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

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ABDIEL F. AVILA,

Civil Action

Petitioner, No. 18-9422 (NLH)

v.

OPINION

THE ATTORNEY GENERAL OF

THE STATE OF NEW JERSEY,

et al.,

Respondents.

APPEARANCES:

Abdiel F. Avila

788891C

New Jersey State Prison

PO Box 861

Trenton, NJ 08625

Petitioner pro se

Grace C. MacAulay, Camden County Prosecutor

Jason Magid, Assistant Prosecutor

Office of the County Prosecutor

200 Federal Street

Camden, NJ 08103

Attorneys for Respondent

HILLMAN, District Judge

I. INTRODUCTION

Abdiel F. Avila, a state prisoner confined to New Jersey

State Prison, is proceeding on an Amended Petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. ECF Nos. 102-03.1

He also has two pending motions for reconsideration, ECF Nos. 93

& 107.

For the reasons stated herein, the Court will deny the

Amended Petition in part and dismiss it in part as procedurally

defaulted. The Court will deny the motions for reconsideration.

No certificate of appealability shall issue.

II. BACKGROUND

The Court has recited the facts of this case in other

opinions in this matter. See, e.g., ECF No. 89 at 2-6. The

Court adopts in full, but will not reproduce here, the facts as

set forth by the New Jersey Superior Court Appellate Division

(“Appellate Division”) in their opinion denying Petitioner’s

direct appeal. State v. Avila, No. A-5729-08T3, 2011 WL

1466299, at *1-5 (N.J. Super. Ct. App. Div. Apr. 18, 2011) (per

curiam) (“Avila I”).2 The Court affords the state court’s

factual determinations the appropriate deference, 28 U.S.C. §

2254(e)(1).

1 The Court cites to redacted versions of the amended petition.

Unredacted versions are filed at Docket Entries 10 & 11.

2 The Appellate Division adopted this statement of facts in their

opinion affirming the denial of Petitioner’s postconviction

relief (“PCR”) petition. State v. Avila, No. A-2598-14T1, 2016

WL 6804414 (N.J. Super. Ct. App. Div. Nov. 17, 2016) (“Avila

II”).

Petitioner “was charged in a four-count indictment with

offenses committed against his stepdaughter, C.H., when she was

thirteen and fourteen years old.” Avila I, 2011 WL 1466299, at

*1. A grand jury charged him with two counts of first-degree

aggravated sexual assault, N.J.S.A 2C:14-2(a)(2)(a), and two

counts of second-degree endangering the welfare of a child,

N.J.S.A. 2C:24–4(a). ECF No. 106-3 at 1. At trial, Petitioner

denied any of the “incidents ever occurred. The defense

attacked C.H.’s credibility, emphasizing that she should not be

believed because, by her account of the events, she did not

disclose their occurrence for many months.” Avila I, 2011 WL

1466299, at *5. Petitioner did not testify at trial or present

witnesses on his behalf. Id.

The jury convicted Petitioner on all counts. ECF No. 106-3

at 1. The trial court sentenced Petitioner “to an aggregate

term of ninety-five years in prison, subject to the No Early

Release Act (NERA), N.J.S.A. 2C:43–7.2.” Avila II, 2016 WL

6804414, at *1.

Petitioner appealed to the Appellate Division, who affirmed

Petitioner’s convictions and sentence on April 18, 2011. Avila

I, 2011 WL 1466299. The New Jersey Supreme Court denied

certification on October 13, 2011. State v. Avila, 29 A.3d 741

(N.J. 2011) (Table).

Petitioner filed a PCR petition in November 2011. ECF No.

106-5. He then subsequently filed an amended PCR petition. ECF

No. 106-6. On October 15, 2014, the PCR court denied

Petitioner’s request for PCR relief without an evidentiary

hearing. See ECF No. 111-14; 9T.3 Petitioner then filed a

motion for reconsideration on October 23, 2014, ECF No. 23-15,

which the PCR court denied on February 10, 2015, ECF No. 111-16.

Petitioner appealed. See ECF Nos. 111-17 & -18.

On November 17, 2016, the Appellate Division affirmed the

denial of Petitioner’s PCR petition. Avila II, 2016 WL 6804414.

On March 7, 2017, the New Jersey Supreme Court denied

certification. State v. Avila, 161 A.3d 766 (N.J. 2017)

(Table).

3 1T = Transcript of Motion, dated November 17, 2008; ECF No.

112-61.

2T = Transcript of Pre-Trial Hearing, dated March 16, 2009; ECF

No. 112-62.

3T = Transcript of Trial Proceedings, dated March 17, 2009; ECF

No. 112-63.

4T = Transcript of Trial Proceedings, dated March 18, 2009; ECF

No. 112-64.

5T = Transcript of Trial Proceedings, dated March 19, 2009; ECF

No. 112-65.

6T = Transcript of Trial Proceedings, dated March 24, 2009; ECF

No. 112-66.

7T = Transcript of Trial Proceedings, dated March 25, 2009; ECF

No. 112-67.

8T = Transcript of Sentencing, dated June 25, 2009; ECF No. 112-

68.

9T = Transcript of PCR Hearing, dated October 15, 2014; ECF No.

112-69.

10T = Transcript of Motion for Reconsideration, dated February

9, 2015; ECF No. 112-70.

II. LEGAL STANDARD

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

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

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

the ground that he is in custody in violation of the

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

U.S.C. § 2254(a).

An application for a writ of habeas corpus on behalf of

a person in custody pursuant to the judgment of a State

court shall not be granted with respect to any claim

that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim

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

involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court of the United States; or

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

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

A state court decision is “contrary to” Supreme Court

precedent “if the state court applies a rule that contradicts

the governing law set forth in [Supreme Court] cases,” or “if

the state court confronts a set of facts that are materially

indistinguishable from a decision of th[e] Court and

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

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

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

Supreme Court’s] clearly established precedent if it correctly

identifies the governing legal rule but applies that rule

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

White v. Woodall, 572 U.S. 415, 426 (2014). “This means that a

state court’s ruling must be ‘so lacking in justification that

there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.’” Shoop

v. Hill, 139 S. Ct. 504, 506 (2019) (quoting Harrington v.

