WOODS v. ROBINSON

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

:

JAMES WOODS, :

: Civil Action No. 18-2512(RMB)

Petitioner :

:

v. : OPINION

:

GEORGE ROBINSON, et al., :

:

Respondents. :

:

BUMB, District Judge

This matter comes before the Court upon the Petition for a

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

filed by Petitioner James Woods (“Petitioner”), an inmate confined

in Northern State Prison in Newark, New Jersey. Respondents filed

an answer opposing habeas relief. (Answer, ECF No. 8.) Pursuant to

Federal Rule of Civil Procedure 78, the Court will determine the

claims presented in the petition on the written submissions of the

parties.

I. PROCEDURAL HISTORY and FACTUAL BACKGROUND

Petitioner was convicted by a jury of all six counts for which

he was indicted, which were: first degree armed robbery in

violation of N.J. Stat. Ann. § 2C:15-1(a)(1); third-degree

possession of a knife for an unlawful purpose in violation of N.J.

Stat. Ann. § 2C:39-4(d); fourth-degree unlawful possession of a

knife in violation of N.J. Stat. Ann. § 2C:39-5(d); second-degree

conspiracy to commit armed robbery in violation of N.J. Stat. Ann.

§§ 2C:5-2, 2C:15-1(a)(1); and fourth-degree resisting arrest by

flight in violation of N.J. Stat. Ann. § 2C:29-2(a). Id. at *1.

Petitioner was sentenced to a seventeen-year prison term with an

eighty-five percent period of parole ineligibility under the No

Early Release Act (“NERA”). Id.

The factual background and procedural history were summarized

in part by the New Jersey Superior Court, Appellate Division on

Petitioner’s direct appeal.1

Both co-defendants [Petitioner and Perry

Alston] were tried together. Sergeant Rafael

Martinez of the Camden City Police Department

testified that on August 27, 2008, he was

assigned to patrol the Broadway Avenue area of

Camden. Martinez testified that the area was

designated a “high crime” area where “a lot of

drug sales” took place.

At around 2:00 p.m., Martinez was on routine

patrol in a police vehicle on William Street

behind a methadone clinic, when he “observed

1 The facts found by the Appellate Division are presumed correct

pursuant to 28 U.S.C.§ 2254(e)(1).

two black males and a white male standing in

the parking lot” of the clinic. The white male

was later identified as the victim, Steven

Phillips. According to Martinez, the two black

males, later identified as co-defendants, fled

the scene when they observed his vehicle:

As soon as the two black males

observed my presence, they were

looking right at me, they

immediately took off running. Of

course, I said something’s going on.

I immediately drove up to the victim

with my window rolled down from the

passenger side. He told me, “They

just robbed me.”

Martinez chased the two individuals on foot

and observed them enter an alleyway. Martinez

testified there was no exit from the alleyway,

“so they had nowhere to go.”

As Martinez entered the alleyway, he

instructed the two men “to stop and get down,”

but they did not comply. He then observed

Alston “drop an object onto the ground,” and

testified that defendant ran past him while he

was trying to detain Alston. According to

Martinez, Alston said, “I was selling him

pills.” Martinez arrested Alston and found

several different pills in a prescription pill

container in his pocket. Martinez also

recovered the object that Alston dropped- a

folding knife. Other officers apprehended

defendant.

Phillips testified at trial he was at the

clinic for counseling and to receive

methadone. According to Phillips, he left the

clinic between 12:00 and 12:30 p.m., and as he

was leaving two men approached him and began

to harass him. “As I was approached, basically

the gentleman pulled a knife out on me.

Another gentleman went for my wallet. I tried

to knock his hand down, away, a couple of

times. Then the one gentlemen told the other

gentleman to stab me.” Phillips identified

Alston as the man with the knife. Phillips

said he “flung” his wallet, containing

“roughly” fifteen or sixteen dollars, and his

medication. Defendant took the money from the

wallet and both men ran when they saw Martinez

arrive.

Phillips followed defendant after he ran past

Martinez and watched other officers detain

him. Phillips testified the police asked him

how much money was stolen from his wallet, and

he told them, “I believe it was a ten, a five,

and a one, or a ten and six ones.” According

to Phillips, the money in defendant’s pocket,

“was balled up and it was exactly what I said

at the time.” Phillips identified the knife

collected by Martinez as the knife that was

used in the robbery.”

Neither defendant nor Alston testified or

presented any witnesses. In summation, defense

counsel argued, “This was all a ruse by Mr.

Phillips to get out of the fact that he’s a

drug user still using drugs caught in the act

of buying drugs.”

State v. Woods, A-1010-10T4, 2013 WL 4436474, *1-2 (N.J. Super.

Ct. App. Div. Aug. 21 2013).

The Appellate Division affirmed Petitioner’s conviction and

sentence on August 21, 2013. Id. On March 20, 2014, the New Jersey

Supreme Court denied Petitioner’s petition for certification. See

State v. Woods, 88 A.3d 190 (N.J. 2014). On June 18, 2014,

Petitioner filed a pro se petition for post-conviction relief

(“PCR”). (Answer, Ex. Ra10, ECF No. 8-12.) Petitioner then filed

a counseled brief in support of his petition for post-conviction

relief (“PCR”) that was denied on the merits. (Answer, Ex. Ra11,

ECF No. 8-13.) The Appellate Division affirmed the PCR Court on

May 3, 2017. State v. Woods, A-4161-14T2, 2017 WL 1731030 (N.J.

Super. Ct. App. Div. May 3, 2017). On December 8, 2017, the New

Jersey Supreme Court denied Petitioner’s subsequent petition for

certification. State v. Woods, 177 A.3d 116 (N.J. 2017).

Petitioner then filed the present habeas petition on February

22, 2018. (Pet., ECF No. 1.) Petitioner raises six “legal

arguments” which he supports with twenty-four “claims” 2 that he

submits implicate his Fourth, Fifth, Sixth, Eighth, and Fourteenth

amendment rights. His claims are as follows-

“Legal Argument Point One”

“Petitioner’[s] writ of habeas corpus as a matter of federal

law an[d] its constitution must be granted conviction vacated an

order issued for petitioner immediate release whereinas [sic]

petitioner has been wrongly convicted and falsely imprisoned in

violation of his 4th, 5th, 6th, 8th, and 14th, federal

constitutional rights.”

