NAYEE v. D'ILIO

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

_________________________________________

ANIL NAYEE, :

:

Petitioner, : Civ. No. 15-1288 (PGS)

:

v. :

:

STEPHEN D’ILIO, et al., : OPINION

:

Respondents. :

_________________________________________ :

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

I. INTRODUCTION

Petitioner, Anil Nayee (“Nayee” or “Petitioner”), is a state prisoner proceeding pro se

with an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the

following reasons, the amended habeas petition is denied. A certificate of appealability shall only

issue on two of Petitioner’s claims.

II. FACTUAL AND PROCEDURAL BACKGROUND

The factual background giving rise to Petitioner’s judgment of conviction in state court is

taken from the New Jersey Superior Court, Appellate Division’s July 5, 2007 opinion in

Petitioner’s initial direct appeal.

Defendant Anil Nayee appeals from a January 28, 2005 judgment

of conviction, entered following a trial by jury for murder, N.J.S.A.

2C:11-3a(a1), (2) (count one); possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4d (count two); and possession

of a prohibited weapon, N.J.S.A. 2C:39-5d (count three). The

judge sentenced the defendant to a prison term of fifty years with

an eighty-five percent parole disqualifier for count one and merged

the two remaining counts into the first. . . .

Defendant, an immigrant from India, came to America in 1980 to

live with his grandparents. He participated in an arranged marriage

that was not fulfilling, but both his parents and his wife’s parents

forbade a divorce. Nonetheless, defendant began to date Ann

Mendez, whom he met while they were both taking college classes

at Rutgers University in Newark. Mendez attended the university

part-time at night and worked during the day at a bank in Jersey

City. Defendant would often pick her up at the end of her work

shift, occasionally arriving up to two hours before the end of the

shift and waiting for her.

After defendant and Mendez had dated for approximately six

months without incident, their relationship faltered. For example,

one of Mendez’ coworkers noticed that she had bruises on her face,

which prompted the coworker to call defendant and to tell him that

if he ever hurt Mendez again, she would tell the police and would

help Mendez obtain a restraining order.

In addition, in Spring, 2001, after Mendez had changed jobs, she

was introduced to Mohammed Gayyoor, who was installing a new

computer system at her former bank. While he was working on the

project, they saw each other almost every day, and they maintained

a long distance relationship when Gayyoor returned to Oklahoma

at the completion of the project.

On October 11, 2001, at some point before 6:00 p.m., Mendez and

defendant were seen arguing on a street corner in Newark. Mendez

was attempting to get to her Account Fundamentals class, but

defendant blocked her path and would not let her pass. Defendant

seemed upset at Mendez and was raising his voice at her. Later,

when Mendez finally made it to class, defendant watched her

through the window in the door of the classroom. When class was

over, around 9:00 p.m., defendant was again seen arguing with

Mendez.

Gayyoor, who was familiar with Mendez’ class schedule, normally

received a call from Mendez during the break and at the end of her

class. However, on October 11, 2001, Mendez did not call him.

Gayyoor called her cell phone repeatedly, but no one answered the

phone. Eventually, he received a call from her phone, but someone

other than Mendez was on the line. It was a male, who identified

himself as Mendez’ ex-boyfriend. When Gayyoor responded that

he was her current boyfriend, the caller hung up. Following this

exchange, Gayyoor repeatedly called Mendez’ cell phone and

either no one would pick up or someone would answer and

immediately hang up. Later that night, the same male who had

called, answered Mendez’ phone and told Gayyoor that Mendez

was dead. Gayyoor then called Mendez’ mother and she called the

Jersey City police department and told them her daughter was

missing.

On the morning of October 12, 2001, Lieutenant David LaPoint of

the Carteret Police Department received a phone call from a local

attorney, Louis Kady. Kady asked LaPoint to come to the parking

lot of his building on Washington Avenue. Upon his arrival,

LaPoint saw defendant in the parking lot near a Mitsubishi

automobile, talking on his phone. As he approached, LaPoint

noticed dried blood on the defendant’s hands, pants, undershirt and

on his neck. Defendant handed LaPoint his phone and said, “This

is my lawyer.”

After he arrested defendant, LaPoint looked inside the car where

he saw blood on the console and between the two seats. He opened

the door, moved a blanket that was in the back seat, and discovered

Mendez’ body. Thereafter, defendant’s clothing was seized as

evidence and DNA testing revealed that Mendez’ blood was on

defendant’s shirt and pants. Also seized was a receipt from a Rite-

Aid store located on Market Street in Newark, dated October 11,

2001, which detailed the purchase of a utility knife, a screwdriver,

and a hammer at 6:23 p.m. that evening. Defendant’s vehicle was

impounded and, in it, police found a black bag containing a

screwdriver, blanket, utility knife and blade. Bloodstains on the

knife were determined to be from more than one sources.

Defendant was the primary contributor to those bloodstains, but

Mendez could not be excluded as a partial contributor.

Dr. Geetha Ann Natarajan, the Middlesex County Medical

Examiner, testified at trial that she performed the autopsy of

Mendez on October 13, 2001. Her examination revealed that

Mendez’ hands and left arm had been sliced with a knife and that

she had been stabbed in the neck. Such wounds could have been

caused by the knife found in defendant’s possession. Dr. Natarajan

was of the opinion the stab wound to Mendez’ neck would have

caused her to aspirate blood into her windpipe and lungs with each

breath, resulting in her death.

On October 16, 2001, defendant was taken from the jail to the

emergency room of the mental health center at Robert Wood

Johnson Hospital because a medical technician at the jail felt

defendant needed to be hospitalized for his own protection. Based

on her observations, the technician noted that defendant had

impaired insight, his judgment was grossly impaired, and he

claimed he was hearing and seeing God in the room. Following an

examination at the hospital by Dr. Waldburg Zomorodi, defendant

was involuntarily committed for psychiatric care. Dr. Zomorodi

testified at trial that his diagnosis was that defendant was suffering

from depression with psychotic features. Dr. Zomorodi opined

that, within a reasonable degree of psychiatric certainty, defendant

was suffering from a severe mental illness on October 11, 2001,

and was probably psychotic that day.

Following his involuntary commitment to the Ann Klein Forensic

Center, defendant was prescribed numerous medications. He

remained there, under supervision, until October 10, 2002, when

was discharged to the county jail. Upon his discharge, one of his

treating physicians diagnosed defendant as suffering from a major

depressive disorder and noted that he should continue to receive

his antipsychotic medications, antidepressants and mood

stabilizers.

Several of defendant’s treating physicians testified about their

treatment of him while he was at Ann Klein. Also testifying on

behalf of defendant was Dr. Robert Latimer, who was qualified as

an expert in the area of forensic psychiatry. According to Dr.

Latimer, defendant was delusional and hallucinating and he

thought that someone on television was discussing him and that

God was addressing him. Based no this, Dr. Latimer opined that

defendant was depressed with psychotic features and that he was

paranoid and heard command hallucinations.

