BAYLOR v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DAVID BAYLOR,

: Civil Action No. 17-1435 (KM)

Petitioner, :

v. : OPINION

ATTORNEY GENERAL OF THE :

STATE OF NEW JERSEY, et al., :

Respondents, :

APPEARANCES:

David Baylor

Pro Se

429701

New Jersey State Prison

P.O. Box 861

Trenton, NJ 08625

Petitioner,

Christopher W. Hsieh

Chief Assistant Prosecutor

Passaic County Prosecutor’s Office

401 Grand Street

Paterson, NJ 07505

On behalf of Respondents.

MeNulty, United States District Judge

I. INTRODUCTION

Petitioner David Baylor, a prisoner currently confined at New Jersey State Prison in

Trenton, New Jersey, has filed a petition for a writ of habeas corpus. (DE 1.) For the reasons

explained in this Opinion, the Court will deny the petition and will deny a certificate of

appealability.

II. FACTUAL BACKGROUND & PROCEDURAL HISTORY

The factual background and procedural history in this matter were summarized in part by

the New Jersey Superior Court, Appellate Division on Petitioner’s direct appeal.!

With money provided by the Federal Bureau of Investigation (FBI),

Lorenzo Gonzalez (Gonzalez) operated an after-hours club called

“Kings Court” in Paterson. The club was intended to attract certain

“high level” gang members who the FBI was tracking and

investigating.

On the evening of December 13, 2005, Beatriz Hernandez (Beatriz)

went to a club in Passaic with Debbie Aponte-Tovar (Aponte-Tovar)

and two men. Defendant was at the club with Hamid Shabazz

(Shabazz) and Reginald Barris (Barris). Beatriz told them that there

would be gambling and a lot of money at Kings Court and they

should rob that establishment. Between 1:55 and 2:30 a.m., Beatriz

and Aponte-Tovar found Gonzalez and two men playing pool. A

short while later, defendant arrived with Shabazz, Barris and

Maurice Fabor (Fabor). Others were present at Kings Court,

including Michael Almonte (Almonte), Ralph Hernandez

(Hernandez), Jesus Gonzalez (Jesus), John Melendez (Melendez)

and Tara Woods (Woods).

After a while, Beatriz moved to the dice table. She observed about

$5000 on the table. Beatriz left the table and confirmed with

defendant and Shabazz that the robbery was going to take place.

Barris became very intoxicated and went outside. Defendant and

Shabazz followed. Beatriz thereafter opened the back door and

defendant and Shabazz came back inside. They were both wearing

black masks and defendant had a gun.

Gonzalez was standing at the gaming table with Hernandez and

Beatriz. When Gonzalez stood up to count his money, he heard a

loud bang. Defendant had shot Jesus. Defendant then walked over

to the pool table where Woods was playing. She asked defendant

not to kill her, but he told her to “[s]hut the fuck up” and shot her in

the head. Beatriz asked defendant what he was doing. Defendant did

' The facts found by the Appellate Division are presumed correct pursuant to 28 U.S.C. §

2254(e)(1).

not respond. He then shot Melendez and Hernandez. Beatriz and

Aponte-Tovar ran out the back door of the club, met Fabor who was

already outside, and got into Beatriz’s truck and drove away. Beatriz

headed towards the highway but stopped to pick up defendant and

Shabazz. Shabazz told her to drop them off near a store in Paterson.

According to Beatriz, during the drive, defendant and Shabazz joked

about the shooting and talked about dividing the money. Defendant

and Shabazz offered Beatriz some money but she refused to accept

it.

Officers of the Paterson Police Department (PPD) were dispatched

to Kings Court. Emergency personnel confirmed that all four

victims of the shootings were dead. Gonzalez told the police that he

believed the suspects were associated with the Bloods gang. The

police showed Gonzalez photographs of certain known gang

members, and Gonzalez identified Barris, Hernandez and Aponte-

Tovar as persons who were present at the club that evening.

Gonzalez testified that he told the police defendant was the shooter.

Beatriz thereafter spoke on the phone with the PPD detectives.

Later, she went to police headquarters and provided the detectives

with a statement denying that she conspired to commit the robbery.

The detectives showed Beatriz certain photographs and she

identified defendant, Barris and Shabazz as persons involved in the

incident. She identified defendant as the shooter. Beatriz also told

the detectives that Fabor was present at the club on the night of the

shootings.

Aponte-Tovar left the state after the shootings. She returned after

she was told that the PPD knew she was at Kings Court at the time

of the shootings and knew where she could be located. Aponte-

Tovar identified photographs of defendant, Barris, Shabazz and

Beatriz as persons involved in the incident. In addition, Almonte

informed the police that he was a witness to the shootings. He was

shown photographs of gang members and he identified Barris as one

of the perpetrators of the robbery.

On December 16, 2005, criminal complaints were filed against

defendant, Barris and Shabazz. Shabazz was arrested in Passaic on

December 18, 2005. At the request of the Paterson police, Shabazz

phoned defendant, who told Shabazz that the police had been at his

house. The police overheard the conversation. On December 20,

2005, defendant turned himself in at police headquarters and he was

arrested.

Defendant was informed of his Miranda rights. He agreed to waive

those rights and give the detectives a statement. Defendant

acknowledged that he had been at Kings Court on the night of the

shootings. He said that he went to the restroom and when he

returned, he heard gunshots. The detectives asked defendant why

three people would “point the finger” at him, and he responded that

it was “[bJecause I’m Blood, I’m Blood and J have respect within

this Blood thing.”

Defendant said that Kings Court was a “gang place” but he denied

seeing any members of the Bloods gang in the club on the night of

the shootings. In addition, defendant denied that Fabor was a

member of the Bloods. He stated that he was willing to “take the

weight” for the shootings because he had “no choice.”

The grand jury charged defendant with four counts of first-degree

murder, N.J.S.A. 2C:11-3(a)(1) or N.J.S.A. 2C:11-3(a}(2) (counts

one, four, seven, and ten); four counts of first-degree felony murder,

N.J.S.A. 2C:15-1(a)(1) and (3) (counts three, six, nine and twelve);

unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) count

thirteen; possession of a weapon for an unlawful purpose, N.J.S.A.

2C:39-4(a) (count fourteen); and certain persons not to have

weapons, N.J.S.A. 2C:39-7(b) (count fifteen). Shabazz, Barris and

Beatriz also were charged with various offenses.

Defendant was found not guilty on counts six and twelve (charging

the robberies of Woods and Melendez, respectively) and thirteen

(charging unlawful possession of a weapon) but guilty on all other

charges. After merging certain offenses, the court imposed four

consecutive life sentences without parole for the murders; two

concurrent twenty-year sentences for the robberies, with periods of

parole ineligibility as prescribed by the No Early Release Act,

N.J.S.A 2C:43-7.2; and a consecutive ten-year term for certain

persons not to have weapons, with a five-year period of parole

ineligibility. The court filed a judgment of conviction dated

September 19, 2008.

State v. Baylor, 34 A.3d 801 (N.J. Super. Ct. App. Div. Dec. 29, 2011).

