who

was prepared to testify that (1) E.R. sustained just one skull

fracture; (2) E.R. did not sustain brain injury; (3) and to an

alternate cause of death. (Am. Pet., ECF No. 13 at 15.) Defense

counsel did not call Dr. Shane to testify, and Petitioner alleges

this decision was based on his counsel’s financial motive of

maximizing his own fees. (Id. at 16.)

The Appellate Division remanded this issue to the PCR Court

to hold an evidentiary hearing on whether Petitioner’s counsel

refused to call Dr. Shane to testify because Petitioner did not

pay the $2,500.00 testimonial fee. (Answer, ECF No. 18 at 88.) The

Appellate Division found that Dr. Shane’s testimony might have

affected the jury verdict because he would have testified to an

alternate cause of death. (Id.)

In reply, Petitioner contends that no competent attorney

would defend this case without the intention of calling an expert

witness to explain E.R.’s skull fracture. (Petr’s Reply, ECF No.

21 at 59.) Petitioner’s trial counsel had intended to call Dr.

Shane to testify that there was only one skull fracture, and the

cause of death was negligent intubation. (Id.)

Petitioner suggests the Appellate Division’s decision should

not be accorded AEDPA deference because it “does not withstand

fair-minded scrutiny.” (Id.) Petitioner asserts the fact that

counsel did not hire a different expert after Dr. Shane’s testimony

was rejected in the separate Division of Youth and Family Services

matter indicates that the motive in not calling an expert was

financial. (Id. at 60.) Petitioner also questions why, if his

counsel believed Dr. Shane lacked credibility, that he argued in

summation that there was only one blow to the victim’s head and

the cause of death was negligent intubation, the theory Dr. Shane’s

testimony would have supported. (Id.)

Petitioner also suggests the Appellate Division should have

accepted the testimony of Petitioner’s PCR witnesses, that

Petitioner and his family had already paid trial counsel to procure

Dr. Shane’s trial testimony, and counsel told them he would not

pay for Dr. Shane’s trial testimony. (Petr’s Reply, ECF No. 21 at

61-62.) Petitioner contends the Appellate Division misconstrued

the testimony as a dispute over when Dr. Shane would be paid as

opposed to who would pay Dr. Shane. (Id. at 62.) Petitioner

contends he was prejudiced by his attorney’s decision not to call

Dr. Shane because he had no chance for an outright acquittal

without testimony that there was only one blow to E.R.’s head and

the cause of death was negligent intubation. (Id.)

Habeas review is of the Appellate Division’s 2015 decision on

appeal of the PCR court’s denial of relief after remand. The

Appellate Division affirmed the PCR Court, summarizing the PCR

Court’s comprehensive findings and holding that the findings were

supported by credible evidence. Roman III, 2015 WL 3843266, at *3.

Petitioner’s trial counsel testified that he decided not to

call Dr. Shane after he testified on Petitioner’s behalf in a Title

9 action filed by the Division of Youth and Family Services. Id.

The Family part judge “stated myriad reasons” why the judge did

not find Dr. Shane to be a credible witness. Id. Petitioner’s trial

counsel testified that defendant’s ability to pay Dr. Shane was

not the reason he did not call him to testify in the criminal

trial, but rather that he did not think the jury would believe his

testimony. Roman III, 2015 WL 3843266, at *3.

In addition, shortly before trial, Petitioner’s trial counsel

learned of possible inaccuracies in Dr. Shane’s curriculum vitae,

which might undermine his credibility. Roman III, 2015 WL 3843266,

at *3. Petitioner’s trial counsel thought Petitioner’s best

defense was that the baby’s death was an accident, and calling Dr.

Shane to give graphic medical testimony about the baby’s injuries

could be harmful to the defense. Id.

The PCR Court permitted Dr. Shane to testify and found that

he had been forced on cross-examination to concede important points

helpful to the State. Roman III, 2015 WL 3843266, at *3. Review

of the PCR Court findings show that cross-examination called into

question the credibility of Dr. Shane’s testimony that E.R.

suffered only one skull fracture. (PCR Evid. Hrg. Tr., ECF No. 18-

38 at 101-104; ECF No. 18-39 at 39-44.) Dr. Shane also testified

that it was his practice to bill for his services after he

performed the work, which further called into question a financial

reason for not obtaining his testimony. Roman III, 2015 WL 3843266,

at *4.

