RUSSELL v. JOHNSON

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

____________________________________

JAMES RUSSELL, :

:

Petitioner, : Civ. No. 20-1312 (PGS)

:

v. :

:

STEPHEN JOHNSON, et al. : OPINION

:

Respondents. :

____________________________________:

PETER G. SHERIDAN, U.S.D.J.

I. INTRODUCTION

Petitioner, James Russell (“Petitioner” or “Russell”), is a state prisoner

proceeding pro se with an amended petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254. (ECF No. 8.) For the following reasons, the amended petition is

denied and a certificate of appealability shall not issue.

II. FACTUAL AND PROCEDURAL BACKGROUND

The factual background giving rise to Petitioner’s judgement of conviction

was stated by the New Jersey Superior Court, Appellate Division during Petitioner’s

direct appeal as follows:1

1 The Appellate Division consolidated Petitioner’s and his codefendants’, Jamell D. Scott, Lee C. Reeves, and

Trishawn F. Cochran, direct appeals. All three individuals challenged “their convictions and sentences following a

joint jury trial involving charges related to a plot to silence a witness to a prior murder.” (ECF Nos. 30-35 and 30-

36, State v. Scott, Reeves, Russell, and Cochran, Nos. A-2580-09T1, A-4100-09T1, A-4101-09T1, A-6279-09T3,

A. The Olivares Murder Proceeding

The following facts are derived from the trial record. In

February 2006, Christian Vivar Granados was an

eyewitness to a violent incident that led to criminal

charges against Scott, Russell, and Tyleek Baker relating

to the murder of Jose Francisco Olivares in a Lakewood

barbershop. During his 9-1-1 call, Granados identified one

of the participants by nickname and first name. He also

gave statements to the police and identified all three

participants in photographs.

Granados’s name and address appeared in the police

reports and other documents produced during discovery in

the Olivares murder proceeding. At a plea cut-off hearing

in August 2008, Scott and Russell acknowledged that they

had reviewed the discovery materials with their attorneys.

The court set the trial date for September 15, 2008.

Jury selection began on September 17, 2008. On October

7, 2008, the trial judge advised the defendants that opening

statements and witness testimony would begin on October

14, 2008.

B. The Plan to Silence Granados

According to Joseph Powell, on September 13, 2008, he

was instructed by Shawn Craighead, a fellow gang

member then incarcerated in the Ocean County Jail, to

contact gang leader Cochran. When Powell met Cochran

a few days later, Cochran told Powell that he was about

“to take care of some bitch,” which Powell understood to

mean an unnamed witness. Cochran later confided that he

had learned the witness’s address – “in the Congress” - and

if Powell spoke with Scott or Russell (who were

incarcerated in the Ocean County Jail awaiting trial for the

slip op., at 3 (N.J. Super. Ct. App. Div. April 16, 2013). To avoid confusion, this Court will short cite to the New

Jersey Appellate Divisions direct appeal Opinion as Russell, No. A-4101-09T1, slip op.

Olivares murder), Powell should tell them Cochran was

“still working on that problem.”

Soon enough, Powell spoke again with Cochran, telling

him that Scott and Russell kept calling him. Cochran

responded that “if [you] talk[] to [them], to let [them]

know that the situation is taken [sic] care of. That [Reeves]

was going to take care of it in the Congress. But if [you]

talk[] to him [sic], don’t mention [Reeves] or the

Congress.”

On Friday, October 10, 2008, Russell called Powell. The

following verbatim exchange, captured on an audio

recording, occurred:

[Russell]: Big bro bust at you and told you tell “Brave”

[Cochran] that shit?

[Powell]: About the pants, right?

[Russell]: Yeah.

[Powell]: Word.

[Russell]: Yeah, I know that like, that’s like top priority,

ya hear.

[Powell]: Word, I told ‘em I’d let him have that by Sunday

and shit.

[Russell]: Yeah, na, but ah, motherfucker ah, tell “Brave”

ta ah, tell “Brave” “Big Bro” said, tell, tell “Brave” “Big

Bro” said, “Handle that CVS thing[,]” ya heard?

[Powell]: CVS thing ya said?

[Russell]: Yeah.

[Powell]: A-ight[.]

[Russell]: He be knowin’, he be knowin’ what it is en shit.

[Powell]: Word.

[Russell]: Ya tell ‘em niggers you know what I mean,

throw, throw a barbeque and speak about that shit.

[Powell]: No doubt.

[Russell]: Yeah, Nig, niggers goin’ have ta fight this war

on Tuesday, ya heard?

[Powell]: Yeah, I’m gonna be up there Tuesday.

[Russell]: Yeah, I know that. Yeah, we just, we just wavy

right now man. I mean I got this thing in neutral patiently

waitin’ (inaudible) know what I mean?

[Powell]: Word.

In another tape-recorded conversation on the afternoon of

Monday, October 13, 2008, Scott told Powell: “Bust that

‘Brave’ that nigger you know what I mean ta handle that

shit you know what I mean, he knows what to do with that

shit.” Powell replied: “He’s hittin’ me back,” and Scott

answered: “A-ight, I’ll be at ya later on tonight and shit.”

Powell testified that “Bust that ‘Brave” meant to call

Cochran, and the reference to “handle that shit” referred to

“[t]he situation with the witness.”

Approximately one hour later, Russell telephoned Powell.

Russell asked if Powell knew whether Cochran had

“handle[d] that shit.” Powell replied that he had talked to

everyone but Cochran. Russell responded: “Motherfucka

you know niggers tryin’, you know what I mean, take it,

take it ta a different level, ya heard?” Powell explained that

Russell was asking if he had taken care of the witness

situation and telling him to “get the job done.”

After Tuesday, October 14, 2008, Powell stopped taking

telephone calls from any street gang member in the Ocean

County Jail. He testified that he was “afraid of getting

caught up between the murder with the phone calls.”

C. The Vazquez Murder

On Tuesday, October 14, 2008, Granados was staying with

his girlfriend, Alisa Morales, and her mother, Thelma

Vazquez, at the Congress Apartments in Lakewood. Prior

to that day, a defense investigator had visited a different

address listed for Granados in the Olivares discovery

materials and was directed by Granados’s mother to reach

Granados at the Congress Apartments.

Shortly before 6:00 a.m., Vazquez was sleeping on the

sofa in the living room when the household’s dog began

barking. Morales and Granados, who were in the bedroom,

heard Vazquez call for the dog and ask, “Que lo que?”

Then they heard gunshots. Upon entering the living room,

they saw the front door open and Vazquez bleeding on the

sofa. While Granados called 9-1-1, Morales ran outside in

an effort to get a glimpse of the shooter, but she did not

see anyone.

Within moments, Lakewood Police Officer Robert

Anderson received a dispatch call to respond to a shooting

at Vazquez’s apartment. Upon entering the unit, he

observed Vazquez with multiple bullet wounds. The front

door was “pushed in” and “busted off” the jam, and wood

was missing under the striker plate. Vazquez was taken by

ambulance to nearby Kimball Medical Center, where she

died.

D. The Ocean County Jail Investigation

On the same day as Vazquez’s murder, Sergeant Joseph

Valenti of the Ocean County Department of Corrections

coincidentally learned of a security threat involving

contraband razor blades in the East E section of the Ocean

County Jail. While correction officers searched inmates

and cells, Valenti accessed and listened to tape-recorded

telephone calls made by inmates between October 8 and

14, 2008, “to see if [he] could see if somebody had

something to do with the four razor blades that were going

to be used to cut up possible officers.”

Valenti testified that all telephone calls by inmates were

routinely tape-recorded and monitored for security threats.

Upon entering the jail, inmates completed a form listing

five people they wished to call, plus one attorney. Inmates

then received a personal identification number (PIN),

which they had to enter into the telephone system before

placing a telephone call. Each PIN was traceable to the

inmate’s housing assignment.

As he reviewed the records of telephone calls and their

associated PINs, Valenti noticed that inmate Perfecto

Salgado, housed in the jail’s North C section, appeared to

be making telephone calls from the East E section even

though he was not housed there. When Valenti listened to

the recordings of telephone calls made with Salgado’s

PIN, Valenti identified the voices of inmates Russell,

Scott, and Craighead. Valenti verified the actual callers’

identities by viewing video recordings taken from cameras

inside the jail.

Valenti knew that Russell and Scott were on trial first-

degree crime in the Olivares murder proceeding, and that

someone very close to a key witness in that trial was shot

and killed earlier that day. Valenti testified that Salgado

and Scott were housed in the same jail section from

November 22, 2007, through December 3, 2008, and that

Scott and Craighead were cellmates from September 6,

2008, through November 6, 2008.

Valenti became alarmed after listening to one of Russell’s

telephone calls that occurred on October 9, 2008. In that

conversation Russell told the other person that something

had to be done by Tuesday before the trial: “it’s gotta be

done by Sunday, Monday the latest ‘cause niggers go to

court Tuesday, you dig.” Valenti contacted Ocean County

Prosecutor’s Office Investigators Carlos Trujillo-Tovar

and Casey Long to advise them of a possible connection

between the jailhouse conversations and Vazquez’s

murder.

Long obtained a court order to review additional telephone

conversations using Salgado’s PIN from September 2

through October 17, 2008. There were ninety-five

telephone calls involved, but Long believed only eight

were relevant to the murder of Vazquez. The number was

later pared for trial.

Salgado denied using the telephone at the jail, explaining

that his family lived in Mexico. Moreover, he confirmed

that he did not fill out the PIN request form or sign it. He

testified that Scott — known to Salgado as “Cinco” — had

completed and signed the form. Scott also filled out the

information on two “Telephone Delete Add Request”

forms, which Salgado admittedly signed. Salgado was not

familiar with any of the names or telephone numbers on

those forms.

E. The Shooter

Wenda Guzman testified that on the night before

Vazquez’s shooting, Reeves slept on the futon in the living

room of Guzman’s apartment. Shortly before 6:00 a.m. on

October 14, 2008, Reeves asked Guzman “to take a walk

with him so he [could] fulfill an order.” During the walk,

Guzman noticed the handle of a gun at Reeves’s waist.

When she asked him about the gun and the order he was

going to fulfill, Reeves would not give her a straight

answer. Guzman decided to go home and left Reeves when

he turned onto Congress Street.

Reeves returned to Guzman’s apartment a few minutes

later. Guzman testified that he looked “just fine.” He took

a shower, asked for a change of clothes, went to sleep on

the futon, and left the apartment in the early afternoon.

That same day, James Wallace received a telephone call

from Reeves, asking to meet him. Reeves had previously

told Wallace “he had to put some work in at the Congress”

with “some Spanish cat.” When they first met after the

shooting, Reeves told Wallace that he had gone to the

witness’s apartment, kicked in the door, and started

shooting until the gun jammed.

Around this time, Reeves gave Wallace a nine-millimeter

Smith and Wesson handgun. Wallace wrapped the

handgun in a t-shirt, and hid it in his backyard until Reeves

asked for it.

Reeves’s live-in girlfriend, Shaunita Foskey, learned of

the Vazquez homicide on October 14, 2008, which

happened to be her birthday. The next day, Reeves told

Foskey that he wanted to tell her something “[a]bout the

Congress” and “[t]hat lady.” Foskey replied, “I don’t want

to hear nothing.”

Around October 17, 2008, Reeves spoke again with

Guzman. According to her account, “[h]e pulled me to the

side, let me know that the whole order has been fulfilled,

and then he proceeded to explain of what his action[s]

were of that night.” Specifically, Reeves said that “he

kicked down the door, let off shots, the gun jammed and

he took off running.”

Also around this time, Reeves asked Wallace to return the

handgun. The weapon, still wrapped in a t-shirt, ended up

with Reeves at Foskey’s dwelling. She testified that

Reeves cleaned the handgun and removed “the dirt from

the hole [meaning the barrel] of the gun” with an old

toothbrush. As Reeves was cleaning, she saw a copper-

looking shell casing inside the handgun. Reeves removed

the casing, wrapped it in a tissue, and stated, “without the

casing, they don’t have anything.”

Foskey then listened as Reeves told her “the whole story.”

He explained that “his Big Homey said the witness had to

go,” meaning he was ordered to kill a witness, and “he had

to do what [he] had to do.” Reeves admitted to Foskey that

he kicked Vazquez’s door open, shot whoever was on the

couch, and ran off when the gun jammed. Only later did

Reeves realize that he shot the wrong person, saying he

meant to shoot the “lady’s son-in-law,” who was

“supposed to have been the witness.” Sometime after that,

he and Foskey went to Camden, where Reeves dropped the

shell casing into a street drain.

During the early morning hours of October 22, 2008,

Reeves, Wallace, and Stephanie Tansley decided to drive

to a liquor store. On the way, Reeves told Tansley — in

confidence — that “he went to this house, kicked down the

door, had a gun in his shirt and shot,” and that he ran when

the gun jammed. He asked her if she wanted to go there,

and Tansley said yes. Tansley then drove Reeves and

Wallace to the Congress Apartments.

Wallace testified that Reeves wanted to show Tansley

where he had killed “that bitch at.” Leaving Wallace in the

car, Reeves and Tansley walked up the stairs to Vazquez’s

apartment, at which time Tansley saw a police officer in a

marked police vehicle below them. They “ran down the

stairs and went back into the car,” and Tansley drove them

to a bar and liquor store before heading to another friend’s

house.

Lakewood Police Officer Kevin Doyle testified that he

was on patrol that morning in the area of the Congress

Apartments. At about 1:45 a.m., he noticed a vehicle —

“the only vehicle on the street at this time” — moving at a

high rate of speed. He followed at a distance and watched

it enter the Congress Apartments complex. He found the

vehicle parked in front of Vazquez’s apartment, and

observed a black male and white female standing directly

in front of the apartment unit’s door. After he drove by, he

saw the two individuals immediately return to their vehicle

and drive away.

