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

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

_________________________________________

EMILIO GIRON, :

:

Petitioner, : Civ. No.17-4048 (MCA)

:

v. :

:

ATTORNEY GENERAL STATE OF NEW : OPINION

JERSEY, et al., :

:

Respondents. :

_________________________________________ :

MADELINE COX ARLEO, U.S.D.J.

I. INTRODUCTION

Petitioner, Emilio Giron (“Petitioner” or “Giron”) is a state prisoner proceeding pro se

with a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. For the following

reasons, Petitioner’s habeas petition is denied and a certificate of appealability shall not issue.

II. FACTUAL AND PROCEDURAL BACKGROUND

The factual background is taken from the New Jersey Superior Court, Appellate

Division’s opinion from Petitioner’s direct appeal.

Together with the same three confederates, defendant participated

in two separate episodes over a three-day period involving two

different women whom they forced into their truck and proceeded

to rape at knife point. According to the State's proofs, on August

28, 1998, at 12:30 a.m., S.J. was at Elmwood Gardens on the

corner of Elmwood Place and West Second Street in Plainfield. At

1:00 a.m., she walked about a block away to a phone booth near a

Getty gas station to call her boyfriend for a ride. A white, two-

door truck pulled up and a man exited to ask her for directions. S.J.

was then grabbed from behind, and the assailant put a knife to her

neck.

S.J. was forced into the back seat area of the truck. There were

four Hispanic men in the truck, two in the front seat, and two in the

back. The man in the driver's seat, later identified as defendant,

was heavy set, with short, curly hair, and he told S.J. that they were

from Mexico. He drove the truck to a spot on Wiley Avenue,

parked the car, then drove a few more blocks and parked again.

Then the two men in the back seat began to undress S.J. One of

the men in the back seat had a box cutter, and the man in the front

passenger seat had a knife. While her clothes were being pulled

off, the driver told S.J. to perform oral sex on one man in the back

seat and allow the other to have sex with her. One of the men in

the back seat brandished the knife while penetrating her.

The two men then switched places at the driver's instructions, with

the men in the front seat. When the two men in the front got into

the back, the driver asked her to “suck his dick,” which she did

while the other man “put his dick in [her] butt.” Once each male

ejaculated, they switched so that “the fat one, Mario, would put his

dick in [her] butt[,]” while she performed fellatio on the skinnier

man. They both ejaculated and, although the driver never had a

knife, the skinnier male who had initially accosted her did so. S.J.

recalled the driver spoke English well, and the others spoke only

Spanish. Throughout the rapes, the other men spoke Spanish to the

driver, who then gave S.J. instructions in English. S.J. recalled one

man was called Edward, another Jose, and the driver, Mario.

After the rapes, the men gave S.J. her clothes, but refused to return

her pocketbook. When she was ordered out of the vehicle, the

skinnier male with the knife pushed her with his hands against her

back for her to run, before he returned to the truck.

S.J. then called the police and was taken to the hospital where she

spoke with Detective Jorge Jiminez and gave a description of the

truck and four individuals. She described Mario, the driver, as

heavyset with short, curly hair and the front seat passenger, who

had initially accosted her with the knife, as skinny and short. One

of the backseat passengers was fat with long, curly hair, while the

other male was short and skinny and had possessed a box cutter-

type knife.

S.J. was treated at the hospital. Semen was found on her shirt,

semen and blood was found on her shorts, and blood was found in

her rectal and vaginal swabs.

The second incident involved a woman named J.B. and occurred

two days later on August 30, 1998. J.B. worked as a prostitute and

was walking on Richmond and East Front Streets in Plainfield at

around 2:00 or 3:00 a.m. in search of drugs. A white Blazer truck

pulled alongside her and she recognized the driver, described as fat

with curly hair, as someone named Mario whom she went to

junior-high school with. The men in the front seat propositioned

her for prostitution. She agreed to have sex with both of them for

$20.00.

When she entered the truck, J.B. found two more men in the back

seat. As the truck drove off, she indicated she wanted more money

for the other two men, and also asked for a cigarette. The driver

then pulled into a nearby Shell gas station, exited the vehicle and

entered the convenience store. At this time, the short Spanish male

whom she was sitting next to pulled out a knife, put it against her

neck and told her he would kill her.

When they drove off, she begged them not to kill her but was told

to shut up, mainly by the driver. The truck eventually stopped

about four blocks away in a dark area, at which time the men in the

back removed her clothes while holding the knife to her neck. J.B.

was forced to perform oral sex on all of the men, and had vaginal

sex with two of them. It was “one right after the other.” The

driver was one of the two individuals who vaginally penetrated

her. J.B. specifically remembers seeing the driver's face very

clearly, noting, “I can always remember his face.” At some point,

before he had sex with J.B., the driver took the knife from one of

the other men and placed it on the dashboard, saying no one was

going to hurt her.