Richter, 562 U.S. 86, 103 (2011)). The Court must presume that

the state court’s factual findings are correct unless the

petitioner rebuts the presumption by clear and convincing

evidence. 28 U.S.C. § 2254(e)(1).

Even if a petitioner meets § 2254(d)’s “difficult”

standard, he must still show that any constitutional error had a

“substantial and injurious effect or influence” on the verdict.

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). See Brown v.

Davenport, 596 U.S. 118, 134 (2022) (“[E]ven a petitioner who

prevails under AEDPA must still today persuade a federal habeas

court that ‘law and justice require’ relief.”).

III. DISCUSSION

A. Failure to Establish Jurisdiction

Petitioner’s first claim argues that the trial court

“failed to establish jurisdiction on the record, thereby causing

imprisonment to be false and unconstitutional.” ECF No. 102 at

50. Petitioner argues the trial court lacked jurisdiction

because “no warrant was ‘issued’ on any date by any judge

because no judge signed the warrant, therefore the court records

denote no ‘date of the issuance’ of the warrant, establishing a

lack of jurisdiction.” Id. at 51. He further claims the

indictment was invalid because it “was never presented to the

Assignment Judge as it was never received.” Id. Petitioner

raised this argument in a pretrial motion, which the trial court

rejected on November 17, 2008 on state law grounds. 1T12:11,

21:19 to 22:8. The Appellate Division concluded the argument

“lack[ed] sufficient merit to warrant discussion in a written

opinion.” Avila I, 2011 WL 1466299, at *12.

Here, the state courts determined the trial court properly

exercised jurisdiction over Petitioner’s criminal case under New

Jersey state law. See N.J.S.A. 2C:1-3(a). As the trial court

noted, the indictment alleged “the incident happened in Camden

County; the defendant was a resident of Camden County; the

victim is a resident of Camden County; I believe, all the

witnesses are in Camden County.” 1T11:25 to 12:4. See also ECF

No. 112-1 (indictment). The Court lacks the authority to review

that determination in habeas proceedings. See Estelle v.

McGuire, 502 U.S. 62, 67–68 (1991) (“[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.” Id.

Petitioner’s challenge would also fail to the extent that

the Court construes it as a challenge to the sufficiency of the

indictment. “The courts of the United States have held almost

without exception that the writ of habeas corpus will not lie to

question the sufficiency of an indictment which on its face is

within the jurisdiction of the court to which it was returned

and that the writ of habeas corpus will not serve as a writ of

error.” U. S. ex rel. Potts v. Rabb, 141 F.2d 45, 47 (3d Cir.

1944), supplemented, 147 F.2d 225 (3d Cir. 1945). Under federal

law, “[a]n indictment is facially sufficient when it not only

states the elements of the offense, but also ‘sufficiently

apprises the defendant of what he must be prepared to meet, and

... allows the defendant to show with accuracy to what extent he

may plead a former acquittal or conviction in the event of a

subsequent prosecution.’” United States v. Harra, 985 F.3d 196,

221 (3d Cir. 2021) (quoting United States v. Stevenson, 832 F.3d

412, 423 (3d Cir. 2016) (omission in original)). See also

Russell v. United States, 369 U.S. 749, 763–64 (1962). The

indictment satisfies these requirements. See ECF No. 112-1.

Therefore, the indictment is not deficient as a matter of

federal law. The Court will deny habeas relief on this claim.

B. Perjured Testimony

Petitioner argues the State knew C.H. offered perjured

testimony during trial in violation of the Fourteenth Amendment.

ECF No. 102 at 82. He argues there the State “coached” C.H.

during her testimony because the trial court had directed C.H.

“to answer either by a yes or no answer” but “from 683 questions

during the March 19, 200[9] hearing returned a testimony of an

‘uh huh.’” Id. at 83. “[T]here was no eviden[c]e that

corroborated [C.H.’s] claim.” Id. at 82. Petitioner did not

exhaust this claim, see id. at 85, but the Court exercises its

discretion to deny relief as it is plainly without merit. 28

U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus

may be denied on the merits, notwithstanding the failure of the

applicant to exhaust the remedies available in the courts of the

State.”).

Petitioner argues that C.H. perjured herself because there

was no physical evidence to corroborate her sexual assault

allegations. ECF No. 102 at 82. Although Petitioner’s semen

was found on his bedroom comforter, police did not find fluids

or other forensic evidence from C.H. on the comforter. Avila I,

2011 WL 1466299, at *5. Petitioner’s DNA was not found during

C.H.’s sexual assault examination. 6T52:20-23 (testimony that

no specimens from C.H.’s sexual assault kit tested positive for

any biological materials). “A state violates the Fourteenth

Amendment’s due process guarantee when it knowingly presents or

fails to correct false testimony in a criminal proceeding.”

Haskell v. Superintendent Greene SCI, 866 F.3d 139, 145-46 (3d

Cir. 2017) (citing Napue v. Illinois, 360 U.S. 264, 269 (1959);

Giglio v. United States, 405 U.S. 150, 153 (1972); Lambert v.

Blackwell, 387 F.3d 210, 242 (3d Cir. 2004)). To succeed on

this claim, Petitioner “must show that (1) [the witness]

committed perjury; (2) the government knew or should have known

of [the] perjury; (3) the testimony went uncorrected; and (4)

there is any reasonable likelihood that the false testimony

could have affected the verdict.” Lambert, 387 F.3d at 242.