After losing sight of the car, Doyle noticed it

approximately thirty minutes later. He followed, and

eventually pulled it over. He identified Tansley as the

driver, Reeves as the front-seat passenger, and Wallace as

the rear-seat passenger. He asked each of them why they

went to the apartment and whether they knew about the

murder. Reeves told Doyle that he was visiting a friend

who lived there, giving the police officer a “bogus name.”

The officer allowed Reeves and the others to leave.

The same day, Reinaldo Feliciano was stopped by a state

trooper in Lakewood for a motor vehicle violation and was

taken to the Lakewood police headquarters. There, he was

interviewed by investigators from the Ocean County

Prosecutor’s Office because he indicated that he had

information about the Vazquez shooting. He explained

that the weekend before the shooting, Reeves said he

needed a ride “to go take care of the bitch . . . [b]efore they

[sic] get on the stand to testify . . . against one of his

homies.” According to Feliciano, Reeves said that if he did

not get the job done, he would be disciplined — beaten

while surrounded — by his fellow street gang members.

Feliciano also stated that Reeves called him the day after

the shooting and told him the job was done and “he needed

a ride out of town . . . because it was too hot for him to be

around.” The following day, Reeves told Feliciano in

person that “he killed the bitch, and that his gun jammed

and he bounced.”

In December 2008, Foskey provided information about the

location of the shell casing in Camden, which the police

recovered from beneath the sewer grate in short order.

Several months later, further investigation resulted in the

recovery of a nine-millimeter Smith and Wesson handgun,

which was forensically linked to the shell casing recovered

in Camden and a shell casing found at the scene of

Vazquez’s shooting.

F. Reeves’s Testimony

Reeves testified at trial. He freely admitted that he

murdered Vazquez. Cochran, Scott, and Russell did not

testify or call any witnesses.

Reeves told the jury that Powell recruited him into the

Bloods by “jumping me in,” meaning he suffered a beating

and bled. At the beginning of October 2008, Reeves said

that Powell ordered him to kill a witness, and threatened

to “DP” him if he refused. Reeves explained that “DP”

meant “dependent upon how serious the infraction is that

you do, basically me not killing somebody would mean

that I would get killed.” When Feliciano tried to talk him

out of committing the crime, Reeves told him that the

shooting had to be done or it would “come back on me.”

Reeves testified he did not mean to kill Vazquez, calling it

“an accident,” but said he had to do it. He thought the

victim was Granados because it was dark inside the

apartment. Reeves knew that what he did was wrong and

that he deserved to spend time in prison.

Although Reeves admitted telling Guzman and Wallace

that Scott was his Big Homey, at trial he maintained that

his Big Homey was Powell. Reeves conceded that he told

Wallace that he “received orders from [his] [B]ig

[H]om[ey] to take care of a witness for [the] [B]ig

[H]om[ey]’s trial.” He also admitted telling Feliciano,

Clark, and Guzman that his Big Homey was in jail, which

Powell was not.

Reeves confirmed that he tried to take Feliciano with him

when he did the shooting. He admitted telling Feliciano

that he “had to take care of some bitch before the bitch got

on the stand to testify against one of [his] homies.” He

explained that “the bitch” referred to Granados, because

he was “a snitch.” Likewise, he admitted telling Wallace

that he had “to put in work on some Spanish cat in the

Congress.”

G. Rebuttal Testimony

The State presented Guzman, Foskey, and Wallace as

rebuttal witnesses. Guzman said Reeves told her in August

2008 that Scott was his Big Homey. He also told her that

the order to kill the witness originated with Scott and that

it was handed to him down the street gang’s chain of

command. Reeves never told her that he had been

threatened with discipline. Foskey and Wallace similarly

testified that Reeves told them Scott was his Big Homey.

According to Foskey, Reeves said that Scott sent word that

the witness “had to go.”

Russell, No. A-4101-09T1, slip op., at 4-18.

On October 28, 2009, Petitioner was found guilty of first-degree conspiracy

to commit murder, first-degree murder, two counts of attempted murder, second-

degree burglary, second-degree conspiracy to commit witness tampering, and first-

degree witness tampering. (See ECF No. 30-30, Sentencing Tr. at 59:1-12.) On

December 1, 2009, after merging certain counts, Petitioner was sentenced to a term

of life imprisonment without parole on the murder conviction, and the lesser

sentences on the remaining counts were to run concurrent thereto. The court ordered

these sentences be served consecutive to those Petitioner was then serving for other

crimes. (See id., at 54:21 to 55:4, 60:10 to 61:16.)

Petitioner filed a direct appeal. The Appellate Division affirmed the

judgement of conviction on April 16, 2013. Russel, No. A-4101-09T1, slip. op. The

New Jersey Supreme Court denied certification on Petitioner’s direct appeal. (ECF

No. 30-37, State v. Russell, 76 A.3d 544 (N.J. 2013)).

Petitioner filed a post-conviction relief (“PCR”) petition. On April 29, 2016,

following a hearing, the PCR court denied his petition. (See ECF No. 30-42.)

Petitioner appealed, and the Appellate Division affirmed the denial on May 15, 2019.

State v. Russell, No. A-5319-15T2, 2019 WL 2114762 (N.J. Super Ct. App. Div.

May 15, 2019). The New Jersey Supreme Court then denied Petitioner’s petition for

certification. (ECF No. 30-52.)

Petitioner filed his original habeas petition on February 7, 2020. (ECF No. 1.)

Petitioner then filed the instant amended habeas petition on March 26, 2020. (ECF

No. 8.) Respondents filed an answer. (ECF No. 14.) Petitioner filed a reply. (ECF

No. 38.)

III. LEGAL STANDARD

Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 28 U.S.C. § 2254 provides, the district court “shall entertain an

application for writ of habeas corpus on 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.” Habeas petitioners bear the

burden of establishing their entitlement to relief for each claim presented in a petition

based upon the record that was before the state court. See Eley v. Erickson, 712 F.3d

837, 846 (3d Cir. 2013). District courts are required to give great deference to the

determinations of the state trial and appellate courts. Renico v. Lett, 559 U.S. 766,

772–73 (2010).

Where a claim has been adjudicated on the merits by the state courts, the

district court shall not grant an application for writ of habeas corpus unless the state

court 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).

“Contrary to clearly established Federal law” means the state court applied a

rule that contradicted the governing law set forth in U.S. Supreme Court precedent

or that the state court confronted a set of facts that were materially indistinguishable

from U.S. Supreme Court precedent and arrived at a different result than the

Supreme Court. Eley, 712 F.3d at 846 (citing Williams v. Taylor, 529 U.S. 362, 405-

06 (2000)). Federal law is clearly established for these purposes where it is clearly

expressed in “only the holdings, as opposed to the dicta” of the opinions of the

United States Supreme Court. See Woods v. Donald, 575 U.S. 312, 316 (2015). An

“unreasonable application” of clearly established federal law is an “objectively

unreasonable” application of law, not merely an erroneous application. Eley, 712

F.3d at 846 (quoting Renico, 559 U.S. at 773). 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).

“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.” Woods, 574

U.S. at 316. Where a petitioner challenges an allegedly erroneous factual

determination of the state courts, “a determination of a factual issue made by a State

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

rebutting the presumption of correctness by clear and convincing evidence. 28

U.S.C. § 2254(e)(1). Furthermore, “[w]hen a state court arrives at a factual finding

based on credibility determinations, the habeas court must determine whether that

credibility determination was unreasonable.” See Keith v. Pennsylvania, 484 F.

App’x 694, 697 (3d Cir. 2012) (citing Rice v. Collins, 546 U.S. 333, 339 (2006)).

Finally, to the extent that a petitioner’s constitutional claims are unexhausted

and/or procedurally defaulted, a court can nevertheless deny them on the merits

under 28 U.S.C. § 2254(b)(2). See Taylor v. Horn, 504 F.3d 416, 427 (3d Cir. 2007)

(“Here, because we will deny all of [petitioner’s] claims on the merits, we need not

address exhaustion”); Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir. 2005)

(considering procedurally defaulted claim, and stating that “[u]nder 28 U.S.C.

§ 2254(b)(2), we may reject claims on the merits even though they were not properly

exhausted, and we take that approach here”).

IV. DISCUSSION

A. Ground One

In Ground One, Petitioner argues that the trial court erred in denying

Petitioner’s motion for change of venue. (ECF No. 8 at 7-9.) Petitioner contends that

the pretrial publicity from the related “barbershop murder”2 was too prejudicial and

required a change of venue. On direct appeal, the Appellate division denied this

claim as meritless for the following reasons:

To assure impartiality in criminal trials, courts must

excuse potential jurors who have formed an opinion as to

the defendant’s guilt or innocence. State v. Williams, 93

N.J. 39, 61, 459 A.2d 641 (1983). “Only if it is

demonstrated that ‘the juror can lay aside his [or her]

impression or opinion and render a verdict based upon the

evidence presented in court’ will extraneous exposure to

the facts of the case not be grounds for automatic

disqualification.” Ibid. (quoting State v. Sugar, 84 N.J. 1,

23, 417 A.2d 474 (1980)).

. . .

Courts distinguish between “‘cases in which the trial

atmosphere is so corrupted by publicity that prejudice may

be presumed, and cases in which pretrial publicity, while

extensive, is less intrusive, making the determinative issue

the actual effect of the publicity on the impartiality of the

jury panel.’” [State v. Nelson, 173 N.J. 417, 475, 803 A.2d

1 (2002)] (quoting State v. Biegenwald, 106 N.J. 13, 33,

524 A.2d 130 (1987)).

Cases involving presumed prejudice “are relatively rare

and arise out of the most extreme circumstances.” State v.

Koedatich, 112 N.J. 225, 269, 548 A.2d 939 (1988), cert.

denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803

(1989). They involve situations where the community has

been saturated with inflammatory and prejudicial pretrial

publicity, and there has been an insufficient effort to “root

out” jurors exposed to it. [State v. Harris, 156 N.J. 122,

153, 716 A.2d 458 (1998), cert. denied, 532 U.S. 1057,

121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2001).] Such

2 Petitioner’s reference to the “barbershop murder” refers to the Oliveras murder. The Court will refer to that murder

trial as the Oliveras murder trial.

publicity may include editorial opinions on a defendant’s

guilt or innocence, or media pronouncements on a

defendant’s “deathworthiness.” Id. at 144-48. Thus, there

must be a deluge of media activity that creates “a carnival-

like setting in which ‘the trial atmosphere is so corrupted

by publicity that prejudice may be presumed.’” Id. at 143

(quoting Biegenwald, supra, 106 N.J. at 33). To determine

whether presumed prejudice exists, a court is obliged to

consider such factors as:

(1) evidence of extreme community hostility against

defendant;

(2) prominence of either the victim or defendant within

the community;

(3) the nature and extent of news coverage;

(4) the size of the community;

(5) the nature and gravity of the offense; and

(6) the temporal proximity of the news coverage to the

trial.

[Nelson, supra, 173 N.J. at 476.]

Where prejudice is not presumed, “a court must evaluate

whether under the totality of circumstances ‘the jury

process resulted in a fair and impartial jury’ to determine

if a change of venue is necessary to overcome the realistic

likelihood of prejudice.” Ibid. (quoting Koedatich, supra,

112 N.J. at 274). To determine actual bias as a result of

pretrial publicity, the court relies on a voir dire

examination of the jurors. Koedatich, supra, 112 N.J. at

274. An appellate court gives special deference to a trial

court’s determination regarding jury bias, and ordinarily

will affirm absent an abuse of discretion. Nelson, supra,

173 N.J. at 476-77.

This case is not one of these rare situations where

prejudice may be presumed due to a circus-like,

inflammatory atmosphere. The nature and extent of the

news coverage did not demonstrate presumed prejudice.

News reports that simply recite the charges against the

accused and present an outline of facts alleged in the

indictment are not unduly prejudicial. Harris, supra, 156

N.J. at 142. Criminal defendants are not entitled to jurors

who are totally ignorant of the facts and issues in their

case. State v. Harvey, 151 N.J. 117, 211, 699 A.2d 596

(1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L.

Ed. 2d 683 (2000).

There was no evidence of extreme community hostility,

given the jurors’ vague recollections of the underlying

facts in the Olivares matter. Neither defendants nor

Vazquez were prominent members of the community.

Thus, despite the gravity of the charges, the majority of

factors in Nelson weigh in favor of the State’s position.

Likewise, there was no actual prejudice. The trial court

specifically questioned each juror about knowledge of

another multi-defendant trial in Ocean County within the

last two years where defendants faced the prospect of life

imprisonment. For jurors who answered in the affirmative,

the court made further inquiries into their knowledge of

the previous case, their source of information, and their

ability to remain fair and impartial. The court excused any

potential juror who revealed prejudicial exposure or

indicated an inability to remain impartial. It also

repeatedly informed jurors of their duty to avoid any news

articles or broadcasts. Jurors are presumed to follow the

court’s instructions. State v. Loftin, 146 N.J. 295, 390, 680

A.2d 677 (1996).

Defendants argue that the responses of approximately one-

quarter of the total juror pool revealed some knowledge of

the connection between the Vazquez and Olivares murders

from outside sources. From this unadorned statistic, they

contend that the entire venire was poisoned by extensive

evidence of prejudicial pretrial publicity on the related

murders and street gang violence. They further argue that

prospective jurors knew defendants Scott and Russell had

been found guilty of murder in the Olivares trial.

Contrary to defendants’ assertions, the record does not

support these contentions. The jury pool was sufficiently

large to allow the court to find twelve impartial jurors and

four alternates. We disagree that there was actual

prejudice, or that prospective jurors knew Russell and

Scott had been convicted in the prior case. The denial of

the motion to change venue was correct.

Russell, No. A-4101-09T1, slip op., at 25-30.

