GREENE v. NOGAN

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

GREGORY GREENE, JR., Civil Action No. 18-16413 (MCA)

Petitioner,

v. OPINION

PATRICK A. NOGAN, et al.,

Respondents.

This matter has been opened to the Court by Petitioner Gregory Greene, Jr.’s (“Petitioner,”

“defendant,” or “Gregory”) filing of a Petition for a writ of habeas corpus pursuant to 28 U.S.C. §

2254. Having reviewed the Petition, Respondent’s Answer, and the relevant record, the Court

denies the Petition for the reasons stated in this Opinion, and also denies a certificate of

appealability (“COA”).

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Defendants Gregory Greene and his brother Wayne Greene were

tried jointly and convicted of various offenses in connection with

the November 3, 2007 robbery and homicide of Lazaro Tista.

. . . .

Defendants were charged with purposeful or knowing murder,

N.J.S.A. 2C:11–3(a)(1) or (2) (count one); unlawful possession of a

weapon, N.J.S.A. 2C:39–5(d) (count two); possession of a weapon

for an unlawful purpose, N.J.S.A. 2C:39–4(d) (count three); first-

degree robbery, N.J.S.A. 2C:15–1 (count four); felony murder,

N.J.S.A. 2C:11–3(a)(3) (count five); and bias intimidation, N.J.S.A.

2C:16–1(a)(3) (count six). Wayne also was charged with second-

degree robbery, N.J.S.A. 2C:15–1 (count eight); and witness

tampering, N.J.S.A. 2C:28–5 (count nine).1 Defendants’ pre-trial

1 Muhammed Glasper, Willie Greene and Justin Greene also were charged in the indictment.

These defendants pled guilty prior to trial. Glasper testified as a witness for the State pursuant to

his plea agreement.

motions for severance were denied. They were thereafter tried

together before a jury. Count eight was severed during trial.

At the trial, the State presented evidence which established that, on

the evening of November 3, 2007, at approximately 11:40 p.m.,

Tista exited a tavern in Plainfield. The bar’s surveillance video

showed Tista walking down West Front Street and turning onto

Grove Street, in the direction of North Plainfield. At around 11:44

p.m., a vehicle owned by Gregory turned onto West Front Street

from Grove Street.

About thirty minutes later, Plainfield police officers Reginald

Johnson and Alana Walker, who were in an unmarked car at the

intersection of West Front Street and Plainfield Avenue, observed

two black men, dressed in dark clothing, running and entering a

vehicle that had been idling at the corner. The vehicle then drove

away.

Johnson and Walker were suspicious. They followed the vehicle and

pulled it over after the driver made a right turn without stopping for

a red light. Defendants' brother Willie Greene was the driver. The

car was registered to Gregory, who was a passenger. Johnson looked

inside the car with a flashlight, but did not see any weapons or

anything that looked like blood. After a few minutes, Johnson

allowed the car to leave, without issuing a citation.

At around 1:04 a.m., Johnson and Walker were flagged down and

directed to the body of a man, who was later identified as Tista. The

body was lying face down, about thirty to forty feet from the

intersection of West Front and Grove Streets. The body was about

one foot from the sidewalk near a bridge leading to North Plainfield,

and about one block from Tista’s home. The officers summoned

medical assistance. Tista was pronounced dead at the scene. Medical

testimony indicated that Tista died from blunt force trauma to the

head, which could have been caused by any hard, blunt object. The

officers did not find a wallet on the body, and the police never

recovered one, nor did they find any weapon.

The police were told that Tista had a cellphone, which was later

found in possession of S.C., Glasper’s nephew.2 S.C. and Glasper

lived together in the same home. S.C. told the police that he found

the phone at school. He later said he found the phone in Glasper’s

garage on November 4, 2007. S.C. did not know to whom the phone

belonged or that it had been stolen.

2 The Appellate Division referred to S.C. and others involved in the matter by their initials, in

order to protect their privacy.

S.C. believed that it was S.P.’s phone because she sometimes slept

in Glasper's garage. According to S.C., S.P. told him she had been

out “papi hunting” and that she had hurt someone “real bad.” One

of the State's witnesses described “papi hunting” as the targeted

robbing of persons of Hispanic or Latin American origin, who are

believed to be undocumented, when they exit drinking

establishments, at which time they are believed to be intoxicated and

carrying cash.

During the investigation, the police spoke with F.B.S., who was

fourteen years old in November 2007. She had recently run away

from a group home with a friend, C.T., through whom she became

acquainted with Gregory and Wayne. F.B.S. stated that, on the night

of November 3, 2007, she was in a park across the street from

Glasper’s house, with Glasper, Gregory, two of Gregory’s brothers,

S.P. and others.

F.B.S. said that, sometime between 11:00 p.m. and 11:30 p.m.,

Gregory and his brothers left in Gregory’s car. F.B.S. and Glasper

went into his house. A short time later, Glasper received a phone

call and departed in Gregory’s car.

