GRIGGS v. DAVIS

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

_________________________________________

:

ABDUL GRIGGS, :

: Civ. No. 19-246 (CCC)

Petitioner, :

:

v. : OPINION

:

BRUCE DAVIS, THE ATTORNEY :

GENERAL OF THE STATE OF NEW :

JERSEY, :

:

Respondents. :

_________________________________________ :

CECCHI, District Judge

I. INTRODUCTION

Pro se petitioner Abdul Griggs, a state prisoner currently incarcerated at New Jersey State

Prison in Trenton, New Jersey, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. ECF No 1. For the reasons below, the petition is denied.

II. BACKGROUND

A. Factual Background

Grigg’s conviction arises out of his conviction for the murder of John Zephirin, who was

shot twice in the back at close range. The facts are set forth in greater detail in the opinion of the

Superior Court of New Jersey, Appellate Division, on Griggs’s direct appeal of his conviction:1

1 Pursuant to 28 U.S.C. § 2254(e)(1), this Court affords deference to the factual determinations of

the State court. Id. (“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. The applicant shall have the burden of rebutting

the presumption of correctness by clear and convincing evidence.”).

At approximately 11:00 a.m. on August 3, 2006, T.J. was walking past apartment

buildings on Irvington Avenue in Elizabeth when she saw defendant, who was

wearing a white T-shirt, and Zephirin conversing in a walkway between two

buildings. She saw no one else with the two men. As T.J. continued walking, she

heard gunshots, turned around, saw Zephirin lying in the walkway, and saw

defendant running toward the street. She saw no one else near the walkway. She

ran to Zephirin and used his cellphone to call an ambulance. The ambulance took

the unconscious Zephirin to the hospital, where he died five days later without

regaining consciousness.

C.H. was across the street from the walkway. Prior to the shooting, she saw

Zephirin exit a building and say to an unknown man, “Good morning, sir. How are

you doing? Did you walk your dog today?” The man, who was smaller than

defendant in size and light-skinned, then went into a store. C.H. saw defendant

approach and speak to Zephirin in the walkway, but paid no attention to them. She

then heard gunshots, saw Zephirin fall to the ground in the walkway, and saw

defendant run across the street, enter a parked silver car, and drive away. C.H. saw

no one else in the walkway.

Detective Gunther Graham of the City of Elizabeth Police Department heard a

police transmission about the shooting. As he drove toward the crime scene, he saw

a tall, thin African-American male wearing a white T-shirt “running full speed” in

the opposite direction of the crime scene. The male, later identified as defendant,

was “really agitated” and “really hyped up.” The detective saw defendant turn

around and yell something to a heavier set African-American male who was

approximately fifty yards behind defendant. The heavier male turned and walked

away from defendant. Graham lost sight of this man, but saw defendant run into a

doorway. Graham radioed police headquarters and reported what he saw. Police

units responded and searched the area. After approximately thirty minutes, Graham

saw defendant exit a doorway and enter a blue station wagon. The police stopped

the vehicle, searched defendant, but found no weapon in his possession. Defendant

was arrested and charged with Zephirin’s murder.

ECF No. 11-14 at 5–7.

B. Procedural History

After a first trial ended in a mistrial, a second jury convicted Griggs of first-degree murder

and weapons offenses. ECF No. 11-4 at 2. The trial judge sentenced Griggs to life imprisonment

with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-

7.2, a concurrent 5-year term of imprisonment with three years of parole ineligibility, and a

consecutive 10-year term of imprisonment with five years of parole ineligibility. ECF No. 11-4 at

2. The Superior Court of New Jersey, Appellate Division, affirmed, ECF 11-4 (State v. Griggs,

No. A-3814-10 (App. Div. July 17, 2014)), and his petition for certification was denied. ECF 11-

7 (State v. Griggs, 104 A.3d 1077 (N.J. 2015)).

Griggs petitioned for post-conviction relief (“PCR”), which the PCR judge, who was also

the trial judge, denied without an evidentiary hearing. ECF Nos. 11-8 and 11-10 (State v. Griggs,

Ind. Nos. 07-01-00015 & 07-01-00016 (N.J. Sup. Ct. Aug. 4, 2016)). The Appellate Division

affirmed, ECF No. 11-15 (State v. Griggs, No. A-0310-16T3 (App. Div. March 8, 2018)), and

certification was denied. ECF No. 11-18 (State v. Griggs, 194 A.3d 85 (N.J. 2018)).

Griggs filed the current habeas petition in January 2019. ECF No. 1. He argues that his

state criminal proceedings violated his constitutional right to a fair trial because: (1) he was

precluded from presenting evidence of third-party guilt (Ground One); (2) the State failed to

independently corroborate his confession and therefore the trial judge should have sua sponte

dismissed the charges at the end of the State’s case or, in the alternative, instructed the jury on the

need for corroboration (Ground Two); (3) excerpts from Griggs’s letters should not have been

admitted because they were not authenticated and were more prejudicial than probative (Ground

Three); (4) the State elicited testimony based on an autopsy report of a non-testifying pathologist

(Ground Four); (5) the prosecutor committed misconduct during his summation (Ground Six); and

(6) witnesses referred to Griggs’s prior trial and the court allowed a witness who was not an expert

to identify phone records (Ground Seven). Griggs also argues that: (1) his sentence is manifestly

excessive (Ground Five); (2) his counsel was ineffective for failing to (a) investigate and prepare

the case and explain his trial strategy, (b) file appropriate motions and object to prejudicial

evidence, (c) object to prejudicial testimony from the testifying pathologist, and (d) communicate

his desire for a negotiated plea following the first trial (Ground Eight); and (3) he was denied due

process on his ineffective assistance claims because he was not given an evidentiary hearing on

his PCR petition (Ground Nine). ECF 1 at 7–28.

The State answered Griggs’s petition in June 2019, arguing, inter alia, that certain

ineffective assistance claims—specifically, Grounds 8(a)–(c) in the petition—were unexhausted.

ECF No. 11. Griggs then moved for a stay to exhaust those grounds, ECF No. 12, which the Court

denied because he did not establish good cause for his failure to exhaust. ECF 15 at 3–4. Griggs

withdrew his unexhausted claims, ECF Nos. 16–18, and in February and March 2022, he submitted

two replies to the State’s answer, ECF Nos. 19–20. The State replied on March 25, 2022. ECF No.

21. Griggs’s habeas petition is now fully submitted and ready for decision. For the reasons set

forth below, the petition is denied.

III. LEGAL STANDARD

Under the Antiterrorism and Effective Death Penalty Act of 1996, the district court “shall

entertain an application for a writ of habeas corpus in behalf of a person in 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). A habeas petitioner must establish

entitlement to relief for each claim in his petition based upon the record that was before the state

court. See Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013); Parker v. Matthews, 567 U.S. 37,

40–41 (2012). District courts must give great deference to the determinations of state trial and

appellate courts. See Renico v. Lett, 559 U.S. 766, 773 (2010).

