CENTENO v. JOHNSON

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

JAMIE CENTENO, : Civ. Action No. 16-2779 (RMB)

:

Petitioner :

:

v. : OPINION

:

BRUCE DAVIS, ADMINISTRATOR :

and ATTORNEY GENERAL :

OF THE STATE OF NEW JERSEY, :

:

Respondents :

:

BUMB, United States District Judge

This matter comes before the Court upon Petitioner Jamie Centeno’s (“Petitioner”)

Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254, challenging his 2010 state

court conviction for murder, endangering an injured victim and weapons charges. (Am.

Pet., Dkt. No. 4.) Respondents filed an answer opposing habeas relief (Answer, Dkt. No.

13), and Petitioner filed a reply brief. (Reply Brief, Dkt. No. 21.) For the reasons set forth

below, the Court denies the petition for writ of habeas corpus.

I. PROCEDURAL HISTORY

On June 10, 2009, a grand jury in Camden County, New Jersey returned an

indictment charging Petitioner with first-degree murder of Jose Sosa, in violation of

N.J.S.A. 2C:11-3a(1)(2) (Count One); second-degree possession of a weapon for an

unlawful purpose, in violation of N.J.S.A. 2C:39-4a (Count Two); second-degree unlawful

possession of a weapon, in violation of N.J.S.A. 2C:39-5b (Count Three); third-degree

endangering an injured victim, in violation of N.J.S.A. 2C:12-1.2 (Count Four); and second-

degree certain persons not to have weapons, in violation of N.J.S.A. 2C:39-7b (Count Five).

(Answer, Ex. Ra1, Dkt. No. 13-4.)1 After trial, the jury found Petitioner guilty of all counts.

(Rta5 at 123-24, 139-40; Dkt. No. 13-57; Ra2, Dkt. No. 13-5; Ra3, Dkt No. 13-6.) On

March 23, 2010, Petitioner was sentenced on Counts 1 and 2 to life imprisonment, with 63

¾ years parole ineligibility; on Count 3, a five-year term of imprisonment concurrent to

Count 1 and consecutive to Count 4 and 5; on Count 4, a four-year term of imprisonment

consecutive to Counts 1 and 5; and on Count 5, a 7-year term of imprisonment consecutive

to Counts 1 and 4, with 5 years parole ineligibility. (Ra4, Dkt. No. 13-7 at 5-6.)

Petitioner timely filed a notice of appeal with the New Jersey Superior Court,

Appellate Division. (Ra5, Dkt. No. 13-8.) On May 2, 2012, the Appellate Division affirmed

Petitioner’s convictions and sentence. (Ra9, Dkt. No. 13-12.) Petitioner filed a notice of

petition for certification in the New Jersey Supreme Court, which was denied. (Ra10, Ra11,

Ra13, Ra14, Dkt. Nos. 13-13, 13-14, 13-16 and 13-17.) On February 13, 2013, Petitioner

filed his first petition for post-conviction relief (“PCR”). (Ra15, Dkt. No. 13-18.) The

Honorable Gwendolyn Blue, J.S.C. denied Petitioner’s PCR petition without an evidentiary

hearing. (Ra19, Dkt. No. 13-22). The Appellate Division granted Petitioner’s motion to file

his notice of appeal as within time (Ra22, Dkt. No. 13-25), and on October 1, 2015, the

Appellate Division affirmed the denial of Petitioner’s first PCR petition. (Ra25, Dkt. No.

13-28.) The New Jersey Supreme Court denied Petitioner’s petition for certification. (Ra29,

Dkt. No. 13-32.) On May 17, 2016, Petitioner filed his petition for writ of habeas corpus

1 The state court records are attached to Respondents’ answer and are cited herein by the

state court exhibit number followed by this Court’s docket entry number, with page citations

to the page numbers assigned by CM/ECF.

under 28 U.S.C. § 2254 in this Court, and sought a stay and abeyance because Grounds

Three and Four of the petition were unexhausted. (Pet., Dkt. No. 1.) On June 1, 2016, this

Court granted Petitioner’s request for a stay and held the petition in abeyance while he

exhausted Grounds Three and Four of his habeas petition in the state courts. (Order, Dkt.

No. 2.)

On April 27, 2017, Judge Blue denied Petitioner’s second PCR petition. (Ra34, Dkt.

No. 13-34.) On September 13, 2018, the Appellate Division affirmed the denial of

Petitioner’s second PCR petition, and subsequently denied Petitioner’s motion for

reconsideration. (Ra42, Ra44, Dkt. Nos. 13-45, 13-47.) On April 4, 2019, the New Jersey

Supreme Court denied Petitioner’s petition for certification. (Ra49, Dkt. No. 13-52.) On

April 30, 2019, Petitioner submitted his amended habeas petition, which Respondents now

oppose. (Am. Pet., Dkt. 4; Answer, Dkt. No. 13; Reply Brief, Dkt. No. 21.)

II. DISCUSSION

A. Standard of Review

Prior to bringing a federal habeas petition under 28 U.S.C. § 2254(b)(1)(A), a state

prisoner must exhaust his state remedies. Nevertheless, “[a]n 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.” § 2254(b)(2). If a state prisoner’s

constitutional claim has been barred in the state courts on procedural grounds, a procedural

default occurs and a habeas court cannot review the claim absent a showing of cause and

prejudice or actual innocence. Coleman v. Thompson, 501 U.S. 722, 729, 750 (1991).

If a constitutional claim has been exhausted,

[a]n application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State court

shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings unless the

adjudication of the claim--

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

When a state court summarily rejects all or some federal claims without

discussion, habeas courts must presume the claim(s) was adjudicated on the merits.

Bennett v. Superintendent Graterford SCI, 886 F.3d 268, 282 (3d Cir. 2018) (citing

Johnson v. Williams, 568 U.S. 289, 302 (2013)). The presumption is rebuttable. Bennett,

886 F.3d at 281-83. The Supreme Court provided the following guidance.

[H]ow [is] a federal habeas court to find the state court's

reasons when the relevant state-court decision on the merits,

say, a state supreme court decision, does not come

accompanied with those reasons. For instance, the decision

may consist of a one-word order, such as “affirmed” or

“denied.” What then is the federal habeas court to do? We hold

that the federal court should “look through” the unexplained

decision to the last related state-court decision that does provide

a relevant rationale. It should then presume that the

unexplained decision adopted the same reasoning. But the State

may rebut the presumption by showing that the unexplained

affirmance relied or most likely did rely on different grounds

than the lower state court's decision, such as alternative

grounds for affirmance that were briefed or argued to the state

supreme court or obvious in the record it reviewed.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). “When the evidence leads very clearly to

the conclusion that a federal claim was inadvertently overlooked in state court, § 2254(d)

entitles the prisoner to an unencumbered opportunity to make his case before a federal

judge.” Johnson, 568 U.S. at 303.

The Third Circuit directed habeas courts to follow a two-step analysis under §

2254(d)(1). See Rosen v. Superintendent Mahanoy SCI, 972 F.3d 245, 253 (3d Cir. 2020)

(citing Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888 (3d Cir. 1999) (en banc),

cert. denied 528 U.S. 824 (1999)). First, courts should “determine what the clearly

established Supreme Court decisional law was at the time Petitioner’s conviction became

final” and “identify whether the Supreme Court has articulated a rule specific enough to

trigger ‘contrary to’ review.” Id. at 253 (quoting Fischetti v. Johnson, 384 F.3d 140, 148

(3d Cir. 2004)). “The ‘clearly established Federal law’ provision requires Supreme Court

decisions to be viewed through a ‘sharply focused lens.’” Id. Clearly established law

“refers to 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). A decision is “contrary to” a Supreme Court holding within 28 U.S.C. §

2254(d)(1), only if the state court applies a rule that “contradicts the governing law set

forth in [the Supreme Court’s] cases” or if it “confronts a set of facts that are materially

indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a

[different result.]” Williams, 529 U.S. at 405-06.

Second, if Supreme Court precedent is not specific enough to trigger contrary

review, habeas courts should “evaluate whether the state court unreasonably applied the

relevant body of precedent.” Rosen, 972 F.3d at 253 (quoting Matteo, 171 F.3d at 888)).

Under § 2254(d)(1), “an unreasonable application of federal law is different from an

incorrect application of federal law.” Harrington v. Richter, 562 U.S. 86, 101 (2011)

(quoting Williams, 529 U.S. at 410). For relief under this provision, the state court’s

decision “evaluated objectively” must have “resulted in an outcome that cannot

reasonably be justified under existing Supreme Court precedent.” Rosen, 972 F.3d at 252

(quoting Matteo, 171 F.3d at 890)). A habeas court must frame the “relevant question as

whether a fairminded jurist could reach a different conclusion.” Shinn v. Kayer, 141 S. Ct.

517, 524 (2020) or, in other words, whether “every fairminded jurist would disagree” with

the state court. Mays v. Hines, 141 S. Ct. 1145, 1149 (2021).

A petitioner who claims that the state court’s adjudication of his claim was based

on an unreasonable factual determination under § 2254(d)(2), faces a similarly heavy

burden of proof because “a determination of a factual issue made by a State court shall be

presumed to be correct.” 28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockerell, 537 U.S.

322, 340 (2003). “The petitioner must show that the state court verdict was based on an

unreasonable determination of the evidence and that a reasonable factfinder could not have

reached the same conclusion.” Rosen, 972 F.3d at 252 (3d Cir. 2020) (citing Campbell v.

Vaughn, 209 F.3d 280, 291 (3d Cir. 2000)).

“Although state prisoners may sometimes submit new evidence in federal court,” the

habeas statute, “is designed to strongly discourage them from doing so.” Cullen v. Pinholster,

563 U.S. 170, 186 (2011). “Provisions like §§ 2254(d)(1) and (e)(2) ensure that ‘[f]ederal

courts sitting in habeas are not an alternative forum for trying facts and issues which a

prisoner made insufficient effort to pursue in state proceedings.’” Id. (quoting Williams v.

Taylor (“Michael Williams”), 529 U.S. at 437 (additional citations omitted)). Review under §

2254(d)(1) is limited to the record that was before the state court that adjudicated the claim

on the merits. Pinholster, 563 U.S. at 180-81.

The habeas statute also permits an evidentiary hearing under the following

circumstances,

(2) If the applicant has failed to develop the factual basis of a

claim in State court proceedings, the court shall not hold an

evidentiary hearing on the claim unless the applicant shows

that—

(A) the claim relies on—

(i) a new rule of constitutional law, made

retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable;

or

(ii) a factual predicate that could not have been

previously discovered through the exercise of due

diligence; and

(B) the facts underlying the claim would be sufficient to

establish by clear and convincing evidence that but for

constitutional error, no reasonable factfinder would have

found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e). The Supreme Court explained,

Section 2254(e)(2) continues to have force where § 2254(d)(1)

does not bar federal habeas relief. For example, not all federal

habeas claims by state prisoners fall within the scope of § 2254(d),

which applies only to claims “adjudicated on the merits in State

court proceedings.” At a minimum, therefore, § 2254(e)(2) still

restricts the discretion of federal habeas courts to consider new

evidence when deciding claims that were not adjudicated on the

merits in state court. See, e.g., Michael Williams, 529 U.S., at 427–

429, 120 S.Ct. 1479.