Petitioner has not shown that C.H. gave “false testimony

concerning a material matter with the willful intent to provide

false testimony, rather than as a result of confusion, mistake,

or faulty memory.” United States v. Dunnigan, 507 U.S. 87, 94

(1993). See also Avila I, 2011 WL 1466299, at *8 (noting the

trial court did not err in declining to charge “false in one,

false in all” because “[t]he record contains no evidence to

establish that C.H. intentionally testified falsely”). The fact

that no semen or other biological material was recovered during

C.H.’s exam is consistent with C.H.’s testimony that Petitioner

ejaculated on her back and that she showered after the assaults.

5T73:14-22. The State candidly acknowledged the lack of

physical evidence during its closing and argued it was part of

Petitioner’s plan to avoid detection. 7T27:19 to 28:3, 28:12 to

29:9. Additionally, there is no federal case law support for

Petitioner’s assertions that C.H’s “uh huhs” are evidence of

coaching by the State. The Court will deny habeas relief on

this claim as well.

C. Illegal Sentence

Petitioner argues the trial court imposed an illegal

sentence in violation of the Eighth Amendment. He argues the

trial court “ignored to follow the requirements in N.J.S.A.

2C:14-6”; imposed a sentence without his consent; the

“imposition of the sentence for a statutory maximum was not

based on the facts found by the jury”; “the motion for [an]

extended term was filed out of time”; “Defendant’s sentence is

an expired sentence under the Graves Act”; and that the fines

and penalties are excessive. ECF No. 102 at 59-61. The PCR

court dismissed this claim as procedurally defaulted because it

was not raised on direct appeal. 9T42:20 to 43:3. The

Appellate Division affirmed. Avila II, 2016 WL 6804414, at *5.

“[O]nly rarely may a federal habeas court hear a claim or

consider evidence that a prisoner did not previously present to

the state courts in compliance with state procedural rules.”

Shinn v. Ramirez, 596 U.S. 366, 375-76 (2022). “‘Out of respect

for finality, comity, and the orderly administration of

justice,’ federal courts may excuse procedural default only if a

prisoner ‘can demonstrate cause for the default and actual

prejudice as a result of the alleged violation of federal law.’”

Id. at 379 (quoting Dretke v. Haley, 541 U.S. 386, 388 (2004);

Coleman v. Thompson, 501 U.S. 722, 750 (1991)).

Petitioner appears to assert ineffective assistance of

counsel caused this default. ECF No. 102 at 59. See Murray v.

Carrier, 477 U.S. 478, 488 (1986) (“Ineffective assistance of

counsel, then, is cause for a procedural default.”). However,

the state court record does not support a conclusion that trial

counsel was ineffective when he failed to make these arguments

on direct appeal.

Trial counsel challenged the length of Petitioner’s

sentence on direct appeal, and the Appellate Division agreed the

95-year sentence was harsh but had “no hesitancy in concluding

that the offense circumstances here were particularly heinous

and cruel, and committed in a depraved manner.” Avila I, 2011

WL 1466299, at *11. “[Petitioner] used threats and coercion

against this vulnerable and impressionable victim over whom he

exercised supervisory control and power. He went to great

lengths to fabricate the ‘Sisterhood’ scenario, constantly

reinforcing in C.H.’s mind her obligation to comply with his

demands to avoid harm to members of her family.” Id. The

Appellate Division found no merit to Petitioner’s argument that

the sentence or extended term was “manifestly excessive or

unduly punitive.” Id. at *12.

“Sentencing is a matter of state criminal procedure and it

does not involve such a denial of fundamental fairness as to

fall within the purview of federal habeas corpus.” Grecco v.

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

court’s ability to review state sentences is limited to

challenges based on ‘proscribed federal grounds such as being

cruel and unusual, racially or ethnically motivated, or enhanced

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

2358387, at *17 (D.N.J. June 30, 2022) (quoting Grecco, 661 F.

Supp. at 415).

The Eighth Amendment, which forbids cruel and unusual

punishments, contains a ‘narrow proportionality principle’ that

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

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

three proportionality factors when evaluating Eighth Amendment

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

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

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

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

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

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

court grants substantial deference to legislative decisions

regarding punishments for crimes.” Id. This proportionality

principle also applies to excessive fine claims. United States

v. Bajakajian, 524 U.S. 321, 336 (1998).

Petitioner’s extended term was imposed on one of his

convictions for first-degree aggravated sexual assault because

he was a persistent offender. Avila I, 2011 WL 1466299, at *1.

At sentencing, the trial court noted the applicable extended-

term sentencing range was between 10 years and life

imprisonment. 8T73:9-13. Petitioner’s sentence is within that

range. “Generally, a sentence within the limits imposed by

statute is neither excessive nor cruel and unusual under the

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

186 (3d Cir. 2011). “If the petitioner fails to demonstrate a

gross imbalance between the crime and the sentence, a court’s

analysis of an Eighth Amendment challenge ends.” Rollins, 2022

WL 2358387, at *17.

New Jersey law requires “that a person convicted of a

qualifying sex offense ‘shall’ be assessed the statutory

penalty.” State v. Bolvito, 86 A.3d 131, 137 (N.J. 2014)

(citing N.J.S.A. 2C:14–10). First-degree aggravated sexual

assault is a qualifying offense, meaning that Petitioner falls

within the class of persons this statute was intended to reach.

The maximum fine for first-degree offenses is $2,000 per

offense. N.J.S.A. 2C:14–10(a)(1). The trial court imposed the

maximum fines on Petitioner after making several findings about

the seriousness of Petitioner’s offenses. 8T55:25 to 56:18.

See United States v. Kousisis, No. 19-3679, 2023 WL 6294144, at

*3 (3d Cir. Sept. 27, 2023) (listing excessive fine claim

factors).

There is not a reasonable likelihood that the Appellate

Division would have made a different decision had trial counsel

made Petitioner’s other arguments on direct appeal; therefore,

he has not shown that trial counsel was ineffective under

Strickland v. Washington, 466 U.S. 668 (1984). In the absence

of ineffective assistance, Petitioner cannot establish cause and

prejudice for his procedural default. Petitioner has

procedurally defaulted on this claim, and the Court will dismiss

it accordingly.