If the state courts have adjudicated a claim on the merits, the district court shall not grant

a writ of habeas corpus unless that adjudication:

(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)(1)–(2). Federal law is “clearly established” for these purposes if it is clearly

expressed in “the holdings, as opposed to the dicta” of the United States Supreme Court. See Woods

v. Donald, 575 U.S. 312, 316 (2015). “When reviewing state criminal convictions on collateral

review, federal judges are required to afford state courts due respect by overturning their decisions

only when there could be no reasonable dispute that they were wrong.” Id. If a petitioner challenges

an allegedly erroneous state court factual determination, that determination “shall be presumed to

be correct [and the] applicant shall have the burden of rebutting the presumption of correctness by

clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

Under these standards, the relevant state court decision for federal habeas corpus review is

the last reasoned state court decision. See Bond v. Beard, 539 F.3d 256, 289–90 (3d Cir. 2008).

These standards apply “even where there has been a summary denial” by the state court. Cullen v.

Pinholster, 563 U.S. 170, 187 (2011).

In addition to the above, a federal court may not grant a writ under Section 2254 unless the

petitioner has “exhausted the remedies available in the courts of the State.” 28 U.S.C. §

2254(b)(1)(A). To do so, a petitioner must “fairly present all federal claims to the highest state

court before bringing them in federal court.” Leyva v. Williams, 504 F.3d 357, 365 (3d Cir. 2007)

(quotation marks and citation omitted). When a petitioner’s claims are unexhausted, a court can

nevertheless deny them on the merits under 28 U.S.C. § 2254(b)(2). See Taylor v. Horn, 504 F.3d

416, 427 (3d Cir. 2007); Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir. 2005).

IV. DISCUSSION

A. Ground One

Griggs argues that the state courts precluded him from presenting evidence of third-party

guilt, violating his right to a fair trial and due process. ECF No. 1 at 7–8. Griggs sought to introduce

such evidence through: (1) the testimony of Zephirin’s girlfriend, “who told the police that prior

to the shooting, Zephirin had a dispute with another drug dealer over drug dealing territory,” and

(2) through C.H., “who allegedly told the police that the unknown man to whom Zephirin spoke

said to Zephirin, ‘What, are you following me?’” State v. Griggs, No. A-3814-10T2, 2014 WL

3510692, at *3 (N.J. Super. Ct. App. Div. July 17, 2014).

Relying on state law governing the admissibility of third-party guilt, the Appellate Division

rejected this claim on direct appeal, finding that the trial court did not abuse its discretion in

excluding the evidence:

The court must provide criminal defendants the opportunity to present a complete

defense including that someone else committed the crime charged. [State v. Cotto,

182 N.J. 316, 333 (2005)]. Such a defense includes the right to introduce evidence

of third-party guilt if the proof offered has a rational tendency to engender a

reasonable doubt with respect to an essential feature of the State’s case. Ibid. This

requires the defendant to offer evidence that “creates the possibility of reasonable

doubt” by demonstrating some link between the third party and the victim. Id. at

333. Because this is a fact sensitive inquiry, the court has broad discretion to admit

or preclude such evidence. Ibid.

It is not enough to prove some hostile event and leave its connection to the crime

charged to mere conjecture. [State v. Sturdivant, 31 N.J. 165, 179 (1959)]. “There

must be some link between the evidence and the victim or the crime.”[ State v.

Koedatich, 112 N.J. 225, 301 (1988)]. “To be admissible, the third[-]party evidence

need not show substantial proof of a probability that the third person committed the

act; it need only be capable of raising a reasonable doubt of the defendant’s guilt.”

State v. Fulston, 325 N.J. Super. 184, 191 (App. Div.1999), cert. denied, 163 N.J.

397 (2000).

Here, no individual was specifically identified as the third party, and there was no

link whatsoever between the proposed third-party guilt evidence and the shooting.

The proffered evidence was nothing more than mere conjecture, and it would not

assist the jury in reaching a just verdict. Koedatich, supra, 112 N.J. at 301. Because

there was no evidence of third-party guilt adduced at trial, the judge properly barred

defense counsel from alluding to it in summation. See State v. Bogen, 13 N.J. 137,

140 (holding that while counsel had “the broadest latitude in summation,”

“comment must be restrained within the facts shown or reasonably suggested by

the evidence”), cert. denied, 346 U.S. 825 (1953). Moreover the trial court has the

obligation to dispel mistaken legal theories offered in summation. State v. Whitaker,

200 N.J. 444, 465 (2009). Accordingly, there was no error in the judge’s preclusion

of evidence of third-party guilt.

Griggs, 2014 WL 3510692, at *3.

“[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); see also Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“federal habeas

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

“The Constitution guarantees criminal defendants a meaningful opportunity to present a

complete defense, but . . . state and federal rulemakers have broad latitude under the Constitution

to establish rules excluding evidence from criminal trials.” Nevada v. Jackson, 569 U.S. 505, 509

(2013) (cleaned up). “Such rules do not abridge an accused’s right to present a defense so long as

they are not arbitrary or disproportionate to the purposes they are designed to serve.” United States

v. Scheffer, 523 U.S. 303, 308 (1998) (internal quotation marks omitted). The exclusion of

evidence is “unconstitutionally arbitrary or disproportionate only where it has infringed upon a

weighty interest of the accused.” Id. An accused “does not have an unfettered right to offer

[evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of

evidence.” Montana v. Egelhoff, 518 U.S. 37, 42 (1996) (citation omitted).

The Appellate Division reasonably rejected Griggs’s claim on the basis that “no individual

was specifically identified as the third party, and there was no link whatsoever between the

proposed third-party guilt evidence and the shooting.” Griggs, 2014 WL 3510692, at *3. Indeed,

when the trial judge asked Griggs’s counsel, “What connection is there between the drug dealers

and the shooting?” counsel responded only that there was “motive to do harm.” ECF No. 11-24 at

125; see also id. 11-24 at 124 (In sustaining the State’s objection to questioning about the alleged

dispute with a drug dealer, the court stated: “The fact that Mr. Zephirin may have had a dispute

with drug dealers . . . it may give motive to someone to do violence but we don’t have a nexus to

the scene or to the date or anything else.”).

Further, in precluding counsel from questioning C.H. about the unknown man to whom

Zephirin spoke, the trial court found no link between the man and Zephirin, stating: “[W]e don’t

know who that person is. He is unknown to anybody, and we are speculating as to what the victim

felt about what was, allegedly, said to him in one instance, or said by him in another. We don’t

have any indication of what the reaction of the victim was. We don’t know if the victim was upset.”

ECF No. 11-25 at 73. Absent a non-speculative connection between the third parties and the crime,

the Appellate Division reasonably concluded that “[t]he proffered evidence was nothing more than

mere conjecture, and it would not assist the jury in reaching a just verdict.” See United States v.

Scheffer, 523 U.S. 303, 309 (1998) (“State and Federal Governments unquestionably have a

legitimate interest in ensuring that reliable evidence is presented to the trier of fact in a criminal

trial. Indeed, the exclusion of unreliable evidence is a principal objective of many evidentiary

rules.”).

On this record, Griggs has not shown that the trial court’s decisions were contrary to or an

unreasonable application of clearly established federal law, nor has he shown that the decisions

were based on an unreasonable determination of the facts in light of the evidence at trial.