Pinholster, 563 U.S. at 185–86.

B. Appellate Division’s Findings of Fact on Direct Appeal

Habeas review is deferential to a state court’s determination of facts. 28 U.S.C. §

2254(e)(1) provides that

[i]n a proceeding instituted by an application for a writ of

habeas corpus by a person in custody pursuant to the judgment

of a State court, a determination of a factual issue made by a

State court shall be presumed to be correct. The applicant shall

have the burden of rebutting the presumption of correctness by

clear and convincing evidence.

On Petitioner’s direct appeal of his conviction, the Appellate Division made the following

findings of fact.

Defendant's killing of Jose Sosa occurred around midnight on

December 13, 2008. Sosa was then seated with a friend at the

bar, The Waterview Inn, also known as Monte's. Earlier that

evening, when defendant entered the bar, he asked the

bartender, Rose Marie Nelson, if he could charge his cell

phone. She directed hjm to another area of the bar, near the

pool table. Defendant was wearing dark clothes, including a

jacket or "hoodie."

During the course of the evening, defendant and an

acquaintance, Diana Ocasio, spoke briefly. Defendant

complimented Ocasio on her appearance, and with his cell

phone photographed the two of them standing together.

Approximately twenty or twenty-five minutes after defendant

and Nelson spoke regarding his cell phone, defendant walked

back into the bar area towards the victim, which drew Nelson's

attention, as she knew that Sosa and defendant "didn't get

along." Even though defendant's hood was pulled over his

head, she could see his face. Indeed, Nelson testified that she

had a frontal view of him until he turned to Sosa; she could

even see the scar on the left side of his face. NeIson watched as

defendant walked up to Sosa and drew a small gun. He pointed

the gun downward towards Sosa's left side " [a]round his

shoulder towards his chest area[,]" and shot him. Nelson heard

a loud popping noise as the gun was fired and saw defendant

walk out of the bar.

Nelson immediately called 911 and began to administer CPR to

Sosa. She and other patrons eventually placed the victim in the

back of a pickup truck because they feared the ambulance might

be delayed in arriving. Nelson gave a statement that night and

subsequently called the Camden County Prosecutor's Office

after discovering defendant's cell phone where he had left it,

still plugged into the wall near the pool table in the bar.

Miguel Mota testified that he was at Monte's that evening

playing pool when, some ten or fifteen minutes after arriving

between 11:00 and midnight, he heard a "loud pop." He

grabbed his wife and sister-in-law and pushed them into a

nearby bathroom. When he turned in the direction of the bar

towards the source of the noise, there were "a lot of people

running." From a few feet away, Mota saw an individual, hand

extended outward holding a gun, wearing a black hoodie,

however, he could not see a face. The victim grabbed his side

and attempted to walk towards the door but collapsed on the

ground. The gunman simply walked out of the bar.

Felicia Santiago, another bar patron who had known Sosa for

several years, recalled noticing when he and his companion

entered the premises and sat at the short end of the bar. When

Santiago went outside to smoke a cigarette in the parking lot,

she encountered defendant as he arrived and hugged him, as

she had known him for three or four years. She introduced him

to her friend. Once back inside, Santiago observed some “eye

contact” between defendant and Sosa and felt sudden tension in

the air. Minutes later, defendant left. After a short while, she

heard the door open [but did not see who entered the bar],

[heard] the sound of a gunshot, and [saw] people running.

Santiago did not see who fired the shot, but saw the victim

make an abrupt movement and heard him tell her to “stay

down.” Sosa headed towards the door but fell backwards onto

the ground.

The forensic evidence recovered from the scene corroborated

that only a single shot was fired; only one projectile and one

shell casing were recovered from the floor of the bar. The

medical examiner, Dr. Gerald Feigin, testified that death was

caused by a gunshot wound to the left side of the chest. The

bullet “passed through a large artery and vein in the right

lung causing massive bleeding[,]” exiting through the back.

Feigin also testified that the three-by-five-inch area of stippling

or gunpowder burns surrounding the entrance of the

projectile indicated it was an intermediate range gunshot

wound, in his opinion fired from a distance of six to eighteen

inches, although in “the literature,” the range of six inches to

two feet was described as consistent with similar markings. The

two-inch difference in height between the entrance wound and

exit wound meant that the weapon was fired at a downward

ang1e.

In September 2005, Investigator Martin Farrell of the Camden

County Prosecutor's Office had investigated Sosa's involvement

in the assault of Edwin Centeno, defendant's brother. While the

investigation was ongoing, Farrell sent several letters to

Centeno's home, eventually visiting the residence. Although

Centeno was not there, Farrell spoke with defendant and

explained the purpose of his visit. Because Edwin Centeno died

a short time later in a car accident, Farrell never did speak to

him. As a result of [Defendant’s brother’s] death and the State's

inability to locate the second victim of the assault, the

indictment charging the victim, Sosa, with, among other things,

attempted murder, was dismissed in January 2001.

(Ra9, Dkt. No. 13-12.)

C. Ground One (a)

Petitioner presents two claims of ineffective assistance of trial counsel in Ground

One of his amended habeas petition. For his first claim, Petitioner alleges his trial counsel

was ineffective by failing to investigate alibi witnesses whom Petitioner had identified. In

support of this claim, Petitioner states,

Petitioner supplied witnesses to trial counsel that would have

testified that he was not at the scene of the crime when it

occurred. Defense counsel presented no defense for petitioner at

trial. These witnesses possessed the potential of creating doubt

in the mind of the jurors. There was no downside for counsel to

present these witnesses and it cannot be reasoned that failure to

investigate or produce these witnesses was a reasonable trial

strategy. Counsel failed to put forth a viable defense to the

crime, by way of failure to produce available alibi witnesses.

There was nothing preventing counsel from properly

investigating the alibi witnesses supplied by petitioner, and the

effort to do so would have been minimal whereas the

consequence of not doing so was monumental. In [a]ddition,

Petitioner supplied the PCR Court with [a]ffidavits that support

his claim.

(Am. Pet., Dkt. No. 4 at 6.) Notably, when Petitioner returned to the state courts to

exhaust Grounds Three and Four of his original habeas petition, he raised additional new

grounds for relief, including “Point IIC” that PCR counsel was ineffective by “failing to

provide more than bare allegations to support Petitioner’s argument that trial counsel failed

to investigate alibi witnesses.” (Ra32, Dkt. No. 13-35.) This claim is not reviewable under

28 U.S.C. § 2254 because “there is no constitutional right to an attorney in state post-

conviction proceedings[;] [c]onsequently, a petitioner cannot claim constitutionally

ineffective assistance of counsel in such proceedings.” Coleman, 501 U.S. at 752 (internal

citation and citation omitted), holding modified by Martinez v. Ryan, 566 U.S. 1 (2012)).

Respondents oppose relief on this claim, asserting that the state courts’ decisions

were neither contrary to nor an unreasonable application of the Strickland standard for

Sixth Amendment ineffective assistance of counsel claims. (Answer, Dkt. No. 13 at 53.) In

reply, Petitioner argues that his trial counsel never offered a strategic reason for not

investigating potential alibi witnesses, although they could have been easily located because

there were many people at the bar on the night of the shooting. (Reply Brief, Dkt. No. 19 at

24.) The state court did not grant an evidentiary hearing to permit Petitioner to determine

his trial counsel’s reason for not investigating potential witnesses. (Id. at 20-25.) Petitioner

urges this Court to conclude that counsel’s failure to investigate was not a reasonable trial

strategy, but a complete abdication of the duty to investigate. (Id. at 25.)

To establish prejudice, Petitioner relies on evidence outside the state court record,

information that he obtained through his own later investigation.2 (Id. at 26.) Habeas review

2 Petitioner’s “Table of Appendix” identifies the following exhibits: (Pa-1,) Affidavit of

Rafael Medina, dated on 8/7/16; (Pa-2) Affidavit of Jaime Centeno, dated on 6/6/18; (Pa-

3) Affidavit of Francisco Centeno, dated on 4/12/17; (Pa-4) Affidavit of Anthony

under § 2254(d)(1) is limited to the record that was before the state court that adjudicated

the claim on the merits. Pinholster, 563 U.S. 170, 180-81 (2011); see Moore v. Sec'y

Pennsylvania Dep't of Corr., 457 F. App'x 170, 177 (3d Cir. 2012) (citing Pinholster, 131 S.

Ct. at 1399-1400.) Petitioner is not entitled to an evidentiary hearing on Ground One (a)

under § 2254(e)(2) because the PCR court and Appellate Division denied the claim on the

merits, and the claim does not arise out of a new rule of constitutional law that was

previously unavailable, nor is the claim based on a factual predicate that could not have

been previously discovered through the exercise of due diligence. The Court will review

Ground One (a) of the habeas petition without consideration of Point II(C) in Petitioner’s

second PCR petition, and without consideration of any references in Petitioner’s reply brief

to the second PCR proceedings.

1. Sixth Amendment Ineffective Assistance of Counsel Standard

Strickland v. Washington governs ineffective assistance of counsel claims on habeas

review. See Richter, 562 U.S. at 101 (“The pivotal question [on habeas review] is whether

the state court's application of the Strickland standard was unreasonable.”) There are two

elements to a Sixth Amendment ineffective assistance of counsel claim, deficient

performance by counsel and prejudice. Strickland v. Washington, 466 U.S. 668, 691-92

(1984). “[T]here is no reason for a court deciding an ineffective assistance claim to approach

the inquiry in the same order or even to address both components of the inquiry if the

defendant makes an insufficient showing on one.” Id. “If it is easier to dispose of an

Fontanez, dated on 7/21/19; (Pa-5) Affidavit of Jaime Centeno, dated on 6/16/19; (Pa-6)

Affidavit of Jaime Centeno, dated on 10/12/19; (Pa-7) Letter from Nino V. Tinari, dated on

1/31/12; (Pa-8) Letter from Petitioner, dated on 2/4/2012; and (Pa-9) Second Letter from

Nino V. Tinari, dated on 4/23/12. (Reply Brief, Dkt. No. 19 at 3.)

ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will

often be so, that course should be followed.” Premo v. Moore, 562 U.S. 115, 121 (2011).

For the deficient performance prong, “a person challenging a conviction must show

that counsel's representation fell below an objective standard of reasonableness.” Id.

(internal quotations omitted) (quoting Richter, 562 U.S. at 104). A petitioner must

overcome a “‘strong presumption’ that counsel's representation was within the ‘wide range’

of reasonable professional assistance.” Id. (quoting Richter, 562 U.S. at 104) (quoting

Strickland, 466 U.S. at 689).