The Appellate Division affirmed Petitioner’s conviction in a published opinion. /d. at

814. The New Jersey Supreme Court denied Petitioner’s petition for certification. State v.

Baylor, 34 A.3d 801 (N.J, 2012). Petitioner then filed a Petition for Post-Conviction Relief

(“PCR”) in the trial court, which was denied on January 24, 2014. (DE 4-39 at 66-68, 69-79.)

The Appellate Division affirmed the PCR court’s decision on April 5, 2016. State v. Baylor, A-

2928-13T2, 2016 WL 1312634 (N.J. Super. Ct. App. Div. Apr. 5, 2016). The New Jersey

Supreme Court denied Petitioner’s petition for certification on June 24, 2016. State v. Baylor,

141 A.3d 299 (N.J. 2016).

Petitioner filed this Petition for federal habeas relief on February 28, 2017. (DE 1.)

Respondents filed an Answer on April 3, 2017. (DE 5.) Petitioner filed a reply on May 26, 2017.

(DE 10.) The matter is fully briefed and ready for disposition.

I. STANDARD OF REVIEW

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

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

§ 2254(a). Petitioner has the burden of establishing each claim in the petition. See Eley v. Erickson,

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

Effective Death Penalty Act (“AEDPA”), federal courts in habeas corpus cases must give

considerable deference to determinations of state trial and appellate courts. See Renico v. Lett, 559

U.S. 766, 773 (2010).

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

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

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

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

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

U.S. 37, 40 (2012) (quoting 28 U.S.C. § 2254(d)). Clearly established law for purposes of

§ 2254(d)(1) includes only “the holdings, as opposed to the dicta, of (the Supreme Court’s]

decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412

(2000). Moreover, a federal court reviewing the state court’s adjudication under § 2254 (d)(1) must

confine its examination to evidence in the record. Cullen v. Pinholster, 563 U.S. 170, 181-82

(2011). Finally, “a determination of a factual issue made by a State court shall be presumed to be

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

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

240 (2005).

IV. ANALYSIS

The Petition raises five grounds for relief:

1. The Petitioner’s recorded custodial statement to law enforcement was in violation of

his Fifth Amendment right against self-incrimination.

2. The trial court’s erroneous jury instructions were in violation of his right to a fair trial.

3. The trial court erroneously admitted Petitioner’s recorded telephone conversation with

his co-defendant despite its highly prejudicial nature.

4, The trial court erroneously permitted prejudicial evidence of Petitioner’s gang

affiliation.

5. Petitioner was erroneously sentenced to life without parole in violation of the Ex Post

Facto Clause and his right to a fair trial and due process.

For the reasons explained infra, this Court finds that Petitioner’s claims do not warrant

granting federal habeas relief.

A. Claim that the Petitioner’s recorded statement to law enforcement was taken in

violation of his Fifth Amendment right against self-incrimination

Petitioner asserts that the trial court erroneously admitted his custodial statement to

detectives despite its being a product of coercive interrogation tactics and obtained despite his

invoking his right to silence. (DE 1-3 at 1-5.) He argues that the questioning detectives employed

coercive tactics such as presenting themselves as amiable to Petitioner, making multiple

misrepresentations to Petitioner including that he was facing the death penalty, and representing

that they were aware of evidence and witnesses which they were not in fact aware of. (/d. at 3-4.)

Petitioner also argues that the detectives should have recognized that he was invoking his right to

silence when he stated he could not identify the shooter. (/d. at 4-5.) Petitioner also states that he

had limited education and an extensive criminal background, but he does not further relate that

information to the voluntariness of his statement to the police. (/d. at 3.)

This very issue was raised in Petitioner’s direct appeal to the Appellate Division. That

Court rejected it as follows:

Here, the trial court conducted a hearing on defendant’s motion to

suppress his videotaped statement to the police. The record of that

proceeding indicates that defendant voluntarily presented himself at

police headquarters after a warrant was issued for his arrest. The

detective advised defendant of his Miranda rights. Defendant

confirmed in writing that he understood his rights. He waived his

rights and provided the detectives with a statement that was

videotaped. The trial court found that, considering the totality of the

circumstances, defendant made his statement voluntarily.

Defendant argues, however, that his statement should not be

considered voluntary because the detectives subjected him to what

he says was “psychological manipulation and coercion.” Defendant

asserts that the detectives presented themselves as friends who cared

about his welfare; erroneously informed him that he faced the death

penalty; reduced him to tears by applying “unrelenting pressure” on

him to confess and/or name the shooter; attributed statements to him

that were untrue and intended to “trick” him into making inculpatory

statements; and lied about the evidence and witnesses against him.

The trial court found that the detectives did not subject defendant to

any coercion, pressure or threats. Moreover, law enforcement

officers may employ deception or trickery in an interrogation of a

suspect unless such deception or trickery was calculated to produce

an untruthful confession or was offensive to due process. State v.

Manning, 165 N.J. Super. 19, 30-31, 397 A.2d 686 (App. Div.

1978), certif, denied, 81 N.J. 358, 407 A.2d 1231 (1979). The trial

court found that the police engaged in some deception but it did not

result in defendant making a statement he would not have otherwise

made voluntarily.

The trial court’s findings are binding on appeal if supported by

sufficient, credible evidence. State v. Elders, 192 N.J. 224, 243, 927

A.2d 1250 (2007) (citing State v. Locurto, 157 N.J. 463, 474, 724

A.2d 234 (1999). We are satisfied that the record supports the

court’s findings and its conclusion that defendant’s statement was

voluntary.

Defendant additionally argues that the investigating detectives

failed to honor his “request” to terminate the interrogation.

Defendant did not raise this argument in the trial court. In any event,

the argument is without merit.

An individual may waive his or her Miranda rights and proceed with

questioning, but “a decision to proceed, however, is not

irrevocable.” State v. Burno-Taylor, 400 N.J. Super. 581, 587, 948

A.2d 717 (App. Div. 2008). “If the individual indicates in any

manner, at any time prior to or during questioning, that he wishes to

remain silent, the interrogation must cease.” /bid. (quoting

Miranda, supra, 384 U.S. at 473-74, 86 S.Ct. at 1627-28, 16 L.Ed.2d

at 723 (footnote omitted)). “New Jersey courts have recognized that

even an ambiguous indication of a desire to remain silent is

sufficient to require that questioning cease.” /d. at 590, 948 A.2d

717. “[A] request to terminate an interrogation must be honored

‘however ambiguous.’” State v. Bey, 112 N.J. 45, 64-65, 548 A.2d

846 (1988) (quoting State v. Kennedy, 97 N.J. 278, 288, 478 A.2d

723 (1984)).

Defendant contends that when he told the detectives that he could

not name the shooter because of his affiliation with the Bloods gang,

he was “explain[ing] that he would not discuss the incident further.”

Defendant additionally contends that when he told the detectives he

could not give them the name of the shooter, he was asserting his

right to silence and “it was incumbent upon the detectives to either

end the interrogation, or, at least, ask if [defendant] wanted [to]

stop.”

We are convinced, however, that defendant’s statement cannot

reasonably be interpreted as an assertion of his right to remain silent.

Defendant never told the detectives that he wanted the interrogation

to stop. He never stated that he wanted to consult with an attorney.

