Opinion

LAURANCE v. DAVIS

Court: District Court, D. New Jersey
Filed: Oct 25, 2022
Cited by: 0 cases
Authority: More cited than 25.4%

“It is well established that the instruction ‘may not be judged in artificial isolation,’ but must be considered in the context of the instructions as a whole and the trial record.” (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973))

How later courts described this case

“It is well established that the instruction ‘may not be judged in artificial isolation,’ but must be considered in the context of the instructions as a whole and the trial record.” (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973))
“No one questions that a state court’s harmless-error determination qualifies as an adjudication on the merits under AEDPA.”
“Because the analysis undertaken by the New Jersey Supreme 16 Court in Petitioner’s direct appeal mirrors the Neder harmless error analysis, there is no basis for federal habeas relief here.”
“[A] jury is unanimous even if some jurors convicted on a theory of principal liability and others on aiding and abetting.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

___________________________________

LENROY LAURANCE, :

Petitioner, : Civ. No. 18-17522 (NLH)

v. : OPINION

BRUCE DAVIS, et al., :

Respondents. :

___________________________________:

APPEARANCES:

Lenroy Laurance

000407603-E/721751

New Jersey State Prison

PO Box 861

Trenton, NJ 08625

Petitioner Pro se

Lachia L. Bradshaw, Burlington County Prosecutor

Alexis R. Agre, Assistant Prosecutor

Burlington County Prosecutor’s Office

Courts Facility – 2nd Floor

49 Rancocas Road

P.O. Box 6000

Mount Holly, NJ 08060

Counsel for Respondents

HILLMAN, District Judge

Before the Court is Petitioner Lenroy Laurance’s second

amended petition for writ of habeas corpus under 28 U.S.C. §

2254. ECF No. 6. Respondents oppose the petition. ECF No. 11.

For the reasons that follow, the Court will deny the petition.

A certificate of appealability will not issue.

I. BACKGROUND

The facts of this case were recounted below and this Court,

affording the state court’s factual determinations the

appropriate deference, 28 U.S.C. § 2254(e)(1), reproduces the

recitation of the facts as set forth by the New Jersey Superior

Court Appellate Division in its opinion denying Petitioner’s

direct appeal:

On Sunday morning, August 30, 2009, defendant, [Marcus]

White, [Shaniqua] Williams and [Baquea] Thomas were

returning to Philadelphia from New York City on the New

Jersey Turnpike in a rented car when White, who was

driving, struck another car. The other driver summoned

police, and before they arrived, defendant and White

placed two handguns in Williams’s purse. White told

Williams and her sister to leave the scene and meet the

two men later at a designated place the men would provide

by phone.

Williams and her sister left, however, Williams became

scared and dropped the purse in some bushes on the side

of the road. When Williams and her sister later rejoined

the men, White was displeased that Williams had thrown

the guns away, and White and defendant both told Williams

that they had to go back and retrieve the weapons. After

an unsuccessful attempt to find the guns later on Sunday,

on either Monday or Tuesday, defendant, White and

Williams took a bus to New York City and met a friend of

defendant, who drove them to various locations along the

Turnpike. Their search for the weapons was

unsuccessful.

Meanwhile, [Kareem] Harrison, a self-acknowledged drug

dealer, stole two handguns from another drug dealer in

Philadelphia, brought them home and gave them to

defendant and White. On Wednesday morning, September 2,

2009, defendant awakened Harrison and told him that they

were going “to go do something,” which Harrison

understood to mean they were going to rob someone.

Harrison woke [Robby] Willis, who agreed to join.

Armed with handguns, defendant, Willis, and Harrison

left the house on foot seeking to rob someone and steal

a car so they could return to search for the guns

discarded by Williams. The men saw [Lyudmila] Burshteyn

sitting in her car that was parked on the street. After

circling around the car so they could approach from the

rear, defendant opened the passenger-side door, and at

gunpoint ordered Burshteyn not to move. When she

screamed, Willis pulled Burshteyn out of the car and

threw her onto the floor of the rear seat. Defendant

drove the car to the corner and picked up Harrison, who

was acting as lookout, while Willis sat in the rear.

Burshteyn pleaded for the men to take anything they

wanted but not hurt her. Willis pistol-whipped her after

she refused to remain quiet and threw a dark cloth over

her head. Defendant took cash and credit cards from

Burshteyn’s purse and announced they were going to use

the car to search for the lost handguns on the Turnpike

before disposing of it at a “chop shop” he knew of in

South Carolina.

Defendant drove back to the house and ran inside to get

White. Williams heard him nervously tell White to hurry

up and get dressed because “we got somebody in the car.”

The two men left the house and joined Harrison and Willis

in the car, and together, the four left for New Jersey

to search for the discarded handguns. Burshteyn was

still captive on the floor of the back seat.

When Burshteyn complained that she had asthma and could

not breath because of marijuana smoke in the car,

defendant responded in a loud voice, “she’s going to die

anyway.” Defendant drove the car in an unsuccessful

search for the two handguns, and, according to Harrison,

defendant said “he was going to kill [Burshteyn].”

As documented by EZ–Pass records for Burshteyn’s car, at

1:49 p.m., defendant exited the Turnpike. According to

Harrison, defendant drove to a remote area near an open

field and some woods and said, “I’m gonna leave the girl

right here.” Defendant exited the car, while Willis

tightly taped the cloth that had been resting loosely on

Burshteyn’s head so that she could not see. Defendant

pulled her from the car and told her that she was in

front of her house.

Defendant approached Harrison and asked to use his .22

caliber handgun because it would make the least amount

of noise. Defendant then walked Burshteyn a few yards

into the woods, placed the barrel of the gun against the

left side of her wrapped head and fired one shot.

Burshteyn fell, and the men re-entered the car and drove

away quickly.

At about 3:30 p.m., a passing motorist noticed a

motionless body near the road and called police.

Subsequent forensic investigation revealed that

Burshteyn died from a single, small-caliber gunshot that

entered her neck, severed major blood vessels and caused

her rapidly to bleed to death. The medical examiner

testified the wound was consistent with a .22 caliber

bullet, but not a .38 or .44 caliber bullet.

Defendant and the other men drove to a restaurant in

Philadelphia where it was pre-arranged they would meet

Williams, his sister, [Iaeshia] Brown and Brown’s child.

There was not enough room for Brown and her child, so

they were left behind as the others drove off. White

had told Williams they were going on vacation, and she

did not know the true purpose of the trip until White

told her the men had killed the owner of the car, and

they were going to a chop shop in South Carolina to sell

the car to one of defendant’s friends.

. . . . around 1:40 a.m., on September 3, 2009, defendant

was driving Burshteyn’s car in Summerton, South

Carolina, when he was stopped for speeding. When South

Carolina authorities found guns in the car and

discovered it was registered to Burshteyn, all the

occupants were placed in custody. Williams subsequently

told the South Carolina police that the woman who owned

the car was dead.

State v. Laurance, No. A-3696-11T4, 2014 WL 8481101, at *4–6

(N.J. Super. Ct. App. Div. Apr. 7, 2015).

Petitioner went to trial and was convicted of first-degree

kidnapping, N.J.S.A. § 2C:13–1(b)(1) (Count One); first-degree

felony murder during a kidnapping, N.J.S.A. § 2C:11–3(a)(3)

(Count Two); first-degree armed robbery, N.J.S.A. § 2C:15–

1(a)(1) (Count Three); first-degree felony murder during a

robbery, N.J.S.A. § 2C:11–3(a)(3) (Count Four); first-degree

carjacking, N.J.S.A. § 2C:15–2(a)(4) (Count Five); first-degree

felony murder during a carjacking, N.J.S.A. § 2C:11–3(a)(3)

(Count Six); second-degree unlawful possession of a weapon,

N.J.S.A. § 2C:39–5(b) (Count Seven); second-degree possession of

a weapon for an unlawful purpose, N.J.S.A. § 2C:39–4(a) (Count

Eight); and third-degree terroristic threats, N.J.S.A. § 2C:12–

3(b) (Count Nine). ECF No. 11-6. “In a bifurcated second trial

that followed immediately thereafter, the jury convicted

defendant of second-degree certain persons not to have weapons,

N.J.S.A. 2C:39–7(b) (Count Ten).” Laurance, 2014 WL 8481101, at

*1. “After considering mergers, the judge sentenced defendant

to an aggregate term of life imprisonment plus forty years,

subject to ninety-four and one-quarter years of parole

ineligibility” on December 12, 2011. Id.; ECF No. 11-6.

Petitioner filed a direct appeal with the Appellate

Division. ECF No. 11-7. On April 7, 2015, the Appellate

Division vacated Petitioner’s certain persons conviction, Count

Ten, but otherwise affirmed the convictions and sentence.

Laurance, 2014 WL 8481101, at *1. It remanded to the trial

court for an amended judgment of conviction. Id. The trial

court issued the amended judgment of conviction on April 8,

2015: “Pursuant to the Appellate Division’s Opinion dated April

7, 2015, the original Judgment of Conviction is amended to

vacate the conviction on Count 10 of the Indictment. All other

conditions of the Court’s original Judgment of Conviction remain

in effect.” ECF No. 11-15.

Petitioner filed a petition for certification with the New

Jersey Supreme Court on April 23, 2015. ECF No. 11-13. The

court denied the petition on October 9, 2015. ECF No. 11-14;

State v. Laurance, 122 A.3d 992 (N.J. 2015) (Table). Petitioner

did not submit a petition for writ of certiorari with the

Supreme Court of the United States.

Petitioner filed a post-conviction relief (“PCR”) petition

in the Law Division on November 23, 2015. ECF No. 11-16. The

PCR court held oral argument on October 14, 2016 and denied the

petition without an evidentiary hearing on October 20, 2016.

25T;1 ECF No. 11-21. Petitioner appealed on February 7, 2017.

1 1T = Motion to Suppress Transcript dated April 5, 2011; ECF No.

11-38.

2T = Motion to Suppress Transcript dated April 11, 2011; ECF No.

11-39.

3T = Rule 404 Motion Transcript dated September 8, 2011; ECF No.

11-40.

4T = Rule 404 Motion Transcript dated September 13, 2011; ECF

No. 11-41.

5T = Motion Transcript dated September 15, 2011; ECF No. 11-42.

6T = Trial Transcript dated September 22, 2011, Vol. I; ECF No.

11-43.

7T = Trial Transcript dated September 22, 2011, Vol. II; ECF No.

11-44.

ECF No. 11-23. The Appellate Division affirmed the PCR court’s

decision on May 9, 2018. State v. Laurance, No. A-2290-16T1,

2018 WL 2122726 (N.J. Super. Ct. App. Div. May 9, 2018).

Petitioner filed a petition for certification with the New

Jersey Supreme Court on May 11, 2018, ECF No. 11-34, which the

8T = Trial Transcript dated September 27, 2011, Vol. I; ECF No.

