LANE v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

TRAVIS LANE, Civil Action No. 15-4108 (FLW)

Petitioner,

OPINION

v.

THE ATTORNEY GENERAL OF THE

STATE OF NEW JERSEY, et al.,

Respondents.

This matter has been opened to the Court by Petitioner Travis Lane’s (“Lane,”

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

§ 2254. Having reviewed the Petition, Respondent’s Answer, Petitioner’s Traverse, and the

relevant record, the Court denies the Petition for the reasons stated in this Opinion, and also

denies a certificate of appealability (“COA”).

I. FACTUAL BACKGROUND1 AND PROCEDURAL HISTORY

Defendant was convicted after a 2007 jury trial of first-degree aggravated manslaughter,

N.J.S.A. 2C:11–4, as a lesser-included offense of purposeful murder, N.J.S.A. 2C:11–3; first-

degree felony murder, N.J.S.A. 2C:11–3(a)(3); first-degree armed robbery, N.J.S.A. 2C:15–1;

and third-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39–4(d).

Defendant committed the offenses when he was seventeen years old, but was tried as an adult.

After merger, the court sentenced defendant to a forty-year term, with an eighty-five percent

parole bar pursuant to the No Early Release Act (“NERA”), N.J.S.A. 2C:43–7.2. The Appellate

1 The facts are taken from the record, including the Appellate Division’s decisions denying

Petitioner’s direct appeal and petition for postconviction relief.

Division affirmed the conviction and sentence on direct appeal. See Exhibit 28, State v. Lane,

No. A–2238–07 (App. Div. Apr.13, 2010). The Supreme Court of New Jersey denied

certification. State v. Lane, 203 N.J. 96 (2010).

Petitioner filed a PCR on or about October 27, 2010, asserting claims of ineffective

assistance of counsel. See Exhibit 29. On December 9, 2011, the PCR Court denied the PCR

without an evidentiary hearing. See Exhibit 31; see also Exhibit 24. The Appellate Division

affirmed the denial of Petitioner’s PCR on August 12, 2014. See Exhibit 34. The Supreme

Court of New Jersey denied certification on February 5, 2015. State v. Lane, 220 N.J. 573

(2015).

Petitioner submitted the instant Petition on or about June 12, 2015. See ECF No. 1, at 13.

Petitioner sought to amend his Petition to exhaust claims brought in a second PCR in state court.

See ECF Nos. 5, 10, 11. The Court denied Petitioner’s stay motions without prejudice. ECF

Nos. 9, 18. On April 16, 2018, Petitioner sought to withdraw his Amended Petition and proceed

on his Original Petition, which contains two grounds for relief. See ECF Nos. 21. The Court

directed Respondents to Answer the Original Petition. See ECF No. 22.

When Respondents failed to Answer, the Court issued a second Order to Answer on

December 7, 2018, and Respondents filed their Answer on January 18, 2019. See ECF Nos. 25,

27. Petitioner filed his traverse on February 4, 2019. ECF No. 28.

II. STANDARD OF REVIEW

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

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

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

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

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

101 (1996), 28 U.S.C. § 2244, federal courts in habeas corpus cases must give considerable

deference to determinations of state trial and appellate courts. See Renico v. Lett, 599 U.S. 766,

772 (2010).

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

(d) An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not be

granted with respect to any claim that was adjudicated on the

merits in State court proceedings unless the adjudication of the

claim-

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

an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States; or

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

determination of the facts in light of the evidence presented

in the State court proceeding.

28 U.S.C. § 2254(d).

Where a state court adjudicated a petitioner’s federal claim on the merits,2 a federal court

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

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

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

determination of the facts in light of the evidence presented in the State court proceeding.’”

Parker v. Matthews, 567 U.S. 37, 40-41 (2012) (quoting 28 U.S.C. § 2254(d)).

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

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

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

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

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

omitted).

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

court decision. White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (quoting Williams v. Taylor, 529

U.S. 362, 412 (2000)). A decision is “contrary to” a Supreme Court holding within 28 U.S.C. §

2254(d) (1) if the state court “contradicts the governing law set forth in [the Supreme Court’s]

cases” or if it “confronts a set of facts that are materially indistinguishable from a decision of

th[e Supreme] Court and nevertheless arrives at a [different] result.” Williams, 529 U.S. at 405-

06. Under the “‘unreasonable application’ clause of § 2254(d)(1), a federal habeas court may

grant the writ if the state court identifies the correct governing legal principle from th[e]

[Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s

case.” Williams, 529 U.S. at 413. As to 28 U.S.C. § 2254(d)(1), a federal court must confine its

examination to evidence in the record. Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011).

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

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

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

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

presumption of correctness by clear and convincing evidence.” 29 U.S.C. § 2254(e)(1); see

Miller–El v. Dretke, 545 U.S. 231, 240 (2005). Second, the AEDPA precludes habeas relief

unless the adjudication of the claim “resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d)(2).

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

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

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

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

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

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

III. ANALYSIS

a. Ground One

In Ground One, Petitioner contends that the Appellate Division unreasonably applied

clearly established federal law in affirming the trial court’s denial of Petitioner’s motion to

suppress his confession and finding that Plaintiff’s confession was knowing and voluntary.