1.“In support of petitioner’s legal arguments he claims as a

matter of state and federal law he is being illegally detained

in violation of his 4th amendment illegal seizure of his

person.”

2 Many of what Petitioner characterizes as claims are not stand-

alone claims but rather supporting facts and arguments.

2.“Fact presents co-defendant Perry Alston was apprehended by

Detective Martinez as the one who robbed the victim Phillips

at knife point. The record disclose [sic] that Detective

Martinez police report states the second Black male stated

‘this guy robbed him pointing at Perry Alston, then took

flight.’ ”

3.“Petitioner points to the May 20, 2010 trial transcripts at

page 75-76 that support his claim that detective Martinez

never radioed in a robbery in progress, black male/robbery

suspect fled, never gave no type of description relevant of

petitioner whatsoever.”

4.“Petitioner point[s] to the May 20, 2010 [t]rial transcripts

at page 112-112 where the alleged victim Phillips clearly

states that he is observing petitioner being detained by the

police held in the police vehicle according to Phillips he is

watching the police search petitioner who is alleged to have

Phillips money in his pocket. The amazing thing about this

testimony Phillips never says hey that’s the guy that robbed

me. Hey that’s my money. Detective Martinez does not say hey

that’s the Black male that got passed. Co-defendant Perry

Alston does not say Hey that’s the guy that conspired with me

to rob Phillips.”

5.“What’s even more amazing is the fact that Phillips says he

watching Petitioner be detained, pat frisked that mean

Detective Martinez is watching the same thing. See May 20,

2010 trila [sic] transcripts at page 138 Line 17-25, page 139

Line 1-9.”

6.“Petitioner’s claim of innocence is supported by Detective

Whitney testimony clearly establishing that both Phillips and

Detective Martinez lied. Especially Phillips, because its no

way on Earth that he’s standin [sic] watching along with

Detective Martinez and other police petitioner being searched

by other police where the pat and frisk turn up proceeds from

the robbery as they alleged petitioner was detained at the

crime scene.”

7.“And in the same sentence [sic]/same event Detective Whitney

let petitioner go free. See May 20, 2010 Trial transcripts at

page 151 Line 10-25.”

8.“Petitioner claim the above assertions supports his claim that

he has been wrongly convicted and the above facts makes clear

that Detective Martinez, Phillips, or Perry Alston never

identified him as the second Black Male who fled the scene,

the record makes clear that neither of the three gave or

positively ID petitioner, consistent with Attorney General

Guidelines in Identifying Suspects, violating his 14th

U.S.C.A. due process.”

9.“Petitioner contends and claims his 4th, U.S.C.A. illegal

seizure of his person was violated when he was illegally

seized and detained by Detective Whitney and Detective

Martinez without probable cause for detention and question

and the latter arrest violating Terry v. Ohio, petitioner was

detained far removed and remote from the arrest of Perry

Alston drove to a crime scene for show identification; however

released when neither the alleged victim Phillips, Detective

Martinez or Perry Alston, could make identification.”

10.“Petitioner contends and claims he was only identified by

Detective Whitney who detained petitioner for a half of hour

without probable cause and taking him to a crime scene

although released he was still exposed to the dangers of

misidentification providing the record does not disclose no

dispatch record given his description as the culprit or

suspect.”

11.“Petitioner contends and claims that his conviction and

sentence is the fruits of the poisonous tree resulting from

the initial complaint # 0408/W/2008/009117 that is

unconstitutional because it is derived from 4th, 5th, and

14th U.S.C.A. federal violations.”

12.“Petitioner contends and claim that his conviction is void

and violated of his 4th, 5th, and 14th due process rights

because the record does not disclose constitutional as a

matter of state and federal law how Detective R. Martinez

arrived at the conclusion of charing [sic] petitioner with

conspiracy to commit robbery, because no written or recorded

audio or video evidence exists to substantiate that

petitioner conspired, agreed, solicit with Perry Alston to

commit robbery. In light of petitioner’s alibi defense, in

fact co-defendant Perry Alston testified during his opening

informing the jury he and petitioner did not know each other.

Although there is no evidence to support Perry Alston

assertion that he and petitioner was in an area where people

came to get high and in fact, both were at the scene because

they were getting high [2T 40-5 TO 25]. Petitioner claims

that nothing in this testimony establishes conspiracy to

commit robbery, nothing to support the issuance of the

complaint or an arrest warrant in petitioner name. No probable

cause violation of petitioners 4th, 5th, 6th, 8th, 14th due

process rights. Constituonally [sic] a writ must be granted

and petitioner James woods released immediately.”

“Legal Argument Point Two”

“Petitioner writ of habeas corpus as a matter of federal

law and its constitution must be granted and conviction

vacated an order issued for petitioner immediate release

whereinas [sic] the identification of petitioner at the

police administration building instituted by Detective R.

Martinez was violative of the Attorney General Guidelines

violating Petitioner’s 5th & 14th U.S.C.A. due process

rights.”

13.“Petitioner contends and claim that there is no audio/video,

written or recorded photo array procedure of the victim

Phillips identifying petitioner as suggested by Detective

Martinez who stated that back at the police administration

building he asked he state that petitioner was identified by

one of the officers at the scene and during his taped

statement . . . ”

14.“Petitioner contends and claim that there was no photo array

done period violating the attorney general guidelines and

considering the fact that the victim nor Detective Martinez

did not and could not ID petitioner when he was detained at

the crime scene supporting petitioner claim that any and all

identification of him was in fact impermissibly suggestive as

well as the tape[d] statement given or taken by Detective

Martinez is and was highly suggestive violating petitioner

6th, 5th and 14th amendment rights to due process.”

15.“Petitioner contends and claims based on the facts of the

case that Detective Martinez observe one white male and two

black males, the due process of a Wade hearing should have

commenced addressing the State v. Cromedy issue of cross

racial identification where scientific study show that people

not of the same race have extreme difficulty identifying

someone from a different race. One of the lead causes of mis-

identification which petitioner claim[s] has occurred here

causin[g] him to be wrongly convicted and fasley [sic]

imprisoned violative of his 4th, 5th, 6th, 8th, 14th amendment

due process rights a writ must issue for his immediate release

the relief he seeks.”

