# CENTENO v. JOHNSON

> District Court, D. New Jersey · March 23, 2022

URL: https://www.frixlaw.com/law-library/cases/10272678

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** March 23, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## How later opinions describe it (automated extraction)

- noting that aspersions on witness credibility are problematic when not supported by the record.

## Opinion text

NOT FOR PUBLICATION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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10272678. Public record. Not legal advice.