He never said that he did not wish to discuss the matter further. We

are satisfied that defendant’s statement that he could not name the

shooter because of his gang affiliation was not an assertion of a right

to remain silent.

Baylor, 34 A.3d at 806-808.

The Fifth Amendment to the United States Constitution provides that no person “shall be

compelled in any criminal case to be a witness against himself.” U.S. Const., amend. V. Under

Miranda v. Arizona, 346 U.S. 436 (1966), a statement taken during a custodial interrogation is

only admissible at a criminal defendant’s trial where that defendant was advised of his rights and

has made a knowing, intelligent, and voluntary waiver of his rights. 346 U.S. at 444; see also

Berghuis v. Thompkins, 560 U.S. 370, 382-83 (2010); Sweet v. Tennis, 386 F. App’x 342, 345

(3d Cir, 2010). “[T]he Fifth Amendment proscribes only self-incrimination obtained by a

genuine compulsion of testimony.” United States v, Washington, 431 U.S. 181, 187 (1977)

(internal quotation marks and citations omitted).

“WJhen a confession challenged as involuntary is sought to be used against a criminal

defendant at his trial, he is entitled to a reliable and clear-cut determination that the confession

was in fact voluntarily rendered.” Lego v. Twomey, 404 U.S. 477 (1972). Here, the trial court

convened a suppression hearing before determining that the statement was voluntary. (D.E. Nos.

4-] — 4-2.) At the hearing, the interviewing detectives testified about the interview and the trial

court viewed the video-recorded interview in its entirety. (DE 4-1 at 9.) The detectives testified,

inter alia, that Petitioner was advised of his Miranda rights and signed a waiver form which was

entered into evidence at the hearing. (/d. at 7-8.) The detectives and the trial court acknowledged

that the interviewing detectives did employ some deception about issues such as his potential

sentence and information they had obtained from witnesses, in the course of their unsuccessful

attempts to obtain a confession from Petitioner. (DE 4-2 at 29.) The trial court noted that

although Petitioner did not confess to the crimes, there were portions of the interview which the

defense would understandably consider helpful to the prosecution. (/@.} All the facts and

circumstances surrounding the recorded statement were heard by the trial judge, who ultimately

ruled that the statement was voluntary. (/d. at 27-30.)

Petitioner has not established that any police activity resulted in a coerced confession.

Petitioner did not confess to any crime. While he submits that he only had a ninth-grade

education, he also acknowledges that he had had significant contact with the criminal justice

system by that point in his life. Moreover, law enforcement displaying a friendly disposition

towards the subject does not rise to the level of psychological manipulation that would render a

confession unconstitutional. See Miller v. Fenton, 798 F.2d 598,607 (3d Cir. 1986) (citations

omitted). Petitioner has failed to demonstrate that his “will was overborne and his capacity for

self-determination critically impaired.” Colorado v. Spring, 479 U.S. 564, 547 (1987) (citations

omitted).

As to Petitioner’s claim that the detectives continued to question him after he asserted his

right to silence cannot be credited. The Miranda rule requires that law enforcement cease

questioning if the subject invokes his right to counsel or right to remain silent at any point during

the interview. /d. at 388. Petitioner argues that by stating to the detectives that he was unable to

identify a shooter, he was asserting his right to silence. This statement clearly does not qualify as

an unambiguous invocation of his right to remain silent. See Berghuis, 560 U.S. at 382 (“If an

ambiguous act, omission, or statement could require police to end the interrogation, police would

be required to make difficult decisions about an accused’s unclear intent and face the

consequence of suppression if they guess wrong.”) (internal quotation marks and citations

omitted). Indeed, it does not even rise to the level of an equivocal invocation of that right.

10

Considering the facts as determined by the state court, the Court is satisfied that

Petitioner knowingly and voluntarily provided a statement. Furthermore, at no time during the

questioning did Petitioner invoke his right to remain silent. Consequently, the state court’s

decision was not an unreasonable application of clearly established federal law. Habeas relief is

thus denied.

B. Claim that the trial court’s erroneous jury instructions deprived Petitioner of his

Fourteenth Amendment right to a fair trial

Petitioner next submits that the trial court delivered several jury instructions that were

incomplete statements or misstatements of the law, thus violating his right to a fair trial. (DE 1-3

at 7-13.) He argues: that the trial court omitted portions of the robbery instruction (/d. at 5); that

the trial court erroneously omitted portions of the instruction on eyewitness identification (/d. at

7); that the trial court limited its instruction on how to evaluate a defendant’s statement to

Petitioner’s videotaped statement with detectives, but should have also applied it to his recorded

telephone conversation with his co-defendant (/d. at 7-8); the trial court misstated the instruction

on how the jury could not consider a co-defendant’s guilty plea against Petitioner; the trial court

misstated the jury instruction on how the jury could consider any inconsistencies in Petitioner’s

videotaped statement to investigators; and that the trial court failed to provide an instruction on

prior inconsistent statements. (/d. at 11-13.)

To show that a jury instruction violated due process, Petitioner must show “both that the

instruction was ambiguous and that there was a reasonable likelihood that the jury applied the

instruction in a way that relieved the State of its burden of proving every element of the crime

beyond a reasonable doubt.” Waddington v. Sarausad, 555 U.S. 179, 190-91 (2009) (internal

citation and quotation marks omitted). The instruction “must be considered in the context of the

instructions as a whole and the trial record.” Jd. at 191 (internal citation and quotation marks

Hl

omitted). Moreover, “it is not enough that there is some slight possibility that the jury misapplied

the instruction, the pertinent question is whether the ailing instruction by itself so infected the

entire trial that the resulting conviction violates due process.” /d. {internal citation and quotation

marks omitted). “In other words, the inquiry requires careful consideration of each trial's unique

facts, the narratives presented by the parties, the arguments counsel delivered to the jurors before

they retired to deliberate, and the charge as a whole.” Williams v. Beard, 637 F.3d 195, 223 (3d

Cir. 2011) (citing Waddington, 555 U.S. 179).

Robbery Instruction

Petitioner argues that the trial court omitted a portion of the New Jersey Model Jury

Instruction on robbery that should have been provided in order for the jury to properly determine

whether the evidence supported the guilty verdicts on the robbery counts. (DE 1-3 at 5-6.) A

state witness, he says, speculated that Petitioner committed the crimes in question because one of

the individuals on the premises was a Federal Bureau of Investigation (“F.B.I.”) informant. (/d.

at 6.) Petitioner therefore submits that because there could have been motives other than a desire

to commit a theft, the portion of the model jury instruction which provides that, the intent to

commit theft must precede the use of force should have been provided. He also argues that the

jury’s not guilty verdicts with respect to victims Melendez and Woods support this argument.

This very issue was raised in Petitioner’s direct appeal before the Appellate Division,

which rejected it:

Defendant contends that the trial court incorrectly omitted the

following portion of the model jury charge on robbery:

To find the defendant guilty of robbery, the intent to commit theft

must precede or be coterminous with the use of force. In other

words, the defendant must have formed the intent to commit a theft

before or during his/her use of force. If you find the defendant

12

formed the intent to commit a theft after his/her use of force, then

he/she cannot be found guilty of robbery[.]

