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

> District Court, D. New Jersey · February 5, 2020

URL: https://www.frixlaw.com/law-library/cases/10267983

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** February 5, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NOT FOR PUBLICATION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

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10267983. Public record. Not legal advice.