A criminal defendant has a right to “a fair trial by a panel of impartial,

‘indifferent’ jurors. The failure to accord an accused a fair hearing violates even the

minimal standards of due process.” Irvin v. Dowd, 366 U.S. 717, 722 (1961). Jurors

are not required, however, to be totally unaware of the facts and issues involved in

a case. Murphy v. Florida, 421 U.S. 794, 799-800 (1975). “It is sufficient if the juror

can lay aside his [or her] impression or opinion and render a verdict based on the

evidence presented in court.” Id. (quoting Irvin, 366 U.S. at 723). A defendant can

establish actual prejudice by presenting evidence to show that “those who actually

served on his [or her] jury lacked a capacity to reach a fair and impartial verdict

based solely on the evidence they heard in the courtroom.” Rock v. Zimmerman, 959

F.2d 1237, 1253 (3d Cir. 1992), overruled on other grounds by Brecht v.

Abrahamson, 507 U.S. 619 (1993).

However, “where media or other community reaction to a crime or a

defendant engenders an atmosphere so hostile and pervasive as to preclude a rational

trial process, a court reviewing for constitutional error will presume prejudice to the

defendant without reference to an examination of the attitudes of those who served

as the defendant’s jurors.” Riley v. Taylor, 277 F.3d 261, 299 (3d Cir. 2001). “The

community and media reaction, however, must have been so hostile and so pervasive

as to make it apparent that even the most careful voir dire process would be unable

to assure an impartial jury. . . . Such cases are exceedingly rare.” Id.

To determine whether trial publicity has prejudiced the jury, courts must: (1)

determine whether the news coverage is prejudicial; (2) if so, determine whether any

jurors were exposed to the coverage; and (3) if exposure did occur, the court

examines the exposed jurors to determine if this exposure compromised their

impartiality. Barry v. Bergen Cnty. Prob. Dep’t, 128 F.3d 152, 163 (3d Cir. 1997).

Here, the Appellate Division did not unreasonably apply federal law in

rejecting this claim. First, the Appellate Division addressed the issue of presumed

prejudice, finding that “this case is not one of these rare situations where prejudice

is presumed due to a circus-like inflammatory atmosphere.” Russell, No. A-4101-

09T1, slip op., at 28. While Petitioner alleges there were fifty-four articles from the

Asbury Park Press and other newspapers regarding the two murders, the Appellate

Division explained there was no evidence of extreme community hostility and that

the jurors only had a vague recollection of the underlying facts of the Olivares

murder trial. Id. at 29.

Second, the Appellate Division addressed the issue of actual prejudice. The

trial court questioned every juror who indicated they had knowledge of the Oliveras

murder trial, including their source of information and their ability to remain

impartial. Id. The Appellate Division explained that the trial court excused any

potential juror who revealed an inability to be impartial. Id. Petitioner cites to the

comments from jurors regarding their recollection of the Oliveras murder, but the

Appellate Division found that with fifty-one out of a total of two hundred jurors

indicating that they were familiar with the Olivares murder and its connection to

Petitioner’s trial here, the jury pool was “sufficiently large to allow the court to find

twelve impartial jurors and four alternates.” Id. at 30. The Appellate Division

addressed both presumed and actual prejudice and found this claim meritless.

Because the state court’s rejection of this claim does not violate clearly established

federal law, nor was it an unreasonable application of Supreme Court precedent, this

claim is denied.

B. Ground Two

In Ground Two, Petitioner argued that the trial court erred in “denying

severance and not ordering a separate trial for defendants.” (ECF No. 8 at 10.)

Petitioner argues that severance should have been granted because “various hearsay

statements would be introduced at [Petitioner’s] trial that [Petitioner] would have no

ability to cross-examine.” (Id.) Petitioner also argues that the position of a co-

defendant was inconsistent with Petitioner’s and an antagonistic defense developed

at trial. Petitioner claims co-defendant Reeves admitted during the trial that he was

the shooter, and that testimony would not have been a part of Petitioner’s trial had

the trial court severed the matters. (Id.)

Petitioner raised this claim on direct appeal and the Appellate Division found

it meritless based on the following reasoning:

Courts generally hold that defendants cannot be tried

together when their defenses are antagonistic and mutually

exclusive or irreconcilable. [State v. Brown, 118 N.J. 595,

605, 573 A.2d 886 (1990).] However, the mere existence

of some antagonism, hostility or conflict between

defendants is not sufficient. Id. at 606. Moreover, “‘[i]f the

jury can return a verdict against one or both defendants by

believing neither, or believing portions of both, or, indeed,

believing both completely, the defenses are not mutually

exclusive.’” Brown, supra, 170 N.J. at 160 (alteration in

original).

. . .

[T]here were no antagonistic defenses raised. Although

Reeves admitted being the shooter, he claimed that Powell

gave him the order to kill. Thus, Reeves’s testimony in

some ways benefited both [Petitioner] and Cochran.

Moreover, the defenses were not mutually exclusive or

irreconcilable. Indeed, the jury found [Petitioner] guilty on

all counts, but found Cochran guilty only on the counts

involving witness tampering.

[Petitioner] contends that severance was warranted in part

because of “confrontation concerns.” He argues that the

admission of various statements by co-defendants, who

did not testify at trial, violated his confrontation rights

because he was unable to cross-examine them. Notably,

[Petitioner] fails to support this argument with any

persuasive legal authority.

Criminal defendants have the constitutional right to

confront witnesses against them. U.S. Const. amend. VI;

N.J. Const. art. I, ¶ 10; State v. Branch, 182 N.J. 338, 348,

865 A.2d 673 (2005). “The right of confrontation is an

essential attribute of the right to a fair trial, requiring that

a defendant have a ‘fair opportunity to defend against the

State[’s] accusations.’” Ibid. (quoting State v. Garron, 177

N.J. 147, 169, 827 A.2d 243 (2003), cert. denied, 540 U.S.

1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004)). This

right is exercised through cross-examination. Ibid.

The Confrontation Clause prohibits the use of an out-of-

court testimonial hearsay statement unless the person who

made the statement is unavailable to testify at trial and the

defendant had a prior opportunity for cross-examination.

State v. Cabbell, 207 N.J. 311, 329- 30, 24 A.3d 758

(2011). The United States Supreme Court explained:

Statements are nontestimonial when made in

the course of police interrogation under

circumstances objectively indicating that the

primary purpose of the interrogation is to

enable police assistance to meet an ongoing

emergency. They are testimonial when the

circumstances objectively indicate that there

is no such ongoing emergency, and that the

primary purpose . . . is to establish or prove

past events potentially relevant to later

criminal prosecution.

[Davis v. Washington, 547 U.S. 813, 822, 126

S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237

(2006).]

For confrontation purposes, testimonial statements include

those in which witnesses “bear testimony” against the

accused by making “a formal statement to government

officers,” Crawford v. Washington, 541 U.S. 36, 51, 124

S. Ct. 1354, 1364, 158 L. Ed. 2d 177, 192 (2004), as well

as certain statements that are the product of police

interrogation. See Cabbell, supra, 207 N.J. at 329.

It is well established that the co-conspirator exception

does not offend a defendant’s constitutional right to

confront witnesses. State v. Savage, 172 N.J. 374, 402, 799

A.2d 477 (2002). To qualify for admission, however, the

State must show:

First, the statement must have been made in

furtherance of the conspiracy. Second, the

statement must have been made during the

course of the conspiracy. Lastly, our courts

have held that there must be evidence,

independent of the hearsay, of the existence

of the conspiracy and defendant’s

relationship to it.

[State v. Phelps, 96 N.J. 500, 509-10, 476

A.2d 1199 (1984) (citations omitted).]

A co-conspirator’s statement, therefore, is admissible if

corroborated with sufficient independent evidence that

engenders a strong sense of its inherent trustworthiness.

Savage, supra, 172 N.J. at 403; see also State v. Boiardo,

111 N.J. Super. 219, 230, 268 A.2d 55 (App. Div.)

(holding hearsay statements by codefendants in

furtherance of a conspiracy in which the defendant was a

participant did not violate the defendant’s Sixth

Amendment right to be confronted by witnesses against

him), certif. denied, 57 N.J. 130, 270 A.2d 33 (1970), cert.

denied, 401 U.S. 948, 91 S. Ct. 931, 28 L.Ed. 2d 231

(1971).

Here, the statements of [Petitioner’s] co-defendants were

admissible under the co-conspirator exception to the

hearsay rule. Notably, these were not statements made to

the police; rather, they were statements made to other

members of the conspiracy. For example, during a

recorded conversation with Powell on October 9, 2008,

[Petitioner] asked if Powell had the chance to “hit ‘Brave

[Cochran]’” to let him “know that, that shit gotta be done

by Sunday, Monday the latest cause niggers go to Court

Tuesday.” Powell testified that he knew [Petitioner] was

talking about the targeted witness. Reeves’s testimony

corroborated these statements by Russell and Powell

regarding the witness. Thus, co-defendants’ statements

were made in furtherance and during the course of the

conspiracy in which [Petitioner] was a participant, and

their introduction at trial, did not violate his right of

confrontation. Accordingly, there was no basis to sever the

trials.

Russell, No. A-4101-09T1, slip op., at 32-40.

Initially the Court notes that Petitioner raises a claim of trial court error based

on a failure to sever, which does not implicate any federal constitutional or statutory

rights. Petitioner is arguing that the trial court’s decision was an abuse of discretion,

that state-law claim is denied because it is not cognizable. See, e.g., Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991).

Here, the Appellate Division’s determination that the statements made by

Petitioner’s codefendants were admissible as statements between co-conspirators,

made in furtherance of a conspiracy, is an evidentiary decision of state law that is

binding on federal habeas review. See Estelle, 502 U.S. at 67-68. The Supreme Court

has held that the admission of a non-testifying co-conspirator’s statement against a

defendant does not violate the Confrontation Clause as interpreted by Bruton v.

United States, 391 U.S. 123 (1968), as long as the statement satisfies the co-

conspirator exclusion of the relevant rules of evidence. See Bourjaily v. United

States, 483 U.S. 171, 182-83 (1987); Ayers v. Akinbayo, No. 15-1081-LPS, 2019

WL 1332325, at *4 (D. Del. Mar. 25, 2019) (“Notably, statements made by co-

conspirators during the course of a conspiracy are non-testimonial.”) Thus,

Petitioner’s claim that the trial court erred in not severing his trial based on his co-

conspirators statements made in furtherance of the conspiracy is meritless.

To the extent that it is Petitioner’s intent to challenge the trial court’s decision

on the federal constitutional grounds, “[t]here is a preference in the federal system

for joint trials of defendants who are indicted together” because joint trials “promote

efficiency and ‘serve the interest of justice by avoiding the scandal and inequity of

inconsistent verdicts.” Zafiro v. United States, 506 U.S. 534, 537 (1993). “Joint trials

conserve state funds, diminish inconvenience to witnesses and public authorities,

and avoid delays in bringing those accused of crime to trial.” United States v. Lane,

474 U.S. 438, 448 (1986).

The Supreme Court has observed that “[i]mproper joinder does not, in itself,

violate the Constitution. Rather, misjoinder would rise to the level of a constitutional

violation only if it results in prejudice so great as to deny a defendant his Fifth

Amendment right to a fair trial.” Lane, 474 U.S at 446 n. 8. Denial of a motion to

sever violates due process “only if there is a serious risk that a joint trial would

compromise a specific right of . . . the defendant[ ], or prevent a jury from making a

reliable judgement about guilt or innocence.” Zafiro, 506 U.S. at 539.

The potential for such a risk may arise when co-defendants assert “mutually

antagonistic” defenses. United States v. Voigt, 89 F.3d 1050, 1094 (3d Cir. 1996)

(citing Zafiro, 506 U.S. at 538). Significantly, mutually antagonistic defenses are not

prejudicial per se, so as to require severance. Zafiro, 506 U.S. at 538. Mutually

antagonistic or irreconcilable defenses may be so prejudicial in some circumstances

that severance is mandated. Zafiro, 506 U.S. at 538. The Supreme Court has

explicitly declined to adopt a bright line rule mandating severance whenever co-

defendants have conflicting defenses. Id. District courts should grant severance

“only if there is a serious risk that a joint trial would compromise a specific trial right

of one of the defendants, or prevent the jury from making a reliable judgment about

guilt or innocence.” Id. at 539.

Here, Petitioner appears to argue that codefendant Reeves’s defense was

antagonistic to Petitioner’s because Reeves admitted during trial that he was the

shooter. However, the Appellate Division reviewed that argument and found that

there were no antagonistic defenses raised. The state court explained that although

Reeves admitted being the shooter, he claimed that Powell gave him the order to

kill. Thus, Reeves’s testimony in some ways benefited Petitioner. Moreover, the

defenses were not mutually exclusive or irreconcilable. Petitioner has failed to show

that codefendant Reeves admission was antagonistic or that it prevented the jury

from making a reliable judgment as to Petitioner’s guilt. Petitioner cannot

demonstrate the state court’s adjudication was an unreasonable application of

clearly established federal law. Thus, Petitioner’s claim is denied.

C. Ground Three

Petitioner’s third ground for habeas relief alleges that the prosecutor

committed a Batson/Gilmore3 violation by excusing the only black juror left on the

panel at that time. (ECF No. 8 at 11-12.)

Batson set forth a three-step inquiry to determine the constitutionality of a

peremptory strike. First, “the trial court must determine whether the defendant has

made a prima facie showing that the prosecutor exercised a peremptory challenge

on the basis of race.” Rice v. Collins, 546 U.S. 333, 338 (2006). If this showing is

made, then “the burden shifts to the prosecutor to present a race-neutral explanation

for striking the juror in question.” Id. “Third, the court must then determine whether

the defendant has carried his burden of proving purposeful discrimination.” Id. The

court must evaluate “the persuasiveness of the justification” offered by the

prosecutor, but “the ultimate burden of persuasiveness regarding racial motivation

rests with, and never shifts from, the opponent of the strike.” Id. The Supreme Court

explained the trial court’s role at step three of the Batson inquiry:

3 Batson v. Kentucky, 476 U.S. 79 (1986); State v. Gilmore, 103 N.J. 508 (1986).

The trial court has a pivotal role in evaluating Batson

claims. Step three of the Batson inquiry involves an

evaluation of the prosecutor’s credibility, see 476 U.S., at

98, n. 21, 106 S. Ct. 1712, and “the best evidence [of

discriminatory intent] often will be the demeanor of the

attorney who exercises the challenge,” Hernandez, 500

U.S., at 365, 111 S. Ct. 1859 (plurality opinion). In

addition, race-neutral reasons for peremptory challenges

often involve a juror’s demeanor (e.g., nervousness,

inattention), making the trial court’s firsthand

observations of even greater importance. In this situation,

the trial court must evaluate not only whether the

prosecutor’s demeanor belies a discriminatory intent, but

also whether the juror’s demeanor can credibly be said to

have exhibited the basis for the strike attributed to the juror

by the prosecutor. We have recognized that these

determinations of credibility and demeanor lie

“‘peculiarly within a trial judge’s province,’” ibid.