The Appellate Division provided the following factual background for this claim:

The State’s proofs can be summarized as follows. On

September 11, 2004, Hernandez lived in Neptune with his aunt

(Clotilde Hernandez), Eligio Aguilar, and several others. He was a

recent immigrant from Mexico. That day, Hernandez went to a

store to buy an international phone card. He went there on a

bicycle he had recently purchased for $78. Around 6:30 p.m.,

Hernandez's aunt heard him knocking “desperately” on the front

door. Upon opening it, she saw Hernandez bleeding profusely from

a neck wound. He told her, “They stole the bike from me and I was

stabbed.” The aunt screamed for Aguilar. Hernandez told Aguilar,

“They robbed my bicycle and wounded me.” Hernandez pointed at

the perpetrators down the street. Aguilar saw someone riding

Hernandez’s bicycle with another person running next to him.

Aguilar immediately drove Hernandez to the hospital. Hernandez

lapsed into unconsciousness and was pronounced dead later that

night.

Fifteen-year-old Zane (E.J.) McBride testified that he was

riding his bike when he saw Hernandez on a bicycle. Defendant

was behind Hernandez and someone on a green bike was behind

defendant. Defendant ran up and hit Hernandez in the back of the

head. Hernandez hit defendant back on the chin. Defendant

“jumped in the street with his hands out” hitting Hernandez again.

Hernandez got off his bike and ran into the house screaming

something in Spanish. Defendant then got on the bike and rode it

toward a nearby deli. McBride gave a statement to the police and

identified defendant's photograph as portraying the person who

attacked Hernandez.

Sixteen-year-old Antonio Delaney testified that he was near

defendant's house when he saw an altercation between defendant

and Hernandez. Delaney saw defendant run past him with a knife

and hit Hernandez in the lower jaw area as Hernandez was riding

his bicycle. After Hernandez fell to the ground, defendant got on

Hernandez’s bike and rode away. Hernandez held his neck as

defendant rode off on the bike.

Fourteen-year-old Albert Miles testified that he did not

recall any conversation he had with defendant despite having given

a statement to the police to the contrary. He acknowledged the

statement given was, however, accurate. In his statement, Miles

indicated that the day after Hernandez’s death, defendant said “I

killed the Mexican.” Defendant told Miles that “he went over

across the street and he hooked the Mexican and the Mexican

hooked him back.” By hooking, Miles meant defendant “took a

swing at him.” Defendant told Miles he had stabbed Hernandez in

the neck and took his bike.

As a result of the information received, Neptune Detectives

Barry DuBrosky and Eugene Stewart arrested defendant at his

school four days after the stabbing. Defendant was called to the

principal’s office and upon his arrival he was placed under arrest,

patted down, and handcuffed. The detectives then took him to the

Neptune Police Department where his mother, Edith Fuller, was

waiting. Detective DuBrosky explained to Fuller that because

defendant was not an adult, she would need to give permission for

the detectives to question him. Fuller agreed and defendant also

agreed that he would speak with them.

DuBrosky presented defendant with a Miranda3 warning

and waiver form. After each of the five Miranda warnings was

read aloud, both defendant and Fuller initialed the appropriate

section and signed at the end of the form. Detectives DuBrosky

and Stewart then signed the form and recorded the date and time:

September 15, 2004, at 1:22 p.m.

Defendant initially denied any wrongdoing. He told the

detectives that he was playing basketball with friends and filling

out job applications the day Hernandez was murdered. He said he

came back to his house that afternoon and was sitting in his

backyard when McBride came running and told him that “a

Mexican got cut in front of the house.” Defendant said he did not

react to McBride's statement and instead carried on his

3 “Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).” State v. Lane, No.

05–05–1205, 2010 WL 1526360, at *2 n.1 (N.J. Super. App. Div. Apr. 13, 2010).

conversation. He said he had a hard time sleeping that night

because he was thinking about his recently deceased grandmother.

DuBrosky asked defendant if he had a hard time sleeping

because he had killed Hernandez. Defendant said, “I was in

Belmar, ask [McBride].” DuBrosky then told defendant and Fuller

that the reason he was arrested was because there were statements

by witnesses against him. Defendant still repeatedly insisted that

they “ask [McBride]” to verify his story.

DuBrosky asked defendant how he would feel if someone

killed his mother or sister. Defendant did not respond. The

detective then asked how he would feel if someone had killed his

grandmother for a bicycle. Defendant looked at his mother and

became angry. He clenched his fists and was breathing heavy,

almost snorting. DuBrosky raised his voice and said, “You’ve got

to be kidding me. I’m pissing you off. You kill a man for a $78

bicycle and I'm fucking pissing you off? You've got to be kidding

me.” Defendant was mad and again insisted several times that they

“ask [McBride]” to verify his story.

At that point in the questioning, Neptune Deputy Chief Guy

McCormick knocked on the door and asked the detectives to leave

so that he could talk to defendant alone. McCormick came out five

minutes later and told the detectives that defendant had just seen

McBride’s statement and that they should go back in to continue

the questioning.

When the detectives re-entered the room, defendant was

somber and Fuller seemed very upset. DuBrosky told defendant he

needed to be honest with them and his mother. Defendant then

stood up from his chair and said, “I'm sorry, I did it.” He then

walked over to his mother and hugged her, repeatedly saying he

was sorry.

