# ROMAN v. STATE OF NEW JERSEY

> District Court, D. New Jersey · September 18, 2019

URL: https://www.frixlaw.com/law-library/cases/10266750

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** September 18, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10266750

## How later opinions describe it (automated extraction)

- 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.

## Opinion text

NOT FOR PUBLICATION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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10266750. Public record. Not legal advice.