SMALL v. MACFARLAND

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

ROBERT L. SMALL, : Civ. Action No. 20-11033(RMB)

:

Petitioner :

:

v. : OPINION

:

KATHYRN MACFARLAND, :

SUPERINTENDENT SOUTH :

WOODS STATE PRISON AND :

ATTORNEY GENERAL :

OF THE STATE OF NEW JERSEY, :

:

Respondents :

:

RENÈE MARIE BUMB, CHIEF UNITED STATES DISTRICT JUDGE

This matter comes before the Court upon Petitioner Robert L. Small’s

(“Petitioner”) petition for a writ of habeas corpus under 28 U.S.C. § 2254,

challenging his 2008 state court conviction on attempted murder, armed robbery, and

multiple assault and weapons charges. (Pet., Dkt. No. 1.) Respondents filed an

answer in opposition to habeas relief. (Answer, Dkt. No. 7.) Petitioner did not file a

reply brief. For the reasons set forth below, the Court denies the petition for writ of

habeas corpus.

I. PROCEDURAL HISTORY

In October 2005, Petitioner was charged by Indictment in Camden County,

New Jersey with first-degree attempted murder in violation of N.J.S.A. 2C:5-

1/2C:11-3a (Count One); second-degree aggravated assault, in violation of N.J.S.A.

2C:12-1b(1) (Count Two); third-degree aggravated assault, in violation of N.J.S.A.

2C:12-1b(2) (Count Three); third-degree possession of a weapon for an unlawful

purpose, in violation of N.J.S.A. 2C:39-4d (Count Four); fourth-degree unlawful

possession of a weapon, in violation of N.J.S.A. 2C:39-5d (Count Five); and first-

degree armed robbery, in violation of N.J.S.A. 2C:15-1 (Count Six). (Indictment as

amended, Dkt. No. 7-3, Dkt. No. 7-59 at 23.) At a pretrial hearing on January 29,

2007, the Honorable Frederick J. Schuck addressed Petitioner’s motion for self-

representation. (Status Conf. Tr., Dkt. No. 7-51.) Judge Schuck stated that, in a

report dated December 12, 2006, Petitioner had been found competent to represent

himself. (Id. at 2-3.) After a lengthy colloquy with Petitioner about the many

disadvantages and likely negative outcome of his self-representation at trial, Judge

Schuck concluded that Petitioner had knowingly and intelligently waived his right to

counsel, and granted his motion for self-representation. (Id. at 4-26.) On June 27,

2007, the Honorable Louis R. Meloni denied Petitioner’s motion to dismiss the

Indictment. (Mot. Tr., Dkt. No. 7-55 at 6-8.) Judge Meloni also denied Petitioner’s

motion to gain access to the jail’s law library for up to four hours per day, seven days

per week. Instead, Petitioner would continue to have access to the law library no

less than one hour every other weekday, assuming Petitioner was not in disciplinary

confinement. (Order, Dkt. No. 7-5 at 1.)

On October 9 and 10, 2007, the Honorable Irvin J. Snyder presided over

Petitioner’s Miranda1/Wade2 hearing. (Miranda/Wade Hearing Tr., Dkt. Nos. 7-56,

7-57.) At the conclusion of the motions hearing, Judge Snyder found that the

witnesses’ pretrial identifications of Petitioner were reliable, and Petitioner’s in

custody statements were admissible. (Dkt. Nos. 7-57 at 38-49, 44-46.) Petitioner’s

jury trial commenced on November 1, 2007, before the Honorable Stephen M.

Holden. (Trial Tr., Dkt. Nos. 7-61 through 7-71.) The jury returned its verdict on

November 30, 2007. The jury acquitted Petitioner of armed robbery and found him

guilty on all other charges. (Trial Tr., Dkt. No. 7-71 at 133-35.) After a hearing on

January 25, 2008, Judge Holden denied Petitioner’s motions for a new trial and for

judgment of acquittal. (Mot. and Sent. Tr, Dkt. No. 7-72 at 3-4.) On the same day,

Judge Holden granted the State’s motion for an extended term sentence and

sentenced Petitioner to 35-years imprisonment with 85% parole ineligibility. (Dkt.

No. 7-72 at 4-5, 11-12; JOC, Dkt. No. 7-7.) Petitioner appealed, and the New Jersey

Superior Court, Appellate Division affirmed Petitioner’s conviction and sentence on

July 7, 2011. (App. Div. Op., Dkt. No. 7-15.) The New Jersey Supreme Court

(“NJSC”) denied Petitioner’s petition for certification on February 2, 2012. (NJSC

Order, Dkt. No. 7-20.)

1 Miranda v. Arizona, 384 U.S. 436 (1966).

2 U.S. v. Wade, 388 U.S. 218 (1967).

On April 24, 2012, Petitioner filed an application for post-conviction relief

(“PCR”). (Pro Se PCR Pet., Dkt. No. 7-21.) On July 16, 2012, Judge Schuck

assigned PCR counsel to Petitioner. (Order, Dkt. No. 7-22.) On or about August 21,

2013, PCR counsel informed the court that she had not received any discovery, pre-

trial motions or transcripts from Petitioner’s criminal trial, which were necessary for

her to investigate Petitioner’s potential PCR claims. (Letter, Dkt. No. 7-23.) One

month later, the court set a PCR briefing schedule, but PCR counsel had received

only half of Petitioner’s file. (PCR Briefing Sched., Dkt. No. 7-24.) On the deadline

set for briefing, Petitioner’s counsel did not have all the necessary transcripts and

sought an extension of time. (Letter, Dkt. No. 7-25.) After warning PCR counsel

that the case would be dismissed without prejudice absent a timely filed PCR brief,

Judge Schuck dismissed the petition without prejudice on May 15, 2014. (PCR

Order, Dkt. No. 7-27).

About two-and-a-half years later, Petitioner refiled his PCR motion on

January 24, 2017. (PCR Mot., Brief, and Cert. of Counsel, Dkt. Nos. 7-28, 7-29, 7-

30.) On August 17, 2017, after finally locating the missing transcript of Judge

Schuck’s colloquy with Petitioner about his waiver of counsel, PCR counsel

withdrew the PCR claim that there had been no hearing on Petitioner’s motion to

represent himself, or that the hearing was inadequate. (Letter, Dkt. No. 7-31.) On

November 17, 2017, Judge Schuck denied Petitioner’s PCR petition. (PCR Order,

Dkt. No. 7-35.)

On March 13, 2018, Petitioner filed a notice of appeal of the PCR court’s

decision, with a notice of motion to file the notice of appeal as within time. (Not. of

Appeal, Dkt. Nos. 7-36, 7-37 and 7-38.) By order dated March 29, 2018, the

Appellate Division granted the motion to file the notice of appeal as within time.

(App. Div. Order, Dkt. No. 7-45.) On July 3, 2019, the Appellate Division affirmed

the denial of Petitioner’s PCR petition. (PCR Opinion, Dkt. No. 7-46.) On

November 21, 2019, the New Jersey Supreme Court denied Petitioner’s petition for

certification. (NJSC Order, Dkt. No. 7-50.) On August 21, 2020, Petitioner filed a

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which he signed

and presented to prison authorities for mailing on July 21, 2020. (Pet., Dkt. No. 1 at

16.)

II. DISCUSSION

A. Affirmative Defense: Untimeliness of the Petition

Respondents argue that this Court should dismiss the habeas petition because

Petitioner filed his § 2254 habeas petition after expiration of the one-year statute of

limitations under 28 U.S.C. § 2244(d)(1). (Answer, Dkt. No. 7 at 33-40.)

Furthermore, Petitioner has not established that he is entitled to statutory or

equitable tolling. Respondents submit that Petitioner’s Judgment of Conviction

(“JOC”) was entered on January 25, 2008 (Dkt. No. 7-7), and his direct appeal was

denied by the Appellate Division on July 7, 2011. (Dkt. No. 7-15.) On February 2,

2012, the New Jersey Supreme Court denied Petitioner’s petition for certification on

direct appeal. (Dkt. No. 7 at 37.) Petitioner then had ninety days, until May 3,

2012, to seek certiorari from the U.S. Supreme Court. (Answer, Dkt. No. 7 at 37,

citing N.J. Sup. Ct. R. 13.1.) Petitioner chose not to seek certiorari. Thus, the one-

year habeas limitations period began at the expiration of this 90-day period, on May

4, 2012. In the meantime, Petitioner filed a PCR petition on April 24, 2012. (PCR

Pet., Dkt. No. 7-21.) This tolled the habeas limitations period pursuant to §

2244(d)(2), without any days running on the one-year “clock.”

Respondents contend that on May 15, 2014, the day on which the PCR court

dismissed Petitioner’s PCR petition without prejudice, his PCR proceeding was no

longer pending within the meaning of § 2244(d)(2). Therefore, Petitioner’s one-year

habeas limitations period began to run, and it expired one year later, on or about

May 15, 2015. Although Petitioner refiled his PCR petition on January 24, 2017,

and the state courts treated it as timely, Respondents maintain that the one-year

habeas limitations period had already expired.

Respondents recognize that the doctrine of equitable tolling is applicable to the

habeas statute of limitations. Respondents argue that PCR counsel’s failure to advise

Petitioner that his habeas limitations period began to run after his PCR petition was

dismissed without prejudice is not an extraordinary circumstance required for

equitable tolling of the habeas limitations period. (Answer, Dkt. No. 7 at 40, citing

LaCava v. Kyler, 398 F.3d 271, 276 (3d Cir. 2005) (quoting Merritt v. Blaine, 326 F.3d

157, 169 (3d Cir. 2003); Sistrunk v. Rozum, 674 F.3d 181, 189–90 (3d Cir. 2012)).

1. Legal Standard

The statute of limitations for state prisoners seeking habeas corpus relief under

28 U.S.C. § 2254 is found in 28 U.S.C. § 2244(d), which states, in relevant part:

(d)(1) A 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court. The

limitation period shall run from the latest of—

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

the conclusion of direct review or the expiration

of the time for seeking such review….