After a short bathroom break, defendant agreed to give a

formal statement. The statement began at 3:06 p.m., ended at 4:12

p.m., and was ten pages long. Defendant said that he alone was

responsible for the stabbing, which was unintentional. He said that

he was truly sorry. He denied taking the bicycle. Defendant

reviewed the statement with the detectives, which was documented

by video recording. Both defendant and Fuller initialed the bottom

of each page to indicate that the contents were accurate.

Eleven months later, defendant wrote a letter to DuBrosky

asking to speak with him as soon as possible. Defendant wrote:

[Y]ou should know that [had I] not made the

statement ... [t]he real person responsible for this

crime threatened me with the same result as the

victim. I was in fear for my life as well as the lives

of my family.”

A second letter was sent to the Monmouth County

Prosecutor's Office on July 5, 2005. This letter used the same exact

language.

Defendant later testified that he did not stab Hernandez.

According to defendant, the letters he sent were lies and he had

never been threatened by the “real person” who committed the

crime. Instead, he claimed that it was the police who threatened

him. He testified that DuBrosky threatened to ask for the death

penalty if he did not give a statement and sign the Miranda form.

Defendant testified, “I was scared of the death penalty, and I was

tired of them saying those things about my grandmother and my

family. So, I just told them ... what they wanted to hear, and made

up a story.” He said he signed the Miranda form to be

“cooperative,” but did not understand what it meant.

Prior to trial, defendant moved to suppress his confession.

A hearing was held to determine whether defendant was competent

to understand the waiver form and to voluntarily, knowingly, and

intelligently waive his rights.

Mark Siegert, Ph.D., a psychologist, testified as an expert

for the defense. Siegert met with defendant on five occasions and

reviewed all documents related to the case, including the

videotaped confession, as well as defendant's school records.

These records indicated that when defendant was almost eight

years old, his testing in math, reading, recognition, and general

information put him at an equivalent of less than five years old.

Around this time, the school classified defendant as neurologically

impaired and “educably mentally retarded” (with an IQ of sixty-

three) and placed him in a special school. He was also diagnosed

with Attention Deficit Hyperactivity Disorder (ADHD).

Siegert performed a long list of IQ and competency tests.

One test revealed “significant distortions in his ability to see,

process, and reproduce simple geometric shapes.” When asked to

draw the face of a clock, defendant did not know if there were

twelve or thirteen numbers and then placed the numbers out of

order. Defendant did not know the name of the current or past U.S.

President, and said “I don’t even know who the mayor of New

Jersey is.” In Siegert’s opinion, defendant’s drawings of houses,

trees, and people were of the types of drawings that “very, very

young children” create.

Siegert then administered the Wechsler Adult Intelligence

Scale Three Test. Defendant’s verbal score was a sixty-nine and

his full scale score was sixty, placing him in the first percentile,

meaning that 99% of people his age scored higher. More testing

revealed that 99.9% of people his age scored better in listening,

listening vocabulary, listening grammar, speaking ability, reading,

and writing ability. These scores placed Defendant in the mild

range of mental retardation.

In terms of specifically testing defendant’s ability to

understand the Miranda warnings, Siegert used the Grisso test,

also called “Understanding and Appreciation of the Miranda

Rights Assessment.” In this test, Siegert first asked defendant to

say in his own words what he thought the Miranda warning meant.

Next Siegert used substituted words and asked defendant whether

the statements were then the same or different from the ones in the

Miranda warning. Only 4.5% of offenders scored as low or lower

than defendant did on understanding Miranda rights.

After performing the evaluations of defendant, Siegert

concluded as follows:

I found Travis Lane to be mentally retarded

with an IQ less than 70, cognitive deficits beginning

before age 18 and more than two significant

adaptive skill deficits.... I found him to have severe

ADHA.... [H]is language deficits are below the first

percentile in all measured tasks, that not only would

render his ability to understand what is said in the

courtroom as inadequate, but combined with other

cognitive deficits and his ADHA, it rendered him in

my opinion unable to understand the Miranda

warning at the time. And I noted there that when

[defendant] does not understand something he acts

as if he does understand it. That's part of his

preserving his self-esteem and trying to act like a

man.

I found his reading level to be at the third

grade or the first percentile. And I do not believe he

could have understood the Miranda warning in

terms of beyond—I think he could read many of the

words, not all of them, but I don't believe in real

time and without teaching he could have understood

the meaning of them on the Miranda form. I noted

his memory even both immediate and at a gap of

[twenty] minutes as severely deficient, below 0.1st

percentile. And that would affect his ability to

remember the warning given verbally and read and

process[ ] what that means so he could weigh or

understand the meaning of it.

Louis Schlesinger, Ph.D, a psychologist, testified as the

State’s expert witness. Schlesinger found Siegert’s testing to be

flawed. Most notably, Schlesinger disagreed with the use of the

Grisso test and Siegert’s conclusion that defendant did not

understand the Miranda warnings. The Grisso test uses a Miranda

form with different language than the one used by the Neptune

Police Department and signed by defendant.

In Schlesinger’s opinion, defendant was fully capable of

understanding the Miranda warnings. Schlesinger reviewed the

actual Neptune Miranda form with defendant and asked him to say

in his own words what each of the warnings meant. Schlesinger

also administered the Grisso test and felt that even though that

form was more advanced than the Neptune form, defendant’s

answers satisfactorily demonstrated that he understood his

Miranda rights when he waived them.