D. Sufficiency of the Evidence

Petitioner argues “[t]he jury verdict is inconsistent to

the evidence and fails to have sufficient evidential basis for

the charges” and that “[t]he State failed to prove each element

of offences, no reliable evidence was ‘produced’ to prove its

case on each element beyond a reasonable doubt . . . .” ECF No.

102 at 55. Although Petitioner frames this as an ineffective

assistance of trial counsel claim “for failing to obtain

acquittal of defendant due to lack of proof beyond reasonable

doubt,” id., the facts alleged are actually challenging the

sufficiency of the evidence against Petitioner. The PCR court

dismissed this claim as procedurally defaulted because it was

not raised on direct appeal. 9T40:1 to 42:6. The Appellate

Division affirmed. Avila II, 2016 WL 6804414, at *5.

Petitioner has not shown cause for his default. “[T]he

critical inquiry on review of the sufficiency of the evidence to

support a criminal conviction must be not simply to determine

whether the jury was properly instructed, but to determine

whether the record evidence could reasonably support a finding

of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 318 (1979). “[E]vidence is sufficient to support a

conviction if, ‘after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt.’” Coleman v. Johnson, 566 U.S. 650, 654

(2012) (per curiam) (emphasis in original) (quoting Jackson, 443

U.S. at 319).

The Appellate Division recounted the evidence against

Petitioner in its opinion denying his direct appeal, Avila I,

2011 WL 1466299, at *1-5, and the state court record reasonably

supports the verdict. There is not a reasonable likelihood that

the Appellate Division would have agreed with Petitioner’s

sufficiency of the evidence argument had trial counsel made it

on direct appeal, so trial counsel was not ineffective for not

making it. In the absence of ineffective assistance, Petitioner

cannot establish cause and prejudice for his procedural default.

Petitioner has procedurally defaulted on this claim, and the

Court will dismiss it accordingly.

E. Ineffective Assistance of Counsel

Most of Petitioner’s claims are allegations of ineffective

assistance of counsel in violation of the Sixth Amendment. For

these claims, Petitioner must first “show that counsel’s

representation fell below an objective standard of

reasonableness.” Strickland, 466 U.S. at 688. He must then

show “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.” Id. at 694. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”

Id. “That requires a ‘substantial,’ not just ‘conceivable,’

likelihood of a different result.” Cullen v. Pinholster, 563

U.S. 170, 189 (2011) (quoting Harrington v. Richter, 562 U.S.

86, 112 (2011)).

Furthermore, the “pivotal question” in a section 2254

Strickland claim “is whether the state court’s application of

the Strickland standard was unreasonable[, which] is different

from asking whether defense counsel’s performance fell below

Strickland’s standard.” Harrington, 562 U.S. at 101. The

Court’s review is thus “doubly deferential.” Cullen, 563 U.S.

at 190. “[T]he question is not whether counsel’s actions were

reasonable[,] ... but whether there is any reasonable argument

that counsel satisfied Strickland’s deferential standard.”

Harrington, 562 U.S. at 105.

1. Illegal Sentence

Petitioner argues that trial counsel was ineffective

because the “conviction imposed is [an] illegal sentence as such

accord and satisfaction of the judgment, having defendant been

only eligible for a mandatory sentence under the Graves Act.”

ECF No. 102 at 59 (brackets in original). “The Cour[t] never

obtained the ‘consent’ of the defendant to impose any sentence

the imposition of the sentence for a statutory maximum was not

based on the facts found by the jury; the motion for extended

term was filed out of time.” Id. at 60. He further states that

his “sentence is an expired sentence under the Graves Act” and

the “[f]ines and penalties imposed are illegal sentence[s]

having failed to provide defendant due process, by not

scheduling hearing as to his ability to pay . . . .” Id. The

Appellate Division concluded this argument was “without

sufficient merit to warrant discussion here.” Avila II, 2016 WL

6804414, at *5 (citing N.J. Ct. R. 2:11–3(e)(2)).

Petitioner makes several claims of error by the trial

court, but he has not pointed to any actions by trial counsel

that could reasonably be considered error within the meaning of

Strickland.4 His conclusory allegations of trial counsel error

are not enough to justify relief under § 2254(d). Therefore,

the Appellate Division reasonably applied Strickland when it

rejected these arguments.

2. Failure to Present Alibi Evidence

Petitioner argues trial counsel was ineffective for failing

to file a timely notice of alibi, which prevented Petitioner

from presenting witnesses who would have testified that “the

allegation of picking [C.H.] up from school, to have sex was

false.” ECF No. 112-8 at 28.5 He also argues that the witnesses

4 To the extent Petitioner alleges that trial counsel erred by

failing to make these challenges on direct appeal, the Court

rejected that argument in its procedural default discussion

supra.

5 Petitioner referred the Court to certain arguments raised

before the Appellate Division in his August 28, 2015

supplemental brief. ECF No. 102 at 64 (quoting Strickland, 466

U.S. at 696). Petitioner asserts that the Appellate Division

did not rule on the merits of his claims because it did not

address them “point by point,” but AEDPA deference applies even

when there has been a summary denial. Cullen v. Pinholster, 563

U.S. 170, 187 (2011) (citation omitted). The Appellate Division

summarily rejected Petitioner’s ineffective assistance of

counsel claims on postconviction review. Avila II, 2016 WL

6804414, at *5 (citing N.J. Ct. R. 2:11–3(e)(2)). “In these

circumstances, [Petitioner] can satisfy the ‘unreasonable

application’ prong of § 2254(d)(1) only by showing that ‘there

was no reasonable basis’ for the” state court’s decision.

Cullen, 563 U.S. at 187 (quoting Harrington v. Richter, 562 U.S.