11-45.

9T = Trial Transcript dated September 27, 2011, Vol. II; ECF No.

11-46.

10T = Trial Transcript dated September 28, 2011, Vol. I; ECF No.

11-47.

11T = Trial Transcript dated September 28, 2011, Vol. II; ECF

No. 11-48.

12T = Trial Transcript dated September 29, 2011, Vol. I; ECF No.

11-49.

13T = Trial Transcript dated September 29, 2011, Vol. II; ECF

No. 11-50.

14T = Trial Transcript dated October 4, 2011, Vol. I; ECF No.

11-51.

15T = Trial Transcript dated October 4, 2011, Vol. II; ECF No.

11-52.

16T = Trial Transcript dated October 5, 2011, Vol. I; ECF No.

11-53.

17T = Trial Transcript dated October 5, 2011, Vol. II; ECF No.

11-54.

18T = Trial Transcript dated October 6, 2011; ECF No. 11-55.

19T = Trial Transcript dated October 11, 2011; ECF No. 11-56.

20T = Trial Transcript dated October 12, 2011, Volume I; ECF No.

11-57.

21T = Trial Transcript dated October 12, 2011, Volume II; ECF

No. 11-58.

22T = Trial Transcript dated October 13, 2011; ECF No. 11-59.

23T = Closing Arguments and Jury Charge Transcript dated October

13, 2011; ECF No. 11-60.

24T = Sentencing Transcript dated December 9, 2011; ECF No. 11-

61.

25T = PCR Hearing Transcript dated October 13, 2016; ECF No. 11-

62.

court denied on November 16, 2018, ECF No. 11-37; State v.

Laurance, 197 A.3d 674 (N.J. 2018) (Table).

Petitioner filed his § 2254 petition on December 20, 2018.

ECF No. 1. The Court administratively terminated the petition

on December 28, 2018 as the original petition was not on the

Clerk’s § 2254 form. ECF No. 3. Petitioner submitted his

amended petition, but it was missing Petitioner’s certification

that he was aware that he “must include all the grounds for

relief from the conviction or sentence in this Petition and if

he fails to set forth all the grounds, he may be barred from

presenting additional grounds at a later date.” ECF No. 5 at 1-

2. Petitioner submitted his second amended petition, ECF No. 6,

and the Court ordered Respondents to file an answer, ECF No. 7.

Respondents submitted their answer on July 15, 2019. ECF

No. 11. Petitioner filed his traverse on September 18, 2019,

ECF No. 13, and the Court granted his motion to have it filed as

within time, ECF No. 14. On April 12, 2021, Petitioner filed a

motion to amend his traverse. ECF No. 16. The Court denied the

motion without prejudice because Petitioner had not submitted a

proposed amended pleading. ECF No. 18. Petitioner submitted

his amended traverse on June 23, 2022. ECF No. 20.

II. STANDARD OF REVIEW

Title 28 U.S.C. § 2254 permits a federal court to entertain

a petition for writ of habeas corpus on behalf of a person in

state custody pursuant to the judgment of a state court “only on

the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.” 28

U.S.C. § 2254(a).

With respect to any claim adjudicated on the merits by a

state court, the writ shall not issue 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). A state court decision is “contrary to”

Supreme Court precedent “if the state court applies a rule that

contradicts the governing law set forth in [Supreme Court]

cases,” or “if the state court confronts a set of facts that are

materially indistinguishable from a decision of th[e] Court and

nevertheless arrives at a result different from [the Court’s]

precedent.” Williams v. Taylor, 529 U.S. 362, 405–06 (2000).

“[A] state-court decision is an unreasonable application of

clearly established [Supreme Court] precedent if it correctly

identifies the governing legal rule but applies that rule

unreasonably to the facts of a particular prisoner’s case.”

White v. Woodall, 572 U.S. 415, 426 (2014). “[A]n unreasonable

application of federal law,” however, “is different from an

incorrect application of federal law.” Harrington v. Richter,

562 U.S. 86, 101 (2011) (quoting Williams, 529 U.S. at 410).

The Court must presume that the state court’s factual

findings are correct unless Petitioner has rebutted the

presumption by clear and convincing evidence. 28 U.S.C. §

2254(e)(1).

III. DISCUSSION

Petitioner raises the following claims for this Court’s

review:2

I. The Defendant’s Motion that the Trial Court lacked

territorial jurisdiction should have been granted.

II. The Defendant’s five (5) hour statement to the

police admitted into evidence violated his rights

under the United Staters [sic] and New Jersey

Constitutions.

III. The admission of other crime evidence was grossly

prejudicial and denied Defendant a fair trial.

IV. The admission of testimony from the Attorney for

the cooperating witness regarding his

representation of him in this matter was

irrelevant, grossly prejudicial and constituted

error necessitating a new trial.

V. The overzealousness of the prosecutor from his

opening statement to his remarks at sentencing

denied Defendant a fair trial.

2 The second amended petition puts all of these claims into one

paragraph under each “Ground” and are repeated verbatim

throughout. See ECF No. 6 at 7-14. The Court has separated and

renumbered the claims for clarity.

VI. The proofs presented before the jury were

insufficient to establish the offense of certain

persons not to have weapons.

VII. It was error for the sentencing court to fail to

merge the of [sic] offenses of second degree

robbery and aggravated assault.

VIII. The aggregate sentence imposed upon Mr. Laurance of

Life imprisonment with 94½ years of parole

ineligibility must be modified and reduced.3

IX. The aggregate of errors denied Defendant a fair

trial.

X. The matter must be remanded for an evidentiary

hearing because defendant established a prima facie

case of Trial Counsel’s ineffectiveness.

ECF No. 6. The Court first considers Respondents’ argument that

the § 2254 is barred by AEDPA’s one-year statute of limitations.

ECF No. 11 at 51. “Petitioner’s conviction was made final in

2015 when the New Jersey Superior Court, Appellate Division,

affirmed his convictions and sentences. Over three years have

elapsed since the final disposition of his convictions.” Id. at

53.

The Anti-Terrorism and Effective Death Penalty Act of 1996

(“AEDPA”) imposes a one-year period of limitation on a

petitioner seeking to challenge his state conviction and

sentence through a petition for writ of habeas corpus under §

3 Alternatively stated as “The sentence is manifestly excessive

and should be reduced.” ECF No. 6 at 8.

2254. See 28 U.S.C. § 2244(d)(1). Under § 2244(d)(1), the

limitation period runs from the latest of:

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the

time for seeking such review;

(B) the date on which the impediment to filing an

application created by State action in violation of the

Constitution or laws of the United States is removed, if

the applicant was prevented from filing by such State

action;

was initially recognized by the Supreme Court, if the

right has been newly recognized by the Supreme Court and

made retroactively applicable to cases on collateral

review; or

(D) the date on which the factual predicate of the claim

or claims presented could have been discovered through

the exercise of due diligence.

28 U.S.C. § 2244(d)(1).4 “[F]inality for the purpose of §

2244(d)(1)(A) is to be determined by reference to a uniform

federal rule.” Clay v. United States, 537 U.S. 522, 531 (2003).

“[T]he judgment becomes final at the ‘expiration of the time for

seeking such review’ — when the time for pursuing direct review

in this Court, or in state court, expires.” Gonzalez v. Thaler,

565 U.S. 134, 150 (2012).

The New Jersey Supreme Court denied Petitioner’s request

for certification on October 9, 2015. ECF No. 11-14; State v.

4 Petitioner’s conviction became final after AEDPA’s April 24,

1996 effective date; therefore, his petition is subject to its

one-year statute of limitations.

Laurance, 122 A.3d 992 (N.J. 2015) (Table). As Petitioner did

not submit a petition for writ of certiorari with the Supreme

Court of the United States, his conviction became final once the

90-day period for filing such a petition expired. Gonzalez, 565

U.S. at 150. Accordingly, Petitioner’s conviction became final

under AEDPA on January 7, 2016.

However, Petitioner filed a PCR petition on November 23,

2015, before his conviction became final. ECF No. 11-16.

“AEDPA’s tolling mechanism provides that ‘[t]he time during

which a properly filed application for State post-conviction or

other collateral review with respect to the pertinent judgment

or claim is pending shall not be counted toward any period of

limitation under this subsection.’” Martin v. Adm’r New Jersey

State Prison, 23 F.4th 261, 268 (3d Cir. 2022) (quoting 28

U.S.C. § 2244(d)(2)) (emphasis omitted) (alteration in

original). All of the time between the New Jersey Supreme

Court’s certification denial and the PCR court’s October 20,

2016 decision was tolled under § 2244(d)(2). The PCR petition

remained “pending” for 45 days following the PCR court’s

decision, i.e., until December 5, 2016.5 N.J. Ct. R. 2:4-1(a);

Swartz v. Meyers, 204 F.3d 417, 421 (3d Cir. 2000) (“‘[P]ending’

5 December 4, 2016 was a Sunday. Fed. R. Civ. P. 6(a)(1)(C).

includes the time for seeking discretionary review, whether or

not discretionary review is sought.”).

Petitioner did not file an appeal until February 7, 2017.

ECF No. 11-23. Sixty-four (64) days ran in Petitioner’s AEDPA

limitations period between the last day Petitioner could have

filed a timely appeal and the date on which he ultimately filed

his appeal. See Martin, 23 F.4th at 271 (“In other words, from

the expiration of time in which to file a timely appeal and the

state court’s acceptance of the belated appeal, there is no PCR

petition for the state court system to consider.”). Petitioner

had 301 days remaining to file a timely § 2254 petition.6

Section 2244(d)(2) tolled the time again between February

7, 2017 and November 16, 2018 while Petitioner’s PCR appeals

were pending before the Appellate Division and New Jersey

Supreme Court. Petitioner filed his original petition on

December 20, 2018, well within the remaining 301 days. The

Court therefore concludes the petition is timely and will

proceed to the merits.

A. Territorial Jurisdiction

Petitioner argues his constitutional rights to a fair trial

and to due process were violated when the trial court denied his

6 365 – 64 = 301.

motion to dismiss certain offenses for lack of jurisdiction.

The Appellate Division rejected this argument on direct appeal.

Defendant concedes that territorial jurisdiction to

prosecute the crimes of kidnapping, felony murder during

a kidnapping, and the weapons offenses lay in New Jersey.

He argues that the other crimes — armed robbery, felony

murder during a robbery, carjacking, felony murder

during a carjacking, and terroristic threats — were

committed and completed in Pennsylvania, and, therefore,

New Jersey lacked jurisdiction.

