SMITH v. NOGAN

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

_________________________________________

MALIK R. SMITH, :

:

Petitioner, : Civ. No. 18-11952 (RBK)

:

v. : OPINION

:

PATRICK NOGAN, :

:

Respondent. :

_________________________________________ :

KUGLER, United States District Judge:

Petitioner is a state prisoner and is proceeding pro se with a Petition for Writ of Habeas

Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Respondent filed an Answer opposing relief,

(ECF No. 7), and Petitioner did not file a reply. For the following reasons, the Court will dismiss

Ground Seven as procedurally defaulted, alternatively deny Ground Seven on the merits, deny the

remainder of the Petition, and will not issue a certificate of appealability.

I. BACKGROUND

In Petitioner’s direct appeal, the Appellate Division adopted the following summary of

the facts:

Defendant, Malik R. Smith, appeals from his May 17, 2006

conviction following a trial by jury on charges of first-degree

robbery, N.J.S.A. 2C:151 (counts two and three); first-degree felony

murder, N.J.S.A. 2C:113(a)(3) (count four); first-degree aggravated

manslaughter, N.J.S.A. 2C:114(a) (count five); second-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:394(a)

(count six); third-degree unlawful possession of a

handgun, N.J.S.A. 2C:395(b) (count seven); and fourth-degree

tampering with evidence, N.J.S.A. 2C:286(1) (count eight).

The record reveals that in the early morning hours of December 24,

2002, while Craig Packman, the bartender of the Maritime Tavern

in Atlantic City, was speaking with a friend toward the rear of the

building, two masked men burst into the bar. One of the two, later

identified as defendant, pulled a gun from his pocket and waved it

in the air while announcing, “this is a f–––ing holdup. Put your f––

–ing money on the bar.” Packman, armed with his own handgun,

drew it. Seeing Packman’s gun, defendant fired one or two shots at

Packman who was able to return fire before collapsing. Packman

died shortly thereafter. One of the shots fired by Packman struck

defendant’s accomplice, Gary Sayers, who died a few hours later.

Trial testimony established that co-defendant Heleena Hendricks

had entered the bar before defendant and Moore to find out how

many people were inside.

Approximately seven hours after Packman’s murder, police

knocked on the apartment door of Ivy Moore, defendant’s girlfriend.

She awoke defendant, who told her not to open the door. After first

trying to hide his gun inside a television, defendant disassembled the

weapon, putting one part into a tub of butter in Moore’s refrigerator

and a second part into a box of hamburgers in the freezer. Defendant

and Moore managed to slip away from police by sliding through an

opening in a closet floor that led to “open passageways” located

beneath several adjacent houses. Prior to trial, Moore entered a

negotiated plea of guilty to second-degree conspiracy to commit

robbery in which she agreed to testify on behalf of the State at trial.

Following defendant’s conviction, and after all appropriate mergers,

defendant was sentenced to a sixty-year term of imprisonment on

count four, subject to the eighty-five percent parole ineligibility term

required by N.J.S.A. 2C:437.2. On counts seven and eight, the judge

imposed, respectively, consecutive terms of five years and eighteen-

months of imprisonment, consecutive to the sentence on count four.

The aggregate sentence was sixty-six and one-half years of

imprisonment. Appropriate fines and penalties were imposed.

State v. Smith, No. A-1539-06T4, 2009 WL 47392, at *1 (N.J. Super. Ct. App. Div. Jan. 9, 2009)

(footnote omitted). Ultimately, the Appellate Division affirmed in January of 2009. Id. at *6.

Petitioner filed a petition for certification, and the Supreme Court of New Jersey denied

certification in April of 2011. State v. Smith, 16 A.3d 385 (N.J. 2011).

Thereafter, Petitioner filed a post-conviction relief (“PCR”) petition, and the PCR court

denied the petition in March of 2012. State v. Smith, No. A-4371-11T2, 2014 WL 2765712, at *1

(N.J. Super. Ct. App. Div. June 19, 2014). Petitioner appealed, and the Appellate Division reversed

and remanded in June of 2014, because “PCR counsel ignored defendant’s arguments contained

in his pro se PCR brief” and did not provide the PCR court with a complete trial transcript. Id.

In May of 2015, on remand, the PCR court denied the PCR petition. (ECF No. 7-51.) In

November of 2017, the Appellate Division affirmed on PCR appeal, State v. Smith, No. A-5001-

14T4, 2017 WL 5494622, at *1 (N.J. Super. Ct. App. Div. Nov. 16, 2017), and the New Jersey

Supreme Court denied certification in June of 2018. State v. Smith, 186 A.3d 901 (N.J. 2018).

Petitioner filed the instant Petition in July of 2018, (ECF No. 1), and Respondent filed an

Answer opposing relief, (ECF No. 7). Petitioner did not file a reply.

Petitioner raises the following claims:

1. The trial judge failed to take into consideration the real time

consequences of the No Early Release Act. (ECF No. 1-1, at 1.)

2. This matter should be remanded for reconsideration and

resentencing because the trial judge assumed aggravating factors

that were not supported by the record. (Id. at 2.)

3. The trial court rushed the jury to render a verdict and the

possibility of weekend deliberations was coercive therefore

defendant should be granted a new trial. (Id. at 5.)

4. Trial counsel was ineffective because he failed to move for

a mistrial after the jury indicated that it was “hopelessly

deadlocked.” (Id. at 8.)

5. Trial Counsel was ineffective by failing to move for

dismissal of Counts II and III of the indictment.1 (Id. at 9.)

A. The State’s witness testimony tainted the grand

jury’s decision to indict. (Id.)

B. The State[] failed to demonstrate that Petitioner

committed or attempted to commit robbery. (Id. at 11.)

1 Under Ground 5, Petitioner is in reality arguing that counsel should have moved for two different

types of dismissal. Under Ground 5A, Petitioner seems to argue that counsel should have moved

to dismiss the entire indictment, and under Ground 5B, Petitioner appears to argue that counsel

should have moved for a judgment of acquittal as to Counts II and III, specifically.

6. Petitioner was denied a fair trial due to the failure of two

jurors to disclose during voir dire their pre-trial knowledge of the

[Petitioner] and the crime. (Id. at 13.)

7. Petitioner was denied his right to a fair and impartial [trial],

when the trial court had ex parte post-conviction communication

with the jury. (Id. at 15.)

8. Petitioner was denied the right to effective assistance of

appellate counsel due to counsel’s substandard performance. U.S.

Const. Amends. VI & XIV; N.J. Const. Art. 1, Par. 10. (Id. at 16.)