86, 98 (2011)). “Under § 2254(d), a habeas court must determine

what arguments or theories . . . could have supported, the state

court’s decision; and then it must ask whether it is possible

fairminded jurists could disagree that those arguments or

theories are inconsistent with the holding in a prior decision

of” the Supreme Court.” Harrington, 562 U.S. at 102.

would have testified on his behalf about C.H.’s “fabricated

story of the defendant taking her virginity and of the alleged

act on 6/30/06.” Id. at 32 (emphasis in original). In

particular, Petitioner relies on a letter dated September 12,

2006 from his foster sister, Victoria Ann Sanabria, and

affidavit from C.H.’s mother, Alba Dominguez dated November 17,

2008. Id. at 28.

Sanabria’s letter states that C.H. said she had a boyfriend

with whom she was planning on having sex. ECF No. 102-2 at 53.

Sanabria alleged this conversation with C.H. took place around

the time C.H. reported Petitioner’s assaults. Id. Dominguez’s

affidavit asked the trial court to dismiss the case “due to the

fact that I want this episode of my life to be over. I also

would like him to stay away from my daughter and me.” ECF No.

112-51 at 272. Petitioner also sought the testimony of William

Fuller, who notarized Dominguez’s affidavit. ECF No. 112-8 at

33.

The Court has reviewed Petitioner’s arguments and the

relevant state court record and concludes that he has failed to

satisfy § 2254(d)’s standard for relief. Sanabria is

Petitioner’s foster sister, and her letter does not claim that

C.H. told her that Petitioner never assaulted C.H. ECF No. 102-

2 at 53. Considering Sanabria’s relationship to Petitioner and

the very minimal probative value of her testimony, counsel could

have reasonably decided that Sanabria would have been a poor

witness. Dominguez’s affidavit asked the trial court to dismiss

the case because she “want[ed] this episode of [her] life to be

over,” not because she believed Petitioner to be innocent.6 ECF

No. 112-51 at 272. She also stated that she was in the process

of divorcing Petitioner and that she wanted him to stay away

from her and C.H. Id.

On the record before the Court, the Appellate Division

could have reasonably concluded that not presenting the

documents as “alibi” evidence was sound trial strategy.

Assuming Sanabria and Dominguez would have testified about the

contents of the documents, it would have been reasonable for

trial counsel to decide that they would not have been beneficial

witnesses for Petitioner. See Porter v. Adm’r of New Jersey

State Prison, No. 20-2048, 2021 WL 2910944, at *3 (3d Cir. July

12, 2021) (finding state courts reasonably applied Strickland in

concluding decision not to call alibi witness due to potential

bias was “tactical and sound trial strategy”), cert. denied sub

nom. Porter v. Johnson, 142 S. Ct. 1158 (2022). Additionally,

the trial court denied trial counsel’s attempt to inquire about

6 It seems Petitioner wanted Fuller, the notary, to testify that

Fuller delivered Dominguez’s affidavit to the trial court. ECF

No. 112-8 at 34. There is not a reasonable likelihood that this

testimony would have changed the result at trial, so the

Appellate Division reasonably applied Strickland in dismissing

this argument.

C.H.’s “social interactions” under New Jersey’s Rape Shield Law,

N.J.S.A. 2C:14-7(a), which limits the circumstances under which

a defendant may present evidence of a sexual assault victim’s

previous sexual conduct. 3T59:5-9, 59:19 to 60:2. This

evidentiary decision is not reviewable in federal habeas, see

Wilson v. Vaughn, 533 F.3d 208, 213 (3d Cir. 2008)

(“Admissibility of evidence is a state law issue.”), and the

exclusion of the “alibi evidence” does not rise to the level of

a due process violation, see Keller v. Larkins, 251 F.3d 408,

413 (3d Cir. 2001) (an 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 are reasonable grounds that are consistent with

Strickland’s holding on which the Appellate Division could have

based its rejection of Petitioner’s ineffective assistance of

counsel claims. Cullen v. Pinholster, 563 U.S. 170, 187 (2011);

Harrington v. Richter, 562 U.S. 86, 102 (2011). Therefore,

Petitioner has not satisfied § 2254(d). The Court will deny

habeas relief for this claim.

3. Failure to Move for Exclusion of C.H.’s Statement

Petitioner further argues that trial counsel failed to move

for the exclusion of C.H.’s statement to police under N.J.R.E.

404(b). ECF No. 112-8 at 40. This claim has no merit. C.H.’s

statement was used to refresh her recollection during her direct

testimony; it was not entered into evidence. 5T108:10-12.

Thus, there was no error by trial counsel, and the Appellate

Division reasonably rejected Petitioner’s ineffective assistance

of counsel claim. The Court will deny habeas relief for this

claim.

4. Failure to Request Wade Hearing

Petitioner argues that trial counsel should have requested

a Wade hearing for each witness who testified at trial. ECF No.

112-8 at 45. “The purpose of a Wade hearing is to determine

whether identification testimony should be suppressed because

the manner in which the identification of the suspect was

obtained was unduly suggestive.” Herrill v. Ricci, No. 10-3575,

2016 WL 1183176, at *18 (D.N.J. Mar. 28, 2016) (citing United

States v. Wade, 388 U.S. 218, 242 (1967)). “The hearing is made

outside the presence of a jury, and concerns not the in-court

identification, but only the pre-trial identification.” United

States v. Stevens, 935 F.2d 1380, 1386 n.3 (3d Cir. 1991)

(citation omitted).

Here, trial counsel was not ineffective for failing to

request a Wade hearing because Petitioner was not entitled to a

Wade hearing. “As the circumstances in this case show, the

witnesses’ identifications of Petitioner . . . were not the

result of suggestive identification procedures, but rather, were

based on the witnesses’ familiarity with Petitioner . . . .”