During the afternoon of November 4, 2007, F.B.S. went with

Glasper and others to a hangout, where she saw Gregory. He told

her that, the night before, he hit a man in the back of the head with

a metal bat, after which he and two of his brothers went through the

man’s pockets and took money from his wallet. Gregory said they

threw the man’s wallet away.

Gregory and his two brothers then pulled the man under a bridge.

Gregory told F.B.S. that Glasper had been there, acting as a lookout,

and that Willie had been the driver. F.B.S. said the next day, she

spent time with Glasper, Gregory and two of his brothers at a park.

Gregory repeated what he told F.B.S. the previous day.

The police also spoke with J.O., who lived in Plainfield and hung

out with Glasper and the Greenes. Initially, J.O. told the police he

believed S.P. and others were involved in the murder. However, J.O.

eventually told the police that he and three of Gregory’s brothers

were present when Glasper and Gregory discussed the crimes.

Gregory stated that he hit a Spanish man, took his wallet and threw

him over a bridge.

In addition, the police spoke with T.S., who hung out with a group

that included Glasper, the Greene brothers, and others. T.S. testified

that he was with Glasper and F.B.S. on the night Tista was robbed

and killed. Gregory arrived with one of his brothers and spoke with

Glasper about “papi hunting.” The next day, T.S. was with Glasper,

Gregory and others, and Gregory spoke about having gone “papi

hunting” the night before.

Gregory said they hit a man in the head with a bat and killed him,

then dragged his body under the bridge, and took money from his

wallet. Later, Gregory told T.S. that they used a metal bat in the

attack. The following day, Gregory told T.S. that his brothers,

including Wayne, had been with him when they got the “papi.” He

said they had thrown the bat into a lake or river. On November 17,

2007, the police charged Glasper, Gregory and Willie.

About ten months later, M.B. spoke with the police. She had been

dating Wayne in November 2007. She told the police that Wayne

called her at about 6:00 a.m. on November 4, 2007. He was upset.

Wayne said he had gone “to work.” M.B. believed that meant he had

been robbing people. Wayne said “they overdid it.” He had been

with Glasper, Gregory, Willie and Justin Greene.

Wayne told M.B. that Glasper hit a Hispanic person in the head with

a metal bat. He said that Willie remained in the car, and that the

others went through the victim's pockets. He stated that they had

“stashed” the bat. M.B. testified that she had several conversations

with Wayne about the offenses. During those conversations, Wayne

asked M.B. several times to say that he was with her that day if he

ever was arrested. Wayne told M.B. that, if he was arrested, it would

be her “head,” because she was the only person who knew about the

offenses, and because Wayne’s family would never “snitch on him.”

M.B. was frightened by these threats, for herself and for her father.

M.B. broke up with Wayne in the summer of 2008, and left for Peru.

She returned in September 2008, and was told that Wayne had been

attempting to contact her. Two days later, she went to the police.

Wayne was arrested on September 6, 2008.

Glasper testified that initially he did not tell the police about his

participation in Tista’s robbery and homicide, but after his arrest, he

agreed to waive his rights and tell the police about his involvement

in the offenses, as well as the roles that Gregory, Wayne, Willie and

Justin played in them.

Glasper stated that on November 3, 2007, Gregory called him and

asked if he knew anyone from whom he could buy “weed.” Glasper

said he did and they left with Wayne, Willie and Justin in Gregory’s

car. They discussed “papi hunting” and began to look for a Hispanic

person to rob. Glasper said that most of these individuals are

immigrants, who are often drunk and do not report the crimes.

At some point, Gregory identified a victim and gave Willie, who

was driving the car, directions on where to go. Willie parked the car

and Gregory got out to see if the victim was still walking down the

street. Gregory returned and said the victim was coming. Wayne told

him to go back and be sure. Glasper took a bat out of the trunk.

Glasper participated in the robbery and killing of Tista, with

Gregory, Wayne and Justin, while Willie remained in the car.

They discussed who would hit the victim with the bat. Glasper

thought the bat would be used to hit the victim in the leg, to stop him

from running. According to Glasper, the victim saw them and began

to walk in a different direction. Gregory grabbed the bat out of

Glasper’s hand and said he would “do it” himself. According to

Glasper, Gregory ran up to the victim and hit him in the head with

the bat.

The others ran to the victim. Glasper took the bat and was told to be

the lookout, while Gregory, Justin, and Wayne pulled the victim

near the bridge and went through his pockets. After they took the

victim’s wallet, they returned to the car and divided the money. They

stopped at the home of one of Gregory’s relatives. On the way,

police pulled them over, but let them go without issuing a summons.

They stopped to buy “weed” and gas, and then traveled to Glasper’s

home. According to Glasper, the Greene brothers were in a

celebratory mood, without any sympathy or remorse.

Neither defendant testified at trial.