The PCR judge also believed trial counsel’s testimony that he

discussed the defense strategy with Petitioner. Id. The Appellate

Division noted the strategy was partially successful because the

jury acquitted Petitioner of most of the charges, including first

degree murder. Id. The Appellate Division noted that the PCR Court

found Dr. Shane’s testimony was not likely to have changed the

outcome of the trial. Id.

Petitioner urges the Court not to grant deference to the

Appellate Division’s findings because the findings do not

withstand scrutiny. The Court disagrees. The Appellate Division

noted, and the records supports, that the PCR court conducted a

comprehensive hearing to determine whether defense counsel refused

to call Dr. Shane to testify for financial reasons. (PCR Evid.

Hrg. Tr., ECF Nos. 18-38 to 18-41.) The PCR Court carefully weighed

the evidence and gave good reasons for finding it was the defense

trial strategy, not financial reasons, that Dr. Shane was not

called to testify. (PCR Evid. Hrg. Tr., ECF No. 18-41 at 9-90.)

Petitioner suggests expert testimony that E.R. had only one

skull fracture and that improper intubation was an intervening

cause of death was his only chance for acquittal on aggravated

manslaughter. Thus, if his counsel truly feared Dr. Shane’s

testimony would not be believed, he would have obtained a different

expert. Petitioner contends the only reason for not doing so was

financial.

This assumes that the defense could obtain a persuasive

medical opinion that E.R. suffered only one skull fracture or that

his head injuries were not the cause of death, where the State’s

evidence regarding these facts was strong. Petitioner questions

why his counsel would have suggested in closing argument that E.R.

suffered only one skull fracture and died from intervening improper

intubation without having Dr. Shane testify about his opinions.

The answer is simple. If Dr. Shane testified he would be subject

to cross-examination and his medical opinions might not raise

reasonable doubt with the jury. Raising these arguments in closing

without cross-examination was likely a strategic decision.

Further, the theory that improper intubation was an

intervening cause of death would have gone against the medical

evidence and opinions. Dr. Weisburg testified E.R. was breathing

with assistance of intubation, a tube in his windpipe through which

air and oxygen were being pushed, when he arrived in the emergency

room. (Trial Tr., ECF No. 18-9 at 73.) He also testified that, in

children, it is very common that the tube used to intubate is

placed a little farther on one side than the other. (Id. at 75.)

It is preferable to have the tube more in the middle because, over

the long term, if the tube was more to one side you would tend to

breathe on one lung rather than both. (Id.) The tube was a little

bit lower in the right side, so they pulled it back a small amount

to aerate both lungs. (Id. at 76.)

On cross-examination, Dr. Weisburg testified that when E.R.

arrived in the emergency room, his left lung was collapsed and he

was not breathing on his own but by intubation into one lung. (Id.

at 83.) Defense counsel asked Dr. Weisburg whether having the tube

“only down one lung” affected E.R.’s breathing process. (Id. at

87.) Dr. Weisburg explained that E.R. was receiving oxygen “but

not ventilating as well as, perhaps, could be if it was on both

sides.” (Id.) There was no suggestion in any of the factual or

medical opinion testimony that “improper” intubation could have

had anything to do with E.R.’s death.

The defense focused on testimony from multiple witnesses that

Petitioner had been a good father, E.R.’s head injury was

accidental, and the confession was coerced at a time when

Petitioner was under great emotional distress. Double deference to

the state court findings and trial counsel’s professed strategy

are appropriate here, whereas hindsight is not. Petitioner has not

shown that his trial counsel provided ineffective assistance by

failing to call Dr. Shane as an expert witness.

b. Failing to challenge multiple skull fracture

and brain injury testimony

The prosecutor elicited Dr. Boal’s testimony that E.R.

sustained multiple skull fractures and brain injury. (Am. Pet.,

ECF No. 13 at 16.) The trial court sustained the defense’s

objection to the testimony because it was not contained in Dr.

Boal’s opinion disclosed to the defense.2 (Id.) Defense counsel

did not move for a mistrial, move to strike the testimony or

instruct the jury to disregard the testimony. (Id.) At sentencing,

the judge relied on the fact that there were multiple skull

fractures, suggesting an intentional rather than accidental

injury. (Am. Pet., ECF No. 13 at 16.)

During a colloquy, the prosecutor explained that she did not

elicit the multiple skull fracture and brain injury testimony from

Dr. Gross because those were not his findings. (Id. at 16-17.)