Herrill, 2016 WL 1183176, at *18. The Appellate Division

reasonably rejected this argument as meritless, and its decision

does not contradict federal law.

5. Failure to Advise of Maximum Sentence

Petitioner next alleges that trial counsel provided

ineffective assistance during the plea-bargaining stage. ECF

No. 102 at 68. The State offered Petitioner a recommended 15-

year sentence, subject to NERA, in exchange for a guilty plea to

first-degree aggravated sexual assault. ECF No. 102-2 at 21-22.

He asserts trial counsel “misinformed petitioner of his

sentencing exposure” and that he was not aware that “the maximum

exposure would be 95 years” prior to rejecting the plea

agreement. ECF No. 102 at 69-70. The pretrial memorandum

reflected a maximum sentencing exposure of 60 years. Id. at 69.

See also ECF No. 102-2 21.7

Respondent asserts this claim is unexhausted because it

“was not raised before the PCR court, and instead, was raised

for the first time, before the Appellate Division . . . .” ECF

No. 56 at 37 n.6. The Appellate Division’s opinion lists this

claim as having been raised below and included it in its summary

rejection of the ineffective assistance claims. Avila II, 2016

7 At a pre-trial hearing, the trial court and trial counsel told

Petitioner that he was facing a life sentence if convicted.

3T81:9-22.

WL 6804414, at *4-5. The Court presumes the claim was exhausted

and will review it with the appropriate AEDPA deference.8

“Defendants have a Sixth Amendment right to counsel, a

right that extends to the plea-bargaining process.” Lafler v.

Cooper, 566 U.S. 156, 162 (2012). For Petitioner to succeed on

his claim that ineffective assistance caused him to reject a

favorable plea deal and proceed to trial, he

must show that but for the ineffective advice of counsel

there is a reasonable probability that the plea offer

would have been presented to the court (i.e., that the

defendant would have accepted the plea and the

prosecution would not have withdrawn it in light of

intervening circumstances), that the court would have

accepted its terms, and that the conviction or sentence,

or both, under the offer’s terms would have been less

severe than under the judgment and sentence that in fact

were imposed.

Id. at 164. The Court need not consider whether trial counsel

erred because Petitioner cannot establish the prejudice prong.

Petitioner states he rejected the plea agreement because he

“knew he was actually innocent . . . .” ECF No. 102 at 69.

Petitioner consistently maintained his innocence throughout the

state court proceedings. See, e.g., 8T46:22-24 (“How can an

individual that’s innocent have remorse on something that he

didn’t do?”). He continues to assert his innocence in his §

2254 petition, stating there is “clear and convincing evidence

8 The claim would fail under the more lenient de novo standard of

review, however, for the same reasons.

of Petitioner’s innocence established in the record . . . .”

ECF No. 102 at 70. Under these circumstances, there is not a

reasonable likelihood that Petitioner would have accepted the

guilty plea even if he had known the maximum sentencing

exposure. See United States v. Tarnai, 782 F. App’x. 128, 132

(3d Cir. 2019) (“[Petitioner] has not established the government

would have allowed him to take the plea while insisting on his

innocence.”); Humphress v. United States, 398 F.3d 855, 859 (6th

Cir. 2005) (noting that defendant’s assertion of innocence

undermined his contention that he would have accepted a plea

deal); Sanders v. United States, 341 F.3d 720, 723 (8th Cir.

2003) (“A defendant who maintains his innocence at all the

stages of his criminal prosecution and shows no indication that

he would be unwilling to admit his guilt undermines his later §

2255 claim that he would have pleaded guilty if only he had

received better advice from his lawyer.”).

Moreover, there is not a reasonable likelihood that the

state courts would have accepted the plea. See State v.

Taccetta, 975 A.2d 928, 935 (N.J. 2009) (“The notion that a

defendant can enter a plea of guilty, while maintaining his

innocence, is foreign to our state jurisprudence. Court-

sanctioned perjury is not a permissible basis for the entry of a

plea in this State.” (footnote omitted)). See also Davis v.

Adm’r New Jersey State Prison, 795 F. App’x 100, 103 (3d Cir.

2019) (“[Petitioner] had maintained — and continues to maintain

— his innocence and is thereby prohibited under New Jersey law

from pleading guilty.”). This is consistent with federal law.

See North Carolina v. Alford, 400 U.S. 25, 38 n.11 (1970)

(“[T]he States may bar their courts from accepting guilty pleas

from any defendants who assert their innocence.”).

“Even if trial counsel did err by misstating Petitioner’s

maximum exposure, “[t]here can be no prejudice if counsel’s

deficient performance merely deprived [Petitioner] of the

opportunity to do something that would have been legally

prohibited.” Davis, 795 F. App’x at 103 (citing Nix v.

Whiteside, 475 U.S. 157, 175 (1986)). The Appellate Division’s

summary denial of this claim does not contradict federal law and

is reasonable based on the record before the Court. Therefore,

the Court will deny habeas relief.

6. Failure to Investigate and Call Witnesses

Petitioner alleges trial counsel was ineffective for

failing to call certain witnesses at trial: Petitioner’s

daughter, Edna Isabel Avila; Dominguez; Fuller; Dr. Larry

Pettis; and Dr. Marita Lind. ECF No. 102 at 78-79. The

Appellate Division adopted the PCR court’s reasoning and

rejected this argument on the merits during Petitioner’s PCR

appeal. Avila II, 2016 WL 6804414, at *5.

“The decision whether to call any witnesses on behalf of

the defendant, and if so which witnesses to call, is a tactical

decision of the sort engaged in by defense attorneys in almost

every trial.” United States v. Nersesian, 824 F.2d 1294, 1321

(2d Cir. 1987). See also Berryman v. Morton, 100 F.3d 1089,

1101 (3d Cir. 1996) (“The right to counsel does not require that

a criminal defense attorney leave no stone unturned and no

witness unpursued.”); Judge v. United States, 119 F. Supp. 3d

270, 284-85 (D.N.J. 2015) (“Where a petitioner challenges his

counsel’s decision as to which witnesses to call, courts are

required not simply to give the attorney the benefit of the

doubt, but to affirmatively entertain the range of possible

reasons petitioner’s counsel may have had for proceeding as he

did.” (cleaned up)).