“Legal Argument Point Three”

16.“Petitioner contends and claims that count one of the

indictment is fundamentally flawed and can not withstand the

due process laws under the constitution wherein true facts of

this case does not reflect the finding that petitioner did

inflict bodily injury or use force upon Stephen Phillips

petitioner claim that the prosecutor submission in this

regard is fabricated there is on elements established as a

matter of law that constitutionally supports a prima facie of

first degree a result of a victim receiving inflicted bodily

injury.”

17.“Petitioner contends and claim that count two of the

indictment is fundamentally flawed and cannot withstand the

due process laws under the constitution where true facts show

that petitioner did not knowingly possess a certain weapon,

a knife with a purpose to use it unlawful . . . There is no

evidence to support a finding of actual, joint or constructive

possession for these reasons a writ must issue. . . ”

“Legal Argument Point Four”

“Petitioner writ of habeas corpus as matter of federal law and its

constitution must be granted an order issued for his immediate

release where as his 17 year 85% sentence constitutes manifest

injustice and violates his 5th and 14th U.S.C.A. due process

rights.”

18.“Petitioner contends and claim that his sentence is illegal

and unconstitutional where he was wrongly convicted for first

degree robbery, subject to the version of the New Jersey No

Early Release Act, stipulated by the prosecution fabricated

assention [sic] that the victim Stephen Phillips sustained

serious bodily injury was not only a false opinion, but

unsupported by competent evidence, therefore petitioner 17

years 85% sentence constitutes a manifest injustice and must

be vacated is the relief petitioner seek, 5th, 14th U.S.C.A.

“Legal Argument Point Five”

“Petitioner writ of habeas corpus as a matter of federal law

and its constitution must be granted an order issued for his

immediate release, where as the model jury charge given to

the jury is an incorrect misstatement of the law and violates,

5th, and 14th U.S.C.A. due process rights rendering his

conviction void.”

19.“Petitioner contends and claim the trail [sic] judge

unconstitutionally and inappropriately instructed the jury

that petitioner was legally responsible for Co-Defendant

Perry Alston being armed with the folding knife and that the

jury must determine if this folding knife qualifies as a

deadly weapon . . .”

20.“Petitioner contend[s] and claims there is no evidence to

support that he was Perry Alson [sic] accomplice, again

petitioner was never I.D. at the crime scene by no one- in

fact released. Next asserting the jury charge was incorrect

and erroneous which violated his 5th, 6th, 14th, U.S.C.A. due

process rights because erroneous jury instructions are poor

candidates [sic] for rehabilitation under the harmless error

philosophy 14th U.S.C.A.”

21.“Petitioner contends and claims as a matter of law and its

constitution the essential ingredient to a fair trial was

violated because the jury charge was not adequate and

understandable instructions given to the jury Constitutional,

the charge is road map to a guide the jury and without an

appropriate charge a jury can take a wrong turn in its

deliberations. Petitioner claim[s] that’s what happened here.

The charge was not appropriate causing the jury to take the

wrong turn in its deliberations causing a guilty verdict

against the weight of the evidence.”

“Legal Argument Point Six”

22.“Petitioner contend[s] and claims his 6th amendment was

violated by his trial lawyer, appeal lawyer, his P.C.R.

lawyer and second appeal who was all ineffective for not

being able to get petitioner’s conviction and sentence

reversed and vacated due to the constitutional violations

outlined herein . . . ”

23.“Conclusion” “For the foregoing reasons petitioner writ of

habeas corpus should be granted because he has been wrongly

convicted, falsely imprisoned werein [sic] the state

criminal proceeds violated petitioner’s 4th, 5th, 6th, 8th,

and 14th, U.S.C.A. due process rights; requests conviction

and sentence vacated is the relief he seeks.”

(Id. at 25-33.)

Respondents filed an answer on August 22, 2018. (Answer, ECF

No. 9.)

II. DISCUSSION

A. 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

United States Supreme Court precedent or that the state court

confronted a set of facts that were materially indistinguishable

from United States 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 United

States Supreme Court decisions. Williams, 529 U.S. at 412. An

“unreasonable application” of clearly established federal law is

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

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

Lett, 130 S.Ct. 1855, 1862 (2010)).

B. Analysis

Although Petitioner lists his twenty-four claims, under six

unique sub-headings or “legal arguments”, some claims are

repeated under multiple subheadings.

1. Petitioner’s Fourth Amendment Claims 3

a. The Parties’ Arguments

In Petitioner’s “Legal Argument 1”, Petitioner lists twelve

“claims”, one through seven and nine through twelve 4, where he

appears to be challenging the legality of his initial arrest and

detention. (Pet., ECF No. 1.) More specifically, he appears to be

arguing that there was no probable cause for his arrest and that

it invalidates his subsequent conviction. (Id. at 26-28.) In

support of his claim, Petitioner argues that the record does not

contain any evidence of the victim identifying Petitioner as the

person who robbed him. (Id. at 26.) Moreover, he submits that

although he was initially apprehended, he was released shortly

thereafter. (Id. at 27.) Petitioner also alleges that his

conviction is invalid because his detention and arrest violated

Terry v. Ohio, 392 U.S. 1 (1968), and also that his conviction and

sentence are fruits of the poisonous tree. (Id. at 28.)

3 Fourth Amendment claims are not cognizable in a federal habeas

petition brought under 28 U.S.C. § 2254 pursuant to the United

States Supreme Court’s opinion in Stone v. Powell, 428 U.S. 465

(1976), nonetheless the merits of Petitioner’s claims fail.

4 A portion of Petitioner’s argument in “Claim 12” appears to be

challenging the sufficiency of the evidence and will be analyzed

by the Court with its analysis of “Legal Argument Point Three”

where Petitioner raises the bulk of his sufficiency of the

evidence claims. “Claim 8” appears to be challenging

identification and will be addressed with the bulk of

Petitioner’s identification-related claims in “Legal Argument

Point Two.”