J.B. was forced out of the van still naked and the men threw her

clothes at her. They kept her bag, however, which contained a

phone, camera, and Sega Genesis. J.B. walked to the Shell gas

station and called the police. Detective David Carmen responded,

interviewed J.B., and took her to the hospital.

Later that day, Detective Jimenez learned of the second sexual

assault involving a similar-type vehicle and similar descriptions of

the perpetrators. He also learned one of the individuals involved in

the second assault had gone to the Shell gas station/mini mart and

purchased condoms before entering the vehicle and leaving.

Jimenez went to the gas station on August 31 and obtained the

surveillance video which depicted defendant buying condoms.

About a week later, J.B. accompanied Detectives Carmen and

Brown around town and pointed out a two-door white Chevy

Blazer as being similar to the vehicle she was raped in. Detective

Carmen stopped the vehicle and was given permission by its

owners to photograph it. Detective Carmen then scanned the

photograph and broadcast it to the other units in the Plainfield

Police Department. A few days later, Detective Carmen was

driving in Plainfield with another officer when J.B. approached the

patrol car. J.B. told the officers that she had seen a truck similar to

the one driven by the men who raped her and provided them with

the license plate of that vehicle.

On September 13 or 14, Detective Wilson, aware of the cases

Detectives Carmen and Jimenez were working on and knowing the

description of the suspect vehicle, observed the vehicle and

stopped it. It was occupied by a heavyset, Hispanic male who

provided Wilson with his driver's license in the name of Emilio

Giron. Wilson also recorded the license plate of the vehicle and

defendant's residence.

As a result, Detective Wilson went to defendant's residence, and

requested that he come to police headquarters to have his photo

taken. Defendant complied. His photograph was included in an

array that was shown to J.B. on September 17, at which time she

positively identified defendant as one of her assailants and the

driver of the vehicle. When a similar array was shown to S.J. that

same day, she also identified defendant as one of her assailants and

the driver of the vehicle. Defendant was arrested that evening

based on these identifications.

In his statement to the police the next morning following Miranda

warnings, defendant acknowledged being involved in both

incidents. He explained that he and his friends were returning

from a night at a dancing club when they told him to find a

prostitute. When they saw a woman on the phone at the Getty gas

station, defendant stopped the Chevrolet Blazer, which belonged to

his wife, and the woman agreed to go for a ride. While negotiating

over price, “Eric (Quintanilla) got crazy and he put a knife at her

throat.” He then told her she was going to have sex with all of

them while he held the knife at her throat. Defendant told Eric not

to cut her or do anything stupid. While he indicated “the other

guys had sex with her[,]” he stated he did not have sex with her but

rather “[s]he gave me a blow job.” Thereafter, they told her to get

out of the car, during which time Oseas (Pons) took her out of the

car and told her to run, after which they left.

The second incident also began as a search for a prostitute after a

night of clubbing. When the victim they eventually found

suggested their offer was “too cheap[,]” “Eric (Quintanilla) got

crazy again and put the knife in her throat.” Defendant told him

not to do anything stupid. She began screaming not to kill her, and

he tried to assure the woman they were not going to do anything to

her. Defendant then parked the car and, as Eric and Pons held

knives, “we started having sex with her.” They told her to get out

of the car, keeping her bag which contained a Game Boy and

“some more stuff.” The other three men involved were Eric

Quintanilla, Oseas (Pons) and a Honduran.

State v. Giron, No. A-6009-08T1, 2011 WL 6183472, at *1–4 (N.J. Super. Ct. App. Div. Dec.

14, 2011).

Tried in absentia by a jury, defendant EmilioR. Gironwas found

guilty of two counts of aggravated sexual assault, N.J.S.A.2C:14–

2(a)(5), (Counts four and ten); two additional counts of aggravated

sexual assault, N.J.S.A.2C:14–2(a)(4), (Counts five and eleven);