Schlesinger also testified that there were errors in the other

tests that Siegert administered to defendant. Schlesinger detailed

numerous questions where defendant had received a zero score

from Siegert, but when asked the same question again by

Schlesinger defendant gave an answer worthy of half or full credit.

Schlesinger said Siegert failed to ask appropriate follow-up

questions when defendant refused to answer or gave a vague

answer. Additionally, Schlesinger found calculation errors in

Siegert’s results. When Siegert’s results were recalculated,

defendant's verbal IQ was a seventy-eight, not a sixty-nine as

Siegert originally found. This placed defendant in the borderline to

low average range for verbal intelligence.

After performing a number of other tests, Schlesinger

concluded that defendant was not mentally retarded. He noted that

in 1999, a psychiatrist had also found that defendant had

“borderline intellectual functioning” and was not mentally

retarded. Ultimately, Schlesinger presented the following

conclusions to the court:

[Defendant] is not mentally retarded

according to diagnostic criteria. He has attention

deficit hyperactivity disorder of a hyperactive

impulsive type, he has conduct disorder that's now

developed into a personality disorder, with

antisocial and impulsive traits. He has a history of

alcohol and marijuana abuse. I also found some

mild organicity and a learning disability. But he was

completely competent to make a free, knowing, and

voluntary waiver of his Miranda rights when they

[were] read to him when he was arrested.

The judge also heard testimony from defendant, his mother,

and the detectives. Fuller gave conflicting testimony. At first she

said she heard DuBrosky threaten her son with life imprisonment if

he did not make a statement. After the hearing recessed for lunch,

Fuller testified during cross-examination that DuBrosky had

threatened defendant with the death penalty.

The judge denied defendant’s motion to suppress the

statement. The judge found that defendant and Fuller were not

credible witnesses because of inconsistencies in their testimony

concerning the threats they alleged DuBrosky made. In contrast,

the trial judge found that the detectives were credible and their

testimony was supported by documentary evidence such as the

signed waiver form, the written statement, and the videotaped

review of the statement. The judge found that defendant’s

statement was voluntarily given.

On the issue of defendant’s ability to understand the

Miranda warnings, the judge found that both expert opinions “were

really outweighed by the lay evidence ... [i]ncluding the testimony

of [defendant.]” This lay evidence led to the conclusion that

“[defendant] demonstrated sufficient intelligence to understand his

Miranda rights. The judge noted defendant’s school difficulties,

but concluded that “understanding Miranda is really not that

complicated.” The judge found Schlesinger’s testimony “more in

accord with the court’s findings in evaluation of that lay

testimony” and that “Siegert passed the stage of being an impartial

expert to that of being [Defendant’s] advocate.”

State v. Lane, No. 05–05–1205, 2010 WL 1526360, at *1–5 (N.J. Super. App. Div. Apr. 13,

2010).

The Appellate Division analyzed Petitioner’s claim that his confession was not knowing

and voluntary under the totality of the circumstances, and rejected it as follows:

It is settled that “[c]onfessions obtained by the police during a

custodial interrogation are barred from evidence unless the

defendant has been advised of his or her constitutional rights.”

State v. Knight, 183 N.J. 449, 461, 874 A.2d 546 (2005). A waiver

of the constitutional right against self-incrimination must be

voluntary, knowing, and intelligent. Ibid. (citing Miranda, supra,

384 U.S. at 444, 86 S.Ct. at 1612, 16 L. Ed.2d at 707). In New

Jersey, the burden is upon the State to prove the validity of a

Miranda waiver beyond a reasonable doubt. State v. O’Neill, 193

N.J. 148, 168 n. 12, 936 A.2d 438 (2007).

New Jersey utilizes the “totality of the circumstances” test to

determine the validity of a waiver. Knight, supra, 183 N.J. at 462–

63, 874 A.2d 546. The factors include personal characteristics such

as the defendant’s age, education, and intelligence, as well

indicators of the nature of the interrogation, such as the length in

detention and whether physical or mental exhaustion were

involved in obtaining the confession. Ibid. Courts also consider a

defendant’s previous interactions with law enforcement and the

length of time between the administration of the warnings and the

given statement. Id. at 463, 874 A.2d 546.

At the time of arrest, defendant was seventeen. Whether a parent

was present when a juvenile’s confession is given is a “highly

significant factor” in determining whether a waiver is valid. State

v. Presha, 163 N.J. 304, 315, 748 A.2d 1108 (2000). As is required

by N.J.S.A. 2A:4A–33, the police officers contacted defendant’s

mother at the time of his arrest. She was present at the time he

signed the Miranda form, when the statement was given, and when

the statement was reviewed.

The crux of defendant’s argument that his Miranda waiver was

invalid rests upon his alleged “severe intellectual deficiencies” and

“significantly impaired educational and mental characteristics.”

Defendant cites State in the Interest of S.H., 61 N.J. 108, 115, 293

A.2d 181 (1972), and argues “[a person] cannot make a knowing

and intelligent waiver of something he cannot understand.”