(quoting Wainwright v. Witt, 469 U.S. 412, 428, 105 S. Ct.

844, 83 L. Ed. 2d 841 (1985)), and we have stated that “in

the absence of exceptional circumstances, we would defer

to [the trial court],” 500 U.S. at 366, 111 S. Ct. 1859

(plurality opinion).

Snyder v. Louisiana, 552 U.S. 472, 477 (2008).

On direct appeal, the Appellate Division explained that the juror in question

was the only African-American juror on the panel at the time in question. Russell,

No. A-4101-09T1, slip op., at 41. The Appellate Division explained the following:

The juror told the court that she could consider the

evidence and the law with an open mind. She added:

[F]irst of all, you have to understand what the

evidence is presented and if the evidence is

not, you know, strong enough to prove the

case, then how could you say the person is

guilty or not guilty. First you have to

understand both sides because there are three

sides to every story. There is the truth of their

story and then there is the truth of someone

else’s story and the truth lies in the middle.

The juror believed that she could serve well, explaining:

This is my first time I’ve ever been called as

a juror, but I understand that you are

supposed to be tried by your peers and your

peers are supposed to look like you so just

looking at the jurors, I am the only one that

looks like the people who are being tried so I

feel that there needs to be a balance.

When asked what she considered the most important

constitutional protection, she replied that “speaking as a

black woman, everyone is entitled to their rights and that

means a fair trial.” She continued:

That means to be treated as human beings

regardless of your color and I feel that this is

the most important here in America because

black people have struggled for so many

years without having their rights and I feel

that it’s most important we should keep that

right.

The juror, who was a teacher in the Newark school system,

did not believe that every individual in a street gang was

involved in criminal activity, explaining that she had

students in her class who were involved with street gangs

and nonetheless went on to graduate. When asked if she

would have any difficulty returning a guilty verdict, she

answered with a question, “[b]eyond a reasonable doubt,

and the State proved it”? She then responded, “I wouldn’t

have a problem convicting as long as I heard both sides.”

Id. at 41-42. The following day, before continuing voir dire, the state informed the

court that it would seek to exercise a peremptory challenge to excuse the juror. Id.

Defense counsel moved to preclude the juror’s removal. Defense counsel noted that

only two African American jurors had been called to the jury box and the court

dismissed the other for cause. Id. at 43. The Appellate Division summarized the

prosecutor’s response as follows:

The prosecutor argued that he did not use a peremptory

challenge to remove the other prospective African

American juror, and that he wanted to excuse the second

such juror because of her views and opinions, not her race.

Specifically, he objected to her comment that there were

“three sides to every story,” which he thought suggested

an unwillingness “to accept the evidence of one side or

another.” When asked, “if the State were to prove the

charges beyond a reasonable doubt, would [she] have any

difficulty returning a guilty verdict,” the prosecutor noted,

“she hesitated, perceptibly for three, four or five seconds,”

and then answered with a question. Based on his

experience, the prosecutor believed that if she had to think

about the question, she should not be on the jury.

He then added:

And then she says, after I asked her if she

heard your Honor explain what [was] the

definition of reasonable doubt, she says, I

wouldn’t have a problem convicting as long

as I heard both sides. Well, Judge, there may

very well be only one side in this case, which

again that leads me to believe that possibly

she’s going [to] think these defendants are

not getting a fair trial, that they were

prevented from telling their side if they

exercise their right not to testify which is

perfectly their right. But I have some serious

reservations about whether this lady would

be willing to evaluate evidence, take it really

for what it’s worth, talk to the other jurors,

and come to a verdict based on what she hears

in the courtroom.

I only need a slight bias to exercise a

peremptory challenge, Judge, and I have a

feeling that that’s here in this case. The only

answer she should have given to that question

about [whether she would have] any

difficulty on a verdict is no and that’s not the

answer we got and that’s not acceptable to the

State.

Id. at 43-45. The trial court found no Batson violation. Id. at 45. It found that the

defendants failed to make a prima facia showing that the state’s challenge was

exercised on the basis of race. Id. The court considered the state’s practice of

exercising its peremptory challenges and did not find defendants had established a

pattern of group bias. Id. The Appellate Division explained that the four other

potential jurors of African-American descent had been dismissed for good causes,

including: “one male and one female, who had financial hardships; another male,

who had a family member with a pending criminal matter in Ocean County; and

another female, who had requested to be excused from the case because she lived

near one of the defendants and felt uncomfortable.” Id.

The Appellate Division affirmed the trial court’s finding that defendants failed

to make a prima facia showing that the state’s challenge was exercised on the basis

of race. Id. at 47-48. The Appellate Division found:

The court had previously excused, without objections, four

prospective persons of color for cause. The State provided

a non-pretextual and reasoned basis for the challenge. The

record is bereft of evidence that the State was in engaged

in a clear pattern of group bias by the prosecutor.

Although the challenge removed the only African-

American juror as of that point, this fact alone was

insufficient to demonstrate the existence of an inference of

discrimination. See State v. Bey, 129 N.J. 557, 584-85, 610

A.2d 814 (1992) (no prima facie showing where

prosecutor exercised one peremptory challenge against the

only remaining African-American juror and four against

non- African-American jurors, and where six African-

American jurors had been excused for cause, including

one on the motion of defense counsel), supplemented by

137 N.J. 334, 645 A.2d 685 (1994), cert. denied, 513 U.S.

1164, 115 S. Ct. 1131, 130 L. Ed. 2d 1093 (1995); State v.

Lewis, 389 N.J. Super. 409, 420-22, 913 A.2d 157 (App.

Div.) (no prima facie showing where prosecutor used

peremptory challenges to exclude three African-American

jurors, and two African-American jurors remained), certif.

denied, 190 N.J. 393, 921 A.2d 447 (2007).

Id. at 47-48.

The prosecutor offered a race-neutral explanation for striking the juror in

question. Rice, 546 U.S. at 338. The record regarding the juror’s answers during voir

dire supports the prosecutor’s nonracial reasons. Petitioner has failed to prove the

state court’s decision to deny Petitioner’s Batson claim was contrary to, or an

unreasonable application of Batson or that it based its decision on an unreasonable

determination of the facts. Petitioner is not entitled to habeas relief on Ground Three.

D. Ground Four

In Ground Four, Petitioner argues that the trial court improperly allowed

Lieutenant Bevacqui to testify as a gang expert when he was not qualified. (ECF No.

8 at 13.) Petitioner claims that Lieutenant Bevacqui’s testimony was a net opinion,

inflammatory, and unduly prejudicial. (Id.)

As an initial matter, Petitioner’s arguments are again ground in state

evidentiary rules. “Petitions alleging specific errors in state law do not present

federally cognizable issues unless the violation is demonstrated to be of

constitutional magnitude.” Quintana v. Adm’r, No. CV 13-7135, 2017 WL 4329736,

at *18 (D.N.J. Sept. 29, 2017) (citing Pulley v. Harris, 465 U.S. 37, 41 (1984) (“A

federal court may not issue the writ on the basis of a perceived error of state law”)).

A federal court must defer to a state court’s interpretation of its own rules of evidence

and procedure. Bisaccia v. Attorney General of New Jersey, 623 F.2d. 307, 312 (3rd

Cir.1980).

Federal standards enter into the analysis, however, when an alleged

evidentiary error rises to the constitutional level. “Only when an evidentiary error

deprives a [Petitioner] of ‘fundamental fairness’ in his criminal trial is the error

considered to be of constitutional proportion and cognizable in federal habeas corpus

proceedings.” Bartholomay v. Beyer, No. 91-5176, 1992 WL 184360, at *3 (D.N.J.

July 13, 1992) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 642–43 (1974) (In

Donnelly, the Court distinguished evidentiary issues from constitutional protections.

“This is not a case in which the State has denied a [Petitioner] the benefit of a specific

provision of the Bill of Rights, such as the right to counsel, or in which the

prosecutor’s remarks so prejudiced a specific right, such as the privilege against

compulsory self-incrimination, as to amount to a denial of that right.” Id at 642-43.

(internal citations omitted)). To permit habeas relief, a state court’s evidentiary

decision must have been so arbitrary or prejudicial that it rendered the trial

fundamentally unfair. See Romano v. Oklahoma, 512 U.S. 1, 12–13 (1994); see also

Keller v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001) (evidentiary error rises to the

level of a Due Process violation only when “it was of such magnitude as to

undermine the fundamental fairness of the entire trial”).

There is no indication that the trial court’s decision to permit the testimony of

Lieutenant Bevacqui as an expert on gangs rendered Petitioner’s trial fundamentally

unfair.

The Appellate Division on direct appeal, summarized Lieutenant Bevacqui’s

testimony as follows:

At trial, Bevacqui testified about the history, symbols,

language, and street names associated with the Bloods

street gang. He also testified about the street gang’s

organization, hierarchy, and rules, and explained certain

terms and expressions used by its members such as

barbecue and Big Homey.

Bevacqui opined that all street gangs were criminal

enterprises, and that most, but not all, of their members

were criminals. To determine whether someone was

associated with a criminal street gang, he explained that

two of seven criteria listed in N.J.S.A. 2C:33-29 must be

present, including: self-admission; official statements by

law enforcement; electronic communication; photographs

with other gang members; gang colors; tattoos; and other

indicia of gang activity such as hand signs. In his opinion,

defendants were members of the Bloods street gang

because their tattoos, clothing, electronic

communications, and hand signs met the statutory criteria.

Relying on his review of discovery documents, Bevacqui

offered the opinion that Reeves had received a direct order

to shoot Granados. He further believed that if Reeves

failed or refused to follow that order he could have been

disciplined - including being murdered - by the Bloods.

Russell, No. A-4101-09T1, slip op., at 50-51.

First, Petitioner argues that Lieutenant Bevacqui was not qualified to testify

as an expert on gangs. Petitioner raised this issue on direct appeal and the Appellate

Division affirmed the trial court’s decision to admit Bevacqui’s testimony. The

Appellate Division explained:

If properly qualified, an expert may give street gang

related testimony. State v. Torres, 183 N.J. 554, 559, 874

A.2d 1084 (2005). The Court has found that the structure,

organization, and procedures of street gangs are beyond

the ken of the average juror, and that such testimony may

be helpful to a jury’s understanding of the relevant issues

at trial. Id. at 573. Thus, the State may offer properly

qualified expert testimony to explain a defendant’s role as

the leader of a street gang, provided it is limited to areas

that fall outside the jurors’ common knowledge. Ibid.

Russell, No. A-4101-09T1, slip op., at 52. The Appellate Division then considered

whether Bevacqui qualified as an expert and found:

At the N.J.R.E. 104 hearing, Bevacqui testified that he had

been employed by the New Jersey State Police for over

twenty-four years. Beginning in 1988, his duties included

investigating and gathering intelligence on criminal street

gangs. In April 1997, he was assigned to the Street Gang

Unit, where he remained until January 2005, when he

became the Assistant Bureau Chief of the Intelligence

Management Unit.

Throughout his career, Bevacqui worked with over a

hundred confidential informants to gather information

about street gangs, and also debriefed gang members and

associates. He attended approximately twenty-five

seminars or courses on street gangs, including a 1989

conference in Atlantic City. Additionally, he participated

as an instructor or speaker at seventy-five to one hundred

seminars of this kind. From 1997 to 2007 or 2008, he

reviewed street gang materials on a daily basis, and

participated in surveillances and gang investigations.

During that time, he became familiar with the Bloods

street gang and its structure, organization, and methods of

operation. Bevacqui authored articles on street gangs, was

a member of the East Coast Gang Investigators

Association and California Gang Investigators

Association, and was twice previously qualified as an

expert witness in criminal street gangs.

The trial court did not abuse its discretion by finding that

Bevacqui was qualified to testify as an expert on street

gangs, including the Bloods. Like the investigator in

Torres, Bevacqui had experience, training, and knowledge

acquired over many years. His expertise came from

various sources and was sufficiently reliable to assist the

jury in understanding the evidence. Torres, supra, 183 N.J.

at 579; see State v. Frost, 242 N.J. Super. 601, 615, 577

A.2d 1282 (App. Div.) (holding that a witness could

acquire expertise by occupational experience), certif.

denied, 127 N.J. 321, 604 A.2d 596 (1990).

Russell, No. A-4101-09T1, slip op., at 53-54.

Next, Petitioner argues that Lieutenant Bevacqui’s testimony was unduly

prejudicial. On direct appeal, the Appellate Division found the evidence relevant to

Petitioner’s trial and that it was not unduly prejudicial, stating the following:

All relevant evidence is admissible, unless otherwise

excluded. N.J.R.E. 402; State v. Burr, 195 N.J. 119, 126,

948 A.2d 627 (2008). Relevant evidence has “a tendency

in reason to prove or disprove any fact of consequence to

the determination of the action.” N.J.R.E. 401. To

determine relevancy, a trial judge must “focus on the ‘the

logical connection between the proffered evidence and a

fact in issue.’” State v. Covell, 157 N.J. 554, 565, 725 A.2d

675 (1999) (quoting State v. Hutchins, 241 N.J. Super.

353, 358, 575 A.2d 35 (App. Div. 1990)). “Once a logical

relevancy can be found to bridge the evidence offered and

a consequential issue in the case, the evidence is

admissible, unless exclusion is warranted under a specific

evidence rule.” Burr, supra, 195 N.J. at 127.