Gregory and Wayne were convicted of aggravated manslaughter, as

a lesser-included offense of murder (count one), unlawful

possession of a weapon (count two), possession of a weapon for an

unlawful purpose (count three), first-degree robbery (count four),

and felony murder (count five). They were found not guilty of bias

intimidation (count six). Wayne was also was found guilty of

witness tampering (count nine). Defendants were sentenced on

October 28, 2011. These appeals followed.

State v. Greene, Nos. A-3374-11T2, A-3387-11T22014 WL 5470502, at *1–4 (N.J. Super. App.

Div. Oct. 30, 2014).

On direct appeal, among other points, Petitioner argued that the trial court erred by

admitting testimony from a witness, M.B., that a Wayne made statements to M.B. implicating

defendant in Tista’s robbery and homicide, that he was prejudiced by the trial court’s failure to

sever the bias intimidation charge, that the felony murder charge was erroneous, and that the trial

court’s dismissal of a juror was an abuse of discretion. See id. at *4-7. The Appellate Division

affirmed Gregory’s convictions and the sentence imposed but remanded for entry of a corrected

judgment of conviction deleting the erroneous statement on page three that Gregory’s conviction

was the result of a negotiated plea. See id. at *9. Defendant’s petition for certification was

thereafter denied by the Supreme Court. State v. Greene, 221 N.J. 285 (2015).

Defendant filed a petition for PCR. See State v. Greene, 2018 WL 1074340, at *1 (N.J.

Super. App. Div. Feb. 28, 2018). The PCR court denied defendant’s petition by order dated March

21, 2016. See id. Petitioner appealed and asserted as his sole ground for relief that he was provided

ineffective assistance of counsel in his PCR proceeding. The Appellate Division affirmed the

denial of Petitioner’s PCR claims and likewise rejected his claims of ineffective assistance of PCR

counsel. See Greene, 2018 WL 1074340 at *2-4. The Supreme Court denied certification on

September 24, 2018. State v. Greene, 235 N.J. 121 (2018).

Petitioner submitted the instant habeas petition on November 16, 2018, and submitted an

Amended Petition on February 28, 2019. See ECF No. 1, Petition at 17; ECF No. 4, Amended

Petition at 17. Respondents filed their Answer on July 9, 2019, and Petitioner did not submit a

traverse.

II. STANDARD OF REVIEW

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

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

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

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

Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. No. 104-132, tit. I, § 101 (1996), 28

U.S.C. § 2244, federal courts in habeas corpus cases must give considerable deference to

determinations of state trial and appellate courts. See Renico v. Lett, 599 U.S. 766, 772 (2010).

Section 2254(d) sets the standard for granting or denying a writ of habeas corpus:

(d) An 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).

Where a state court adjudicated a petitioner’s federal claim on the merits,3 a federal court

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

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

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

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

U.S. 37, 40-41 (2012) (quoting 28 U.S.C. § 2254(d)).

“[C]learly established law for purposes of § 2254(d)(1) includes only the holdings, as

opposed to the dicta, of t[he Supreme Court’s] decisions,” at of the time of the relevant state-court

decision. White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (quoting 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) if the state court “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 th[e Supreme]

Court and nevertheless arrives at a [different] result.” Williams, 529 U.S. at 405-06. Under the

“‘unreasonable application’ clause of § 2254(d)(1), a federal habeas court may grant the writ if the

3 “For the purposes of Section 2254(d), a claim has been ‘adjudicated on the merits in State court

proceedings’ when a state court has made a decision that (1) finally resolves the claim, and (2)

resolves th[at] claim on the basis of its substance, rather than on a procedural, or other, ground.”

Shotts v. Wetzel, 724 F.3d 364, 375 (3d Cir. 2013) (citation and internal quotation marks

omitted).

state court identifies the correct governing legal principle from th[e] [Supreme] Court’s decisions

but unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at

413. As to 28 U.S.C. § 2254(d)(1), a federal court must confine its examination to evidence in the

record. Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011).

Where a petitioner seeks habeas relief, pursuant to § 2254(d)(2), on the basis of an

erroneous factual determination of the state court, two provisions of the AEDPA necessarily apply.

First, the AEDPA provides that “a determination of a factual issue made by a State court shall be

presumed to be correct [and] [t]he applicant shall have the burden of rebutting the presumption of

correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see Miller–El v. Dretke,

545 U.S. 231, 240 (2005). Second, the AEDPA precludes habeas relief unless the adjudication of

the claim “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)(2).

A petition for a writ of habeas corpus “shall not be granted unless ... the applicant has

exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1); Wilkerson v.

Superintendent Fayette SCI, 871 F.3d 221, 227 (3d Cir. 2017). This Court may, however, deny

petitioner’s unexhausted claim on the merits. 28 U.S.C. § 2254(b)(2) (“An application for a writ

of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to

exhaust the remedies available in the courts of the State.”).

III. ANALYSIS

a. Ground One—Admission of Co-conspirator’s Statements

In Ground One, petitioner argues that he was deprived of a fair trial when the trial court

admitted inculpatory co- conspirator statements made by co-defendant Wayne Greene.