[Model Jury Charge (Criminal), “Robbery” (2009).]

Defendant argues that this portion of the charge “was critical to a

fair determination” of the charges.

In support of this argument, defendant relies upon State v. Lopez,

187 N.Z. 91, 900 4.2d 779 (2006). In Lopez, the defendant struck

and killed the victim. Jd. at 93, 900 4.2d 779. Thereafter, the

defendant decided to steal the victim's jewelry. /bid. The Court

observed that “without the intention to steal evidenced by a theft or

attempted theft, there can be no robbery.” /d. at 98, 900 4.2d 779.

The Court held that our robbery statute “requires that the threats of

violence be carried out in furtherance of the intention to commit a

theft.” /d. at 101, 900 4.2d 779.

Lopez does not support defendant's argument in this case. Beatriz

testified that she and the defendant had discussed committing the

robberies at Kings Court before defendant arrived there, and that

she took steps to facilitate the robberies by opening the back door

so that defendant and Shabazz could return to into the club. Unlike

Lopez, the evidence presented here indicated that defendant formed

the intent to commit the thefts before he entered Kings Court, and

he had the intent to commit the thefts when he shot Hernandez and

Gonzalez. /bid, In light of the evidence, the omission of the portion

of the robbery charge quoted above was not plain error.

Defendant nonetheless argues that the trial court's instruction

constitutes plain error because the jury determined that he did not

commit the robberies of Woods and Melendez. Defendant asserts

that if the omitted section of the charge had been included, he

might have been acquitted of the robberies of Hernandez and

Gonzalez. We disagree. The jury's findings can be rationally

explained by the fact that the evidence established that Hernandez

and Gonzalez were playing dice at the gaming table where Beatriz

observed the money, while Woods and Melendez were at the pool

table.

We are therefore satisfied that the omission of the aforementioned

portion of the robbery charge was not an error “clearly capable of

producing an unjust result.” R. 2:10-2.

Baylor, 34 A.3d at 808-809.

13

Notwithstanding any testimony from state witnesses about a possible non-theft related

motive for Petitioner’s actions at the after-hours club, the record reflects that there was also

testimony that theft was a motive, and a preexisting one.” State witness,Beatriz Hernandez,

testified that she was the one who advised Petitioner and his co-defendants that there was

gambling taking place at the after-hours club and that there would be potentially significant sums

of money that the group could rob. (DE 4-5 at 22.) Moreover, Hernandez testified that she

witnessed Petitioner and his co-conspirator in her vehicle as they drove away from the after-

hours club dividing cash that was stained with blood. (/d, at 41-42.) Notwithstanding Petitioner’s

protestations, the State presented ample evidence that Petitioner and his co-conspirators did have

a plan to steal money before they arrived at the club. Nor did the acquittal as to victims Woods

and Melendez suggest otherwise. As the state court pointed out, the evidence showed that the

visible amounts of cash were at the dice table where victims Gonzalez and Hernandez were

located, and not at the pool table where victims Woods and Melendez were located. There was a

reasonable basis, then, two distinguish between the two sets of victims as to the robbery counts.

at 31, 33, 37-38.)

Petitioner has not demonstrated that any omission of a portion of the robbery jury

instruction “infected the entire trial” in any way. Consequently, the state court’s decision was not

an unreasonable application of clearly established federal law. Habeas relief is thus denied.

2 The Court has reviewed Lorenzo Gonzalez’s testimony in its entirety. Gonzalez testified that he

was running the after-hours club using funds from the F.B.I., and that he may have speculated

immediately after the incident that that was a possible motive for the crimes. (D.E. Nos. 4-8 at 2-

3, 4-9 at 25.)

14

Identification Instruction

Petitioner next submits that that the trial court erroneously omitted portions of the

instruction on how jurors should evaluate an eyewitness identification. (DE 1-3 at 7.) Petitioner

submits that because his defense was mistaken identification, the instruction was particularly

critical. (/d.)

This very issue was raised in Petitioner’s direct appeal before the Appellate Division,

which denied it:

Here, the trial court instructed the jury on identification by stating

that when:

evaluating an identification you should consider the observations

and perceptions on which each identification is based and the

particular witness's ability to make those observations and

perceptions. If you determine that the out of court identification of

a particular ... witness is not reliable you may still consider the

witness's in court identification of the defendant if you find it to be

reliable.

The court further instructed the jury on the factors that are relevant

to the reasonableness of the identification, including the witness's

opportunity to view the suspect; the witness's degree of attention at

the relevant time; and the certainty of the identification. The court

told the jury to consider any inconsistencies or discrepancies in any

identifications, as well as any other factors that the jury deemed

relevant.

Defendant argues that the instructions were erroneous because the

court failed to instruct the jury as follows:

Although nothing may appear more convincing than a witness's

categorical identification of a perpetrator, you must critically

analyze such testimony. Such identifications, even if made in good

faith, may be mistaken. Therefore, when analyzing such testimony,

be advised that a witness's level of confidence, standing alone, may

not be an indication of the reliability of the identification.

[Model Jury Charge (Criminal), “Identification: in-court and out-

of-court identifications” (2009).]

15

Defendant claims that the omission of this section of the model

charge was plain error because identification was a significant

issue in the case. Again, we disagree.

As noted, the court instructed the jury to consider the identification

testimony and determine whether the identifications were reliable.

The court's failure to instruct the jury that some identifications may

be mistaken, even when made in good faith, was erroneous but the

error was not “clearly capable of producing an unjust result.” 2.

2:10-2,

We note that Beatriz and Gonzalez, who both knew defendant

from prior encounters, had identified defendant as the perpetrator

of the charged offenses prior to, and at, trial. The jurors obviously

found Beatriz's and Gonzalez's identification testimony reliable.

We are convinced that it is unlikely the jury would have reached a

different conclusion if the trial court had included the omitted

language in its charge.

Baylor, 34 A.3d at 809.

The trial record reflects that the jury received instructions on how to evaluate an

eyewitness identification as well as a list of factors that they may consider when evaluating the

identification. (DE 4-23 at 36-37.) Furthermore, the trial court added that the “[t]he ultimate

issue of trustworthiness of both the in court and out of court identification are for you to decide.”

(/d.) Petitioner nonetheless submits that the jury should have been instructed that identifications

“may be mistaken.” (DE 1-3 at 7.) I cannot hold that failure to deliver every sentence of the

model instruction constitutes a violation of due process. Any arguable error, moreover, was

harmless, as the state court found. Eyewitness Beatriz Hernandez testified that she was familiar

with Petitioner’s appearance before the crime occurred; she had previously been with the

Petitioner at another club and they traveled to the after-hours club together. (DE 4-5 at 19.)

The trial court’s instructions to the jury when viewed as a whole did not “infect[ ] the

entire trial.” Consequently, the state court’s decision was not an unreasonable application of

clearly established federal law. Habeas relief is thus denied.

16

Instruction on Defendant's Statements

Petitioner next submits that the trial court limited its instruction on how to evaluate

defendant’s statements to Petitioner’s recorded interview with detectives, but should have also

applied it to his telephone conversation with his co-defendant that was overheard by law

enforcement personnel. (DE 1-3 at 7-8.) Petitioner also submits that the trial court erroneously

instructed the jury that “if they found portions of the statement knowingly false, they could infer

Petitioner’s consciousness of guilt.” (/d. at 9-11.)