A judgment becomes final on direct appeal “‘at the conclusion of review in the

United States Supreme Court or when the time for seeking certiorari review expires’”

Jones v. Morton, 195 F.3d 153, 157 (3d Cir. 1999) (quoting Kapral v. United States, 166

F.3d 565, 575 (3d Cir. 1999)). At that point, the habeas statute of limitations begins

to run until it is tolled or it expires. Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000)

(citations omitted).

Statutory tolling is governed by § 2244(d)(2), which provides: “[t]he time

during which a properly filed application for State post-conviction or other collateral

review with respect to the pertinent judgment or claim is pending shall not be

counted toward any period of limitation under this subsection.” Respondents argue

the PCR petition was no longer “pending” within the meaning of § 2244(d)(2) after it

was dismissed without prejudice on May 15, 2014. (Answer, Dkt. No. 7 at 35, 39.)

2. Analysis

The U.S. Supreme Court has addressed the meaning of “pending” as used in

§ 2244(d)(2). The Court began with the ordinary meaning of the word. Carey v.

Saffold, 536 U.S. 214, 219 (2002).

The dictionary defines “pending” (when used as an

adjective) as “in continuance” or “not yet decided.”

Webster's Third New International Dictionary 1669 (1993). It

similarly defines the term (when used as a preposition) as

“through the period of continuance ... of,” “until the ...

completion of.” Ibid. That definition, applied in the

present context, means that an application is pending as

long as the ordinary state collateral review process is “in

continuance”—i.e., “until the completion of” that process.

In other words, until the application has achieved final

resolution through the State's post-conviction procedures,

by definition it remains “pending.”

Id. at 219–20 (2002). The Court rejected the proposal that “pending” meant “under

court consideration.” The Court reasoned this would exclude intervals between a

lower court's entry of judgment and the timely filing of an appeal at the next state

court level, which would, in turn, encourage state prisoners to file federal habeas

petitions before completing a full round of collateral review in the state courts, as

required by § 28 U.S.C. § 2254(c). Id. at 20 (citing O'Sullivan v. Boerckel, 526 U.S.

838, 845 (1999)).

More recently, the Third Circuit described Section 2244(d)(2)'s “pending”

requirement as forward-looking. Martin v. Adm'r New Jersey State Prison, 23 F.4th 261,

271 (3d Cir.), cert. denied sub nom. Martin v. Johnson, 214 L. Ed. 2d 111 (2022). Thus,

after a PCR petition is denied with prejudice and the time to appeal expires, “the

state review process is done; it is not dormant, it is not latent, and it is not

hibernating….” Id. This case, however, presents the question of what happens when

the PCR petition is denied without prejudice? Looking forward after the PCR

petition is denied without prejudice, the case has the potential to be reopened.

Petitioner, through counsel, refiled his PCR petition on January 24, 2017,

raising a new claim of ineffective assistance of appellate counsel for failing to raise a

Sixth Amendment waiver of counsel claim on appeal. (PCR Tr., Dkt. No. 7-73 at 2-

3.) As to the timeliness of the refiled PCR petition, according to PCR counsel “the

Court expressly stated that [the PCR petition] could be re-filed with a retroactive

filing date.”3 (Petr’s PCR Brief, Dkt. No. 7-29 at 5; Cert. of PCR Counsel ¶3; Dkt

No. 7-30.) The PCR court reopened the PCR petition and addressed the merits of

the claims, although the newly added claim was withdrawn by PCR counsel. (PCR

Tr., Dkt. No. 7-73.) Therefore, in this unusual circumstance, where a missing

transcript could not be found for years, the state review process was dormant and

remained “pending” under § 2244(d)(2). See, Banks v. Pierce, No. 17-2961, 2018 WL

1446402, at *3 (D.N.J. Mar. 23, 2018) (assuming, without deciding, that “the habeas

statute of limitations remained tolled after the PCR court's ... dismissal without

prejudice, [because] the court's order did not address the merits of the PCR petition

and was not a final, appealable order.”) Petitioner’s original, properly filed PCR

3 The Certification of PCR counsel contains citations to exhibits that were not provided to

this Court, presumably including a document indicating that the original PCR petition

could be reopened with a retroactive filing date. (Cert. of PCR Counsel, Dkt. No. 7-30.)

petition was pending from the date it was filed on April 24, 2012, through January 2,

2018, the end of the 45-day period that Petitioner had to appeal the November 17,

2017 order denying his PCR petition. (PCR Order, Dkt. No. 7-35.)4

Petitioner did not file a timely PCR appeal. Therefore, his habeas limitation

period began to run on January 2, 2018. 28 U.S.C. § 2254(d)(1), (2). Petitioner filed

a notice of PCR appeal on March 13, 2018, along with a motion to file as within

time. This untimely filing did not toll the habeas statute of limitations period, but

when the Appellate Division granted Petitioner’s motion to file his appeal as within

time, the statute of limitations was tolled on March 29, 2018. See, Martin, 23 F.4th at

271 (“a state court's acceptance of an untimely appeal breathes new life into the state

PCR proceeding—and may at that point trigger § 2244(d)(2)'s tolling

mechanism….”) Therefore, 86 days of Petitioner’s habeas clock ran between

January 2, 2018 and March 29, 2018. The habeas limitations period remained tolled

through the end of PCR proceedings, November 21, 2019, the day the New Jersey

Supreme Court denied Petitioner’s petition for certification on PCR appeal. The

habeas clock began to run on November 22, 2019. Petitioner had 279 days

remaining to timely file his habeas petition, or until August 27, 2020. Even without

the benefit of the prison mailbox rule,5 Petitioner timely filed his habeas petition

4 January 1, 2018 was a holiday and is excluded. “[T]he Federal Rules of Civil Procedure

apply, by their own terms, to habeas cases.” Wilson v. Beard, 426 F.3d 653, 662 (3d Cir.

2005) (applying Rule 6(a) computing time).

5 “[A] pro se prisoner's habeas petition is deemed filed at the moment he delivers it to prison

officials for mailing to the district court.” Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998).

when it was received by this Court on August 21, 2020. Therefore, the Court turns

to the merits of the petition.

B. Standard of Law: Section 2254(d)

The standard for granting a federal habeas corpus petition of a state prisoner is

governed by 28 U.S.C. § 2254(d), as follows:

[a]n application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State

court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings

unless the adjudication of the claim--

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

an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States; or

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

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

The Third Circuit has directed habeas courts to follow a two-step analysis

under § 2254(d)(1). Rosen v. Superintendent Mahanoy SCI, 972 F.3d 245, 253 (3d

Cir. 2020) (citing Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888 (3d Cir.

1999) (en banc), cert. denied 528 U.S. 824 (1999)). First, courts should “determine

what the clearly established Supreme Court decisional law was at the time

Petitioner’s conviction became final” and “identify whether the Supreme Court

has articulated a rule specific enough to trigger ‘contrary to’ review.” Id. at 253

(quoting Fischetti v. Johnson, 384 F.3d 140, 148 (3d Cir. 2004)). “The ‘clearly

established Federal law’ provision requires Supreme Court decisions to be viewed

through a ‘sharply focused lens.’” Id. Clearly established law “refers to the

holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time

of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).

A decision is “contrary to” a Supreme Court holding within 28 U.S.C. §

2254(d)(1), only if the state court applies a rule that “contradicts the governing law

set forth in [the Supreme Court’s] cases” or if it “confronts a set of facts that are

materially indistinguishable from a decision of [the Supreme Court] and

nevertheless arrives at a [different result.]” Williams, 529 U.S. at 405-06. Second,

if Supreme Court precedent is not specific enough to trigger contrary review,

habeas courts should “evaluate whether the state court unreasonably applied the

relevant body of precedent.” Rosen, 972 F.3d at 253 (quoting Matteo, 171 F.3d at

888)).

Under § 2254(d)(1), “an unreasonable application of federal law is

different from an incorrect application of federal law.” Harrington v. Richter, 562

U.S. 86, 101 (2011) (quoting Williams, 529 U.S. at 410). For relief under this

provision, the state court’s decision “evaluated objectively” must have “resulted in

an outcome that cannot reasonably be justified under existing Supreme Court

precedent.” Rosen, 972 F.3d at 252 (quoting Matteo, 171 F.3d at 890)). A habeas

court must frame the “relevant question as whether a fairminded jurist could reach

a different conclusion.” Shinn v. Kayer, 141 S. Ct. 517, 524 (2020) or, in other

words, whether “every fairminded jurist would disagree” with the state court. Mays

v. Hines, 141 S. Ct. 1145, 1149 (2021).

Habeas review is deferential to a state court’s determination of facts. 28

U.S.C. § 2254(e)(1) provides that:

[i]n a proceeding instituted by an application for a writ of

habeas corpus by a person in custody pursuant to the

judgment of a State court, a determination of a factual

issue made by a State court shall be presumed to be

correct. The applicant shall have the burden of rebutting

the presumption of correctness by clear and convincing

evidence.

“The petitioner must show that the state court verdict was based on an

unreasonable determination of the evidence and that a reasonable factfinder could not

have reached the same conclusion.” Rosen, 972 F.3d at 252 (3d Cir. 2020) (citing

Campbell v. Vaughn, 209 F.3d 280, 291 (3d Cir. 2000)).

C. Appellate Division’s Findings of Fact on Direct Appeal

On Petitioner’s direct appeal of his conviction, the Appellate Division made

the following findings of fact.

On May 23, 2005, the victim, Neal Steen, was walking to

a Hess Express convenience store located at a jug handle

where Route 130 intersects with Marlton Pike in

Pennsauken. Although an acknowledged drug addict with

two prior convictions, Steen claimed to not have been

under the influence of drugs on that morning. Before Steen

entered the store, defendant, a paraplegic confined to a

wheelchair, “rolled up” to him and said, “Yo, let me hold

something,” which Steen understood to mean defendant

“needed some money.” Steen was casually acquainted

with defendant, but told him he had no money to spare.