Defendant concedes that a limited intelligence “does not

necessarily render [a waiver] involuntary in nature,” but argues

that according to State v. Flowers, 224 N.J. Super. 208, 214, 539

A.2d 1284 (Law Div.1987), aff’d o.b. 224 N.J. Super. 90, 539

A.2d 1223 (App.Div.1989)), those with a diminished mental

capacity must be “treated differently [than] adults who are

presumed to be responsible.”

A defendant’s IQ is not dispositive in determining whether

Miranda warnings were understood. State v. Carpenter, 268 N.J.

Super. 378, 385, 633 A.2d 1005 (App. Div.1993), certif. denied,

135 N .J. 467, 640 A.2d 848 (1994). Nor does participation in

special education courses, illiteracy, or even mild retardation

automatically render a Miranda waiver invalid. Ibid. Instead, “each

case must be examined on an individual basis.” Ibid.

Our standard of review of a trial court’s findings as to the

admissibility of a defendant’s confession is the “sufficient credible

evidence” standard. State v. Elkwisni, 384 N.J. Super. 351, 366,

894 A.2d 1180 (App. Div.2006), aff’d, 190 N.J. 169, 919 A.2d 122

(2007). Thus, reversal will occur only if the trial court’s findings

“are not supported by substantial credible evidence.” Ibid. Here,

the judge found Schlesinger to be the more credible expert witness

and believed that Siegert had moved from being an impartial

expert to an advocate for defendant. More importantly, the judge

found that both expert opinions “were really outweighed by the lay

evidence ... [i]ncluding the testimony of [defendant.]” From our

review of the record, we conclude that the judge’s finding that

defendant understood the Miranda warnings was based on

sufficient evidence in the record.

A final step in the totality of the circumstances test is looking at

the nature of the interrogation. Knight, supra, 183 N.J. at 462–63,

874 A.2d 546. Defendant claimed DuBrosky threatened him with

the death penalty if he did not cooperate, while his mother gave

conflicting testimony. The judge found neither credible and instead

believed the testimony of the detectives and Chief McCormack

who said no threats were ever made. We give deference to the trial

judge on issues of credibility. N.J. Div. of Youth & Family Servs. v.

G.L., 191 N.J. 596, 695, 926 A.2d 320 (2007).

The length of defendant’s detention prior to the confession does

not render the statement involuntary. See Knight, supra, 183 N.J. at

468–69, 874 A.2d 546 (finding a detention that lasted the length of

a “daytime work shift” would not render a waiver involuntary);

State v. Morton, 155 N.J. 383, 450, 715 A.2d 228 (1988) (a nine-

and-a-half hour interrogation did not render waiver involuntary).

Finally, the time that lapsed between the administration of

Miranda warnings and defendant’s statement was minimal, as less

than two hours passed. We thus conclude that the judge’s finding

that defendant’s statement was voluntarily given must be affirmed.

State v. Lane, 2010 WL 1526360, at *6–7.

Here, the Appellate Division carefully examined Petitioner’s claim that his confession

was not knowing and voluntary and did not unreasonably apply clearly established federal law or

unreasonably determine the facts in resolving his claim.

Miranda provides that the accused may waive his rights, but must do so “voluntarily,

knowingly and intelligently. 384 U.S. at 475. In determining whether there has been a valid

waiver of Miranda rights, a court must conduct a two-part inquiry under a totality of the

circumstances standard. Moran v. Burbine, 475 U.S. 412, 421 (1986). First, the court looks to

the voluntariness of the statement, and whether the waiver was freely and deliberately given as

opposed to being obtained by coercion, intimidation, or deception. Id. Second, the court must

consider whether the waiver was “knowingly and intelligently” made, that is, whether the

accused was fully aware “both of the nature of the right being abandoned and the consequences

of the decision to abandon it.” Id.

The Supreme Court has held that the “totality of the circumstances approach is adequate

to determine whether there has been a waiver even where interrogation of juveniles is involved.”

Fare v. Michael C., 442 U.S. 707, 725 (1979). This approach includes the evaluation of the

juvenile’s age, education, experience, background, and intelligence, enabling the court “to take

into account those special concerns that are present when young persons, often with limited

experience and education and with immature judgment, are involved.” Id. See also Yarborough

v. Alvarado, 541 U.S. 652 (2004) (the characteristics of the defendant can include the

defendant’s age, education, and intelligence, as well as his prior experience with law

enforcement).

Further, “coercive police activity is a necessary predicate to the finding that a confession

is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.”

Colorado v. Connelly, 479 U.S. 157, 167 (1986). Absent police overreaching, which is causally

related to the confession, “there is simply no basis for concluding that a state actor has deprived a

criminal defendant of due process of law.” Id. at 164. Thus, beyond the necessary and crucial

element of police coercion, courts look to both the characteristics of the accused and the

circumstances of the interrogation in considering whether a confession is voluntary. See, e.g.,

Withrow v. Williams, 507 U.S. 680, 693–94 (1993) (concluding that the voluntariness of the

confession depends upon the totality of circumstances, including police coercion, length and

place of interrogation, the accused’s maturity, education, physical condition, intelligence, and

mental health, as well as ‘the failure of the police to advise the defendant of his rights to remain

silent and to have counsel present during the custodial interrogation.”); Scneckloth v.

Bustamonte, 412 U.S. 218, 226 (1973) (the voluntariness of a statement may often depend on

whether the accused’s will was overborne, a question that logically turns on the characteristics of

the accused).