two counts of sexual assault, N.J.S.A.2C:14–2(c)(1), (Counts six

and twelve); two counts of kidnapping, N.J.S.A.2C:13–1(b),

(Counts seven and thirteen); two counts of possession of a weapon

for an unlawful purpose, N.J.S.A.2C:39–4(d), (Counts eight and

fourteen); two counts of weapon possession under manifestly

inappropriate circumstances, N.J.S.A.2C:39–5(d), (Counts nine

and fifteen); and two counts of robbery, N.J.S.A.2C:15–1, (Counts

sixteen and seventeen). At sentencing nine years later on March

24, 2009, the court imposed consecutive fifteen terms subject to

eighty-five percent parole ineligibility on each of the kidnapping

charges (Counts seven and thirteen). The court then merged count

six with count four; counts eight and nine with count five; count

twelve with count ten; counts fourteen and fifteen with count

thirteen; and count seventeen with count sixteen; and imposed

concurrent thirteen-year terms on counts four, five, ten, eleven and

sixteen, subject to the eighty-five percent parole bar, for an

aggregate sentence of thirty years subject to the eighty-five percent

parole disqualifier.

Giron, 2011 WL 6183472, at *1.

The Appellate Division affirmed on direct appeal except for a limited remand so that the

trial court could correct the judgment of conviction to reflect a fifteen-year sentence on the

kidnapping conviction in court thirteen. See id. The New Jersey Supreme Court denied

Petitioner’s petition for certification on direct appeal. See State v. Giron, 43 A.3d 1168 (2012).

Petitioner then filed a post-conviction relief (“PCR”) petition in the New Jersey Superior

Court. Among the issues raised in that petition were the following ineffective assistance of

counsel claims:

1. Failure to investigate whether the Getty gas station had surveillance video capturing the

encounter between Petitioner and the victim to prove she got into the car willingly and

never at knife point(“Claim I”) (seeECF 7-7 at 7; ECF 7-10 at 3)

2. Failure to file a severance motion by May 1, 2000(“Claim II”) (see ECF 7-7 at 7; ECF 7-

10 at 6)

3. Failure to present the affidavit of Eric Quintanilla where he admitted Petitioner never

possessed a knife in the assaults (“Claim III”) (see id. at 8)

4. Failure to present to the jury that Petitioner willingly went to the police station and had

his picture taken and not asking the judge for a jury instruction on how the prosecution

got a picture of Petitioner (“Claim IV”) (see id. at 9)

Additionally, Petitioner sought a new trial based on newly discovered evidence from his co-

defendant Pons. Pons submitted an affidavit where he said that at no point in either incident did

he see Petitioner commit any of the crimes.

The New Jersey Superior Court denied the PCR from the bench on January 2, 2014. (See

ECF 24). Petitioner appealed. However, Petitioner admits he did not raise the four numbered

claims outlined above in his appeal. (See ECF 10). Instead, he only raised the claim related to

the Pons affidavit. The Appellate Divisionaffirmed the denial of this claim. See State v. Giron,

A-3264-13T3, 2015 WL 10436863 (N.J. Sup. Ct. App. Div. Mar. 10, 2016). The New Jersey

Supreme Court then denied Petitioner’s petition for certification. See State v. Giron, 141 A.3d

298 (2016).

In June, 2017, this Court received Petitioner’s pro se petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254. (See ECF 1). Petitioner raises the four numbered ineffective

assistance of counsel claims (“Claims I-IV”) that he raised in his PCR petition. Respondents

filed a response in opposition to the habeas petition. (See ECF 7). Respondents argue that

Petitioner’s claims are unexhausted and/or that they can be denied on the merits. In reply,

Petitioner concedes that his four claims are unexhausted, but he asserts that this lack of

exhaustion should be excused. (See ECF 10).

III. LEGAL STANDARD

An application for writ of habeas corpus by a person in custody under judgment of a state

court can only be granted for violations of the Constitution or laws or treaties of the United

States. See Engle v. Isaac, 456 U.S. 107, 119 (1982); see also Mason v. Myers 208 F.3d 414,

415 n.1 (3d Cir. 2000) (citing 28 U.S.C. § 2254). Petitioner filed this petition for writ of habeas

corpus after April 24, 1996, thus, the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Pub. L. 104-132, 110 Stat. 1214 (Apr. 24, 1996), applies. See Lindh v. Murphy,

521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any

claim decided on the merits in state court proceedings unless the state court's adjudication of the

claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of,

clearly established federal law, as determined by the Supreme Court of the United States; or (2)

resulted in a decision that was based on an unreasonable determination of the facts in light of the

evidence presented in state court. See 28 U.S.C. § 2254(d).