II. STANDARD OF REVIEW

Section 2254(a) permits a court to entertain 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).

Petitioners have the burden of establishing each claim in the petition. See Eley v. Erickson, 712

F.3d 837, 846 (3d Cir. 2013). Under § 2254, as amended by the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), federal courts in habeas cases must give considerable deference to the

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). Moreover, AEDPA deference applies even when there has been a summary

denial. Cullen v. Pinholster, 563 U.S. 170, 187 (2011) (citation omitted).

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

opposed to the dicta, of [Supreme Court’s] decisions,” as 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))). “Under the contrary to clause, a federal habeas court may grant the writ if the

state court arrives at a conclusion opposite to that reached by this [Supreme Court] on a question

of law or if the state court decides a case differently than this Court has on a set of materially

indistinguishable facts.” Williams, 529 U.S. at 412–13 (internal quotation marks omitted). As to

§ 2254(d)(1), a federal court must confine its examination to evidence in the record. Cullen, 563

U.S. at 180–81.

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 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). Critically, §

2254(d)(2) only permits the examination of factual determinations underlying a federal claim, not

those underlying a violation of state law. E.g., Wilson v. Corcoran, 562 U.S. 1, 5–6 (2010); Kim

v. Garman, No. 18-3380, 2020 WL 4228695, at *8 (E.D. Pa. Jan. 31, 2020).

In addition to the above requirements, a federal court may not grant a writ of habeas corpus

under § 2254 unless the petitioner has “exhausted the remedies available in the court of the State.”

28 U.S.C. § 2254(b)(1)(A). To do so, a petitioner must “fairly present all federal claims to the

highest state court before bringing them in a federal court.” Leyva v. Williams, 504 F.3d 357, 365

(3d Cir. 2007). This requirement ensures that state courts “have ‘an initial opportunity to pass

upon and correct alleged violations of prisoners’ federal rights.’” Id. (citing United States v.

Bendolph, 409 F.3d 155, 173 (3d Cir. 2005) (quoting Duckworth v. Serrano, 454 U.S. 1, 3 (1981)).

Even when a petitioner properly exhausts a claim, a federal court may not grant habeas

relief if the state court’s decision rests on a violation of a state procedural rule. Johnson v. Pinchak,

392 F.3d 551, 556 (3d Cir. 2004). This procedural bar applies only when the state rule is

“independent of the federal question [presented] and adequate to support the judgment.” Leyva,

504 F.3d at 365–66 (citing Nara v. Frank, 488 F.3d 187, 196, 199 (3d Cir. 2007)). If a federal

court determines that a claim has been defaulted, it may excuse the default only upon a showing

of “cause and prejudice” or a “fundamental miscarriage of justice.” Id. at 366 (citing Lines v.

Larkins, 208 F.3d 153, 166 (3d Cir. 2000)).

To the extent that a petitioner’s constitutional claims are unexhausted and/or procedurally

defaulted, a court can nevertheless deny them on the merits under 28 U.S.C. § 2254(b)(2). See

Taylor v. Horn, 504 F.3d 416, 427 (3d Cir. 2007) (“Here, because we will deny all of [petitioner’s]

claims on the merits, we need not address exhaustion.”).

III. DISCUSSION

A. Sentencing Claims

The Court will first address Grounds One and Two, Petitioner’s sentencing claims. Under

Ground One, Petitioner contends that the trial court “failed to take into consideration the real time

consequences of the No Early Release Act.” (ECF No. 1-1, at 1.) Under Ground Two, Petitioner

argues that the trial court “assumed aggravating factors that were not supported by the record.”

(Id. at 2.)

A federal court’s ability to review state sentences is limited, however, to challenges based

upon “proscribed federal grounds such as being cruel and unusual, racially or ethnically motivated,

or enhanced by indigencies.” See Grecco v. O’Lone, 661 F. Supp. 408, 415 (D.N.J. 1987) (citation

omitted). Thus, federal courts may not review a challenge to a state court’s discretion at sentencing

unless it violates a separate federal constitutional limitation. See Pringle v. Court of Common

Pleas, 744 F.2d 297, 300 (3d Cir.1984); see also 28 U.S.C. § 2254(a); Estelle v. McGuire, 502

U.S. 62, 67 (1991).

“Absent colorable allegations that his sentence constitutes cruel and unusual punishment .

. . or that it is arbitrary or otherwise in violation of due process, the legality and length of his

sentence are questions of state law,” over which this Court has no jurisdiction. E.g., Rabaia v. New

Jersey, No. 15-4809, 2019 WL 699954, at *12–13 (D.N.J. Feb. 20, 2019) (citing Chapman v.

United States, 500 U.S. 453, 465 (1991)).

With those principles in mind, Grounds One and Two fail to allege or explain how the trial

court violated Petitioner’s federal rights. Petitioner does not contend that his sentence constitutes

cruel and unusual punishment, or that the trial court violated his due process rights. Rather, the

claims rely entirely on state law, (ECF No. 1-1, at 1–2), and the last reasoned state court decision

on this matter only addressed issues of state law. Smith, 2009 WL 47392, at *3–6.

A federal habeas court may not “reexamine state-court determinations on state-law

questions.” Estelle, 502 U.S. at 68. Accordingly, as these claims relate only to alleged violations

of state law, Petitioner is not entitled to habeas relief on these claims. See McKinnon v. Lowery,

No. 13-7322, 2017 WL 6372236, at *6 (D.N.J. Dec. 13, 2017); Amodio v. Warren, No. 13-4355,

2017 WL 5998757, at *7–8 (D.N.J. Dec. 4, 2017).

B. Procedurally Defaulted Claim

Next, the Court will address Ground Seven, Petitioner’s claim that he “was denied his right

to a fair and impartial [trial], when the trial court had ex parte post-conviction communication with

the jury.” (ECF No. 1-1, at 15.) Petitioner relies on the Supreme Court of New Jersey’s decision

in Davis v. Husain, 106 A.3d 438, 447 (N.J. 2014), in which that court forbade “ex parte post-

verdict communications between a trial judge and jurors.” Respondent argues that this claim is

procedurally defaulted, and that in any event, it lacks merit. (ECF No. 7, at 20–22.)

“The procedural default doctrine is an important corollary to the exhaustion requirement,

which requires state prisoners to exhaust available state remedies before presenting a claim to a

federal habeas court.” See, e.g., Fowlkes v. Att’y Gen. of New Jersey, No. 21-7734, 2021 WL

4129489, at *2 (D.N.J. Sept. 10, 2021) (citing Davila v. Davis, 137 S. Ct. 2058, 2064 (2017)).