Accordingly, he is not entitled to federal habeas relief on Ground One.

B. Ground Two

Griggs argues that the trial court should have entered a judgment of acquittal at the end of

the State’s case because the State failed to corroborate Griggs’s confession. ECF 1 at 9. In the

alternative, Griggs argues that the trial court should have instructed the jury on the need for such

corroboration. Id. at 9–10. The Appellate Division found Griggs’s arguments meritless. The court

set forth the evidence corroborating Griggs’s confession as follows:

A few days before the shooting, defendant called his ex-girlfriend, L.P., and told

her to “[j]ust stay downtown” because “he did [not] want [her] around when he do

somebody dirty,” meaning Zephirin. After his arrest, defendant admitted to L.P.

that he shot Zephirin.

Shortly after the shooting, defendant admitted to his girlfriend, F.J., that he just shot

someone. After his arrest, defendant called F.J., asked her to find the car he drove

the day of the shooting, and told her there was a gun in the car. Defendant also

asked F.J. to call his friend, Twan, and tell Twan where the car was located and to

get the gun. F.J. found the car the next day and called Twan and told him the gun

was in the car.

Griggs, 2014 WL 3510692, at *4.

The Appellate Division, reviewing Griggs’s argument under a plain error standard,

concluded that the record contained sufficient evidence to corroborate Griggs’s admissions

to his girlfriends:

Defendant separately admitted to them that he shot Zephirin, but these admissions

were merely a portion of the overwhelming evidence establishing defendant’s guilt

for first-degree murder. There was the testimony of two eyewitnesses, T.J. and

C.H., as well as F.J.’s testimony that pursuant to defendant’s instructions, she found

the car he was driving the day of the shooting and contacted Twan to retrieve the

gun.

Griggs, 2014 WL 3510692, at *4 (citations omitted). The Appellate Division also found

no plain error in the trial judge’s failure to sua sponte give a corroboration instruction:

Where a judge instructs the jury of its duty to assess credibility, and defense counsel

presents arguments challenging the truthfulness of an admission or confession,

there is no plain error.

Here, defense counsel stated during summation that there was no physical evidence

that defendant placed phone calls to L.P. and F.J., and thus, he did not make any

admission to them. Counsel also discussed the concept of credibility, as did the

judge during the final charge. As in [State v. Reddish], here “the failure of the court

to instruct the jury specifically on its duty with respect to corroboration does not

rise to the level of plain error.” [181 N.J. 553, 622 (2004)].

Griggs, 2014 WL 3510692, at *4–5 (quotations and citations omitted).

In reviewing claims that trial evidence was insufficient for a conviction, habeas courts ask

whether, after viewing the evidence in the light most favorable to the prosecution, “any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979). This standard gives due regard to the factfinder’s

ability to view the evidence, resolve conflicts in it, and draw reasonable inferences from it. Id. The

relevant inquiry under Jackson is not “whether the trier of fact made the correct guilt or innocence

determination, but rather whether it made a rational decision to convict or acquit.” Herrera v.

Collins, 506 U.S. 390, 402 (1993) (emphasis in original).

Under both state and federal law, “an uncorroborated extrajudicial confession cannot

[alone] provide the evidential basis to sustain a conviction.” State v. Lucas, 152 A.2d 50, 57 (N.J.

1959); see also Smith v. United States, 348 U.S. 147, 157 (1954) (“an accused may not be convicted

on his own uncorroborated confession.”). “‘[A]ll elements of the offense must be established by

independent evidence or corroborated admissions.’” State v. Di Frisco, 571 A.2d 914, 925 (N.J.

1990) (quoting Smith, 348 U.S. at 156). In New Jersey, “[a]s long as the confession is corroborated

by other evidence tending to strengthen it, . . . the criminal agency (as well as defendant’s

connection with the crime) may be proven by the confession itself.” State v. Abrams, 607 A.2d

179, 185 (N.J. 1992) (internal quotation marks and citation omitted).

“Similarly, under federal law, the independent evidence does not, by itself, have to prove

the charged offense. Rather, this corroborating evidence is meant to merely ‘ensure the reliability

of the confession or admission of the accused.’” Moon v. Johnson, No. CV 17-3759, 2019 WL

2611123, at *17 (D.N.J. June 25, 2019) (citing United States v. Brown, 617 F.3d 857, 862 (6th Cir.

2010) (quoting Smith, 348 U.S. at 156)). “It is clear then, that under either the New Jersey rule or

that established by the Supreme Court in Smith, the State need only provide corroborating evidence

which would strengthen the reliability of the defendant’s confession and establish that the crime

in question did actually occur.” McDonald v. Warden, Civ. No. 15-6231, 2016 WL 3556596, at

*7 (D.N.J. June 28, 2016).

Here, the State presented strong evidence to corroborate Griggs’s confession. It offered the

testimony of two eyewitnesses, T.J. and C.H., and the testimony of F.J., who followed Griggs’s

instructions regarding the whereabouts of the car he drove the day of the shooting. Given this

testimony, there was more than sufficient evidence presented at trial to corroborate Griggs’s

confession and strengthen its reliability. As the Appellate Division reasonably found, Griggs’s

admissions to his girlfriends were “merely a portion of the overwhelming evidence establishing

defendant’s guilt for first-degree murder.” Griggs, 2014 WL 3510692, at *4. Accordingly, Griggs

is not entitled to relief on this claim.

Griggs’s alternative argument that the trial court should have instructed the jury on

corroboration is not cognizable on habeas review. Generally, jury instructions are a matter of state

law. See Engle v. Isaac, 456 U.S. 107, 120–21 n.21 (1982); Zettlemoyer v. Fulcomer, 923 F.2d

284, 309 (3d Cir. 1991). An improper jury instruction may only provide an adequate ground for

habeas relief if it violates the petitioner’s Fourteenth Amendment right to due process. See Cupp

v. Naughten, 414 U.S. 141, 146 (1973). “The question in such a collateral proceeding is ‘whether

the ailing instruction by itself so infected the entire trial that the resulting conviction violates due

process,’ not merely whether ‘the instruction is undesirable, erroneous, or even universally

condemned.’” Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (quoting Cupp, 414 U.S. at 147).

Importantly, 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.” Estelle,

502 U.S. at 72 (quoting Cupp, 414 U.S. at 147).

If the alleged error is the omission of an instruction, a petitioner’s burden is “especially

heavy” because an omission is “less likely to be prejudicial than a misstatement of the law.” See

id. at 155. A petitioner thus must demonstrate that the omission was “inconsistent with the

rudimentary demands of fair procedure,” resulting in a miscarriage of justice. Smith v. Arvonio,

No. 93-25, 1994 WL 327123, *3 (D.N.J. June 24, 1994) (quotation marks and citation omitted).

Griggs has not met his “especially heavy” burden. Considering the entire trial record,

including the abundance of evidence corroborating Griggs’s confession, Griggs did not establish

that the omission of a corroboration charge resulted in a miscarriage of justice. Accordingly,

Griggs has failed to show that the trial court erred by not providing a corroboration instruction, or

that his conviction was a violation of due process. As Griggs has not demonstrated a wrong of

constitutional dimension sufficient to warrant federal habeas relief, Ground Two will be dismissed.