The burden a petitioner must meet is “‘that counsel made errors so serious that

counsel was not functioning as the counsel guaranteed the defendant by the Sixth

Amendment.’” Premo, 562 U.S. at 122 (quoting Richter, 562 U.S. at 104) (quoting

Strickland, 466 U.S. at 687)). “Reliance on ‘the harsh light of hindsight’ … is precisely what

Strickland and AEDPA seek to prevent.” Richter, 562 U.S. at 107 (quoting Bell v. Cone,

535 U.S. 685, 702 (2002)). Habeas review of counsel’s performance is doubly deferential,

and the question is not whether counsel’s actions were reasonable but whether there is any

reasonable argument that counsel satisfied Strickland’s deferential standard. Id. at 105

(citations omitted).

a. The highest reasoned state court decision

“[W]hen the last state court to decide a prisoner’s federal claim explains its decision

on the merits in a reasoned opinion . . . a federal habeas court simply reviews the specific

reasons given by the state court and defers to those reasons if they are reasonable.” Wilson,

138 S. Ct. at 1192. The highest reasoned state court decision on Ground One(a) of the

amended habeas petition is the October 1, 2015, Appellate Division opinion, affirming the

denial of Petitioner’s first PCR petition. (Ra25, Dkt. No. 13-28.) The Appellate Division

held, in relevant part:

Defendant’s conviction arises from an incident on the evening

of December 13, 2008. At approximately 8 p.m., Jose Sosa and

a friend arrived at the Waterview Inn located in Camden. Sosa

and his friend were regular patrons at the bar. According to

R.N., the bartender, Sosa and his friend had a few drinks,

played pool, and left. They returned a few hours later at

approximately 11:00 p.m. Defendant was also at the bar that

night, and R.N. assisted defendant in finding a place at the bar

where defendant could charge his cellular phone.

Approximately twenty minutes later, defendant walked backed

into the bar area towards Sosa. R.N. witnessed defendant walk

towards Sosa and shoot him in the chest. Sosa was fatally

injured. Defendant and Sosa were known to have an

antagonistic relationship.

. . .

Following our review, in light of the record and applicable law,

we are not persuaded that the alleged deficiencies by trial

counsel violated the Strickland test. We begin by addressing

defendant’s assertion that he was provided ineffective assistance

of counsel.

First, defendant contends trial counsel was ineffective because

he failed to investigate alibi witnesses…. Defendant has never

offered any other affidavits or certifications from proposed alibi

or character witnesses. Ibid. Nor has he asserted any specific

facts that would have been revealed based on personal

knowledge of any proposed witness whether they be alibi,

character, or fact witnesses. Ibid. . . .

We note that “[a]dequate assistance of an attorney is measured

according to whether the counsel has professional skills

comparable to other practitioners in the field.” State v. Davis,

116 N.J. 341, 351 (1989). “The test is not whether defense

counsel could have done better, but whether he [or she] met the

constitutional threshold for effectiveness. Nash, supra, 212 N.J.

at 543.

. . .

Simply stated, the record lacks any facts suggesting trial

counsel’s performance was deficient or that he was not

functioning in a manner guaranteed by the Sixth Amendment.

See State v. Gaitan, 209 N.J. 339, 349-50 (2012) (citation and

internal quotation marks omitted), cert. denied, __ U.S. __, 133

S. Ct. 1454, 185 L. Ed. 2d. 361 (2013). Furthermore, defendant

has failed to offer any specific instances, acts, or omissions

constituting ineffective assistance of counsel. See State v. Jack,

144 N.J. 240, 249 (1996) (citation and internal quotation marks

omitted.) Therefore, he has not set forth a prima facie case of

ineffective assistance of counsel. Preciose, supra, 129 N.J. at

462.

. . .

Finally, we reject defendant's argument that the court erred in

denying his petition without an evidentiary hearing. “An

evidentiary hearing . . . is required only where the defendant

has shown a prima facie case and the facts on which he relies

are not already of record.” Pressler & Vernierno, Current N.J.

Court Rules, comment 2 on R. 3:22-10 (2015). The mere raising

of a claim for PCR does not entitle defendant to an evidentiary

hearing. Cummings, supra, 321 N.J. Super. at 170. Because

defendant failed to establish a prima facie case of ineffective

assistance of counsel, no evidentiary hearing was required.

(Ra25, Dkt. No. 13-28 at 3-10.)

b. Analysis

The Appellate Division applied the Strickland standard to Petitioner’s ineffective

assistance of counsel claim. Therefore, habeas review is limited to whether the Appellate

Division unreasonably applied the Strickland standard. This Court has reviewed the record

that was before the Appellate Division on appeal of the denial of the first PCR petition.3

Before trial, the trial court held a hearing on January 25, 2010. (Rta1, Dkt. No. 13-53.) The

presiding judge, Honorable Louise Di Renzo Donaldson, J.S.C., asked defense counsel if he

had a witness list, and counsel responded that there were no defense witnesses. (Id. at 4.)

Petitioner was present. (Id. at 2.) In his counseled first PCR brief, Petitioner asserted that he

3 See Rta 1, Ra15, Ra17, Ra18, Ra23, Ra24, Dkt. Nos. 13-53, 13-18, 13-20, 13-21, 13-26 and

13-27.

had suggested the names of several witnesses for his defense counsel to interview, and these

witnesses would have testified that he was not at the bar at the time of the shooting.

Importantly, Petitioner did not identify these witnesses by name nor did he elaborate on the

basis of his knowledge of their proposed testimony. (Ra17, Dkt. No. 13-20 at 7-8.)

Petitioner, in his pro se brief to the first PCR court, requested an evidentiary hearing where

he proposed to testify as to his trial counsel’s errors, but he likewise provided no factual

basis or identification of alibi witnesses in support of his allegations. (Id. at 16-17.) On

PCR appeal, Petitioner argued that he had established a prima facie case of ineffective

assistance before the PCR court, stating “counsel failed to investigate supplied alibi

witnesses because there were no witnesses presented on behalf of defendant at trial.” (Ra23,

Dkt. No. 13-26 at 29.) Petitioner elaborated, as follows.

Defendant contends that he supplied witnesses that would have

testified he was not at the scene of the crime when it occurred.

These witnesses possessed the potential of creating doubt in the

minds of the jurors. There was no downside to Defendant to

present these witnesses and it cannot be reasoned that failure to

investigate or produce these witnesses was a reasonable trial

strategy.

(Id. at 35.)

The Appellate Division reasonably determined that Petitioner was not entitled to an

evidentiary hearing to establish his ineffective assistance of counsel claim because he did not

offer any factual support for his alibi, such as the identity of the alibi witnesses and how they

could provide Petitioner with an alibi. This was fatal to his claim. See Lewis v. Horn, 581

F.3d 92, 107-8 (3d Cir. 2009) (habeas petitioner who did not present any affidavits from

potential alibi witnesses concerning their proposed testimony failed to establish ineffective

assistance of counsel claim.) Petitioner is not entitled to habeas relief on Ground One (a) of

the amended habeas petition.

D. Ground One (b)

In Ground One (b) of the amended habeas petition, Petitioner asserts that his defense

counsel was ineffective by failing to investigate and properly cross-examine the State’s key

witness, Rose Nelson, who testified that she saw Petitioner shoot the victim. (Am. Pet., Dkt.

No. 4 at 5.) Petitioner argues that he provided his trial counsel with information that Rose

Nelson’s testimony was provided under duress by the State, and counsel’s failure to

establish that Nelson’s testimony was coerced prejudiced the defense. (Id. at 6.) Petitioner

requests an evidentiary hearing. (Id. at 16.)

Respondents oppose relief on Petitioner’s claim, noting the Appellate Division found

Petitioner had failed to offer any specific facts showing that Nelson was pressured or

threatened into testifying. (Answer, Dkt. No. 13 at 53-54.) In his reply brief, Petitioner

claims he told his trial counsel that Nelson had contacted him and said she was being

threatened by the prosecution and forced to testify against him and lie on the stand. (Reply

Brief, Dkt. No. 19 at 34-35.) Petitioner concludes that he sought an evidentiary hearing in

the state courts; therefore, he is not barred from a federal evidentiary hearing under 28

U.S.C. § 2254(e)(2).

1. The highest reasoned state court decision

As an initial matter, “[a] federal evidentiary hearing is permissible for a particular

claim only if, among other requirements, the claim was not adjudicated on the merits by a

state court. If it was, a state prisoner is limited to the record that was before that state court

in seeking federal habeas relief.” Rapelje v. McClellan, 571 U.S. 1036 (2013) (internal

quotations and citations omitted). Ground One (b) was adjudicated on the merits and

review of this claim is limited to the state court record.

The highest reasoned state court decision addressing this claim is that of the

Appellate Division on appeal of Petitioner’s first PCR petition. The court decided the claim

on the merits as follows:

Defendant has also failed to offer any specific facts pertaining

to allegations that R.N. was “threatened” or “pressured” into

testifying against defendant. Moreover, a review of the trial

record reflects that trial counsel effectively cross-examined R.N.

Counsel elicited testimony from R.N. that she was distracted at

the time of the incident, that she may not have had a clear view

of the shooting, and that her description of the assailant was

flawed. Counsel also elicited testimony that R.N. had a close

relationship with Sosa, suggesting her testimony against

defendant may not be truthful. We note that “adequate

assistance of an attorney is measured according to whether the

counsel has professional skills comparable to other practitioners

in the field.” State v. Davis, 116 N.J. 341, 351 (1989). “The test

is not whether defense counsel could have done better, but

whether he [or she] met the constitutional threshold for

effectiveness.” Nash, supra, 212 N.J. at 543. Here, we find

counsel’s performance with respect to his cross-examination of

R.N. was within the scope of effective assistance.

(Ra25, Dkt. No. 13-28 at 8-9.)

2. Analysis

Upon review of Petitioner’s first PCR briefs and exhibits,4 the Appellate Division

reasonably found that Petitioner did not offer the PCR court any specific facts in support of

his allegation about Nelson testifying under duress. In his pro se PCR petition, which his

PCR counsel supplemented, Petitioner argued he advised his trial counsel that

he had information that suggested that Ms. Nelson felt

pressured by the State to offer testimony at trial. Not only did

4 See, Ra15, Ra17, Ra18, Ra23, Ra24, Dkt. Nos. 13-18, 13-20, 13-21, 13-26 and 13-27.

counsel not pursue this issue with Ms. Nelson in a pretrial

investigation, a review of the trial transcript reveals that he did

not even bother posing a single question of this issue. As the

State’s chief witness to the events, her credibility was

paramount to the State’s case. The defense has a clear line of

questioning that could have gone to the heart of Ms. Nelson’s

testimony, but counsel either inexplicably chose not to pursue

or had not even considered the information provided by Mr.

Centeno in the first place.