A court may exclude relevant evidence if “its probative

value is substantially outweighed by the risk of (a) undue

prejudice confusion of issues, or misleading the jury or (b)

undue delay, waste of time, or needless presentation of

cumulative evidence.” N.J.R.E. 403. During the weighing

process, however, a court may admit evidence with

overwhelming probative value even if highly prejudicial

provided the evidence is central to the case. Green v. N.J.

Mfrs. Ins. Co., 160 N.J. 480, 496, 734 A.2d 1147 (1999).

Here, the State offered Bevacqui’s opinion on street gang

hierarchy, customs, and language to show that defendants

were all members of the Bloods, that Scott and [Petitioner]

had the authority to order a murder, and that they had

ordered the murder during phone conversations from the

jail. This evidence was relevant to explain why Reeves

would shoot a complete stranger. See Torres, supra, 183

N.J. at 573 (holding evidence about a defendant’s gang

involvement was admissible because it was relevant to

show the connection between his actions as leader of the

gang and the actions of other gang members who actually

committed the murder) . . .

Notwithstanding the relevance of the evidence, a trial

court must carefully weigh the expert testimony to

determine whether it may be unduly prejudicial. Torres,

supra, 183 N.J. at 580. . . .

The balancing test of N.J.R.E. 403 requires the State to

establish that the probative value of the evidence is not

outweighed by its apparent prejudice. State v. Long, 173

N.J. 138, 161, 801 A.2d 221 (2002). “The mere possibility

that evidence could be prejudicial does not justify its

exclusion.” Id. at 164 (internal quotations marks omitted).

Instead, evidence that is unduly prejudicial is excluded

“only when its “probative value is so significantly

outweighed by [its] inherently inflammatory potential as

to have a probable capacity to divert the minds of the

jurors from a reasonable and fair evaluation’ of the issues

in the case.” State v. Koskovich, 168 N.J. 448, 486, 776

A.2d 144 (2001) (alteration in original) (quoting State v.

Thompson, 59mN.J. 396, 421, 283 A.2d 513 (1971)).

Here, evidence of defendants’ gang membership was

relevant to show motive, intent, and knowledge. However,

because evidence of membership in a street gang is

strongly suggestive of actual criminal activity, Bevacqui’s

testimony must also be analyzed as evidence of other

crimes under N.J.R.E. 404(b). State v. Goodman, 415 N.J.

Super. 210, 226-28, 1 A.3d 767 (App. Div. 2010) (holding

evidence of gang membership was admissible under

N.J.R.E. 404(b) and [State v.] Cofield [,127 N.J. 328, 338,

605 A.2d 230 (1992) ]to prove motive). A trial court has

discretion to determine the admissibility of other-crime

evidence. State v. Marrero, 148 N.J. 469, 483, 691 A.2d

293 (1997). Because the trial court properly applied the

Cofield analysis, we owe deference to its determination.

See Goodman, supra, 415 N.J.Super. at 228.

N.J.R.E. 404(b) generally precludes the admission of

evidence relating to other crimes or wrongs, except to

show “proof of motive, opportunity, intent, preparation,

plan, knowledge, identity of absence of mistake or

accident when such matters are relevant to a material issue

of dispute.” In Cofield, the Court articulated a four- prong

test:

1. The evidence of the other crime must be

admissible as relevant to a material issue;

2. It must be similar in kind and reasonably

close in time to the offense charged;

3. The evidence of the other crime must be

clear and convincing; and

4. The probative value of the evidence must

not be outweighed by its apparent prejudice.

[Cofield, supra, 127 N.J. at 338.]

Bevacqui’s testimony was relevant to the issue of motive,

which satisfies the first prong. Defendants were gang

members at the time of Vazquez’s murder and, therefore,

the second factor is satisfied. Moreover, the evidence of

street gang affiliation was clear and convincing thereby

satisfying the third factor. Goodman, supra, 415 N.J.

Super. at 230. Finally, the evidence of Defendants’ gang

affiliation was necessary to explain why Reeves shot and

killed a stranger. Thus, any prejudice inherent in the

testimony about defendants’ gang membership was

outweighed by its probative value. Although Reeves

admitted at trial that he shot the victim, Bevacqui’s

testimony was needed to explain why the events unfolded

the way they did. State v. Jenkins, 178 N.J. 347, 365, 840

A.2d 242 (2004) (“in deciding whether prejudice

outweighs probative value, ‘a court must consider the

availability of other evidence that can be used to prove the

same point’”) (quoting Long, supra, 173 N.J. at 164).

Russell, No. A-4101-09T1, slip op., at 56-60.

While the issue of a fact-finder hearing evidence of gang affiliation to

establish motive has not been addressed by the United States Supreme Court, other

courts in this circuit have considered the matter and found the evidence to be very

probative of motive. See, e.g., Munoz v. Grace, 2007 WL 2323134 at *13 (E.D. Pa.

Aug. 10, 2007) (“[E]vidence of Petitioner’s gang membership was highly probative

on the issue of motive to commit [gang retaliation] murder.”); see United States v.

Carter, 410 F. App’x 549, 552–53 (3d Cir. 2011) (“gang-affiliation evidence should

be admitted only when it is solidly tied to some legitimate purpose other than a

showing of a propensity to criminal conduct such as . . . motive”); Goodman v.

Nogan, No. 16-4591, 2019 WL 6271815, at *12 (D.N.J. Nov. 25, 2019) (“While the

issue of a fact-finder hearing evidence of gang affiliation to establish motive has not

been addressed by the United States Supreme Court, other courts in this circuit have

considered the matter and found the evidence to be very probative of motive.” )

Finally, the Appellate Court denied Petitioner’s argument that Lieutenant

Bevacqui’s testimony was a net opinion as follows:

N.J.R.E. 703 requires an expert opinion to be supported by

facts or data in the record or of a type usually relied on by

experts in the particular field. Pomerantz Paper Corp. v.

New Community Corp., 207 N.J. 344, 372, 25 A.3d 221

(2011). The corollary of N.J.R.E. 703 is the net opinion

rule, which forbids the admission into evidence of an

expert’s conclusions that are unsupported by factual

evidence or other data. State v. Townsend, 186 N.J. 473,

494, 897 A.2d 316 (2006). The net opinion rule requires

an expert to give the “why and wherefore” of his or her

opinion, not a mere conclusion. Ibid.

Here, Bevacqui gave reasons for all of his opinions. His

conclusions were supported by factual evidence, years of

experience, and logical connections to the present case.

They were not net opinions. See id. at 495 (holding that

expert’s education, training and experience provided a

sound foundation for her opinion about domestic violence,

and that her conclusion was not a net opinion).

Russell, No. A-4101-09T1, slip op., at 63-64.

The state court’s decision was not an unreasonable application of clearly

established federal law. Here, Petitioner has not raised a valid constitutional

violation, and the to the extent that he challenges the state court’s application of state

law, his claim fails. As explained above, state-court evidentiary rulings are not a

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

constitutional violation. See Estelle, 502 U.S. 67–68; see also Lewis v. Jeffers, 497

U.S. 764, 780 (1990) (“federal habeas corpus relief does not lie for errors of state

law”). He has not established how the evidence of his gang membership, within the

context of the case, violated his right to a fair trial. Here, the record reflects that

Lieutenant Bevacqui had significant experience and training in the matter of gangs,

including on the job experience, seminars, and authoring articles. The Appellate

Division explained that Bevacqui’s testimony showed that Petitioner was a gang

member with the authority to order a murder, and he had done just that during phone

conversations from jail. The state court found this evidence was relevant to why

Reeves would have shot a stranger. The link between Petitioner’s gang affiliation

and the victim’s death was strong, thereby supporting that its probative value

outweighed its prejudicial value. Petitioner has failed to show any error or

unfairness, let alone a due process violation. Riggins v. Nevada, 504 U.S. 127, 149

(1992) (“[T]he Due Process Clause guarantees the fundamental elements of fairness

in a criminal trial.”) Therefore, Petitioner’s fourth ground for relief is denied.

E. Ground Five

Petitioner’s fifth ground for habeas relief alleges that the trial court erred by

permitting the prosecutor to use Petitioner’s statement from his plea-cutoff hearing

in the Olivares murder proceeding as substantive evidence against Petitioner in the

instant case. (ECF No. 8 at 14-15.)

Petitioner raised this claim on direct appeal, and the Appellate Division denied

it for the following reasons:

At trial, the prosecutor sought to read a portion of a

transcript from [Petitioner’s] plea cut-off proceeding in the

Olivares case. [Petitioner’s] defense counsel objected,

arguing that the prior statements were made in response to

questioning by the court, and were not admissions or

declarations against interest. The prosecutor responded

that the statements made at the plea cut-off hearing

showed [Petitioner] had knowledge of discovery

documents containing Granados’s name and address. The

court overruled the objection, and the information was

provided to the jury.

N.J.R.E. 410 provides for the inadmissibility in any civil

or criminal proceeding of “a plea of guilty which was later

withdrawn, of any statement made in the course of that

plea proceeding, and of any statement made during plea

negotiations when either no guilty plea resulted or a guilty

plea was later withdrawn.” The purpose of this rule is to

promote effective and fair plea bargaining by allowing the

defendants to negotiate without fear that their statements

will later be used against them. State v. Brabham, 413 N.J.

Super. 196, 208, 994 A.2d 526 (App. Div.), certif. denied,

203 N.J. 440, 3 A.3d 1228 (2010).

The court did not err by allowing the State to introduce a

portion of the transcript from [Petitioner’s] plea cut-off

hearing. The only statement attributed to [Petitioner]

during the exchange was his acknowledgment that he had

reviewed the discovery in the Olivares case with his

attorney. This statement was not made as part of any plea

negotiations. Because this statement was not made in

connection with any plea bargaining process,

considerations of fairness are not implicated by its use in

a subsequent trial.

Russell, No. A-4101-09T1, slip op., at 87-88.

Petitioner again raises a state law evidentiary claim, which is not a cognizable

claim for habeas relief. See, Estelle, 502 U.S. at 67-68. Petitioner fails to argue that

the trial court admission of the portion of the transcript from Petitioner’s plea cut-

off proceeding violated any particular federal constitutional right. In order to state a

cognizable claim for habeas review that the trial court erred through the admission

of Petitioner’s statement, he must prove that the admission “undermined the

fundamental fairness of the entire trial,” because the “probative value of [the]

evidence, though relevant, is greatly outweighed by the prejudice to the accused

from its admission.” Han Tak Lee v. Glunt, 667 F.3d 397, 403 (3d Cir. 2012)

(citations omitted). The Appellate Division found that the trial court did not err in

admitting the transcript, explaining that the statements were not made during any

plea-bargaining discussions and the only part attributable to Petitioner was that he

had reviewed discovery materials with his attorney. Petitioner fails to show how the

prejudicial nature of his statement outweighed its probative value, and he, therefore

fails to meet that standard. The record does not indicate that the admission of a

statement that Petitioner had reviewed discovery materials caused such fundamental

unfairness as to rise to the level of a due process violation. As such, Petitioner’s fifth

ground for habeas relief is denied.

F. Ground Six

In Ground Six, Petitioner argues that there was “too much hearsay” from

Petitioner’s co-conspirators admitted against Petitioner. (ECF No. 8 at 16.)

Petitioner alleges that the trial court admitted “too much evidence” of statements

made by co-conspirator Reeves. (Id.) Petitioner claims state witnesses Wends

Guzman, Nina Clark, James Wallace, Stephanie Tansley, Shuanita Fosky, and

Reinaldo Felicaiano were all permitted to testify as to statements made by co-

conspirator Reeves regarding the murder of Christian Vivar Granados. (Id.)

Petitioner alleges that the statements did not fall within the co-conspirator exception

to the hearsay rules because they were made after the conspiracy was over and the

admission of the statements violated his “constitutional confrontation rights.” (Id.)

On direct appeal, the Appellate Division found this claim meritless. As

discussed above, under New Jersey state law hearsay statements made by a co-

conspirator are admissible against co-conspirator when “made at the time the party

and the declarant were participating in a plan to commit a crime . . . and . . . made in

furtherance of that plan.” N.J.R.E. 803(b)(5). The state court explained:

A statement made after the conspiratorial objective is

completed is generally not admissible under the

coconspirator exception. Savage, supra, 172 N.J. at 403.

A conspiracy, however, may continue “if it is shown that

a conspirator enlisted false alibi witnesses, concealed

weapons, or fled in order to avoid apprehension.” Ibid.

Further, “statements relating to past events may be

admissible if they are ‘in furtherance’ of the conspiracy

and ‘serve some current purpose, such as to provide

cohesiveness, provide reassurances to a coconspirator, or

prompt one not a member of the conspiracy to respond in

a way that furthers the goals of the conspiracy.’” Ibid.

(quoting State v. Taccetta, 301 N.J. Super. 227, 253, 693

A.2d 1229 (App. Div.), certif. denied, 152 N.J. 188

(1997)).

Russell, No. A-4101-09T1, slip op., at 65-66. The Appellate Division denied

Petitioner’s claim, finding that the admission of co-conspirator Reeve’s statements

“did not unduly prejudice [Petitioner’s] right to a fair trial” because none of Reeve’s

statement implicated Petitioner directly “in any conspiracy or substantive crime.” Id.

at 66. In fact, Reeves testified “at trial that he never met [Petitioner] and that

[Petitioner] never gave him any kind of order or directive.” Id.

The Sixth Amendment to the United States Constitution, and specifically its

Confrontation Clause, guarantees criminal defendants the right to confront the

witnesses against them. In Bruton, the Supreme Court explained that a defendant is

denied his right to confront witnesses against him when a prosecutor presents a co-

defendant’s confession implicating the defendant at a joint trial, and the co-

defendant does not testify. 391 U.S. at 126. The Court has reviewed the testimony

of Wends Guzman, Nina Clark, James Wallace, Stephanie Tansley, Shuanita Fosky,

and Reinaldo Felicaiano and while each witness discussed statements made to them

by co-conspirator Reeves, none of the witnesses mention Petitioner or that Reeves

said anything about Petitioner. (See ECF No. 30-15, at 172:1 to 184:15; ECF No.