Petitioner contends that these statements did not satisfy the criteria for a co-conspirator exception,

and violated his right to confrontation under the Sixth Amendment.

Petitioner raised this argument on direct appeal and the Appellate Division rejected it as

follows:

Gregory contends that the trial court erred by admitting testimony

from M.B. that Wayne made statements to her implicating Gregory

in Tista’s robbery and homicide. Gregory contends that the

admission of Wayne's statements violated his right to confrontation

under the Sixth Amendment to the United States Constitution, and

that his convictions must be reversed as a result. We disagree.

N.J.R.E. 803(b)(5) is an exception to the rule precluding the

admission of hearsay. The rule permits a statement to be offered

against a party if the “statement [was] made at the time the party and

the declarant were participating in a plan to commit a crime or civil

wrong and the statement was made in furtherance of that plan.” Ibid.

The rule allows the admission of statements among co-conspirators

provided the statements are made “‘at the time’” and “‘in

furtherance of’” the conspiracy. State v. Savage, 172 N.J. 374, 402,

799 A.2d 477 (2002) (quoting N.J.R.E. 803(b)(5)).

Moreover, the co-conspirator exception “does not offend the Sixth

Amendment’s guarantee of a defendant’s right to confront the

witnesses against him.” Ibid. (citing Bourjaily v. United States, 483

U.S. 171, 183–84, 107 S. Ct. 2775, 2783, 97 L. Ed.2d 144, 157–58

(1987); State v. Boiardo, 111 N.J. Super. 219, 229, 268 A.2d 55

(App. Div.), certif. denied, 57 N.J. 130 (1970), cert. denied, 401 U.S.

948, 91 S. Ct. 931, 28 L. Ed.2d 231 (1971)).

To qualify for admissibility under the rule, the State

must meet the following conditions: (1) the statement

must have been made in furtherance of the

conspiracy; (2) the statement must have been made

during the course of the conspiracy; and (3) there

must be “evidence, independent of the hearsay, of the

existence of the conspiracy and defendant's

relationship to it.”

[Ibid. (quoting State v. Phelps, 96 N.J. 500, 509–10, 476 A.2d 1199

(1984)).]

It should be noted that “[a] conspiracy continues until its objective

is fulfilled.” Id. at 403 (citing State v. Cherry, 289 N.J. Super. 503,

523, 674 A.2d 589 (App. Div. 1995)). “If a statement is made after

the conspiratorial objective is completed, it is generally not

admissible under the co-conspirator exception.” Ibid. (citing State v.

Sparano, 249 N.J. Super. 411, 420–21, 592 A.2d 608 (App.

Div.1991)). “[A] conspiracy may continue beyond the actual

commission of the object of the conspiracy if it is shown that a

conspirator enlisted false alibi witnesses, concealed weapons, or fled

in order to avoid apprehension.” Ibid. (citing Cherry, supra, 289 N.J.

Super. at 523–24, 674 A.2d 589).

Moreover, statements relating to past events may be admissible

[under N.J.R.E. 803(b)(5) ] if they are “in furtherance” of the

conspiracy and “serve some current purpose, such as to [provide]

cohesiveness, provide reassurance[s] to a co-conspirator, or prompt

one not a member of the conspiracy to respond in a way that furthers

the goals of the conspiracy.”

[Ibid. (quoting State v. Taccetta, 301 N.J. Super. 227, 253, 693 A.2d

1229 (App. Div.1997)) (alteration in original).]

In deciding defendants’ pre-trial severance motion, the trial court

reviewed M.B.’s videotaped statement to the police and determined

that Wayne’s statements to M.B., which implicated Gregory, were

made in the course of and in furtherance of a conspiracy because

they were made in the context of Wayne asking M.B. to provide him

with an alibi. The record supports the court’s determination.

M.B. indicated that she had discussed the crimes with Wayne on a

couple of occasions, and that he had asked her several times to

provide him with an alibi. The trial court found that the statements

Wayne made to M.B. about the offenses, and Gregory’s

participation in them, were part of his effort to have her provide him

with an alibi. The record supports that finding. Indeed, Wayne’s

requests for an alibi would have made no sense if he had not first

told M.B. about the crimes.

Even if the trial court erred by admitting Wayne’s statements to

M.B. implicating Gregory in the crimes, the error does not warrant

reversal of defendant's convictions. A violation of a defendant’s

right to confrontation is subject to harmless error analysis. Delaware

v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L. Ed.2d

674, 686 (1986). To establish that the error was harmless, the State

must show “‘beyond a reasonable doubt that the error complained

of did not contribute to the verdict obtained.’” Id. at 680, 106 S.Ct.

at 1436, 89 L. Ed.2d at 684 (quoting Chapman v. California, 386

U.S. 18, 24, 87 S.Ct. 824, 828, 17 L. Ed.2d 705, 710 (1967)).