(Ra17, Dkt. No. 13-20 at 8.) Petitioner’s brief to the Appellate Division similarly lacked

details concerning how or why Nelson felt pressured or threatened by the State to testify.

(Ra23, Dkt. No. 13-26 at 33-37.) There is nothing in Nelson’s trial testimony, on direct or

cross-examination, that would lend support to Petitioner’s claim that she was under duress.

(Rta3, Dkt. No. 13-55 at 29-72.)

On Nelson’s cross-examination, defense counsel had suggested that nothing unusual

was going on just before the shooting that would have drawn her attention to Petitioner, but

Nelson corrected him, stating she was staring pretty hard at Petitioner and Sosa because she

knew they did not get along. (Id. at 62.) Defense counsel was also able to obtain Nelson’s

admission that she did not report the animosity between Petitioner and Sosa to investigators

on the night of the shooting, implying that she made this up after the fact. (Id.)

Furthermore, the trial record supports the Appellate Division’s conclusion that defense

counsel effectively cross-examined Ms. Nelson to attempt to discredit her testimony based

on her close relationship with the victim, her flawed description of the assailant and

distractions and obstructions that affected her ability to observe the shooting. (Rta3, Dkt.

No. 13-55 at 51-69, 72.) Thus, even assuming defense counsel was aware of Petitioner’s

conversation with Nelson, that she felt pressured or coerced to testify, counsel’s choice to

instead cross-examine Ms. Nelson on her ability to identify the shooter was a reasonable

trial strategy because there is no indication she would have recanted her testimony if asked

whether she felt coerced or under duress. “Even though trial counsel's strategy was

ultimately unsuccessful, we must ‘eliminate the distorting effects of hindsight,’ and ‘indulge

in a strong presumption that counsel's conduct falls within the wide range of reasonable

professional assistance.’” McBride v. Superintendent, SCI Houtzdale, 687 F.3d 92, 107 (3d

Cir. 2012) (quoting Strickland, 466 U.S. at 689.) The Court denies habeas relief on Ground

One (b) of the amended habeas petition.

E. Ground Two

For his second ground for relief in the amended habeas petition, Petitioner asserts

that his trial counsel was ineffective by failing to request full discovery and by failing to

provide the discovery file to him for review, which precluded him from assisting in his own

defense. (Am. Pet., Dkt. No. 4 at 7.) In support of this claim, Petitioner argues that he

should not be required to establish prejudice. (Id.) Respondents counter that Petitioner’s

unsupported claim failed to show how counsel was deficient and resulted in prejudice.

(Answer, Dkt. No. 13 at 55-56.) In his reply brief, Petitioner provides four reasons that his

trial counsel was ineffective:

(1) counsel was unable to provide Petitioner with a full

disclosure of his discovery; (2) failed to request a bill of

particular[s]; (3) Counsel failed to inform Petitioner of what

evidence the prosecution had against him by way of any

statements made against Petitioner, and (4) counsel was unable

to allow Petitioner to view all of his discovery in relation to the

star key witness for the prosecution.

(Reply Brief, Dkt. No. 19 at 36 (alteration added.)) Petitioner explains that during pretrial

hearings he asked his trial counsel to provide him with all discovery, and counsel responded

that he would request it from the prosecutor’s office. (Id.) Trial counsel told Petitioner that

he obtained all discovery from the prosecutor, but Petitioner states that he personally did

not receive statements made by the State’s witnesses. (Id.) After trial, Petitioner again

requested the entire discovery file for his appeal, and trial counsel said it would be provided

to Petitioner’s appellate counsel, but appellate counsel informed Petitioner that she would

not be obtaining the discovery from trial counsel’s offices. (Id.) In support of his habeas

petition, Petitioner submitted letters that he wrote to counsel. (Id., citing Ex. Pa-7 and Pa-8,

Dkt. Nos. 19 at 77-80.) These letters were not part of the record before the Appellate

Division on first PCR review. (Ra23, Ra24, Ra26, Dkt. Nos. 13-23, 13-24, 13-26.)

1. The highest reasoned state court decision

As with the previous claims, this claim was decided on the merits in the state courts,

and habeas review is limited to the state court record. The highest reasoned state court

determination on this issue was the Appellate Division’s opinion on first PCR review. The

court held “defendant’s assertion that trial counsel was ineffective for failing to . . . provide

discovery to defendant is unavailing.” (Ra25, Dkt. No. 13-28 at 9.) “Defendant has not set

forth with even the most basic detail what types of discovery were kept from him by

counsel. Instead, defendant offers only self-serving and blanket assertions to support his

argument.” (Id.)

2. Analysis

Petitioner, in his first PCR brief, alleged that his trial counsel failed to obtain

complete discovery, but he did not describe anything that was missing from discovery.

(Ra17, Dkt. No. 13-20 at 17.) In his brief to the Appellate Division, Petitioner argued that

he was not provided any discovery from his counsel and could not assist in his defense.

(Ra25, Dkt. No. 13-26 at 39-40.) He asserted that it was unfair to require him to show

prejudice based on discovery that was not provided to him, and suggested that prejudice

should be presumed. (Ra23, Dkt. No. 13-26 at 39-42.)

Prejudice is presumed in certain Sixth Amendment cases

where ‘[t]he accused is denied counsel at a critical stage of his

trial,’ United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct.

2039, 80 L.Ed.2d 657 (1984), or left “entirely without the

assistance of counsel on appeal,” Penson v. Ohio, 488 U.S. 75,

88, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). Similarly, prejudice

is presumed “if counsel entirely fails to subject the prosecution's

case to meaningful adversarial testing.” Cronic, 466 U.S. at

659, 104 S.Ct. 2039.

Garza v. Idaho, 139 S. Ct. 738, 744 (2019). The presumption of prejudice “‘is reserved for

cases in which counsel fails meaningfully to oppose the prosecution's case.’” United States

v. Gonzalez-Lopez, 548 U.S. 140, 147 (2006) (quoting Cronic, 466 U.S. at 659). In Bell v.

Cone, 535 U.S. 685 (2002), the Supreme Court stated that “[w]hen we spoke in Cronic of the

possibility of presuming prejudice based on an attorney's failure to test the prosecutor's case,

we indicated that the attorney's failure must be complete. We said ‘if counsel entirely fails to

subject the prosecution's case to meaningful adversarial testing.’” Steward v. Grace, 299 F.

App'x 203, 205–06 (3d Cir. 2008) (quoting Bell, 535 U.S. at 697) (quoting Cronic, 466 U.S.

at 659)).

Cronic does not govern Petitioner’s case because defense counsel did not entirely fail

to subject the prosecution’s case to meaningful adversarial testing. A review of the record

demonstrates that the Appellate Division reasonably determined defense counsel effectively

cross-examined Nelson. (Ra25, Dkt. No. 13-28 at 8.) The Appellate Division also

recognized Judge Blue’s “thorough and well-reasoned” opinion addressing each of

Petitioner’s arguments. (Id. at 3-4.) Based on review of the trial record, Judge Blue stated

“counsel vigorously represented defendant in this matter.” (Rta 7, Dkt. No. 13-59 at 16.)

Petitioner has not cited any clearly established federal precedent that holds prejudice

is presumed where defense counsel fails to provide the discovery file to the defendant to

allow him to assist in his defense. Petitioner was required to establish the prejudice prong of

Strickland to succeed on this ineffective assistance of counsel claim, and he did not attempt

to do so. See, Weaver v. Massachusetts, 137 S. Ct. 1899, 1913-14 (2017) (“[w]hen a

structural error is raised in the context of an ineffective-assistance claim . . . finality concerns

are far more pronounced . . . and . . . petitioner must show prejudice in order to obtain a

new trial); see, United States v. Senke, 986 F.3d 300, 314 (3d Cir. 2021), cert. denied, No.

21-5453, 2021 WL 4733511 (U.S. Oct. 12, 2021) (where claim concerning counsel’s

performance is not the type of structural error identified in Cronic, it is more appropriately

viewed as ineffectiveness, which requires a showing of prejudice.) Therefore, Ground Two

of the amended habeas petition is denied.

F. Ground Three

In his third ground for relief, Petitioner argues that his trial counsel repeatedly made

assurances to him that he would be allowed to testify in his own defense, but when the

Court posed the question of Petitioner’s decision whether or not to testify, counsel never

discussed the issue with him but instead told the trial court he would not testify. (Am. Pet.,

Dkt. No. 4 at 9.)5 In his amended habeas petition, Petitioner asserts that he was prejudiced

5 In his second PCR petition in state court, Petitioner raised the following claim under Point

II:

Defense Counsel Was Ineffective. [standard of review omitted]

Petitioner, therefore, contends that trial counsel was ineffective

and this PCR should be granted for the reasons set forth below.

In the alternative, there should be an evidentiary hearing in this

matter to further explore and consider the issues raised herein.

because he was unable to testify that he was friends with the victim’s sister, which would

have weakened the State’s theory of motive. (Am. Pet., Dkt. No. 4 at 9.)

Respondents maintain that Petitioner has failed to exhaust Ground Three because he

did not exhaust the claim in his first PCR proceeding, and when he brought the claim in his

second PCR proceeding, the state courts found the claim procedurally defaulted because it

was untimely. (Answer, Dkt. No. 13 at 42-43.) In reply, Petitioner addressed the merits of

his claim. He asserts that the state court misread the record when it concluded that he

waived the right to testify. (Reply Brief, Dkt. No. 19 at 40.) This Court notes that Petitioner

is referring to the Appellate Division’s Opinion on direct appeal, where Petitioner raised the

(Ra32, Dkt. No. 13-35 at 13-14.) In subsection A to Point II, Petitioner asserted

Ineffective Assistance of PCR Counsel for failure to raise

ineffective assistance of trial counsel for not explaining

Defendant’s right to testify at trial. (Id. at 14.)

Petitioner explained that although the trial court said it was his choice whether or not to

testify, trial counsel had discouraged him from doing so and then never discussed the issue

with Petitioner, but instead informed the Court that Petitioner had decided not to testify.

(Id. at 14-17.) Petitioner then stated:

A petitioner has fairly presented his claim if he presented the

same factual and legal basis for the claim to the state courts.

Nara v. Frank, 488 F.3d 187, 197-98 (3d Cir. 2007). This

Petitioner exhausted his ineffective assistance of trial court

claim in his second PCR petition by alleging the same factual

and legal basis presented in his habeas petition, although the

claim was alleged in the state courts in the context of an

ineffective assistance of PCR counsel. The same is true for

Ground Four, Petitioner raised the claim as ineffective

assistance of PCR counsel in his second PCR petition, but also

provided the legal and factual basis for his ineffective assistance

of trial counsel claim that PCR counsel failed to raise.

Therefore, Grounds Three and Four of the habeas petition are

exhausted.

(Ra32, Dkt. No. 13-35 at 14.)

claim that the trial court erred by not directly asking Petitioner whether he wanted to testify.