30-16, at 7:23 to 29:13, 42:19 to 61:6, 123:18 to 133:14, and 150:1 to 161:4; ECF

No. 30-17, at 22:1 to 66:12.) As such, co-conspirator Reeve’s statements did not

implicate Petitioner and did not violate his right to confront witnesses against him.

The Appellate Division found the admission of Reeves’s statements did not unduly

prejudice Petitioner’s right to a fair trial. The Court agrees that the admission of

statements that do not implicate Petitioner did not render Petitioner’s trial unfair.

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

resolving Petitioner’s Confrontation Clause claim, the Court denies relief on ground

six.

G. Ground Seven

In Petitioner’s seventh ground for relief, he alleges that statements made by

the prosecutor during summation rendered his trial unfair. (ECF No. 8 at 17-18.)

Petitioner first argues that the prosecutor “diluted the requirements of

accomplice liability,” “which requires that prosecution to prove that the accomplice

shared the same mental intent as the principal” through the comment “‘the State is

not saying [Petitioner] had the authority to order’ the killing of the witness but that

‘[Petitioner] had the motive to engage in this conspiracy to commit the crime and to

aid and assist by mak[ing] phone calls to Joe Powell and to get information to Trish

Cochran . . . .’” (ECF No. 8 at 17-18.) Petitioner next argues the prosecutor

improperly noted that when Powell testified for the state, “not one defense counsel

challenged Powell’s statement that he was not Reeves’ Big Homey.” (Id. at 18.)

Finally, Petitioner submits the prosecutor improperly “invited the jury to think about

the ‘hopes and aspirations’ of the victim’s daughter, trying to invoke sympathy for

the victims from the jury.” (Id.)

The Appellate Division denied this portion of Petitioner’s claim as follows:

An accomplice is a person “who acts with the purpose of

promoting or facilitating the commission of the

substantive offense for which he is charged as an

accomplice.” State v. Bielkiewicz, 267 N.J. Super. 520,

527-28, 632 A.2d 277 (App. Div. 1993). “[T]o find a

defendant guilty of a crime under a theory of accomplice

liability, it must find that he ‘shared in the intent which is

the crime’s basic element, and at least indirectly

participated in the commission of the criminal act.’” Id. at

528 (quoting State v. Fair, 45 N.J. 77, 95, 211 A.2d 359

(1965)).

Among the many things the prosecutor told the jury, he

said the following:

[Reeves] committed the murder, Jamell

Scott, [Petitioner], and Trishawn Cochran all

had the same purpose and intent that Lee

Reeves did when he stood there and pulled

that trigger and killed Athelma Vazquez and

that purpose was to intimidate and stop

Christian Vivar Granados from testifying in

the trial of [Petitioner] and Jamell Scott[.]

Contrary to [Petitioner’s] assertions, and after review of

the entire summation, we fail to see how and where the

prosecutor misspoke to the extent of diluting the elements

of accomplice liability. In fact, he argued to the jury that

[Petitioner], Scott, and Cochran shared the same mental

intent as Reeves. He also told the jurors that the court

would instruct them on accomplice liability, and the court

later did so.

[Petitioner] further argues that vicarious liability is limited

to those acts that are reasonably foreseeable consequences

of the original conspiracy, and implies that the prosecutor

improperly suggested to the jury that it could impose co-

conspirator liability on him for the commission of

substantive crimes that were not reasonably foreseeable.

Here, the evidence pointed in the direction of defendants’

efforts — in a conspiracy — to kill Granados to prevent

him from testifying at a trial involving Scott and

[Petitioner]. Not only did the jury listen to Reeves’s

explanation for his conduct, it heard telephone calls tape-

recorded before the murder in which [Petitioner] (1)

instructed Powell “that shit gotta be done by Sunday,

Monday the latest cause niggers go to Court Tuesday,” (2)

told Powell to “[h]andle that CVS thing” and (3) urged

Powell to “throw a barbecue and speak about that shit.”

Powell and Bevacqui testified that the term barbecue in

this context meant to have someone killed. Because the

evidence showed that defendants contemplated murder,

[Petitioner’s] argument about the lack of evidence of

reasonable foreseeability is unpersuasive. There was no

error with respect to the prosecutor’s comments during

summation about accomplice and co-conspirator liability.

[Petitioner] and Scott contend the prosecutor improperly

commented on the failure of defense counsel to cross

examine Reeves about his Big Homey. [Petitioner] and

Scott argue that this comment referred indirectly to their

decisions not to testify, and impermissibly shifted the

burden of proof to them.

The trial court found that defendants had no responsibility

to cross-examine Powell, but concluded that any error did

not “rise to the level” requiring a mistrial. The court

instructed the jurors to disregard this statement and not to

consider it whatsoever.

The Fifth Amendment forbids a prosecutor from

commenting on a defendant’s failure to testify because

such comment would penalize a defendant’s constitutional

right against self-incrimination. State v. Scherzer, 301 N.J.

Super. 363, 439, 694 A.2d 196 (App. Div.), certif. denied,

151 N.J. 466, 700 A.2d 878 (1997). A prosecutor may not

comment on a defendant’s testimonial shortcomings or

refer indirectly to the failure of a defendant to present

evidence, if such comment could only be referring to the

absence of testimony by the defendant. Id. at 439-40; State

v. Irizarry, 270 N.J. Super. 669, 675, 637 A.2d 965 (App.

Div. 1994). Thus, “[r]eversal is mandatory if the

prosecuting attorney has unambiguously called attention

to defendant’s failure to testify in exercise of his [or her]

fifth-amendment constitutional right.” State v. Williams,

113 N.J. 393, 454, 550 A.2d 1172 (1988).

Notwithstanding the foregoing, a prosecutor’s reference to

silence may also be cured by a trial court’s timely and

effective action. Scherzer, supra, 301 N.J. Super. at 441.

A curative instruction is deemed adequate if there is no

real possibility that the error led the jury to a verdict that

could not otherwise be justly reached. Ibid.

In the present matter, the prosecutor made a single

comment about defense counsel’s failure to cross examine

Powell on his statement that he was not Reeves’s Big

Homey. The prosecutor, however, did not discuss the

significance of such a failure. A review of the record

suggests that this comment was made in response to

conflicting testimony between Powell and Reeves as to the

identity of Reeves’s Big Homey. Given the context of the

prosecutor’s comment, it is unlikely that it could have

altered the outcome of the trial. Even if the prosecutor’s

remark could be interpreted to implicate [Petitioner’s]

right to remain silent, the court’s curative instruction

rendered the comment harmless.

[Petitioner] also argues for the first time on appeal that the

prosecutor improperly invited the jury to think about the

“hopes and aspirations” of the victim’s daughter. This

comment, however, was made in response to defense

counsel’s opening and closing arguments, and testimony

in the record. We conclude that in the totality of the

summation, and in light of the evidence, the comment had

no capacity to unduly prejudice the jury.

Russell, No. A-4101-09T1, slip op., at 71-73.

Here, the Appellate Division did not unreasonably apply clearly established

federal law or unreasonably determine the facts in light of the evidence. A habeas

claim based on prosecutorial misconduct should be granted only when the

misconduct “so infected the trial with unfairness as to make the resulting conviction

a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (internal

quotation marks and citation omitted); see also Donnelly v. DeChristoforo, 416 U.S.

637, 643 (1974). A prosecutorial misconduct claim is examined in “light of the

record as a whole” in order to determine whether the conduct “had a substantial and

injurious effect or influence” on the jury’s verdict. See Brecht v. Abrahamson, 507

U.S. 619, 637-38 (1993). Likewise, a “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).

Petitioner cannot meet the high standard for relief on his prosecutorial

misconduct claim. Viewed in context, the prosecutor did not dilute the accomplice

liability requirement that the accomplice share the same mental intent as the

principal. Rather, as explained by the Appellate Division, the prosecutor explicitly

noted that “Reeves committed the murder, Jamell Scott, [Petitioner] and Trishawn

Cochran all had the same purpose and intent that Lee Reeves did when he stood there

and pulled the trigger and killed Athelma Vazquez.” (ECF No. 30-22 at 100:19-23.)

In light of the record as a whole, the prosecutor did not imply to the jury that

Petitioner was not required to have the same mental intent as Reeves.

The prosecutor’s comment that “not one defense counsel challenged”

Powell’s statement that he was not Reeves’ “Big Homey” did not “so infected the

trial with unfairness as to make the resulting conviction a denial of due process.”

Darden, 477 U.S. at 181. Rather, the trial court noted that although Petitioner had

no responsibility to cross-examine Powell, that statement did not rise to the level of

requiring a mistrial. (ECF No. 30-23, at 104:21 to 105:1.) The trial court then gave

the following curative instruction: [The defendants] have no responsibility to cross-

examine Powell, so you should not consider that whatsoever.” (Id., at 106:6-9.)

Considering the overwhelming evidence presented against Petitioner, including the

tape-recorded calls that the Appellate Division summarized, in which Petitioner (1)

instructed Powell “that shit gotta be done by Sunday, Monday the latest cause

niggers go to Court Tuesday,” (2) told Powell to “[h]andle that CVS thing” and (3)

urged Powell to “throw a barbecue and speak about that shit,” and considering the

curative instruction given by the trial court, the Court does not find that the

prosecutor’s comment “had a substantial and injurious effect or influence” on the

jury’s verdict. See Rolan v. Coleman, 680 F.3d 311, 323-24 (3d Cir. 2012) (holding

that in light of other evidence and curative jury instructions, prosecutor’s potentially

prejudicial comment did not deprive the petitioner of due process).

Read in context, the prosecutors comment that the jurors should consider the

“hopes and aspirations” of the victim’s daughter was a response to defense counsel’s

opening statement. The prosecutor said:

Had to bite my lip in openings. Lee Reeves is asked to

stand and he’s introduced as a human being. From what

we know in this case, he just should have been introduced

as a cold blooded killer, because that is what he is.

Lee Reeves, I had to hear, had hopes and aspirations. I bit

my lip so hard I almost bled. Hopes and aspirations? What

about Thelma Vazquez, what about her hopes and

aspirations? What about her hopes and aspirations for her

daughter, who came in and told us how she had to watch

her mother di in front of her, what about those hopes and

aspirations?

(ECF No. 30-23 at 90:12-23.) Defense counsel asked the jury to consider Reeves’

hopes and aspirations and the prosecutor responded. The Appellate Divisions find

that “in the totality of the summation, and in light of the evidence, the comment had

no capacity to unduly prejudice the jury” did not involve an unreasonable application

of the due process standard governing prosecutorial misconduct. Therefore,

Petitioner is not entitled to habeas relief on Ground Seven.

H. Ground Eight

In Ground Eight, Petitioner argues that his right to a fair jury trial was

infringed based on two juror issues that arose during trial and deliberations. (ECF

No. 8 at 19-20.) First, while the jurors were being escorted to the courtroom during

trial, a man in the vicinity of the jurors said, “Guilty or not guilty, come on, let’s

talk.” (Id.) Second, during deliberations, Juror # 8 wrote to the trial judge informing

him that Juror # 12 had researched on the internet the meaning of “rock star Jim

Jones status” and had listened to the lyrics of rap artists “Jim Jones.” (Id.)

Petitioner raised this claim on direct appeal and the Appellate Division found

it meritless for the following reasons:

The court questioned the juror who had reported the

[“Guilty or not guilty, come on, let’s talk.”] comment. The

juror described the person, who was also seen inside the

courtroom. The juror discussed it with other jurors in the

jury room, but stated that he or she could remain fair and

impartial.

. . .

The trial court then questioned the remaining jurors to

determine whether they heard the comment and if they

could still be fair and impartial. Most of the jurors heard

the comment, but each said it would not prevent them from

being fair and impartial. Two jurors, who first heard about

the comment in the jury room, also told the court that they

could be fair and impartial. Some jurors, however, were

upset or concerned by the comment, with one juror

estimating the degree of concern at forty percent. Another

juror told the judge that “some people might feel

intimidated” but denied feeling that way himself, and said

he considered it as just a “stupid remark.” The court

instructed all jurors not to have any further discussions

regarding this incident.

. . .

The record does not support [Petitioner’s] contention

about jury intimidation. There is no evidence that any juror

actually felt intimidated by the guilty-or-not-guilty

comment. The one juror who speculated that others might

have been intimidated expressly denied feeling that way.

Although some jurors were upset by the comment,

everyone insisted that they could remain fair and impartial.

Moreover, defense counsel did not request anyone’s

excusal, and the court promptly informed the jurors that

the person who made the comment had nothing to do with

the trial. Because there was no discernable jury impact

from this mid-trial exposure to an extraneous comment,

the court did not abuse its discretion by denying

[Petitioner’s] motion for a mistrial.

. . .

The juror who conducted the research was Juror 12. She

freely admitted that she researched the phrases “Jim

Jones” and “capo status,” which had been uttered during

the trial,6 and looked at song lyrics, but denied listening to

any songs. She told the jurors that based on the lyrics, it

appeared that Jim Jones was “into drugs, looking good and

nice cars. In other words, having nice things.” She implied

that “Jim Jones rock star status” meant that you wanted to

look good. She said the information from the internet did

not add to or contradict the evidence at trial. Juror 12 stated

that she could disregard what she just learned, that she

could reach a decision based solely on the evidence, and

that she could be fair and impartial. She agreed to refrain

from conducting any more research during the trial.

[fn 6] During Powell’s testimony, he

explained a reference made by [Petitioner] in

one of the intercepted telephone calls from

Ocean County Jail. At one point in the

conversation, [Petitioner] said, “Niggers try

ya know what I mean Rock Star Jim Jones

status.” Powell explained that Jim Jones, a

Bloods member, was a rapper with “capo

status,” which was a high-ranking position in

the street gang.