Defendant did not testify in his own behalf at trial, but Dr. Latimer

testified about what defendant told him of his relationship with

Mendez. As related by defendant, they dated, were sexually

intimate, and he wanted to marry her but family pressure would not

allow him to divorce his current wife. On the night of the murder,

defendant said he heard voices “with compelling force telling him

‘kill, kill and you die, die.’” Defendant indicated he had heard such

command hallucinations before, but these particular hallucinations

were “extremely urgent, extremely compelling.” He could not

control himself and he began to cut Mendez with the utility knife.

Dr. Latimer posited that, as a result of mental disease, defendant

could not form the purpose to kill, but rather, he was simply

obeying the voices, and that defendant’s illness caused “a sudden

impulsive homicidal act.”

In spite of the defenses relating to defendant’s mental condition,

the jury returned a verdict finding him guilty of all three counts

charged in the indictment.

(ECF 20 at 31-37).

The New Jersey Superior Court, Appellate Division, affirmed Petitioner’s judgment and

conviction on July 5, 2007. (See id. at 31-56). On September 20, 2007, the New Jersey Supreme

Court granted Petitioner’s petition for certification “limited solely to the issue of the trial court’s

refusal to consider the record before it in respect of defendant’s mental illness as a mitigating

factor under N.J.S.A. 2C:44-1b(4) in arriving at its sentence[.]” (ECF 20 at 57). Accordingly, the

case was summarily remanded to the trial court for resentencing. (See id.)

On November 2, 2007, the New Jersey Superior Court sentenced Petitioner to the same

fifty-year sentence. (See ECF 26-5 at 6). The Appellate Division affirmed this decision on

October 21, 2009. (See ECF 20 at 59). The New Jersey Supreme Court denied certification on

January 28, 2010. (See id. at 60).

As Petitioner was proceeding with his remanded criminal proceedings, he also attempted

to bring a post-conviction relief (“PCR”) petition. On July 1, 2008, Petitioner filed a PCR

petition with the New Jersey Superior Court. (See ECF 26-10). However, on March 9, 2009, the

New Jersey Superior Court denied the PCR petition without prejudice because Petitioner’s direct

appeal was still pending. (See ECF 26-11).

In December, 2009, Petitioner filed a pro se motion to reconsider PCR relief and

requested to hold his PCR petition in abeyance with the New Jersey Superior Court. (See ECF

26-12; 26-13). Respondents state this motion was never addressed nor ruled upon by the

Superior Court. (See ECF 25 at 36). However, as the Appellate Division later noted, this

December, 2009 filing was determined to be a second PCR petition, which was held without

action while Petitioner’s petition for certification on his direct appeal was pending before the

New Jersey Supreme Court. (See ECF 26-20 at 5 n.2). On August 11, 2011, Petitioner, now

acting through counsel, filed an amended PCR petition with the New Jersey Superior Court. A

PCR hearing was held on January 19, 2012. (See ECF 26-16). The Superior Court issued an oral

decision denying PCR on that date. (See id. at 28-39). It then issued a written order on January

23, 2012. (See ECF 26-17). The Appellate Division affirmed the PCR denial on May 28, 2014.

(See ECF 26-20). The New Jersey Supreme Court denied certification on December 5, 2014.

(See ECF 27-1).

Pursuant to the prisoner mailbox rule, Petitioner filed his initial federal habeas petition in

in this Court on February 13, 2015. See Houston v. Lack, 487 U.S. 266, 270–71 (1988).

Petitioner also filed a motion to stay. (See ECF 3). On September 9, 2015, this Court granted the

stay so Petitioner could pursue further PCR proceedings in state court. (See ECF 10).

On August 27, 2015, the PCR Court denied Petitioner’s newly filed PCR petition. It

noted Petitioner’s claim that the trial judge erred in conducting an ex parte interview with a juror

was procedurally barred. (See ECF 27-11 at 3-4). Furthermore, it noted Petitioner’s claim that

trial and appellate counsel were ineffective in failing to raise this issue was previously

adjudicated in Petitioner’s prior PCR proceeding. (See id.). On April 4, 2017, the Appellate

Division affirmed. (See ECF 27-14). On October 16, 2017, the New Jersey Supreme Court

denied certification. (See ECF 27-17).

On November 17, 2017, this federal habeas matter was reopened. (See ECF 14).

Thereafter filed an amended habeas petition on May 15, 2018. (See ECF 20). This Court received

Respondents’ response in opposition to the amended habeas petition in January, 2019. (See ECF

25-27). Respondents assert this amended habeas action is untimely. Additionally, Respondents

claim that Petitioner’s amended habeas petition lacks merit. Petitioner filed a reply brief in

support of his amended habeas petition in August, 2019. (See ECF 40). The matter is now ripe

for adjudication.

III. LEGAL STANDARD

An application for writ of habeas corpus by a person in custody under judgment of a state

court can only be granted for violations of the Constitution or laws or treaties of the United

States. See Engle v. Isaac, 456 U.S. 107, 119 (1982); see also, Mason v. Myers, 208 F.3d 414,

415 n.1 (3d Cir. 2000) (citing 28 U.S.C. § 2254). Petitioner filed this petition for writ of habeas

corpus after April 24, 1996, thus, the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Pub. L. 104-132, 110 Stat. 1214 (Apr. 24, 1996), applies. See Lindh v. Murphy, 521

U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim

decided on the merits in state court proceedings unless the state court’s 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 state court. See 28 U.S.C. § 2254(d).

As a threshold matter, a court must “first decide what constitutes ‘clearly established

Federal law, as determined by the Supreme Court of the United States.’” Lockyer v. Andrade,

538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). “‘[C]learly established federal law’

under § 2254(d)(1) is the governing legal principle set forth by the Supreme Court at the time the

state court renders its decision.” Id. (citations omitted). A federal habeas court making an

unreasonable application inquiry should ask whether the state court’s application of clearly

established federal law was “objectively unreasonable.” See Williams v. Taylor, 529 U.S. 362,

409 (2000). Thus, “a federal court may not issue a writ simply because the court concludes in its

independent judgment that the relevant state court decision applied clearly established federal

law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411.

The AEDPA standard under § 2254(d) is a “difficult” test to meet and is a “highly

deferential standard for evaluating state-court rulings, which demands that state-court decisions

be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). The petitioner

carries the burden of proof and with respect to review under § 2254(d)(1), that review “is limited

to the record that was before the state court that adjudicated the claim on the merits.” Id.