This very issue was raised in Petitioner’s direct appeal before the Appellate Division,

which rejected it:

The trial court instructed the jury that it must determine whether

defendant made the statements attributed to him, and whether all or

part of those statements were credible. Defendant nevertheless

argues that the court erred by failing to specify that this instruction

applied not only to defendant's formal statement to the police, but

also to statements he made to Shabazz during a telephone

conversation that the police overheard. We disagree.

Defendant told Shabazz that he was going to get his gun and

bulletproof vest and “party with the cops.” However, during the

interrogation, the police asked defendant about his statements to

Shabazz. Defendant acknowledged making the statements,

although he claimed that it was a “bluff.” We are satisfied the

court's instruction covered defendant's videotaped statement as

well as the statements he made to Shabazz.

Furthermore, defendant's statements to Shabazz were not critical to

the State's case. Indeed, there was extensive evidence that

defendant committed the charged offenses. Therefore, the court's

failure to specifically state that its instruction applied to

defendant's statement to the police as well as his statements to

Shabazz was not error, let alone plain error.

Defendant additionally contends that the trial court erroneously

amended its instruction to indicate that if any portion of

defendant's statement was knowingly false, the jurors could draw

an inference of his consciousness of guilt. The record does not

support this contention. The court told the jury that, if it found that

17

defendant was not telling the truth, it could consider that evidence

along with all of the other evidence in the case.

Defendant also argues that the amended instruction “eviscerated”

the portion of the charge in which the jury was told it could

disregard defendant's statement if the jury found it was not worthy

of belief.

This argument is without sufficient merit to warrant discussion, R.

2:11—3(e)(2).

Baylor, 34 A.3d at 809-10.

During the trial court’s charge to the jury, it provided an instruction on how to evaluate a

defendant’s statement, a relevant portion of which is as follows:

There is for your consideration in this case a videotaped statement,

allegedly, made by the defendant David Baylor at Paterson Police

Headquarters on December 20", 2005. It is your function to

determine:

First, whether or not the statement was actually made by the

defendant. And - -

Second, if made, whether the statement or any portion of it is

credible.

(DE 4-23 at 38.)

At Petitioner’s trial, Detective Pablo Maute of the Paterson Police Department testified

about his first post-arrest meeting with Petitioner’s co-defendant Hamid Shabazz. (DE 4-12 at

82.) At that meeting, Shabazz complied with Maute’s request to contact Petitioner, who was then

still at large. Maute overheard Petitioner tell Shabazz by telephone “that the police were around

his house and that he was getting ready to put on his bullet proof vest, grab his gun, and party

with the cops.” (/d. at 92.) Maute further testified that during Petitioner’s recorded custodial

interrogation he asked Petitioner about this particular conversation with Shabazz. (/d. at 93.)

Petitioner conceded that it was his voice on the call but claimed that his comments were just a

18

“bluff.” (/d.) Following this testimony of Maute, the recording of Petitioner’s interview was

played for the jury. (/d. at 119.)

[ agree with the Appellate Division that the instruction would have been understood to

cover both defendant's videotaped statement and the statements he made to Shabazz, even if this

was not explicitly stated. I also agree, however, that any error was surely harmless, in that the

statements to Shabazz were not central to the government’s case, which contained extensive

evidence of Petitioner’s guilt.

Therefore, Petitioner has not demonstrated how the trial court’s omission of an explicit

instruction on how to consider his conversation with Shabazz merits federal habeas relief.

Waddington, 555 U.S. at 191.

Petitioner’s additional claim that the trial court instructed the jury to infer Petitioner’s

guilt if any portion of his statement was knowingly false is belied by the record. The relevant

portions of the trial court’s instruction is as follows: “If you find that the statement was made and

that parts or all of the statement is credible you may give weight you think appropriate to the

portion of the statement you find to be truthful and credible.” (DE 4-23 at 38.)

Consequently, the state court’s decision was not an unreasonable application of clearly

established federal law. Habeas relief on these grounds is therefore denied.

Evaluating Co-Defendant’s Guilty Plea

Petitioner next submits that the trial court misstated the instruction on how the jury could

not consider a co-defendant’s guilty plea against him. (DE 1-3 at 9.}

This very issue was raised in Petitioner’s direct appeal before the Appellate Division,

which rejected it:

The trial court instructed the jury that Beatriz had been charged

with certain offenses arising from this incident, including felony

19

murder, robbery while armed, weapons charges, and conspiracy to

commit robbery. The court told the jury that Beatriz pled guilty to

the conspiracy charge but her plea could only be used in

determining her credibility as a witness.

The court further instructed the jurors that evidence regarding

Beatriz's plea could not be used as evidence “that defendant is

guilty of the crimes that [Beatriz] is charged with.” Defendant did

not object to this portion of the charge.

He argues, however, for the first time on appeal, that the trial court

should have told the jury that the evidence of Beatriz's plea could

not be used as evidence that defendant was guilty of the offenses

that he was charged with. We are convinced that, although the trial

court mistakenly referred to Beatriz rather than defendant in its

instruction, the error was harmless.

The court's instruction informed the jury of the limited purpose to

which Beatriz's guilty plea could be used. The court did not,

however, instruct the jury that it could use Beatriz's plea as

evidence defendant was guilty of any of the crimes with which he

was charged. Moreover, as we stated previously, there was

extensive evidence indicating that defendant committed the

charged offenses. Thus, the error in the charge was not an error

“clearly capable of producing an unjust result.” RX. 2:10-2.

Baylor, 34 A.3d at 810.

At trial, Petitioner’s co-conspirator, Beatriz Hernandez testified for the state. Hernandez

provided that she, too, was charged with several offenses, including felony murder and

eventually pled guilty to conspiracy to commit robbery. (DE 4-5 at 47.) Petitioner argues that the

trial court misstated the instruction on how Hernandez’s guilty plea could be considered.

The trial court provided the following instruction as it relates to Hernandez’s guilty plea:

Beatrice ? Hernandez was indicted for felony murder, robbery

while armed, weapons, and conspiracy to rob. Some of the crimes

that the defendant David Baylor is on trial for. Beatrice Hernandez

has pled guilty to one of those charges, namely conspiracy to

commit robbery and has testified on behalf of the State.

3 Spelling of her name as it was transcribed in the trial court record.

20

Evidence of Beatrice Hernandez’s plea of guilty may be used only

in determining the credibility or believability of this witness’s

testimony.

As I said a jury has a right to consider whether a person who has

mitted - - who has admitted she failed to comply with society’s

rules would be more likely to ignore the oath requiring truthfulness

on the witness stand then a person who has never been convicted

or pleaded guilty to a crime.

You may consider such evidence only with all the other factors

that I mentioned previously in determining the credibility ofa

witness. However, as you may not use Beatrice Hernandez’s plea

of guilty as evidence that this defendant is guilty of the crimes that

Beatrice Hernandez is charged with.

(DE 4-23 at 39.)