We are convinced that if the admission of Wayne’s out-of court

statements implicating Gregory was erroneous, the error was

harmless under this standard. As we have explained, the evidence of

Gregory's guilt was overwhelming. That evidence includes

Gregory’s many statements admitting his involvement in the

offenses, as well as the testimony of Glasper.

Therefore, it is beyond a reasonable doubt that the admission of

Wayne’s statements to M.B. implicating Gregory did not contribute

to the verdict. Clearly, there was sufficient evidence to find Gregory

guilty even if Wayne’s statements to M.B. implicating him in the

offenses had not been admitted into evidence.

Greene, 2014 WL 5470502, at *4–6.

Petitioner asserts that the admission of Wayne’s statements violated his Sixth Amendment

rights under the Supreme Court’s decision in Bruton v. United States, 391 U.S. 123, (1968). The

Sixth Amendment to the United States Constitution, and specifically its Confrontation Clause,

guarantees criminal defendants the right to confront the witnesses against them. In Bruton, the

Supreme Court explained that a defendant is denied his right to confront witnesses against him

when a prosecutor presents a co-defendant’s confession implicating the defendant at a joint trial,

and the co-defendant does not testify. 391 U.S. at 126. Subsequent to Bruton, however, the

Supreme Court held that admission of a non-testifying co-conspirator’s statement against a

defendant does not offend the Confrontation Clause as long as the statement satisfies the co-

conspirator exclusion under the relevant rules of evidence. See Bourjaily v. United States, 483

U.S. 171, 182–83 (1987).

Here the statements at issue were admitted under the co-conspirator exception under

N.J.R.E. 803(b)(5), which permits the admission against a party of “a statement made at the time

the party and the declarant were participating in a plan to commit a crime or civil wrong and the

statement was made in furtherance of that plan.” To meet that exception, three conditions must be

satisfied: 1) the statement must have been in furtherance of the conspiracy; 2) the statement must

have been made during the course of the conspiracy; and 3) there must be evidence, aside from the

hearsay, of the existence of the conspiracy and defendant's role in it. State v. Phelps, 96 N.J. 500,

509–10, 476 A.2d 1199 (1984). The evidence of the conspiracy may be direct or circumstantial

and can take the form of hearsay, but it must be “substantial enough to engender a strong belief in

the existence of the conspiracy and of defendant’s participation.” Id. at 511.

Relying on State v. Savage, 172 N.J. 374, 403 (2002), the Appellate Division affirmed the

trial court’s determination that Wayne’s statements implicating Petitioner were made in further of

the conspiracy because Wayne enlisted M.B. as a false alibi witness. This Court finds no basis to

disturb the Appellate Division’s conclusion that the Wayne’s statements implicating Petitioner

were properly admitted under N.J.R.E. 803(b)(5).

Moreover, the United States Supreme Court has held that a violation of a defendant’s right

to confrontation is subject to the harmless error analysis, and in order to show that an error was

harmless, the State must show “‘beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained.’” Delaware v. Van Arsdall, 475 U.S. 673, 680, 684 (1986)

(internal citation omitted). These factors the reviewing court must consider “include 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.” Id. at 684. Here, the Appellate Division concluded

that if the trial court erroneously admitted Wayne Greene’s statements to M.B., the error was

harmless beyond a reasonable doubt, as there was overwhelming evidence of petitioner’s guilt,

including Petitioner’s own statements and the testimony of Glasper. The Court agrees that the

evidence against Petitioner was overwhelming and rendered any erroneous admission of M.B.

testimony about Wayne’s statements implicating Petitioner harmless beyond a reasonable doubt.

Because the Appellate Division did not violate clearly established federal law in resolving

Petitioner’s Confrontation Clause claim, the Court denies relief on Ground One.

b. Ground Two—Failure to Sever Bias Intimidation Charge

In Ground Two, petitioner contends that he was deprived of a fair trial based on the trial

court’s failure to sua sponte sever the bias intimidation charge. Petitioner argued that the result

was a trial that included “improperly-admitted evidence of prior bad acts.” ECF No. 1-1 at 15.

Specifically, petitioner argues that he was prejudiced at trial by the references to “papi hunting.”

The Appellate Division rejected this claim as follows:

Gregory argues that the trial court erred by failing to sever the bias

intimidation charge. This issue was not raised below. Therefore, we

must consider whether the court’s failure to sever the charge for trial

was erroneous and, if so, whether it constituted plain error, which is

an error “clearly capable of producing an unjust result.” R. 2:10–2.

Rule 3:15–2(b) provides that the court may order separate trials if

“it appears that a defendant or the State is prejudiced by a

permissible or mandatory joinder of offenses.” In determining if

joinder is prejudicial to a defendant, the court considers whether, if

the crimes were tried separately, evidence of the severed offenses “

‘would be admissible under [N.J.R.E. 404(b) ] in the trial of the

remaining charges.’” State v. Chenique–Puey, 145 N.J. 334, 341,

678 A.2d 694 (1996) (quoting State v. Pitts, 116 N.J. 580, 601–02,

562 A.2d 1320 (1989)) (alteration in original); see also State v.

Oliver, 133 N.J. 141, 150–51, 627 A.2d 144 (1993).