While defendant watched through a store window, Steen

withdrew $20 from the ATM machine, purchased a pack

of cigarettes, and put the change in his front pocket. As he

left, defendant again asked him for money. Steen refused

and walked away, heading through the intersection toward

a McDonald's restaurant across the street. Defendant

grabbed him from behind, and Steen fell face-down to the

ground, defendant on his back.

Defendant stabbed Steen in the buttocks, legs, shoulder,

and in the back of his left arm. Steen managed to turn

over, coming face-to-face with defendant, who then

stabbed him in the chest. An unknown person pulled

defendant away, after which Steen walked to the curb and

sat down, “covered in blood from head to toe.” The jacket,

pants, and shirt he wore that day, introduced by the State

as evidence during the trial, bore numerous slash marks

corresponding to the areas where Steen said he had been

stabbed. Steen believed defendant must have taken the

change from his $20 bill during the attack because his shirt

pocket was empty.6

Three eyewitnesses, all of whom identified defendant both

at a show-up shortly after the incident and in court, were

in the vicinity of the intersection at the moment the attack

occurred. Caryn Evans was driving the third car in the

middle lane of the jug handle when she saw a tall white

man with silver hair walking across the street in front of

her, followed by an African–American man with

dreadlocks in a wheelchair. She had seen defendant

struggle to get up the ramp in front of the Hess station, and

“felt bad” for him. The man who was walking kept waving

defendant away, and she assumed defendant was asking

him for money.

The two men reached the third lane of traffic when Evans,

who had a clear and unobstructed view, saw defendant

“fl[y] out of” his wheelchair and knock the other man

down onto his face. Defendant had his victim in a

headlock and began pounding, punching, and hitting him

6 Defendant was also indicted for first-degree armed robbery, N.J.S.A. 2C:15–1. The jury

acquitted him of that offense. Small, 2011 WL 2637161, at *1 n. 1.

in the face and head. Evans watched as defendant reached

into his back right pocket, pulled out a silver-colored knife,

with a blade approximately the size of her hand, and

stabbed the other man in the shoulder area at least five or

six times. She did not see defendant reach into the victim's

pocket but saw the man cover his head and try

unsuccessfully to push defendant away. Evans blew her

car horn, hoping someone would respond, after which

defendant got off the man, pulled his wheelchair over,

climbed onto it, and left “as fast as he could.” The victim,

who appeared to be “dazed,” stumbled towards a

McDonald’s also at the intersection. Evans called police,

reported the assault, and pulled over to await their arrival.

Claudious Walker, an employee at a Valvoline Oil station

across the street from the Hess station, was sitting by the

shop's bay doors facing Marlton Pike when he noticed a

white man walking towards him followed by an African–

American man in a wheelchair wearing dreadlocks. When

the two reached the middle of the intersection, defendant

“nudged” the other man and knocked him to the ground

as he turned. Defendant jumped on the victim, yelled

“where's my money at,” and punched him repeatedly in

the face with a closed fist. As Walker approached to aid

the victim, defendant pulled a knife, approximately seven

or eight inches in length, out from his pocket and stabbed

the man in the arms and legs while screaming about

money. Steen, who “had blood all over him,” broke free

and ran towards Walker. Meanwhile, defendant scooted to

his wheelchair, climbed into it, and headed toward

Marlton Pike exclaiming “I got one.”

The third eyewitness, Dolores Rosas, was seated in her

vehicle when she saw a white man with “blondish hair”

walk in front of her car, followed by an African–American

man in a wheelchair, wearing a black and white bandana

and dreadlocks. When the traffic light turned green, Rosas

saw movement out of the corner of her eye and initially

thought defendant had fallen out of his wheelchair. When

she looked, she saw defendant lying on top of a man who

was face-down in the street. Defendant stabbed the man in

the back of the legs with a knife that had “jagged edges”

and looked like a “hunter's knife.” The man eventually

broke free and walked toward the McDonald's, while

defendant quickly headed toward Marlton Pike. She too

called police.

Sergeant Michael Basileo and Detective William Wheeler

arrived within ten minutes of the report. They spoke to the

witnesses and obtained a description of the assailant, while

a patrolman broadcast the description on police airwaves.

Shortly thereafter, Patrolman Scott Gehring detained

defendant approximately one mile from the crime scene.

Patrolman James Sanders, who also identified defendant

at trial, arrived seconds after Gehring. Both testified

defendant wore dreadlocks, was seated in a wheelchair,

wore a gray shirt and white pants, and had blood on his

hands, shirt, and pants. When Gehring asked defendant

about the knife, defendant retrieved a bloodied seven-inch

folding knife from his right front pocket. At trial, Gehring

demonstrated the knife could be flipped open with only

one hand, making a clicking sound similar to a

switchblade, and Evans and Walker identified it as the

weapon defendant used to stab Steen.

Gehring and Sanders read defendant his Miranda

warnings, handcuffed him, helped him into the back of the

patrol car, and placed his wheelchair in the trunk. The

officers drove him to a more secure location to which

Evans, Walker, and Rosas were separately driven. Each

positively identified defendant as the assailant.

At police headquarters, defendant was placed in a holding

cell after being advised of his Miranda rights a second

time. When Detective Brian Polaski attempted to

fingerprint him, defendant refused to cooperate, making an

obscene gesture and a vulgar comment. After Polaski left

the room, defendant called out to Basileo and asked “if the

guy [who was stabbed] survived?” When Basileo

responded, defendant expressed disappointment, saying he

thought he “had his first body.” Basileo said he thought

“you guys knew each other,” to which defendant replied

that the victim owed him money.

As defendant was changing into a jumpsuit, a pen fell from

his wheelchair to the floor. Defendant then looked at

Polaski saying, “I could have stabbed that n––––r–hater

too,” a comment overheard by Basileo and Wheeler. No

money was found in defendant's clothing.

When interviewed at the hospital, Steen, who appeared

oriented, said defendant attacked him from the front, not

from behind, and that he was missing $7. He had at least

ten stab wounds to his torso and extremities; the most

significant injury being one that penetrated his chest wall,

causing a potentially fatal pneumothorax, or collapsed

lung. Dandrea Joseph, M.D., the trauma surgeon who

treated Steen at the hospital, testified this wound resulted

from the use of great force because the weapon pierced

several layers of skin, muscle, and tissue in addition to the

pleura, a membrane surrounding the lungs.

Approximately eighteen months after the stabbing

incident, from October 29 to November 3, 2006, defendant

and Steen were imprisoned together, on unrelated charges,

in a “medical unit confined area.” Steen said he attempted

to be courteous to defendant because he was afraid of him;

however, he denied ever saying he would not testify

against him or that defendant was not the man who

stabbed him.

Christopher Szymkowiak, a forensic scientist, testified as

the State's DNA expert. Within a reasonable degree of

scientific certainty, he concluded Steen was the source of

the DNA profile obtained from defendant's gray shirt, the

knife, and the flesh found on the knife. He also testified his

conclusion was subject to peer review by another forensic

scientist and to administrative review by his supervisor,

both of whom agreed with his conclusion.

At a pretrial Sands7 hearing, the State presented proof

defendant had been convicted of drug distribution and

aggravated assault on a police officer in 1990. In 1997,

some three years after his release from prison, he was

convicted of child endangering in Pennsylvania. The court

ruled that only the drug and child endangering convictions

could be presented to the jury. On the stand, defendant

acknowledged his drug distribution offense and resulting

7 State v. Sands, 386 A.2d 378 (N.J. 1978).

four-year imprisonment, as well as the child endangering

and the eleven-to-fifty-nine-month sentence imposed by

the Pennsylvania court.

Defendant testified to a quite different version of events,

which we recount in detail. Defendant alleged he gave

Steen a $50 bill to purchase a pack of cigarettes and some

other items for him, as he could not use the handicapped

ramp into the Hess store. At the time, he was wearing a

gray shirt over a white t-shirt, a green, white, and black

bandana, and white or tan sweatpants. After Steen left the

store, he gave defendant only $5 in change, insisting

defendant had given him a $20 and not a $50 bill. The men

argued as a result.

Defendant claimed that suddenly a young, light-skinned

African–American man interjected himself into the dispute

and said he had just seen Steen hand the clerk a $50 bill.

Steen told the young man to mind his own business, and

the two began to push and punch each other. The young

man pulled out a knife and stabbed Steen repeatedly.

When he let Steen go, he told defendant to stay put as he

would be right back, and ran across the street to the

McDonald's.

Steen stood up and continued to argue, demanding

defendant identify the assailant, and threatening to falsely

accuse him instead. When defendant persisted in

demanding that Steen return his change, Steen allegedly

pulled him from the wheelchair, into the third lane of

traffic, and kicked him. Defendant grabbed Steen's foot,

wrestled him to the ground and began to punch him. Steen

got up and tried to “stomp” on defendant, who rolled

away on the bloody ground, thus explaining the presence

of Steen's blood on the back shoulder of his shirt.

According to defendant, the young man, knife in hand,

saw that Steen was attacking defendant a second time and

again came to his aid. This time Steen ran toward the

Valvoline station. The young man helped defendant into

his wheelchair, pushed him toward Marlton Pike, and

asked him to hold the knife, dropping it into his lap. He

fled in a car driven by an unidentified girl. Defendant

closed the knife, put it in his pocket, and proceeded on to

Marlton Pike, thinking “nothing of it” because he had no

idea he would be suspected of stabbing Steen.

In support of his account, defendant produced several

witnesses. First, Wade Tyler said he had been at the Hess

station on the date in question and heard defendant

arguing with Steen about his $50. Further, he saw a light-

skinned African–American young man engage in a

pushing match with the victim, saying words to the effect

of “Why don't you just give him his money.” Someone

then screamed “oh s—t, he stabbed him,” at which point

Tyler left the scene because he had outstanding warrants,

was driving illegally, and hated the Pennsauken police.