The trial court misstated the instruction by stating, the jury may not use Hernandez’s

guilty plea as evidence that Petitioner is guilty of crimes Hernandez was charged with, rather

than stating crimes that defendant (i.e., Petitioner Baylor) was charged with. This was surely a

slip of the tongue, but not a fatal one. The trial judge did state that Hernandez’s guilt could be

considered only in determining her credibility, which made the point adequately, if not ideally.

The trial court’s instruction did not “so infect[] the entire trial that the resulting

conviction violated due process.” The state court’s decision was not an unreasonable application

of clearly established federal law. Moreover, in light of the evidence presented, any error was

surely harmless, Consequently, the state court’s decision was not an unreasonable application of

clearly established federal law. Habeas relief is thus denied.

Failure to Instruct the Jury on Inconsistent Statements

Petitioner’s final jury instruction-related claim is that the trial court failed to provide an

instruction on prior inconsistent statements. (DE 1-3 at 11-13.) He argues that state witnesses,

Beatriz Hernandez and Lorenzo Gonzalez, both gave testimony that was inconsistent with their

21

prior statements. (/d. at 12-13.) Furthermore, Petitioner appears to be arguing that Hernandez’s

trial testimony was not credible, because she was minimizing her own culpability in the

conspiracy and that Gonzalez was attempting to be financially compensated by the F.B.I.

This very issue was raised in Petitioner’s direct appeal before the Appellate Division,

which rejected it:

Defendant contends that the trial court erred by failing to instruct

the jury on prior inconsistent statements. He claims that Beatriz

and Gonzalez both gave pre-trial statements that were inconsistent

with their trial testimony.

We are convinced that the absence of the instruction was not plain

error. Here, the trial court told the jury that, in assessing the

credibility of all of the witnesses, it should consider whether any

witness “was shown to have made any inconsistent or

contradictory statement[.]”

That charge clearly covered any prior inconsistent statements by

Beatriz and Gonzalez. Furthermore, defendant has not established

that there were any significant differences between Beatriz's and

Gonzalez's trial testimony and their prior statements.

We are therefore satisfied that, while the prior inconsistent charge

should have been given, its absence was not an error “clearly

capable of producing an unjust result.” R. 2:10-2.

Baylor, 34 A.3d at 810-11.

As to Petitioner’s claims about Beatriz Hernandez’s testimony, he provides that she

previously told law enforcement that Petitioner threatened her with a gun to drive them away

from the crime scene. (DE 1-3 at 12.) At trial, Petitioner’s attorney cross-examined Ms.

Hernandez about her statements to police, and she testified that Petitioner never threatened her to

drive them anywhere. (DE 4-6 at 22-23.) Additionally, trial counsel cross-examined Lorenzo

Gonzalez about his prior statements to law enforcement, where he informed them that the

shooter was completely masked and that he did not hear anyone speaking during the commission

ig

of the crime. Trial counsel also asked Gonzalez about his recollection of whether he told the

police that the suspects made any statements or others spoke to them during the course of the

armed attack. (DE 4-9 at 26-28.) Gonzalez repeatedly replied that it had been over two years

since the incident and he could not recall all of the details nor what he told the police shortly

after it occurred. (DE 4-8 at 35.) Gonzalez never unequivocally testified that his prior statements

to the police were incorrect. Further, Gonzalez testified that he was focused on surviving the

attack and his ability to observe minutia during the actual attack was probably impaired. (/d. at

28.)

Notwithstanding Petitioner’s claims that both witnesses had ulterior motives for

providing their earlier statements to the police, the trial court provided a thorough jury

instruction on how to assess witness credibility. (DE 4-23 at 5-6.) In this context, the trial court’s

omission of a more specific instruction on prior inconsistent statements does not amount to a due

process violation. See Henderson v. Kibbe, 431 U.S. 145, 155 (1977) (“An omission, or an

incomplete instruction, is less likely to be prejudicial than a misstatement of the law.”) That is

especially so given that defense counsel had a full and fair opportunity to cross-examine the

witnesses.

Consequently, the state court’s decision was not an unreasonable application of clearly

established federal law. Habeas relief is thus denied.

C. Claim that Trial Court Erroneously Admitted Petitioner’s Oral Statement Contrary

to New Jersey Rules of Evidence

Petitioner next submits that the trial court erroneously admitted Petitioner’s statements in

the phone call with his co-conspirator, Hamid Shabazz, that was overheard by law enforcement.

Petitioner argues that this evidence, which included Petitioner referencing possessing a gun and a

23

bullet-proof vest, was very prejudicial evidence of other crimes and character evidence. (DE 1-3

at 14.) He also argues that the impact of the evidence could have been mitigated if the court gave

a limiting jury instruction swa sponte. (/d.) He does not submit what that instruction should have

entailed.

This very issue was raised in Petitioner’s direct appeal before the Appellate Division

which rejected it:

We are convinced that the admission of testimony regarding

defendant's statements to Shabazz was not erroneous. Defendant's

statements were admissible pursuant to N./.R.£. 803(c){25)

because they were statements against his interest. Moreover,

exclusion of the evidence under N./.R.E. 403 was not warranted

because any prejudice from the admission of the statements did not

“substantially outweigh” their probative value. N./.R.E. 403.

Baylor, 34 A.3d at 811.

As noted above, Detective Pablo Maute of the Paterson Police Department testified about

his first post-arrest meeting with Petitioner’s co-conspirator, Hamid Shabazz. (DE 4-12 at 82.) At

that meeting, Shabazz complied with Maute’s request to contact Petitioner, who was then still at

large. Maute overheard Petitioner tell Shabazz “that the police were around his house and that he

was getting ready to put on his bullet proof vest, grab his gun, and party with the cops.” (/d. at

92.)

Respondents argue and the Court agrees that this claim relies on state evidentiary law and

Petitioner has not raised a constitutional ground for relief. (DE 5 at 19-21.) Section 2254 permits

habeas relief for a “violation of the Constitution or laws or treaties of the United States.” 28

U.S.C. § 2254(a) (1997). A state court's interpretation of state evidentiary rules does not meet

this requirement, and this Court has no authority to interfere with the state court's ruling. Estelle

v. McGuire, 502 U.S. 62, 71-72 (1991) (federal court cannot grant habeas relief based on belief

24

that trial judge interpreted or applied state evidence rule incorrectly); Shilleutt v. Gagnon, 827

F.2d 1155, 1158 (7th Cir.1987) (federal court would not entertain argument that state court

misconstrued state rule of evidence),

That is not to say that an evidentiary error can never be considered, but it will not warrant

habeas relief unless its effect was so pervasive that the petitioner was denied the fundamental

right to a fair trial. See Estelie, 502 U.S. at 67-70. Here, there was a significant amount of

evidence inculpating Petitioner, not the least of which was eyewitness testimony. Therefore the

admission of Petitioner’s statements to Shabazz, even if erroneous, could not have rendered his

trial fundamentally unfair. Petitioner's attack on the state court's application of New Jersey state

law does not state a basis for federal habeas relief. Habeas relief is thus denied.

D. Claim that Court Erroneously Admitted Evidence of Petitioner’s Gang Affiliation

Petitioner next submits that the trial court erroneously admitted evidence of his gang

affiliation. (DE 1-3 at 14-16.) Petitioner submits that this evidence was prejudicial and was not

relevant to the crimes for which he was charged. (/d. at 16.)