Among other scenarios, the procedural default doctrine bars federal habeas claims when a prisoner

fails to exhaust and “the court to which the petitioner would be required to present his claims in

order to meet the exhaustion requirement would now find the claims procedurally barred.”

Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).

This procedural bar applies only when the state rule is “independent of the federal question

[presented] and adequate to support the judgment.” Leyva v. Williams, 504 F.3d 357, 365–66 (3d

Cir. 2007); McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999). Federal courts may not

excuse a procedural default and grant relief unless: (1) the petitioner establishes “cause” to excuse

the default and actual “prejudice” as a result of the alleged violation of federal law; or (2) the

prisoner demonstrates that failure to consider the claim will result in a fundamental “miscarriage

of justice.” Leyva, 504 F.3d at 366; see also Coleman, 501 U.S. at 750.

A court may, however, elect to deny a procedurally defaulted claim on the merits under 28

U.S.C. § 2254(b)(2). Osorio v. Anderson, No. 17-1536, 2020 WL 206000, at *4 (D.N.J. Jan. 14,

2020) (citing Taylor v. Horn, 504 F.3d 416, 427 (3d Cir. 2007); Bronshtein v. Horn, 404 F.3d 700,

728 (3d Cir. 2005)). In that scenario, if a claim did not receive an adjudication from the state

courts on the merits, a federal habeas court must review the claim de novo. See Thomas v. Horn,

570 F.3d 105, 113 (3d Cir. 2009).

In this case, the PCR court held that Petitioner was procedurally barred from raising this

claim under New Jersey Court Rule 3:22-4, because Petitioner could have, but failed, to raise it on

direct appeal. (ECF No. 7-51, at 7.) It is well settled that New Jersey Court Rule 3:22-4 provides

an independent and adequate state ground to procedurally bar a petitioner’s claims. See Cabrera

v. Barbo, 175 F.3d 307, 314 (3d Cir. 1999). As a result, Ground Seven of the Petition is

procedurally defaulted. The Petition does not assert cause and prejudice or that a fundamental

miscarriage of justice occurred to excuse the default. Moreover, although he had an opportunity

to do so, Petitioner did not file a reply. Consequently, the Court will dismiss Ground Seven as

procedurally defaulted.

That said, the Court would alternatively deny this claim on the merits. As mentioned

above, Petitioner relies on the Davis case, in which the Supreme Court of New Jersey forbade trial

judges from engaging in post-conviction, ex-parte conversations with jurors. Davis, 106 A.3d at

447. The court in Davis arrived at its conclusion based on the New Jersey Constitution, the State’s

code of judicial conduct, and the State’s court rules. Id. at 447–48.

Unlike the State of New Jersey, there is no federal prohibition on post-conviction, ex parte

communications with jurors, and the Supreme Court of the United States has not spoken on the

issue. Once again, “[c]laims based on errors of state law are not cognizable on federal habeas

review, and federal courts cannot re-examine state court determinations on state law issues.” See,

e.g., Pennington v. Hughes, No. 13-2692, 2016 WL 4992092, at *4 (D.N.J. Sept. 19, 2016)

(internal quotation marks omitted); see also Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (“We

have stated many times that federal habeas corpus relief does not lie for errors of state law.”

(internal quotation marks omitted)). Accordingly, as this Court has no authority to review

Petitioner’s state law Davis claim, the Court will alternatively deny Ground Seven on the merits.

C. Juror Bias Claim

Under Ground Six, Petitioner contends that he was denied a fair trial because two of the

jurors failed to disclose during voir dire their pre-trial knowledge of Petitioner and the crime. (ECF

No. 1-1, at 13.) The last reasoned state court decision with respect to this claim is the Appellate

Division’s opinion on PCR appeal, which affirmed for substantially the same reasons as set forth

in the PCR court’s opinion. The PCR court stated, in relevant part:

An accused is constitutionally guaranteed the right to trial by an

impartial jury. State v. Fortin, 178 NJ. 540, 575 (2004); State v.

Tinnes, 379 N.J. Super. 179, 183 (App. Div. 2005). “Jury selection

is ‘an integral part of the process to which every criminal defendant

is entitled,’ and necessarily requires ‘a thorough voir dire’ which

presupposes that prospective jurors will provide complete and

accurate responses during voir dire.” State v. Bianco, 391 N.J.

Super. 509, 517 (2007) (internal citations omitted). The standards

that govern the conducting of jury selection were revamped by our

Supreme Court wherein the importance of a meaningful voir dire

was emphasized:

The purpose of jury selection is to obtain a jury that can

decide the case without bias against any of the involved

parties, that will evaluate the evidence with an open mind,

and that will apply the law as instructed by the judge. Voir

dire practices must be geared to eliciting meaningful

information from prospective Jurors so those with a real

potential for bias can be excused.

Standards for Jury Selection, (promulgated by Directive# 21-06 on

December 11, 2006) at pg 1.

Where the parties’ ability to exercise preemptory challenges is

infringed based on misinformation supplied to court by prospective

jurors, then it may be said that there has been a deprivation of the

parties right to a fair trial. State v. Thompson, 142 N.J. Super. 274,

282 (App. Div. 1976). However, the failure of voir dire to produce

accurate information does not compel the granting of a new trial in

all cases. Bianco, 391 N.J. Super. at 518. The Court has held that it

is the juror’s failure to disclose material that is “potentially

prejudicial” to the defendant that is critical. State v. Scher, 278 NJ.

Super. 249, 264 (App. Div. 1994).

The petitioner has alleged that two jurors, Tarice Brown and Keith

Wescott, had pre-trial knowledge of details of the case due to

personal relationships with friends and/or family of the petitioner. It

is alleged that Tarice Brown was the supervisor of Tiana Toombs,

the fiancé of the petitioner at the time of trial, at Harrah’s Casino. It

is further alleged Tarice Brown was a friend of Tamarra Trapp, the

first cousin of co-defendant Ivy Moore. Lastly, it is alleged that

Tarice Brown was a friend and co-worker of Raymond Calderon, a

friend and co-worker of Ms. Toombs.

The petitioner states the juror Keith Wescott worked with the

husband of the petitioner’s aunt, Laura Smith, at the Atlantic City

Medical Hospital, and it is alleged that Keith Wescott was friends

with Laura Smith, her husband, and their daughter, Rahtiesha Smith.