Tyler had four prior convictions, a 2006 third-degree using

false identification, N.J.S.A. 2C:21–2.1, a 1999 fourth-

degree falsifying records, N.J.S.A. 2C:21–4(a), a 1995

third-degree unlawful possession of a weapon, N.J.S.A.

2C:39–5, and a 1994 third-degree receiving stolen

property, N.J.S.A. 2C:20–7.

Defendant also called Polaski, who testified Steen initially

gave his name as Blaine D. Steen, an alias the victim

sometimes used. In contrast, Sampson, whom defendant

also called, said Steen gave his correct name. Sampson

spoke to three witnesses, Rosas, Walker, and a Steven

DeShields, who did not testify at trial, and each told him

defendant was wearing a gray, not a white, shirt.

Defendant called Gehring for the purpose of having him

say that the radio dispatch described the assailant as a

“black male wearing a gray shirt with dreadlocks and a

wheelchair.”

Defendant claimed that when he and the victim were

“confined” in the same unit approximately eighteen

months after the stabbing, Steen said he had informed

police that defendant was not the assailant, and that Steen

assured him that he would not testify against him at trial.

During this time, they played chess, reminisced about old

friends, and generally had a good time together.

Defendant presented Antonio Rodriguez and Luis Lopez

on the subject of Steen's “recantation.” Both had prior

convictions and had been in the “confined area” with

Steen and defendant. They corroborated defendant's

version of his discussions with Steen about the charges. In

fact, Rodriguez said he heard Steen ask defendant why he

was “still being incarcerated for a violent act.” Steen

allegedly told Rodriguez that defendant was not the person

who stabbed him and that he was suing McDonald's for

his injuries.

Lopez testified Steen did not appear fearful of defendant

and even played chess with him while confined. Lopez

also heard Steen stating that defendant was not his

assailant, and that he had not accused him of the crime.

Finally, defendant called several witnesses to testify as to

the victim's reputation for untruthfulness in the

community. Eric Bullock said he had smoked crack

cocaine with Steen, known on the streets as “Dougie the

Con Man,” and that he was considered a “flim-flam

artist,” although this remark was stricken. Samuel Pierson

reported he had smoked crack cocaine with Steen, and that

he was known to be untruthful. Ramon Rivera, who sold

oils and incense for defendant on the streets of Camden,

said Steen lived in abandoned houses and a trailer, and

that a lot of people did not like him because he was a thief.

Rivera, who resided with his father in a crack house, also

testified he often saw Steen and defendant at his father's

home “laughing, joking, [and] playing cards.” Bullock,

Pierson, and Rivera all had criminal histories.

State v. Small, No. A-3552-07T4, 2011 WL 2637161, at *1–5 (N.J. Super. Ct. App.

Div. July 7, 2011).

D. Grounds One and Two of the Petition

1. The Parties’ Arguments

In Grounds One and Two of his habeas petition, Petitioner asserts the trial

court denied his due process right to a fair trial by failing to inform Petitioner, who

was representing himself at the charge conference, of his right to a

passion/provocation jury charge. Petitioner alleged the victim took $50 from him to

go to the convenience store and failed to give him the correct change. In his brief,

Petitioner explains that he wrote a letter to the prosecutor on August 1, 2005,

indicating that Steen initiated the fight by throwing Petitioner out of his wheelchair,

kicking him, and that Steen falsely accusing Petitioner of stabbing him. This was

consistent with Petitioner’s testimony at trial. The court found that there was

sufficient evidence of a fistfight between Petitioner and Steen to permit Petitioner to

introduce a self-defense theory. Petitioner contends that if the facts supported a self-

defense charge, they also supported a passion/provocation charge. Specifically,

Petitioner’s version of events was that someone else attacked Steen outside the Hess

station, and then Steen dumped Petitioner out of his wheelchair on the highway and

started kicking him. The original attacker attacked Steen again, and then gave

Petitioner the knife to protect himself.

In response to Grounds One and Two of the petition, Respondents note

Petitioner first raised the issue of a passion/provocation charge on direct appeal.

The Appellate Division, viewing the evidence in the light most favorable to

Petitioner, found the victim’s alleged theft of $50 was not adequate provocation for

attempted manslaughter. Therefore, the trial court did not err in failing to sua sponte

give the jury a passion/provocation charge. Further, Respondents submit that this

claim rests purely on state law and is not cognizable in a federal habeas petition.

Recognizing, however, that Petitioner alleged the trial court’s failure to give the jury

instruction violated his right to due process, Respondents submit the

passion/provocation instruction was not appropriate where the defense strategy was

to deny that Petitioner stabbed the victim intentionally or otherwise. Even if

Petitioner had not testified, the disagreement over $50 was not adequate provocation

to defend attempted manslaughter.

2. Clearly Established Federal Law

“[Section 2254(d)(1) requires federal courts to ‘focu[s] on what a state court

knew and did,’ and to measure state-court decisions against [the Supreme] Court's

precedents as of ‘the time the state court renders its decision.’” Greene v. Fisher, 565

U.S. 34, 38 (2011) (quoting Cullen v. Pinholster, 563 U.S. 170, 182 (211) (quoting

Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003)). For habeas review, the last reasoned

state court decision on Grounds One and Two of the habeas petition is the July 7,

2011 Appellate Division Opinion on direct review.

The Court begins by identifying the applicable clearly established federal law.

The Supreme Court has held “the fact that [a jury] instruction was allegedly incorrect

under state law is not a basis for habeas relief.” Estelle v. McGuire, 502 U.S. 62, 71–72

(1991). In addressing due process challenges to jury instructions on habeas review,

“[t]he only question … is ‘whether the ailing instruction by itself so infected the

entire trial that the resulting conviction violates due process.’” Id. at 72 (quoting

Cupp v. Naughten, 414 U.S. 141, 147 (1973)). Also relevant to jury charges, “[t]he

Due Process Clause requires the prosecution to prove beyond a reasonable doubt all

of the elements included in the definition of the offense of which the defendant is

charged. Proof of the nonexistence of all affirmative defenses has never been

constitutionally required.” Patterson v. New York, 432 U.S. 197, 210 (1977).

Furthermore, a State can place the burden of proving an affirmative defense on the

defendant. Gilmore v. Taylor, 508 U.S. 333, 350 (1993) (citation omitted). In

noncapital cases, the Supreme Court has never determined that the Due Process

Clause requires states to charge juries on lesser-included offenses. See generally, Schad

v. Arizona, 501 U.S. 624 (1991) abrogation on other grounds recognized by Edwards v.

Vannoy, 141 S.Ct. 1547 (2021).

Applicable here, under New Jersey law, “when, … a defendant requests a

charge on passion/provocation manslaughter as a lesser-included offense of murder,

the trial court should instruct the jury on that form of manslaughter if an

examination of the record discloses that the evidence satisfies the rational-basis

standard-that is, that ‘it would not be idle to have the jury decide’ whether the

defendant had committed the lesser-included offense.’” State v. Mauricio, 568 A.2d

879, 886–87 (N.J. 1990) (citing State v. Crisantos, 508 A.2d 167 (N.J. 1986) (quoting

State v. Sinclair, 231 A.2d 565 (N.J. 1967)).

On Petitioner’s direct appeal, the Appellate Division held that a jury

instruction on passion/ provocation was not required by New Jersey state law

because no jury could reasonably have found adequate provocation. See, Small, No.

2011 WL 2637161, at *13. State law decisions are unreviewable under § 2254.

Because the Supreme Court has held the Due Process Clause does not require a State

to prove the nonexistence of an affirmative defense or to charge a jury on lesser-

included offenses in non-capital cases, Petitioner has failed to allege a cognizable

Due Process Claim based on the trial court’s failure to sua sponte give a

passion/provocation jury charge. Therefore, Grounds One and Two of the petition

are denied.

E. Ground Three of the Petition

1. The Parties’ Arguments

For Ground Three of his petition, Petitioner contends the trial court’s

withdrawal of the self-defense instruction deprived him of his best defense and

relieved the State of the burden to prove each element of the crime, in violation of his

Sixth Amendment right to a fair trial, and in violation of the Fourteenth Amendment

Due Process Clause. (Pet., Dkt. No. 1 at 26.)

Respondents submit the self-defense instruction was not appropriate because

Petitioner’s defense was that someone else stabbed the victim. (Answer, Dkt. No. 7

at 49-55.) The trial court only agreed to the self-defense instruction because

Petitioner had testified that he punched and beat Steen after Steen pulled Petitioner

out of his wheelchair. After charging the jury on self-defense, the trial court

corrected its instruction because Standby counsel explained self-defense was

inconsistent with Petitioner’s testimony that he did not stab the victim. The trial

court then informed the jury that it had been brought to the court’s attention that

Petitioner had testified to self-defense by hand-to-hand fighting, not the use of deadly

force. Thus, the court advised the jury to disregard any of the elements of the self-

defense charge pertaining to the use of deadly force. Respondents submit that the

Appellate Division’s denial of this claim was not contrary to or an unreasonable

application of clearly established federal law.

2. Analysis

The Appellate Division denied this claim on July 7, 2011. As discussed

above, the pertinent clearly established federal law on habeas challenges to jury

instructions is Estelle, 502 U.S. at 72. The Supreme Court explained that the only

issue on habeas review of an ambiguous jury charge “is ‘whether the ailing

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

due process.’” Id. (quoting Cupp, 414 U.S. at 147 (1973)). Here, Petitioner’s claim is

that the absence of a jury charge violated his right to due process.

Petitioner has not directed the Court to any factually similar Supreme Court

cases that would permit “contrary review” under § 2254(d)(1), nor can the Court find

any such precedent. Therefore, the Court turns to whether the Appellate Division’s

determination involved an unreasonable application of the due process standard for

“ailing jury instructions.”