C. Ground Three

Griggs argues that the trial court should not have admitted excerpts of jailhouse letters

Griggs wrote to F.J., where the letters: (1) were not properly authenticated as required by N.J.R.E.

901 and (2) should have been precluded by N.J.R.E. 403.2 ECF No. 1 at 11. The Appellate

Division rejected these arguments.

2 New Jersey Rule of Evidence Rule 901 provides: “To satisfy the requirement of authenticating

or identifying an item of evidence, the proponent must present evidence sufficient to support a

finding that the item is what its proponent claims.” New Jersey Rule of Evidence Rule 403

provides: “Except as otherwise provided by these rules or other law, relevant evidence may be

excluded if its probative value is substantially outweighed by the risk of: (a) Undue prejudice,

The trial court conducted a hearing under N.J.R.E. 1043 during Griggs’s first trial, during

which F.J. testified about six letters. Griggs, 2014 WL 3510692, at *5. F.J. testified that:

she and defendant had a habit of writing letters to each other; the letters were

addressed to her residence and bore defendant’s name, address, and prison number

on the envelope; she recognized defendant’s handwriting and signature; defendant

addressed her by her first name or her nickname; defendant sometimes referred to

himself as her husband and her as his wife; and the letters referred to the gun and

personal things, such as their children and sex life, their favorite song,

conversations they had when she visited him in the jail, his gambling winnings, her

job, a tattoo of defendant’s name on her arm, and her prior relationships. In S–65,

defendant instructed her to call Twan and ask if he got the gun from the car.

Griggs, 2014 WL 3510692, at *5. The trial judge “found F. J.’s testimony ‘very credible,’ reviewed

the letters in detail, and determined they were sufficiently authenticated.” Id. The judge supported

his ruling with the following analysis:

[W]hen one considers all of this evidence in total it does authenticate these

documents. These are about general items, they are about specific items, they are

about some private items, and as a whole it proves that these letters were written by

the defendant to [F.J.] about the private conversations that they had and about

specific information known to both of them. And even as to the general information,

although that could be known by other people, when taken in context with the other

more private information it certainly authenticates these documents through the

context of the conversations and the information set forth therein.

Griggs, 2014 WL 3510692, at *5. The Appellate division found no abuse of discretion and no error

in the trial judge’s evidentiary ruling. Id. at *5–6.

“[T]he Due Process Clause guarantees the fundamental elements of fairness in a criminal

trial.” Riggins v. Nevada, 504 U.S. 127, 149 (1992). In the field of criminal law, “the category of

infractions that violate ‘fundamental fairness’ [is defined] very narrowly based on the recognition

confusion of issues, or misleading the jury; or (b) Undue delay, waste of time, or needless

presentation of cumulative evidence.”

3 New Jersey Rule of Evidence 104 provides: “The court shall decide any preliminary question

about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding,

the court is not bound by evidence rules, except those on privilege and Rule 403.”

that, beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has

limited operation.” Medina v. California, 505 U.S. 437, 443 (1992). To satisfy due process,

Griggs’s trial must have been fair, but it need not have been perfect. United States v. Hasting, 461

U.S. 499, 508–09 (1983) (“[T]here can be no such thing as an error-free, perfect trial, and [ ] the

Constitution does not guarantee such a trial.”). State-court evidentiary rulings cannot serve as a

basis for habeas relief unless the asserted error rises to the level of a federal constitutional violation.

See Estelle, 502 U.S. at 67–68.

Griggs contends that, because the letters were inadequately authenticated, the excerpts at

issue were improperly admitted. ECF No. 1 at 11. Proper authentication, however, is a question of

state law, and the Appellate Division found that the letters were sufficiently authenticated. Griggs,

2014 WL 3510692, at *6. The court noted that New Jersey law permits a writing’s authenticity to

be established by evidence sufficient to support a finding that the matter is what its proponent

claims, and a judge’s admission of a writing into evidence means only that there is sufficient

evidence of authenticity to allow the jury to decide the issue. Griggs, 2014 WL 3510692, at *5

(citing N.J.R.E. 901; State v. Mays, 729 A.2d 1074 (N.J. Super. Ct. App. Div. 1999)). Further,

“[l]etters containing information about the crime, as well as personal matters which only the

defendant would have known, constitute a proper basis for concluding that the defendant wrote

the letters.” Griggs, 2014 WL 3510692, at *6 (citing State v. Porambo, 544 A.2d 870, 876 (N.J.

Super. Ct. App. Div. 1988)).

Here, the Appellate Division found that “there was more than sufficient evidence

supporting the judge’s finding that [the] letters were properly authenticated,” including F.J.’s

credible testimony that “she received the letters directly from defendant, she recognized his

handwriting and signature, and the letters contained specific personal information which only

defendant would have known.” Id. at *6; see also United States v. Reilly, 33 F.3d 1396, 1407 (3d

Cir. 1994) (a writing may be authenticated by its contents “if the letter is shown to contain

information that persons other than the purported sender are not likely to possess”) (internal

quotations omitted); Porambo, 544 A.2d 870, 876 (letters were adequately authenticated where

“the letters contained information about the crime as well as personal matters which only defendant

or someone close to him would know”). On this record, the Appellate Division’s rejection of

Griggs’s due process challenge to the admission of the letter excerpts was not contrary to, or an

unreasonable application of, clearly established Supreme Court precedent. Accordingly, federal

habeas relief may not issue based on this portion of Ground Three.

The Appellate Division also rejected Griggs’s claim that the letters were inadmissible

under N.J.R.E. 403 as unduly prejudicial. Griggs, 2014 WL 3510692, at *5 n.3. The court found

that Griggs offered no basis for excluding the letters; identified no undue prejudice; and failed to

establish that any prejudice outweighed the probative value of the letters. Id.

Relevant evidence may be excluded “if its probative value is substantially outweighed by

a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the

jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” F.R.E. 403; see

also N.J.R.E. 403. Griggs argues that the excerpts “were capable of both innocent and

incriminatory interpretations depending on the mindset of the reader, so to permit the incriminatory

inference only was unfair.” ECF No. 1 at 13. Griggs asserts that because F.J. had ended her

relationship with Griggs by the time of trial, her interpretation of the letters “was one indicative of

defendant’s guilt and probably motivated by anger at Griggs for his infidelities.” Id.

As the state courts reasonably found, Griggs offered no basis for excluding the letters and

identified no undue prejudice. That F.J. and Griggs’s relationship was over at the time of trial was

a fact for the jury to consider in evaluating the credibility of F.J.’s testimony. This Court will not

disturb the state court’s evidentiary ruling on this issue. See Estelle, 502 U.S. at 67–68. The

Appellate Division’s rejection of Griggs’s due process challenge to the state court’s N.J.R.E. 403

ruling was not contrary to, or an unreasonable application of, clearly established Supreme Court

precedent. Accordingly, there is no basis for federal habeas relief.

D. Ground Four

Griggs argues that the trial court violated his right to confrontation when it “permitted the

State to elicit testimony about stippling based upon an autopsy report by a non-testifying

pathologist.” ECF No. 1 at 14. The medical examiner who performed the autopsy on Zephirin, Dr.