In applying AEDPA’s standards, the relevant state court decision that is appropriate for

federal habeas corpus review is the last reasoned state court decision. See Bond v. Beard, 539

F.3d 256, 289-90 (3d Cir. 2008). Furthermore, “[w]here there has been one reasoned state

judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting

the same claim rest upon the same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); see

also Dennis Sec’y Dep’t of Corr., 834 F.3d 263, 353 n.10 (3d Cir. 2016) (Jordan, J., concurring

in part and concurring in the judgment) (noting that while Ylst predates the passage of AEDPA,

the Ylst presumption that any subsequent unexplained orders upholding the judgment will be

presumed to rest upon the same ground is still valid). Additionally, AEDPA deference is not

excused when state courts issue summary rulings on claims as “[w]hen a federal claim has been

presented to a state court and the state court has denied relief, it may be presumed that the state

court adjudicated the claim on the merits in the absence of any indication or state-law procedural

principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011) (citing Harris v. Reed,

489 U.S. 255, 265 (1989)).

IV. DISCUSSION

Petitioner raises the following claims in his amended habeas petition:

1. Denial of due process and ineffective assistance of counsel when Petitioner appeared

before the jury in prison garb (“Claim I”).

2. Trial court’s failure to apply mitigating factors to the sentence (“Claim II”).

3. Trial court error in failing to instruct the jury on the lesser included offense of

manslaughter (“Claim III”).

4. Ineffective assistance of trial and appellate counsel regarding failure to investigate

whether other jurors had overheard one juror’s (E.R.) phone call (“Claim IV”).

5. Improper admission of hearsay statement concerning the victim’s state of mind about her

fear of Petitioner (“Claim V”).

6. Ineffective assistance of counsel by failing to advise petitioner of the full consequences

of declining a plea offer (“Claim VI”).

7. Trial court error in rejecting Petitioner’s request to charge jury that they were not to

concern themselves about any danger to the community that Petitioner might pose if they

were to find that he was not guilty because of diminished capacity (“Claim VII”).

8. Petitioner deprived right to counsel when trial judge conducted ex parte interview of juror

E.R. in her chambers without Petitioner’s trial counsel being present (“Claim VIII”).

9. Trial, appellate and PCR ineffective assistance of counsel by failing to notice and object

to trial judge’s ex parte interview of juror E.R. (“Claim IX”).

A. Timeliness

As noted supra, Respondents assert this habeas action is untimely. “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.” 28 U.S.C. § 2244(d)(1). That limitations period

begins to run when the criminal judgment becomes “final.”1 A state-court criminal judgment

1 The statute states in full that the limitation period shall run from the latest of -

becomes “final” within the meaning of § 2244(d)(1) at the conclusion of direct review or at the

expiration of time for seeking such review. See Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir.

2000); Morris v. Horn, 187 F.3d 333, 337 n.1 (3d Cir. 1999); see also 28 U.S.C. § 2244(d)(1)(A)

(the 1–year period begins on ‘the date on which the judgment became final by the conclusion of

direct review or the expiration of the time for seeking such review’). When a defendant does not

file a petition for certiorari with the United States Supreme Court, the one-year limitations period

starts to run when the ninety-day period for seeking certiorari expires. See Gonzalez v. Thaler,

132 S. Ct. 641, 653 (2012); Clay v. U.S., 537 U.S. 522, 532 (2003); Morris, 187 F.3d at 337 n.1

(holding that the period of direct review “include[s] the 90–day period for filing a petition for

writ of certiorari in the United States Supreme Court”); U.S. Sup. Ct. R. 13 (90–day deadline to

petition for certiorari).

Petitioner’s direct appeal became final on April 28, 2010. The New Jersey Supreme

Court denied certification on January 28, 2010. Petitioner did not seek a writ of certiorari from

(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;

(B) the date on which the impediment to filing an application

created by State action in violation of the Constitution or laws of

the United States is removed, if the applicant was prevented from

filing by such State action;

(C) the date on which the constitutional right asserted was initially

recognized by the Supreme Court, if the right has been newly

recognized by the Supreme Court and made retroactively

applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due

diligence ....

28 U.S.C. § 2244(d)(1). There is no indication that any subsection other than (A) is applicable in

this case.

the United States Supreme Court on his direct appeal. Thus, unless statutory and/or equitable

tolling apply, Petitioner needed to file his federal habeas petition on or before April 28, 2011.

The filing of a PCR petition may statutorily toll (i.e., suspend) the running of the one-

year habeas limitations period. See 28 U.S.C. § 2244(d)(2) (“The 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.”). A prisoner's application for state collateral review is “‘properly filed’ when its

delivery and acceptance are in compliance with the applicable laws and rules governing

filings[.]” Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 85 (3d Cir. 2013)

(quoting Artuz v. Bennett, 531 U.S. 4, 8 (2000)).

As previously stated, on March 9, 2009, the New Jersey Superior Court denied

Petitioner’s initial PCR petition without prejudice because his direct appeal was still pending.

Petitioner was then instructed specifically by the Office of Public Defender that he needed to

refile his PCR petition after his direct appeal concluded. (See ECF 40-2 at 19 (emphasis added)).

Thereafter, Petitioner filed what he titled a motion for reconsideration in December, 2009

to hold his PCR petition in abeyance. (See ECF 26-12). The motion’s brief though was

essentially another PCR petition. (See ECF 26-13). However, this motion for reconsideration was

untimely because it was not filed within twenty days of the March 9, 2009 order which had

dismissed Petitioner’s PCR petition as prematurely filed due to his pending direct appeal. See

N.J. Ct. R. 1:7-4; 4:49-2. Construed as a motion for reconsideration, this motion does not act to

statutorily toll the AEDPA one-year statute of limitations. See Clement v. Hauck, No. 12-5234,

2015 WL 4171839, at *5 (D.N.J. July 10, 2015). Nevertheless, it appears as if the state courts

also interpreted Petitioner’s December, 2009 filing as another PCR petition. Indeed, the

Appellate Division’s statement in footnote 2 of its 2014 opinion appears to make this clear. (See

ECF 26-20 at 5 n.2 (“Defendant filed a second petition in December, 2009, which was held

without action while the petition for certification was pending in Nayee.II.”) (emphasis added)).

Furthermore, Petitioner’s PCR counsel filed an amended PCR petition in August, 2011. If there

was no pending PCR petition, then it would not have been necessary for counsel to file an

amended PCR petition in August, 2011.

Accordingly, it appears Petitioner had a “properly filed” PCR petition pending from April

28, 2010 (when his judgment became final), until he filed his counseled amended PCR petition

more than fifteen months later on August 11, 2011. That petition was then pending until the New

Jersey Supreme Court denied certification on December 5, 2014. Thereafter, Petitioner filed his

federal habeas petition in this Court in February, 2015, well within AEDPA’s one-year statute of

limitation. Accordingly, statutory tolling saves Petitioner’s federal habeas petition.

Even if statutory tolling did not save Petitioner’s federal habeas petition as described

above, this would not end this Court’s inquiry into timeliness. Indeed, Petitioner’s federal habeas

petition can still be considered timely if he is entitled to equitable tolling. “Generally, a litigant

seeking equitable tolling bears the burden of establishing two elements: (1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.”