(Ra Dkt. No. 9, 13-12 at 16.) Petitioner contends that the trial court never asked Petitioner

if he waived the right to testify. Instead, defense counsel took it upon himself to waive

Petitioner’s right days after Petitioner’s colloquy with the trial court. (Reply Brief, Dkt. No.

19 at 39-40.) Additionally, Petitioner asserts that he submitted an affidavit to the second

PCR court explaining how he would have testified. (Id. at 41, citing Ex. Pa2, Dkt. No. 19 at

60-62.) In his affidavit to the second PCR court, Petitioner said he was playing video games

at a friend’s house at the time of the shooting. (Id.) He also gave a number of reasons to

conclude that he had no animosity toward the victim. (Id.)

1. The highest reasoned state court decision

Ground Three was raised for the first time in Petitioner’s second PCR petition. On

September 13, 2018, the Appellate Division affirmed the denial of petitioner’s second PCR

petition based on untimeliness under New Jersey Court Rule 3:22-12(a)(2), requiring a

second or subsequent PCR petition to be filed within a year of the denial of the first PCR

application. (Ra42, Dkt. No. 13-45.) The Appellate Division found petitioner’s second PCR

petition was filed considerably more than a year after his first PCR petition was denied, and

without reason for the delay. (Id. at 4-5.) The Appellate Division affirmed the PCR court’s

determination that the second PCR petition was time barred and also found Petitioner’s pro

se claims were meritless, including his ineffective assistance claim regarding his right to

testify. (Id. at 6.)

2. Analysis

a. Procedural default

If a state prisoner’s constitutional claim has been barred in the state courts on an

independent and adequate procedural ground, a procedural default occurs and a habeas

court cannot review the claim absent a showing of cause and prejudice or actual innocence.

Coleman, 501 U.S. at 729, 750. Procedural default applies where the state court relied on a

well-established and regularly followed procedural rule to bar the claim. Johnson v. Lee,

578 U.S. 605, 606 (2016).

There are two time limitations in New Jersey Rule 3:22-12, the five-year limit for a

first PCR petition and the one-year limit for a second or subsequent PCR petition. Although

there are exceptions to the five-year time limit for filing a first PCR petition, the Third

Circuit has held that the five-year time limit for first PCR petitions in New Jersey Rule 3:22-

12 is well-established and regularly followed for the purpose of procedural default of a

habeas claim. Johnson v. Pinchak, 392 F.3d 551, 561 (3d Cir. 2004). New Jersey’s one-year

time limit on second PCR petitions is even more strictly followed, as described by the New

Jersey Appellate Division:

[E]ffective September 1, 2009, the Supreme Court amended

Rule 3:22–12 by adding a new subparagraph, Rule 3:22–12(c)

(2009), now Rule 3:22–12(b), which provides: “These time

limitations shall not be relaxed, except as provided herein.”

Like the simultaneous amendment to Rule 1:3–4(c), the

amendment resulting in Rule 3:22–12(b) was intended “to

make clear that the general time limits to file a petition for post-

conviction relief as set forth in R. 3:22–12 cannot be enlarged or

relaxed except as specifically set forth in R. 3:22–12(a).” Report

of the Supreme Court Criminal Practice Committee 2007–2009

Term at 4–5 (Feb. 17, 2009).

Finally, effective February 1, 2010, the Supreme Court again

amended Rule 3:22–12 by adding a new subparagraph, Rule

3:22–12(a)(2), requiring that “no second or subsequent petition

shall be filed more than one year after” the date one of three

claims accrued, as defined in that subparagraph. The Court also

added Rule 3:22–4(b), requiring second or successive petitions

to be dismissed unless they alleged one of those three claims

and were “timely under R. 3:22–12(a)(2).”

By mandating in Rule 3:22–12(a)(2) that the one-year time limit

applied “[n]otwithstanding any other provision of this rule,” the

Supreme Court made clear that the late filing of a second or

subsequent PCR petition could not be excused in the same

manner as the late filing of a first PCR petition. Under the

amended Rule 3:22–12(a)(1)(A), the filing of a “First Petition

For Post–Conviction Relief” more than five years after the date

of the judgment of conviction can be excused if the defendant

shows both “that the delay beyond said time was due to

defendant's excusable neglect and that there is a reasonable

probability that if the defendant's factual assertions were found

to be true enforcement of the time bar would result in a

fundamental injustice.” That exception to the five-year time

limit has no application to second or subsequent petitions filed

within one year of the events specified in Rule 3:22–12(a)(2), as

that subparagraph is itself an exception to the five-year

requirement of Rule 3:22–12(a)(1)(A).

State v. Jackson, 185 A.3d 262, 267–68 (N.J. Super. Ct. App. Div. 2018) (footnotes

omitted).

The Appellate Division, on second PCR review, found that Petitioner’s first PCR

petition was decided on October 3, 2013, and his second PCR petition was filed on August

2016, almost three years after the first petition was denied, and was barred as untimely by

Rule 3:22-12. (Ra42, Dkt. No. 13-45 at 5.) In April 2017, when the second PCR petition

was dismissed as time-barred, the one-year time limit on second PCR petitions was well-

established and regularly followed. Therefore, this habeas claim and all of the remaining

grounds for relief that were raised in Petitioner’s second PCR petition are procedurally

defaulted.

b. Overcoming procedural default

In his reply brief in support of Ground Three of the amended habeas petition,

Petitioner offers two reasons to overcome procedural default. (Reply Brief, Dkt. No. 19 at

51-53.) Petitioner contends that he properly exhausted Ground Three, therefore, it is not

defaulted. In support of proper exhaustion of the claim, he asserts “that an application for

post-conviction relief can be ‘properly filed’ even if the state courts dismiss it as procedurally

barred.” (Id. at 53.)

Petitioner misconstrues procedural default. A procedurally defaulted claim is

technically exhausted but has been dismissed by the state courts based on an independent

and adequate state law ground. Coleman, 501 U.S. at 732. “[T]he question whether an

application [for post-conviction relief] has been “properly filed” [for purposes of the statute

of limitations in 28 U.S.C. § 2244(d)(2)] is quite separate from the question whether the

claims contained in the application are meritorious and free of procedural bar.” Artuz v.

Bennett, 531 U.S. 4, 9 (2000). Petitioner’s argument relies on the legal framework for

determining whether a PCR petition was properly-filed for purposes of tolling the habeas

statute of limitations, a framework that is inapplicable to overcoming procedural default.

Thus, the Court turns to Petitioner’s argument that his PCR counsel’s ineffective assistance

was the cause of his procedural default, and that procedural default should be excused

because his ineffective assistance of trial counsel claims have substantial merit.

Petitioner relies on Martinez v. Ryan, 566 U.S. 1 (2012). The Supreme Court in

Martinez held that,

when a State requires a prisoner to raise an ineffective-

assistance-of-trial-counsel claim in a collateral proceeding, a

prisoner may establish cause for a default of an ineffective-

assistance claim in two circumstances. The first is where the

state courts did not appoint counsel in the initial-review

collateral proceeding for a claim of ineffective assistance at trial.

The second is where appointed counsel in the initial-review

collateral proceeding, where the claim should have been raised,

was ineffective under the standards of Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To

overcome the default, a prisoner must also demonstrate that the

underlying ineffective-assistance-of-trial-counsel claim is a

substantial one, which is to say that the prisoner must

demonstrate that the claim has some merit. Cf. Miller–El v.

Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)

(describing standards for certificates of appealability to issue).

Martinez, 566 U.S. at 14 (emphasis added). The Court further noted “[i]t is likely that most

of the attorneys appointed by the courts are qualified to perform, and do perform, according

to prevailing professional norms; and, where that is so, the States may enforce a procedural

default in federal habeas proceedings.” Id. at 15.

The Third Circuit Court of Appeals set forth the following framework to determine if

a habeas petitioner satisfied the cause and prejudice standard under Martinez.

“[W]here state law requires a prisoner to raise claims of

ineffective assistance of trial counsel in a collateral proceeding,

rather than on direct review, a procedural default of those

claims will not bar their review by a federal habeas court if

three conditions are met: (a) the default was caused by

ineffective assistance of post-conviction counsel or the absence

of counsel (b) in the initial-review collateral proceeding (i.e., the

first collateral proceeding in which the claim could be heard)

and (c) the underlying claim of trial counsel ineffectiveness is

‘substantial[.]’” Cox v. Horn, 757 F.3d 113, 124 (3d Cir. 2014)

(quoting Martinez, 566 U.S. at 14, 132 S.Ct. 1309).

Preston v. Superintendent Graterford SCI, 902 F.3d 365, 376 (3d Cir. 2018). The cause and

prejudice standard described in Martinez applies under New Jersey state law because

ineffective assistance of counsel claims are typically required to be brought in post-

conviction review. See, State v. Nunez-Valdez, 200 N.J. 129, 138, 975 A.2d 418, 423–24

(2009), as corrected (July 30, 2009) (quoting State v. Preciose, 609 A.2d 1280 (N.J. 1992)

(“Under New Jersey law, ineffective-assistance-of-counsel claims “are particularly suited for

post-conviction review because they often cannot reasonably be raised in a prior

proceeding.”)) To establish the first Martinez requirement, a habeas petitioner “must

demonstrate that [PCR counsel’s alleged error] constituted deficient performance under the

first prong of the Strickland analysis—meaning that counsel's representation fell below an

objective standard of reasonableness.” Id. at 376 (quoting Strickland, 466 U.S. at 688.)

Courts should apply the Strickland standard “with scrupulous care, because “[a]n

ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture

and raise issues not presented at trial.” Richter, 562 U.S. at 105. Here, the trial transcript

shows that after the State rested, the court held a “charging conference” to discuss the jury

charges prior to Petitioner’s decision on whether or not to testify: “The Court: As we said

before, depending on whether or not Mr. Centeno testifies, we’ll amend the jury charge if

we have to, ok? I’m charging them as if Mr. Centeno is not going to testify.” (Rta4, Dkt.

No. 13-56 at 68.) At the end of the conference, the trial court discussed Petitioner’s right to

testify with him:

The Court: I have to explain to you your right to testify to you,

sir. You have the right to —now that the State has rested— you

have the right, you have to make a choice after consultation

with your attorney. You have three options.

First option is to exercise your absolute constitutional right to

remain silent and not take the stand. At that point, you can ask

the Court to refrain, that is, not to comment to the jury in any

way concerning your decision not to testify. So here’s that first

choice. You can decide I don’t want to testify. Don’t tell the

jury anything. Don’t say anything to the jury at the end about

my not testifying, okay? You understand the choice, sir?

The Defendant: Yes, ma’am.

The Court: The second option is to exercise your right to

remain silent and to have me instruct the jury that they can not

hold it against you in any way. If you choose this option, I am

going to tell the jury the following. As you know, Mr. Centeno

elected not to testify at trial…. So that’s your second option.

Don’t testify and you get me to read that to the jury at the end

of the trial.