Gregory argues that he was prejudiced by the references at trial to

“papi hunting.” He contends that the State would not have been

allowed to introduce evidence concerning this practice under

N.J.R.E. 404(b) if the bias intimidation charge had been severed. He

argues that there was no evidence that he engaged in “papi hunting”

other than that which was alleged in this case. He further argues that

this evidence could not have been admitted to show motive or intent,

because the only motive in this case was robbery. We are not

persuaded by these arguments.

The State did not introduce evidence in this case that Gregory or

Wayne engaged in acts of “papi hunting” other than in the incident

involving Tista. Furthermore, some explanation of this practice of

“papi hunting” was required because Gregory had used that term to

describe what he was planning to do on the night Tista was robbed

and slain. Thus, evidence regarding “papi hunting” would have been

admitted even if the bias intimidation charge had been severed.

In addition, there is no indication on this record that Gregory was

prejudiced because the bias intimidation charge was tried along with

the other charges. As we stated previously, there was overwhelming

evidence of Gregory’s guilt, wholly aside from any testimony

concerning “papi hunting.” Furthermore, the jury found defendants

not guilty of bias intimidation, thereby indicating that the evidence

regarding “papi hunting” probably did not play a significant role in

its decisions finding defendants guilty of the other offenses.

Greene, 2014 WL 5470502, at *6–7.

Here, the Appellate Division’s ruling was based solely on state law and state rules of

evidence. Generally, matters of state procedural law are not reviewable in a federal habeas

petition. The Supreme Court has stated that “it is not the province of a federal habeas court to

reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62,

67–68 (1991). This is generally true even where the state court incorrectly applied state law. Id.

at 71. Rather, a federal habeas claim will lie only where a state court determination violated some

federally protected right. Id. at 68. The Third Circuit likewise stated:

Our review of a federal habeas corpus petition is limited to

remedying deprivations of a petitioner's federal constitutional rights.

We can take no cognizance of non-constitutional harm to the

defendant flowing from a state’s violation of its own procedural

rule, even if that rule is intended as a guide to implement a federal

constitutional guarantee.

Wells v. Petsock, 941 F.2d 253, 256 (3d Cir.1991), cert. denied, 505 U.S. 1223 (1992); see also

Smith v. Zimmerman, 768 F.2d 69, 73 (3d Cir. 1985) (“a ‘mere error of state law’ is not a denial

of due process”).

In his Memorandum of Law, Petitioner now argues that denial of the motion to sever and

admission of the testimony about “papi hunting” violated his clearly established federal rights.

The Court has reviewed Petitioner’s direct appeal brief and it appears that this issue was raised

solely as a matter of state law. See Exhibit 9-1, Petitioners Direct Appeal Brief, dated June 28,

2013. To “fairly present” a claim, a petitioner must present a federal claim’s factual and legal

substance to the state courts in a manner that puts them on notice that a federal claim is being

asserted. See Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 277-78,

(1971). Nevertheless, to the extent this issue is unexhausted, this court may deny an unexhausted

claim on the merits.

Petitioner contends that the admission of the evidence of “papi hunting” and the joinder of

the bias intimidation charge violated his clearly established federal rights. To show that an error

by state court in the admission of evidence rose to the level of a due process violation, habeas

petitioner must show that it was of such magnitude as to undermine the fundamental fairness of

the entire trial. Keller v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001). The Supreme Court has

observed that “[i]mproper joinder does not, in itself, violate the Constitution. Rather, misjoinder

would rise to the level of a constitutional violation only if it results in prejudice so great as to deny

a defendant his Fifth Amendment right to a fair trial.” United States v. Lane, 474 U.S. 438, 446 n.

8 (1986). The Supreme Court explained in Zafiro v. United States, 506 U.S. 532 (1993), that “an

important element of a fair trial is that a jury consider only relevant and competent evidence

bearing on the issue of guilt or innocence [but] a fair trial does not include the right to exclude

relevant and competent evidence.” Id. at 540 (citation and internal quotation marks omitted).

Here, this Court finds that the state court’s admission of the evidence of “papi hunting”

and the failure to sever the bias intimidation charge not did not “result[ ] in prejudice so great as

to deny a defendant his Fifth Amendment right to a fair trial” Lane, 474 U.S. at 446. Nor was the

Appellate Division’s resolution of these issues contrary to, or an unreasonable application of

Supreme Court precedent. As explained by the Appellate Division, Petitioner has not shown that

he was prejudiced by the admission of the references to “papi hunting” given that he was acquitted

of the bias intimidation charges. For these reasons, the Court denies relief on Ground Two.

c. Ground Three—Error in Jury Instructions

Petitioner next argues that the trial court erred in instructing the jury that Petitioner could

be convicted of felony murder based on being a mere coconspirator. During the charge conference

in this case, defense counsel requested that the jury instruction be modified to focus the jury on

the crimes charged, rather than on a conspiracy, for which the defendants were not charged. See

20T13-5 to 15-10. The judge suggested changing the instruction to read when a person “engages

in a conspiracy to commit a crime.” 20T15-11 to 13 (Emphasis added.) Defense counsel

agreed with this change, stating that it was “much better.” 20T15-14 to 17. Pursuant to the

agreed-upon change, the judge instructed the jurors:

Our law provides that a person is guilty of an offense if it is

personally committed by his own conduct, the conduct of another

person for which he is legally accountable, or both.