This very issue was raised in Petitioner’s direct appeal before the Appellate Division,

which rejected it:

Defendant's contention that he was prejudiced by the references

during the trial to his membership in the Bloods gang also is

without merit. Defendant told the police he was a member of the

Bloods gang. Furthermore, the record reflects that, during the trial,

defense counsel repeatedly raised the issue of defendant's gang

membership. Defendant should not be heard to complain that he

was prejudiced by the references to his gang membership made

during the trial when his own attorney raised that issue and made

many of the references himself.

Baylor, 34 A.3d at 811.

25

At Petitioner’s trial, evidence of his gang affiliation was raised frequently throughout. As

the state court noted, Petitioner’s own trial counsel raised his client’s gang affiliation. Indeed,

Petitioner’s defense counsel relied on his client’s gang affiliation; one defense theory was that

state witness Lorenzo Gonzalez lied about Petitioner’s involvement because he had an axe to

grind against gang members. (DE 4-8 at 50.) Moreover, references to Petitioner’s gang affiliation

were relevant and could hardly be avoided; they were necessary to explain the type of clientele

that frequented the club and how the witness who operated the club was so familiar with many of

the club’s patrons, including Petitioner.

This alleged error, to the extent it was error at all and not invited by the defense, could

not have compromised Petitioner’s right to a fair trial. See Moore vy. Ilinois, 408 U.S. 786, 800

(1972) (“[W]e cannot say that the presentation of the [challenged evidence] was so irrelevant or

so inflammatory that [defendant] was denied a fair trial.”) Consequently, the state court’s

decision was not an unreasonable application of clearly established federal law, Habeas relief on

these grounds is denied.

E. Claim that Sentence Violated the Ex Post Facto Clause

Finally, Petitioner submits that his sentence violated the Ex Post Facto Clause. (DE 1-3 at

17.) He argues that “[t}here was no separate penalty phase proceeding conducted and the

amended statute was applied to the Petitioner’s case as though it were in effect at the time the

offenses were committed.” (/d.)

This very issue was raised in Petitioner’s direct appeal before the Appellate Division,

which rejected it:

The trial court imposed four consecutive life sentences, without the

possibility of parole. Defendant argues that these sentences violate

the Ex Post Facto Clauses of the Federal and State Constitutions.

We disagree.

26

As we stated previously, the murders were committed in 2005. At

that time, the criminal code allowed for the imposition of certain

sentences for those convicted of murder, including the death

sentence. N.J.S.A. 2C:11—3(b)(1) (2005) provided that:

Murder is a crime of the first degree but a person convicted of

murder shall be sentenced, except as provided in subsection c. of

this section by the court to a term of 30 years, during which the

person shall not be eligible for parole, or be sentenced to a specific

term of years which shall be between 30 years and life imprisonment

of which the person shall serve 30 years before being eligible for

parole.

NJS.A, 2C:11-3(c)(1) (2005) required the court to conduct a

separate sentencing proceeding to determine whether the death

sentence should be imposed. In addition, the statute provided that

the judge or jury must determine whether the State has proven that

any aggravating factor exists, and whether the factor or factors

outweighs any one or more mitigating factors beyond a reasonable

doubt. The statute stated:

(a) If the jury or the court finds that any aggravating factors

exist and that all of the aggravating factors outweigh beyond a

reasonable doubt all of the mitigating factors, the court shall

sentence the defendant to death,

(b) If the jury or the court finds that no aggravating factors

exist, or that all of the aggravating factors which exist do not

outweigh all of the mitigating factors, the court shall sentence the

defendant pursuant to subsection b.

(c) If the jury is unable to reach a unanimous verdict, the

court shall sentence the defendant pursuant to subsection b.

[N.F.S.A. 2C:11-3(c)(3) (2005).]

However, as a result of legislation enacted in 2000, persons

convicted of murder, who were eligible for the death penalty under

subsection (c) of the statute, but not sentenced to death, could be

sentenced to a term of life imprisonment without parole under

certain circumstances. L. 2000, c. 88, (codified at N./JS.A. 2C:11-

3(b)(4)). The statute stated:

[i]f the defendant was subject to sentencing pursuant to

subsection c. and the jury or court found the existence of one or more

aggravating factors, but that such factors did not outweigh the

mitigating factors found to exist by the jury or court or the jury was

unable to reach a unanimous verdict as to the weight of the factors,

27

the defendant shall be sentenced by the court to a term of life

imprisonment during which the defendant shall not be eligible for

parole. [V./.8.4. 2C:11—3(b)(4) (2005).]

In 2007, the death penalty was eliminated. Z. 2007, c. 204. N.J.S.A.

2C:11—3(b)(4) was amended to provide, among other things, that

persons convicted of murder under subsections (a)(1) or (2), who

committed the homicidal! act by his or her own conduct, could be

sentenced to life imprisonment without the possibility of parole if

the jury found that the State has proven, beyond a reasonable doubt,

one or more aggravating factors in N.J.S.A. 2C:11-3(b)(4).

This case came to trial in 2008. For sentencing purposes, the trial

court required the jury to determine as to each murder, whether the

State had proven, beyond a reasonable doubt, the existence of one

of the aggravating factors in N./.S.A, 2C:11-3(b)(4). No mitigating

factors were presented to the jury.

The jury found that the State had proven beyond a reasonable doubt

that defendant committed each murder while engaged in the

commission of, an attempt to commit, or flight after committing or

attempting to commit the murder. The jury also found that the State

had proven beyond a reasonable doubt that defendant committed

each murder while engaged in the commission, or an attempt to

commit, or flight after committing or attempting to commit the

robbery. These were aggravating factors under the law in effect in

2005. See N.J.S.A, 2C:11-3(c)(4)(g) (2005).

Defendant argues that he could not be sentenced to life

imprisonment without the possibility of parole because the jury

never found that the aggravating factors outweighed the mitigating

factors. He contends that imposition of life sentences without parole

based solely on the jury's findings of aggravating factors represents

the application of the amendments to the murder statute enacted in

2007. He claims this is a violation of his rights under the Federal

and State Ex Post Facto Clauses. We do not agree.

As we have explained, the law in effect in 2005 provided that a

person convicted of murder shall be sentenced to life without parole

if the jury finds at least one aggravating factor, regardless of whether

there were any mitigating factors or whether those mitigating factors

outweighed the aggravating factor or factors. See Cannel, New

Jersey Criminal Code Annotated, comment 4 on N.J.S.A. 2C:11-3

(2006). We are satisfied that the imposition of those sentences in

this case is not an ex post facto punishment.

28

Defendant also argues that he cannot be sentenced to life without

parole unless there is a new sentencing proceeding and the jury finds

that the aggravating factors outweigh any mitigating factors. In

support of this contention, defendant relies upon State v. Fortin

(Fortin IV ), 198 NJ. 619, 969 A.2d 1133 (2009).