Your third option is to give up the right to remain silent and

testify. You will then be subject to cross-examination. If you are

subject to cross-examination by the State, the State can and

most likely will bring out any prior convictions that you have. If

they do that, if you testify and they bring out your prior

convictions, I will explain to the jury that if they believe it is

appropriate to do so they may consider your prior convictions

as bearing on your credibility along with all the other factors on

credibility. I will also instruct the jury that they may not

consider your prior convictions as evidence as a predisposition

to commit crimes. So, did you understand the last choice?

The Defendant: Yes, ma’am.

(Id. at 74-76.) The Court then repeated the three options and further stated:

So that choice is yours. You need to talk to your attorney. You

have to make that decision. I already told your attorney that

because I sent the jury home you really don’t need to make that

decision this moment. You can think about it and you can let

me know on Tuesday morning before we start what you want

to do, okay?

The Defendant: Yes, ma’am.

The Court: Do you have any questions about what I just

explained to you, sir?

The Defendant: No, ma’am.

(Id. at 76.) When the trial resumed, the Court inquired “Mr. Tinari, has your client made a

decision as to whether or not he’s going to testify?” (Rta5, Dkt. No. 13-57 at 3.) Mr. Tinari

replied, “He has, your Honor, and it’s his decision not to testify.” (Id.) In Petitioner’s

presence, the defense rested and defense counsel then proceeded with his closing argument.

(Id. at 3-4.)

The trial court gave explicit instruction to Petitioner and defense counsel that it was

Petitioner’s choice to make whether to testify. “Where the trial court has no reason to

believe that the defendant's own attorney is frustrating his or her desire to testify, a trial

court has no affirmative duty to advise the defendant of the right to testify or to obtain an

on-the-record waiver of such right.” United States v. Pennycooke, 65 F.3d 9, 13 (3d Cir.

1995). There is nothing in the record indicating that the trial court had reason to believe

that defense counsel had frustrated Petitioner’s desire to testify.

Moreover, there is a presumption that where a defendant is represented by counsel,

counsel has presumably discussed the defendant's right to testify with him, and defendant

voluntarily and intelligently waived that right. Gilreath v. Bartkowski, No. CIV.A. 11-5228

MAS, 2014 WL 4897053, at *16 (D.N.J. Sept. 30, 2014) (citing Glenn v. Wynder, 2012 WL

4107827, * 40 (W.D.Pa. Sep. 19, 2012) (citing Pennycooke, 65 F.3d at 12–13.) The

petitioner must overcome the presumption. Petitioner relies solely on his own word,

unsupported by anything in the record, that counsel falsely represented to the trial court that

Petitioner made the choice not to testify. This claim is belied by the fact that when

Petitioner filed his pro se briefs in his first PCR proceeding, where he requested an

evidentiary hearing on a series of allegations of ineffective assistance of counsel, Petitioner

did not include an allegation that trial counsel failed to give him the choice to testify.

(Ra15, Dkt. No. 13-12 at 8; Ra17, Dkt. No. 13-20 at 17.)

Even if the Court accepts Petitioner’s allegation as true, Petitioner has not shown

Strickland prejudice. Petitioner submitted an affidavit with his reply brief, stating he would

have testified that he was at a friend’s house playing video games when the victim was shot

at Monte’s bar. (Reply Brief, Dkt. No. 19 at 60-62.) It would have been Petitioner’s

uncorroborated testimony, where he had an obvious motive to fabricate an alibi on murder

charges, against the corroborated testimony of Rose Nelson, whom the jury found

sufficiently credible to find Petitioner guilty beyond a reasonable doubt. It is significant

that, at the time of trial, Petitioner did not have an alibi witness to corroborate his proposed

testimony. Although Petitioner blames his trial counsel for failing to present alibi witnesses,

and blames his first PCR counsel for not obtaining affidavits from alibi witnesses, Petitioner

did not take the opportunity, in his pro se briefs to the PCR court, to identify the names of

his alibi witnesses and explain why he could not obtain their affidavits or appearance at

trial. As to Petitioner’s proposed testimony concerning his lack of motive for the murder,

his testimony would have opened him up to impeachment on cross examination concerning

the victim’s indictment for attempted murder of Petitioner’s brother, which could have

proven very detrimental to Petitioner. As discussed above, the PCR court’s decision not to

hold an evidentiary hearing on defense counsel’s failure to present alibi witnesses was not

objectively unreasonable, and Petitioner’s own alibi testimony would have been

uncorroborated and his motive testimony potentially harmful. Therefore, Petitioner has

failed to establish prejudice from PCR counsel’s failure to raise the ineffective assistance of

trial counsel claim, based on trial counsel’s alleged failure to permit Petitioner to make the

choice whether or not to testify, and fails to establish cause and prejudice to excuse

procedural default of Ground Three of the amended habeas petition. The Court will deny

habeas relief on this claim.

G. Grounds Four and Six

In his fourth and sixth grounds for relief, Petitioner contends his trial counsel was

ineffective by failing to request a curative instruction in response to the prosecutor’s

prejudicial comments in closing argument (Ground Four), and that the trial court erred by

failing to give a sufficient curative instruction. (Ground Six.) (Am. Pet., Dkt. No. 4 at 10,

12.) As discussed below, the prosecutor praised defense counsel and suggested that despite

his skills at cross-examination, he was unable to damage the testimony of the State’s

primary witness, Rose Nelson. Petitioner asserts that only a minimal curative instruction

was given. Defense counsel, therefore, was ineffective by failing to request a mistrial or a

more specific instruction, and the trial court erred by failing to give a more specific

instruction. Petitioner points to the jury’s request to hear Nelson’s testimony again as

evidence of prejudice.

Respondents interpreted the fourth ground for relief as a challenge to the Appellate

Division’s denial of Petitioner’s underlying claim of prosecutorial misconduct. (Answer,

Dkt. No. 13 at 60-64.) Petitioner raised the same claim in his second PCR petition under

the guise of ineffective assistance of trial counsel for failing to request a mistrial or stronger

curative instruction. (Am. Pet., Dkt. No. 4. at 10.)

It is helpful to review the trial court record underlying Grounds Four and Six. In

closing argument, the prosecutor first discussed Rose Nelson’s testimony, and how it was

corroborated by other witness testimony and physical evidence. (Rta5, Dkt. No. 13-57 at 19-

22.) Then, the prosecutor stated:

Rose’s testimony was compelling. On direct, she answered my

questions, but that’s not surprising because my questions are

the easy ones. She knows what’s coming there. Cross

examination of a witness is always much more telling than

direct examination of a witness. And you’ve had the

opportunity to see Mr. Tinari for several days now. He’s well-

spoken, intelligent. He probes the witnesses. He’s the highest

caliber trial attorney. But did he shake the testimony of Rose

Nelson? Even a little bit? No. In fact, if anything happened on

cross-examination Rose actually further explained herself and

her ability to see this defendant….

(Id. at 22.) After the prosecutor’s closing argument, the Court, outside the presence of the

jury, heard defense counsel’s objection.

Mr. Tinari: If I may, I want to voice an objection. Especially

like the compliment that counsel made concerning my abilities

and all. However, that’s not proper argument to the jury. I

would ask the court to give a cautionary instruction that

counsel has an absolute right to cross-examine. Has nothing to

do with how brilliant you are or how great you are. Because all

it does is enhances and solidifies the testimony of Rose Nelson,

which, of course, is vouching for her in an indirect way. That’s

why I’m objecting to that, your Honor. I like the compliment,

but certainly [it] is not proper.

The Court: Ms. Shah?

Ms. Shah: Judge, I disagree with counsel. The jury had the

opportunity to observe cross-examination, which was quite

vigorous, and, as the State was free to argue to the jury,

handled quite well by the witness. I think it was fair comment.

Mr. Tinari: There is a portion of the charge, I know that, your

Honor.

The Court: I’m looking for the portion of the charge.

Mr. Tinari: Function of the jury, your Honor, perhaps?

The Court: I’m going to put in here —tell you where I’m going

to put it. I’m going to put it into the beginning part of it that the

lawyers have the right, and, indeed, the duty to cross-examine

… all the witnesses.

Mr. Tinari: Thank you, your Honor.

Ms. Shah: I don’t object to that, Judge.

(Rta5, Dkt. No. 13-57 at 28.) Thus, after the State’s closing argument, the jury was charged,

in relevant part:

As jurors it is your duty to weigh the evidence calmly and

without passion, prejudice, sympathy. Any influence caused by

these emotions has the potential to deprive both the State and

the defendant what you promised them, a fair and impartial

trial by fair and impartial jurors.

Also, speculation, conjecture and other forms of guessing play

no role in the performance of your duty. The lawyers have a

right, and indeed, they have a duty to cross-examine witnesses.

(Id. at 30.) Further, the Court stated:

I’m going to talk a little bit now about your function. In my

preliminary charge when we started the case I explained to you

that you are the judges of the facts and as the judges of the fact

you are to determine the credibility of the various witnesses as

well as the weight to be attached to their testimony.

You and you alone are the sole and exclusive judges of the

evidence, of the credibility of the witnesses and the weight to be

attached to the testimony of each witness. Regardless of what

counsel said or I may have said recalling the evidence in this

case, it is your recollection of the evidence that should guide

you as judges of the facts. Arguments, statements, remarks,

openings and summations of counsel are not evidence and must

not be treated as evidence. Although the attorneys may point

out what they think is important in the case, you must rely

solely upon your understanding and recollection of the

evidence that was admitted during trial.

Whether or not the defendant has been proven guilty beyond a

reasonable doubt is for you to determine based on all the

evidence presented during the trial. Any comments by counsel

are not controlling.

(Rta5, Dkt. No. 13-57 at 31.)

1. Highest reasoned state court decision

On September 13, 2018, the Appellate Division affirmed the denial of Petitioner’s

second PCR petition, finding the claims were procedurally barred because the second PCR

petition was filed considerably more than one year after the deadline. (Ra42, Dkt. No. 13-45

at 4-5.) The court further found this claim was barred under Rule 3:22-56 because it could

have been adjudicated on direct appeal. (Id. at 5).

2. Procedural default

For the same reasons discussed in Ground Three above, Grounds Four and Six are

procedurally defaulted because they were raised in an untimely second PCR petition. Thus,

Petitioner must establish cause and prejudice or actual innocence to overcome the

procedural default. In his reply brief, relying on Martinez, Petitioner asserts that the

ineffectiveness of his PCR counsel in arguing the ineffective assistance of trial counsel claim

in Ground Four overcomes the procedural default. (Reply Brief, Dkt. No. 19 at 44.)

Petitioner raised the following claim in his pro se brief on direct appeal:

The failure of the trial court to include in the jury charge a

sufficient curative instruction regarding the prosecutor[’s]

comments during summation about the defense counsel being

well-spoken, intelligent, and a highest caliber trial attorney to

bolster its witness’s testimony was a due process violation of

14th Amendment of U.S. Constitution.