The court then individually interviewed the remaining

jurors, excluding the four alternates. When asked if they

heard anyone mention internet research, six jurors

confirmed hearing something about music or a rap song

about “Jim Jones rock star status” or what it meant. One

juror also heard something about “Master Ru.” Four jurors

did not hear any discussions about internet research.

All of the jurors told the court that they could disregard the

information obtained from the internet, that they could

reach a decision based solely on the evidence, and that

nothing occurred that would prevent them from being fair

and impartial. The court instructed them not to discuss the

matter further.

. . .

Because defendants did not object at trial, we will not

reverse unless we find plain error, namely, error “clearly

capable of producing an unjust result.” R. 2:10-2. Not any

possibility of an unjust result will suffice; the possibility

must be “sufficient to raise a reasonable doubt as to

whether the error led the jury to a result it otherwise might

not have reached.” [State v. Macon, 57 N.J. 325, 336, 273

A.2d 1 (1971).] Applying this standard, we conclude that,

considering the swift and entirely appropriate involvement

by the trial court, any error was harmless and does not

warrant reversal. See, e.g., State v. Sowell, 213 N.J. 89, 97,

61 A.3d 882, 887 (2013).

The trial court implicitly found that the jurors exposed to

the outside information were credible, and its

determination is entitled to deference given the court’s

opportunity to observe their demeanor. [State v. R.D., 169

N.J. 551, 559, 781 A.2d 37 (2001).] The court also gave

defense counsel an opportunity to raise an objection after

questioning of the jurors, but no one did. The jury resumed

deliberations and reached a verdict without any further

incident.

Russell, No. A-4101-09T1, slip op., at 82-87.

Petitioner fails to demonstrate that the Appellate Division’s determination was

contrary to, or an unreasonable application of, clearly established federal law. See

28 U.S.C. § 2254(d)(1). The Appellate Division’s decision was consistent with

federal law. The Sixth Amendment of the United States Constitution and principles

of due process guarantee a criminal defendant in state court the right to a trial by an

impartial jury. Ristaino v. Ross, 424 U.S. 589, 595 n.6 (1976). Trial judges,

therefore, must be “ever watchful to prevent prejudicial occurrences and to

determine the effect of such occurrences when they happen.” Smith v. Phillips, 455

U.S. 209, 217 (1982). Nevertheless, “it is virtually impossible to shield jurors from

every contact or influence that might theoretically affect their vote,” and the Sixth

Amendment and due process “do[ ] not require a new trial every time a juror has

been placed in a potentially compromising situation.” See id. To that end, district

courts have “wide discretion . . . [in] areas of inquiry that might tend to show juror

bias.” Mu’Min v. Virginia, 500 U.S. 415, 427 (1991). Here, the Appellate Division’s

determination that the trial court’s actions fell within the wide discretion afforded to

it in assessing the juror’s possible impartiality was consistent with, and a reasonable

application of, the aforementioned law. See Mu’Min, 500 U.S. at 427.

Petitioner also fails to demonstrate that the Appellate Division’s decision was

based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(2).

Although Petitioner “disagrees” with the trial court’s finding that the jurors could be

fair and impartial, that finding is entitled to a presumption of correctness, see 28

U.S.C. § 2254(e)(1), and Petitioner fails to overcome that presumption with clear

and convincing evidence. The trial court questioned each juror, and all stated they

could fair and impartial. Accordingly, the Court will deny Petitioner relief on

Ground Eight.

I. Ground Nine

In Ground Nine, Petitioner argues that the trial court erred in allowing the

state to admit direct connect call records that were not produced to the defense until

mid-trial. (ECF No. 8 at 21.) Alternatively, Petitioner argues that the trial court erred

by failing to grant an adjournment to allow his defense counsel to review the

evidence. (Id.)

On direct appeal, the Appellate Division summarized the background of this

claim and explained that during the direct examination of Steven Ehrnman, a

supervisor for Sprint Nextel Corporation, the state sought to introduce call detail

records showing “incoming and outgoing calls, time and duration” between

Chochran and Reeves. Russell, No. A-4101-09T1, slip op., at 89. Cochran’s defense

counsel objected based on the late production of the call records. Id. The Appellate

Division explained:

The prosecutor explained to the court that he had spoken

to a Sprint representative the previous evening and

confirmed that Sprint only documented outgoing direct

connect calls. He then drafted a “CDW” (a

communications data warrant) to obtain records from

Cochran’s phone. The appropriate judge signed the

warrant, and the prosecutor received the records around

8:30 a.m. that morning and turned them over to Cochran’s

attorney when counsel arrived in court. The prosecutor

explained that he sought the records to verify that

Cochran’s phone and Reeve’s phone were in contact.

Cochran’s attorney argued that the State had Reeves’s

records for weeks, and that the introduction of his client’s

call records hours before the State called prosecutor’s

investigator Casey Long to testify about them put the

defense at a disadvantage. The court ruled that Ehrnman

could finish his testimony for the sole purpose of

identifying the call records as business records. It also

ruled that defense counsel could have more time to review

the records before Long addressed them, and advised

counsel to let the court know if further time was needed.

Cochran’s attorney said that was fine. [Petitioner’s]

defense counsel did not object to the late discovery.

Later that same day, the State recalled Long to testify

without objections by any defense counsel. Long stated

that there were ninety-seven direct connect calls from

Reeves’s phone to Cochran’s. He determined that there

were also several contacts from Cochran to Reeves.

Counsel for Cochran and [Petitioner] cross-examined

Long about the call records.

Id. at 89-90. The Appellate Division New Jersey Rule 3:13-3(g), explaining the “rule

permits a court to ‘order such party to permit the discovery or inspection of materials

not previously disclosed, grant a continuance or delay during trial, or prohibit the

party from introducing in evidence the material not disclosed, or it may enter such

other order as it deems appropriate.’” Id. at 91, citing R. 3:12-3(g). The court noted

that Petitioner failed to note why he “needed more time to review these records.” Id.

at 92. The Appellate Division explained there was amble opportunity to cross-

examine Ehrnman and Long about the calls, and Petitioner’s counsel only cross-

examined Long primarily about calls between [Petitioner] and Powell and failed to

ask any questions about direct connect calls between Cochran and Reeves. Id. The

Appellate Division denied Petitioner’s claim finding that the record does not indicate

that Petitioner was disadvantaged in any way. Id.

Generally, the admissibility of evidence is a question of state law which is not

cognizable under habeas review. See Keller v. Larkins, 251 F.3d 408, 416 n.2 (3d

Cir. 2001) (“A federal habeas court . . . cannot decide whether the evidence in

question was properly allowed under the state law of evidence.”). “[T]he Due

Process Clause does not permit the federal courts to engage in a finely-tuned review

of the wisdom of state evidentiary rules.” Marshall v. Lonberger, 459 U.S. 422, 438

n.6 (1983) (citing Spencer v. Texas, 385 U.S. 554, 564 (1967)). The state courts are

entitled to deference in their determinations regarding evidence and procedure. See

Crane v. Kentucky, 476 U.S. 683, 690 (1986). Because habeas relief does not provide

an avenue for relief based on alleged errors of state law, a habeas claim based on a

state law evidentiary issue may only be raised where the petitioner can show that the

admission of the evidence in question denied him due process by depriving him of

the “fundamental elements of fairness in [his] criminal trial.” Glenn v. Wynder, 743

F.3d 402, 407 (3d Cir. 2014) (quoting Riggins, 504 U.S. at 149).

Here, the Appellate Division cited to New Jersey Rules of Evidence in

reviewing the appropriateness of the admissibility of the call direct records. The state

court found Petitioner was not disadvantaged by the admission of the records, noting

the trial court informed the defense they could request more time with the records if

they needed it and defense counsel had an opportunity to cross-examine the

witnesses on the records. Petitioner fails to demonstrate that the state court’s

reasoned analysis of the decision to allow these items into evidence resulted in a

decision that was based on an unreasonable determination of the facts in light of the

evidence presented. The Court finds no clear error by the state court in applying state

evidentiary rules and finds that Petitioner has failed to show that the state court’s

evidentiary rulings deprived him of “fundamental elements of fairness in [his]

criminal trial.” Glenn, 743 F.3d at 407. Therefore, Petitioner’s ninth ground for

habeas relief is denied.

J. Grounds Ten, Eleven, Twelve, and Thirteen

Ground Ten, subclaims A through I, and Grounds Eleven, Twelve, Thirteen,

and Fifteen all raise claims of ineffective assistance of trial counsel. (ECF No. 8 at

22-38.) Petitioner alleges the following grounds for relief:

Ground Ten, subclaims A through I

A. [Trial counsel] did not investigate or call witnesses at

trial to establish a defense based on implicating Tyleek

Baker’s attorney, Paul Bergrin, as the principal party

responsible for arranging the murder of Christian

Granados.

B. [Trial counsel] was ineffective because he did not

contact six witnesses who could have supported

Petitioner’s defense, which was that the words he used in

conversations between himself and codefendant Powell

were about his sister (Tonya Wall) sneaking marijuana

into the Ocean County Jail.

C. [Trial counsel] was ineffective for failing to object to

the spelling of his nickname to the jury as ‘Gorilla Gotti”

rather than “Guerilla Gotti.”

D. [Trial counsel] was ineffective for not challenging the

State’s interpretation of the recorded code words. EL

Washburne was ineffective for not introducing the entire

conversations between Joseph Powell and Petitioner.

F. [Trial counsel] was ineffective for not introducing

Joseph Powell’s letter to the jury.

G. [Trial counsel] was ineffective for not calling Devon

Hardy as a witness.

H. [Trial counsel] was ineffective for not introducing the

entirety of Powell’s police interview statements at trial.

I. [Trial counsel] was ineffective for not revealing the

State’s alleged inconsistency regarding Powell’s

credibility.

Ground Eleven: [Trial counsel] failed to attempt to prevent

the jury from hearing irrelevant character evidence,

specifically, his gang affiliation.

Ground Twelve: [Trial counsel] failed to excuse certain

jurors who were biased against him during jury selection.

Ground Thirteen: [Trial counsel] was ineffective for

failing to ask for a mistrial following certain actions by the

State that he argues constituted prosecutorial misconduct.

Ground Fifteen: The prosecution not only suppressed

evidence, but it lied to the jury and [trial counsel] did not

nothing to prevent the lies.

(Id.)

The Sixth Amendment, applicable to states through the Due Process Clause

of the Fourteenth Amendment, guarantees the accused the “right . . . to have the

Assistance of Counsel for his defense.” U.S. Const. amend. VI. The right to counsel

is the right to the effective assistance of counsel, and counsel can deprive a defendant

of the right by failing to render adequate legal assistance. See Strickland v.

Washington, 466 U.S. 668, 686 (1984).

A claim that counsel’s assistance was so defective as to require reversal of a

conviction has two components, both of which must be satisfied. See Strickland,

466 U.S. at 687. To establish an ineffective assistance of counsel claim, a petitioner

must first prove “counsel’s representation fell below an objective standard of

reasonableness.” Id. at 688. In analyzing counsel’s performance, the court must be

“highly deferential.” Id. at 689. The Supreme Court explained:

A fair assessment of attorney performance requires that

every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstance of counsel’s

challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time. Because of the

difficulties inherent in making the evaluation, a court must

indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional

assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged

action ‘might be considered sound trial strategy.’

Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). A convicted defendant

asserting ineffective assistance must therefore identify the acts or omissions that are

alleged not to have been the result of reasoned professional judgment. Strickland,

466 U.S. at 690. The reviewing court then must determine whether, in light of all

the circumstances, the identified acts or omissions were outside “the wide range of

professionally competent assistance.” Id. It follows that counsel cannot be

ineffective for declining to raise a meritless issue. See Premo v. Moore, 562 U.S.

115, 124 (2011).

The second part of the Strickland test requires a petitioner to demonstrate that

counsel’s performance “prejudiced the defense” by depriving petitioner of “a fair

trial, a trial whose result is reliable.” 466 U.S. at 687. To establish prejudice, a

petitioner must show “there is a reasonable probability that, but for counsel’s

unprofessional error, the result of the proceeding would have been different.” Id. at

694.

If a petitioner fails to satisfy either prong of the Strickland test, it is

unnecessary to evaluate the other prong, as a petitioner must prove both prongs to

establish an ineffectiveness claim. Id. at 697. Moreover, “if it is easier to dispose

of an ineffectiveness claim on the ground of lack of sufficient prejudice…that course

should be followed.” Id.

Because Petitioner’s ineffective assistance of counsel claim is raised through

a § 2254 petition, federal “review must be ‘doubly deferential’ in order to afford

‘both the state court and the defense attorney the benefit of the doubt.’” See Woods,

575 U.S. at 316 (quoting Burt v. Titlow, 571 U.S. 12, 15 (2013)); see also Pinholster,

563 U.S. at 190 (“[R]eview of the [State] Supreme Court’s decision is thus doubly

deferential.”); see also Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (“[D]oubly

deferential judicial review applies to a Strickland claim evaluated under the §

2254(d)(1) standard . . . .”); see also Yarborough v. Genrty, 541 U.S. at 1, 6 (2003)

(“Judicial review of a defense attorney . . . is therefore highly deferential--and doubly

deferential when it is conducted through the lens of federal habeas.”). Indeed,

“[w]hen § 2254(d) applies, 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.” See Harrington v. Richter, 562 U.S.86,

105 (2011).

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 deferential standards apply “even where there has been a summary

denial” by the state court. Cullen v. Pinholster, 563 U.S. 170, 187 (2011).