2 In the PCR Court, Petitioner’s counsel explained that the

prosecution elicited this testimony on redirect without submitting

a supplemental expert report after Dr. Boal reviewed E.R.’s CT

scan and concluded there was brain injury. Dr. Boal was initially

called to testify about the babies’ rib fractures and in her expert

report stated she had not reviewed the CT scan of E.R.’s head.

(PCR Court Hrg. Tr., ECF No. 18-30 at 5-10.)

Knowing this, defense counsel failed to call Dr. Gross to rebut

Dr. Boal’s testimony. (Am. Pet., ECF No. 13 at 17.)

In reply, Petitioner contends he was prejudiced because the

court relied on the “two-blow” testimony as an aggravating factor

at sentencing. (Petr’s Reply, ECF No. 21 at 64.) Further, it was

not enough for defense counsel to object to Dr. Boal’s testimony

because the jury heard it, it was not stricken, and the prosecutor

repeated it in closing argument. (Id. at 65.)

Habeas review is of the Appellate Division’s 2010 decision

affirming the PCR court. The Appellate Division held that counsel’s

failure to request additional relief “does not constitute

ineffective assistance of counsel.” Roman II, 2010 WL 4103531, at

*4. When a higher state court does not give reasons for its

decision on the merits, a habeas court must look through to the

reasons given by the lower state court for denying the claim.

The PCR Court stated:

Trial counsel did object to Doctor Boll’s

[sic] testimony relating to brain injury. The

Court is, again, uncomfortable with the means

by which that testimony developed and the

surprise that it visited upon defense counsel.

Yet, cause of death was not, in anyone’s

opinion, brain injury. And so while the Court,

again, uncomfortable with the State’s arguable

response of no harm, no foul, nonetheless,

Boll’s [sic] testimony with regard to brain

injury of marginal relevance, if any, at least

in this Court’s view.

(PCR Court Tr., ECF No. 30 at 63.)

The PCR Court also rejected Petitioner’s ineffective

assistance of counsel claims under the prejudice prong of the

Strickland test.

And it is in the latter regard, the second

prong of Strickland that the defense positions

encounter difficulty, at least in this Court’s

view. This jury, on the record before it,

returned a verdict of guilty unanimously and

beyond a reasonable doubt for aggravated

manslaughter, a violation of 2C:11-4(a)1, the

reckless causing of death under circumstances

manifesting extreme indifference to human

life. Defense counsel argues that but for

counsel’s performance, assertedly deficient,

that this jury would more likely have returned

a verdict of reckless manslaughter, in

violation of 2C:11-4(b)1. The defense

argument, stated otherwise, and I attempted to

pose it several times to defense counsel, so

I am satisfied it is articulated in the

record, but I restate it one more time in this

decision, is that the errors of which the

defense complains, the deficiencies of prior

counsel at trial, had they not occurred, would

have reasonably led this prior jury to

convict, if at all, not of first degree

aggravated manslaughter, but second degree

reckless manslaughter; stated otherwise, that

the jury would have been less likely to find

the Defendant to have recklessly caused the

death of his seven week old infant child,

quote, “under circumstances manifesting

extreme indifference to human life.” The

analysis if necessarily fact sensitive. The

evidence before this jury, however, the most

powerful evidence that supports the verdict

actually returned, is not challenged. The

Defendant’s admission, his statement, as to

exactly what he did, why he did it, the number

of times he did it, how he did it, his anger

at the moment that he committed it. If the

Court disregards the Defendant’s self-

description of his conduct while giving his

statement, specifically disregards any self-

description invoking murder, that conduct does

not readily, easily, or even remotely fall

within the – within this Court’s understanding

of the parameters of recklessness. That

conduct which the Defendant told law

enforcement, through his post-Miranda

statement, he committed constitutes

circumstances manifesting extreme

indifference to human life. The jury got it

right, in this Court’s view, made a

sophisticated distinction between first

degree murder and first degree aggravated

manslaughter.

(PCR Court Tr., ECF No. 18-30 at 61-62.)