Following oral argument, PCR counsel presented the Court with

Investigation Reports from a private investigator to authenticate the

petitioner’s claim. The private investigator interviewed and

obtained statements from Tiana Toombs, Raymond Calderon, Laura

Smith, and Rahtiesha Smith. Tiana Toombs and Raymond Calderon

corroborated the petitioner’s assertion that juror Tarice Brown was

the supervisor of Toombs and Calderon at Harrah’s during 2003 and

2004; however, Ms. Brown was not employed at Harrah’s at the

time of the trial in 2006. Ms. Toombs further proclaimed that she

spoke in depth with Ms. Brown regarding the petitioner’s case.

Laura Smith and Rahtiesha Smith corroborated the Petitioner’s

assertion that juror Kieth Wescott did in fact work with Rahtiesha’s

father at the Atlantic City Medical Hospital. Additionally,

Rahtiesha told the investigator that she had spoke[n] with Mr.

Wescott about the case prior to the commencement of trial, that Mr.

Wescott had read news articles about the case, and that she

overheard Mr. Wescott discussing the case with other people outside

the courtroom.

After reviewing the petitioner’s claim and the Investigation Reports,

the Court holds that the petitioner has not established a prima facie

case and is not entitled to an evidentiary hearing on the matter. The

petitioner has failed to demonstrate how he was prejudiced by these

relationships.

It is only claimed that these particular jurors were acquaintances

with persons who knew the petitioner, not the petitioner himself or

any individuals involved in the case, i.e., attorneys or witnesses.

Ms. Toombs statement that she had discussed the case with juror

Brown appears to be self-serving and does not specify any details of

the conversations. Additionally, Ms. Toombs and Ms. Brown had

only a professional relationship which ceased nearly two years prior

to the commencement of trial.

Likewise, Rahtiesha Smith’s allegations also have the appearance of

being self-serving. She claims to have overheard Mr. Wescott

discussing the trial with other people outside the courtroom, but

does not provide any details as to what she overheard. Furthermore,

her statement that Mr. Wescott expressed that he had read news

about the case is in direct conflict with Mr. Wescott’s response

during voir dire questioning:

THE COURT: Sir, do you know any of the attorneys,

witnesses or either defendant in this case?

MR. WESCOTT: No.

THE COURT: Have you heard or read anything

about this case?

MR. WESCOTT: No.

. . . Moreover, Rahtiesha Smith indicated that Mr. Wescott was

unaware she was in fact related to the petitioner.

The petitioner has not offered the Court any specific facts showing

that either Ms. Brown or Mr. Wescott had any sort of bias against

the petitioner nor has the petitioner shown precisely how their

participation as jurors prejudiced him at trial. The Court cannot find

that the petitioner was denied a fair trial by impartial jurors merely

because two of the jurors were professional acquaintances with

members of the petitioner’s family.

(ECF No. 7-51, at 10–13.) Here, the state court’s decision was not an unreasonable application of

clearly established federal law, and Ground Six does not specifically raise any federal

constitutional issues.

To the extent Petitioner alleges that the two jurors were biased and violated his rights under

the Sixth and Fourteenth Amendments, the Court disagrees. The Sixth Amendment affords

criminal defendants the right to a trial “by an impartial jury.” United States v. Mitchell, 690 F.3d

137, 141 (3d Cir. 2012) (quoting U.S. Const. amend. VI). “The right to an impartial jury is

applicable to the States through the Fourteenth Amendment.” Royal v. Balicki, No. 07-5234, 2009

WL 137335, at *10 (D.N.J. Jan. 20, 2009) (citing Morgan v. Illinois, 504 U.S. 719, 726 (1992)).

The Supreme Court case on this issue is Smith v. Phillips, 255 U.S. 209 (1982). In that

case, the Court explained that “the remedy for allegations of juror partiality is a hearing in which

the defendant has the opportunity to prove actual bias.” Id. at 215. The Court also held that post-

verdict hearings are sufficient for this purpose because “due process does not require a new trial

every time a juror has been placed in a potentially compromising situation.” United States v.

Mitchell, 690 F.3d 137, 143 (3d Cir. 2012) (quoting Smith, 255 U.S. at 215).

In cases involving implied bias, the test is an objective one, and “focuses on whether an

average person in the position of the juror in controversy would be prejudiced.” Id. at 142 (internal

quotation marks omitted). Courts should “look to the facts underlying the alleged bias to determine

if they would create in a juror an inherent risk of substantial emotional involvement.” Id. (citing

United States v. Russell, 595 F.3d 633, 641–42 (6th Cir. 2010); Solis v. Cockrell, 342 F.3d 392,

399 (5th Cir. 2003)). A juror’s personal assessment of impartiality is “irrelevant for the purpose

of the test.” Id. (citing United States v. Torres, 128 F.3d 38, 43 (2d Cir.1997)). “Because the right

to an impartial jury is constitutive of the right to a fair trial, courts must resolve any doubts

regarding bias against the juror.” Id. (internal quotation marks omitted).

In the present case, although the PCR court relied on state law in its decision, the record

shows that the PCR court complied with the requirements of Smith. In holding a PCR hearing,

with oral argument, the PCR court provided Petitioner with an opportunity to present evidence of

bias, actual or otherwise, and the court considered the relevant affidavits and investigative reports.

(ECF No. 7-51, at 10–13.)

Based on the record, the PCR court’s determination of the facts was reasonable. The PCR

court emphasized that Petitioner failed to offer “any specific facts showing that either Ms. Brown

or Mr. Wescott had any sort of bias against the petitioner” and that he failed to articulate “precisely

how their participation as jurors prejudiced him at trial.” Id. Consequently, the PCR court

reasonably concluded that Petitioner failed to demonstrate that he “was denied a fair trial . . .

merely because two of the jurors were professional acquaintances with members of . . . petitioner’s

family.” (Id. at 12–13.)

This Court must presume that that these factual determinations were correct and finds that

Petitioner has failed to rebut that presumption by clear and convincing evidence. 28 U.S.C. §

2254(e)(1); see Miller-El, 545 U.S. at 240. Indeed, Petitioner’s arguments in Ground Six fail to

explain how he was prejudiced or how he believes the two jurors were biased against him.

For all of those reasons, Petitioner has failed to show that the state court’s decision was

based on an unreasonable application of clearly established federal law or that its decision was

based on an unreasonable determination of the facts. Accordingly, Petitioner is not entitled to

habeas relief under Ground Six.