The Appellate Division relied on the PCR court’s conclusion

that Petitioner had not adequately supported his claim that

Dominguez “if called as a trial witness, would have provided an

alibi or other exculpatory testimony” or that “Dr. Marita Lind,

who examined C.H. two weeks after she reported the assaults[,] .

. . could or would have testified that defendant was not the

source of any sexual contact with C.H.” Avila II, 2016 WL

6804414, at *3 (internal quotation marks omitted). It rejected

these arguments as “bald assertions, unsupported by legally

competent evidence.” Id. at *5 (internal quotation marks

omitted). This was a reasonable application of Strickland. See

United States v. Lathrop, 634 F.3d 931, 939 (7th Cir. 2011)

(“When a petitioner alleges that counsel’s failure to

investigate resulted in ineffective assistance, the petitioner

has the burden of providing the court with specific information

as to what the investigation would have produced.”); Duncan v.

Morton, 256 F.3d 189, 201-02 (3d Cir. 2001) (holding habeas

petitioner failed to establish Strickland prejudice when he

failed to present any sworn testimony by the witnesses he

claimed counsel should have investigated and called at trial).

Petitioner asserts the Appellate Division ignored an

affidavit dated March 28, 2014 from Dominguez, ECF No. 102 at

24, but this document does not set forth what evidence Dominguez

would have presented at trial, ECF No. 102-2 at 16. Moreover,

her affidavit dated November 17, 2008 only asked the trial court

to dismiss the case “due to the fact that I want this episode of

my life to be over.” ECF No. 112-51 at 272. Neither of these

documents describe what testimony Dominguez would have presented

at trial. Another document cited by Petitioner is a list from

trial counsel identifying possible witnesses for the State. ECF

No. 102-2 at 55. The letter does not claim that trial counsel

would be presenting these witnesses on Petitioner’s behalf, nor

does it set out the testimony those people might provide.

Therefore, the Appellate Division reasonably concluded that

Petitioner did not meet Strickland’s standard.

The Appellate Division’s summary rejection of Petitioner’s

arguments concerning his other proposed witnesses, Edna Isabel

Avila, Fuller, and Pettis complies with Strickland for the same

reason. Petitioner failed to provide the PCR court with sworn

statements from those people stating that they were available to

testify at trial and describing the substance of their proposed

testimony. The Appellate Division’s summary denial of this

claim does not contradict federal law and is reasonable based on

the record before the Court. Therefore, the Court will deny

habeas relief on this ground as well.

7. Cumulative Error

Finally, Petitioner argues the cumulative errors of counsel

rendered ineffective assistance. ECF No. 102 at 65. “[E]rrors

that individually do not warrant habeas relief may do so when

combined.” Albrecht v. Horn, 485 F.3d 103, 139 (3d Cir. 2007).

“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.’” Id. (quoting Brecht v. Abrahamson, 507

U.S. 619, 637 (1993)).

The Court has reviewed the Appellate Division’s resolution

of Petitioner’s ineffective assistance of counsel arguments with

the appropriate AEDPA deference and concluded its decision was

not contrary to or an unreasonable application of federal law.

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

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

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

prejudice from the purported errors.” Thomas v. Johnson, No.

18-0710, 2022 WL 603002, at *28 (D.N.J. Mar. 1, 2022),

certificate of appealability denied sub nom Thomas v. Adm’r New

Jersey State Prison, No. 22-1540, 2022 WL 4363552 (3d Cir. Aug.

30, 2022). “Thus, Petitioner has not proven that the alleged

cumulative errors had ‘a substantial and injurious effect or

influence in determining the jury’s verdict.’” Id. (quoting

Fahy v. Horn, 516 F.3d 169, 205 (3d Cir. 2008)). The Court will

deny habeas relief on this ground.

F. Actual Innocence

Petitioner asserts he is “actually innocent” throughout his

petition. See, e.g., ECF No. 102 at 74, 86. Petitioner did not

exhaust his actual innocence claim in the state courts. ECF No.

102 at 91 (conceding the claim was “not subsequently raised on

appeal nor the Supreme Court of New Jersey”). “The excuse of

exhaustion is as establish [sic] lack of jurisdiction on the

case from the beginning, and interference . . . which as a

[result] petitioner was wrongfully convicted.” Id. The Court

exercises its discretion under § 2254(b)(2) to deny relief as it

is plainly without merit.

“Currently, the Supreme Court treats actual innocence as a

gateway for consideration of procedurally defaulted claims.”

Wright v. Superintendent Somerset SCI, 601 F. App’x 115, 119 (3d

Cir. 2015) (citing McQuiggin v. Perkins, 569 U.S. 383 (2013);

Schlup v. Delo, 513 U.S. 298, 327–29 (1995)). “The Supreme

Court has not yet recognized the existence of a freestanding

claim of actual innocence.” Id. See also Herrera v. Collins,

506 U.S. 390, 400 (1993) (“Claims of actual innocence based on

newly discovered evidence have never been held to state a ground

for federal habeas relief absent an independent constitutional

violation occurring in the underlying state criminal

proceeding.”). To the extent such a freestanding claim exists,

“the threshold showing for such an assumed right would

necessarily be extraordinarily high.” Id. at 417.

At a minimum, Petitioner would have to satisfy the Schlup

gateway standard and show “that, in light of new evidence

(including ‘new exculpatory scientific evidence’), ‘it is more

likely than not that no reasonable juror would have found

petitioner guilty beyond a reasonable doubt.’” Albrecht v.

Horn, 485 F.3d 103, 121 (3d Cir. 2007) (quoting Schlup, 513 U.S.

at 327). He has failed to do so.