Astate prisoner applying for a writ of habeas corpus under § 2254 in federal court must

first “exhaust the remedies available in the courtsof the State,” unless “(i) there is an absence of

available State corrective process; or (ii) circumstances exist that render such process ineffective

to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1). A petitioner must exhaust state

remedies by fairly presenting his federal constitutional claims to each level of the state courts

empowered to hear those claims, either on direct appeal or in collateral post-conviction relief

proceedings. See, e.g.,O'Sullivan v. Boerckel, 526 U.S. 838, 847 (1999) (announcing the rule

“requiring state prisoners to file petitions for discretionary review when that review is part of the

ordinary appellate review procedure in the State”); see also28 U.S.C. § 2254(c) (“An applicant

shall not be deemed to have exhausted the remedies available in the courts of the State, within

the meaning of this section, if he has the right under the law of the State to raise, by any available

procedure, the question presented.”).

A petitioner can ‘fairly present’ his claims through: (a) reliance on

pertinent federal cases; (b) reliance on state cases employing

constitutional analysis in like fact situations; (c) assertion of the

claim in terms so particular as to call to mind a specific right

protected by the Constitution; and (d) allegation of a pattern of

facts that is well within the mainstream of constitutional litigation.

Nara v. Frank, 488 F.3d 187, 198 (3d Cir. 2007) (citing McCandless v. Vaughn, 172 F.3d 255,

260 (3d Cir. 1999)) (footnote omitted). “Even if a state court refuses the claim on procedural

grounds, it is still exhausted as long as the state court had the opportunity to address it.” Id.

(citing Bond v. Fulcomer, 864 F.2d 306, 309 (3d Cir. 1989); Pursell v. Horn, 187 F. Supp. 2d

260, 2288 (W.D. Pa. 2002)).

Despite the exhaustion requirement, “a federal court [may] deny an unexhaustedclaimon

the merits ‘if it is perfectly clear that the applicant does not raise even a colorable federal

claim.’” Carpenter v. Vaughn,296 F.3d 138, 146 (3d Cir.2002) (quoting Lambert v. Blackwell,

134 F.3d 506, 514–15 (3d Cir.1997) (construing 28 U.S.C. § 2254(b)(2))); see 28 U.S.C. §

2254(b) (2) (“An application for a writ of habeas corpus may be denied on the merits,

notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the

State.”).

IV. DISCUSSION

Prior to analyzing the claims individually, this Court must address what standard of

review to applies. As noted above, Petitioner concedes in his reply brief that he failed to exhaust

his state court remedies on the four claims he brings in his habeas petition because he did not

raise them on appeal of his PCR petition. Petitioner states that he would be barred by the state

courts from trying to raise these claims in a second PCR petition by New Jersey Court Rule 3:22-

12(a)(2) which states as follows:

Second or Subsequent Petition for Post-Conviction Relief.

Notwithstanding any other provision in this rule, no second or

subsequent petition shall be filed more than one year after the

latest of:

(A) the date on which the constitutional right

asserted wasinitially recognized by the United

States Supreme Court or the Supreme Court of New

Jersey, if that right has been newly recognized by

either of those Courts and made retroactive by

either of those Courts to cases on collateral review;

or

(B) the date on which the factual predicate for the

relief sought was discovered, if that factual

predicate could not have been discovered earlier

through the exercise of reasonable diligence; or

(C) the date of the denial of the first or subsequent

application for post-conviction relief where

ineffective assistance of counsel that represented the

defendant on the first or subsequent application for

post-conviction relief is being alleged.

N.J. Ct. R. 3:22-12(a)(2). According to Petitioner though, he can overcome the purported

procedural default of his claims pursuant to Martinez v. Ryan, 566 U.S. 1 (2012).

This Court will decline to address whether Petitioner’s claims are procedurally defaulted

and Petitioner’s corollary argument that he can show cause and prejudice to overcome the

purported procedural default pursuant to Martinez. Indeed, the New Jersey state courts have not

addressed whether Petitioner’s four ineffective assistance of counsel claims he raises here are

procedurally defaulted. Courts have noted that “the better practice allows a New Jersey court-

not a federal court-the first opportunity to address the question of procedural default under New

Jersey law.” Toulson v. Beyer, 987 F.2d 984, 988 n.7 (3d Cir.1993)); see also Baker v. Ricci,

No. 09–3654, 2013 WL 4833415, at *10–11 (D.N.J. Sept. 9, 2013). This Court will follow that

practice here.

Having side-stepped the procedural default issue for the time being, this Court will

reviewPetitioner’s claims on the merits to determine whether Petitioner has stated a colorable

claim.