A person is legally accountable for the conduct of another person,

including any crimes committed by such other person, when he is

engaged in a conspiracy with the other person and the conduct is in

further [sic] of and within the scope of the conspiracy.

[22T109-13 to 21]. The court also instructed the jury on accomplice liability. (22T109-21 to 110-

6).

In New Jersey, to be found guilty of felony murder, a defendant must “engaged in the

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

robbery, sexual assault, arson, burglary, kidnapping, carjacking, criminal escape or terrorism ....”

N.J.S.A. 2C:11-3(a)(3). Contrary to Petitioner’s argument, he was not charged with conspiracy to

commit robbery; rather, he was charged with, and found guilty of, the predicate offense of robbery.

While conspiracy to commit robbery, in violation of N.J.S.A. 2C:5-2, is not a predicate offense for

felony murder, robbery, in violation of N.J.S.A. 2C:15-1, clearly is.

The Appellate Division summarized and rejected petitioner’s jury instruction argument as

follows:

Gregory contends that his felony murder conviction must be

reversed because the court’s instructions permitted the jury to find

him guilty of robbery as a co-conspirator. Gregory contends that

conspiracy to commit robbery is not a predicate offense to felony

murder. In support of this argument, Gregory relies upon State v.

Grey, 147 N.J. 4, 14–17, 685 A.2d 923 (1996). This contention was

not raised at trial. We therefore review the argument under the plain

error standard. R. 2:10–2.

[Felony murder] is committed when the actor, acting

either alone or with one or more other persons, is

engaged in the commission of, or an attempt to

commit, or flight after committing or attempting to

commit robbery, sexual assault, arson, burglary,

kidnapping, carjacking, criminal escape or terrorism

pursuant to [N.J.S.A. 2C:38–2], and in the course of

such crime or of immediate flight therefrom, any

person causes the death of a person other than one of

the participants.

[N.J.S.A. 2C:11–3(a)(3).]

To be found guilty of felony murder, a defendant must be found

guilty of a predicate offense. Grey, supra, 144 N.J. at 15–17, 675

A.2d 611. In Grey, the jury acquitted the defendant of the predicate

crime of aggravated arson, for which he had been charged as a

principal and an accomplice, and found him guilty only of

conspiracy to commit arson. Id. at 16, 685 A.2d 923. The Supreme

Court held that the defendant’s conviction for felony murder could

not stand, because “the substantive crime of conspiracy is not a

predicate offense for felony murder.” Id. at 15, 685 A.2d 923.

In this case, however, defendants were not charged with conspiracy

to commit robbery. Defendants were charged with and were found

guilty of the predicate offense of robbery. Thus, Gregory’s reliance

upon Grey is misplaced. See Cannel, New Jersey Criminal Code

Annotated, comment 6 on N.J.S.A. 2C:2–6 (2013) (noting that

liability for substantive crimes committed by co-conspirators must

be distinguished from conspiracy to commit those same offenses).

Greene, 2014 WL 5470502, at *7.

From the outset, the Supreme Court has made clear that “the fact that [a jury] instruction

was allegedly incorrect under state law is not a basis for habeas relief.” Duncan v. Morton, 256

F.3d 189, 203 (3d Cir. 2001) (quoting Estelle v. McGuire, 502 U.S. 62, 71–72 (1991) ). For an

incorrect jury instruction to warrant habeas relief, the instruction must have “by itself so infected

the entire trial [such] that the resulting conviction violates due process.” Id. (quoting Henderson

v. Kibbe, 431 U.S. 145, 154 (1977) ). It is not enough that the instruction is merely “undesirable,

erroneous, or even universally condemned.” Id. To determine the effect of an allegedly erroneous

jury instruction on the validity of a petitioner’s conviction, courts cannot judge the instruction “in

artificial isolation,” but must consider it “in the context of the overall charge.” Cupp v. Naughten,

414 U.S. 141, 146–47 (1973).

Here, as noted by the Appellate Division, Petitioner was convicted of robbery and was

neither charged with nor convicted of conspiracy to commit robbery. For felony murder, the jury

finding of guilt must be for the felony itself based on a charge of liability, such as co-conspirator

liability or accomplice liability; a jury finding of guilt for conspiracy to commit that felony does

not suffice. See Grey, 147 N.J. at 15-18. Petitioner’s case is plainly distinguishable from the

situation in Grey, where the defendant was acquitted of the predicate crime of aggravated arson

and only convicted of conspiracy to commit that crime. Petitioner was convicted of both the

predicate crime of robbery and felony murder. Moreover, the Appellate Division explained that

there is a distinction under New Jersey law between liability for substantive crimes committed by

co-conspirators and conspiracy to commit those same offenses. As such, there is no merit to