D. Jury Coercion Claim

Turning then to Ground Three, Petitioner argues that “the trial court rushed the jury to

render a verdict [with] the possibility of weekend deliberations.” (ECF No. 1-1, at 5.) The Court

construes this argument as alleging that the trial judge engaged in jury coercion. The last reasoned

state court decision with respect to this claim is the Appellate Division’s opinion on direct appeal:

Defendant confines his appeal from the conviction to a single claim,

which pertains only to the judge’s response to the possibility of the

jury being required to deliberate over the weekend, which is set forth

in Point III.

After eight days of testimony, the jury began deliberating at 9:00

a.m. on Wednesday, February 22, 2006. Shortly before 4:30 p.m.,

the jury sent a note to the judge that read, “for now we are hopelessly

deadlocked.” The words “for now” were crossed out. Upon

receiving the note, the judge proposed to give the jury the instruction

approved by the Court in State v. Czachor, 82 N.J. 392, 40506 n. 1,

413 A.2d 593 (1980). At the request of defendant, the judge also

instructed the jury that in light of the “number of defendants, the

number and nature, and the seriousness of the charges, against each

defendant, it is not possible for [the court] to conclude that this jury

has exhausted all possibility of reaching verdicts that these charges

present.” The judge then gave the proposed instruction, and

defendant interposed no objection.

The next day, February 23, was a Thursday. At 4:30 p.m., the jurors

sent a note to the judge stating they were “finally making progress”

and asking to retire for the weekend. The judge excused the jury for

the day, but instructed them to return the next morning. Upon

hearing that instruction, juror number fifteen spontaneously asked

the judge whether the jurors would be required to deliberate over the

weekend if they were unable to reach a verdict by the end of the next

day, which was a Friday. The judge responded, “we will address that

late tomorrow afternoon.” Defense counsel, other than commenting

that he had “a zillion appointments” over the weekend, did not make

any objection to the judge’s response to the juror’s inquiry about the

possibility of deliberating over the weekend. There was no further

discussion of that subject by the judge or jury. In the early afternoon

of the next day, Friday, February 24, the jury returned its verdict,

convicting defendant and acquitting Hendricks.

In light of these events, defendant argues “the court rushed the jury

to render a verdict and the possibility of weekend deliberations was

coer[c]ive [.] Therefore, defendant should be granted a new trial.”

Defendant relies on State v. Figueroa, 190 N.J. 219, 24042, 919

A.2d 826 (2007), in support of his contention that the judge’s non-

committal remark concerning the possibility of weekend

deliberations caused the jury to return a guilty verdict on Friday

afternoon that it would not have otherwise rendered. Because

defendant did not object to the judge’s response to the juror’s

inquiry, we review this claim under the plain error standard. We will

not reverse unless any such error was “clearly capable of producing

an unjust result.” R. 2:102.

We agree with the State’s argument that Figueroa is

distinguishable for two reasons. First, in Figueroa, the trial judge

failed to remind the jurors that they should not “surrender their

honest convictions” merely to return a verdict. 190 N.J. at 227, 919

A.2d 826. Second, in Figueroa, the judge actually informed the

jurors that they would be required to deliberate over the weekend if

they did not return a verdict before then. Ibid.

Moreover, after the inquiry from juror number fifteen on Thursday

afternoon, the jury never communicated any further with the judge

about weekend deliberations. To conclude on this record that the

jury returned a guilty verdict for fear of being required to deliberate

over the weekend would be to engage in unwarranted speculation.

We decline to do so.

Smith, 2009 WL 47392, at *2–3.

Here, the state court’s decision was not an unreasonable application of clearly established

federal law and its decision was based on a reasonable determination of the facts. “The clearly

established law relevant to . . . [jury coercion] is sparse.” Wong v. Smith, 562 U.S. 1021 (2010)

(Alito, J., Dissenting); Camel v. Att’y Gen. of New Jersey, No. 17-5298, 2020 WL 6042479, at *13

(D.N.J. Oct. 13, 2020). The only Supreme Court case that has addressed “the constitutional rule

against coercive jury instructions” is Lowenfield v. Phelps, 484 U.S. 231 (1988). Wong, 562 U.S.

at 1021. In Lowenfield, the Court held that coercive jury instructions are unconstitutional, and that

courts must judge coerciveness based on the totality of the circumstances. Lowenfield, 484 U.S. at

237–241.

With those principles in mind, it appears that the Appellate Division considered all of the

relevant circumstances before concluding that the trial judge had not coerced the jury. Smith, 2009

WL 47392, at *2–3. More specifically, the Appellate Division considered the contents and nature

of the interaction at issue, in which “juror number fifteen spontaneously asked the judge whether

the jurors would be required to deliberate over the weekend if they were unable to reach a verdict

by the end of the next day, which was a Friday,” to which the trial judge responded, “we will

address that late tomorrow afternoon.” Id. at *3. The Appellate Division also considered: (1) the

events before and after the interaction at issue; (2) the fact that the trial judge did not actually state

that the jurors would be required to deliberate over the weekend if they did not return a verdict

before then; (3) the otherwise proper jury instructions; and (4) the lack of objection from defense

counsel. Id. at *2–3.

For all of those reasons, Petitioner has failed to show that the state court’s decision was

based on an unreasonable application of clearly established federal law or that its decision was

based on an unreasonable determination of the facts. Accordingly, Petitioner is not entitled to

habeas relief on Ground Three.

E. Ineffective Assistance of Counsel Claims

Next, Petitioner raises multiple claims of ineffective assistance of counsel. The Sixth

Amendment provides, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have

the Assistance of Counsel for his defense.” U.S. Cont. amend. VI. The Supreme Court has

recognized that “the right to counsel is the right to the effective assistance of counsel.” Strickland

v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14

(1970)). To prevail on a claim of ineffective assistance of counsel, a petitioner must establish that:

1) counsel’s performance was deficient, and 2) that the deficient performance prejudiced the

petitioner. See id. at 687.

The first Strickland prong is an objective standard which requires the petitioner to show

that counsel made errors “so serious that counsel was not functioning as the ‘counsel’ guaranteed

by the Sixth Amendment.” Id. at 687. In evaluating whether counsel was deficient, “the proper

standard for attorney performance is that of reasonably effective assistance.” Id. The Constitution

requires a fair trial, not some higher quality of legal representation. See id. at 688–89. Thus, the

standard is highly deferential, and courts presume that counsel has “rendered adequate assistance”

and to have used “reasonable professional judgment.” Woods v. Etherton, 136 S. Ct. 1149, 1151

(2016).