. . . .

During his opening statement, the prosecutor briefly

alluded to the fact that Burshteyn was “originally taken

off the street in Philadelphia,” but referencing “dual

sovereignty,” he told the jury that New Jersey was the

“right place” to try defendant for the crimes charged in

the indictment. Except for those comments, there was no

mention of territorial jurisdiction throughout the trial

until defendant’s sentencing allocution. In short,

“territorial jurisdiction was not clearly in dispute.”

Furthermore, we are convinced there was proof beyond a

reasonable doubt that all the crimes “occurred within”

New Jersey.

Laurance, 2014 WL 8481101, at *6-7 (quoting State v. Denofa, 898

A.2d 523, 535 (N.J. 2006)).

Under New Jersey law, “territorial jurisdiction is an

element of murder and, on defendant’s request, must be submitted

to the jury if there is a legitimate factual dispute concerning

the location of the crime.” Denofa, 898 A.2d at 530. “Without

a request, the trial court is required to charge territorial

jurisdiction only if the record clearly indicates a factual

dispute concerning where the crime occurred.” Id. The

Appellate Division concluded that “territorial jurisdiction was

not clearly in dispute” during Petitioner’s trial; therefore,

the Appellate Division found that state law did not require the

trial court to instruct the jury on territorial jurisdiction.

“The United States Supreme Court and the Third Circuit have

made clear that it is not the role of the federal courts to

review state court jury instruction rulings that are based on

state law.” Howard v. D’Ilio, No. 14-4758, 2018 WL 1014168, at

*5 (D.N.J. Feb. 22, 2018). This Court’s “habeas review of jury

instructions is limited to those instances where the

instructions violated a defendant’s due process rights.” Echols

v. Ricci, 492 F. App’x 301, 312 (3d Cir. 2012) (citing Estelle

v. McGuire, 502 U.S. 62, 72–73 (1991)). “A defendant’s due

process rights are violated, in turn, only where the instruction

‘operated to lift the burden of proof on an essential element of

an offense as defined by state law.’” Id. quoting (Smith v.

Horn, 120 F.3d 400, 416 (3d Cir. 1997)). “An omission, or an

incomplete instruction, is less likely to be prejudicial than a

misstatement of the law.” Henderson v. Kibbe, 431 U.S. 145, 155

(1977). Moreover, failure to submit an element of a crime to a

jury is subject to a constitutional harmless error analysis.

See Neder v. United States, 527 U.S. 1 (1999); Denofa v. D’Ilio,

No. 13-7830, 2017 WL 2829600, at *8 (D.N.J. June 30, 2017)

(“Because the analysis undertaken by the New Jersey Supreme

Court in Petitioner’s direct appeal mirrors the Neder harmless

error analysis, there is no basis for federal habeas relief

here.”). “[A] state prisoner seeking to challenge his

conviction in collateral federal proceedings must show that the

error had a ‘substantial and injurious effect or influence’ on

the outcome of his trial.” Brown v. Davenport, 142 S. Ct. 1510,

1519 (2022) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637

(1993)). “[A] a federal court cannot grant habeas relief unless

a state prisoner . . . satisfies both this Court’s equitable

precedents and Congress’s statute.” Id. at 1531.

The Court concludes that the state court did not reach a

decision that was contrary to or an unreasonable application of

established federal law, and that its conclusions are reasonable

in light of the facts at trial. The Appellate Division found

territorial jurisdiction over the robbery and carjacking

offenses because each statute includes acts occurring during

“immediate flight.” Laurance, 2014 WL 8481101, at *8. See

N.J.S.A. § 2C:15–1(a)(1) (“An act shall be deemed to be included

in the phrase ‘in the course of committing a theft’ if it occurs

in an attempt to commit theft or in immediate flight after the

attempt or commission.”); N.J.S.A. § 2C:15–2(a)(4) (“An act

shall be deemed to be ‘in the course of committing an unlawful

taking of a motor vehicle’ if it occurs during an attempt to

commit the unlawful taking of a motor vehicle or during an

immediate flight after the attempt or commission.”).

Whether an act occurs during “immediate flight” hinges

upon whether the actor has reached a point of at least

temporary safety or is in custody.

. . . .

Simply put, when defendant drove into New Jersey with

the proceeds of the robbery in his possession and

Burshteyn captive inside her vehicle, he had not reached

a point of safety, and his flight from the theft that

originated in Pennsylvania continued.

Laurance, 2014 WL 8481101, at *8. “Pursuant to N.J.S.A. 2C:11–

3(a)(3), ‘criminal homicide constitutes murder when ... [i]t is

committed when the actor ... is engaged in the commission of ...

or flight after committing ... robbery ... [or] carjacking.’ It

is undisputed that Burshteyn was killed in New Jersey, and for

the reasons already expressed, there was sufficient evidence to

prove defendant committed felony murder in New Jersey.” Id.

(omissions and alterations in original). “Lastly, N.J.S.A.

2C:12–3(a) provides that a ‘person is guilty of a crime of the

third degree if he threatens to commit any crime of violence

with the purpose to terrorize another.’ There was direct

evidence that while defendant was in Burshteyn’s car in New

Jersey, he threatened to kill her.” Id. at *8-9.

Petitioner has not shown that the Appellate Division’s

decision was contrary to or an unreasonable application of

established federal law. Nor has he shown that its conclusions

are unreasonable considering the facts at trial. The Court will

deny habeas relief on this claim.

B. Violation of Right to Counsel

Petitioner next asserts that his statement to police was

admitted at trial in violation of his right to counsel.

“Despite Mr. Laurance’s unequivocal request several times for

counsel, the police questioning continued for 5 hours. A

majority of this statement was played for the jury and utilized

by the state to challenge defendant’s credibility. Mr. Laurance

did not testify at trial.” ECF No. 20 at 15. The state courts

considered this claim on its merits.

“The Sixth Amendment right to counsel attaches only at the

initiation of adversary criminal proceedings, and before

proceedings are initiated a suspect in a criminal investigation

has no constitutional right to the assistance of counsel.”

Davis v. United States, 512 U.S. 452, 456–57 (1994) (internal

citation omitted). “Nevertheless, we held in Miranda v.

Arizona, 384 U.S. 436, 469–473 (1966), that a suspect subject to

custodial interrogation has the right to consult with an

attorney and to have counsel present during questioning, and

that the police must explain this right to him before

questioning begins.” Id. at 457. “If the suspect effectively

waives his right to counsel after receiving the Miranda

warnings, law enforcement officers are free to question him.

But if a suspect requests counsel at any time during the

interview, he is not subject to further questioning until a

lawyer has been made available or the suspect himself

reinitiates conversation.” Id. at 458.

Detective Robert Hageman from the Burlington County

Prosecutor’s Office interviewed Petitioner in South Carolina on

September 5, 2009:

[Hageman]: In order for me to have a conversation

with you, I have to read you your Miranda

warnings. Everybody has to do it; it,

um, allows me to have a conversation with

you, to, um, tell you what’s going on,

and for you to tell me what’s going on.

Without reading this, I can’t talk to

you. By reading this and getting past

this, it allows us to move forward and I

can let you know what’s

[Petitioner]: They’re

[Hageman]: going on.

[Petitioner]: My rights, right?

[Hageman]: They’re your rights.

[Petitioner]: My right to remain silent.

[Hageman]: I’m going to read them. Alright? I’m

going to read them from a card, so

there’s no confusion. If you don’t

understand it, you tell me.

[Petitioner]: I know everything that’s on that card

already, do you have to read it?

[Hageman]: I do. You’ve been read these before?

[Petitioner]: Yeah.

[Hageman]: Alright. I’m gonna read ‘em; it’ll take

two minutes.

[Petitioner]: Ok.

ECF No. 11-38 at 3-4. “Hageman persisted and read the card

completely before defendant answered the questions on the card

and signed his name indicating waiver of his rights.” Laurance,

2014 WL 8481101, at *2.

Petitioner first referenced an attorney while telling

Detective Hageman about a conversation Petitioner had that

morning with his wife:

I’m never seeing, basically, when my Wife told me I

charged for murder, I be wanted for murder, I think the

first thing I said to her, when I finally get a lawyer,

when it takes 24 hours to go to New Jersey to find out,

I’d never see the streets again. Might be dumb, but I

ain’t stupid. Like I said I might be dumb, but I’m not

stupid. I might be a dumb loser sit out there sell

drugs, but I’m not stupid to go kill somebody. If

somebody shot me in my leg, I know where his family live

at, I know where his girls live at, I know where his

babies live at. And I’d never put a hands on them. Ever

- even go close to them. You don’t think I’m stupid

enough to go kill a female for money.

ECF No. 11-38 at 68. During the suppression hearing on April 5,

2011, the trial court identified Petitioner’s reference to an

attorney as a “triggering statement” under Miranda. 1T54:25.

That’s where we begin the analysis. In some senses,

that’s where we could’ve ended the analysis, “When I

finally get a lawyer.” That is, to me, not in any way,

an assertion of [Petitioner’s] Miranda rights. . . .

He’s essentially recounting the conversation that he had

with his wife where he indicates to her, “When I finally

get a lawyer.” It’s really just even a statement, as

opposed to anything else.”

Id. at 54:25 to 55:12. The trial court concluded this statement

was “not ambiguous and the officer could’ve continued,” but

recognized that “Detective Hageman did the appropriate thing

under the circumstances. He took a step back. He was cautious.

. . . And he went on to clarify.” Id. at 55:13-20. After

Petitioner’s “triggering statement,” Detective Hageman asked

“What did you tell your wife on the phone? About, something

about Jersey and a lawyer? I need to clarify that.” ECF No.

11-38 at 68. Petitioner responded:

I’m getting me a lawyer that’s in New Jersey to find out

what’s going on. It’s taking her to find me a lawyer

that you think would get me a bail so I could come out

and fight my case from the street, ‘cause I’ve been in

jail before and fighting a case from behind bars was not

helping. I need a good lawyer that’s gonna get me bail

and everything. That’s gonna show them that I had

nothing to do with this murder. I have families to back

me up and prove where I was. I to1d you where I was. I

told you what happened. I told my wife everything. I’m

right now living this thing, myself (inaudible) you know

what’s going on. You could have somebody be delaying my

(inaudible) like I’m (inaudible) a little (inaudible)

too. Like I’m not for it, I’m not gonna go to jail for

this.

Id. Detective Hageman stated “Ok, so what’s you’re saying is

you want a lawyer to show that you didn’t do this.” Id.