Leonard Zaretski, was no longer a county employee at the time of Griggs’s trial. Griggs, 2014 WL

3510692, at *7. The deputy medical examiner, Dr. Junaid Shaikh, testified instead. Id. He opined

that there was stippling around one of the gunshot wounds, indicating the shot was fired at close

range. Id. Griggs challenged this opinion on cross-examination by referring to a notation in Dr.

Zaretski’s report that the markings around one of the entrance wounds “may” represent stippling.

Id. This was the first reference to the contents of the autopsy report. Id.

The Appellate Division reviewed Griggs’s argument for plain error because he did not

object or raise the argument at trial. Id. at *7. The court conducted the following analysis in finding

no error, “let alone plain error,” in Dr. Shaikh’s testimony:

The judge held an N.J.R.E. 104 hearing on the admissibility of the stippling

evidence, defendant did not object to Dr. Shaikh’s testimony about stippling, and

defendant was able to fully challenge the doctor’s opinions on cross-examination.

More importantly, if there was error, defendant invited it by introducing the

contents of the autopsy report on cross-examination. “If a party has ‘invited’ the

error, he [or she] is barred from raising an objection for the first time on appeal.”

State v. A.R., 213 N.J. 542, 561 (2013).

Griggs, 2014 WL 3510692, at *7.

The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the

New Jersey Constitution guarantee a criminal defendant the right to confront “the witnesses against

him.” U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. The right of confrontation is an essential

attribute of a fair trial, requiring that a defendant have a “‘fair opportunity to defend against the

State’s accusations.’” State v. Garron, 177 N.J. 147, 169 (2003) (quoting Chambers v. Mississippi,

410 U.S. 284, 294 (1973)). In Crawford v. Washington, 541 U.S. 36, 53–54 (2004), the Supreme

Court held that the Confrontation Clause bars “admission of testimonial statements of a witness

who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior

opportunity for cross-examination.” See also Davis v. Washington, 547 U.S. 813, 821 (2006). “The

Confrontation Clause is commonly implicated when a witness refers to specific information from

a non-testifying third party.” Turner v. Warden, No. CV 18-17384, 2022 WL 951309, at *8 (D.N.J.

Mar. 30, 2022). The right to confrontation may, however, “be waived, including by failure to object

to the offending evidence[.]” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 314 n.3 (2009).

Here, defense counsel did not object to Dr. Shaikh’s reference to Dr. Zaretski’s autopsy

report, and instead solicited information about the report in an effort to discredit Dr. Shaikh’s

conclusion regarding stippling. ECF No. 11-28 at 66, 68–70; see also United States v. Magloire,

235 F. App’x 847, 850 n.1 (3d Cir. 2007) (no Confrontation Clause violation “where defense

counsel elicits hearsay statement”); United States v. Parikh, 858 F.2d 688, 695 (11th Cir. 1988)

(“the admission of out of court statements by a government witness, when responding to an inquiry

by defense counsel, creates ‘invited error’”; “[t]he confrontation clause is not implicated where

the defendant seeks to introduce hearsay declarations as part of his defense”); Gibbs v. Woods, No.

14-CV-14028, 2022 WL 1124191, at *7 (E.D. Mich. Apr. 14, 2022) (“Indeed, a defense attorney

may reasonably decide that there is a strategic reason to withhold an objection to a patent

constitutional violation. For instance, it could be a reasonable strategy for a defense attorney to

withhold an objection (under the Confrontation Clause) to the admission of a confession by a non-

testifying co-defendant if aspects of the co-defendant’s confession supported a defense that

counsel was attempting to pursue.”). Defense counsel also had a full opportunity to cross-examine

Dr. Shaikh, who testified that he personally reviewed the underlying documents and photographs

from the autopsy, evaluated them, and came to an independent conclusion about the presence of

stippling. ECF No. 11-28 at 69–71.

On this record, the Appellate Division’s rejection of Griggs’s Sixth Amendment challenge

to the stippling testimony was not contrary to, or an unreasonable application of, clearly

established Supreme Court precedent. Accordingly, federal habeas relief may not issue based on

Ground Four.

E. Ground Five

Griggs argues that his sentence is excessive in violation of his constitutional right to due

process and a fair trial because the three aggravating factors found by the trial court—N.J.S.A.

2C:44–1a(3) (the risk of re-offense), (6) (criminal history), and (9), (the need to deter)—“primarily

focus on Griggs’s past conduct, thereby emphasizing offender-based factors,” and the trial court

“afforded far too much weight to them.” ECF No. 1 at 15; Griggs, 2014 WL 3510692, at *8. The

Appellate Division rejected this argument, finding that the record contained “competent, credible

evidence supporting the judge’s findings of aggravating and mitigating factors.” Griggs, 2014 WL

3510692, at *8. The court stated that “[t]he life sentence the judge imposed in this case met the

sentencing guidelines,” and further found that the sentence did not shock the court’s judicial

conscience. The court emphasized that Griggs “had numerous juvenile charges and was

adjudicated delinquent of assault and robbery,” and “[a]s an adult, he had six indictable

convictions, including convictions for robbery, aggravated assault, possession of a weapon for an

unlawful purpose, and unlawful possession of a weapon.” Id.

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

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

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

Pleas, 744 F.2d 297, 300 (3d Cir. 1984); see also 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 67. In

United States v. Burnett, 773 F.3d 122, 136–37 (3d Cir. 2014), the Third Circuit reviewed the

standard applicable to an Eighth Amendment excessive sentence challenge:

The Supreme Court has explained that the “Eighth Amendment, which forbids cruel

and unusual punishments, contains a narrow proportionality principle that applies

to non-capital 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. 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. United States v. Rosenberg, 806 F.2d 1169, 1175 (3d Cir.

1986); United States v. Miknevich, 638 F.3d 178, 186 (3d Cir. 2011) (“Generally, a

sentence within the limits imposed by statute is neither excessive nor cruel and

unusual under the Eighth Amendment . . . because we accord substantial deference

to Congress, as it possesses broad authority to determine the types and limits of

punishments for crimes.”).

The first factor acts as a gateway prong to the proportionality inquiry. The Eighth

Amendment, after all, only forbids sentences that are “grossly disproportionate” for

a conviction for the crime involved. If the defendant fails to demonstrate a gross

imbalance between the crime and the sentence, a court’s analysis of an Eighth

Amendment challenge is at an end. Successful proportionality challenges in non-

capital cases are “exceedingly rare.” Ewing, 538 U.S. at 21 (quoting Rummel v.

Estelle, 445 U.S. 263, 272 (1980)).

Burnett, 773 F.3d 122, 136–37 (3d Cir. 2014).

The trial judge found Griggs to be a “cunning,” “dangerous,” and “seasoned” criminal. Id.

at 15, 18. “Less than eight months after maxing out on parole,” Griggs “shot John Zephirin in the

back and left him to die . . . .” ECF No. 11-32 at 15. The trial judge explained that the trial evidence

demonstrated that Griggs was “adept at manipulating evidence and orchestrating events

immediately after the shooting, such as avoiding the police, fleeing from the scene, jumping into

a stranger’s car to escape the scene, arranging for pickup at a remote location and arranging for

the recovery of the weapon and/or car.” Id. at 17–18.