A. Claim I

In Claim I, Petitioner argues that counsel was ineffective because she failed to investigate

the Getty gas station’s surveillance video which would have purportedly showed that the victim

entered the car willingly and not at knife point. In Strickland v. Washington,466 U.S. 668

(1984), the Supreme Court articulated the two-prong test for demonstrating when counsel is

deemed ineffective. First, the petitioner must show that considering all the circumstances,

counsel’s performance fell below an objective standard of reasonableness. See id.at 688; see

also Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (noting that it is necessary to analyze an

ineffectiveness claim considering all circumstances) (citation omitted). A petitioner must

identify the acts or omissions that are alleged not to have been the result of reasonable

professional judgment. See Strickland, 466 U.S. at 690. Under this first prong of the Strickland

test, scrutiny of counsel’s conduct must be “highly deferential.” See id.at 689. Indeed,

“[c]ounsel is strongly presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Id.at 690. The reviewing court

must make every effort to “eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Id.at 689. If counsel makes “a thorough investigation of law and facts”

about his plausible options, the strategic choices he makes accordingly are “virtually

unchallengeable.” Gov’t of Virgin Islands v. Weatherwax, 77 F.3d 1425, 1432 (3d Cir. 2006)

(citing Strickland, 466 U.S. at 690-91). If, on the other hand, counsel pursues a certain strategy

after a less than complete investigation, his choices are considered reasonable “to the extent that

reasonable professional judgments support the limitations on investigation.” Rolan v. Vaughn,

445 F.3d 671, 682 (3d Cir. 2006) (citing Strickland, 466 U.S. at 690-91).

The second prong of the Stricklandtest requires the petitioner to affirmatively prove

prejudice. See 466 U.S at 693. Prejudice is found where “there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Id.at 694. A reasonable probability is “a probability sufficient to undermine confidence in the

outcome.” Id.; see alsoMcBridge v. Superintendent, SCI Houtzdale, 687 F.3d 92, 102 n.11 (3d

Cir. 2012). “This does not require that counsel’s actions more likely than not altered the

outcome, but the difference between Strickland’sprejudice standard and a more-probable-than-

not standard is slight and matters only in the rarest case. The likelihood of a different result must

be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 111-12 (2011)

(internal quotationmarks and citations omitted).

“With respect to the sequence of the two prongs, the StricklandCourt held that ‘a court

need not determine whether counsel’s performance was deficient before examining the prejudice

suffered by the defendant as a result of the alleged deficiencies…. If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice... that course should be

followed.’” Rainey v. Varner, 603 F.3d 189, 201 (3d Cir. 2010) (quoting Strickland, 466 U.S. at

697).

As noted above, Petitioner raised Claim I only before the New Jersey Superior Court

and not beyond. That court analyzed this claim as follows:

Defendant herein submits that the trial counsel --counsel erred in

not conducting her own independent investigation of whether

surveillance videos captured the encounter between the victim and

the defendant. Defendant claims it would show that the victim

voluntarily entered the vehicle. During the trial there was video

viewed bytrial counsel that showed defendant purchasing

condoms at the Shell station on the evening of August 30, 1998.

There's no evidence that such a video beyond one viewedthe

parties even existed, and as discussed, counsel's performance will

not be deemed ineffective for choicein strategy.

In this case there is an issue as to whether when the kidnapping

and rape began whether it was outside or inside of the vehicle.

Nevertheless, according to the overwhelming evidence, it did occur

inside the vehicle and in fact defendant confessed in a

sworn statement to police that once the victims were inside the

vehicle they were held at knife point unable to leave.

Regardless of how the victims initiallyentered the vehicle

therefore and what the video wouldshow, the record is quite clear,

through the testimonyof the victim and defendant's own sworn

statement, that they were unable to exit upon their own free will,

evenif perhaps they entered the car under their –their own free

will. Accordingly, the argument is completelywithout merit I

find.

(ECF 7-24 at 9).1

In a failure to investigate ineffective assistance of counsel claim:

[T]o show prejudice, a defendant basing an inadequate assistance

claim on his or her counsel’s failure to investigate must make a

comprehensive showing as to what the investigation would have

produced. The focus of the inquiry must be on what information

would have been obtained from such an investigation and whether

such information, assuming admissibility in court, would have

produce a different result.

United States v. Askew, 88 F.3d 1065, 1073 (D.C. Cir. 1996) (internal quotation marks and

citations omitted);see also United States v. Lathrop, 634 F.3d 931, 939 (7th Cir. 2011) (“When a

petitioner alleges that counsel’s failure to investigate resulted in ineffective assistance, the

petitioner has the burden of providing the court with specific information as to what the

investigation would have produced.”) (citation omitted); Untied States v. Garvin, 270 F. App’x

141, 144 (3d Cir. 2008) (failureto investigate claimant must show that but for the inadequate

investigation, there is a reasonable probabilityexculpatory evidence would have been found

which would undermine confidence in his conviction).