The Appellate Division held:

Defendant also asked the court to charge self-defense. The

State objected on the basis of lack of notice and lack of

evidence. Despite the objection, the court gave the

instruction since defendant alleged that Steen was the

aggressor. The judge gave the justification self-defense

November 2006 Criminal Model Jury charge, including

the reference to “deadly force.” Standby counsel objected

to the instruction on defendant's behalf, asserting

defendant requested the instruction only as to punching

the victim and denied stabbing him. The judge therefore

reinstructed the jury—explaining that it had been brought

to his attention that he mistakenly included language

regarding deadly force. He clarified that the jury was to

consider the self-defense instruction only as to the

punching and hand-to-hand altercation defendant had

described. This correction was sufficient to clarify to the

jurors that self-defense related only to the fisticuffs, not to

the stabbing.

If defendant's objection is that the issuance of the self-

defense instruction was a mistake in its entirety, the

doctrine of invited error undercuts any such claim. A

disappointed litigant cannot argue on appeal that an error

was committed by the court when that party “urged the

lower court to adopt the proposition now alleged to be

error.” Brett v. Great Am. Recreation, 144 N.J. 479, 503,

677 A.2d 705 (1996); see also N.J. Div. of Youth &

Family Servs. v. M.C. III, 201 N.J. 328, 340, 990 A.2d

1097 (2010). The instruction was given, and then

corrected, at defendant's request.

In this case, in any event, the defense of self-defense was of

dubious provenance. The charge was not supported by the

version of events given by the three independent

eyewitnesses. Since the charge was not supported by the

evidence, the instruction telling the jury to disregard a

portion of it was clearly incapable of producing an unjust

result.

Small, 2011 WL 2637161, at *14.

Petitioner claims he was deprived of his best defense, self-defense. The

Appellate Division reasonably rejected this claim based on the testimony at trial.

According to the facts found by the Appellate Division on direct appeal, presumed

correct on habeas review, Petitioner testified that he argued with Steen, the victim,

after Steen stole the change from a $50 bill that Petitioner had given him to buy

something at a convenience store. Petitioner testified that another man interjected

himself into the argument between Petitioner and Steen. This unknown man and

Steen began punching each other, and the man pulled out a knife and stabbed Steen.

Then, the man left and said he would return. Petitioner and Steen began arguing

again, and Steen pulled Petitioner out of his wheelchair and started kicking him.

The original attacker returned and stabbed Steen again, then gave Petitioner the knife

to protect himself. The defense also put on several witnesses. Wade Tyler said he

saw this other man fighting with Steen and heard someone shout “he stabbed him.”

Several witnesses testified that Steen recanted his statement that Petitioner stabbed

him.

The Appellate Division reasonably found that a self-defense charge would

have been contrary to Petitioner’s defense. To be sure, a self-defense jury charge

would have undermined any possibility the jury may have credited Petitioner’s

testimony that someone else stabbed the victim. In addition, a self-defense charge

was not supported by the evidence. Therefore, Petitioner was not deprived of his

best defense. As the Appellate Division concluded, failure to give the charge “was

clearly incapable of producing an unjust result.” Therefore, the Appellate Division’s

determination of this issue was not contrary to nor an unreasonable application of

the Supreme Court’s decision in Estelle. Failure to give the self-defense charge did

not fatally infect the entire trial with unfairness. The Court denies Ground Three of

the petition.

F. Grounds Four and Six of the petition

1. The Parties’ Arguments

Grounds Four and Six of the petition are related. In Ground Four, Petitioner

asserts he was prejudiced by the trial court’s failure to question two jurors on the

prejudicial effect of observing Petitioner escorted by two officers in a private hallway

of the courthouse. (Pet., Dkt. No. 1 at 27.) In Ground Six, Petitioner contends the

trial court erred by failing to declare a mistrial based on this incident. (Id. at 29.) For

habeas relief, Petitioner relies on three Supreme Court cases, Estelle v. Williams, 425

U.S. 501 (1976), Holbrook v. Flynn, 475 U.S. 560 (1986), and Carey v. Musladin, 549

U.S. 70 (2006). (Petr’s Brief, Dkt. No. 1-1 at 14.)

Respondents oppose relief. (Answer, Dkt. No. 7 at 56-66.) First, the

Appellate Division found the incident was accidental. Second, the jurors were

forewarned Petitioner may be escorted to the disabled facilities by Sheriff’s officers

because he required assistance with his wheelchair. Third, the jurors already knew

Petitioner was in custody because he told them himself. Respondents submit that the

Appellate Division reasonably concluded the jurors’ exposure to the officers

escorting Petitioner in his wheelchair outside the courtroom did not present a

manifest injustice that required a mistrial.

2. Analysis

Petitioner relies on three cases, none of which are sufficiently similar to the

factual circumstances in this case to warrant “contrary to” review under § 2254(d)(1).

In Estelle v. Williams, the Court held that the State violates due process by compelling

an accused to stand trial before a jury while dressed in identifiable prison clothes.

425 U.S. 501, 512–13 (1976). In Holbrook v. Flynn, the Supreme Court determined

that deployment of security personnel in a courtroom during a criminal trial is not so

inherently prejudicial that it must be justified by “an essential state interest specific to

each trial.” 475 U.S. 560, 568–69 (1986). Instead, to determine whether a criminal

defendant was denied his due process right to a fair trial, courts must

look at the scene presented to jurors and determine

whether what they saw was so inherently prejudicial as to

pose an unacceptable threat to defendant's right to a fair

trial; if the challenged practice is not found inherently

prejudicial and if the defendant fails to show actual

prejudice, the inquiry is over.

Id. at 572. Finally, Petitioner relies on Carey v. Musladin, 549 U.S. 70 (2006). Carey is

inapplicable because it involved the question of whether “private-actor courtroom

conduct was so inherently prejudicial that it deprived a defendant of a fair trial.” Id.

at 76. This case involves courthouse security practices, having Sheriff’s officers

escort Petitioner to a handicapped accessible bathroom during breaks in his criminal

trial. Holbrook is the Supreme Court case that most closely resembles the facts

present here.

The highest reasoned state court determination of Grounds Four and Six of

the petition is that of the Appellate Division in July 2011, on direct appeal:

Defendant was not in handcuffs nor in any way restrained.

He was not wearing jail attire. Two jurors stopped and

watched while one sheriff's officer pushed defendant's

wheelchair and the other walked in front of him. When

defendant made his application to the trial judge, the

prosecutor responded by reminding the court that the jury

panel had been initially advised that defendant might have

to be escorted to the “disabled facilities” during breaks,

and that in any event defendant had told the jury that he

was incarcerated.

The encounter was accidental. The jurors had been

forewarned that defendant might be assisted by sheriff's

officers to the disabled facilities; defendant himself

informed the jury that he was in custody. The court's

decision denying the motion for a mistrial was certainly

warranted. It is an extraordinary remedy granted only to

prevent a manifest injustice. State v. Ribalta, 277

N.J.Super. 277, 291, 649 A.2d 862 (App. Div.1994), certif.

denied, 139 N.J. 442, 655 A.2d 444 (1995); State v.

Hubbard, 123 N.J.Super. 345, 351, 303 A.2d 87

(App.Div.), certif. denied, 63 N.J. 325, 307 A.2d 98

(1973).

Defendant contends that for the jury to see him escorted

while in a wheelchair is equivalent to seeing him in

shackles or other restraints. Factually, there is no

similarity. The encounter was fleeting and accidental. The

point does not warrant further discussion.

The Appellate Division reasonably applied Holbrook by considering what the

two jurors saw, and determining that it was not so inherently prejudicial as to deny

Petitioner his right to a fair trial. The presence of the Sheriff’s officers was described

to the jurors, not as a necessity to protect the public from Petitioner because he was

dangerous, but because he needed assistance with his wheelchair to get to the

handicapped accessible courtroom facilities. Even if the jurors were influenced by

seeing Petitioner in custody, Petitioner cannot show prejudice because he had

already told the jury he was in custody for years waiting for his trial. Therefore, the

Court denies Grounds Four and Six of the petition because the Appellate Division’s

determination was not an unreasonable application of clearly established federal law.

G. Ground Five of the Petition

In Ground Five of his petition, Petitioner claims “[t]he trial court erred, to

Defendant’s great prejudice, in admitting a remote prior conviction, and in refusing

to sanitize Defendant’s prior endangering conviction. (Pet., Dkt. No. 1 at 28.)

Specifically, Petitioner claims his 1990 offense was too remote in time to be relevant,

and his 1997 conviction for endangering the welfare of a child should have been

sanitized before it was admitted into evidence. (Petr’s Brief, Dkt. No. 1-1.)

Respondents assert that Ground Five of the petition presents a challenge to a state

evidentiary ruling that is not cognizable on habeas review. (Answer, Dkt. No. 7 at

67-70.)8

“[I]t is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions. In conducting habeas review, a federal court

is limited to deciding whether a conviction violated the Constitution, laws, or treaties

of the United States.” Estelle, 502 U.S. at 67–68. In his habeas petition, Petitioner

alleges he was prejudiced by the state court’s evidentiary ruling. Petitioner did not

state a federal claim in his habeas petition nor did he rely on a case discussing a

federal constitutional right. The Appellate Division determined this claim under

8 Respondents cite to the record of the trial court’s evidentiary rulings. On October 23,

2007, prior to trial, the trial court conducted a Sands hearing. (Trial Tr., Dkt. No. 7-59 at

25.) Petitioner had three prior convictions: (1) a March 2, 1990 conviction for aggravated

assault on a police officer for which he received four years in state prison; (2) a February 9,

1990 conviction for distribution of cocaine for which he received four years in state prison;

and (3) an April 1, 1997 Pennsylvania conviction for endangering the welfare of a child for

which he received eleven and a half months to fifty-nine months. (Id. at 25-26.) Although

the court made earlier rulings, it revisited the admissibility of Petitioner’s prior crimes

during trial. (Trial Tr., Dkt. No. 7-69 at 75.) The court ruled the aggravated assault charge

inadmissible, but the 1990 possession and 1997 endangering convictions were admissible as

a “series of crimes,” and there was no need to sanitize the 1997 crime because it was not

similar. (Id. at 77-78.)

state law. Small, 2011 WL 2637161, at *8-9. Therefore, Ground Five fails to present

a cognizable habeas claim.