Pace v. DiGuiglielmo, 544 U.S. 408, 418 (2005); see also Jenkins v. Superintendent of Laurel

Highlands, 705 F.3d 80, 89 (3d Cir. 2013). “There are no bright lines in determining whether

equitable tolling is warranted in a given case.” See Pabon v. Mahanoy, 654 F.3d 385, 399 (3d

Cir. 2011). The Third Circuit has explained that “equitable tolling is appropriate when principles

of equity would make rigid application of a limitation period unfair, but that a court should be

sparing in its use of the doctrine.” Ross v. Varano, 712 F.3d 784, 799 (3d Cir. 2013) (citing

Pabon, 654 F.3d at 399; Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999)).

For equitable tolling to apply, the Third Circuit has required a showing of reasonable

diligence:

[t]he diligence required for equitable tolling purposes is reasonable

diligence, not maximum, extreme, or exceptional diligence, [citing

Holland v. Florida, 130 S. Ct. 2549, 2565 (2010)]. “This

obligation does not pertain solely to the filing of the federal habeas

petition, rather it is an obligation that exists during the period

appellant is exhausting state court remedies as well.” LaCava v.

Kyler, 398 F.3d 271, 277 (3d Cir. 2005).... The fact that a

petitioner is proceeding pro se does not insulate him from the

‘reasonable diligence inquiry and his lack of legal knowledge or

legal training does not alone justify equitable tolling. See Brown v.

Shannon, 322 F.3d 768, 774 (3d Cir. 2003).

Ross, 712 F.3d at 799. Extraordinary circumstances may be found where: (1) the petitioner has

been actively misled; (2) the petitioner has in some extraordinary way been prevented from

asserting his rights; or (3) where the petitioner has timely asserted his rights in the wrong forum.

See Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001).

This Court is incredibly mindful that equitable tolling should be used sparingly.

However, in this case, and based on this record, if statutory tolling does not save Petitioner’s

federal habeas petition, equitable tolling does. First, Petitioner made the requisite showing that

he pursued his rights diligently. Almost immediately after the New Jersey Supreme Court denied

certification on January 28, 2010, Petitioner attempted to get his PCR petition reinstated with the

New Jersey Superior Court. Indeed, in early March, 2010, only one month after the New Jersey

Supreme Court denied certification, Petitioner had an inmate paralegal contact the criminal

division manager at the Middlesex County Courthouse to get his PCR petition reinstated. (See

ECF 40-2 at 20-21). First, this inmate paralegal contacted the criminal division manager by

telephone. (See ECF 40 at 20; ECF 40-2 at 20). Next, Petitioner and the inmate paralegal wrote

to the criminal division manager on March 3, 2010. (See id. at 21). That letter stated as follows:

[a]s per our conversation on the telephone, Mr. Nayee wish to

proceed with his Post Conviction Relief petition and once your

office has stamped his copy as “FILED” would you kindly return a

copy of the petition to him for his receipt.

(See id. (emphasis added)). It also appears Petitioner wrote a letter to the judge who conduced his

trial and sentenced him at this time, the Honorable Deborah J. Venezia. While Petitioner did not

include a copy of his correspondence to Judge Venezia, Judge Venezia obviously received some

type of correspondence from Petitioner. Indeed, on March 4, 2010, Judge Venezia wrote to

Petitioner and stated the following, “[a]s I am no longer assigned to the Criminal Division I have

forwarded the letter received on March 2, 2010 to the Honorable Frederick P. DeVesa, Presiding

Judge Criminal Division.” (See id. at 22).

At this time, Petitioner also became represented by the New Jersey Office of the Public

Defender in his PCR proceedings. Indeed, Petitioner includes a copy of an April 6, 2010 letter

from the Office of the Public Defender to the same criminal division manager at the Middlesex

County Courthouse Petitioner and the inmate paralegal had previously corresponded with in

March, 2010. (See id. at 24). In that letter, the Assistant Public Defender (“AFD”) stated it

acknowledged receipt of Petitioner’s PCR petition, that the matter should proceed as a PCR and

that the Office of the Public Defender was in the process of preparing the case for attorney

assignment. (See id.). Thus, it appears as if even the assistant federal defender was under the

impression that Petitioner had a pending PCR petition; otherwise, he would not have stated to the

criminal division manager that the matter should “proceed.”

As the record makes clear, Petitioner was exercising reasonable diligence during the

period in question. Furthermore, based on the correspondence Petitioner includes in the record,

and one that Respondents do not dispute, he has made an adequate showing he was misled not

only by the state court’s criminal case manager, who, by virtue of the inmate paralegal’s

contemporaneous correspondence dated March 3, 2010, indicates she would be filing Petitioner’s

PCR petition, but also potentially by the Office of the Public Defender’s April 6, 2010 letter.

Therefore, this Court finds even if statutory tolling did not save Petitioner’s habeas petition, then

equitable tolling does. Accordingly, this Court will analyze Petitioner’s federal habeas petition

on the merits.

B. Merits

i. Claim I

In Claim I, Petitioner asserts he was denied due process and counsel was ineffective

when Petitioner was permitted to appear before the jury in prison garb. With respect to due

process, the last reasoned decision on this claim was from the Appellate Division’s July 5, 2007

opinion during Petitioner’s direct appeal. That court analyzed this claim as follows:

Defendant also contends on appeal that he was denied a fair trial

because he appeared in prison garb throughout the trial. Before

voir dire, the State informed the judge that defendant did not have

any civilian clothing. Upon inquiry, defense counsel stated that he

had no objection to defendant appearing in prison garb because the

jury would, in any event, learn from the medical records that

defendant was incarcerated. Consequently, counsel was not

concerned about prejudice as a result of the jury’s awareness of

defendant’s incarceration.

We have previously declared that it is the responsibility of the

judge to question criminal defendants on the record “concerning

their desire to relinquish the right to appear in civilian clothing,”

and to accept this waiver only through “a knowing, intelligent and

voluntary waiver on the record. . . .” State v. Carrion-Collazo, 221

N.J. Super. 103, 112 (App. Div.), certif. denied, 110 N.J. 171

(1988). The presumption against a defendant appearing in prison

garb exists because it ‘“may affect a juror’s judgment,’ [it]

‘furthers no essential state policy’ and [it] ‘operates usually against

only those who cannot post bail prior to trial.’” Id. at 109 (quoting

Estelle v. Williams, 425 U.S. 501, 505, 96 S. Ct. 1619, 1693, 48 L.

Ed. 2d 126, 131 (1976)).

The case law has further evolved to the extent the Supreme Court

has directed that even defense witnesses should not testify in

prison garb and that corrections authorities must supply

incarcerated defense witnesses with civilian clothing. State v.