Although the state bears the burden at trial of proving that a confession was voluntary,

this burden shifts on collateral review; a habeas petitioner must prove by a preponderance of the

evidence that his or her confession was involuntary. Miller v. Fenton, 796 F.2d 598, 604 (1986).

On collateral review, the reviewing court has a duty “to examine the entire record and make an

independent determination of the ultimate issue of voluntariness.” Davis v. North Carolina, 384

U.S. 737, 741-42 (1966); accord Beckwith v. United States, 425 U.S. 341, 348 (1971).

Moreover, under 28 U.S.C. § 2254(e)(1), “a determination of a factual issue made by a State

court shall be presumed to be correct. The applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing evidence.”; see also Marshall v. Lonberger,

459 U.S. 422, 434 (1983) (“federal habeas courts [have] no license to re-determine credibility of

witnesses whose demeanor has been observed by the state trial court”).

The Supreme Court has considered low intelligence and youth, along with other factors,

in assessing whether a confession was obtained in violation of a defendant’s due process rights.

See e.g., Reck v. Pate, 367 U.S. 433, 441-42 (1961) (finding that confession of 19 year-old

defendant of low intelligence held incommunicado, without food, physically weakened and in

pain for four consecutive days of six-to seven-hour continuous interrogation was obtained in

violation of due process); Gallegos v. Colorado, 370 U.S. 49, 55 (1962) (finding that confession

made by fourteen year old boy who was held for five days without sending for his parents or a

lawyer was obtained in violation of due process). But in less extreme cases, courts have often

found valid waivers with respect to custodial confessions in cases involving juveniles and

persons with low I.Q.s, such as Petitioner in this case. See Winfrey v. Wyrick, 836 F.2d 406 (8th

Cir.1987) (valid waiver from 17 year old with low I.Q.), cert. denied sub nom. Winfrey v.

Armontrout, 109 S.Ct. (1988); Vance v. Bordenkircher, 692 F.2d 978 (4th Cir. 1982) (valid

waiver from 15 year old with I.Q. of 62, no lawyer or parent present), cert. denied, 464 U.S. 833

(1983); Miller v. Maryland, 577 F.2d 1158 (4th Cir.1978) (valid waiver from 16 year old with

respect to a charge of murder); Williams v. Peyton, 404 F.2d 528, 530 (4th Cir.1968) (“youth by

itself is not a ground for holding a confession inadmissible”); United States v. Miller, 453 F.2d

634 (4th Cir.1972) (valid waiver by 14 year old defendant), cert. denied, 406 U.S. 923 (1972).

Thus, Petitioner’s “youth and intelligence level does not make the confession involuntary as a

matter of law[.]” See Vance, 692 F.2d at 981.

Here, the trial court analyzed whether Petitioner’s confession was voluntary under the

totality of the circumstances, consistent with clearly established federal law. The Appellate

Division affirmed the trial court’s determinations that Petitioner understood the Miranda

warnings and that his confession was not the product of coercion, and Petitioner has not met his

burden to show otherwise. In finding that Petitioner understood the Miranda warnings, the trial

court found the state’s expert to be the more credible expert witness regarding Petitioner’s level

of intelligence and comprehension abilities and also relied on Petitioner’s own testimony. And

although Petitioner and his mother claimed that the detectives threatened Petitioner during

questioning, the trial court did not find them credible and relied on the detectives’ and Chief

McCormack’s testimony that no threats were made. Petitioner has not provided clear and

convincing evidence contradicting any of the trial court’s findings. The remaining factors, i.e.,

the presence of Petitioner’s mother during the interrogation and the relatively short time between

the issuing of the Miranda warnings and the confession also weigh in factor of voluntariness.

For these reasons, the Appellate Division’s denial of Petitioner’s claim is not an unreasonable

application of clearly established federal law regarding knowing and voluntary confessions and

does not amount to an unreasonable determination of the facts in light of the evidence presented

at the suppression hearing. The Court denies habeas relief as to Ground One.

b. Ground Two

In Ground Two of his Petition, Petitioner contends that he was deprived of his Sixth

Amendment right to the effective assistance of counsel based on trial counsel’s failure 1) to

adequately investigate the credentials of the defense expert, Siegert, or 2) to ask for a

continuance to hire a new expert when counsel discovered that Siegert had “falsified” his

credentials. Plaintiff’s ineffective assistance of counsel claim is governed by the standard set

forth in Strickland v. Washington, 466 U.S. 668 (1984), which constitutes “clearly established

Federal law” for AEDPA purposes. Williams v. Taylor, 529 U.S. 362 (2000); Rainey v. Varner,

603 F.3d 189, 197 (3d Cir. 2010).

A habeas petitioner asserting a claim under Strickland must establish two elements.

“First, the defendant must show that counsel’s performance was deficient. This requires a

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

guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. In evaluating

counsel’s performance, “a court must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance[.]” Id. at 689. Thus, counsel’s

performance will be deemed deficient only if it “fell below an objective standard of

reasonableness.” 4 Id. at 688. The question ultimately is “whether, in light of all the

circumstances, the [challenged] acts or omissions were outside the wide range of professionally

competent assistance.” Id. at 690. “Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that counsel’s errors were so serious

as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. To establish

prejudice, “[t]he defendant must show that there is 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.