The trial judge summarized Griggs’s “long history of violent offenses” at Griggs’s

sentencing as follows:

He has eight adjudications of delinquency . . . . He has had seven parole revocations

as a juvenile, two escapes from juvenile custody . . . and two violations of probation.

As an adult, he is here on his seventh and eight indictable convictions. These

convictions include a robbery in 1992 for which he received 10 years in State

Prison. He had his parole revoked in 1998 and he has an escape on that charge on

June 22, 2005. He has an aggravated assault conviction from July 10, 2000 for

which he received a five-year State Prison sentence.

In 2000 he was guilty of a certain persons. He received a nine-year State Prison

sentence. He is also listed as having escaped on that same date, June 22, 2005. He

has convictions for possession of a weapon for unlawful purpose and resisting

arrest. He was sentenced in 1999 to five years in State Prison. He has an escape on

June 2, 2005 on that charge as well.

He also has a certain persons sentenced on June 14, 1999 to five years. He also has

an escape on that June 22 date.

Finally, he has a bribery and conspiracy—both a bribery and conspiracy conviction

from 2008. He received a six-year State Prison sentence which he is serving at the

present time. . . .

ECF 11-32 at 15–17.

Finally, the judge applied the following aggravating factors and found that they

substantially outweighed “the nonexistent mitigating factors”:

I do find that the escapes and the parole revocation indicate a risk to commit another

offense and I do find aggravating factor 3. His enormous prior record warrants a

very strong aggravating factor 6 and his long history of violent offenses and

weapons offenses certainly presents a specific and general need to deter Mr. Griggs

from committing other offenses.

Id. at 17.

The record demonstrates proportionality between Griggs’s crime and sentence, and

supports the trial judge’s application of the aggravating factors. As Griggs has failed to establish

an Eighth Amendment violation, the Appellate Division reasonably rejected Grigg’s argument that

the trial court over-emphasized the aggravating factors. See Beckett v. Powell, No. CV 19-14559,

2022 WL 884376, at *5 (D.N.J. Mar. 25, 2022) (“Petitioner’s challenges to his sentencing ‘for

failure to properly weigh the aggravating and mitigating factors [are] not reviewable here.’”)

(quoting Jenkins v. Bartkowski, No. 10-4972, 2014 WL 2602177, at *21 (D.N.J. June 11, 2014));

Hinton v. Att’y Gen. of State of N.J., No. CV 18-14508, 2020 WL 6482932, at *11–12 (D.N.J.

Nov. 4, 2020) (“Petitioner fails to show that the denial of this claim was contrary to or an

unreasonable application of clearly established federal law. His only argument is that his sentence

is excessive because the state court improperly weighed the aggravating and mitigating factors.

However, this in and of itself does not appear to state a constitutional claim.”) (collecting cases).

The Appellate Division’s finding that “[t]he record contains competent, credible evidence

supporting the [trial] judge’s findings of aggravating and mitigating factors,” therefore, was not

contrary to, or an unreasonable application of, clearly established Supreme Court precedent.

Griggs, 2014 WL 3510692, at *8. Accordingly, federal habeas relief may not issue based on

Ground Five.

F. Ground Six

Griggs argues that he was deprived of a fair trial by statements the prosecutor made during

opening statements and summation. ECF No. 1 at 16–17. In his opening, the prosecutor referred

to portions of letters, some of which were ultimately not admitted into evidence, wherein Griggs

admitted to committing the crime, and in his closing the prosecutor referred to Griggs as a

“murderer” and a “cold-blooded killer.” Griggs, 2014 WL 3510692, at *6–8. The Appellate

Division rejected Griggs’s arguments. Id.

As to the reference to letters in which Griggs admitted committing the crime, the Appellate

Division found there was no prosecutorial misconduct because the letters in question had been

admitted at the first trial; Griggs “knew well in advance of the second trial that the prosecutor

would use this critical document to prove he committed the murder”; Griggs did not move to bar

admission of it prior to the second trial (Griggs did not object to its admission until the fourth day

of trial); and thus, the statement was correct when made. Id. at *6–7. The Appellate Division

further found that even if the comment were improper, Griggs was not prejudiced because: “There

was other credible evidence that defendant admitted committing the crime. Both F.J. and L.P.

testified that defendant told them he shot Zephirin. In addition, the judge specifically instructed

that the jury could not consider items that were not in evidence, and could not consider as evidence

remarks in counsel’s openings and summations.” Id. at *7.

As to the closing statements, the Appellate Division found that “the prosecutor’s labeling

of defendant as a ‘cold-blooded killer’ did not constitute reversible error because it was supported

by the evidence.” Id. at *8. The court explained: “The evidence in this case firmly established that

defendant shot Zepherin twice in the back at close range for no apparent reason, thus providing a

justifiable basis for the prosecutor’s characterization of defendant as a ‘murderer’ and ‘cold-

blooded killer.’” Id.

When a prosecutor’s opening or closing remarks are challenged in habeas, “[t]he relevant

question is whether the prosecutor’s 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)

(quotation marks and citation omitted). “Supreme Court precedent counsels that the reviewing

court must examine the prosecutor’s offensive actions in context and in 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).

Upon review of the prosecutor’s entire summation and in light of the trial evidence, the

Court finds the challenged comments were not so prejudicial as to deny Griggs due process. As to

the reference to Griggs’s letters in the opening statements, the Appellate Division’s finding of no

prejudice was not an unreasonable application of Supreme Court precedent. First, there was

substantial evidence of Griggs’s guilt, including, as the Appellate Division noted, both F.J. and

L.P. testified that Griggs told them he shot Zephirin. Second, the trial judge instructed the jury not

to consider items that were not in evidence and not to consider as evidence remarks in counsel’s

openings and summations, and the jury is presumed to have followed these instructions. See Weeks

v. Angelone, 528 U.S. 225, 234 (2000); see also United States v. Bailey-Snyder, 923 F.3d 289, 296

(3d Cir. 2019) (“[T]he Court had instructed the jury before closing that lawyers’ statements,

including those made in closing, are not evidence. These facts leave us with little reason to believe

that the Government’s statements improperly influenced the jury at all, let alone substantially.”);

United States v. Console, 13 F.3d 641, 673 (3d Cir. 1993) (“We conclude that although the

prosecutor’s conduct may have been questionable at times, any misconduct was harmless in the

context of the trial as a whole. This is particularly true due to the curative instructions given to the

jury.”). Therefore, Griggs’s prosecutorial misconduct claim based on the prosecutor’s opening

comment does not merit habeas relief.