Petitioner replied “Point blank. Period.” Id. The trial court

concluded “after reading the transcript, seeing the video on now

three separate occasions, it’s really very clear, in my view,

that when the defendant is saying, ‘Point blank period,’ he’s

being emphatic, ‘Yes, I didn’t do this. Point blank period I

didn’t do this.’ He’s not saying, ‘Point blank period, I want a

lawyer.’ I would not, at all, go with that interpretation.”

1T56:17-23. As recounted by the Appellate Division:

Shortly thereafter, the following exchange occurred:

Hageman: Can we continue to talk to you?

Defendant: ... Why would I sit here and ... continue to

talk to you when ... you telling me I’m

lying?

....

Hageman: ... Do you want to continue to talk to me?

Defendant: What do you want to continue to talk you

[sic] about being hurt and know that I can’t

even go [sic] my wife tomorrow?

Hageman: ... [Y]ou’re talking about a lot of things

..., but I’m not sure that you want to

continue to talk to me because you said you

wanted to see if a lawyer can help you.

Defendant: Do you have a lawyer present[ ] for me, that

can help me?

Hageman: I don’t have a lawyer here for you.

Defendant: ... I want to see my family. I just want to

see my family I want to talk to my wife. Like

I want to be with my family, I’m not gonna

go to jail for something I didn’t do.

A short time later, Hageman told defendant, “I can’t

talk to you anymore,” to which defendant responded, “Why

you can’t talk to me anymore?” The colloquy resumed:

Hageman: ‘[C]ause you asked if a lawyer could help you.

Defendant: No, I wasn’t talking to you towards that.

Like, I told that to my wife, not to y’all.

Hageman asked again, “Do you want a lawyer here?”

Defendant responded, “Can I have a lawyer present right

now? How long it’s gonna take for a lawyer to be

present?” Hageman responded that he did not know, and

after some further banter, the interview recessed for a

short period.

Hageman recommenced by telling defendant, “I can’t get

you a lawyer here. Do you want to talk to us without a

lawyer or not?” Defendant was evasive, and Hageman again

asked, “Do you want a lawyer or not?” Defendant parried,

“Right now?” and then told Hageman “I don’t see the

reason why I need a lawyer.” Hageman persisted, “Do you

want a lawyer here while we talk to you right now? Or

do you not want a lawyer. Do you want to talk to us,

first of all?” Defendant answered, “I wanna talk to

y’all.” Defendant continued, “I’ll talk to ya’ll

without a lawyer if ya’ll help me.” Hageman told

defendant he “can’t make [him] any promises.” After

several more parries, defendant told Hageman, “Yes, I’ll

talk to you ... without a lawyer present. At this moment

in time, yes, I’ll talk to you.” Defendant further

indicated that he understood Hageman had made no

promises.

Laurance, 2014 WL 8481101, at *2 (alterations and omissions in

original); see also ECF No. 11-38 at 69-74.

Clearly established federal law requires the invocation of

the Miranda right to an attorney to be unambiguous. Davis v.

United States, 512 U.S. 452, 459 (1994). “[T]his is an

objective inquiry.” Id. “[I]f a suspect makes a reference to

an attorney that is ambiguous or equivocal in that a reasonable

officer in light of the circumstances would have understood only

that the suspect might be invoking the right to counsel, our

precedents do not require the cessation of questioning.” Id.

(emphasis in original). See also Berghuis v. Thompkins, 560

U.S. 370, 381 (2010) (‘If an accused makes a statement

concerning the right to counsel ‘that is ambiguous or equivocal’

or makes no statement, the police are not required to end the

interrogation, or ask questions to clarify whether the accused

wants to invoke his or her Miranda rights.”). “As we have

observed, ‘a statement either is such an assertion of the right

to counsel or it is not.’” Davis, 512 U.S. at 459 (quoting

Smith v. Illinois, 469 U.S. 91, 97–98 (1984) (per curiam)).

Here, the state courts reasonably concluded that Petitioner

did not clearly and unambiguously invoke his right to have an

attorney present during the interrogation. Petitioner first

mentioned having an attorney in the context of recounting his

conversation with his wife: “when my Wife told me I charged for

murder, I be wanted for murder, I think the first thing I said

to her, when I finally get a lawyer, when it takes 24 hours to

go to New Jersey to find out, I’d never see the streets again.”

ECF No. 11-38 at 68. This is not an unambiguous request to have

an attorney present for the interrogation. See Davis, 512 U.S.

at 462 (holding defendant’s remark that “Maybe I should talk to

a lawyer” was not a request for counsel requiring officer to

stop the interrogation). It was reasonable for the trial court

to interpret this as a statement regarding potentially hiring an

attorney at some undefined future point in time. See United

States v. Hill, 575 F. Supp. 3d 185, 195 (D.D.C. 2021)

(“Statements like ‘I would feel more comfortable with a lawyer’

or ‘I think I should get a lawyer’ are better characterized as

musings or deliberations than as unequivocal expressions of the

right to counsel.”).

Petitioner asserts he told the officers he did not want to

speak with them: “The investigator then asks Mr. Laurance if he

wanted a lawyer or want to talk to them first. Defendant’s

response was ‘I don’t want to talk to you.’” ECF No. 20 at 15

(citing appellate brief, ECF No. 11-7 at 31). The revised

transcript of the interrogation indicates Petitioner answered

“‘I want to talk to you all’” when Detective Hageman asked “‘Do

you want a lawyer here while we talk to you right now? Or do

you not want a lawyer. Do you want to talk to us, first of

all?’” ECF No. 11-4 at 72. The trial court and Appellate

Division relied on the recording of Petitioner’s statement and

the revised transcript in concluding the revised transcript

accurately reflected Petitioner’s statement. See Laurance, 2014

WL 8481101, at *2 (“Hageman persisted, ‘Do you want a lawyer

here while we talk to you right now? Or do you not want a

lawyer. Do you want to talk to us, first of all?’ Defendant

answered, ‘I wanna talk to y’all.’”).

“In a proceeding instituted by an application for a writ of

habeas corpus by a person in custody pursuant to the judgment of

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

State court shall be presumed to be correct.” 28 U.S.C. §

2254(e)(1). “The applicant shall have the burden of rebutting

the presumption of correctness by clear and convincing

evidence.” Id. The record supports the state courts’

conclusions, and Petitioner has not submitted clear and

convincing evidence to rebut the presumption of correctness.

Accordingly, the Court is bound by the state courts’ finding on

this dispute.

Considering the facts as determined by the state courts,

the opinions were neither contrary to nor an unreasonable

application of clearly established federal law. Davis requires

an unambiguous assertion of a Miranda right before law

enforcement is required to cease questioning a suspect. The

state courts identified the correct governing law, and their

conclusion that Petitioner did not clearly and unambiguously

invoke his right to counsel was a reasonable application of

Miranda and Davis. Even if Petitioner’s statements could be

considered ambiguous requests for counsel, federal law does not

require police officers to clarify an ambiguous request for

counsel before continuing an interrogation. Davis, 512 U.S. at

459. Additionally, the state courts’ decisions were not “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). Therefore, Petitioner is not entitled to habeas

relief on this claim.7

C. Admission of Other Crime Evidence

Petitioner challenges the admission of alleged other crimes

evidence, namely “testimony by [co-participant, Kareem Harrison]

that (1) he stole guns from a drug dealer; (2) the defendants

wanted the lost guns back to rob more people; (3) defendant

purchased marijuana for the group following the murder and; (4)

defendant threatened to kill him in Philadelphia.” ECF No. 20

at 18 (internal citations omitted). He also challenges his

girlfriend Keneshia Wilson’s testimony “consist[ing] of the

contents of letters purportedly sent by defendant haranguing her

for ‘snitching’ on him and threatening bodily harm.” Id. “None

of this criminal conduct was charged in the indictment.

Addicted [sic] purportedly to show consciousness of guilt and

state of mind, the testimony was clearly grossly prejudicial and

7 Petitioner argues in one sentence that his “request to speak

with his wife also should have ceased police questioning.” ECF

No. 20 at 17 (citing State v. Harvey, 121 N.J. 407, 419 (1990)).

The Appellate Division concluded this was meritless under state

law. Laurance, 2014 WL 8481101, at *3-4. “[A]n accused who

wants to invoke his or her right to remain silent [must] do so

unambiguously.” Berghuis v. Thompkins, 560 U.S. 370, 381

(2010). Moreover, Petitioner points to no federal rule that

requires officers to stop questioning a suspect who asks to

speak with their spouse. See In re Terrorist Bombings of U.S.

Embassies in E. Afr., 552 F.3d 177, 212 (2d Cir. 2008) (“Miranda

does not require that a suspect be informed that he may delay

questioning, obtain assistance from his consulate, or contact

his wife . . . .”). There is no merit to this claim.

should have been excluded from evidence.” Id. (internal

citations omitted).

Petitioner argues the admission of this evidence violated

New Jersey Evidence Rule 404(b). Id. at 19. This argument

lacks merit. “[I]t is not the province of a federal habeas

court to reexamine state-court determinations on state-law

questions. In conducting habeas review, a federal court is

limited to deciding whether a conviction violated the

Constitution, laws, or treaties of the United States.” Estelle

v. McGuire, 502 U.S. 62, 67–68 (1991). Even if the admission of

the testimony violated New Jersey’s evidence rules, “‘federal

habeas corpus relief does not lie for errors of state law.’”

Id. at 67 (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1984)).8

“Admission of ‘other crimes’ evidence provides a ground for

federal habeas relief only if ‘the evidence’s probative value is

so conspicuously outweighed by its inflammatory content, so as

to violate a defendant’s constitutional right to a fair trial.’”

Bronshtein v. Horn, 404 F.3d 700, 730 (3d Cir. 2005) (quoting

Lesko v. Owens, 881 F.2d 44, 52 (3d Cir. 1989)).

8 Petitioner presented both state and federal arguments to the

Appellate Division, but the Appellate Division rejected

Petitioner’s arguments under state law and did not address his

federal claim. “When a state court rejects a federal claim

without expressly addressing that claim, a federal habeas court

must presume that the federal claim was adjudicated on the

merits[.]” Johnson v. Williams, 568 U.S. 289, 301 (2013). The

Court therefore applies the appropriate AEDPA deference.

1. Testimony of Kareem Harrison

The trial court considered the admissibility of Harrison’s

statement about his firearm acquisition at a pre-trial hearing.

See 3T & 4T. “Harrison testified at the hearing that he stole

two handguns from a drug dealer a day or two before the murder

and gave them to defendant and Willis.” Laurance, 2014 WL

8481101, at *9. “The judge rejected defendant’s argument that

the testimony was inadmissible under Rule 404(b), concluding

instead that the evidence was intrinsic to the charged crimes,

in particular, the weapon-possession charges contained in the

indictment, and was therefore admissible.” Id. The Appellate

Division agreed, stating “[t]he trial judge’s reasoning was

spot-on as to Harrison’s testimony regarding the two guns. That

was intrinsic evidence since, at the least, defendant was

charged with possessory crimes regarding those specific

weapons.” Id. at *10.9

Petitioner has not “overcome his burden of identifying

facially contradictory Supreme Court precedent, or precedent

that obviously forbids the admission of” Harrison’s testimony.