Artwell, 177 N.J. 526, 534-35 (2003). Furthermore, such clothing

must be of reasonable size, cleanliness and quality “as to not have

the potential to diminish [defendant’s] credibility before the jury.”

State v. Herrera, 385 N.J. Super. 486, 499 (App. Div. 2006). These

requirements were established because “the trial court is

responsible for assuring that the presumption of innocence is not

lost at any stage in the proceedings because of extraneous,

impermissible factors such as defendant’s physical appearance.”

State v. Maisonet, 166 N.J. 9, 22 (2001).

Defendant now contends that he was denied a fair trial because his

counsel allowed him to appear in prison garb and he now

speculates that could have led the jury to believe that he was

incarcerated because he was still dangerous. While we are

concerned that the judge did not address defendant personally, did

not address defendant’s prison garb during voir dire, and did not

provide cautionary instructions to the jury, we are convinced that

defendant acquiesced in his attorney’s representations to the court.

More fundamentally, we do not perceive, under the facts of this

case, that these actions deprived defendant of a fair trial.

First, defendant did not deny that he killed Mendez, and thus

defendant’s culpability was not at issue, except to the extent it

might have been “excused” or negated by reason of his mental

state. Second, as noted, the safeguards regarding a defendant’s

dress and appearance are implemented to ensure that the

presumption of innocence is not lost. Since defendant conceded

that he committed the homicidal act charged, the presumption of

his innocence was not tainted or lost by his wardrobe. The critical

issue in contention related to his state of mind, and that turned

primarily on the testimony of the expert and treating mental health

specialists.

The requirement that the court personally address a defendant on

the record regarding the decision to wear prison garb and give a

cautionary instruction to the jury serves an important function in

safeguarding a defendant’s presumption of innocence, especially

where the defendant chooses to testify, and we agree it was error

for the judge not to insist upon adherence in this instance.

Nevertheless, because defendant did not testify and because his

conduct was not at issue, the error, allowing defendant to appear in

prison garb, did not, in our opinion, have the capacity to bring

about a result that was unjust.

(ECF 20 at 51-54).

In Estelle v. Williams, 425 U.S. 501, 505 (1976), the United States Supreme Court stated

a defendant could not be compelled to stand trial before a jury in prison garb, reasoning that to

do so would impair the presumption of innocence while serving no state interest. Nevertheless,

the Supreme Court continued, “the failure to make an objection to the court as to being tried in

such clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to

establish a constitutional violation.” See id. at 512-13.

As explained infra, counsel did not object to Petitioner appearing in prison garb at his

trial. Accordingly, pursuant to Estelle, Petitioner is not entitled to habeas relief on this claim

because the failure to object necessarily negates any possible compulsion to establish the

constitutional violation. See United States v. Laprade, 511 F. App’x 181, 185 (3d Cir. 2013)

(finding no due process violation where no indication defendant was compelled to wear orange

jumpsuit during trial and no record of defendant objecting to wearing the jumpsuit during trial);

United States v. Glenn, Crim. No. 15-99-1, 2018 WL 4091788 (E.D. Pa. Aug. 24, 2018) (where

neither government nor the court forced defendant to wear prison garb at trial and no objection

by defendant was made, defendant’s claim that due process violation occurred because he

appeared in prison garb before the jury lacks merit).

Petitioner though also alleges counsel was ineffective in permitting him to appear in

prison garb at trial. Petitioner raised this claim on direct appeal. However, the Appellate Division

determined that it could not be resolved on direct appeal as it was more appropriately addressed

in a PCR petition. (See ECF 20 at 54). It does not appear though that Petitioner subsequently

raised this claim in his PCR proceedings. Accordingly, this ineffective assistance of counsel

claim is unexhausted. Nevertheless, this Court can still deny an unexhausted claim on the merits

if the claim is not “colorable.” See Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002)

(citations omitted).

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated the now

well-known two-prong test for demonstrating when a petitioner is entitled to federal habeas relief

on an ineffective assistance of counsel claim. First, a petitioner must show that considering all

the circumstances, counsel’s performance fell below an objective standard of reasonableness. See

id. at 688; see also Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (noting that it is necessary

to analyze an ineffectiveness claim considering all of the circumstances) (citation omitted). A

petitioner must identify the acts or omissions that are alleged not to have been the result of

reasonable professional judgment. See Strickland, 466 U.S. at 690. Under the first prong of

Strickland, scrutiny of counsel’s conduct must be “highly deferential.” See id. at 689. Indeed,

“[c]ounsel is strongly presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Id. at 690. The reviewing court

must make every effort to “eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Id. at 689. If counsel makes “a thorough investigation of law and facts”

about his plausible options, the strategic choices he makes accordingly are “virtually

unchallengeable.” Gov’t of Virgin Islands v. Weatherwax, 77 F.3d 1425, 1432 (3d Cir. 2006)

(citing Strickland, 466 U.S. at 690-91). If, on the other hand, counsel pursues a certain strategy

after a less than complete investigation, his choices are considered reasonable “to the extent that

reasonable professional judgments support the limitations on investigation.” Rolan v. Vaughn,

445 F.3d 671, 682 (3d Cir. 2006) (citing Strickland, 466 U.S. at 690-91).

The second prong of Strickland requires a petitioner to affirmatively prove prejudice. See

466 U.S at 693. Prejudice is found where “there is 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.;

see also McBridge v. Superintendent, SCI Houtzdale, 687 F.3d 92, 102 n.11 (3d Cir. 2012).

“This does not require that counsel’s actions more likely than not altered the outcome, but the

difference between Strickland’s prejudice standard and a more-probable-than-not standard is

slight and matters only in the rarest case. The likelihood of a different result must be substantial,

not just conceivable.” Harrington v. Richter, 562 U.S. 86, 111-12 (2011) (internal quotation

marks and citations omitted).

“With respect to the sequence of the two prongs, the Strickland Court held that ‘a court

need not determine whether counsel’s performance was deficient before examining the prejudice

suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be

followed.’” Rainey v. Varner, 603 F.3d 189, 201 (3d Cir. 2010) (quoting Strickland, 466 U.S. at

697).

Even if this Court were to assume arguendo that counsel’s failure to object to Petitioner

appearing in prison garb at trial fell below an objective standard of reasonableness, for the

following reasons, Petitioner fails to show prejudice. Indeed, this Court is not persuaded that had

such an objection been made, the outcome of the proceeding would have been different to a

reasonable probability. The case against Petitioner was strong. There was no doubt that

Petitioner killed the victim. The only major issue at trial was whether Petitioner had the requisite

state of mind to be convicted. Where the evidence against a petitioner is strong and a judge

properly instructs the jury on the presumption of innoncence, courts have noted a petitioner has

failed to show prejudice due to counsel’s failure to object. See Carter v. United States, 288 F.

App’x 648, 650 (11th Cir. 2008). In this case, the evidence against Petitioner was strong.