Respondents do not address this particular issue in their

filing. (Answer, ECF No. 8.)

b. State Court Decision

The record does not reflect that Petitioner previously raised

this claim. While this claim is unexhausted, it can nonetheless be

denied on the merits. See Granberry v. Greer, 481 U.S. 129, 131,

135 (1987) (noting that the exhaustion requirement is not a

jurisdictional requirement to the exercise of habeas corpus

jurisdiction over the merits of a state prisoner’s claims and a

district court may deny a claim on its merits despite non-

exhaustion “if it is perfectly clear that the applicant does not

raise even a colorable federal claim.”).

Analysis

Even if for the sake of argument, Petitioner was arrested

without probable cause, he cannot challenge his detention as he

was eventually convicted of the charged crimes.

In the context of an arrestee who is subsequently convicted

for the criminal behavior precipitating the arrest, even if the

initial arrest did lack probable cause, he still cannot challenge

his detention as he was eventually convicted of the charged crimes.

See Gerstein v. Pugh, 420 U.S. 103, 119 (1975) (“[A]lthough a

suspect who is presently detained may challenge the probable cause

for that confinement, a conviction will not be vacated on the

ground that the defendant was detained pending trial without a

determination of probable cause.”)

Generally, a Fourth Amendment false arrest claim requires

that the arrestee establish: “(1)that there was an arrest; and

(2), that the arrest was made without probable cause.” James v.

City of Wilkes-Barre, 700 F.3d 675, 680(3d Cir. 2012). “Probable

cause to arrest requires more than mere suspicion; however, it

does not require that the officer have evidence sufficient to prove

guilt beyond a reasonable doubt.” Orsatti v. New Jersey State

Police, 71 F,3d 480, 482-83 (3d Cir. 1995)(internal citations

omitted). A false imprisonment claim arises when a person is

arrested without probable cause and is subsequently detained

pursuant to that unlawful arrest. Groman v. Twp. of Manalapan, 47

F.3d 628, 636 (3d Cir. 1995). “False arrest and false imprisonment

overlap; the former is a species of the latter.” Wallace v. Kato,

549 U.S. 384, 388 (2007).

Here, the record reflects that Rafael Martinez of the Camden

City Police Department was alone in his patrol car when he observed

three men who were later identified as Petitioner, his co-defendant

Perry Alston and the victim, Steven Phillips, standing in a parking

lot. (Answer, Ex. Rta 2, ECF No. 8-27 at 26.) Once Petitioner and

Alston observed Martinez in his police cruiser, they began to run

away. (Id. at 27.) Steven Philips, on the other hand, approached

Martinez’ vehicle and yelled, “[t]hey just robbed me.” (Id.)

Martinez called the dispatcher for backup and pursued the two

fleeing individuals until he caught up with them. (Id. at 27-28.)

Martinez then observed Alston drop something to the ground which

turned out to be a folding knife that was consistent with the

victim’s description of the knife used in the robbery. (Id. at 28-

29, 49.) Martinez arrested Alston and Petitioner was able to run

away although he was detained by other officers almost immediately.

(Id. at 44.) Once Petitioner was detained, police officers

retrieved “balled up” money that amounted to what the victim

alleged had been stolen from him (Id. at 57.)

Petitioner has not established that probable cause to arrest

him did not exist. The facts are that Petitioner and his co-

defendant were observed within close proximity of a third

individual who told the police that they had just robbed him.

Further, Sergeant Martinez did not lose sight of the two fleeing

men before he finally caught up with them and arrested Alston.

As to Petitioner’s argument that the victim did not accuse

Petitioner of robbing him when the additional officers showed up,

this argument fails. The victim notified Sergeant Martinez and

that triggered his pursuit of the two suspects as well as his call

for the assistance of additional officers. Moreover, Officer

Changa Whitney of the Camden Police Department testified about how

Petitioner was initially detained on scene but eventually released

less than an hour later because Sergeant Martinez had left the

scene with the other suspect and no other police personnel were

available to provide details of the offense. (Id. at 81.) Further,

the record reflects that the victim was transported to the police

station to provide a statement shortly after Petitioner was

initially detained. (Id. at 57.)

To the extent that the Petitioner alleges that his detention

and arrest implicates the seminal Terry v. Ohio, 392 U.S. 1 (1968)

case, the Court disagrees. In Terry, the Supreme Court held that

an officer who has a reasonable, articulable suspicion that

criminal activity is afoot may conduct a brief, investigatory stop.

Id. at 30. Petitioner’s argument is foreclosed by the Supreme

Court’s holding in Illinois v. Wardlaw, 528 U.S. 119, 124-25

(2000), where the Court expanded upon its holding in Terry and

held that “unprovoked flight” constituted reasonable suspicion.

Here, Sergeant Martinez testified that his mere presence on the

street spurred Petitioner and Alston to flee before the victim

made him aware of the robbery that had just occurred. Therefore,

the facts of this case fit squarely within the parameters

established in Wardlaw, and Petitioner’s argument fails.

Finally, Petitioner invokes the “fruit of the poisonous tree”

doctrine, although it does not seem to apply in this case.

Petitioner does not specify that any particular evidence qualifies

as the “fruit” of the illegal police action but rather that his

conviction and sentence were the “fruits.” 5 Therefore, the “fruit

of the poisonous tree” argument fails.

Thus, this claim is denied.

2. Ground Two

a. The Parties’ Arguments

Petitioner next contends that the identification procedure,

or rather the lack thereof, violated his Fifth and Fourteenth

Amendment rights. (Pet., ECF No. 1 at 29.) Petitioner submits that

the police failed to conduct a photo array in violation of the

“Attorney General Guidelines.” (Id.) He further submits that

neither the victim, Sergeant Martinez, nor his co-defendant

identified him at the crime scene. Lastly, he argues that he may

have been misidentified as a result of the cross-racial

identification in this case. (Id.)

Respondents contend that this claim is unexhausted as

Petitioner did not raise it in state court and that it is also

procedurally defaulted.6 (Answer, ECF No. 8 at 20-24.) Nonetheless,

they also submit that the claim fails on the merits. (Id. at 25-

5 Although there was testimony about the victim’s stolen money

and pills, the items was never alleged to have been recovered

and were not entered into evidence. (Answer, Ex. Rta5, ECF No.