(Ra7, Dkt. No. 13-10 at 2.) The Appellate Division denied this claim, stating:

Defendant in his pro se brief objects to the prosecutor’s

comments in which she complimented defense counsel. He

suggests that the statement was prosecutorial misconduct

because it attempted to bolster the credibility of the State’s

witnesses by pointing out that despite its effectiveness, the

cross-examination did not weaken the testimony.

6 N.J. Ct. Rule 3:22-5 provides that

[a] prior adjudication upon the merits of any ground for relief is

conclusive whether made in the proceedings resulting in the

conviction or in any post-conviction proceeding brought

pursuant to this rule or prior to the adoption thereof, or in any

appeal taken from such proceedings.

A reversal based on prosecutorial misconduct requires the

prosecutor to have made statements which substantially

prejudice a defendant’s right to a fair trial. State v. Frost, 158

N.J. 75, 88 (1999). In fact, prosecutors are allowed substantial

leeway so “long as their comments are reasonably related to the

scope of the evidence presented.” Id. at 82.

During his summation, defense counsel attacked Nelson’s

credibility as being neither reasonable nor reliable. He referred

to his cross-examination of her and said that “[h]er mind was

made up” as to the identity of the shooter.

Within reason, prosecutors are allowed to comment upon the

credibility of a witness’s testimony. See State v. Smith, 167 N.J.

158, 180-81 (2001) (noting that aspersions on witness credibility

are problematic when not supported by the record.) The factors

we consider in determining whether relief is warranted are: (1)

whether defense counsel made timely and proper objections to

the improper remarks; (2) whether the remarks were withdrawn

promptly; and (3) whether the court ordered the remarks

stricken from the record and instructed the jury to disregard

them. Frost, supra, 158 N.J. at 83. Defense counsel made a

timely objection to the comments and requested the court

caution the jury, which request was denied.

But given that the prosecutor’s comments were merely a fair

response to defense counsel’s comments, were not derogatory

or demeaning to defense counsel, defendant, or any defense

theory, the argument has no merit. The State was also entitled

to point out that despite substantial pressure, Nelson’s

testimony did not waiver.

(Ra9, Dkt. No. 13-12 at 14-16.)

With this background in mind, PCR counsel was not constitutionally ineffective, as

required to show a Sixth Amendment violation under the Strickland standard, by failing to

rehash this prosecutorial misconduct claim under the guise of ineffective assistance of

counsel trial counsel and PCR counsel. The claim was implausible on PCR review because

the Appellate Division had determined on direct appeal that there was no prosecutorial

misconduct. And even if PCR counsel was deficient in not raising the claim, Petitioner was

not prejudiced because the trial court in fact provided a stronger curative instruction by

telling the jury that it was the sole judge of credibility and the weight to be accorded to

witness testimony. The Court also instructed that a lawyer’s comments are not evidence and

should not be treated as evidence. Therefore, Petitioner has not established cause and

prejudice to overcome procedural default of Ground Four. Ground Six of the amended

habeas petition was raised as a trial court error for failure to give a curative instruction, and

therefore is not subject to the cause and prejudice exception in Martinez. Moreover, the

claim is meritless because the prosecutor’s comments were permissible, and the trial court in

fact gave an appropriate instruction on the jury’s role. For these reasons, Grounds Four and

Six of the amended habeas petition are denied.

H. Ground Five

In Ground Five of the amended habeas petition, Petitioner alleged he was denied his

constitutional right to confront a witness when the trial court ruled he could not cross-

examine Jeffrey Perez on his requirement to register as a sex offender because the

registration requirement arose out of a juvenile adjudication. (Am. Pet., Dkt. No. 4 at 11-

12.) Petitioner exhausted this claim on direct appeal. (Id. at 12.)

Respondents submit that Ground Five is not cognizable on habeas review because it

is a challenge to admissibility of evidence. (Answer, Dkt. No. 13 at 57.) In reply, Petitioner

argues that he raised Ground Five as a Sixth Amendment Confrontation Clause claim.

(Reply Brief, Dkt. No. 19 at 46.) He maintains that the trial court unduly restricted his right

to confrontation by denying him the right to question a witness on a possible motive for

testifying favorably to the State. (Id.)

1. The highest reasoned state court decision

Petitioner raised this claim under the Sixth Amendment Confrontation Clause in his

counseled brief on direct appeal. (Ra6, Dkt. No. 13-9 at 27-30.) The Appellation Division,

on direct appeal, addressed only the legal basis for the evidentiary ruling.

Defendant claims the court erred by refusing to allow trial

counsel to cross-examine a State’s witness about his status as a

Megan’s Law Offender. The Megan’s law requirements were

imposed on the witness as a result of a prior juvenile

adjudication. Defendant theorizes that the jury was thereby

deprived of the opportunity to consider if the witness may have

had an interest in currying favor with the State and therefore

was biased.

Decisions regarding the introduction of evidence are reviewed

pursuant to an abuse of discretion standard. State v. Kemp, 195

N.J. 136, 149 (2008). This abuse of discretion standard also

applies to a judge’s decision with regard to cross-examination.

State v. Jenewicz, 193 N.J. 440, 467 (2008). We see no error in

the judge’s decision to exclude the line of questioning.

Nothing but pure speculation connects any alleged bias with a

possible prosecution for failure to register under Megan’s law.

The record does not contain any actual circumstance which

would have caused the witness to curry favor with the State in

order to avoid a future prosecution. That this witness is subject

to registration requirements is not relevant information which

would have aided the jurors in deciding credibility. Defendant’s

true aim was to give negative character evidence which would

have prejudiced their assessment of his testimony.

This conclusion is supported by the fact that the defendant did

cross-examine the witness extensively about his prior adult

conviction for drug possession and distribution, as well as his

state of intoxication that evening. Defense counsel fully

developed inconsistencies between the witness’s initial

statement and his testimony at trial, the number of people he

saw in the bar, and obstructions blocking his view of the

victim’s location from where he stood at the dance floor. This

point therefore also lacks merit.

(Ra9, Dkt. No. 13-12 at 11-12.) Although some of the factors considered in the evidentiary

ruling and the Confrontation Clause claims overlap, this Court will review Ground Five de

novo because the Appellate Division did not address the clearly established federal law

governing Petitioner’s Confrontation Clause claim. See Fahy v. Horn, 516 F.3d 169, 190

(3d Cir. 2008) (“Because the PCRA court never reached the merits of this claim, our review

is de novo.”)

2. Analysis

a. Elements of Confrontation Clause Claim

The Supreme Court has recognized “that the exposure of a witness' motivation in

testifying is a proper and important function of the constitutionally protected right of cross-

examination. Davis v. Alaska, 415 U.S. 308, 316–17 (1974) (citing Greene v. McElroy, 360

U.S. 474, 496 (1959)).

In a subsequent case discussing Davis, the Supreme Court explained that

Davis was charged with stealing a safe from a bar. The police

found the stolen safe abandoned near the home of Richard

Green, who testified at trial that he had seen Davis engaged in

suspicious activity near this site on the day of the crime.

Defense counsel was barred from eliciting on cross-examination

that Green was on juvenile probation for burglary both at the

time of his pretrial identification of Davis and at the time of

trial. The defense sought to suggest that Green may have

slanted his account in the State's favor either to shift suspicion

away from himself or to avoid revocation of probation for

failing to “cooperate.” [Davis,]’ 415 U.S., at 310–311, 94 S.Ct.,

at 1107. This Court reversed Davis' conviction, emphasizing

that Green's testimony was “crucial” and that there was a “real

possibility” that pursuit of the excluded line of impeachment

evidence would have done “[s]erious damage to the strength of

the State's case.” Id., at 319, 94 S.Ct., at 1112.

. . .

[i]t does not follow, of course, that the Confrontation Clause of

the Sixth Amendment prevents a trial judge from imposing any

limits on defense counsel's inquiry into the potential bias of a

prosecution witness. On the contrary, trial judges retain wide

latitude insofar as the Confrontation Clause is concerned to

impose reasonable limits on such cross-examination based on

concerns about, among other things, harassment, prejudice,

confusion of the issues, the witness' safety, or interrogation that

is repetitive or only marginally relevant. And as we observed

earlier this Term, “the Confrontation Clause guarantees an

opportunity for effective cross-examination, not cross-

examination that is effective in whatever way, and to whatever

extent, the defense might wish.” Delaware v. Fensterer, 474

U.S. 15, 20, 106 S.Ct. 292, 295, 88 L.Ed.2d 15 (1985) (per

curiam ) (emphasis in original).

Delaware v. Van Arsdall, 475 U.S. 673, 678–84 (1986). Further, the Court held that the

harmless-error doctrine applies to a Confrontation Clause violation. Id. at 684.

Following Davis and its progeny, the Third Circuit Court of Appeals, in United

States v. Chandler, developed the following two part-test for Confrontation Clause claims

based on limitations to cross-examination.

First, we determine whether the limitation “significantly

inhibited [the defendant's] effective exercise of her right to

inquire into [the] witness's ‘motivation in testifying.’” [United

States v. Chandler, 326 F.3d at 219] (quoting Van Arsdall, 475

U.S. at 678–79, 106 S.Ct. 1431). Then, if it did, we ask whether

the limitation fell within “those ‘reasonable limits’ which a trial

court, in due exercise of its discretion, has authority to

establish.” Id. Whether the trial court abused its discretion, we

explained, “depends on whether the jury had sufficient other

information before it, without the excluded evidence, to make a

discriminating appraisal of the possible biases and motivation

of the witness[ ],” id. (citation omitted), or, conversely, whether

without the limitation, “a reasonable jury could have ‘reached a

significantly different impression’ of [the witness's] credibility,”

id. at 222 (quoting Van Arsdall, 475 U.S. at 680, 106 S.Ct. 1431).

United States v. Noel, 905 F.3d 258, 268 (3d Cir. 2018). If a Confrontation Clause violation

is found, the harmless-error doctrine applies. Chandler, 326 F.3d at 224.

b. Perez’s testimony

The State’s witness at issue was Jeffrey Perez, who testified as follows. (Rta3, Dkt.

No. 13-55 at 111-125.) Perez was a long-time friend of the victim, Jose Sosa, and was with

him at Monte’s bar on the night Sosa was killed. Perez and Sosa were regulars at Monte’s

and knew the bartender, Rose Nelson. Perez and Sosa started the evening at Monte’s and

then left to attend Perez’s employer’s Christmas party, where they had some more drinks

until the party ended at 10:30 or 11:00 p.m. They returned to Monte’s 15 or 20 minutes

later, and there were more people present, around twenty. They sat at their usual spot at the

corner of the bar. Perez saw “Face,” Petitioner’s nickname, approach the bartender, Rose.