The second prong of the Strickland test requires that a petitioner demonstrate that “there is

a reasonable probability, but for counsel’s unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a probability sufficient to undermine confidence

in the outcome.” Strickland, 466 U.S. at 694. The petitioner bears the burden of demonstrating

how he was prejudiced. Thus, where a petition contains “no factual matter . . . and only provides

unadorned legal conclusion[s] . . . without supporting factual allegations, that petition is

insufficient to warrant an evidentiary hearing, and the petitioner has not shown his entitlement to

habeas relief.” Judge v. United States, 119 F. Supp. 3d 270, 280–81 (D.N.J. 2015) (internal

quotation marks omitted) (citations omitted).

A court need not address both components of the ineffective assistance inquiry. Strickland,

466 U.S. at 697. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of

sufficient prejudice” courts should follow that course. Id. Finally, even if a petitioner can establish

both prongs of Strickland, a habeas corpus petition fails unless the petitioner can demonstrate that

the state court applied Strickland in an “objectively unreasonable manner.” See Woodford v.

Viscotti, 537 U.S. 19, 24–25 (2002); see also 28 U.S.C. § 2254(d)(1).

1. Ineffective Assistance of Counsel for Failing to Move for a Mistrial

First, under Ground Four, Petitioner contends that trial counsel was ineffective “because

he failed to move for a mistrial after the jury indicated that it was ‘hopelessly deadlocked.’” (ECF

No. 1-1, at 8.) Petitioner offers no further details. The last reasoned state court decision with

respect to this claim is the Appellate Division’s opinion on PCR appeal, which affirmed for

substantially the same reasons as set forth in the PCR court’s opinion:

“The decision to grant or deny a mistrial is entrusted to the sound

discretion of the trial court, which should grant a mistrial only to

prevent an obvious failure of justice.” State v. Harvey, 151 N.J. 117,

205 (1997) (citing State v. DiRienzo, 53 N.J. 360, 383 (1969); State

v. Rechtschaffer, 70 N.J. 395, 406 (1976)). While it has been held

that when the jury indicates it is deadlocked, the courts should

inquire of the jury whether further deliberations will likely result in

a verdict. State v. Valenzuela, 136 N.J. 458, 468-69 (1994), it is not

always necessary to do so. State v. Figueroa, 190 N.J. 219, 240

(2007). “When a jury communicates a deadlock, trial courts ‘should

be guided in the exercise of sound discretion by such factors as the

length and complexity of trial and the quality and duration of the

jury’s deliberations.’” State v. Ross, 218 N.J. 130, 144 (2014)

(quoting State v. Czachor, 82 N.J. 392, 407 (1980)).

In the instant matter, trial concluded and the jury began deliberations

on February 22, 2006. At 4:24 p.m. that same day, the trial judge

received a note from the jury that read, “For now we are hopelessly

deadlocked,” in which the words “For now” were scribbled through.

The trial judge recommended:

[G]iven that communication, I administer the further jury

deliberation charge, send them home for the evening, and

direct that they return tomorrow morning at nine o’clock,

with the general indication that given the number of charges,

the number of Defendants and the issues, in this lengthy

record, that I am not able to find, at this point, and that they

have spent a reasonably sufficient time to conclude that they

are beyond any hope of reaching verdicts. I’ll hear you.

(17T: 14:1-8). At this point, all counselors agreed that it would be

beneficial to have the jury return the next day to continue

deliberations. The trial judge further reiterated his position:

[W]hile there is no magic number, in terms of enough time

spent, that a single day, less a half hour this morning, less an

hour at lunch, less two other short breaks of ten to [fifteen]

minutes a piece, is not sufficient time for any jury to

thoroughly, properly consider the issues before it and reach

a conclusion that it is hopelessly deadlocked.

(17T: 14:25-15:5). This Court is in agreement with the trial judge

that due to the density of issues involved in the case, one day of

deliberations was too brief a time for a jury to conclude it is

“hopelessly deadlocked.”

Taking into account how clearly the trial judge articulated his

position that the jury had not had sufficient time to deliberate, it is

highly likely a motion requesting a mistrial would have ultimately

been unsuccessful. The Court cannot fault the trial attorney, much

less call his performance deficient, for not requesting a mistrial. It

seems quite apparent that the trial judge would have denied the

request given the relatively brief time the jury had been deliberating.

Considering the standard of appellate review on a trial judge’s

decision to deny a motion for mistrial, not preserving the issue for

appeal was not ineffective assistance on behalf of trial counsel. See

State v. Labrutto, 114 N.J. 187, 207 (1989) (an appellate court

should not reverse a trial court’s denial of a mistrial motion absent

a clear showing that the defendant suffered actual harm or that the

court otherwise abused its discretion.)

(ECF No. 7-51, at 15–16 (alterations in original).) Here, Petitioner has not shown that the state

court unreasonably applied either of the Strickland prongs. Once again, the Petition offers no

further elaboration on this point, and Petitioner did not file a reply.

The Appellate Division reasonably applied the first prong of Strickland, by concluding that

trial counsel’s performance was not deficient. The court considered the trial judge’s

representations that he believed that “one day of deliberations was too brief a time for a jury to

conclude it [was] ‘hopelessly deadlocked,’” given the number of defendants, the length of the

record, the number of charges, and general complexity of the case. (ECF No. 7-51, at 15–16.)

After comparing those express findings with the standard for granting a mistrial, i.e., the

length and complexity of trial, the quality and duration of the jury’s deliberations, and whether

further deliberations would likely result in a verdict, the Appellate Division reasonably held that

it was “highly likely,” that “requesting a mistrial would have ultimately been unsuccessful.” (Id.

at 16). In turn, the Appellate Division properly applied Strickland, when it held that counsel was

not deficient for failing to bring a meritless motion. See Werts v. Vaughn, 228 F.3d 178, 203 (3d

Cir. 2000) (“[C]ounsel cannot be deemed ineffective for failing to raise a meritless claim.”)

(citation omitted).

Additionally, even if counsel’s actions fell below an objective standard of reasonableness,

Petitioner has not demonstrated Strickland prejudice. Although the Appellate Division did not

make an express finding on prejudice, the court did conclude that “[i]t seems quite apparent that

the trial judge would have denied the request [for a mistrial] given the relatively brief time the jury

had been deliberating.” (ECF No. 7-51, at 16.) As a result, even if counsel were deficient in failing

to file a motion for a mistrial, Petitioner would not have suffered prejudice, because the trial judge

would have denied the motion. Accordingly, Petitioner fails to show that the Appellate Division

unreasonably applied either prong of Strickland; and he is not entitled to habeas relief on Ground

Four.