Whether he killed the victim was not up for debate. Furthermore, the trial judge properly

instructed the jury on the presumption of innocence. (See ECF 25-12 at 54-55). Given these

particular facts, Petitioner fails to show he was prejudiced by counsel’s failure to object to his

wearing prison garb at trial. Accordingly, the portion of Claim I which also raises an ineffective

assistance of counsel claim is denied.

ii. Claim II

In Claim II, Petitioner asserts the trial court erred by not applying significant mitigating

factors which would have reduced his sentence to thirty years. Petitioner bases this argument on

his medical history, most notably his mental medical history. This claim does not raise a

constitutional claim. Indeed, courts have noted that a state court failing to consider mitigating

factors at sentencing is not cognizable in a federal habeas proceeding because it only alleges a

violation of state law. See Gonzalez v. Johnson, 15-7564, 2018 WL 6523441, at *7 (D.N.J. Dec.

12, 2018) (citing Gentile v. Warren, No. 11-6125, 2013 WL 85266, at *15 (D.N.J. Jan. 7, 2013)).

Petitioner also appears to raise an ineffective assistance of counsel claim within Claim II

related to resentencing counsel, who was different than Petitioner’s trial counsel. Sentencing

mitigation factor four provides that a sentencing court can consider that “[t]here were substantial

grounds tending to excuse or justify the defendant’s conduct, though failing to establish a

defense.” N.J. Stat. Ann. § 2C:44-1b(4). During original sentencing, Petitioner’s counsel went

through Petitioner’s mental health history and diagnosis at length. (See ECF 25-15 at 5-8). With

respect to mitigation factor four, the New Jersey Superior Court stated as follows at Petitioner’s

original sentencing:

The Court has had the opportunity to have sat through and presided

over the trial in this case as well as to have heard all of the

arguments with respect to this sentencing event and it appears from

all of the information presented that there would be no contest that

Mr. Nayee to some degree suffers from a level of depression.

However, I am unconvinced that the level of that condition is such

that it rises to the level of establishing substantial grounds tending

to excuse or justify the defendant’s conduct. The jury did not

accept the insanity nor diminished capacity defense and counsel is

correct for the defendant when he indicates that a Court can in an

appropriate situation consider that evidence as support for the

finding of mitigating circumstance four.

I have determined that it does not rise to the level of a mitigating

circumstance. I have found that because notwithstanding the

volume of experts who testified on the defendant’s behalf in large

part their reports were based upon a series or number of self-

reported incidents which when considered together along with their

conclusions are inconsistent with what appeared to be other known

facts.

This was a man who, throughout and prior to the commission of

this crime, had an employment history, was employed at one point

as an accounting clerk, another time as an administrator, he

maintained his scholastic degree, an Associates degree, he had

fourteen years of schooling, and there was indications that he had

matriculated at Rutgers although that was not verified. It has been

indicated that he had studied there. There was also no indication of

any other bizarre or outlandish type of behavior.

Based upon the consideration of all these factors I am therefore

satisfied that he did not suffer from a mental condition that would

have risen to the level of establishing substantial grounds to excuse

or justify the conduct in this case and therefore I decline to find

mitigating factor four.

(ECF 25-15 at 17-18). Ultimately, on direct appeal, the New Jersey Supreme Court granted

Petitioner’s petition for certification, “limited solely to the issue of the trial court’s refusal to

consider the record before it in respect to defendant’s mental illness as a mitigating factor under

N.J.S.A. 2C:44-1b(4) in arriving at its sentence.” (ECF 26-4 at 1). Thus, the matter was remanded

back to the Superior Court to consider State v. Nataluk, 720 A.2d 401, 408 (N.J. Super. Ct. App.

Div. 1998) (finding that it does not follow from jury’s rejection of insanity defense that

defendant’s mental condition could not constitute a mitigating factor at sentencing).

The resentencing hearing was conducted by the same judge who presided over

Petitioner’s trial and originally sentenced Petitioner. At resentencing, Petitioner had new counsel

who argued as follows:

It is my understanding, there is a question concerning the mental

capacity of this defendant during the course of the trial. There were

experts produced on behalf of the defendant in that regard. And, I

believe, there were some indications during the course of the trial,

I believe the State produced, according to the decision and the

transcript, only one expert in that regard.

Where there was numerous produced by the defense, as to the

condition of Mr. Nayee, during the course of the subsequent

events, and even maybe possibly preceding the events . . . .

knowing your Honor recalls the trial, your Honor probably has trial

notes.

(ECF 26-5 at 2). Ultimately, at resentencing, the Superior Court again declined to find that the

proofs established mitigating factor four. (See id. at 5).

Petitioner claims in his petition that resentencing counsel did not review the full record

and simply re-read the original transcript from the sentencing hearing. (See ECF 20 at 10).

Petitioner rehashes his medical mental history that was elucidated at trial. Of course, this

information was already part of the record and brought forth during trial, original sentencing and

mentioned by resentencing counsel at the resentencing hearing. Petitioner does not come forward

with any additional evidence with respect to his medical mental history that counsel should have

added at resentencing. Accordingly, for these reasons, this Court fails to see how Petitioner is

entitled to federal habeas relief on this ineffective assistance of counsel claim at resentencing.

In addition to arguing resentencing counsel should have stressed more about his medical

mental history at resentencing, Petitioner goes further in his reply brief by arguing that his

assigned counsel “failed to investigate additional mitigating factors in support of the

resentencing hearing, such as, Petitioner had completed several mental group and other programs

to improve himself since his incarceration, and that he was free from any institutional

infractions.” (ECF 40 at 61-62).

At the outset, this Court notes that raising this issue and attempting to present additional

facts in a reply brief for the first time is improper. See McNeil v. Johnson, No. 18-10003, 2019

WL 1650283, at *12 (D.N.J. Apr. 17, 2019) (citing D’Allessandro v. Bugler Tobacco Co., No.

05-5051, 2007 WL 130798, at *2 (D.N.J. Jan. 12, 2007) (quoting Int’l Raw Materials, Ltd. V.

Stauffer Chem. Co., 978 F.2d 1318, 1327 n. 11 (3d Cir. 1992)); see also Judge v. United States,

119 F. Supp. 3d 270, 284 (D.N.J. 2015)). “[T]his doctrine applies not only in standard civil suits,

but is also applicable to reply briefs in habeas proceedings as ‘[b]asic fairness requires that an

opposing party have a fair notice of his adversary’s claims, as well as an opportunity to address

those claims.’” McNeil, 2019 WL 1650283, at *12 (quoting Judge, 119 F. Supp. 3d at 284

(quoting Soto v. United States, No. 04-2108, 2005 WL 3078177, at *6 (D.N.J. Nov. 16, 2005));

see also Thompson v. United States, No. 12-1312, 2015 WL 1344793, at *6 n.9 (D.N.J. Mar. 23,

2015)). This is especially true in a habeas case like this where Petitioner certified that he knew he

needed to include in his habeas petition all grounds for relief and the facts that support each

ground. (See ECF 20 at 29 (emphasis added)). This reason alone is enough to deny analyzing this

claim. Nevertheless, in the interest of justice, this Court will also analyze the claim on the merits.