9 “[E]vidence is intrinsic if it ‘directly proves’ the charged

offense. . . . If uncharged misconduct directly proves the

charged offense, it is not evidence of some ‘other’ crime.”

United States v. Green, 617 F.3d 233, 248–49 (3d Cir. 2010).

Additionally, “‘uncharged acts performed contemporaneously with

the charged crime may be termed intrinsic if they facilitate the

commission of the charged crime.’” Id. at 249 (quoting United

States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000)).

Allison v. Superintendent Waymart SCI, 703 F. App’x 91, 97–98

(3d Cir. 2017). The Supreme Court has “defined the category of

infractions that violate ‘fundamental fairness’ very narrowly.”

Dowling v. United States, 493 U.S. 342, 352 (1990). “In

Dowling, evidence that the defendant had donned a mask and used

a gun to rob a home was admitted to show that he wore a similar

mask and used a similar gun to rob a bank two weeks later.”

Allison, 703 F. App’x at 98. The Supreme Court upheld the

testimony’s admission because it “was at least circumstantially

valuable in proving petitioner’s guilt.” Dowling, 493 U.S. at

353.

Here, Harrison’s testimony about the handguns provided

evidence that Petitioner had control over the weapons forming

the basis of Count Seven’s unlawful possession charge. ECF No.

11-3 at 10. Harrison identified two handguns as being ones that

he stole from a drug dealer’s car, 10T165:15 to 167:5, and he

testified that Petitioner and White took the handguns from him

approximately two days before Burshteyn’s murder, 10T:171:21 to

173:16. Harrison confirmed these two guns were hidden in a

potato chip bag along with Harrison’s .22 after South Carolina

police pulled over Petitioner, who was driving Burshteyn’s car,

on September 3, 2009. 12T46:4-9, 48:5 to 49:22. South Carolina

police found all three handguns during their search. 14T166:20

to 167:5, 173:20-21, 174:20-23. Harrison’s testimony showed the

origin of the weapons and how they came to be in Petitioner’s

possession. See United States v. O’Leary, 739 F.2d 135, 136 (3d

Cir. 1984) (agreeing the need “to show the background of the

charges” was a “permissible purpose for admission” under Rule

404(b) (quotation marks omitted)).

Similarly, Harrison’s testimony about stopping to purchase

marijuana was directly relevant to the terroristic threats

charge. Harrison testified that Petitioner stopped to purchase

marijuana while Burshteyn on the floor of the back seat of her

car. 11T229:10-17. Burshteyn called out that she could not

breathe due to the marijuana smoke because she had asthma.

11T229:19-25. Harrison testified that Burshteyn “was choking

and I said she can’t breathe, she can’t breathe. [Petitioner]

said, oh, she’s going to die anyway.” 11T247:21-23. “Mrs.

Burshteyn was lying on the floor of the SUV directly under

Harrison’s feet when petitioner said this. Harrison heard

petitioner’s threat and his intended victim must have heard it,

too.” ECF No. 11 at 92. Petitioner has not shown how evidence

that he purchased a small amount of marijuana unfairly

prejudiced his right to fair trial.

There is also no evidence from which the Court could

conclude that Harrison’s testimony about Petitioner’s alleged

motivation to find the lost guns violated fundamental fairness.

Harrison told the jury that he overheard Petitioner and White

talk about how they had recently lost guns on the highway when

White “fell asleep behind the wheel and they got in an accident

and they gave the guns to Shaniqua to hide them on the highway.”

10T163:8-10. He stated he overheard Petitioner and White

talking about needing to find the guns “so they can have more

people.” 10T163:14-21. As the Appellate Division noted, this

testimony “was ambiguous at best. The prosecutor never asked

[Harrison] to explain the meaning of the phrase, and its

admission was not plain error.” Laurance, 2014 WL 8481101, at

*10. The testimony explains why Petitioner and everyone set out

on September 2, 2009, and any prejudicial effect of that brief,

ambiguous remark cannot be said to “so conspicuously outweigh”

the probative value of the testimony. Bronshtein v. Horn, 404

F.3d 700, 730 (3d Cir. 2005).

Petitioner’s final claim of error with Harrison’s testimony

is that Harrison was permitted to testify that Petitioner

threatened to shoot him. This claim is equally without merit.

Petitioner’s trial counsel elicited this testimony during

Harrison’s cross-examination:

[Trial Counsel]: Now, there came a time at the house on

Helen Street where you got angry with

[Petitioner] too, didn’t you?

[Harrison]: Yes.

[Trial Counsel]: And you were angry with him to such an

extent you didn’t like him, did you?

[Harrison]: No.

[Trial Counsel]: Now, do you recall the reason why you

got angry with him?

[Harrison]: Because he threatened to shoot me.

[Trial Counsel]: He threatened to shoot you?

[Harrison]: Yes.

[Trial Counsel]: Okay. Now, did he just out of the blue

say to you, Mr. Harrison, I think I’m

just going to shoot you?

[Harrison]: No. I said I get mad, I stole these

guns for nothing and I ain’t done

nothing with them so I’m gonna shoot my

.22 up in the air. And he said if you

shoot your .22 up in the air, I’m gonna

shoot you.

12T113:7-25]. At sidebar, the trial court warned trial counsel

not to “go any further than you are right now or you’re going to

get into the area of the robberies that I specifically

precluded.” 12T115:15-17. Trial counsel argued the testimony

was necessary as it was “the cause of the antipathy [Harrison]

had towards [Petitioner].” 115T8-9. See also 12T116:9-12

(“[T]he issue is [Harrison] said he was mad at this man, he had

bias against this man, he had anger directed against this man

and the issue was about the guns . . . .”); 12T119:7-9 (“The

issue is — the answer is that [Harrison] was mad at [Petitioner]

because he threatened to shoot him. That’s the basis of his

bias.”). Trial counsel brought up Petitioner’s threat to shoot

Harrison as evidence that Harrison was biased against

Petitioner, and the State was permitted to address this argument

during its redirect examination of Harrison. 12T144:5 to 145:4.

Petitioner has not presented any evidence to suggest that

that the admission of Harrison’s testimony violated his

constitutional right to a fair trial. See Bronshtein v. Horn,

404 F.3d 700, 730 (3d Cir. 2005). The Court will deny habeas

relief on this claim.

2. Testimony of Keneshia Wilson

Petitioner further argues he was prejudiced by his ex-

girlfriend’s testimony about letters he sent to her while

incarcerated before trial. “As petitioner’s trial for the

murder of Lyudmila Burshteyn drew closer, petitioner wrote

increasingly threatening letters to his ex-girlfriend Kenesha

Wilson in a failed attempt to force her to contact his attorney,

retract her statement to the police, and corroborate his

fabricated alibi.” ECF No. 11 at 94. “Excerpts of these

letters were read into evidence during Kenesha’s testimony.”

Id. (citing 6T165:8 to 166:24, 177:15 to 184:6; ECF No. 11-9 at

68-94). “[P]etitioner’s escalating threats of violence to

Kenesha were written close in time to trial and were directly

related to his prosecution for Mrs. Burshteyn’s murder. Kenesha

recognized petitioner’s handwriting on each letter and there was

no dispute at trial that petitioner was the author of the

letters read to the jury.” Id. at 95 (internal citations

omitted).

The Appellate Division reasonably concluded this testimony

did not violate Petitioner’s fair trial rights. “Wilson’s

testimony and the letters were plainly relevant of defendant’s

guilty conscience. . . . [T]he letters, hand-written by

defendant, were clear and convincing evidence of his attempts to

intimidate Wilson.” Laurance, 2014 WL 8481101, at *11. The

trial court issued a limiting instruction after the letters were

read, directing the jury that the evidence “is permissible for

you to utilize for your consideration only for a limited purpose

and that purpose is to consider the defendant’s state of mind as

it may relate to his consciousness of his own guilt and not that

he has a propensity to commit crimes or that he is in fact a

violent individual.” 6T186:3-9. The instruction was repeated

in the final charge. 20T152:17 to 153:14. “[I]t is a basic

tenet of our jurisprudence that a jury is presumed to have

followed the instructions the court gave it . . . .” United

States v. Givan, 320 F.3d 452, 462 (3d Cir. 2003). The state

courts reasonably concluded that the evidence was highly

probative of Petitioner’s consciousness of guilt, and the trial

court took steps to limit the prejudice to Petitioner. The

Court cannot say the state courts acted unreasonably or in

violation of federal law when they concluded this evidence did

not violate Petitioner’s right to a fair trial. The Court will

deny habeas relief on this claim.

D. Testimony of Kevin Walker, Esq.

Petitioner argues Harrison’s attorney, Kevin Walker,

testified inappropriately about the terms and conditions of

Harrison’s plea agreement. “The testimony of the cooperating

witness’s attorney was both irrelevant and immaterial the case.

The testimony should have been excluded under N.J.R.E. 401 and

403.” ECF No. 20 at 14.

Petitioner did not present a federal claim to the state

courts, arguing “that Walker’s testimony was irrelevant and

prejudicial because it permitted the prosecutor to bolster the

credibility of Harrison.” Laurance, 2014 WL 8481101, at *12.

The Appellate Division agreed with Petitioner’s argument and was

“deeply troubled by the wholesale admission of this largely

irrelevant evidence.” Id. at *12

Harrison was a critical witness in the State’s case,

and, in large part, the thrust of the defense was that

Harrison shot the victim and lied in an attempt to

minimize his involvement. Defendant was entitled to

impeach Harrison’s credibility by demonstrating that he

pled guilty in return for a favorable plea bargain

conditioned upon testifying against defendant.

Harrison, who testified immediately after Walker, was

questioned directly about the terms of his plea bargain,

a condition of which was that he testify truthfully at

trial. We assume that the purpose of Walker’s testimony,

at least in part, was to support Harrison’s credibility,

by showing the sentence bargained for was potentially

not much more favorable than the probable sentence

Harrison would have received if convicted at trial.

However, the only relevant evidence was Harrison’s

perception that he curried more favorable treatment by

being a State’s witness against defendant.

. . . .