The prosecutor’s comments during closing also provide no basis for habeas relief. Federal

courts have consistently rejected arguments based on similar comments. See Darden, 477 U.S. at

183 (prosecutor’s description of defendant as an “animal,” labeling the crime as “the work of an

animal,” and argument that the defendant should not be let out of his cell without “a leash,” did

not render the defendant’s trial fundamentally unfair); United States v. Pungitore, 910 F.2d 1084,

1127 (3d Cir. 1990) (finding no prosecutorial misconduct in the prosecutor’s reference to the

appellant as a “cold-blooded murderer” because this was a “fair comment on the evidence adduced

at trial”); Banks v. Workman, 692 F.3d 1133, 1149 (10th Cir. 2012) (upholding state courts’

rejection of prosecutorial misconduct claim where, during closing argument, the prosecutor

characterized the defendant as a “wild animal that stalks its prey,” a “predator who lurks in the

shadows,” a “monster” who selects the most helpless victims, and a “Mafia style” killer); Kappos

v. Hanks, 54 F.3d 365, 367–68 (7th Cir. 1995) (holding the prosecutor’s comments during closing

argument that the defendant was a murderer and artful liar, while questionable, “were essentially

a commentary on the credibility issue” before the jury and did not rise to the level of a

constitutional violation); Blackston v. Rapelje, 907 F. Supp. 2d 878, 901–02 (E.D. Mich. 2012)

(finding that the prosecutor’s comment during opening statement in murder prosecution that he

did not mean to paint a witness “as anything other than a cold-blooded murderer” just like the

petitioner, “because that’s what they are,” did not entitle petitioner to habeas relief on his

prosecutorial misconduct claim), aff’d, 769 F.3d 411 (6th Cir. 2014), opinion amended and

superseded, 780 F.3d 340 (6th Cir. 2015).

Accordingly, the Appellate Division’s finding that these comments did not constitute

reversible error was not contrary to or an unreasonable application of Supreme Court precedent.

Griggs is not entitled to habeas relief on Ground Six.

G. Ground Seven

Griggs argues that he was deprived of a fair trial when the trial court: (a) failed to properly

instruct the jury regarding improper testimony; and (b) allowed a witness to identify her phone

records. ECF No. 1 at 18–19. The Appellate Division summarily rejected these arguments, finding

them “without sufficient merit to warrant discussion in a written opinion.” Griggs, 2014 WL

3510692, at *8.

“Habeas relief for a due process violation concerning an absent or defective instruction is

available when the absence of an instruction, or a defective instruction, infects the entire trial with

unfairness.” See Albrecht v. Horn, 485 F.3d 103, 129 (3d Cir. 2007) (citation omitted). The

petitioner must demonstrate that the failure to include the limiting instruction was prejudicial. See

Henderson v. Kibbe, 431 U.S. 145, 154 (1977). This burden is “even greater than the showing

required to establish plain error on direct appeal.” Id. Moreover, “[a]n omission, or an incomplete

instruction, is less likely to be prejudicial than a misstatement of the law.” Id. “[U]nless [the error]

had [a] substantial and injurious effect or influence in determining the jury’s verdict,” it is deemed

harmless. See Adamson v. Cathel, 633 F.3d 248, 259 (3d Cir. 2011) (quoting Fry v. Pliler, 551

U.S. 112, 116 (2007)).

Griggs’s argument regarding the trial court’s alleged failure to instruct the jury regarding

improper testimony relates to references to his first trial, specifically: (1) L.P.’s response to a

question that, “these questions wasn’t asked the last time I was here,” and (2) defense counsel’s

reference while cross examining Dr. Shaikh to “the last trial or another proceeding.” ECF No. 1 at

19. However, the trial court did instruct the jury in response to these comments:

[D]on’t consider what those proceedings may have been. Don’t consider the reason

why we are here after all these prior proceedings. Consider this here and you can

consider, if you want, for the purpose it was admitted any testimony from a prior

proceeding. Okay? Don’t start speculating as to what we are doing here if we had

a prior proceeding.

ECF 11-10 at 14.

In light of: (1) the court’s instruction not to speculate about or consider the type or purpose

of prior proceedings; (2) the presumption that the jury will follow instructions; and (3) a review of

the challenged comments and instruction in context, Griggs has failed to establish that the alleged

improper testimony and instruction infected the trial with unfairness. As noted throughout, there

was strong evidence that Griggs is guilty of the charged crimes. See Albrecht v. Horn, 485 F.3d

103, 129 (3d Cir. 2007) (whether a constitutional violation has occurred will depend, in part, upon

the overall evidence presented in the case); Dirago v. Hendricks, No. 03-5943, 2005 WL 3113429,

at *15 (D.N.J. Nov. 17, 2005) (omitted instruction was harmless error, particularly where the

Appellate Division determined that “there was overwhelming evidence against petitioner and the

case was not ‘a close one’”). On this record, the Appellate Division’s rejection of Griggs’s claim

regarding the alleged need for an instruction regarding improper testimony is not contrary to or an

unreasonable application of Supreme Court precedent and this part of Ground Seven does not

provide a basis for habeas relief.

The Appellate Division also properly rejected Griggs’s argument that the trial court erred

by permitting F.J. to identify her phone records. State court evidentiary rulings are generally not

cognizable in federal habeas review; however, a petitioner may nonetheless be entitled to relief if

he can show that the use of the evidence caused a “fundamental unfairness” at trial in violation of

his due process rights. See Kontakis v. Beyer, 19 F.3d 110, 120 (3d Cir. 1994) (citing Lisenba v.

California, 314 U.S. 219, 236 (1941)). Griggs has not made such a showing.

First, the relevant rules of evidence governing opinion testimony of lay witnesses do not

require F.J. to possess expert knowledge or skill to recognize and identify her phone number.4

Second, the phone records were shown to F.J. to refresh her recollection as to the time she received

a call from Griggs; they were not admitted into evidence. ECF No. 11-47 at 141; ECF No. 11-28

at 120–28; see also U.S. v. Lnu, 575 F.3d 298, 307 (3d Cir. 2009) (“witnesses may use any aid to

refresh their recollections, including inadmissible evidence that might never be shown in open

court”) (cleaned up); State v. Carter, 449 A.2d 1280, 1299 (N.J. 1982) (“[o]nce a proper foundation

has been laid, a witness may examine any document to refresh his memory”).

Under these circumstances, Griggs has not established that the use of the challenged

records caused a fundamental unfairness at trial in violation of his due process rights. Accordingly,

the Appellate Division’s rejection of Griggs’s claim regarding the telephone records is not contrary

to or an unreasonable application of Supreme Court precedent and this part of Ground Seven does

not provide a basis for habeas relief.

H. Ground Eight

In Ground Eight, subpart (d),5 Griggs argues that trial counsel was ineffective for not

communicating his wishes for a negotiated plea—specifically, for a 15-year sentence—after his

first trial ended in a mistrial. ECF No. 1 at 23; ECF No. 11-8 at 74; ECF No. 11-10 at 10. The

Appellate Division rejected this argument, finding it to be “without sufficient merit to warrant

4 See F.R.E. 701 (“If a witness is not testifying as an expert, testimony in the form of an opinion is

limited to one that is: (a) rationally based on the witness’s perception; (b) helpful to clearly

understanding the witness’s testimony or to determining a fact in issue; and (c) not based on

scientific, technical, or other specialized knowledge within the scope of Rule 702 [(governing

expert witness testimony)]”); N.J.R.E. 701 (“If a witness is not testifying as an expert, the witness’

testimony in the form of opinions or inferences may be admitted if it: (a) is rationally based on the

witnesses’ perception and (b) will assist in understanding the witness’ testimony or determining a

fact in issue.”).