In claiming that counsel was ineffective for failing to investigate, a petitioner must make

a comprehensive showing as to what the investigation would have produced, that the evidence

would have been admissible, and how it would have changed the outcome of his proceeding to a

reasonable probability. See, e.g., Brown v. United States, No. 13-2552, 2016 WL 1732377, at *5

(D.N.J. May 2, 2016) (citing United States v. Askew, 88 F.3d 1065, 1073 (D.C. Cir. 1996)) (other

citations omitted). Petitioner’s conclusory statement that he completed mental health programs

without any supporting documentation falls short of the comprehensive showing necessary to

show prejudice in a failure to investigate ineffective assistance of counsel claim.

Additionally, this Court notes that the New Jersey Supreme Court’s remand to the

Superior Court for resentencing appeared limited to the issue of whether Petitioner’s mental

illness could be considered under mitigation factor four to show that there was substantial

grounds to excuse or justify Petitioner’s conduct. (See ECF 26-4 at 1). Thus, it is certainly

questionable whether the resentencing court would have permitted evidence concerning

Petitioner’s positive experiences with mental health groups post-conviction would have fallen

into a category that the Superior Court was asked to reexamine on remand.

Finally, this Court notes even if Petitioner could overcome the hurdles outlined above, he

has failed to show to a reasonable probability that the outcome of his resentencing would have

been different due to the other mitigating and aggravating factors considered and decided by the

original and resentencing courts. Accordingly, Petitioner fails to show that he is entitled to

habeas relief on this ineffective assistance of counsel claim within Claim II on the merits as well.

iii. Claim III

Petitioner asserts in Claim III that the trial court erred in failing to instruct the jury on the

lesser-included offense of manslaughter to the murder charge. He also asserts that trial counsel

was ineffective for arguing that there was no basis for the instruction. (See ECF 20 at 11-12).

With respect to Petitioner’s claim that the trial court erred in failing to instruct the jury on the

lesser-included manslaughter charge, the Appellate Division decided this claim as follows on

direct appeal:

Regarding defendant's argument that the court erred in failing to

instruct the jury that it could convict defendant of manslaughter as

a lesser-included offense of murder, we recognize that “where the

facts on the record would justify a conviction of a certain charge,

the people of this State are entitled to have that charge rendered to

the jury, and no one's strategy, or assumed (even real) advantage

can take precedence over that public interest.” State v. Powell, 84

N.J. 305, 319 (1980), certif. denied, 87 N.J. 332 (1981). See also

State v. O'Carroll, 385 N.J. Super. 211, 224 (App. Div.), certif.

denied, 188 N.J. 489 (2006); State v. Messino, 378 N.J. Super. 559,

581 (App. Div.), certif. denied, 185 N.J. 297 (2005). “[E]ven in the

absence of a request, ... ‘a trial court has an independent obligation

to instruct on lesser-included charges when the facts adduced at

trial clearly indicate that a jury could convict on the lesser while

acquitting on the greater offense.’ “ State v. Thomas, 187 N.J. 119,

132 (2006) (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)).

See also N.J.S.A. 2C:1-8e. “Conversely, a trial ‘court ha[s] no duty

to instruct the jury sua sponte on [an included offense charge if]

the evidence [does] not clearly indicate or warrant such a charge.’

“ Thomas, supra, 187 N.J. at 132 (quoting State v. Savage, 172

N.J. 374, 401 (2002)) (bracketed material in original).

Prior to the presentation of closing arguments in this case, the court

inquired of the attorneys whether they wanted an instruction on

aggravated manslaughter submitted to the jury. The prosecutor

responded, “I am not specifically requesting but ... I think the

court's required to charge it.” Counsel for defendant took the

opposite position, suggesting there was no basis in the record for a

charge on lesser-included offenses. After the following exchange,

the court agreed with defense counsel:

DEFENSE COUNSEL: On manslaughter, Judge,

the first time the word reckless was ever mentioned

in this case was just now when [the prosecutor]

utilized that word. I submit it is not the State's

theory. It is not the defense's theory. There has been

no testimony about recklessness. There has been no

evidence from where anyone could reasonably infer

that this was anything other than murder, if they

find it is murder. The State did not open to the jury

in anything other than murder. Did not examine any

of its witnesses in such a way, nor any of its

experts. Actually there is no basis in light of the

mental health defense the jury was not given any

guidance. The prosecutor didn't ask whether

someone could act reckless to his expert nor that is

a theory that the prosecutor attempted to advance.

And I would submit that there is no basis in the

record to charge a lesser included offense.

THE COURT: Do you have anything further on

that, [Mr. Prosecutor]?

PROSECUTOR: No, Judge, I stand on my position

on that.

THE COURT: I concur with [defense counsel] in

that there is no rational basis in the evidence

presentation that was in court1 an aggravated

manslaughter charge as a lesser so I will not charge

that.

Pursuant to N.J.S.A. 2C:11-3a, “criminal homicide constitutes

murder when: (1)[t]he actor purposely causes death or serious

bodily injury resulting in death; or (2)[t]he actor knowingly causes

death or serious bodily injury resulting in death[.]” By comparison,

“[c]riminal homicide constitutes manslaughter when ... [i]t is

committed recklessly[.]” N.J.S.A. 2C:11-4b(1). Pursuant to

N.J.S.A. 2C:11-4a, “[c]riminal homicide constitutes aggravated

manslaughter when [ ] the actor recklessly causes death under

circumstances manifesting an extreme indifference to human

life[.]”

In its opinion in State v. Jenkins, the Supreme Court reiterated the

distinctions between murder and manslaughter as follows:

Thus, the following key distinctions emerge. To be

guilty of SBI [serious bodily injury] murder, the

defendant must have knowingly or purposely

inflicted serious bodily injury with actual

knowledge that the injury created a substantial risk

of death and that it was “highly probable” that death

would result. In aggravated manslaughter, by

contrast, the defendant must have caused death with

an “awareness and conscious disregard of the

probability of death.” If, instead, the defendant

disregarded only a “possibility” of death, the result

is reckless manslaughter.

[Jenkins, supra, 178 N.J. at 363 (emphasis in

original) (citations omitted).]

At trial, defendant did not deny the homicidal act, that is, that he

inflicted injuries that caused the death of Ann Mendez. Instead,

defendant advanced alternative defenses of insanity, N.J.S.A. 2C:4-

1, and diminished capacity, N.J.S.A. 2C:4-2, stating that due to a

mental disease defect, his conduct should be excused or that it

negated the intent required for murder.