Walker’s testimony posed the risk of substantial

prejudice. Immediately before Harrison testified, the

jury heard his experienced attorney explaining the

calculus used in offering advice to defendant’s guilty

co-defendant that ultimately resulted in Harrison

pleading guilty. As the judge herself recognized when

she sustained an objection at side bar and restrained

the prosecutor from asking Walker about his assessment

of the strengths of the State’s case, the prosecution’s

case against defendant was “the same case” as the one

against Harrison, i.e., all four men were guilty of

felony murder. Walker’s testimony had the potential to

raise in the jury’s mind a dangerous, prejudicial

implication. If Harrison—who was present every step of

defendant’s murderous way—pled guilty after receiving

his attorney’s advice, why was defendant proceeding to

trial?

Id. (internal citations and footnote omitted). However, the

Appellate Division ultimately concluded the error was harmless.

“[T]here was only limited objection to Walker’s testimony, and

when defense counsel did object, the judge sustained his

objection.10 In summation, defense counsel used Walker’s

testimony to argue that Harrison actually faced less jail time

than what he bargained for, since Walker testified that he would

10 Trial counsel argued Walker’s testimony was “analogous to

calling an expert witness.” 10T77:19. Petitioner repeats this

argument before the Court, arguing “the State elicited testimony

about Mr. Walker’s 20 years experience in criminal law, [and] no

attempt was made to qualify him as an expert even had the

testimony been relevant.” ECF No. 20 at 22.

ask the judge to impose a lesser sentence on his client based

upon Harrison’s cooperation.” Id. at *12.

As previously stated, the Court cannot grant federal habeas

relief for errors of state law. Estelle v. McGuire, 502 U.S.

62, 67 (1991). It must also apply AEDPA deference to the

Appellate Division’s finding of harmless error. Brown v.

Davenport, 142 S. Ct. 1510, 1520 (2022) (“No one questions that

a state court’s harmless-error determination qualifies as an

adjudication on the merits under AEDPA.”). Petitioner is not

entitled to relief on this claim “unless the state court’s

rejection of his claim (1) was contrary to or involved an

unreasonable application of clearly established federal law, or

(2) was based on an unreasonable determination of the facts.”

Davis v. Ayala, 576 U.S. 257, 269 (2015).

The Appellate Division determined the admission of Walker’s

testimony was harmless error because it could not “ignore that

defendant significantly incriminated himself in the statement he

gave to Hageman, some details of which actually corroborated

Harrison’s testimony. Furthermore, Harrison’s testimony was

corroborated by other witnesses.” Laurance, 2014 WL 8481101, at

*13. The Court cannot say this decision was contrary to, or

involved an unreasonable application of, clearly established

federal law as determined by the Supreme Court. See Brown, 142

S. Ct. at 1525 (citing 28 U.S.C. § 2254(d)(1)). The Court also

cannot conclude that the decision was based on an unreasonable

determination of the facts in light of the evidence presented at

trial. Accordingly, the Court will deny relief under § 2254 for

this claim.

E. Prosecutorial Misconduct

Petitioner also cites to several incidents of alleged

prosecutorial misconduct during his trial:

The Prosecutor opened to the jury with a photograph of

the victim and comments about the post-homicide

struggles of her family. He displayed two photographs

of the defendant sitting in the back of a police car.

He referred to defendant’s a/k/a’-s and that he had a 16

year old girl in his car when he was arrested. He played

portions of defendant’s statement to the police and all

of this evidence was presented before the authentication

and testimony of any witness.

Although the State had objective evidence to present to

prove its case, the prosecutor repeatedly went one-step

too far to demonstrate Mr. Laurance was an “evil” person.

This testimony consisted of 1) the specific contexts of

the letters to Ms. Wilson; 2) the presentation of the

testimony of the cooperating witnesses’ attorney; 3)

presentation of other crime evidence; 4) questions to

the victim’s associate as to whether he ever met her

grandchild; 5) testimony at trial that defendant told

police he had been read his Miranda rights before that

day; 6) testimony that the defendant’s statement to the

police admitted into evidence was only 60% of the whole;

7) the police locate defendant’s girlfriend in law

enforcement database; 8) In summation asserting that the

defense conceded felony murder and New Jersey had dual

sovereignty in the case; 9) post-verdict, presenting a

case before the jury for charge of certain persons not

to have weapons without a certified copy of conviction;

and 10) at sentence, presenting a video of the victim

“without music”, and calling defendant a “domestic

terrorist as much as 9/11” and referring to armed

robberies in Trenton and Brooklyn and the Bloods Street

gang which were not part of this case.

ECF No. 20 at 22-23 (internal citations omitted).

“The Supreme Court has held that prosecutorial misconduct

is insufficient to overturn a conviction unless it ‘so infect[s]

the trial with unfairness as to make the resulting conviction a

denial of due process.’” Reid v. Beard, 420 F. App’x 156, 159

(3d Cir. 2011) (quoting Donnelly v. DeChristoforo, 416 U.S. 637,

643 (1974) (alteration in original)). “[I]t is not enough that

the prosecutors’ remarks were undesirable or even universally

condemned. The relevant question is whether the prosecutors’

comments so infected the trial with unfairness as to make the

resulting conviction a denial of due process.” Darden v.

Wainwright, 477 U.S. 168, 181 (1986) (internal quotation marks

omitted).11

“In evaluating whether the remarks of the prosecutor rise

to the level of a constitutional violation, we are required to

examine those remarks in the context of the whole trial.” Werts

v. Vaughn, 228 F.3d 178, 198 (3d Cir. 2000). The Court “must

examine the prosecutor’s offensive actions in context and in

11 Although the Appellate Division cited to state law for its

review of Petitioner’s prosecutorial misconduct claims, New

Jersey case law is consistent with the federal standard for

assessing prosecutorial misconduct. See Laurance, 2014 WL

8481101, at *13 (“[I]n order to justify reversal, the misconduct

must have been ‘so egregious that it deprived the defendant of a

fair trial.’” (quoting State v. Smith, 770 A.2d 255, 269-70

(N.J. 2001))). See also Marshall v. Hendricks, 207 F.3d 36, 69

(3d Cir. 2002).

light of the entire trial, assessing the severity of the

conduct, the effect of the curative instructions, and the

quantum of evidence against the defendant.” Moore v. Morton,

255 F.3d 95, 107 (3d Cir. 2001). “There was no objection at any

point during the opening statement. All of the items shown to

the jury were eventually admitted into evidence, as was

defendant’s statement, and there was testimony during trial

regarding defendant’s aliases. When the evidence was actually

adduced at trial, there was no objection.” Laurance, 2014 WL

8481101, at *14. Additionally, the trial court instructed the

jury that opening arguments were not evidence:

In the opening statement, the prosecutor will present

the State’s contentions and will outline what he expects

to prove. Following that, defense counsel will make his

opening statement. What is said in an opening statement

is not evidence. The evidence will come from the

witnesses who will testify and from whatever documents

or tangible items that are received in evidence.

6T6:25 to 7:7. The jury knew that it was not to rely on the

attorneys’ arguments, and all of the evidence mentioned during

opening was presented to the jury for its consideration during

trial. Viewed in context, the Appellate Division did not

violate or unreasonably apply federal law in reaching its

decision.

“The AP asked Mrs. Burshteyn’s friend and associate

Valadamir Laskin whether he recognized a photograph of the

victim’s young granddaughter.” ECF No. 11 at 110 (citing

6T195:19 to 197:19). Prior to Laskin’s testimony, trial counsel

objected to the admission of the photograph because “clearly the

picture of this little child is going to certainly engender

sympathy . . . .” 6T187:22-23. The trial court agreed and held

the picture could not be shown to the jury. 6T189:8-11.

However, it permitted the state to show Laskin the photograph

“for identifying information and laying foundation for whose

phone it is.” 6T189:9-11. The jury was never shown the

photograph; the witness was only asked to confirm the picture

was the victim’s granddaughter to support the state’s claim that

the phone, which Petitioner had in his possession when he was

arrested, belonged to the victim. The Appellate Division

concluded this claim was without merit, and this decision does

not contradict federal law and is not unreasonable in light of

the facts at trial.

Petitioner also objects to Hageman’s testimony that “the

police locate[d] defendant’s girlfriend in law enforcement

database.” The state asked Hageman if Wilson had “reach[ed] out

to anybody from the Burlington County Prosecutor’s Office and

say I have some valuable information, I’d like to speak to you

folks?”, and Hageman testified she had not. 19T11:14-20. The

state then asked how detectives located Wilson, to which Hageman

responded: “We checked through some law enforcement databases,

came up with a few addresses, ultimately we found her and

located her” at her workplace in the Philadelphia Airport.

19T11:23 to 12:2. Petitioner provides no support for his claim

that this brief mention of law enforcement databases “so

infected the trial with unfairness as to make the resulting

conviction a denial of due process.” Donnelly v. DeChristoforo,

416 U.S. 637, 643 (1974). Thus, this Court does not find that

the state courts’ adjudication of this claim was contrary to, or

an unreasonable application of, clearly established federal law.

Petitioner’s claim that the state “assert[ed] the defense

conceded felony murder” in its closing argument is likewise

meritless. Trial counsel, Mr. Riley, ended his closing argument

by attempting to anticipate what the state would tell the jury

by referring to himself in the third person:

The State has an obligation, it’s a constitutional

obligation to prove each and every element of the offense

beyond a reasonable doubt. [The prosecutor] is going to

tell you a lot of what Mr. Riley said is true, however,

Mr. Riley didn’t tell you, it doesn’t matter who did the

shooting, Kareem Harrison could have shot the lady, it

could have been anybody. Mr. Riley wasn’t honest with

you when he said that. Well, Mr. Riley was honest with

you. If [Petitioner] was there, then he’s guilty of

felony murder. Who puts him there? People that you

cannot trust. Interviews that you cannot trust. And the

fact that Kareem Harrison is the trigger man and lied

and lied and lied and lied including coming here and

lying to you, I suggest to you that the value of his

evidence is zero. And when I said to you earlier on,

the strength of the State’s case is built on shifting

sands, very weak foundation, that’s what I’m talking

about.

20T90:5-22. Trial counsel did not tell the jury that Petitioner

was guilty of felony murder. Trial counsel said the law was

clear that “[i]f he was there, then he’s guilty of felony

murder.” He then argued that the only people who put Petitioner

at the scene were lying. The state’s later statement, “[trial

counsel] concedes – he conceded in his opening and he’s conceded

in his summation the felony murder law is clear,” 20T94:21-23,

simply refers back to trial counsel’s argument. The state never

told the jury that trial counsel conceded Petitioner was guilty

of felony murder. The Appellate Division concluded this claim

was without merit, and this decision does not contradict federal

law and is not unreasonable in light of the facts at trial.

Petitioner also claims the state’s mention of dual

sovereignty was misconduct:

Forget about the Commonwealth of Pennsylvania. Some

of the crimes start there, we talked about in my

opening concurrent jurisdiction, dual sovereignty.