The Appellate Division summarized the factual background of Plaintiff’s ineffective

assistance claim and the PCR court’s assessment of that claim as follows :

At trial, as the sole defense witness, defendant repudiated his

confession and insisted, as he did initially to police, that he was in

Belmar when the crime was committed. He asserted a third party

committed the offense. He also claimed his confession was the

product of the death penalty threat and his desire to tell the police

what he believed they wanted to hear. The defense did not call

defendant’s mother. The defense also did not call Siegert at trial,

but defendant still testified that he did not understand the Miranda

warnings.

Defense counsel stated on the record, after the State rested, that he

had determined, in consultation with defendant and his mother, not

to call Siegert at trial because he had learned that Siegert had

embellished his qualifications and was subject to impeachment.

We quote at length from defense counsel’s statement:

4 Moreover, when § 2254(d) applies, as it does here, “the question is not whether counsel’s

actions were reasonable. The question is whether there is any reasonable argument that counsel

satisfied Strickland’s deferential standard.” Harrington v. Richter, 562 U.S. 86, 105 (2011). On

the one hand, “courts may not indulge ‘post hoc rationalization’ for counsel’s decisionmaking

that contradicts the available evidence of counsel’s actions” Id. at 109. On the other hand,

Strickland “calls for an inquiry into the objective reasonableness of counsel’s performance, not

counsel’s subjective state of mind.” Id. at 110 (citing Strickland, 466 U.S., at 688).

One of the issues at that Miranda hearing was

whether Mr. Lane was competent to understand and

waive his Miranda warnings.

I called an expert witness, a psychologist, who was

qualified by your Honor among other things, [in]

the area of forensic psychology....

....

During the course of this trial, I believe it was last

week, [the prosecutor] supplied me with some

transcripts where Dr. Siegert—Dr. Mark Siegert,

who testified in [the] Miranda Hearing for the

defense, testified in two separate cases.

....

As a result of reading those transcripts over the

weekend there were some serious questions as to

whether Dr. Siegert either intentionally or

unintentionally, I prefer to think unintentionally,

misstated his qualifications on both the website that

he has and his curriculum vitae.

For example, he conceded that he had no formal

training in forensic psychology. He had participated

in several workshops in forensic psychology. But

certainly had no formal training in [it].

He also indicated that he was a professor at Harvard

University. He had to concede during cross-

examination on the voir dire by the assistant

prosecutor in Middlesex County that he was not a

professor at Harvard University. He had been

affiliated with Cambridge Hospital and through his

affiliation with Cambridge Hospital he did have

dealings, perhaps taught a course at Harvard but

was not a professor at Harvard.

Based upon that, based upon my feelings

concerning his testimony in front of your Honor at

the Miranda Hearing, I reached a decision, which

Mr. Lane concurs with—and I can get his

confirmation on the record. That it would be against

Mr. Lane’s interest for me to present to this jury Dr.

Siegert and make the argument that Mr. Lane was

incompetent of understanding and waiving his

Miranda rights.

I discussed that with Travis. I discussed that with

Travis’ mother who—was in court during the entire

trial.... And we reached a general consensus that we

would not be calling Dr. Siegert to testify.

Defendant then agreed on the record that he conferred with his

attorney and understood that “by not having Dr. Siegert testify in

front of the jury we are not going to argue to the jury that you were

incompetent to understand and waive your Miranda rights.” He

also agreed it would “be wise and in your best interest not to call

Dr. Siegert.”

The thrust of defendant’s PCR petition is that trial counsel was

ineffective by failing to adequately investigate Siegert’s

qualifications, and then by failing to ask for a continuance to hire a

new expert.

. . . .

Judge Francis P. DeStefano denied the petition in a written

decision. The judge applied the well-settled two-prong test for

determining such claims. See Strickland v. Washington, 466 U.S .

668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L. Ed.2d 674, 693,

698 (1984) (defendant must establish (1) that his counsel's

performance was deficient and he made errors so serious that

counsel was not functioning as guaranteed by the Sixth

Amendment and (2) that defendant was prejudiced such that there

existed a reasonable probability that, but for counsel's

unprofessional errors, the result would have been different); State

v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard).

Judge DeStefano rejected defendant’s argument that his trial

counsel was ineffective by failing to investigate Siegert’s

background. The court found persuasive Skaggs v. Parker, 235

F.3d 261 (6th Cir.2000), cert. denied, 534 U.S. 943, 122 S.Ct. 322,

151 L. Ed.2d 241 (2001), in which the court declined to find a trial

counsel ineffective for failing to investigate the credentials of a

purported psychological expert. In that case, the “expert”

completely falsified his credentials, and had not even graduated

from college. However, the trial counsel was not ineffective, as she

had used the expert before, and relied on recommendations of

attorneys in the public defender’s office.”

Judge DeStefano found that “Siegert did not ‘completely falsify’

his credentials,” as did the “expert” in Skaggs. Apparently relying

on Siegert’s Miranda hearing testimony regarding his background,

the court found he was a licensed psychologist in New Jersey and

New York; he was on staff at three hospitals; and he had assisted

the Public Defender’s office numerous times. The court noted that

Siegert was recognized as an expert in two opinions of our court,

citing State v. M.J.K., 369 N.J. Super. 532 (App. Div. 2004),

appeal dismissed, 187 N.J. 74 (2005), as well as State v. Cox, No.