Petitioner does not rely on any new evidence for his

claims; all the evidence that Petitioner cites was either

presented at trial or was available to him at that time. He

argues he is actually innocent because trial counsel’s actions

“led to the several errors germane to illegal sentence;

[challenge] to the[] indictment; Fresh complaint and other

[evidentiary] rulings.” ECF No. 102 at 74. The Court has

already rejected Petitioner’s ineffective assistance of counsel

claims and concluded that the state courts’ decisions were not

contrary to or an unreasonable application of established

federal law. Additionally, trial counsel did object to the

admission of C.H.’s note as fresh complaint evidence, but the

Appellate Division affirmed the admission on direct appeal. See

Avila I, 2011 WL 1466299, at *5. The Court discerns no

constitutional error in this decision, and the claim of

ineffective assistance of counsel lacks merit.

The Court has reviewed Petitioner’s submissions and

concludes that a reasonable juror could have convicted

Petitioner on the entirety of the record. Therefore, Petitioner

has not satisfied the Schlup gateway standard. It follows from

there that he cannot satisfy the higher standard of proof

necessary for an actual innocence claim, to the extent one

exists. Therefore, the Court will deny habeas relief on this

claim.

G. Motions for Reconsideration

Petitioner also moves for reconsideration of two of the

Court’s Orders. ECF Nos. 93 & 107. The Court will deny both

motions.

“Motions for reconsideration exist to ‘correct manifest

errors of law or fact or to present newly discovered evidence.’”

Mid-Am. Salt, LLC v. Morris Cty. Coop. Pricing Council, 964 F.3d

218, 230 (3d Cir. 2020) (quoting Harsco Corp. v. Zlotnicki, 779

F.2d 906, 909 (3d Cir. 1985)). A court may grant a motion for

reconsideration if the moving party shows one of the following:

(1) an intervening change in the controlling law; (2) the

availability of new evidence that was not available when the

court issued its order; or (3) the need to correct a clear error

of law or fact or to prevent manifest injustice. Johnson v.

Diamond State Port Corp., 50 F. App’x 554, 560 (3d Cir. 2002)

(quoting Max’s Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d

Cir. 1999)).

The first motion seeks reconsideration of the Court’s March

29, 2023 Order denying Petitioner’s motion for a “notice of

claim of unconstitutionality.” ECF No. 90. There, the Court

did not permit Petitioner to add a claim challenging the

constitutionality of N.J.S.A. 2C:14-1 and 2C:14-2 based on

subsequent revisions to the laws. ECF No. 89 at 14-15. The

Court concluded the claim was raised after the AEDPA statute of

limitations expired and that it did not relate back under

Federal Rule of Civil Procedure 17(c). Id. Petitioner argues

that the Court overlooked the fact that his Amended Petition

included this claim as part of Ground IV wherein he

“incorporate[d] by reference all arguments advanced in plenary,

supplemental, and reply brief[s] on direct appeal.” ECF No. 93-

3 at 5.

The Court did not overlook this argument. It noted in the

opinion that “the claim as raised in the amended habeas petition

is an ineffective assistance of counsel claim.” ECF No. 89 at

13. See also ECF No. 112-51 at 126 (incorporating “all points

raised that infer to omissions, errors of trial counsel’s

ineffective assistance”). Moreover, it would be impossible for

Petitioner to have raised this claim on direct appeal because

the challenged revision to N.J.S.A. 2C:14-2 was enacted on

January 21, 2020, after Petitioner’s direct appeal concluded.

See Sex Offenses Assault And Battery, 2019 NJ Sess. Law Serv.

Ch. 474 (ASSEMBLY 2767). Petitioner has not met the standard

for reconsideration, and the Court will deny this motion.

Petitioner’s second motion for reconsideration challenges

the Court’s June 21, 2023 Order denying Petitioner’s summary

judgment motion. ECF No. 99. There, the Court denied

Petitioner’s argument that Petitioner was entitled to judgment

as a matter of law because the New Jersey Attorney General

“failed to appear.” ECF No. 98. The Court reserved its

decision on Petitioner’s other arguments because they concerned

the merits of the Amended Petition. Id. at 5 n.1. Petitioner

now argues that the Court overlooked his other arguments. ECF

No. 107 at 3.

The Court did not overlook Petitioner’s arguments about the

merits of the Amended Petition; it specifically reserved its

decision for its final opinion and order. The Court has now

fully considered the Amended Petition and found that Petitioner

is not entitled to relief under § 2254. Additionally, the Court

has repeatedly rejected Petitioner’s arguments about the ability

of the Camden County Prosecutor’s Office to represent the

Attorney General of New Jersey as meritless. The arguments in

the summary judgment motion and motion for reconsideration are

no different. Therefore, the Court will deny the motion for

reconsideration.

IV. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), a petitioner may not

appeal from a final order in a habeas proceeding where that

petitioner's detention arises out of his state court conviction

unless he has “made a substantial showing of the denial of a

constitutional right.” “A petitioner satisfies this standard by

demonstrating that jurists of reason could disagree with the

district court's resolution of his constitutional claims or that

jurists could conclude that the issues presented here are

adequate to deserve encouragement to proceed further.” Miller-

El v. Cockrell, 537 U.S. 322, 327 (2003).

For the reasons expressed above, Petitioner has failed to

make a substantial showing that he was denied a constitutional

right. As jurists of reason could not disagree with this

Court's resolution of his claims either procedurally or on the

merits, the Court shall deny Petitioner a certificate of

appealability.

V. CONCLUSION

For the reasons stated above, the Court will deny the

amended habeas petition and Petitioner’s two motions for

reconsideration. No certificate of appealability shall issue.

An accompanying Order will be entered.

November 29, 2023 s/ Noel L. Hillman

Date NOEL L. HILLMAN

At Camden, New Jersey United States District Judge