This Court has reviewed the relevant trial evidence. The relevant victim testified as

follows:

1. She was grabbed from behind and someone put a knife to her neck (see ECF 7-20 at 35)

2. She was then told to get in the truck (see id. at 36)

3. The perpetrators then drove away from the gas station with the victim(see id. at 39)

4. The driver told the victim to “suck my man’s dick” (see id. at 42)

1 This Court gives no deference to the Superior Court’s opinion in this or any other of

Petitioner’s claims asthey are all unexhausted. The portions of that opinion cited are provided

only as background to Petitioner’s claims.

5. Weapons were displayed during the encounter at this point, including a box cutter (see id.

at 44)

6. The victim then performed oral sex on one of her captures while another one inserted his

penis into her vagina (see id. at 47-48)

7. The same thing was repeated with the men in the front seat after the two men in the back

seat ejaculated with the driver making the victim perform oral sex on him (see id. at 51-

53)

8. The victim testified that the driver performed anal sex on her (see id. at 60)

9. Several days later, the victim identified Petitioner as the driver of the assault after seeing

his picture by police (see id. at 65-66)

Additionally, at trial, the police detective confirmed that the victim had positively identified

Petitioner as one of her attackers. (See id. at 160). The detective then testifiedthat Petitioner

admitted during interrogation that he was involved in the incidents that he was charged with.

(See id. at 172). Petitioner admittedto police that Eric Quintanilla put a knife to the victim’s

throat and told her she was going to have sex with them. (See id.) Petitioner then also admitted

that the victim gave himoral sex. (See id.) Finally, Petitioner admittedto police that they drove

around for several minutes before the assault took place. (See id. 175).

This strongtrial evidence against Petitioner leads this Court to conclude that Petitioner

has failed to show Strickland prejudice on Claim I. Indeed, the victim’s testimony and

Petitioner’s own statements to police indicate that weapons were used,and the assaults occurred

away from the Getty gas station. Thus, any purported Getty gas station surveillance tape would

have had little relevance regarding whether weapons were used and that the assault occurred.

Assuming arguendo thata surveillance video would have shown the victim voluntarily getting

into the vehicle, it does nothing to show that the outcome of the proceeding would have been

different given the other damaging testimony against Petitioner. Accordingly, for these reasons,

Claim I is denied.2

B. Claim II

In Claim II, Petitioner asserts trial counsel was ineffective when she failedto move for a

severance motion by May 1, 2000. The New Jersey Superior Court analyzed this claim as

follows:

With -- the second argument is that the complaint that was

considered by the trial court, aswell as the Appellate Division,

about the timely -- failure of counsel to timely file a severance

motion. Defendant asserts that he was denied effectiveassistance

of counsel on the basis that trial counsel failed to file a timely

severance motion.

Defendant initially moved for severance on June 6, 2000,

notwithstanding a trial memorandum datedFebruary 28, 2000,

which mandated a pretrial memoran-- pretrial motion deadline of

May 1, 2000.

The trial court, nevertheless, considered the motion and denied it

both on procedural and substantive grounds. The matter was also

then addressed by the Appellate Division in their review of the

matter, andthey also found that there was no meritorious motion

for severance that could have been --that -- that was considered by

the Court and the trial court was rightin denying the severance

motion.

Rule 3:7-6 allows for a joinder of multiple charges in a single

indictment when the charges are ofthe same or similar character or

based upon the sameact or transaction or on two or more acts or

transactions connected together constituting parts of a common

scheme or plan.

2 It is also worth noting that besides Petitioner’s self-serving statements, he has not provided this

Court with the actual surveillance video. This Court then cannot make any conclusion that had

counsel investigated the surveillance video issue, it would have depicted the initial encounter

between the victim, Petitioner and his codefendants at the Getty gas station as Petitioner

describes in his habeas petition.

Pursuant to Rule 3:15-2b courts may order separate trials ofcounts

of an indictment if it appears that a defendant is prejudiced by

permissibleor mandatory joinder of offenses or of defendants in

indictment, essentially if joinder will prevent - deprive him of a

fair trial, STATE V. MODELL, 260 N.J.Super. 227, cert. denied

133 N.J. 432.

It is the defendant's burden to show he was prejudiced by the

joinder. In this case a consideration -- I should say -- let me say a

consideration for whether multiple offenses should be tried

together is whether assuming the charges weretriedseparately

proof of one charge would be admissible in proof -- in the trial of

the other charge. New Jersey Rule of Evidence 404(b), often

referred to as prior bad acts evidence, STATE V. PITTS,116 N.J.