In addition to these reasons cited by the PCR Court, the

following evidence in the state court record supports the finding

that Dr. Boal’s testimony concerning brain injury and multiple

skull fractures was of little consequence. First, as to the defense

theory that there was only one skull fracture and only one blow to

the head, Dr. Gross testified that upon examining the inside of

E.R.’s head, he found hemorrhaging and “fractures on both sides of

the skull.” (Trial Tr., ECF No. 18-9 at 35-36.) The two fractures

were on the right parietal bone and the left parietal bone. (Id.

at 50.) He testified that

one can have a solitary fracture, but the

presence of two distinct fractures … or the

presence of the extensive scalp hemorrhage and

the hemorrhage which was also present

subsequent – that I identified subsequently in

the cranial cavity were distinctly – reflected

trauma that, in my opinion, had to be

inflicted.

(Trial Tr., ECF No. 18-9 at 36.) After performing the autopsy, Dr.

Gross found the cause of death was “subdural hemorrhage due to

fractures of the skull due to blunt-force trauma” which he later

confirmed after further study. (Id. at 37, 39.)

On cross-examination, Dr. Gross testified it was his opinion

that one impact of the head could not have produced the two

fractures that he observed. (Id. at 51.) Defense counsel also asked

Dr. Gross “you’ve indicated in your report there’s a subdural

hematoma where there’s a basic blood formation between the dura

and the arachnoid. Now was there any damage to the brain tissue at

all in your findings?” (Id. at 56.) Dr. Gross answered, “I did not

observe damage to the brain tissue.” (Id.)

Second, as to the defense theory of an alternate cause of

death, Dr. Weisburg, an emergency room physician at Burdette Tomlin

Memorial Hospital (“Burdette”), testified for the State about his

treatment of E.R. on September 23, 2001, and about the emergency

department medical records concerning E.R.’s care. (Trial Tr., ECF

No. 18-9 at 68-69.) The information the emergency department first

received about E.R. was that he was in cardiac arrest, meaning his

heart was not beating. (Id. at 71.) When E.R. arrived at Burdette,

he was breathing with the assistance of intubation, a tube in his

windpipe through which air and oxygen were being pushed. (Id. at

73.) E.R’s heart was beating. (Id.) E.R., however, was limp and

unresponsive to stimuli that would normally evoke a response. (Id.

at 74.) E.R. also exhibited a very low P.H. blood-gas, indicating

“there’s been no circulation for a while.” (Trial Tr., ECF No. 18-

9 at 74.)

Dr. Weisburg ordered a CT scan of E.R.’s head. (Id. at 76.)

The radiologist sent Dr. Weisburg the immediate reading of the CT

scan and also called him to discuss the findings. (Id. at 79.) The

CT scan indicated skull fracture in the back of the head, multiple

areas of bleeding and bruising, swelling of the brain, and small

frontal subdural, meaning blood in front of the brain between the

brain and the skull. (Id. at 79.)

Dr. Lind testified as the State’s medical expert based on her

review of E.R.’s medical records, including the autopsy report and

a pediatric radiology report by Dr. Boal. (Trial Tr., ECF No. 18-

10 at 8-9.) Dr. Lind explained that after a significant head

injury, like E.R.’s, there is an immediate neurologic change that

quickly leads to cessation of breathing. (Id. at 27.) Upon

reviewing the autopsy, Dr. Lind opined that the child suffered an

injury to the skull and the brain. (Id. at 13.) The cause of death

was subdural hemorrhage and fractures of the skull. (Id.) Dr. Lind

testified that “rolling off a couch isn’t a high enough velocity

to cause significant skull fracture and brain injury and bleeding.”

(Id. at 14.)

Petitioner was not prejudiced by counsel’s failure to seek a

mistrial, to ask for a limiting instruction or to strike Dr. Boal’s

testimony about E.R.’s CT scan because her testimony about

“multiple” skull fractures, in this case two, was merely cumulative

of Dr. Gross’s testimony. Her testimony about brain injury was

cumulative of Dr. Lind’s testimony. Even in the absence of Dr.

Boal’s testimony about multiple skull fractures and brain injury,

Petitioner had to overcome properly admitted evidence that he

suffered two skull fractures and bleeding and swelling around the

brain caused his death. This claim of ineffective assistance of

counsel is denied.

c. Failing to call E.R.’s mother to testify

Petitioner’s girlfriend, E.R.’s mother, was not called to

testify on Petitioner’s behalf. (Am. Pet., ECF No. 13 at 17.)

Petitioner’s defense counsel shared office space with his

girlfriend’s attorney, who represented her in proceedings to

deprive her of custody of J.R., E.R.’s brother. (Id.) “Defense

counsel and the girlfriend’s counsel attended a meeting where they

agreed that one would represent the other.” (Id.) Petitioner

contends his counsel did not call E.R.’s mother to testify because

it was inconsistent with her interests. (Id.)