5 Ground Eight, subparts (a)–(c) have been withdrawn. ECF Nos. 16 and 18.

discussion in a written opinion.” State v. Griggs, No. A-0310-16T3, 2018 WL 1191195, at *2 (N.J.

Super. Ct. App. Div. Mar. 8, 2018). The court summarily affirmed the PCR court’s finding that

Griggs failed to make a prima facie showing of ineffectiveness of counsel “substantially for the

reasons expressed by [the PCR judge] in his thorough written decision.” Id.

The Sixth Amendment guarantees the accused the “right . . . to have the Assistance of

Counsel for his defense.” U.S. Const. amend. VI; see Strickland v. Washington, 466 U.S. 668, 686

(1984). A claim of ineffective assistance has two necessary components. Id. at 687. First, the

defendant must “show that counsel’s representation fell below an objective standard of

reasonableness,” id. at 687–88, meaning he “must identify the acts or omissions of counsel that

are alleged not to have been the result of reasonable professional judgment.” Id. at 690. Second, a

petitioner must establish prejudice, i.e., a reasonable probability that the result of trial would have

been different absent the deficient act or omission. Id. at 687. To establish prejudice from

ineffective assistance during the plea bargain process, a petitioner must demonstrate that, but for

counsel’s errors, the outcome of the process would have been different. See Hill v. Lockhart, 474

U.S. 52, 59 (1985). Further, “[i]f it is easier to dispose of an ineffectiveness claim on the ground

of lack of sufficient prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697).

On habeas review, it is not enough that a federal judge would have found counsel

ineffective. The judge must find that the state court’s resolution of the issue was unreasonable, a

higher standard. Harrington v. Richter, 562 U.S. 86, 101 (2011).

The PCR judge rejected Griggs’s claim as follows:

This is not the situation where defense counsel failed to convey an offer from the

State to the petitioner. Here, petitioner argues that trial counsel failed to convey his

willingness to accept a specific plea offer to the State. As such, petitioner has failed

to satisfy the second prong in Strickland. The State asserts that it had no intention

at any point of ever offering anything less than a sentence of thirty years with thirty

years of parole ineligibility. “[A] defendant has no legal entitlement to compel a

plea offer or a plea bargain; the decision whether to engage in such bargaining rests

with the prosecutor. State v. Williams, 277 N.J. Super 40, 46 (App. Div. 1994)

(citations omitted). Assuming arguendo that trial counsel did not convey

defendant’s request to the State, it would have no effect on the outcome of this case

since the State would not accept such a counter-offer; trial counsel could not force

the State to do so.

ECF No. 11-10 at 11–12 (citations omitted).

Griggs asserts in conclusory fashion that after the first trial ended in a mistrial, he “was in

a better position to obtain a better offer” than the State’s original offer of a “30 year term with a

30 year stip.” ECF No. 1 at 23; ECF No. 11-12 at 43 (pretrial memorandum with plea agreement

offer of “30 yrs NJJP w/ 30 Stip”). However, he makes no showing that the State was willing to

accept anything other than the 30-year offer previously extended. Therefore, as the PCR court

found, even assuming defense counsel failed to convey Griggs’s wish for a 15-year offer, Griggs

has not demonstrated that the outcome of the proceeding would have been different. See, e.g.,

Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001) (“Petitioner claims that counsel refused

to convey any of his counter-offers . . . . However, there is absolutely nothing in the record to

suggest that counsel refused to convey any such counter-offers, that the state would have accepted

any such counter-offers, and that petitioner would have been steadfast in his desire to plead guilty.

Bald assertions are not enough to sustain a claim of ineffective assistance of counsel.”); Bitter v.

Premo, No. 15-00396, 2016 WL 554584, at *5 (D. Or. Feb. 10, 2016) (no ineffective assistance

where petitioner did not submit “independent evidence demonstrating that the prosecutor would

have agreed to” counteroffer); Carrillo v. United States, No. 09-00249, 2014 WL 12721414, at *9

(W.D. Tex. Nov. 6, 2014), adopted by 2014 WL 12721416 (W.D. Tex. Nov. 25, 2014) (no

ineffective assistance where claim is “wholly speculative and conclusory” and there are “no facts

to support the existence or the terms of a more favorable plea offer that would have been offered

by the Government but for [defense counsel’s] failure to further negotiate”); Castillo v. Long, No.

12-04318, 2013 WL 1182943, at *13 (C.D. Cal. Jan. 9, 2013), adopted by No. 12-04318, 2013

WL 1182951 (C.D. Cal. Mar. 21, 2013) (“The Court finds that it was not objectively unreasonable

for the California Court of Appeal to conclude that petitioner had not made the requisite showing

of Strickland prejudice with respect to his ineffective assistance claim premised on counsel’s

alleged failure to convey a counteroffer of five years” because “petitioner failed to demonstrate a

reasonable probability that the prosecutor would have accepted a five-year counteroffer.”); cf.

Schnebelen v. Beaver, No. 18-00281, 2020 WL 2892219, at *10 (W.D.N.C. June 2, 2020),

reconsideration denied No. 18-00281, 2020 WL 3259801 (W.D.N.C. June 16, 2020) (“The

Supreme Court has never held that counsel has a duty to communicate a defendant’s formal plea

counter offer to the prosecution . . . . As such, the state post-conviction court’s rejection of

Petitioner’s claim that [defense counsel] violated his Sixth Amendment right to the effective

assistance of counsel by failing to communicate a counter offer to the prosecutor could not have

been contrary to clearly established federal law as decided by the U.S. Supreme Court.”).

Accordingly, Griggs has not established that the state court’s rejection of Griggs’s

ineffective assistance claim is contrary to or an unreasonable application of clearly established

federal law, and he is not entitled to habeas relief on this claim.

I. Ground Nine

Griggs contends that he was denied due process when the PCR court denied his petition

without conducting an evidentiary hearing on his ineffective assistance claims. ECF No. 24–28.

Whether the PCR court should have conducted a hearing is not a claim that is cognizable on habeas

review: “[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 calculation.”

Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998) (emphasis in original); see also, e.g.,

Lambert v. Blackwell, 387 F.3d 210, 247 (3d Cir. 2004) (“habeas proceedings are not the

appropriate forum for Lambert to pursue claims of error at the PCRA proceeding”). Accordingly,

this argument provides no basis for habeas relief.

V. CERTIFICATE OF APPEALABILITY

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

appealability (“COA”), an appeal may not be taken from a final order in a proceeding under 28

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

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

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

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

deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Here,

reasonable jurists would not find the Court’s habeas ruling debatable. Accordingly, no certificate

of appealability shall issue.

VI. CONCLUSION

For the foregoing reasons, Griggs’s petition is denied with prejudice on the merits and no

certificate of appealability shall issue. An appropriate order follows.

___s/ Claire C. Cecchi___

DATED: February 27, 2023 ______________________________

CLAIRE C. CECCHI, U.S.D.J.