580.

In this case obviously first of all it's been considered by the trial

court, it's been considered bythe Appellate Division. The

Appellate Division foundthat the severance would have been

inappropriate as decided by the trial Court. Clearly even if the

case had been severed, the 404(b) would have brought the

evidence in, anyway, so it's impossible for the Court to even begin

to consider that trial counsel was ineff-- was ineffective in this -- in

this case

(ECF 7-24 at 9-10).

Petitioner failed to show he was prejudiced by counsel’s failure to seek severance on or

before May 1, 2000. As the Superior Court accurately noted, Petitioner’s request for severance

was denied both procedurally (see ECF 7-10 at 26-28) and substantively (see id. at 31-33) by the

trial court. Subsequently, on direct appeal, the Appellate Division even noted that the trial court

properly denied Petitioner’s severance motion on the merits. See Giron, 2011 WL 6183472, at

*5 (“No undue prejudice befell defendant from joinder of these offenses because had there been

separate trials, we are satisfied that evidence of each sexual assault incident would have been

admissible in both proceedings under the standard set forth in State v. Cofield,127N.J. 328

(1992).”).

Given that the state courts permitted Petitionerto bring a motion to severand it was

decided on the merits, notwithstanding its purported untimeliness,this Court fails to see how

Petitioner can prove that he was prejudiced by counsel’s failure to bring the motion on May 1,

2000, as opposed to June, 2000, right before trial. Accordingly, Claim II is denied.

C. Claim III

In Claim III, Petitioner argues that counsel was ineffective when she failed to present the

affidavit of one of Petitioner’s co-defendants, Eric Quintanilla, at trial. The New Jersey Superior

Court denied this claim as follows:

Defendant also submits that trial counsel erred by failing to present

the affidavit of co-defendant, Eric Quintanilla, stating defendant

did not possess a knife used in the two assaults. This argument is

also without merit I find.

Even though the affidavit was not presented,and I don't know how

an affidavit would have come innecessarily, it would have been

hearsay evidence, but even if the testimony was presented, there

was still ample testimony from the victims, as well as the

defendant himself, that the knife was brandished andthe victims

were held at knife point throughout bothassaults, including when

the victim were assaulted by defendant personally.

There was never any evidence that defendant was the knife wielder

of the incident and so while hemay not have personally held the

knife up to the victims' neck, he essentially affirmed the actions

taken by the co-defendants by engaging in the sexual assaults and

in fact directed the victim throughout, as he was the only one who

according to the victim spoke English clearly.

Only when the knife was pressing against the victim to a point

where it interfered with their ability to commit the sexual assaults

on her diddefendant remove the knife from his co-defendants.

The victims did not testify that they saw defendant with a knife in

his hand, except when J.D. indicated defendantmoved her from

the back of the vehicle to the front.

Before deliberating the jury was giveninstructions defendant can

only be found guilty if he shared the purpose of the weapon, so the

jury was adequately charged.

The question posed to the jury was whether defendant shared the

purpose of that weapon for whichit was present. They were also

given the definition of constructive possession, which also could

be used as abasis for guilt. And the cite for these portions ofthe

transcript, Transcript 5, 133 to 130-23, also 136-9to 137-1.

The fact that the knife was in the possessionof someone else did

not remove culpability from the defendant, as the jury correctly

found in this case,and the affidavit did more than state that the

defendant did not have physical possession of theweapon, which

has been already testified by the victims throughout the trial.

Accordingly, the trial counsel was not ineffective in failing to

attempt to admit this –this affidavit.

(ECF 7-24 at 10-11).

Under New Jersey law, hearsay is defined as “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” N.J. R. Evid. 801(c). “Because hearsay is considered “untrustworthy and

unreliable,” State v. White, 158 N.J. 230, 238, 729 A.2d 31 (1999), it is generally inadmissible at

trial. [N.J. R. Evid.] 802.” One Step Up, Ltd. v. Sam Logistic, Inc.,17 A.3d 826, 831 (N.J. Sup.

Ct. App. Div. 2011).

Quintanilla’s affidavit would have been inadmissible hearsay as it constituted an out-

court-statement by a witness being offered into evidence to help prove the truth of the matter

asserted; i.e., that Petitioner did not possess a knife during the assaults. Petitioner’s counsel

though cannot be deemed ineffective for failing to attempt to introduce inadmissible hearsay

evidence. See Mayfield v. United States, No. 11-2950, 2012 WL 664806, at *6 (D.N.J. Feb. 29,

2012) (counsel not ineffective for failing to introduce inadmissible hearsay statements).