Here, Petitioner raised these claims on collateral appeal and the PCR court

issued a lengthy and detailed opinion denying Petitioner’s claims as meritless. (See

ECF No. 30-42 at 44-59.) Petitioner appealed and the Appellate division affirmed

the PCR court’s decision and denied the claims. Russell, 2019 WL 2114762 at * 10-

12. The Appellate Division is the last reasoned state court decision. The Appellate

Division denied all of Petitioner’s ineffective assistance of counsel claims, stating

“[t]he PCR judge thoughtfully addressed each of [Petitioner’s] arguments in her

comprehensive written decision. After reviewing these arguments in light of the

record and applicable legal principles, we conclude they are without merit. We

affirm substantially for the reasons set forth in the PCR judge’s comprehensive

written decision.” Id. at * 10. The Appellate Division added the following:

Our review of the record reveals [Petitioner] has not

established a prima facie case of ineffective assistance of

counsel. He has not shown that his counsel’s alleged errors

caused the requisite prejudice. To establish prejudice, a

defendant must show “a reasonable probability that, but

for counsel’s unprofessional errors,” a different verdict

would have resulted. [State v. Fritz, 105 N.J. 42, 52

(1987)] (quoting Strickland, 466 U.S. at 694). The impact

of counsel’s alleged errors on a verdict turns primarily on

the strength of the evidence against the defendant and how

counsel’s errors relate to that evidence. Where the case

against the defendant is strong, counsel’s performance,

unless egregiously lacking, will not result in a different

outcome. See State v. Pierre, 223 N.J. 560, 583 (2015)

(“Important to the prejudice analysis is the strength of the

evidence that was before the fact-finder at trial.”).

The evidence against [Petitioner] and his co-defendants

was overwhelming. Applying these principles, [Petitioner]

has failed to show a reasonable probability that, but for

counsel’s alleged errors, the jury would have reached a

different verdict. Absent a showing of prejudice,

[Petitioner] was unable to establish a prima facie case of

ineffective assistance of counsel to warrant an evidentiary

hearing or PCR. [State v. Preciose, 129 N.J. 451, 462

(1992)]; R. 3:22-10(b).

Russell, 2019 WL 2114762 at * 12.

The Appellate Division applied the correct standard announced in Strickland

for analysis of Petitioner’s ineffective assistance of counsel claims and found

Petitioner could not meet the prejudice prong of Strickland based on the

overwhelming evidence against Petitioner. Therefore, the only question on habeas

review is whether the state court’s application of the prejudice prong was

unreasonable. It was not.

The Court has thoroughly reviewed the state court opinions in this matter and

the lengthy record before the Court. Petitioner cannot show that but for the alleged

ineffective assistance of counsel the outcome of Petitioner’s trial would have been

different. As explained at length above, in 2006 Petitioner was on trial for the murder

of Jose Francisco Olivares. Christian Vivar Granados was the state’s main

eyewitness to the Olivares murder. (See ECF No. 30-13 at 22:22 to 24:11.) Mr.

Granados had identified Petitioner and his codefendants by first name and nickname

and had picked all three of their photographs out of a photographic lineup. (See id.)

The state provided Petitioner’s trial counsel in the Oliveras murder trial with

discovery, which included the name and address of witness Granados. (Id. at 23:17

to 24:6.) During Petitioner’s plea-cut off hearing in the Oliveras murder trial,

Petitioner acknowledged that he reviewed all of the discovery with his attorney. (Id.

at 27:6-16, 29:23 to 30:1.) On October 7, 2008, the trial court informed Petitioner

and his codefendants that witness testimony in the Oliveras murder trial was set to

begin on October 14, 2008. (Id. at 26:3-13.) On October 14, 2008, the day witness

testimony was set to begin, Thelma Vazquez was shot and killed in the same

apartment where Mr. Granados was. (Id. at 26:23 to 27:4.)

During Petitioner’s trial at issue here, pertaining to the murder of Thelma

Vazquez, Sergeant Joseph Valenti testified regarding tape-recorded telephone calls

made by Petitioner and his co-defendants from Ocean County Jail between October

8 and 14, 2008. (See ECF No. 30-14 at 46:13 to 87:5.) Sergeant Valenti testified that

he recognized Petitioner’s voice in the audio recordings and confirmed it was

Petitioner by viewing videotapes that are made of all telephone calls in the jail. (Id.

at 52:11-15, 53:15 to 54:5.) In a tape-recorded conversation from October 9, 2008,

Petitioner was recorded telling Joseph Powell, “its gotta be done by Sunday, Monday

the latest ‘cause niggers go to court Tuesday, you dig.” (Id. at 55:21 to 56:6.) The

Oliveras murder trial was set begin on Tuesday October 14, 2008, the day Thelma

Vazquez was killed.

Joseph Powell testified that on September 13, 2008, he was instructed by

Shawn Craighead, a fellow gang member then incarcerated in the Ocean County Jail,

to contact gang leader Cochran. (ECF No. 30-15 at 22:17 to 23:25.) When Powell

met Cochran a few days later, Cochran told Powell that he was about “to take care

of some bitch,” which Powell understood to mean an unnamed witness. (Id. at 24:18

to 25:22.) Cochran later confided that he had learned the witness’s address – “in the

Congress” - and if Powell spoke with Scott or [Petitioner], Powell should tell them

Cochran was “still working on that problem.” (Id. at 26:24 to 27:18.) The Appellate

Division cited to a tape-recorded conversation between Petitioner and Powell on

October 10, 2008, as follows:

[Petitioner]: Big bro bust at you and told you tell “Brave”

[Cochran] that shit?

[Powell]: About the pants, right?

[Petitioner]: Yeah.

[Powell]: Word.

[Petitioner]: Yeah, I know that like, that’s like top priority,

ya hear.

[Powell]: Word, I told ‘em I’d let him have that by Sunday

and shit.

[Petitioner]: Yeah, na, but ah, motherfucker ah, tell

“Brave” ta ah, tell “Brave” “Big Bro” said, tell, tell

“Brave” “Big Bro” said, “Handle that CVS thing[,]” ya

heard?

[Powell]: CVS thing ya said?

[Petitioner]: Yeah.

[Powell]: A-ight[.]

[Petitioner]: He be knowin’, he be knowin’ what it is en

shit.

[Powell]: Word.

[Petitioner]: Ya tell ‘em niggers you know what I mean,

throw, throw a barbeque and speak about that shit.

[Powell]: No doubt.

[Petitioner]: Yeah, Nig, niggers goin’ have ta fight this war

on Tuesday, ya heard?

[Powell]: Yeah, I’m gonna be up there Tuesday.

[Petitioner]: Yeah, I know that. Yeah, we just, we just

wavy right now man. I mean I got this thing in neutral

patiently waitin’ (inaudible) know what I mean?

[Powell]: Word.

Russell, No. A-4101-09T1, slip op., at 5-7. Powell testified at trial that barbecue

means to “fry somebody or send something hot somebody’s way.” (ECF No. 30-15

at 36:1-12.) Powell also testified that they were not talking about actual pants, but

rather they were discussing the witness. (Id. at 36:13-17.)

Co-defendant Reeves testified at trial that he was ordered to kill a witness.

(ECF No. 30-21 at 11:6-16.) Reeves admitted to shooting Thelma Vazquez but

testified that it “was an accident” and he thought she was Christian Viva Granados.

(Id. at 13:25 to 14:1; 21:19 to 22:8.)

To satisfy the second prong of the Strickland test, a petitioner must “show

there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” 446 U.S. at 694. “‘A reasonable

probability is a probability sufficient to undermine confidence in the outcome’ of the

proceeding.” Id. Considering the overwhelming evidence against Petitioner,

Petitioner has failed to show that but for counsel’s alleged ineffective assistance, the

result of his trial would have been different. The state court’s adjudication of

Petitioner’s ineffective assistance of counsel claims was not an unreasonable

application of Strickland. Petitioner is not entitled to relief on Ground Ten, subparts

A through I, and Grounds Eleven, Twelve, and Thirteen.4

K. Ground Fourteen

Ground Fourteen alleges that Petitioner should be granted a new trial based

upon the state’s violation of Brady v. Maryland, 373 U.S. 83 (1963). Petitioner

claims the state “failed to disclose it was in possession of a letter that revealed that

the only fact witness against [Petitioner], Joseph Powell, concocted the entire story

against [him].” (ECF No. 8 at 34-37.) Petitioner argues that Powell sent a letter to

the trial court, in which he stated that he only learned about the murder plot after

Powell was incarcerated and Petitioner was in a different facility at that time, Powell

expressed his willingness to turn on his co-defendants, and the evidence shows that

the murder plot took place prior to Powell and Russell’s recorded phone

conversations. (Id. at 36.)

As an initial matter, it does not appear that the instant Brady violation claim

was properly exhausted. On collateral appeal Petitioner raised this claim as an

4 Ground Sixteen re-raises the same claim raised in Ground Ten, subclaim C. Ground Seventeen re-raises the same

claim raised in Ground Ten, subclaim A. Ground Eighteen re-raises the same claim raised in Ground Ten, subclaims

B and G. As such, the Court will not address them in a separate section, and they are denied for the reasons

expressed above.

ineffective assistance of counsel claim for failing to introduce the Powell letter at

trial. (See ECF No. 30-42 at 50.) Petitioner did not raise the claim that the state failed

to disclose the letter in violation of Brady. However, the Court need not determine

if the claim is properly exhausted because a habeas court can, if appropriate, deny a

petitioner’s unexhausted claims on the merits pursuant to 28 U.S.C. § 2254(b)(2).

See § 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.”); see also Mahoney v. Bostel, 366 F. App’x 368, 371 (3d

Cir. 2010). The Court’s de novo review applies a more liberal standard in favor of

Petitioner than AEDPA deference. See Harrington, 562 U.S. at 101-102. Applying

this more generous standard of review though, Petitioner is still not entitled to habeas

relief on this claim.

Under Brady, the State bears an “affirmative duty to disclose [material]

evidence favorable to a defendant.” Kyles v. Whitley, 514 U.S. 419, 432 (1995)

(citing Brady, 373 U.S. 83.) “[E]vidence is material only if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682

(1985). In Strickler v. Greene, the Supreme Court clarified that “[t]here are three

components of a true Brady violation: The evidence at issue must be favorable to the

accused, either because it is exculpatory, or because it is impeaching; that evidence

must have been suppressed by the State, either willfully or inadvertently; and

prejudice must have ensued.” 527 U.S. 263, 281–82 (1999).

Here, as noted by the PCR court in evaluating Petitioner’s ineffective

assistance of counsel version of this claim, whether the murder plot was complete

prior to Powell’s conversation with Petitioner is irrelevant. The state argued to the

jury that Powell and Petitioner’s conversations were for the purpose of conveying

messages to help facilitate the murder plot, not to initially plan the murder. (See ECF

No. 30-12 at 26:13-17 (“And you will also hear from Joseph Powell how he was an

intermediary, a conduit for conversations and message from Jamell Scott and

[Petitioner] to Trishawn Cochran, who is not in jail at the time.”)) Additionally, the

jury heard Powell testify that Powell’s conversations with Petitioner were not for the

purpose of planning the murder, rather they were for the purpose of relaying

messages from Petitioner to Cochran regarding what was going on with the murder.

(See ECF No. 30-15 at 106:12-25.)

Regarding Plaintiff’s allegation that the Powell letter would have shown the

jury that Powell had expressed his willingness to turn on his co-defendants, the jury

was made aware of this information. Powell was thoroughly cross-examined

regarding his police interview transcript and his offers to help the police if they

would release him. (See id. at 85:3 to 88:5.) Defense counsel cross-examined Powell

regarding several of his statements to police, including the following:

Just work with me. Just try, just try to work with me, man.

Like, whatever you want, I’m gonna give it to you, man.

I’m telling you, I’m gonna give it to you, man. I’m letting

you, they don’t care about me. I’m a sing.

(Id., at 86:12-16.)

The Powell letter was not exculpatory as required by Brady, as the evidence

presented at trial and summarized throughout this Opinion shows that Petitioner’s

conversations with Powell took place after the initial murder plot and were for the

purpose of conveying messages regarding the completion of the murder not the

planning of it. Petitioner has also not shown there is a “reasonable probability” that

the outcome of his trial would have been different if the jury had been shown the

Powell letter. As explained above, the jury was given the information Petitioner

claims is exculpatory through Powell’s testimony at trial. Petitioner has failed to

meet the standard to show a Brady violation occurred. Habeas relief is not warranted

on Ground Fourteen.

L. Ground Nineteen

In Ground Nineteen, Petitioner claims that the cumulative effect of all of his

trial and appellate counsel’s errors rendered both of their performances

constitutionally deficient. (ECF No. 8 at 46.)

In order to constitute redressable “cumulative error,” the deficiencies in a case

must overall have “so infected the trial with unfairness as to make the resulting

conviction a denial of due process.” Hem v. Sullivan, 601 F.3d 897, 917 (9th Cir.

2010) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). “Cumulative

errors are not harmless if they had a substantial and injurious effect or influence in

determining the jury’s verdict, which means that a habeas petitioner is not entitled

to relief based on cumulative errors unless he can establish actual prejudice.” Fahy

v. Horn, 516 F.3d 169, 205 (3d Cir. 2008) (internal quotations and citations omitted).

As discussed herein, Petitioner’s claims were extensively reviewed and

rejected on the merits by the state courts, and those decisions easily withstand review

under AEDPA. Petitioner’s claims lack substantial merit. Petitioner has failed to

show that any of the alleged errors cast doubt over the proofs of Petitioner’s guilt

which were presented at trial. Petitioner has failed establish any prejudice from the

alleged trial errors and there was significant evidence of Petitioner’s guilt. Petitioner

has not shown that the alleged cumulative errors had a substantial and injurious

effect or influence in determining the jury’s verdict. Fahy, 516 F.3d at 205. Based

on all of the forgoing, Petitioner’s nineteenth ground is denied.

V. CERTIFICATE OF APPEALABILITY

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

certificate of appealability, an appeal may not be taken from a final order in a

proceeding under 28 U.S.C. § 2254. A certificate of appealability may issue “only if

the applicant has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that

jurists of reason could disagree with the district court’s resolution of his

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

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

327 (2003).

Here, Petitioner has failed to make a substantial showing of the denial of a

constitutional right. Thus, no certificate of appealability shall issue.

VI. CONCLUSION

For the above reasons, the § 2254 habeas petition is denied, and a certificate

of appealability will not issue. An appropriate Order follows.

Dated: 3/6/23

s/Peter G. Sheridan

PETER G. SHERIDAN, U.S.D.J.