8-30 at 14.)

6 The record does not reflect that this claim was deemed

procedurally defaulted by any state court as it does not appear

to have ever been raised in state court.

29, 38-40.) They submit that Petitioner’s co-defendant

unsuccessfully raised a similar argument alleging a failure to

conduct an identification procedure, in his post-trial motion.

(Id. at 39.)

b. State Court Decision

The record does not reflect that Petitioner previously raised

this claim. While this claim is unexhausted, it can nonetheless be

denied on the merits. See Granberry, 481 U.S. at 131, 135.

c. Analysis

Petitioner contends that the identification procedure

employed, violated the “Attorney General Guidelines.” 7 However,

the record does not reflect that an identification procedure

occurred. Moreover, Petitioner does not cite to any precedent that

requires an identification procedure when police observe the

suspect while in commission of the crime and pursue and apprehend

the suspect shortly thereafter. Although it was ruling on

Petitioner’s co-defendant’s post-trial motion, the trial court

rejected a similar argument that the police were obligated to

conduct an identification procedure. (Answer, Ex. Rta5, ECF No. 8-

30 at 19-20.) The trial court opined in relevant part, as follows-

. . . [T]hat Detective Martinez never

performed a photo array or a lineup at the

7 Petitioner does not distinguish between the federal Attorney

General Guidelines or its New Jersey counterpart, Attorney

General Guidelines for Preparing and Conducting Photo and Live

Lineup Identification Procedures (“Guidelines”).

police station. That type of situation is not

required in all instances, and particularly

not in a situation here where we have

Detective Martinez testifying that upon

turning the corner he saw three people, two of

whom immediately ran. Those two were

constantly in his sight both of them and

apprehended one of the two individuals.

. . .

So, this is not a case where actual

identification of a defendant in terms of

whether the defendant was involved at all is

at issue here.

(Answer, Ex. Rta5, ECF No. 8-30 at 19-20.)

The trial court’s ruling succinctly identifies the flaw in

this claim. The facts of this case do not support a constitutional

claim despite Petitioner’s insistence that there was a flawed

identification.

Petitioner also claims that he was entitled to a hearing

pursuant to United States v. Wade, 388 U.S. 218, 241 (1967), in

light of the possibility of misidentification when a cross-racial

identification occurs. Petitioner relies on the New Jersey Supreme

Court’s opinion in State v. Cromedy, 158 N.J. 112 (1999). In

Cromedy, the New Jersey Supreme Court held that “[a] cross-racial

instruction should be given only when, as in the present case,

identification is a critical issue in the case, and an eyewitness’s

cross-racial identification is not corroborated by other evidence

giving it independent reliability, [,such as] forensic evidence or

other eyewitness account.” Id. at 132.

Here, the record reflects that the victim, Steven Phillips,

was white and the Petitioner and his co-defendant were black. The

record is silent about Sergeant Martinez’s race and/or ethnicity.

More importantly, Petitioner is relying on a state rule to support

a right that does not extend to federal constitutional law.

Nonetheless, the record does not reflect that there were any issues

of cross-racial identification in this matter and Petitioner’s due

process claim fails.

Therefore, this claim is denied.

3. Sufficiency of the Evidence

a. The Parties’ Arguments

In Petitioner’s “Legal Argument Three,” he submits in an

inartful manner, that counts one and two of the indictment violate

his due process rights as they were not supported by the evidence.

(Pet., ECF No. 1 at 30.) Further, in Petitioner’s “Legal Argument

One,” he submits under “Claim 4” and “Claim 12,” that his co-

defendant did not implicate him in the conspiracy. (Id. at 27-28.)

Respondents submit that Petitioner’s sufficiency of the

evidence claims were properly denied as meritless in the state

court. (Id. at 30-32).

b. State Court Decision

On habeas review, the district court must review the last

reasoned state court decision on each claim. See Ylst v.

Nunnemaker, 501 U.S. 797, 803 (1991). The highest state court

decision with respect to this claim is the Appellate Division’s

opinion on direct appeal. The Appellate Division addressed this

claim as follows:

On appeal, defendant first argues “that under

the evidence presented, his convictions cannot

stand.” Pursuant to Rule 2:10-1, a ruling on

a motion for a new trial “shall not be reversed

unless it clearly appears that there was a

miscarriage of justice under the law.” Our

task is to determine if a “trier of fact could

rationally have found beyond a reasonable

doubt that the essential elements of the crime

were present.” State v. Cartier, 91 N.J. 86,

96 (1982). “Where the jury’s verdict was

grounded on its assessment of witness

credibility, a reviewing court may not

intercede, absent clear evidence on the face

of the record that the jury was mistaken or

prejudiced.” State v. Smith, 262 N.J.Super.

487, 512 (App. Div.), certif. denied, 134 N.J.

476 (1993). Here, the court’s factual findings

are supported by sufficient credible evidence

in the record, State v. Locurto, 157 N.J. 463,

472 (1999), and it correctly applied well-

settled legal principles. We therefore affirm

substantially for the same reasons stated by

the trial court.

. . .

After the jury rendered its verdict, defendant

moved for a new trial pursuant to Rule 3:20-

1. The tried court denied the motion,

reasoning as follows:

[Defendant’s first] argument is

that the physical evidence does not

support the testimony of the victim,

Steven Phillips, and that Mr.

Phillips lacks credibility and,

therefore, his testimony could not

have reasonably been believed by the

jury. The argument then is

essentially since that is the sole

source of the State’s proofs as to

the theft element of the robbery .

. . the robbery conviction cannot

stand.

. . . The argument is that Mr.

Phillips’s testimony that he was

robbed cannot be believed because;

one, the items he said were taken

from him were never recovered, two,

Detective Martinez saw both

defendants the entire time that they

fled the scene and did not see

either of them discard anything.

Other than Mr. Alston discarding the

knife in the alley; and, three,

neither defendant was found to have

on his person money in the exact

denomination that Mr. Phillips said

was taken from him. However there

are two problems with this argument:

first, Detective Martinez did not

observe both of the defendants the

entire time. Once he cornered both

the defendants in the alley Mr.