This crime started in Pennsylvania, came into New

Jersey. They kidnapped her together. They are

responsible together, complicit together for the

conduct of each other as the judge will explain the

law to you. And it’s not — if anything that I say is

in conflict with what Judge Covert says, please, accept

Judge Covert, her instructions to you.

20T97:19 to 98:4. Petitioner makes no argument as to how this

statement so infected his trial with unfairness and denied him

due process, and the Court sees none on the record before the

Court. The state courts’ adjudication of this claim was not

contrary to, or an unreasonable application of, clearly

established federal law.

Petitioner further claims that the presentation of a video

during sentencing was prosecutorial misconduct. “The prosecutor

asked the judge to permit presentation of a video-recording

prepared by Burshteyn’s family that showed aspects of her life.

The judge reviewed the recording, which was two minutes and

forty-seven seconds long, and found that, with the music muted,

it complied with the requirements of State v. Hess, 207 N.J.

123, 156–59 (2011). The video was played at sentencing.”

Laurance, 2014 WL 8481101, at *16; 24T3:13-25.

“At sentencing, ‘a convicted criminal is entitled to less

process than a presumptively innocent accused.’ Thus, a

sentencing judge may consider information, ‘largely unlimited’

as to kind or source, that would be inadmissible at trial.”

United States v. Paulino, 996 F.2d 1541, 1547 (3d Cir. 1993)

(quoting United States v. Mobley, 956 F.2d 450, 455 (3d Cir.

1992)). “Victim impact evidence is simply another form or

method of informing the sentencing authority about the specific

harm caused by the crime in question, evidence of a general type

long considered by sentencing authorities.” Payne v. Tennessee,

501 U.S. 808, 824–25 (1991). “In the majority of cases, and in

this case, victim impact evidence serves entirely legitimate

purposes. In the event that evidence is introduced that is so

unduly prejudicial that it renders the trial fundamentally

unfair, the Due Process Clause of the Fourteenth Amendment

provides a mechanism for relief.” Id. at 825.

New Jersey permits the use of victim impact evidence at

sentencing so long as it is “factual, not emotional, and [is]

free of inflammatory comments or references.” State v.

Muhammad, 678 A.2d 164, 180 (N.J. 1996). It prohibits victim

impact evidence that has “the great capacity to unduly arouse or

inflame emotions.” State v. Hess, 23 A.3d 373, 394 (N.J. 2011).

This is consistent with federal law, and Petitioner has not

presented any evidence from which the Court could conclude that

the video presentation to the sentencing court was unduly

prejudicial. Accordingly, the Court cannot conclude that the

Appellate Division’s adjudication of this matter was an

unreasonable application of Supreme Court precedent or contrary

to clearly established Supreme Court precedent.

“During his presentation, the prosecutor likened defendant

to a ‘domestic terrorist,’ and alluded to armed robberies he

allegedly committed in Trenton and Brooklyn, as well as

references defendant himself made during his statement to

Hageman regarding participation in the ‘Bloods criminal street

gang.’” Laurance, 2014 WL 8481101, at *16. The Appellate

Division concluded that “the prosecutor’s comments, while hard-

edged, do not require reversal. Information cited by the

prosecutor regarding other crimes were reflected in the record,

including defendant’s unredacted statement to authorities.” Id.

at 17. “It is clear that to the extent they were inflammatory,

the prosecutor’s rhetoric had no effect on the judge’s

thoughtful consideration of the sentence to be imposed.” Id.

The Court concludes the Appellate Division reasonably

concluded that the remarks were harmless error. The prosecutor

did not make these arguments to the jury, and the sentencing

court made clear it was Petitioner’s “heinous, depraved and

harmful” actions in this case, not the prosecutor’s remarks,

that drove the sentence. 24T52:1-15, 55:13-19. It rejected the

prosecutor’s argument that Petitioner’s self-admitted gang

affiliation showed involvement in organized criminal activity.

24T55:15-16 (rejecting aggravating factor five). The sentencing

court also properly considered Petitioner’s prior criminal

record and post-arrest conduct towards Wilson in finding a

future propensity for violence, making no mention of the

uncharged crimes. 24T54:13-25. The Court concludes that the

Appellate Division’s harmless error determination was not

contrary to, or an unreasonable application of, clearly

established federal law as determined by the Supreme Court.

The Court has previously discussed and found no

justification for relief under § 2254 based on the admission of

Petitioner’s letters to Wilson, Walker’s testimony, other crime

evidence, and Petitioner’s statement to police. It follows that

the Appellate Division reasonably concluded there was no

prosecutorial misconduct associated with the admission of the

evidence or comments on the evidence admitted at trial.

Finally, the Appellate Division vacated Petitioner’s

certain persons conviction. Laurance, 2014 WL 8481101, at *19.

Petitioner’s challenge to the prosecutor’s failure to present

the jury with a certified judgment of conviction for the

predicate offense is moot.

E. Sufficiency of the Evidence

Petitioner argues “[t}he proofs presented before the jury

were insufficient to establish the offense of certain persons

not to have weapons.” This claim is moot because the Appellate

Division vacated this conviction on direct appeal. The Court

cannot grant Petitioner further relief on this claim.

F. Sentencing

Petitioner argues the sentencing court failed to merge his

second-degree robbery and aggravated assault convictions. He

also argues the sentence is manifestly excessive. “[A] federal

court’s ability to review state sentences is limited to

challenges based on ‘proscribed federal grounds such as being

cruel and unusual, racially or ethnically motivated, or enhanced

by indigencies.’” Rollins v. Slaughter, No. 19-13390, 2022 WL

2358387, at *17 (D.N.J. June 30, 2022) (quoting Grecco v.

O’Lone, 661 F. Supp. 408, 415 (D.N.J. 1987)). “Thus, federal

courts may not review a challenge to a state court’s discretion

at sentencing unless it violates a separate federal

constitutional limitation.” Id. (citing Pringle v. Court of

Common Pleas, 744 F.2d 297, 300 (3d Cir. 1984)).

“The Eighth Amendment, which forbids cruel and unusual

punishments, contains a ‘narrow proportionality principle’ that

‘applies to noncapital sentences.’” Ewing v. California, 538

U.S. 11, 20 (2003) (citations omitted). “A court must consider

three proportionality factors when evaluating Eighth Amendment

challenges: (1) the gravity of the offense and the harshness of

the penalty; (2) the sentences imposed on other criminals in the

same jurisdiction; and (3) the sentences imposed for commission

of the same crime in other jurisdictions.” United States v.

Burnett, 773 F.3d 122, 136 (3d Cir. 2014) (citing Solem v. Helm,

463 U.S. 277, 290-92 (1983)). “In conducting this analysis, a

court grants substantial deference to legislative decisions

regarding punishments for crimes.” Id.

“The first factor acts as a gateway to the proportionality

inquiry. The Eighth Amendment only forbids sentences that are

‘grossly disproportionate’ for a conviction for the crime

involved.” Rollins, 2022 WL 2358387, at *17. Petitioner

received “an aggregate term of life imprisonment plus forty

years, subject to ninety-four and one-quarter years of parole

ineligibility.” Laurance, 2014 WL 8481101, at *1. New Jersey

authorizes a life sentence for first-degree felony murder, which

is only one of the crimes of which Petitioner was convicted.

N.J.S.A. § 2C:11–3(b)(1) (“Murder is a crime of the first degree

but a person convicted of murder shall be sentenced . . . by the

court to a term of 30 years, during which the person shall not

be eligible for parole, or be sentenced to a specific term of

years which shall be between 30 years and life imprisonment of

which the person shall serve 30 years before being eligible for

parole.”).

“Generally, a sentence within the limits imposed by statute

is neither excessive nor cruel and unusual under the Eighth

Amendment.” United States v. Miknevich, 638 F.3d 178, 186 (3d

Cir. 2011). Petitioner’s life sentence is within the statutory

limit for his felony murder conviction, and courts in this

District have found that life sentences are not grossly

disproportional for felony murder convictions. See Wilson v.

Cathel, No. 04-4705, 2006 WL 3796863, at *10 (D.N.J. Dec. 21,

2006) (finding that a life sentence for felony murder did not

rise to the level of disproportionality that violates the Eighth

Amendment); Peoples v. Cathel, No. 05-5916, 2006 WL 3419787, at

*12 (D.N.J. Nov. 21, 2006) (same). If Petitioner’s life

sentence is proportional for his felony murder conviction alone,

then it follows that it is proportional when his other

convictions are considered. “If the petitioner fails to

demonstrate a gross imbalance between the crime and the

sentence, a court’s analysis of an Eighth Amendment challenge

ends.” Rollins v. Slaughter, No. 19-13390, 2022 WL 2358387, at

*17 (D.N.J. June 30, 2022). “Thus, although the Appellate

Division addressed Petitioner’s sentencing claims under the lens

of state law, its reasoning was neither contrary to, nor an

unreasonable application of, clearly established federal law.”

Id. at *18. The Court will deny habeas relief on this claim.

G. Cumulative Error

Petitioner alleges the cumulative errors at trial deprived

him of a fair trial. “Cumulative errors are not harmless if

they had a substantial and injurious effect or influence in

determining the jury’s verdict, which means that a habeas

petitioner is not entitled to relief based on cumulative errors

unless he can establish ‘actual prejudice.’” Albrecht v. Horn,

485 F.3d 103, 139 (3d Cir. 2007) (quoting Brecht v. Abrahamson,

507 U.S. 619, 637 (1993)). The Court has reviewed the Appellate

Division’s decision with the appropriate AEDPA deference and

concludes the decision was not contrary to or an unreasonable

application of federal law as determined by the Supreme Court.

The decision was also reasonable based on the facts at trial.

“Petitioner has (i) failed to cast doubt over the proofs of his

guilt, and (ii) failed to establish that he has suffered any

prejudice from the purported errors. Thus, Petitioner has not

proven that the alleged cumulative errors had ‘a substantial and

injurious effect or influence in determining the jury’s

verdict.’” Thomas v. Johnson, No. 18-0710, 2022 WL 603002, at

*28 (D.N.J. Mar. 1, 2022) (quoting Fahy v. Horn, 516 F.3d 169,

205 (3d Cir. 2008), certificate of appealability denied sub nom.

Thomas v. Adm’r New Jersey State Prison, No. 22-1540, 2022 WL

4363552 (3d Cir. Aug. 30, 2022). The Court will deny habeas

relief on this ground.