H. Ground Seven of the Petition

1. The Parties’ Arguments

Petitioner asserts in Ground Seven of his petition that the in-court

identifications by the State’s witnesses were tainted. (Pet., Dkt. No. 1 at 30.) During

trial preparation, two or three weeks before trial, the prosecutor met individually

with Witnesses Evans, Walker and Rosas and asked if they could describe Petitioner.

After they did, the prosecutor showed them Petitioner’s photograph. (Petr’s Brief,

Dkt. No. 1-1 at 15-16.) Petitioner submits the identifications should have been

excluded because they were impermissibly suggestive and unreliable. Respondents

oppose relief because the trial court held a pretrial Wade hearing and properly found

the identifications were reliable, and that the brief display of Petitioner’s photograph

during pretrial preparation did not affect the reliability of the earlier identifications.

(Answer, Dkt. No. 7 at 71-77.) Moreover, the evidence against Petitioner was

overwhelming, so no prejudice could have resulted from unreliable identifications by

the witnesses.

2. Analysis

The highest reasoned state court determination of this claim is the July 7, 2011

opinion by the Appellate Division on direct appeal.

By way of introduction, we note that prior to trial,

defendant, against the advice of standby counsel, asked the

court not to conduct a Wade hearing. Defendant said he

did not want the court to suppress the show-up

identifications because at trial his strategy would be to

attack the eyewitnesses' testimony as “inaccurate.”

Nonetheless, the prosecutor requested that a Wade hearing

be conducted because defendant was challenging the

eyewitness identifications and because show-ups are

considered inherently suggestive. After the hearing, the

court found that the identifications were sufficiently

reliable for a number of reasons. The identifications were

made by the eyewitnesses independently of each other,

immediately after the crime, defendant matched the

“relatively unique description” of the assailant, the

eyewitnesses had ample opportunity to observe, and a

clear view of, the incident, demonstrated a high level of

certainty, and defendant was apprehended in close

proximity to the scene wearing bloody clothing and

carrying a knife bearing the victim's DNA.

Defendant urges us to find that the court erred in denying

his application to suppress eyewitnesses' in-court

identifications, and for a mistrial, as a result of the

prosecutor showing the eyewitnesses his photograph

during trial preparation. While meeting with the

prosecutor individually about two or three weeks before

trial, Evans, Walker, and Rosas were asked if they could

describe defendant. After they indicated they could, the

prosecutor showed them defendant's photograph. They

uniformly denied that their in-court identification was

influenced by seeing this photo prior to trial. The

prosecutor represented that the photo was displayed

during routine trial preparation, not intended in any way

to influence the witnesses.

The court denied the motion for a mistrial because the

display of one photo of defendant to the eyewitnesses, if

anything, went only to the weight of their in-court

identifications. Nothing about the display of the photo in

this case is “so impermissibly suggestive as to give rise to a

very substantial likelihood of irreparable

misidentification.” Simmons v. United States, 390 U.S.

377, 384, 88 S.Ct. 967, 971, 19 L. Ed.2d 1247, 1253

(1968); State v. Herrera, 187 N.J. 493, 502, 902 A.2d 177

(2006).

The relevant clearly established Supreme Court precedent is Simmons v. U.S.,

390 U.S. 377 (1968) and its progeny. In Simmons, the Court held:

each case must be considered on its own facts, and that

convictions based on eyewitness identification at trial

following a pretrial identification by photograph will be set

aside on that ground only if the photographic

identification procedure was so impermissibly suggestive

as to give rise to a very substantial likelihood of irreparable

misidentification.

Id. at 384. Later, in Manson v. Brathwaite, the Supreme Court considered “whether

the Due Process Clause of the Fourteenth Amendment compels the exclusion, in a

state criminal trial, apart from any consideration of reliability, of pretrial

identification evidence obtained by a police procedure that was both suggestive and

unnecessary.” 432 U.S. 98, 99 (1977). The Court held that exclusion was not

compelled without consideration of reliability of the identification, considering

factors laid out in Neil v. Biggers, 409 U.S. 188 (1972), including:

the opportunity of the witness to view the criminal at the

time of the crime, the witness' degree of attention, the

accuracy of his prior description of the criminal, the level

of certainty demonstrated at the confrontation, and the

time between the crime and the confrontation. Against

these factors is to be weighed the corrupting effect of the

suggestive identification itself.

Id. at 114. Ultimately, a court must determine whether “under all the circumstances

of th[e] case there is ‘a very substantial likelihood of irreparable misidentification.’”

Id. at 116 (quoting Simmons, 390 U.S. at 384).

The question for this Court is whether the Appellate Division reasonably

concluded, based on all the circumstances of the case, that there was not a substantial

likelihood of misidentification caused by the prosecutor showing the witnesses

Petitioner’s photograph during trial preparation. The Appellate Division noted

Witnesses Evans, Walker and Rosas separately identified defendant immediately

after observing a crime where they had a clear view and an ample opportunity to

observe the suspect, whose appearance was unique.9 Adding to the reliability of the

identifications, Defendant was apprehended in close proximity to the scene, and he

was wearing bloody clothing and carrying a knife, later found to bear the victim's

DNA.10 The Appellate Division found that the eyewitnesses “uniformly denied that

their in-court identification was influenced by seeing this photo prior to trial[.]”

Small, 2011 WL 2637161, at *10. In making their credibility determinations, the jury

was permitted to consider whether the prosecutor’s conduct affected the witnesses’

identifications of the defendant. The jury also heard evidence that Steen knew

Petitioner, and identified him as his assailant. The totality of the circumstances

support the Appellate Division’s conclusion that there was sufficient indicia of

9 The 9-1-1 dispatcher described the suspect as a black male with dreadlocks in a wheelchair,

wearing a gray t-shirt, cream colored pants, fleeing on Marlton Pike towards Camden.

(Wade Hearing Tr., Dkt. No. 7-56 at 15.)

10 Officer Sands was involved in Petitioner’s apprehension immediately after the crime, and

he saw Officer Gehring remove a knife from Petitioner’s pocket, just prior to the witnesses’

individual “show-up” identifications. (Wade Hearing Tr., Dkt. No. 7-56 at 16) (spelling of

“Gehring” corrected in the Appellate Division’s Opinion).

reliability of the witnesses’ identifications. Therefore, Ground Seven of the petition

is denied.

I. Ground Eight of the Petition

1. The Parties’ Arguments

Defendant represented himself at trial. He alleges that he was prejudiced by

the trial court’s ruling that he did not have a constitutional right to unlimited access

to the inmate law library in the county jail where he was confined. (Pet., Dkt. No. 1

at 31-32; Petr’s Brief, Dkt. No. 1-1 at 12-13.) Petitioner spent time in disciplinary

confinement as the result of a jail infraction. While in disciplinary confinement, the

county jail administrators did not permit Petitioner access to the law library. He was

able to request legal materials from the librarian. Petitioner asserts that the state

court unreasonably applied the Supreme Court decision in Lewis v. Casey, 518 U.S.

342 (1996), which recognized a prisoner’s First Amendment right of access to the

courts.

Respondents submit that Petitioner failed to show that the state court’s ruling

was contrary to or involved an unreasonable application of federal law or that the

state court made an unreasonable determination of the facts. (Answer, Dkt. No. 7 at

78-87.) The Supreme Court has not recognized a free standing right to access a law

library or legal assistance. Instead, to establish denial of the right of access to courts,

an inmate must demonstrate his lack of access to legal materials or assistance

actually hindered his efforts to pursue a legal claim. Petitioner only vaguely asserted

that he was not given adequate time to prepare himself for trial.

2. Analysis

The relevant Supreme Court holding concerning the applicability of the First

Amendment right of access to a law library by an inmate who is representing himself

in a criminal trial is Kane v. Garcia Espitia, 546 U.S. 9, 10 (2005). The Court held, in

pertinent part:

it is clear that Faretta11 does not, as § 2254(d)(1) requires,

“clearly establis[h]” the law library access right. In fact,

Faretta says nothing about any specific legal aid that the

State owes a pro se criminal defendant. The Bribiesca

court12 and the court below therefore erred in holding,

based on Faretta, that a violation of a law library access

right is a basis for federal habeas relief.

Therefore, Ground Eight of the petition fails to state a cognizable habeas claim. For

the sake of completeness, however, the Court will address reasonableness of the

Appellate Division’s application of the facts to the Supreme Court’s decision in

Lewis.

The highest reasoned state court determination of this claim is the July 7, 2011

Opinion of the Appellate Division on direct appeal.

Pre-trial, defendant filed a motion for direct access to the

inmate law library for four hours per day, three days per

week. The application was denied, and defendant now

contends this too was reversible error. Defendant was not

permitted to go to the inmate law library because he was in

isolation as a result of an infraction committed some two

or three weeks prior. The court, sua sponte, asked the

county to participate in the hearing on defendant's

application.

11 Faretta v. California, 422 U.S. 806 (1975).

12 Bribiesca v. Galaza, 215 F.3d 2015 (9th Cir. 2000).

County counsel explained that defendant was a security

risk with an extensive disciplinary record, including thirty-

nine separate charges for various infractions of jail rules

and policies. In fact, defendant had recently been placed in

isolation for assaulting another inmate, but would be

released into administrative segregation in twenty-five

days. The county jail did not provide access to the law

library to inmates who were in isolation or administrative

segregation, but inmates could, despite this classification,

request material from the librarian. Defendant also had

available research conducted by his standby counsel. In

the relevant time span, despite his lack of direct access,

defendant filed numerous pretrial motions.