Woods ran past him. Mr. Woods was

later apprehended by another police

officer. The jury could reasonably

have believed that Mr. Woods

discarded the stolen items after he

left the alley.

Another problem with this argument

is that it assumes that there was

some sort of fatal inconsistency in

Mr. Phillip’s testimony regarding

the amount of money taken from him.

Mr. Phillips testified that the

amount taken was either three fives

and two ones or two fives and two

ones. He further testified that he

saw defendant Woods in the custody

of another police officer on the

street and that the officer required

Mr. Woods to empty his pockets and

that the balled up money in the

pocket “matched exactly what was

taken from him.”

. . .

Moreover, as eluded to before, proof

of theft does not require that the

items stolen be recovered and

introduced into evidence. Theft

simply requires proof that the

defendant knowingly took control

over property of another with a

purposes to deprive the person of

the property. Here, the testimony

Steven Phillips about the events

behind the methadone clinic were

sufficient by itself to establish

the elements of theft.

. . .

Defendant Woods also asserts that

Mr. Phillips lacked credibility

because of conflicts in his

testimony about when he arrived at

the clinic. More precisely as

elaborated on here the argument is

essentially that . . . Mr. Phillips

tried to tailor his testimony in

light of the discovery and

production of the progress notes

from Parkside Clinic.

That issue was explored in detail on

cross-examination, and during trial

cross-examination I believe Mr.

Phillips admitted at one point that

he could possibly have been hanging

around in the area for another hour

or two hours. There was questioning

from [defense counsel].

. . .

As the model jury charge on

credibility of witnesses states

“the jury may accept all of a

witness’ testimony, a portion of it

or none of it.”

Mr. Phillips testimony about the

robbery itself was compelling and

was corroborated by the testimony of

Sergeant Martinez who testified

that he arrived on the scene as the

event was taking place and that a

few seconds later as he stopped his

vehicle right next to Mr. Phillips

and rolled down his window, Mr.

Phillips told him “they just robbed

me.”

So, for all of these reasons I find

after having given due regard to the

opportunity of the jury to pass upon

the credibility of the witnesses

that it does not clearly and

convincingly appear that . . .

there was a manifest denial of

justice under the law. Therefore,

the defendant Woods’s motion for a

new trial is denied.

Woods, 2013 WL 4436474 at *2-4.

Analysis

A claim that the jury's verdict was against the weight of the

evidence is “essentially a matter of state law, and does not raise

a federal constitutional question unless the record is completely

devoid of evidentiary support in violation of Petitioner's due

process.” Douglas v. Hendricks, 236 F.Supp.2d 412, 435–36 (D.N.J.

2002) (Walls, J.) (citation omitted). The United States Supreme

Court articulated the standard governing a challenge to the

sufficiency of the evidence in Jackson v. Virginia, 443 U.S. 307,

319 (1979). The Court held that a reviewing court must ask itself

“whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.”

(citation omitted). This standard must be applied “with explicit

reference to the elements of the criminal offense as defined by

state law.” Id. at 324 n. 16; see also Orban v. Vaughn, 123 F.3d

727 (3d Cir. 1997), cert. denied, 522 U.S. 1059 (1998). State court

factual determinations are presumed to be correct. See Werts v.

Vaughn, 228 F.3d 178, 186 (3d Cir. 2000), cert. denied, 532 U.S.

980 (2001).

Count one of the indictment charged Petitioner with first

degree armed robbery in violation of N.J. Stat. Ann. § 2C:15-

1(a)(1); Count two of the indictment charged Petitioner with third-

degree possession of a knife for an unlawful purpose, in violation

of N.J. Stat. Ann. § 2C:39-5(d); Count three of the indictment

charged Petitioner with second-degree conspiracy to commit armed

robbery, in violation of N.J. Stat. Ann. §§ 2C:5-2 and 2C:15-

1(a)(1).

Under New Jersey law, the elements of first-degree robbery

are-

a. A person is guilty of robbery if, in the course of

committing a theft, he:

(1)Inflicts bodily injury or uses force upon

another; or

(2) Threatens another with or purposely puts

him in fear of immediate bodily injury; or

(3) Commits or threatens immediately to commit

any crime of the first or second degree.

An act shall be deemed to be included in the

phrase “in the course of committing a theft”

if it occurs in an attempt to commit theft or

in immediate flight after the attempt or

commission.

(b). Grading. Robbery is a crime of the second

degree, except that it is a crime of the first

degree if in the course of committing the

theft the actors attempts to kill anyone, or

purposely inflicts or attempts to inflict

serious bodily injury, or is armed with, or

uses or threatens the immediate use of a

deadly weapon.

N.J. Stat. Ann. § 2C:15-1.

Under New Jersey law, the elements of fourth-degree unlawful

possession of a weapon are- “Any person who knowingly has in his

possession any other weapon under circumstances not manifestly

appropriate for such lawful uses as it may have is guilty of a

crime of the fourth degree.” N.J. Stat. Ann. § 2C:39-5(d).

Finally, under New Jersey law the elements of conspiracy are-

A person is guilty of conspiracy with another

person or persons to commit a crime if with

the purpose of promoting or facilitating its

commission he:

(1)Agrees with such other person or

persons that they or one or more of them will

engage in conduct which constitutes such crime

or an attempts or solicitation to commit such

crime; or

(2) Agrees to aid such other person or

persons in the planning or commission of such

crime or of an attempt or solicitation to

commit such crime.

N.J. Stat. Ann. § 2C:5-2.

At Petitioner’s trial, the victim testified that he was

approached by Petitioner and his co-defendant as he was exiting a

building. (Answer, Ex. Rta2, ECF No. 8-27 at 54.) He further

testified that one of the men “ . . . pulled a knife out on me.

Another gentleman went for my wallet. I tried to knock his hand

down, away, a couple of times. Then the one gentleman told the

other gentleman to stab me.” (Id.) The victim testified that he

flung his wallet at his assailants in response to one of them

lunging at him with a knife. (Id. at 55.) The victim provided an

in-court identification of both men. (Id. at 54-55.)

Further, Sergeant Martinez testified that he observed the two

suspects, Petitioner and his co-defendant, near the victim until

they took off running upon seeing Martinez in his police vehicle.