When Perez stood up to ask Rose for a drink, Petitioner acknowledged Perez and they said

“what’s up.” Perez had known Petitioner for about eight years, and he identified him in the

courtroom. Their relationship was just to acknowledge each other upon meeting. After

seeing Petitioner at Monte’s, Perez went outside to smoke, and he saw Petitioner walking

out of the bar as he walked back in. They said “be safe” to each other. Perez remembered

Petitioner was wearing a black hoodie.

Perez left Sosa at the bar to go talk to a girl and dance with her. When the song was

over, they started to walk back to the bar. They were talking when Perez heard a pop. When

Perez looked away to see what the sound was, the girl walked away. Perez walked toward

the front door and discovered Sosa kneeling on one knee and bleeding. Perez applied

pressure to the bleeding while Rose gave Sosa CPR. Perez was taken into police custody

because he “got physical” when they would not let him go in the ambulance with Sosa. He

was questioned at the police station and again at the prosecutor’s office.

c. Effectiveness of Petitioner’s cross-examination of Perez

Under Chandler, the first step is to determine whether the limitation on cross-

examination significantly inhibited Petitioner’s effective exercise of his right to inquire into

Perez’s motivation in testifying. Petitioner was precluded from inquiring into Perez’s

Megan’s Law registration status arising out of his juvenile adjudication. Petitioner,

however, effectively cross-examined Perez on the following: (1) he remained friendly with

the victim’s family; (2) he had been interviewed by police officers and then investigators for

the prosecution on the night of the shooting; (3) he was under the influence of alcohol on

the night of the shooting; (4) at the time of the shooting, his attention was on a girl he was

flirting with; (5) his view was blocked when he heard the shot; (6) he did not tell the

investigators, on the night of the shooting, that Petitioner was wearing a black hoodie; (7) he

saw Petitioner walk out of Monte’s while Sosa was still alive; (8) about one year before trial,

Perez learned that Petitioner had been accused of killing Sosa, but he did not tell

prosecutors he had seen Petitioner that night, and he never told anyone until he was

summoned to testify at trial; (9) Perez was familiar with the criminal justice system because

he had been convicted and sentenced for drug possession and delivery. (Rta3, Dkt. No. 13-

55 at 114-125.)

Petitioner was able to cross-examine Perez on his motive for testifying by pointing

out that Perez himself had been questioned on the night of the shooting, implying that he

may have been a suspect and had motive to deflect the attention to someone else, and that

Perez had a prior conviction and sentence, suggesting that he knew the prosecution could

offer incentives for testimony. Petitioner also attacked Perez’s motive based on his

friendship with the victim and attacked his credibility on his failure to come forward with

details of the crime sooner. For these reasons, “the jury had sufficient other information

before it, without the excluded evidence, to make a discriminating appraisal of the possible

biases and motivation’” behind Perez’s testimony. Chandler, 326 F.3d at 219 (quoting

Brown v. Powell, 975 F.2d 1, 4 (3d Cir. 1992) (quoting United States v. Tracey, 675 F.2d

433, 437 (1st Cir. 1982)). It is important to note that “the Confrontation Clause guarantees

an opportunity for effective cross-examination, not cross-examination that is effective in

whatever way, and to whatever extent, the defense might wish.” Van Arsdall, 475 U.S. at

679 (quoting Fensterer, 474 U.S. at 20) (emphasis deleted). Therefore, Petitioner fails to

meet the first element of his Confrontation Clause claim. The Court will, nonetheless,

address the second element, whether the evidentiary ruling fell within the court’s discretion

to impose “reasonable limits” on a defendant's right of cross-examination. Chandler, 326

F.3d at 223.

d. Whether the trial court abused its discretion

The Appellate Division stated “([t]hat this witness [Perez] is subject to registration

requirements is not relevant information which would have aided the jurors in deciding

credibility. Defendant’s true aim was to give negative character evidence which would have

prejudiced their assessment of his testimony.” (Ra9, Dkt. No. 13-12 at 11-12.) At trial,

defense counsel explained how he would use the testimony, if it was admitted: “He’s an

adult and he’s still registering. That’s for safeguarding of the public and public to know

about it. That’s the only reason I would want to go into that area.” (Rta3, Dkt. No. 13-55 at

114.) This supports the Appellate Division’s conclusion that the evidence was offered as

bad character evidence, that Perez was a danger to the public.

In New Jersey, when prejudice outweighs the relevance of the proffered testimony, a

trial court may exclude it. N.J.R.E. 403. A “trial court retains the discretion to limit the

scope of cross-examination” including “discretion to impose limits based on concerns about

… prejudice, confusion” or interrogation that is “only marginally relevant.” Savage v. Dist.

Att'y of Cty. of Philadelphia, 116 F. App'x 332, 337 (3d Cir. 2004) (quoting Van Arsdall,

475 U.S. at 679). See, Savage, 116 F. App’x at 338 (“[w]hether the trial court's

determination is framed in terms of relevancy or the inadmissibility of propensity evidence,

it is clear that the trial court was acting well within its discretion in excluding such

evidence.”) The trial court did not abuse its discretion in precluding cross-examination on

whether Perez was required to register under Megan’s law based on a juvenile adjudication

from fifteen years prior to Petitioner’s trial. The basis for the juvenile adjudication and

registration requirements, according to the trial transcript, a lower level sex offense, is not

the type of crime that calls into question a person’s honesty that would be useful in

determining credibility. Furthermore, defense counsel had no reason to believe Perez had

not met registration requirements, and there was no reason to believe he was subject to

prosecution on that basis. The testimony was only marginally relevant and the prejudicial

effect on Perez’s testimony, and the burden on the State’s interest in keeping juvenile

adjudications confidential, outweighed its admission. Therefore, Petitioner failed to

establish the second element of a Confrontation Clause violation.

e. Harmless-error review

Even if this Court were to find that the trial court abused its discretion in its

limitation on cross-examination, the harmless-error doctrine would prevent relief on

Ground Five. The harmless-error doctrine established by the Supreme Court in Brecht v.

Abramson, 507 U.S. 619, 622 (1993) governs habeas review under § 2254 whether or not the

state court applied the more lenient Chapman7 harmless-error standard. Fry v. Pliler, 551

U.S. 112, 120 (2007). Here, the state court did not address the Confrontation Clause claim,

and this Court will apply the Brecht harmless-error doctrine de novo. To obtain habeas relief

on a constitutional error, a habeas petitioner must establish actual prejudice, that the error

“had substantial and injurious effect or influence in determining the jury's verdict.” Brecht,

507 U.S. at 637 (1993) (quoting Kotteakos v. U.S., 328 U.S. 750, 776 (1946)). The Third

Circuit has stated

Van Arsdall instructs that the following factors bear upon

harmlessness: “the importance of the witness’ testimony in the

prosecution’s case, whether the testimony was cumulative, the

presence or absence of evidence corroborating or contradicting

the testimony of the witness on material points, the extent of

cross-examination otherwise permitted, and, of course, the

overall strength of the prosecution’s case.” 475 U.S. at 684, 106

S.Ct. 1431.

Frazier v. Sec'y Pennsylvania Dep't of Corr., 799 F. App'x 124, 127 (3d Cir. 2020).

The limitation on cross-examination concerning Perez’s Megan’s Law registration

requirements did not have a substantial and injurious effect in determining the jury’s verdict.

Most notably, Perez’s testimony was not crucial to the prosecution because he did not see

Petitioner shoot Sosa. Further, Perez’s testimony was not crucial because he was not the

only witness to corroborate Nelson’s testimony that Petitioner was at Monte’s that evening,

and that Petitioner was wearing a black hoodie. See, Ali v. Adm'r New Jersey State Prison,

675 F. App'x 162, 165–66 (3d Cir. 2017) (“[the witness’s] in-court identification of [the

defendant] was not uniquely important to the State’s case, as it was cumulative of other

7 In Chapman v. California, 386 U.S. 18, 24 (1967), a case arising on direct appeal, the

Supreme Court “held that the standard for determining whether a conviction must be set

aside because of federal constitutional error is whether the error “was harmless beyond a

reasonable doubt.” Brecht, 507 U.S. at 622.

evidence presented at trial and was corroborated by that evidence.”) Miguel Mota testified

that he saw a man wearing a dark hoodie with his arm extended and holding a gun, but he

did not see the shooter’s face. (Rta3, Dkt No. 13-55 at 94-95.) Felicia Santiago testified that

she knew Petitioner and saw him at Monte’s that night. (Rta4, Dkt. No. 13-56 at 9-13) She

saw him make eye contact with Sosa. (Id. at 11.) About ten minutes later, she saw Petitioner

exit Monte’s. (Id. at 12.) She heard the gunshot after hearing the beeping noise the door

makes when someone enters the bar. (Id. at 13.) She did not see the shooter. (Id.)

Diana Ocasio testified that she knew Petitioner and saw him at Monte’s on the night

of the shooting. (Rta3, Dkt. No. 13-55 at 75.) Petitioner complimented Ocasio and they

took a picture together using his cell phone, which he kept. (Id. at 76.) She did not see him

again that evening. (Id. at 86.) The jury saw the photograph, and it showed Petitioner

wearing a black hoodie, although the hood was not on his head. (Rta4, Dkt. No. 13-56 at

23- 26; Rta5, Dkt. 13-57 at 21.)

In addition to Perez’s testimony being cumulative to the testimony of other

witnesses, the defense exposed the potential unreliability of Perez’s testimony, specifically

that Perez had not come forward earlier with testimony that he saw Petitioner at Monte’s

wearing a black hoodie, and that Perez, who had been drinking, had been taken into

custody and interviewed by the police and prosecution investigators on the night of the

shooting. Through this cross-examination, the defense was able to suggest to the jury that

Petitioner may have been motivated to testify for the prosecution because he had a prior

conviction and perhaps thought he could garner some benefit for his testimony or deflect

any attention from himself. For all of these reasons, the Court denies Ground Five of the

amended habeas petition upon de novo review of the Confrontation Clause claim.

III. CERTFICATE OF APPEALABILITY

Unless a circuit justice or judge issues a certificate of appealability, an appeal may not

be taken from a final order in a proceeding under 28 U.S.C. § 2254. 28 U.S.C. § 2253(c)(1).

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, 537 U.S. at 327. For the

reasons discussed above, Petitioner has not made a substantial showing of the denial of a

constitutional right. Therefore, the Court will deny a certificate of appealability.

IV. CONCLUSION

Petitioner has not established his burden on habeas review to show the state courts’

denial of his claims was contrary to or involved an unreasonable application of clearly

established federal law, nor did Petitioner overcome the presumption of correctness of a state

court factual finding and establish that a state court decision was based on an unreasonable

determination of the facts in light of the evidence presented. Petitioner failed to establish cause

and prejudice to excuse his procedurally defaulted claims. Finally, Petitioner’s Confrontation

Clause claim fails on de novo review. Therefore, the Court denies the amended habeas

petition.

An appropriate Order follows.

Date: March 23, 2022

s/Renée Marie Bumb

RENÉE MARIE BUMB

UNITED STATES DISTRICT JUDGE