2. Ineffective Assistance of Counsel for Failing to Move to Dismiss the Indictment

Next, under Ground Five (A), Petitioner contends that due to a defect before the grand jury,

trial counsel was ineffective for failing to move for dismissal of the indictment. Petitioner

maintains that the State’s sole witness before the grand jury, Sergeant David Santiago, “tainted”

the proceedings. (ECF No. 1-1, at 9–10.) According to Petitioner, Sergeant Santiago

mischaracterized his interview with Yaraima Garabato, an employee of the bar. (Id.) Petitioner

contends that Ms. Garabato never stated that two people announced their intent to rob the bar, but

Sergeant Santiago had said the opposite. (Id.) Petitioner offers no further elaboration and did not

provide a copy of, or citation for, the interview at issue. (Id.) The PCR court and the Appellate

Division on PCR appeal summarily denied this claim. (ECF No. 7-51, at 17); Smith, 2017 WL

5494622, at *2. Nevertheless, AEDPA deference applies even where there has been a summary

denial. Cullen, 563 U.S. at 187.

Under our jurisprudence, because there is no federal right to a state criminal grand jury

process, defects in a grand jury proceeding that result in an indictment are not generally

challengeable in habeas cases absent some other basis for finding a constitutional violation. E.g.,

Wainwright v. Goode, 464 U.S. 78, 86 (1983); Yough v. Lord, No. 19-601, 2020 WL 6689854, at

*9 (D.N.J. Nov. 13, 2020); Potter v. Att’y Gen. of New Jersey, No. 15-8784, 2018 WL 3201799,

at *7 (D.N.J. June 29, 2018). Further, under most circumstances, “a subsequent guilty verdict

from a petit jury” will render harmless any alleged defect before the grand jury. Yough, 2020 WL

6689854, at *9; see also United States v. Merchanik, 475 U.S. 66, 72–73 (1986); United States v.

Console, 13 F.3d 641, 672 (3d Cir. 1993) (finding that with the exception of a claim of racial

discrimination in the selection of grand jurors, a “petit jury’s guilty verdict render[s] any

prosecutorial misconduct before the indicting grand jury harmless”).

In the present case, assuming arguendo that Sergeant Santiago had presented false or

misleading testimony to the grand jury, the petit jury’s guilty verdict “cured any defect in

the grand jury proceeding and rendered any misconduct harmless.” United States v. Solomon, No.

05-0385, 2013 WL 869648, at *7 (W.D. Pa. Mar. 7, 2013) (quoting United States v. Muhammad,

336 F. App’x 188, 193 (3d Cir. 2009)). As the Supreme Court explained in Merchanik, even if

prosecutorial misconduct affected the grand jury’s decision to indict a defendant:

the petit jury’s subsequent guilty verdict means not only that there

was probable cause to believe that the defendants were guilty as

charged, but also that they are in fact guilty as charged beyond a

reasonable doubt. Measured by the petit jury’s verdict, then, any

error in the grand jury proceeding connected with the charging

decision was harmless beyond a reasonable doubt.

Merchanik, 475 U.S. at 70.

In the present case, the evidence produced at trial and the petit jury’s verdict, cured any

alleged defect stemming from Sergeant Santiago’s grand jury testimony. See Potter, 2018 WL

3201799, at *7 (quoting Lafler v. Cooper, 566 U.S. 156, 165 (2012)) (“To determine whether ‘an

otherwise fair trial remedies errors not occurring at the trial itself . . . . [courts must inquire] whether

the trial cured the particular error at issue.’”). In particular, the record shows that Ms. Garabato

testified at trial, and was cross-examined. (ECF No. 7-9, at 102–21.) “Thus, any potential errors

related to [Sergeant Santiago’s] hearsay testimony during the grand jury proceeding were cured at

the subsequent trial, which resulted in a guilty verdict.” Potter, 2018 WL 3201799, at *7.

Returning then to the Strickland analysis, even assuming that counsel was deficient for

failing to challenge the indictment, Petitioner cannot demonstrate that he suffered prejudice. In

other words, because the petit jury’s verdict rendered the alleged grand jury error harmless,

Petitioner cannot show that he suffered prejudice under Strickland. As a result, the state court

could have summarily denied this claim after reasonably concluding that Petitioner failed to

establish Strickland prejudice.

For those reasons, Petitioner has failed to show that the state court’s decision was based on

an unreasonable application of clearly established federal law. Accordingly, Petitioner is not

entitled to habeas relief on Ground Five (A).

3. Ineffective Assistance of Counsel for Failing to Move for Acquittal of Counts II

and III

Next, as to Ground Five (B), Petitioner contends that trial counsel was ineffective for

failing to move for acquittal of Counts II and III. (ECF No. 1-1, at 11.) With regard to those

Counts, Petitioner argues that the State failed to present evidence that he committed or attempted

to commit robbery, i.e., that the State failed to prove that he “exercised unlawful control over

money.” (Id. at 12.) The PCR court and the Appellate Division on PCR appeal summarily denied

this claim. (ECF No. 7-51, at 17); Smith, 2017 WL 5494622, at *2. Once again, AEDPA deference

applies even where there has been a summary denial. Cullen, 563 U.S. at 187.

The clearly established federal law on this point is Jackson v. Virginia, 443 U.S. 307, 319

(1979). In Jackson, the Supreme Court held that when considering a sufficiency of the evidence

claim, “the relevant question is whether, after reviewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Sullivan v. Cuyler, 723 F.2d 1077, 1083–84 (3d Cir. 1983) (citing

Jackson, 443 U.S. at 319)). The same standard applies to post-verdict motions for judgment of

acquittal. see United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005).

In New Jersey, in addition to the element of force, robbery requires that a defendant use

force “in the course of committing a theft,” which includes “an attempt to commit theft.” N.J. Stat.

§ 2C:15-1(a). The statute defines theft as when a person “unlawfully takes, or exercises unlawful

control over, movable property of another with purpose to deprive him thereof.” N.J. Stat. § 2C:20-

3(a).

In support of his argument, Petitioner highlights that no money was missing from the

register, which had remained unopened.2 (ECF No. 1-1, at 11–12.) Petitioner also alleges, in his

words, that Ms. Garabato admitted that Petitioner and Mr. Sayers “never made any remarks

concerning their intent to rob the Maritime Tavern.” (Id.) Additionally, Petitioner takes issue with

the testimony of John Allen, a patron of the bar, who had testified that Petitioner announced his

intent to commit a robbery upon entering the bar. Petitioner emphasizes that Mr. Allen had not

mentioned the announcement at his initial interview with the police. (Id. at 12.)