Petitioner’s claim that he was convicted of felony murder based on the predicate offense of

conspiracy rather than based on the predicate offense of robbery. The Court therefore denies relief

on Ground Three.

d. Ground Four—Dismissal of a Juror before Deliberations

Finally, Petitioner asserts that he suffered prejudice after the trial judge dismissed a juror,

prior to the commencement of deliberations, who had been arrested for an unpaid traffic ticket on

her way to court. The Appellate Division summarized and rejected this claim as follows:

Gregory further argues that the trial court erred by granting the

State’s motion to dismiss a juror after summations, but before the

jury was charged and began its deliberations. The juror had been

arrested for a motor vehicle violation on her way to court. Gregory

claims that the court abused its discretion by dismissing the juror

because there was no “concrete reason” to believe that the juror

could not deliberate fairly. We disagree.

Judges have a duty to preserve the impartiality of the jury throughout

the trial court proceedings. State v. Tyler, 176 N .J. 171, 181, 821

A.2d 1139 (2003). The standard for dismissing a juror during trial

before deliberations have begun, is “for good cause shown.” Rule

1:8–2(d)(1). A reviewing court may not disturb a trial court’s

decision to remove a juror “absent a clear showing that the trial court

abused its discretion.” State v. Mance, 300 N.J.Super. 37, 55, 691

A.2d 1369 (App.Div.1997) (citing State v. LaBrutto, 114 N.J. 187,

207, 553 A.2d 335 (1989)).

In this case, the court questioned the juror and she stated that her

arrest and the experience with the police would not affect her ability

to be fair and impartial. However, the court had legitimate concerns

about the juror’s ability to do so, based upon her demeanor when

she discussed her arrest, which had just occurred. In addition, the

juror had referred to the police in a derogatory manner, as reported

by another juror who the court deemed credible. The record

therefore supports the court's determination that there was good

cause to dismiss the juror.

In support of his argument, Gregory relies upon State v. Adams, 320

N.J. Super. 360, 368–69, 727 A.2d 468 (App. Div.), certif. denied,

161 N.J. 333, 736 A.2d 526 (1999), but that case involved the

discharge of a juror during deliberations. Here, the juror was

dismissed before deliberations. The attorneys had completed their

summations, and the next step in the trial was the jury charge. We

are convinced that, under the circumstances, the court did not abuse

its discretion by dismissing the juror.

Greene, 2014 WL 5470502, at *8.

On direct appeal, Petitioner raised this claim as a violation of his Sixth Amendment right

to an impartial jury and as a violation of state law and procedures governing the dismissal of jurors

before deliberations. See ECF No. 1-1 at 50-60. The Sixth Amendment guarantees “an impartial

jury” which “consists of nothing more than jurors who will conscientiously apply the law and find

the facts.” United States v. Jones, 566 F.3d 353, 358 (3d Cir. 2009) (quoting Lockhart v. McCree,

476 U.S. 162, 178 (1986)) (emphasis and internal quotation marks omitted); see also Rivera v.

Illinois, 556 U.S. 148, 157 (2009) (explaining that a defendant must be tried “before a qualified

jury composed of individuals not challengeable for cause”).

Petitioner has not established that the removal of the juror before deliberations violated his

federal right to an impartial jury. Here, the juror was dismissed after the trial court trial questioned

the juror and determined that she could not be impartial following her arrest based on her demeanor

and her statements about police, which were reported by another juror. The factual findings of the

trial court are presumed correct on habeas review, and the Petitioner has not provided any clear

and convincing evidence to overcome this presumption. Moreover, the Appellate Division did not

unreasonably determine the facts or unreasonably apply any clearly established Supreme Court

precedent in deciding this issue. As such, the Court denies relief on Ground Four.

IV. CERTIFICATE OF APPEALABILITY

Pursuant to Local Appellate Rule 22.2 of the Rules of the United States Court of Appeals

for the Third Circuit, at the time a final order denying a habeas petition is issued, the district judge

is required to make a determination as to whether a certificate of appealability (“COA”) should

issue. Having denied the claims in the Petition, the Court will also deny a COA. Pursuant to 28

U.S.C. § 2253(c), a petitioner may not appeal from a final order in a habeas proceeding unless he

has “‘made a substantial showing of the denial of a constitutional right.” See Slack v. McDaniel,

529 U.S. 473, 484 (2000); Miller-El v. Cockrell, 537 U.S. 322 (2003). Because Petitioner has not

made a substantial showing of the denial of a constitutional right, the Court will deny a COA.

V. CONCLUSION

For the reasons explained in this Opinion, the Court denies the Petition and denies a COA.

An appropriate Order follows.

Cr

Hon. Madeline Cox Arleo

United States District Judge