The highest state court that addressed this claim was the

Appellate Division on PCR Appeal. The Appellate Division found

that this claim lacked sufficient merit to warrant discussion in

a written opinion. Roman II, 2010 WL 4103531, at *4. Thus, the

Court looks to the PCR Court’s reasons for denying the claim.

The PCR Court denied this claim as follows:

I’m unable to find a prima facie showing of a

conflict of interest between this Defendant’s

trial counsel and counsel representing the

mother of the deceased infant, Ms. Holton. The

fact of proximity of offices, without more,

does not give rise to that apparent or even

appearance -- to that conflict or even

appearance of conflict. Ms. Holton apparently

did not testify. There’s nothing before the

Court to indicate that Defendant actually

sought to compel her testimony. There is no

competent evidence before this Court as to any

such inappropriate relationship or conflict.

Even had Ms. Holton testified, she was not

present at the time of the infliction of the

injuries which directly and proximately caused

the death of the infant. She might have been

able to testify as to her opinion as to the

prior conduct, the prior parenting by this

Defendant of the two twins. Were that

testimony to have been adduced, of marginal

probative value, in this Court’s view.

(PCR Court Hrg. Tr., ECF No. 18-30 at 63-64.)

Even if counsel was ineffective for failing to call Ms. Holton

to testify due to a conflict of interest, the PCR Court reasonably

determined that Petitioner was not prejudiced under the Strickland

standard of review. Petitioner’s parents and friends testified

that Petitioner was a good parent, and Ms. Holton’s testimony would

have been cumulative. More importantly, as the PCR Court noted,

Ms. Holton was not present when E.R. was fatally injured. She might

have testified that she believed E.R.’s injury was an accident,

but this was contradicted by Petitioner’s confession as well as

the medical opinions. Therefore, Ground Five of the amended

petition is denied.

5. Ground Six: Brady Violation

In support of Ground Six, Petitioner alleges a Brady violation

for failing to inform the defense that Dr. Gross, the county

medical examiner who performed E.R.’s autopsy, and Dr. Lind, a

pediatrician and prosecution witness, told the prosecutor they

could not opine that E.R. had suffered multiple skull fractures or

that E.R. sustained brain damage. (Id. at 22.)

When the prosecution called Dr. Boal as an expert witness,

Dr. Boal testified that E.R. suffered multiple skull fractures and

brain injury, although her expert report did not discuss skull

fractures and stated she did not review any brain CT scans. (Am.

Pet., ECF No. 13 at 22.) When defense counsel objected, the

prosecutor explained that she elicited these opinions from Dr.

Boal because Dr. Gross and Dr. Lind could not provide this opinion.

(Id. at 23.)

Respondents contend Dr. Boal’s testimony, her opinion and the

CT scan upon which her testimony was based were not exculpatory.

(Answer, ECF No. 18 at 99.) The prosecutor did not violate Brady

by failing to provide an oral opinion from Drs. Gross, Weisberg

and Lind about their reviews of the CT scan because the results of

the CT scan and the doctors’ opinions about it were not

exculpatory. (Id. at 101-102.) Dr. Weisburg’s opinion that E.R.

suffered a severe head injury was confirmed by CT scan showing

multiple hemorrhages in multiple areas of the brain. (Answer, ECF

No. 18 at 102.) Dr. Lind also determined that E.R. suffered a brain

injury. (Id. at 103.) The Appellate Division determined that the

opinions of the State’s doctors concerning the CT scan were not

exculpatory. (Id. at 104.)

Brady v. Maryland 373 U.S. 83 (1963) is the clearly

established Federal Law governing habeas review. In Brady, the

Supreme Court held that “the suppression by the prosecution of

evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.”

373 U.S. at 87. “There are three components of a true Brady

violation: The evidence at issue must be favorable to the accused,

either because it is exculpatory, or because it is impeaching;

that evidence must have been suppressed by the State, either

willfully or inadvertently; and prejudice must have ensued.

Strickler v. Greene, 527 U.S. 263, 281–82 (1999).

Petitioner raised this claim for the first time in the PCR

Court. Although the Appellate Division on PCR review noted the

claim should have been raised on direct appeal, it also held that

the material was not exculpatory and did not implicate the

defendant's rights under Brady. Roman II, 2010 WL 4103531, at *4.