Under Jackson, however, in the light most favorable to the prosecution, the jury could have

simply believed Mr. Allen’s testimony at trial that when Petitioner and Mr. Sayers entered the bar,

Petitioner announced, “This is a fucking holdup. Put your fucking money on the bar.” (ECF No.

7-10, at 35:5–6.) Petitioner emphasizes that Mr. Allen did not mention that announcement in his

initial statement to the police. On cross-examination, however, Mr. Allen testified that there was

“[n]o particular reason,” he left the announcement out, but repeated the two sentences verbatim,

and added that those were Petitioner’s “exact words.” (ECF No. 7-10, at 73:21 to 75:12.)

Mr. Allen testified, after all, that he was in the middle of the crossfire, and was conversating

with the bartender, who had returned fire at Petitioner. (ECF No. 7-10, at 32:24 to 39:22.) From

that vantage point, Mr. Allen was able to recount the shooting with remarkable detail. (Id.) In

contrast, Ms. Garabato testified that she was cleaning approximately sixteen feet away from

Petitioner, and a customer had pulled her down. (ECF No. 7-9, at 119:12 to 121:9.) Nor was Ms.

Garabato’s testimony necessarily in conflict, as she stated on cross-examination that she could not

remember Petitioner or Mr. Sayers saying anything at all. (Id. at 116:1–13.) A rational trier of fact

2 It is likely that the register remained unopened because rather than comply with Petitioner’s

request to surrender the money, the bartender drew his firearm, and exchanged gunfire with

Petitioner. Smith, 2009 WL 47392, at *1.

could have found Mr. Allen to be a credible witness and believed his version of the events over

any other.

As a result, under Jackson, assuming that the jury believed Mr. Allen, his testimony was

sufficient to establish beyond a reasonable doubt that Petitioner exercised or attempted to exercise

unlawful control over money. Consequently, had trial counsel filed a motion for judgment of

acquittal based on the sufficiency of the evidence on Counts II and III, counsel would not have

been successful.

In summarily denying this claim, the state court could have reasonably concluded that

counsel was not deficient for failing to bring a meritless motion. See Werts, 228 F.3d at 178.

Similarly, even if counsel were somehow deficient, the state court could have reasonably held that

Petitioner would not have suffered prejudice because the trial judge would have denied the motion.

As a result, the state court could have reasonably denied Petitioner’s claim under either Strickland

prong, or both. Accordingly, Petitioner is not entitled to habeas relief on this claim.

F. Ineffective Assistance of Appellate Counsel

Finally, under Ground Eight, Petitioner contends, with no further elaboration, that his

appellate counsel was ineffective “due to her substandard performance.” (ECF No. 1-1, at 16.) “A

criminal defendant has a right to the effective assistance of appellate counsel on the first appeal as

of right.” United States v. Scripps, 961 F.3d 626, 632 (3d Cir. 2020). To assess the performance

of appellate counsel, courts apply the same two-prong test set forth in Strickland. Id.

As an initial matter, the Court finds that this Ground fails to comply with Habeas Rule 2(c).

Pursuant to that Rule, a § 2254 petition must “specify all the grounds for relief available to the

petitioner [and] state the facts supporting each ground.” Petitions which provide no more than

“vague and conclusory grounds for habeas relief are subject to summary dismissal” under the

rule. Anderson v. Pennsylvania Attorney General, 82 F. App’x 745, 749 (3d Cir. 2003); see

also United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000); United States v. Dawson, 857

F.2d 923, 928 (3d Cir. 1988). Here, Petitioner fails to explain how he believes appellate counsel

was deficient or how those deficiencies prejudiced Petitioner. Consequently, the Court will

summarily deny Ground Eight as vague and conclusory under Habeas Rule 2.

That said, even if the Court were to incorporate Petitioner’s arguments on this issue from

his pro se PCR brief, (ECF No. 7-42, at 25–27), the Court would alternatively deny the claim on

the merits. The last reasoned state court decision with respect to this claim is the Appellate

Division’s opinion on PCR appeal, which affirmed for substantially the same reasons as set forth

in the PCR court’s opinion:

[I]t is argued that appellate counsel failed to provide effective

assistance of counsel by failing to raise the following issues on

direct appeal: the trial court’s failure to charge the jury on the lesser

included offense of attempted robbery; the trial court’s refusal to

permit introduction of the full transcript of the 911 call;

prosecutorial misconduct; issues pertaining to the jury instructions;

and, issue that the conspiracy lacked any over[t] act. These issues

are raised in the brief but are unsupported by argument or proof.

However, it is claimed, although not certified to, that the petitioner

raised these issues to his appellate counsel who declined to address

them. Due to the close nature of the jury’s decision, as evinced by

the jury’s initial deadlock, the petitioner claims that he would be

able to show prejudice.

The petitioner categorically lists all the alleged deficiencies without

setting forth any supporting argument. For example, the petitioner

does not set forth why the lesser included offense of attempted

robbery should have been charged or how the jury instruction were

insufficient. Without an argument in support thereof, these proposed

deficiencies in counsel’s performance are nothing more than bald

assertions and do not amount to a prima facie case in accordance

with Strickland.

To conclude his brief in support of the petitioner’s petition, PCR

counsel submits what are labeled “Additional Issues” for the Court’s

consideration. Similarly, these additional issues are unsupported by

an argument and are found to be entirely without merit.

(ECF No. 7-51, at 15–16.)

Here, the Appellate Division’s denial of this claim was not an unreasonable application of

Strickland. The Appellate Division emphasized that Petitioner listed the ways he believed that

counsel was deficient but failed to provide any arguments or proof to establish those deficiencies.

In turn, the Appellate Division reasonably applied Strickland, when it held that Petitioner’s bald

assertions were insufficient to establish a prima facie case of ineffective assistance of appellate

counsel. Accordingly, Petitioner is not entitled to habeas relief on this claim.

G. Certificate of Appealability

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

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

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

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

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

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

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

(2003).

“When [a] district court denies a habeas petition on procedural grounds without reaching

the prisoner’s underlying constitutional claim,” a certificate of appealability “should issue when

the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states

a valid claim of the denial of a constitutional right and . . . whether the district court was correct in

its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Applying those standards

here, this Court finds that a certificate of appealability shall not issue.

IV. CONCLUSION

For the foregoing reasons, the Court will dismiss Ground Seven as procedurally defaulted,

alternatively deny Ground Seven on the merits, deny the remainder of the Petition, and will not

issue a certificate of appealability. An appropriate Order follows.

DATED: May 2, 2022

/s/ Robert B. Kugler____

ROBERT B. KUGLER

United States District Judge