(Id. at 27.) The state also admitted into evidence the knife that

Petitioner’s co-defendant dropped to the ground shortly after he

stopped running from Martinez. (Id. at 31-32.)

Petitioner argues that the armed robbery count fails because

there was no evidence of the victim sustaining any injuries. (Pet.,

ECF No. 1 at 30). However, the New Jersey statute does not

exclusively require bodily injury for the act to constitute an

armed robbery. Further, Petitioner seeks to undermine the

conspiracy conviction by arguing that his co-defendant, who

represented himself at trial, “testified during his opening

informing the jury he and petitioner did not know each other. (Id.

at 28.) This argument fails because his opening statements do not

constitute evidence and the trial judge gave a curative instruction

to the jury as a result of some of the co-defendant’s comments

during his opening arguments. (Answer, Rta2, ECF No. 8-27 at 23.)

To conclude, Petitioner’s claim that he was denied due process

because of the insufficient evidence is without merit. The

Appellate Division’s decision was not contrary to clearly

established federal law. Therefore, this claim is denied.

4. Sentence

a. The Parties’ Arguments

In Petitioner’s next claim, he contends that his seventeen-

year sentence violates his Fifth and Fourteenth Amendment rights.

(Pet., ECF No. 1 at 31.)8

Respondents assert that Petitioner’s sentencing claim was

rightly denied by the state court as he was sentenced within the

statutory maximum and the sentence was supported by the record.

(Answer, ECF No. 8 at 34.)

b. State Court Decision

8 Petitioner raised his sentencing claim on PCR but it was deemed

procedurally barred pursuant to New Jersey Rule 3:22-5, which

bars claims that were previously adjudicated. (Answer, Ra13, ECF

No. 8-32 at 1.)

Petitioner previously challenged his sentence before the

Appellate Division, which denied the claims as follows-

Defendant also challenges his sentence. “An

appellate court should disturb the sentence

imposed by the trial court only in situations

where the sentencing guidelines were not

followed, the aggravating and mitigating

factors applied by the trial court are not

supported by the evidence, or applying the

guidelines renders a particular sentence

clearly unreasonable.” State v. Roach, 146

N.J. 208, 230, cert. denied, 519 U.S. 1021,

117 S.Ct. 540, 136 L.Ed.2d 424 (1996).

In this case, there is sufficient credible

evidence to support the trial court’s findings

regarding the aggravating factors and the

absence of mitigating factors; the court

correctly applied the sentencing guidelines

set forth in the Criminal Code: and the court

reached a conclusion that could have

reasonably been made upon a weighing of the

relevant factors. State v. O’Donnell, 117 N.J.

210, 215 (1989); State v. Ghertler, 114 N.J.

383, 388-89 (1989). As a reviewing court, we

may modify a sentence “when the application of

the facts to the law is such a clear error of

judgment that it shocks the judicial

conscience.” State v. Roth, 95 N.J. 334, 364

(1984). This is not such a case.

Woods, 2013 WL 4436474 at *6.

c. Analysis

The legality and length of a sentence are generally questions

of state law over which this Court has no jurisdiction under §

2254. See Chapman v. United States, 500 U.S. 453, 465 (1991);

Harmelin v. Michigan, 501 U.S. 957, 994-95 (1991); Wainwright v.

Goode, 464 U.S. 78 (1983). A federal court’s ability to review

state sentences is limited to challenges based upon “proscribed

federal grounds such as being cruel and unusual, racially or

ethnically motivated or enhanced by indigencies.” See Grecco v.

O’Lone, 661 F. Supp. 408, 415 (D.N.J. 1987) (citation omitted).

Petitioner has provided no support for his claim that his

seventeen-year sentence was unconstitutional. See 28 U.S.C. §

2254(a). (“[A] district court shall entertain an application for

a writ of habeas corpus in behalf of a person in custody pursuant

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

custody in violation of the Constitution or laws or treaties of

the United States.”) Although he was extended-term eligible, the

judge denied the state’s motion to impose such a term.

Petitioner has not raised a colorable federal claim.

Therefore, this claim is denied.

5. Jury Instructions

a. The Parties’ Arguments

Petitioner’s next ground for relief is that the trial court

erroneously instructed the jury “ . . . that petitioner was legally

responsible for Co-defendant Perry Alston being armed with the

folding knife.” (Pet., ECF No. 1 at 31.)

Respondents assert that this claim was appropriately denied

by the Appellate Division upon Petitioner’s direct appeal.9

(Answer, ECF No. 8 at 20.)

b. State Court Decision

The Appellate Division denied this claim on Petitioner’s

direct appeal as follows-

Defendant also argues for the first time that

the court provided “deficient” instructions on

accomplice liability. When a defendant is

charged with armed robbery based on accomplice

liability, the Supreme Court has held a

court’s instruction must “clearly require the

jury to find that defendant had shared the

purpose to commit a robbery with a weapon.”

State v. Weeks, 107 N.J. 396, 405 (1987). In

appropriate cases, a court must also instruct

the jury that an accomplice may be convicted

of lesser-included offenses. State v.

Bielkiewicz, 267 N.J. Super. 520, 531 (App.

Div. 1993).

Woods, 2013 WL 4436474 at *4.

c. Analysis

A habeas petitioner who challenges state court jury

instructions must “point to a federal requirement that jury

instructions on the elements of an offense . . . must include

particular provisions,” or demonstrate that the jury “instructions

deprived him of a defense which federal law provided to him.”

9 Petitioner’s direct appeal brief explicitly raises the issue of

whether Petitioner possessed the knife within the context of an

accomplice liability charge. (Answer, Ex. Rta4, ECF No. 8-6 at

30-42.)

Johnson v. Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997). Therefore,

when a habeas petitioner challenges a jury instruction provided in

a state criminal proceeding,

the only question for [the federal court] is

“whether the ailing instruction by itself so

infected the entire trial that the resulting

conviction violates due process.” It is well

established that the instruction “may not be

judged in artificial isolation,” but must be

considered in the context of the instructions

as a whole and the trial record. In addition,

in reviewing an ambiguous instruction . . . ,

[the federal court] inquire[s] “whether there

is a reasonable likelihood that the jury has

applied the challenged instruction in a way”

that violates the Constitution. And [the

court] also bear[s] in mind . . . that

[the federal courts]

“have defined the category of infractions that

violate “fundamental fairness’ very

narrowly.” “Beyond the specific guarantees

enumerated in the Bill of Rights, the Due

Process Clause has limited operation.”