Furthermore, county counsel represented that the jail

warden agreed that once defendant was released from

isolation, if he remained infraction-free, he would be

granted access to the library one hour per day, three times

per week, the same as every other inmate.

The court determined that a defendant who chooses to

represent himself does not thereby acquire a constitutional

right to unlimited access to an inmate law library. Since

the county agreed to extend library privileges to defendant

the same as any other inmate once he was released from

isolation, there was no necessity for defendant to be

granted additional relief. In light of defendant's indirect

access to materials through standby counsel and upon

request to the law librarian, nothing further was required.

During a scheduling conference some months later,

standby counsel raised the subject as defendant was still in

segregation. He was not permitted to go to the law library,

but continued to be allowed to request materials and had

them available through a standby counsel. Defendant

conceded that he had “tons of paperwork in his cell.” As a

result, the court instructed counsel to supply defendant

with his own copy of the New Jersey Court Rules and the

Rules of Evidence. But because defendant continued in

isolation, presumably as a result of further disciplinary

infractions, no further relief was granted. As the court said,

defendant had the keys to the library. If he stopped

committing disciplinary infractions, he would then acquire

direct access.

Defendant takes the position that, even though the

Supreme Court has not recognized a pro se defendant's

federal constitutional right to direct access to the law

library, we should interpret our State Constitution more

broadly and find that such a right exists. We decline the

invitation as in this case, defendant's own conduct created

the limitation and, in actuality, any materials he needed

were available through standby counsel and the inmate

law librarian in addition to retaining materials in his cell,

including the Court Rules and Rules of Evidence.

Defendant does not explain the additional benefit he

would have gained from direct access given these other

resources. Instead, he merely claims he was denied “an

adequate opportunity to prepare,” an allegation not

supported by the record.

Small, 2011 WL 2637161, at *11–12.

In Lewis, the Supreme Court held an inmate must demonstrate that the

shortcomings in access to the law library or legal assistance hindered his efforts to

pursue a legal claim. Petitioner only vaguely asserts that he had inadequate time to

prepare for trial. The Appellate Division’s Opinion involves a reasonable

application of Lewis because the court considered that Petitioner had access to legal

research without visiting the law library; he could have legal materials sent to his cell

by the inmate law librarian or Standby counsel. The Appellate Division also

reasonably applied Lewis when it determined Petitioner failed to describe a specific

legal claim that likely would have been successful if he had greater access to the law

library. Therefore, Ground Eight of the petition is denied.

J. Ground Nine of the Petition

1. The Parties’ Arguments

In Ground Nine of the Petition, Petitioner claims the trial judge erred by

refusing to recuse himself after he learned that Petitioner was involved in an

altercation with a relative of the judge’s staff. (Pet. Dkt. No. 1 at 33.) Respondents

describe the occurrence and conclude that Appellate Division reasonably rejected the

claim as meritless. (Answer, Dkt. No. 7 at 88-91.) On October 23, 2007, the trial

court stated on the record that he had learned Petitioner had been involved in

altercation in the jail with a court staff member’s sister. (Trial Tr., Dkt. No. 7-59 at

47.) The trial court described the staff member as someone who worked in “the back

office” and had “no role in the adjudication process other than scheduling[,]” which

had already been completed. (Id. at 47-48.) The staff member was one of ten

employees assigned to the judge’s courtroom, and the trial court had no relationship

with her, and knew nothing about her family. (Id. at 48-49.)

Petitioner asked the trial court to recuse himself. (Id. at 49-50.) The trial court

denied the recusal motion because, although the issue was brought to his attention,

he was not familiar with what had actually happened, he did not work closely with

the court staff member or have a personal relationship with her or any member of her

family. (Id. at 52-53.) The trial court stated, “[i]f I thought that there were any

possibility of this having any impact on me I would absolutely recuse myself. But,

there is no basis.” (Id. at 53.)

2. Analysis

The Supreme Court has long acknowledged that “a ‘fair trial in a fair tribunal

is a basic requirement of due process.’” Withrow v. Larkin, 421 U.S. 35, 46 (1975)

(quoting In re Murchison, 349 U.S. 133, 136 (1955)). Thus, “various situations have

been identified in which experience teaches that the probability of actual bias on the

part of the judge or decisionmaker is too high to be constitutionally tolerable.” Id. at

47. The due process inquiry is objective, “whether the average judge in his position

is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’”

Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 881 (2009).

The question on habeas review is whether the Appellate Division’s summary

dismissal of this claim involves an unreasonable application of the objective inquiry

described in Caperton. Here, the trial court did not work closely with the court staff

member or have any personal relationship with her, knew nothing of her sister, and

disclosed the incident, stating there was no possibility the information he acquired

would have any impact on him. The record supports the reasonableness of the

Appellate Division’s conclusion that Petitioner’s claim of prejudicial bias was

without merit. Thus, Ground Nine of the petition is denied.

K. Ground Ten of the Petition

In Ground Ten of his petition, Petitioner alleges the trial court imposed an

excessive sentence by improperly determining and weighing the aggravating and

mitigating factors, and by imposing an extended term under the New Jersey

persistent offender statute. (Pet., Dkt. No. 1 at 34.) Respondents oppose relief

because challenges to sentences under state law are not cognizable on habeas review.

(Answer, Dkt. No. 7 at 92-93.) Ground Ten does not involve a question of federal

law. Therefore, it is not cognizable on habeas review. See, Wainwright v. Sykes, 433

U.S. 72, 81 (1977) (stating federal habeas review of state substantive law is barred).

L. Grounds Twelve and Thirteen

1. The Parties’ Arguments

Ground Eleven of the petition involves the cumulative effect of trial court

errors and will be addressed as the final claim. Grounds Twelve and Thirteen,

reproduced below, are related:

Ground Twelve: Defendant’s prior appellate and post-

conviction counsel were ineffective in failing to raise the

argument that defendant did not knowingly and

intelligently waive his right to counsel, in light of the trial

court’s misinforming Defendant as to his maximum jail

exposure.

[supporting facts] Petitioner’s post-conviction attorneys

were ineffective because neither argued that defendant’s

waiver of his right to counsel was not knowing and

intelligent, because he was misinformed as to the length of

the potential sentence. This was a misstatement, as

defendant was extended-term eligible. See Point I of

Appellant’s Brief on behalf of Defendant filed in

PCR appeal, incorporated here by reference.

Ground Thirteen: Defendant’s subsequent ambiguous

comments regarding his maximum sentencing exposure

negated the trial court’s requirement that Defendant be

informed as to his maximum exposure before waiving his

right to counsel and being able to proceed pro se at trial.

[supporting facts] Defendant was misinformed as to the

length of his potential sentence – he was extended-term

eligible; the misinformation provided to defendant was

reflected in the state court record including defendant’s

own statements, vitiating the required Faretta waiver

requirements.

(Pet., Dkt. No. 1 at 36-28.) In his memorandum of law in support of Grounds

Twelve and Thirteen, Petitioner argues that the Appellate Division erred by applying

a harmless error analysis to the Faretta waiver of counsel requirements. (Petr’s Brief,

Dkt. No. 1-1 at 9-12.) Petitioner relies primarily on United States v.- Erskine, 355 F.3d

1161, 1167 (9th Cir. 2004) and U.S. v. Mohawk, 20 F.3d 1480, 1484 (9th Cir. 1994).

Respondents submit that Ground Thirteen is unexhausted and procedurally

defaulted because it was raised for the first time in Petitioner’s habeas petition.

(Answer, Dkt. No. 7 at 41-42.) Concerning Ground Twelve, Respondents argue that

the Appellate Division, on PCR review, reasonably applied the Strickland standard

for ineffective assistance of counsel claims. (Id. at 96-107.) Respondents contend the

Appellate Division properly found that Petitioner was fully aware of the possibility

that he could spend the rest of his life in prison, and that his appellate counsel cannot

be faulted for failing to raise a claim on appeal that would have failed.

2. Analysis

As an initial matter, the Court construes Ground Thirteen as a supplement to

Ground Twelve. Petitioner raised Ground Twelve, for the first time, on appeal from

denial of his PCR petition. (Dkt. No. 7-40 at 28-35.) Thus, the claim was not

exhausted in the PCR Court. Unexhausted claims, however, may be denied on the

merits, if appropriate. § 2254(b)(2). Because Ground Twelve, as supplemented by

Ground Thirteen, is without merit, the Court will address the substance of the

claims.

Petitioner brings ineffective assistance of counsel claims against his appellate

counsel and PCR counsel for failing to challenge the knowing and voluntary nature

of his waiver of the right to counsel at trial. There is no constitutional right to

effective assistance of PCR counsel. Coleman v. Thompson, 501 U.S. 722, 752 (1991)

(citing Pennsylvania v. Finley, 481 U.S. 551 (1987); Murray v. Giarratano, 492 U.S. 1

(1989) (applying the rule to capital cases)). There is, however, a constitutional right

to appellate counsel, described by the Supreme Court in Jones v. Barnes as follows:

This Court, in holding that a State must provide counsel

for an indigent appellant on his first appeal as of right,

recognized the superior ability of trained counsel in the

“examination into the record, research of the law, and

marshalling of arguments on [the appellant's] behalf,”

Douglas v. California, 372 U.S., at 358, 83 S.Ct., at 817….

Experienced advocates since time beyond memory have

emphasized the importance of winnowing out weaker

arguments on appeal and focusing on one central issue if

possible, or at most on a few key issues.

There can hardly be any question about the importance of

having the appellate advocate examine the record with a

view to selecting the most promising issues for review. . .

.For judges to second-guess reasonable professional

judgments and impose on appointed counsel a duty to

raise every “colorable” claim suggested by a client would

disserve the very goal of vigorous and effective advocacy

that underlies Anders. Nothing in the Constitution or our

interpretation of that document requires such a standard.