The Appellate Division’s decision is not contrary to or an

unreasonable application of Brady.

Although his testimony was based on the autopsy he performed

after the CT scan was taken, Dr. Gross testified that E.R. had two

skull fractures and that E.R.’s cause of death was “subdural

hemorrhage due to fractures of the skull due to blunt-force trauma

(Trial Tr. ECF No. 18-9 at 37.) Dr. Lind also characterized E.R.’s

hemorrhaging and swelling as a brain injury. Dr. Lind explained

that after a significant head injury, like E.R.’s, there is an

immediate neurologic change that quickly leads to cessation of

breathing. (Id. at 27.) The prosecution did not withhold

exculpatory evidence from Petitioner regarding the number of

E.R.’s skull fractures and or the cause of death. Therefore, Ground

Six of the amended petition is denied.

6. Ground Seven: Ineffective Assistance of Appellate

Counsel

First, Petitioner alleges his appellate counsel was

ineffective by failing to directly appeal the issues regarding

whether E.R. suffered brain injury and the number of skull

fractures. (Am. Pet., ECF No. 13 at 26.) Respondents construe this

as a claim that appellate counsel failed to raise a Brady claim,

and respond that Dr. Boal’s testimony was not exculpatory. (Answer,

ECF No. 18 at 109). Because the Brady issue was not meritorious,

counsel was not ineffective for failing to raise it. (Id.)

Respondents are correct. Appellate counsel was not

ineffective by failing to appeal the Brady claim because Dr. Gross

in fact testified that E.R. had two skull fractures caused by two

impacts, not one blow to the head. (Trial Tr. ECF No. 18-9 at 27.)

Although Petitioner argues that Dr. Shane would have testified

there was only one skull fracture, on cross-examination in the PCR

hearing, Dr. Shane admitted there was more than one skull fracture.

(PCR Evid. Hrg. Hr., 18-39 at 39-44, 48-51.) Additionally, Dr.

Gross and Dr. Lind opined that E.R.’s head injuries, as described

in his CT scan and the autopsy report, were his cause of death.

Therefore, appellate counsel was not ineffective for failing to

raise the Brady claim on direct appeal.

The second claim of ineffective assistance of appellate

counsel is based on the prosecutor’s misconduct in cross

examination. The prosecutor asked Petitioner “And you had the

opportunity to listen to every one of the State’s witnesses,

correct?” (Am. Pet., ECF No. 13 at 26) Petitioner contends his

appellate counsel failed to apprise the Appellate Division that

the “opportunity to listen” cross-examination is a prohibited

reference to “tailoring.” (Id.)

Habeas review is of the highest state court’s reasoned

decision, the Appellate Division’s Opinion on PCR review. The

Appellate Division on PCR appeal noted that Daniels was decided

after Petitioner filed his direct appeal brief. Roman II, 2010 WL

4103531, at *5. Therefore, counsel was not ineffective for failing

to address a case that had not yet been decided.

But even if this Court assumes counsel could have filed a

supplemental brief before the Appellate Division issued its

opinion, there is no prejudice because the Appellate Division

considered the Daniels case and found prosecutorial misconduct did

not deprive Petitioner of a fair trial. Roman I, 887 A.2d at 725.

For the reasons discussed in Ground Two above, the Appellate

Division’s determination of the prosecutorial misconduct claim was

not contrary to or an unreasonable application of Darden.

Therefore, no prejudice resulted from appellate counsel’s failure

to apprise the Appellate Division of Daniels in a supplemental

brief. Ground Seven of the amended petition is denied.

V. CERTIFICATE OF APPEALABILITY

Unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken from a final order in a

proceeding under 28 U.S.C. § 2254. 28 U.S.C. § 2253(c). A

certificate of appealability may issue “only if the applicant has

made a substantial showing of the denial of a constitutional

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

standard by demonstrating that jurists of reason could disagree

with the district court’s resolution of his constitutional claims

or that jurists could conclude the issues presented are adequate

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

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

For the reasons discussed above, Petitioner has not made a

substantial showing of the denial of a constitutional right.

Therefore, the Court will deny a certificate of appealability.

VI. CONCLUSION

In the accompanying Order filed herewith, the amended

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

Dated: September 18, 2019

s/Renée Marie Bumb

RENÉE MARIE BUMB

United States District Judge