Estelle v. McGuire, 502 U.S. 62, 72-73 (1991)(citations omitted).

This Court has reviewed the accomplice liability instruction

which the trial court provided to the jury. (Answer, Ex. Rta3, ECF

No. 8-28 at 57-61.) The instructions were appropriate in light of

the evidence before the jury, particularly the testimonial

evidence. The record reflects that the victim and Sergeant Martinez

provided eyewitness testimony about the events surrounding the

robbery. This includes the victim’s testimony that Petitioner’s

co-defendant wielded the knife, while Petitioner told him to stab

the victim. (Answer, Ex. Rta2, ECF No. 8-27 at 54.)

Therefore, this claim is denied.

6. Ineffective Assistance of Counsel

a. The Parties’ Arguments

Finally, Petitioner argues that his trial, appellate and PCR

counsel were ineffective for “not being able to get petitioners

conviction and sentence reversed and vacated due to the

constitutional violations outlined herein . . . ” He further argues

that counsel was ineffective for failing to incorporate his alibi

into his defense and for failing to investigate Sergeant Martinez’

police misconduct. (Pet., ECF No. 1 at 32.) Petitioner argues that

Martinez’s purported demotion from sergeant to detective is

illustrative of his misconduct and subsequent sanction. (Id.)

Respondents rightly submit that the ineffective assistance

claim is unexhausted but nonetheless fails on the merits. (Answer,

ECF No. 8 at 40-47.) Respondents also argue that the PCR court

properly denied Petitioner’s claim that counsel failed to

adequately cross-examine Martinez. However, that particular claim

was not raised within the context of any purported police

misconduct. (Answer, Ex. Ra11, ECF No. 8-13 at 16).

b. State Court Decision

The record does not reflect that Petitioner previously raised

this claim. While this claim is unexhausted, it can nonetheless be

denied on the merits. See Granberry, 481 U.S. at 131, 135.

c. Analysis

The Supreme Court set forth the standard by which courts must

evaluate claims of ineffective assistance of counsel in Strickland

v. Washington, 466 U.S. 668 (1984). First, the defendant must show

that counsel’s performance was deficient. This requirement

involves demonstrating that counsel made errors so serious that he

was not functioning as the “counsel” guaranteed by the Sixth

Amendment. Id. at 687. Second, the defendant must show that he was

prejudiced by the deficient performance. Id. This requires showing

that counsel’s errors deprived the defendant of a fair trial. Id.

Counsel’s performance is deficient if his representation

falls “below an objective standard of reasonableness” or outside

of the “wide range of professionally competent assistance.” Id. at

690. In examining the question of deficiency, “[j]udicial scrutiny

of counsel’s performance must be highly deferential.” Id. at 689.

In addition, judges must consider the facts of the case at the

time of counsel’s conduct, and must make every effort to escape

what the Strickland court referred to as the “distorting effects

of hindsight.” Id. The petitioner bears the burden of showing that

counsel’s challenged action was not sound strategy. Kimmelman v.

Morrison, 477 U.S. 365, 381 (1986). Furthermore, a defendant must

show a reasonable probability that, but for counsel’s errors, the

result of the proceeding would have been different. Id. at 694.

“With respect to the sequence of the two prongs, the

Strickland Court held that ‘a court need not determine whether

counsel’s performance was deficient before examining the prejudice

suffered by the defendant as a result of the alleged deficiencies

. . . 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.’” Rainey v. Varner,

603 F.3d 189, 201 (3d. Cir. 2010) (quoting Strickland, 466 U.S. at

697)).

Here, Petitioner has not raised a valid constitutional claim

for any of the stand-alone claims he raised in “Legal Argument

Point One” through “Legal Argument Point Five.” Consequently,

counsel was not ineffective for not raising these claims at his

trial. As to Petitioner’s claim that counsel failed to introduce

Petitioner’s alibi evidence and failed to investigate Sergeant

Martinez’s testimony, Petitioner does not provide one iota of

supporting facts or arguments. The court notes Respondents

argument that trial counsel took a more reasonable approach by

arguing that while Petitioner was at the crime scene, it was only

to engage in drug use and not to commit any violent crime or theft.

(Answer, ECF No. 8 at 44.)

Moreover, appellate counsel cannot be deemed ineffective for

failing to raise an issue that would not have resulted in the

reversal of his client’s conviction. See Buehl v. Vaughn, 166 F.3d

163, 174 (3d Cir. 1999). As for Petitioner’s claim that his PCR

counsel was ineffective, that claim is denied. Section 2254

explicitly excludes from the scope of federal habeas relief a claim

based upon ineffective assistance of PCR counsel. “The

ineffectiveness or incompetence of counsel during Federal or State

collateral post-conviction proceedings shall not be a ground for

relief in a proceeding arising under section 2254.” 28 U.S.C. §

2254(i); see also Coleman v. Thompson, 501 U.S. 722, 752–53, 111

S.Ct. 2546, 115 L.Ed.2d 640 (1991) (holding there is no

constitutional right to counsel in state post-conviction relief

proceedings and, consequently, ineffective assistance of counsel

in state post-conviction relief proceedings does not provide

ground for federal habeas relief); Taylor v. Horn, 504 F.3d 416,

437 n. 17 (3d Cir.2007) (noting same and citing Coleman).

Therefore, this claim is denied.

IV. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), 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.

A certificate of appealability may issue “only if the applicant

has made a substantial showing of the denial of a constitutional

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

standard by demonstrating that jurists of reason could disagree

with the district court’s resolution of his constitutional claims

or that jurists could conclude the issues presented are adequate

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

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

For the reasons discussed above, Petitioner has not made a

substantial showing of the denial of a constitutional right.

Therefore, the Court will deny a certificate of appealability.

V. CONCLUSION

In the accompanying Order filed herewith, the Petition for

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

Dated: October 23, 2019

s/Renée Marie Bumb

RENÉE MARIE BUMB

United States District Judge