463 U.S. 745, 751–54 (1983).

To assess the performance of appellate counsel, we apply

the two-prong test set forth in Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See

United States v. Cross, 308 F.3d 308, 315 n.12 (3d Cir.

2002). Under Strickland, a petitioner must first establish

that counsel's performance “fell below an objective

standard of reasonableness.” 466 U.S. at 688, 104 S.Ct.

2052. In making this determination, Strickland cautioned

that courts should be “highly deferential” when assessing

counsel's performance and requires courts to “indulge a

strong presumption that counsel's conduct falls within the

wide range of reasonable professional assistance.” Id. at

689, 104 S.Ct. 2052. Second, a petitioner must show that

he was prejudiced by counsel's deficient performance,

meaning that “there is a reasonable probability that, but

for counsel's unprofessional errors, the result of the

proceeding would have been different.” Id. at 694, 104

S.Ct. 2052.

United States v. Scripps, 961 F.3d 626, 632 (3d Cir. 2020). Thus, the issue is whether

the Appellate Division’s opinion denying Petitioner’s ineffective assistance of

counsel claim involved an unreasonable application of the Strickland standard of

review. Specifically, whether appellate counsel’s failure to challenge Petitioner’s

waiver of his right to counsel involved constitutionally deficient performance, and if

so, has Petitioner established that he was prejudiced.

The Supreme Court’s decision in Faretta v. California governs a criminal

defendant’s right self-representation. The Faretta Court held,

[w]hen an accused manages his own defense, he

relinquishes, as a purely factual matter, many of the

traditional benefits associated with the right to counsel.

For this reason, in order to represent himself, the accused

must ‘knowingly and intelligently’ forgo those relinquished

benefits.

422 U.S. 806, 835 (1975). It is the trial court’s duty to determine “whether there is

an intelligent and competent waiver by the accused.” Glasser v. United States, 315

U.S. 60, 71 (1942)). “Waivers of constitutional rights not only must be voluntary but

must be knowing, intelligent acts done with sufficient awareness of the relevant

circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748

(1970)). The trial court must rigorously convey the pitfalls of proceeding to trial

without counsel. Iowa v. Tovar, 541 U.S. 77, 89 (2004) (citing Patterson v. Illinois, 487

U.S. 285, 108 (1988)).

“[T]he law ordinarily considers a waiver knowing,

intelligent, and sufficiently aware if the defendant fully

understands the nature of the right and how it would likely

apply in general in the circumstances—even though the

defendant may not know the specific detailed

consequences of invoking it.” United States v. Ruiz, 536

U.S. 622, 629, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002)

(emphasis in original). We similarly observed in Patterson:

“If [the defendant] ... lacked a full and complete

appreciation of all of the consequences flowing from his

waiver, it does not defeat the State's showing that the

information it provided to him satisfied the constitutional

minimum.” 487 U.S., at 294, 108 S.Ct. 2389 (internal

quotation marks omitted).

Tovar, 541 U.S. at 92.

The Appellate Division reviewed the PCR court’s denial of this claim.

Defendant Robert Small represented himself during the

jury trial that resulted in his convictions for first-degree

attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a) (count

one); second-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(1) (count two); third-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(2) (count three); third-degree

possession of a weapon for an unlawful purpose, N.J.S.A.

2C:39-4(d) (count four); and fourth-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(d) (count five).

On January 25, 2008, defendant was sentenced as a

persistent offender, N.J.S.A. 2C:44-3(a), to an aggregate

thirty-five year term of imprisonment subject to the No

Early Release Act, N.J.S.A. 2C:43-7.2(a).

. . .

Of relevance to this decision is a misstatement by the

prosecutor, concurred with by defense counsel during the

argument on defendant's motion for self-representation.

Initially, the court advised defendant that if convicted, he

could be sentenced to seventy-eight years with forty-two

and a half years of parole ineligibility. The prosecutor

interrupted and said defendant was not eligible for

extended term sentencing under the persistent offender

statute, because he may have been only nineteen-years-old

when one of the predicate offenses was committed.

The judge then changed course, and advised defendant his

exposure was twenty years for the attempted murder,

twenty years for armed robbery, and ten years for

aggravated assault, all subject to NERA. Later in the

hearing, the judge asked defendant to state his sentence

potential. Defendant replied, “[twenty] years for attempted

murder, [twenty] years for ... armed robbery, [ten] years

for ... aggravated assault, ... [five] years for ... possession of

a weapon....” Defendant's motion was granted.

Some six months later, defendant's standby counsel,

during a pretrial proceeding referred to the fact that if

found to be a persistent offender, for which defendant

“qualifies technically[,]” he could be sentenced to life,

eighty-five percent of which would be served without

parole. A few minutes later, counsel repeated that

defendant could be sentenced to life.

Prior to trial, on several occasions, the judge asked

defendant to confirm that he wished to continue to

represent himself. Defendant reiterated his intent to do so

in the strongest of terms. At one point, in pretrial hearings,

the judge said to defendant “[t]he odds are you are going

to go to jail for the rest of your life,” to which defendant

responded, “[c]orrect.” Twice in that same proceeding,

defendant referred to his potential maximum sentence as

“a hundred years.”

. . .

It is well established that in order for a defendant to obtain

relief based on ineffective assistance of counsel, he must

demonstrate not only the particular manner in which

counsel's performance was deficient, but also that the

deficiency prejudiced his right to a fair trial. Strickland v.

Washington, 466 U.S. 668, 687 (1984). We are persuaded

that the alleged deficiencies here clearly fail to meet either

the performance or prejudice prongs of the Strickland test.

Defendant has not demonstrated any deficiency on the

part of appellate or PCR counsel.

Defendant claims his appeal and PCR attorneys were

ineffective because neither argued that his waiver of his

right to counsel was not knowing and intelligent, because

he was misinformed as to the length of any potential

sentence. Although we agree that there was a

misstatement, as defendant was extended-term eligible, we

do not agree that he did not know the risks of proceeding

pro se. This defendant was fully aware, as documented in

the record, that he could spend the rest of his natural days

in prison if convicted. Not only did the judge say it to him,

defendant said it himself. Counsel cannot be faulted for

failing to make arguments that would have failed. See

State v. DiFrisco, 174 N.J. 195, 236 (2002). Defendant

knew the length of imprisonment he faced and was

adamant that he wanted to represent himself.

. . .

Neither point on appeal satisfies the first prong of

Strickland. Neither point satisfies the second.

State v. Small, No. A-3040-17T1, 2019 WL 2871077, at *1–3 (N.J. Super. Ct. App.

Div. July 3, 2019).

Grounds Twelve and Thirteen of the petition fail on habeas review for two

reasons. First, the habeas standard of review places a burden on the petitioner to

establish that the state court’s determination was contrary to or involved an

unreasonable application of clearly established federal law, defined as the holding of

a Supreme Court decision at the time of the relevant state court decision. Therefore,

Petitioner’s reliance on Ninth Circuit cases, United States v. Erskine, 355 F.3d 1161,

1167 (9th Cir. 2004)13 and U.S. v. Mohawk, 20 F.3d 1480, 1484 (9th Cir. 1994)14

stating that failure to comply with the Faretta waiver requirements is per se

prejudicial, does not provide the correct standard for habeas review.

Second, under the Strickland standard for habeas review of an ineffective

assistance of counsel claim, appellate counsel is not required to raise every colorable

claim on direct appeal. Smith v. Robbins, 528 U.S. 259, 288 (2000) (citing Jones, 463

U.S. at 754). The record establishes that, at an early pretrial status conference, the

trial court initially went along with the prosecutor’s misstatement that Petitioner was

not extended term eligible. (Status Conf. Tr., 7-51 at 10-13.) Any harm from this

13 In Erskine, unlike here, the record showed the defendant was not aware of his maximum

sentence exposure at any point prior to or during trial, or even at sentencing. Erskine, 355

F.3d at 1165. Erskine was sentenced at twice the length of time he had been led to believe

was the maximum allowed. Id. Here, Petitioner was sentenced to a total prison term of 35

years, which is less than the 55 years (assuming consecutive sentences) he had initially been

led to believe; although this was later corrected by Standby counsel, who informed

Petitioner and the court that Petitioner was extended term eligible.

14 In Mohawk, there was no contemporaneous record of the Faretta waiver colloquy with the

court. 20 F.3d at 1484. Thus, the appellate court had to assume the trial court “wholly

failed to discuss the question of waiver” with the defendant, and reversal of the conviction

was required. Id.

misstatement was cured at a June 12, 2007 motion hearing, when Standby counsel

noted that Petitioner technically qualified for the persistent offender statute, and this

would likely result in a life sentence (Mot. Tr., Dkt. No. 7-54 at 4-5); and reiterated

when the trial court advised Petitioner “[t]he odds are you are going to go to jail for

the rest of your life,” and Petitioner responded “correct.” (Trial Tr., Dkt. No. 7-59

at 6.) In view of this colloquy, and all of the repeated warnings and advice of the

trial court against self-representation (Status Conf. Tr., Dkt. No. 7-51), appellate

counsel exercised his professional judgment by not raising this claim on appeal.

Therefore, the Appellate Division’s rejection of his claim did not involve an

unreasonable application of the Strickland standard for ineffective assistance of

counsel claims.

M. Ground Eleven of the Petition

In Ground Eleven of the petition, Petitioner asserts that he was denied due

process by the cumulative errors of the trial court. Because this Court has found no

errors by the trial court, this claim fails.

III. CERTFICATE OF APPEALABILITY

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. 28 U.S.C. § 2253(c)(1). 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, 537 U.S. at 327.

For the reasons discussed above, reasonable jurists would not find denial of the

habeas petition debatable. Accordingly, no certificate of appealability shall issue.

IV. CONCLUSION

Petitioner has not established his burden to show the state courts Therefore, the

Court will deny the habeas petition, and no certification of appealability shall issue.

An appropriate Order follows.

Date: July 6, 2023

s/Renée Marie Bumb

RENÉE MARIE BUMB

Chief United States District Judge