H. Ineffective Assistance of Counsel12

Petitioner’s final claim is that his felony murder,

robbery, kidnapping, and carjacking convictions must be reversed

“because trial counsel did not object[] during the Court’s

instruction to the jury, which included several instances of

‘and/or’ terminology in describing crimes for which a jury can

find a defendant guilty of a substantive offense and crimes for

12 “[T]he federal role in reviewing an application for habeas

corpus is limited to evaluating what occurred in the state or

federal proceedings that actually led to the petitioner’s

conviction; what occurred in the petitioner’s collateral

proceeding does not enter into the habeas proceeding.” Hassine

v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998) (emphasis

omitted). Accordingly, the Court limits its review to

Petitioner’s ineffective assistance of counsel claim and does

not consider Petitioner’s argument that the PCR court erred by

failing to conduct an evidentiary hearing. See also Lambert v.

Blackwell, 387 F.3d 210, 247 (3d Cir. 2004)(“alleged errors in

[state] collateral proceedings ... are not a proper basis for

habeas relief”).

which a jury can find a defendant guilty via co-conspirator

liability.” ECF No. 20 at 32. The PCR court denied this claim

without an evidentiary hearing on October 20, 2016. ECF No. 11-

22. The Appellate Division affirmed substantially for the

reasons set forth by the PCR court. State v. Laurance, No. A-

2290-16T1, 2018 WL 2122726, at *2 (N.J. Super. Ct. App. Div. May

9, 2018).

The state courts correctly identified Strickland v.

Washington, 466 U.S. 668 (1984) as the governing standard for

ineffective assistance of counsel claims. See Laurance, 2018 WL

2122726, at *1. To succeed on his claim, Petitioner must “show

that counsel’s representation fell below an objective standard

of reasonableness.” Strickland, 466 U.S. at 688 (1984). He

must then show “a reasonable probability that, 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.” Id. at 694.

Furthermore, “[w]hen a federal habeas petition under § 2254

is based upon an ineffective assistance of counsel claim, ‘[t]he

pivotal question is whether the state court’s application of the

Strickland standard was unreasonable,’ which ‘is different from

asking whether defense counsel’s performance fell below

Strickland’s standard.’” Grant v. Lockett, 709 F.3d 224, 232

(3d Cir. 2013) (quoting Harrington v. Richter, 562 U.S. 86, 101

(2011)). “Federal habeas review of ineffective assistance of

counsel claims is thus ‘doubly deferential.’” Id. (quoting

Cullen v. Pinholster, 563 U.S. 170, 190 (2011)).

The PCR court, who was also the trial court, conceded it

“utilized ‘and/or’ terminology several times during the jury

instructions. Its usage was identical with respect to each

charge, the language changing each time only to accommodate the

differing elements.” ECF No. 11-22 at 10.

As an example, the Court’s kidnapping instruction read

thusly:

In order for you to find the defendant guilty of

kidnapping, the State is required to prove each of the

following elements beyond a reasonable doubt: that the

defendant, Lenroy Laurance and/or the conduct of another

person for which he is legally accountable unlawfully

removed Lyudmila Burshteyn from her place of business or

a substantial distance from the vicinity where she was

found or unlawfully confined Lyudmila Burshteyn for a

substantial period.

If you find that the State has proven beyond a reasonable

doubt that the defendant and/or the conduct of another

person for which he is legally accountable is guilty of

kidnapping but you have reasonable doubt as to whether

the State has proven that he knowingly harmed Lyudmila

Burshteyn or knowingly did not release her in a safe

place prior to her apprehension, you should find the

defendant guilty of kidnapping in the second degree.

If you find beyond a reasonable doubt that the defendant

and/or the conduct of another person for which he is

legally accountable is guilty of kidnapping and that he

knowingly harmed Lyudmila Burshteyn or knowingly did not

release her in a safe place prior to her apprehension,

then you should find the defendant guilty of kidnapping

in the first degree.

Id. “The court used ‘and/or’ in its robbery, carjacking, and

felony murder instructions, using identical language to describe

co-conspirator liability.” Id. at 11. Petitioner argued the

language was deficient under state law because “the phrase

‘and/or’ served to confuse the jury by opening the possibility

that a juror could think Defendant conspired or was an

accomplice in a way that he did not act.” Id. at 10.

The PCR court disagreed and concluded there was no error

under state law. “Here, the Court’s use of ‘and/or’ was limited

to describing the relationship between Defendant’s own conduct

and the conduct of others with whom he was in league. At no

point was ‘and/or’ used in such a way that would cause confusion

as to which charge the defendant could be guilty of via co-

conspirator or accomplice liability.” Id. at 12. “The Court

gave separate instructions for each count, and did not conjoin

them . . . . For this reason, the jury instructions given at

trial provided sufficiently clear and correct guidance to the

jury.” Id. at 12-13.

The PCR court further concluded that even “if Defendant

were to succeed in showing deficient performance under prong one

of Strickland, he could not have succeeded under prong two.”

Id. at 13. “[T]here was very strong and compelling evidence of

Defendant’s guilt adduced at trial. The jury was presented

evidence directly implicating Defendant with committing the

crime, including Defendant’s own admission that he was present

at the scene of the killing of Ms. Burshteyn during the course

of a kidnapping.” Id. The Appellate Division agreed with this

assessment.

Although “and/or” was extensively used throughout the

instructions, and it did on occasion offer the jury an

opportunity to consider two different crimes, our review

of the entire jury charge convinces us that the phrase

did not create ambiguity or confusion. Given the

substantial evidence of defendant’s guilt, any error was

harmless beyond a reasonable doubt. Therefore, even if

trial counsel rendered deficient performance by not

objecting, there is no “reasonable probability” that

defendant suffered any prejudice.

Laurance, 2018 WL 2122726, at *2.

The Court concludes that the state courts reasonably

applied Strickland. As discussed supra, “it is not the role of

the federal courts to review state court jury instruction

rulings that are based on state law.” Howard v. D’Ilio, No. 14-

4758, 2018 WL 1014168, at *5 (D.N.J. Feb. 22, 2018). “The

burden of demonstrating that an erroneous instruction was so

prejudicial that it will support a collateral attack on the

constitutional validity of a state court’s judgment is even

greater than the showing required to establish plain error on

direct appeal.” Henderson v. Kibbe, 431 U.S. 145, 154 (1977).

“It is the rare case in which an improper instruction will

justify reversal of a criminal conviction when no objection has

been made in the trial court.” Id.

The trial court explained its use of “and/or” to the jury

as part of its instructions on co-conspirator liability:

[Y]ou’ve often heard me say the following with regard to

the defendant’s conduct, I’ll make a statement that if

you find beyond a reasonable doubt that the defendant,

and then I use the phrase and/or the conduct of another

person for which he is legally accountable committed the

crime of, you’ve heard me say that. And that really

applies to every one of the crimes outlined in the

indictment.

And I’m going to go over co-conspirator liability so

that you have an understanding of why that is so. . . .

We’ve already talked about felony murder that that

concept attached to it. So I’m going to go over co-

conspirator liability so that you understand that

concept as well and why it is that I’ve used that type

of language whenever I refer to the defendant, that

really applies to all the charges in the indictment,

okay.

21T213:5-23. “Defendant never asserted that the instructions on

coconspirator or accomplice liability were deficient.”

Laurance, 2018 WL 2122726, at *2 n.2.

The PCR court and the Appellate Division concluded that the

use of “and/or” during jury instructions did not violate state

law, and this Court has no authority to review that

determination under § 2254. Once the state courts concluded the

instruction complied with state law, they reasonably determined

that trial counsel did not err by failing to object to the

instructions. Accordingly, the state courts reasonably applied

Strickland to Petitioner’s ineffective assistance of counsel

claim.

The Court further notes that there is no conflict with

federal law when the instructions are considered in their

entirety. See Estelle v. McGuire, 502 U.S. 62, 72 (1991) (“It

is well established that the instruction ‘may not be judged in

artificial isolation,’ but must be considered in the context of

the instructions as a whole and the trial record.” (quoting Cupp

v. Naughten, 414 U.S. 141, 147 (1973))). The trial court

concluded its instructions to the jury with the admonition that

its verdict must be unanimous: “You may return on each crime

charged a verdict of either not guilty or guilty. Your verdict,

whatever it may be as to each crime charged, must be unanimous.

Each of the 12 members of the deliberating jury must agree as to

the verdict.” 21T219:21-25. This is sufficient under federal

law. “The court did not . . . need to instruct the jury that it

must unanimously agree on the theory of liability, i.e.,

principal or accomplice.” United States v. Osorio, 757 F. App’x

167, 171 (3d Cir. 2018). See also United States v. Ferguson,

676 F.3d 260, 279 (2d Cir. 2011) (“[A] jury is unanimous even if

some jurors convicted on a theory of principal liability and

others on aiding and abetting.”). The entirety of the jury

instructions conveyed to the jury the elements of each offense,

that it was the state’s responsibility to prove each offense

beyond a reasonable doubt, and that any verdict had to be

unanimous.

The state courts also reasonably concluded that Petitioner

did not satisfy Strickland’s prejudice prong.

Here, had [trial counsel] objected to the “and/or”

language and it was rephrased, the verdict likely would

not have come out differently. This is not only because

the use of “and/or” was not used in the manner in which

it was used in [State v. Gonzalez, 130 A.3d 1250 (N.J.

Super. Ct. App. Div. 2016] (i.e. creating confusion as

to which substantive charge the jury could find a

defendant guilty) but because there was very strong and

compelling evidence of Defendant’s guilt adduced at

trial. The jury was presented evidence directly

implicating Defendant with committing the crime,

including Defendant’s own admission that he was present

at the scene of the killing of Ms. Burshteyn during the

course of a kidnapping.

ECF No. 11-22 at 13; see also Laurance, 2018 WL 2122726, at *2

(noting there was “substantial evidence of defendant’s guilt”).

This is a reasonable conclusion based on the facts at trial, and

the state courts reasonably applied Strickland in making their

determinations. Accordingly, the Court will deny habeas relief

on this claim.

IV. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), a petitioner may not

appeal from a final order in a habeas proceeding where that

petitioner’s detention arises out of his state court conviction

unless he has “made a substantial showing of the denial of a

constitutional right.” “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 that the issues presented here are

adequate to deserve encouragement to proceed further.” Miller-

El v. Cockrell, 537 U.S. 322, 327 (2003).

For the reasons expressed above, Petitioner has failed to

make a substantial showing that he was denied a constitutional

right. As jurists of reason could not disagree with this

Court’s resolution of the claims, the Court will deny Petitioner

a certificate of appealability.

V. CONCLUSION

For the foregoing reasons, the Court will deny the second

amended petition for writ of habeas corpus under 28 U.S.C. §

2254. A certificate of appealability will not issue.

An appropriate order will be entered.

Dated:

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.