Even if the affidavit was not inadmissible hearsay, Petitioner still fails to show that he

was prejudiced by counsel’s failure to seek its admission at trial. Indeed, given the evidence

produced at trial from the victimsas well as Petitioner’s own statements to police, it is unclear

how this evidence would have helped Petitioner’s case, given that there was no testimony that

Petitioner was one that wielded a knife. Accordingly, Petitioner is not entitled to relief on Claim

III.

D. Claim IV

In Claim IV, Petitioner asserts counsel was ineffective when she failed to present to the

jury that Petitioner had gone willingly to the police station to take a picture. The New Jersey

Superior Court analyzed this claim as follows:

Defendant also submits that he was denied effective assistance of

counsel by failing to introduce evidence that he willingly went to

the police stationto be photographed, which is true, but there's

absolutely no significance I find on the outcome of this case

whether the fact that before he was charged(indiscernible) decided

to cooperate with the policeand -- and go down and have his

photograph taken, whichwas later used in the array, which was

identified bythe victims, has absolutely just such minor relevance.

And when you stack it against the overwhelming evidence, the

testimony of the victims,the identity, the sworn confession in this

case,there's no way that -- that the failure to in—tointroduce that

evidence meets the STRICKLAND standard for ineffective

assistance of counsel.

(ECF 7-24 at 11-12).

This Court concurs with the reasoning of the New Jersey Superior Court. Given the

strong evidence produced at trial against Petitioner, this Court fails to see how counsel

presenting to the jury that Petitioner willingly let the police take his picture would have changed

the outcome of his trial to a reasonable probability. Additionally, it is worth noting that this

evidence was in fact produced at trial for the jury. Indeed, a detective testified that Petitioner

came to police headquarters and agreed to permit police to take a photograph that was to be used

to either qualify or disqualify him as a suspect in the case. (See ECF 7-21 at 132-34).

Petitioner also appears to argue within Claim IV that counsel was ineffective forfailing

to have the trial judge instruct the jury how the police obtained his picture. During the jury

charge conference, the trial judge inquired whether defense counsel wanted him to read to the

jury the “photo identity, police photo information” instruction which the judge explained would

tell the jury the different ways police can come into possession of a photo. (See ECF 7-21 at

176). Petitioner’s trial counsel told the judge she did not want that charge given. (See id.).

Petitioner is not entitled to relief on this ineffective assistance claim for a few reasons.

First, counsel’s decision to decline the instruction could be viewed as a reasonable trial strategy

bynot emphasizing the photo which both victims positively identified as one of theassailants.

Additionally, and perhaps more importantly, as previously noted, this is not a case where the jury

was unaware where the police obtained a copy of Petitioner’s photo used in the photo array.

Indeed, the jury was aware through the detective’s testimony that Petitioner agreed to come to

police headquarters and agreed to permit the police to take his picture. (See ECF 7-21 at 132-

34). Thus, this Court fails to see how Petitioner was prejudiced by counsel’s failure to request a

jury instruction that police could obtain a photograph in different ways given that the jury was

already aware how the police obtained Petitioner’s photograph through trial testimony.

Finally,Petitioner also argues that counsel failed to present any evidence of Petitioner’s

innocence. (See ECF 1-1 at 8). Besides the claims outlined and denied above, Petitioner

provides no further specific evidence that counsel should have presented in his defense at trial.

Petitioner’s vague and conclusory allegation within Claim IV that counsel failed to present any

evidence of Petitioner’s innocence “cannot meet his burden to show that counsel made errors so

serious that his representation fell below an objective standard of reasonableness[.]” Zettlemoyer

v. Fulcomer, 923 F.2d 284,298 (3d Cir. 1991). Accordingly, this argument lacks merit as well.

Therefore, for the foregoing reasons, Petitioner fails to show that he is entitled to federal

habeas relief on any of his arguments within Claim IV. Thus, Claim IV is denied.

V. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken from a final order in a proceeding under 28 U.S.C. §

2254. A certificate of appealability may issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies

this standard by demonstrating that jurists of reason could disagree with the district court's

resolution of his constitutional claims or that jurists could conclude the issues presented are

adequate to deserve encouragement to proceed further.” Miller-El vy. Cockrell, 537 U.S. 322, 327

(2003). Applying this standard, this Court finds that a certificate of appealability shall not issue

in this case.

VI. CONCLUSION

For the foregoing reasons, the habeas petition is denied and a certificate of appealability

shall not issue. An appropriate order shall be entered.

DATED: June 15, 2020 =

HON. MADELINE COX ARLEO

United States District Judge

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