A–5883–05 (App. Div. July 18), certif. denied, 196 N.J. 598

(2008).

The judge also found that defendant did not establish prejudice

because “there was no testimony given [at trial], by either the

defense or the state, regarding [defendant’s] competency to waive

his Miranda rights.” The court found it reasonable for defense

counsel not to call Siegert, given the potential impeachment, and

the trial court’s credibility determinations at the Miranda hearing.

The court also found that it was not ineffective assistance to fail to

request a delay or mistrial to retain another expert as defendant did

not demonstrate that a court would have granted a mistrial or

continuance. Also, “[d]efendant has also not shown that there was

any expert available to examine defendant at the time the decision

was made to not call Dr. Siegert to testify.” Moreover, the court

held that defendant had not demonstrated that expert testimony

would be found credible, or there would be a reasonable

probability of a different result.

. . . .

State v. Lane, No. A-4529-11T1, 2014 WL 3905706, at *1-4 (N.J. Super. App. Div. Aug. 12,

2014).

The Appellate Division then “affirm[ed], substantially for the reasons set forth in Judge

DeStefano’s written opinion” and provided the following additional comments:

We agree with the trial court that defendant has failed to

demonstrate that trial counsel’s failure to discover the alleged

embellishments of Siegert’s credentials rose to ineffective

assistance of counsel. Defendant does not challenge the court’s

findings that regardless of any embellishments, Siegert was a

licensed clinical psychologist, had been accepted as an expert in

our courts and cited in multiple decisions, and had been utilized by

the Office of the Public Defender. “It is all too tempting for a

defendant to second-guess counsel’s assistance after conviction ...

and it is all too easy for a court ... to conclude that a particular act

or omission of counsel was reasonable.” Strickland, supra, 466

U.S. at 689, 104 S.Ct. at 2065, 80 L. Ed.2d at 694. Defendant has

not overcome the “strong presumption” that counsel’ s conduct fell

within “the wide range of reasonable professional assistance.” Ibid.

See also Skaggs, supra, 235 F.3d at 268 (stating that in view of

trial counsel’s familiarity with, and past use of, expert, “counsel's

failure to conduct a full-blown investigation into [his] academic

history, or to verify his credentials any further ... did not fall below

an objective standard of reasonableness under Strickland ”).5

We also agree with the court’s determination that defendant has

failed to establish a prima facie case of prejudice. Defendant

argues that had trial counsel adequately investigated his expert, he

would have chosen not to use him. However, defendant provides

no competent evidence that even had counsel done so, counsel

would have been able to identify another expert who would have

offered a helpful opinion of defendant’s alleged cognitive

limitations. See State v. Cummings, 321 N.J. Super. 154, 170 (App.

Div.) (stating that “when a petitioner claims his trial attorney

inadequately investigated his case, he must assert the facts that an

investigation would have revealed, supported by affidavits or

certifications based upon personal knowledge”), certif. denied, 162

N.J. 199 (1999). Absent this proof, defendant’s claim of prejudice

is nothing more than a “bald assertion.” Ibid.

Lane, 2014 WL 3905706, at *4.

Here, as demonstrated above, the Appellate Division thoroughly examined Petitioner’s

claim of ineffective assistance under the governing law, and it did not unreasonably apply

Strickland or unreasonably determine the facts in light of the evidence when it found that

Petitioner had not established deficient performance or prejudice with respect to this claim. It is

most notable that Petitioner offered no evidence that his counsel could have found a qualified

expert who would have provided helpful testimony about Petitioner’s cognitive limitations.

Without such evidence, Petitioner cannot show he was prejudiced by his attorney’s failure to

5 The Appellate Division also distinguished the decision in Skaggs:

Although the Skaggs court concluded that trial counsel was not

ineffective in failing to discover her expert’s falsification in the

guilt phase of the trial, the court found that the trial counsel’s

continued use of the expert, in the penalty phase, was ineffective

assistance, in view of the expert’s previous “bizarre and eccentric”

testimony. Supra, 236 F.3d at 269. Here, by contrast, trial counsel

chose not to continue to use the services of an expert apparently

subject to impeachment.

Lane, 2014 WL 3905706, at *4 n.2.

investigate Siegert’s qualifications or seek a continuance to find a new expert. The Court

therefore denies relief on Ground Two.

c. Certificate of Appealability

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

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

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

should issue. Having denied the claims in the Petition, the Court will also deny a COA.

Pursuant to 28 U.S.C. § 2253(c), a petitioner may not appeal from a final order in a habeas

proceeding unless he has “made a substantial showing of the denial of a constitutional right.”

See Slack v. McDaniel, 529 U.S. 473, 484 (2000); Miller-El v. Cockrell, 537 U.S. 322 (2003).

Because Petitioner has not made a substantial showing of the denial of a constitutional right, the

Court will deny a COA.

IV. CONCLUSION

For the reasons explained in this Opinion, the Court denies the Petition, ECF No. 1, and also

denies a COA. An appropriate Order follows.

s/Freda L. Wolfson

Freda L. Wolfson

U.S. Chief District Judge

DATED: December 1, 2022.