In that case, the defendant committed a murder in 1994. /d. at 622,

969 A.2d 1133. The law in effect at the time permitted the imposition

of the death penalty if the State proved beyond a reasonable doubt

that one or more aggravating factors were present and they

outweighed the mitigating factors. /d. at 622~23, 969 4.2d 1133. If

the State failed to prove those two criteria, the defendant would be

subject to life with a thirty-year period of parole ineligibility. /d. at

623, 969 4.2d 1133.

The defendant was convicted and the death penalty was imposed.

Ibid. However, the Supreme Court reversed the conviction and

ordered a new trial. /bid. (citing State v. Fortin (Fortin HT), 178 NJ.

540, 581, 843 4.2d 974 (2004)). The Court noted that in 2000, the

Legislature had amended the murder statute to permit the imposition

of life sentences without parole in certain capital cases. /bid. (citing

Fortin II, supra, 178 N.J. at 604, 843 A.2d 974), The Court held that

application of this new law to the defendant would be

unconstitutional, unless he waived his rights under the Ex Post

Facto Clause. Ibid. (citing Fortin II, supra, 178 NJ. at 606, 843 A.2d

974).

The defendant was tried again and found guilty. Fortin IV, supra,

198 NJ, at 624, 969 A.2d 1133. However, before the penalty phase

in the case, the Legislature again amended the murder statute to

eliminate the death penalty and substitute a sentence of life without

parole. /bid. The Court noted that, under the amended statute, a life

sentence without parole must be imposed if the State establishes

beyond a reasonable doubt one or more of the statutory aggravating

factors. /bid.

The Court in Fortin IV held that sentencing the defendant to life

without parole would violate the Ex Post Facto Clause. /d. at 629,

969 A.2d 1133. The Court observed that, under the law in effect

when the defendant committed the murder, he could only be

sentenced to either death or thirty years to life with a thirty-year

period of parole ineligibility. /bid.

The Court stated that, because the trial had not advanced to the

penalty phase, the jury did not make findings that could have

resulted in the imposition of the death penalty. /bid. The Court said

29

that, “considering only the non-death sentences, life without parole

is a greater sentence than thirty years to life with a thirty-year parole

disqualifier.” /bid.

We are convinced that Fortin [V does not apply here. That case

concerned a comparison of the sentences that could be imposed

under the murder statute in effect prior to 2000 and those that could

be imposed thereafter. In Fortin IV, the Court expressly noted that

the statutory amendments to the murder statute in 2000 permitted

the imposition of life without parole under certain circumstances. /d.

at 623, 969 4.2d 1133 (citing Fortin If, supra, 178 at 581, 843

A.2d 974). The murder statute in effect when defendant committed

the murders required the imposition of life sentences without parole

when a jury finds at least one statutory aggravating factor.

In this case, the jury found as to each murder that the State had

proven beyond a reasonable doubt two of the statutory aggravating

factors. Because the law in effect when defendant committed the

murders allowed for the imposition of life sentences without parole

based on those findings, the sentences do not violate the Ex Post

Facto Clauses of the Federal and State Constitutions.

Defendant also relies upon State v. Cooper, 410 NJ. Super. 43, 979

A.2d 792 (App.Div.2009), certif denied, 201 N.J. 155, 988 A.2d

1177 (2010). In that case, the defendant was convicted of a murder

committed in 1993 and sentenced to death. /d. at 49, 979 4.2d 792.

The Supreme Court affirmed the murder conviction and capital

sentence. /bid. (citing State v. Cooper, 151 NJ. 326, 341-42, 700

A.2d 306 (1997), cert. denied, 528 U.S. 1084, 120 S.Ct. 809, 145

L.Ed2d 681 (2000)). The Court also upheld the death sentence

following proportionality review. Jd. at 49-50, 979 A.2d 792 (citing

State v. Cooper, 159 N.J. 55, 116, 731 4.2d 1000 (1999)).

Thereafter, defendant filed a petition for post-conviction relief

(PCR), which was denied. /d. at 50-51, 979 4.2d 792. Subsequently,

legislation was enacted abolishing the death penalty, and the

Governor commuted defendant's sentence to life imprisonment

without parole. Id. at 51, 979 A.2d 792. The Supreme Court

remanded the matter to this court for consideration of defendant's

appeal from the order denying his PCR petition. /bid.

We stated that the abolishment of the death penalty did not render

the appeal moot. /d, at 51, 979 A.2d 792. We noted that if the

defendant's conviction were to be set aside in the PCR proceedings,

he would be entitled to a new trial and, if found guilty of capital

murder, he would be in the same position as Fortin, subject to life

30

without parole only after another penalty phase hearing in which the

aggravating factor or factors were found to exist and to outweigh the

mitigating. And if [the] defendant were found to have ineffective

assistance of counsel at the penalty phase only, or the sentence were

otherwise set aside, he would be entitled to a new penalty phase

hearing because the result could still impact the sentence. Under

Fortin, life without parole, as opposed to a sentence with a thirty-

year period of parole ineligibility, can only follow a penalty

proceeding at which the aggravating factors were found to outweigh

the mitigating. [Fortin IV, supra,] 198 N.J. at 633 [969 4.2d 1133].

Otherwise, ex post facto principles would preclude imposition of a

sentence of life without parole. [/d. at 52, 979 A.2d 792.]

Defendant's reliance upon Cooper is misplaced. The defendant in

Cooper, like the defendant in Fortin, was convicted of committing

a murder before the statutory amendments enacted in 2000 which

allowed the imposition of life sentences without parole if the jury

were to find at least one aggravating factor. Defendant in this case

is not in the “same position” as the defendants in Cooper and Fortin.

Thus, Cooper does not require a new penalty-phase hearing in this

case.

Baylor, 34 A.3d at 811-814.

The Ex Post Facto Clause of the United States Constitution forbids the enactment of any

criminal law which imposes “a punishment for an act which was not punishable at the time it

was committed; or imposes additional punishment to that then prescribed.” Weaver v. Graham,

450 U.S. 24, 28 (1981) (internal quotation marks and citations omitted). A law that is both

retrospective and disadvantages the offender affected by it, violates this rule. /d. at 29.

Here, however, Petitioner committed these offenses in 2005 (not prior to 2000). He

received the benefit of being spared the death penalty, although he committed what were

previously considered capital offenses. Petitioner has not demonstrated how the laws that were in

effect in 2005 altered his eligibility for life sentences without parole. Therefore, the Ex Post

Facto Clause is not implicated as Petitioner did not receive a greater punishment than the law

allowed when he committed the crimes. Consequently, the state court’s decision, which

31

involved the ex post facto clause but hinged on its authoritative exposition of State law, was not

an unreasonable application of clearly established federal law. Habeas relief is thus denied.

V. CERTIFICATE OF APPEALABILITY

This Court must determine whether Petitioner is entitled to a certificate of appealability

in this matter. See Third Circuit Local Appellate Rule 22.1. The Court will issue a certificate of

appealability if the petitioner “has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). Based on the discussion in this Opinion, Petitioner has not made

a substantial showing of denial of a constitutional right. This Court will not issue a certificate of

appealability.

VI. CONCLUSION

For the reasons discussed above, Petitioner’s habeas petition is denied and a certificate of

appealability shall not issue. An appropriate order will be entered.

Dated: February 5, 2020 Ga [ oft,

KEVIN MCNULTY

United States District Judge

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