Respecting the insanity defense, N.J.S.A. 2C:4-1 provides:

A person is not criminally responsible for conduct if

at the time of such conduct he was laboring under

such a defect of reason, from disease of the mind as

not to know the nature and quality of the act he was

doing, or if he did know it, that he did not know

what he was doing was wrong. Insanity is an

affirmative defense which must be proved by a

preponderance of the evidence.

Diminished capacity, which is addressed in N.J.S.A. 2C:4-2,

provides:

Evidence that the defendant suffered from a mental

disease or defect is admissible whenever it is

relevant to prove that the defendant did not have a

state of mind which is an element of the offense. In

the absence of such evidence, it may be presumed

that the defendant had no mental disease or defect

which would negate a state of mind which is an

element of the offense.

The Supreme Court observed in State v. Delibero, 149 N.J. 90, 92-

93 (1997), “Diminished capacity describes a disease or defect of

mind that may negate the mental state that is an element of the

offense charged. The insanity defense exculpates an actor from

guilt for conduct that would otherwise be criminal.”

Thus, the proofs would have allowed the jury to find either that

defendant acted out of jealousy, as the State urged, or that he

obeyed the voices in his head, and as Dr. Latimer testified, his was

a “sudden impulsive homicidal act.” If the jurors rejected the

validity of the mental defense, they could find he acted purposely

or knowingly; it was murder. If, however, they found defendant

had a mental disease or defect that prevented him from acting

purposely or knowingly, they could conclude either that (a) the

State failed to prove that defendant could understand it was wrong

to kill Mendez-he was not guilty by reason of insanity-or (b) it

failed to prove defendant could form the requisite state of mind for

murder. There was, however, no evidence in the record that

defendant's act was committed recklessly or in the heat of

provocation or passion. N.J.S.A. 2C:11-4b(1) and (2).

Defendant, through counsel, specifically requested that the charge

on aggravated manslaughter not be given, and while “no defendant

should be convicted of a greater crime or acquitted merely because

the jury was precluded from considering a lesser offense,”

O'Carroll, supra, 385 N.J.Super. at 224, a charge on a lesser-

included offense must be given only if the evidence clearly

supports it. In other words, the facts must “clearly indicate a jury

could convict on the lesser while acquitting on the greater

offense.” Thomas, supra, 187 N.J. at 132 (citation and internal

quotation omitted). That was not shown in this instance.

State v. Jenkins is factually distinguishable. There, the defendant

“bashed” the victim in the head with a brick causing him to fall

down a flight of stairs headfirst to the pavement below. Jenkins,

supra, 178 N.J. at 355. According to autopsy evidence, the blow

from the brick likely caused the victim to lose consciousness, but

he ultimately died from the skull and brain injuries resulting from

his fall to the pavement. Id. at 354. At trial, “defendant argued

against instructing the jury on lesser-included offenses pertaining

to homicide, preferring to gamble with an all-or-nothing approach

on the murder charge.” Id . at 356. As here, the State argued the

lesser-included offenses should have been charged. Ibid. Following

his conviction for murder, defendant argued that, notwithstanding

his request at trial, the court erred in failing to instruct on the

lesser-included offenses of reckless manslaughter and aggravated

manslaughter. Id. at 357.

In its review, the Supreme Court first rejected the notion that

defendant's reversal of position was precluded by the doctrine of

invited error or judicial estoppel, reasoning instead that the trial

court had independently arrived at its decision not to instruct on

the lesser-included offenses. Jenkins, supra, 178 N.J. at 360-61. In

other words, the trial court had acceded to defendant's request,

without having been manipulated or misled into error. The trial

court had recognized defendant's tactical reasons for requesting an

all-or-nothing charge, but it had made its decision on the basis of

its belief that “there [was] no way that the jury could find

reasonably that the striking of this person was done in anything

other than purposeful, knowing, intentional manner.” Id . at 360.

The Court concluded, however, that the trial court's limited focus

on the purposeful, knowing and intentional nature of defendant's

striking of the victim was error:

Instead, the proper inquiry in distinguishing murder

from the two degrees of manslaughter relates to

defendant's state of mind as to the risk of death. A

jury could have concluded that defendant struck

Thomas in order to kill him or with knowledge that

death was certain or highly probable. However, the

facts indicate that the jurors also could have

rationally concluded that defendant struck the

victim not knowing that serious bodily injury would

result in the victim's death, or not knowing that the

injury created a substantial risk of death and that it

was highly probable that death would result. That is,

the jurors could have found that defendant

consciously disregarded a known risk that created

the possibility or probability that death would

follow from his conduct.

[Id. at 363-64.]

In this case, the trial court focused upon the effect of defendant's

ability to appreciate the nature of his conduct or to form the

necessary intent for the crime charges.

Also, in O'Carroll, we reversed defendant's conviction of first

degree murder, and remanded the matter for a new trial,

concluding that it was plain error for the court to omit instructions

that would have allowed the jury to consider the lesser-included

offenses of aggravated and reckless manslaughter, as well as the

justification of self-defense. O'Carroll, supra, 385 N.J.Super. at

217. In that case, defense counsel had requested that the court

instruct the jury only on murder and passion/provocation

manslaughter, but had acknowledged that “a jury could find that

the time period between [the victim's] loss of consciousness and

irreversible death involve[d] a conscious disregard of a substantial

and unjustified risk that death could have either possibly resulted

or probably resulted.” Id. at 225. There, a factual basis for the

charge of manslaughter was apparent, and defendant contended on

appeal that, in the statement he gave to the police, he had said he

and the victim had been involved in a violent struggle in which the

defendant thought the victim was about to stab him. Defendant

also contended on appeal that he accidentally wrapped a telephone

cord tight around the victim's neck as he attempted to make her

drop the knife. Id. at 229. Thus, a jury could have concluded the

defendant in Carroll began choking the victim only to prevent her

from stabbing him and without intending the pressure he applied to

her neck or the length of time he applied that pressure would result

in her death. Id. at 229-30.

By contrast, in the context of the defense strategy in this case,

defendant contends he killed Mendez out of obedience to the

commanding voices. He was not acting out of self-protection and

did not contend that her death was not the intended or expected

result of his act. He conceded he caused the death of Mendez, but

argued that he was not capable of murder because of his mental

disease or defect. Because the record is devoid of the details of the

killing, we cannot conceive that a jury could rationally acquit

defendant of the murder charge but find him guilty of aggravated

manslaughter. Reviewing the ruling under the plain error standard,

whereby it will not be overturned unless it is “clearly capable of

producing an unjust result,” R. 2:10-2, we find no basis to disturb

the trial court's decision not to include an aggravated manslaughter

charge.

State v. Nayee, No. A-5060-04T4, 2007 WL 1931336, at *4–7 (N.J. Super. Ct. App. Div. July 5,

2007), certif. granted, cause remanded on other grounds, 932 A.2d 27 (N.J. 2007).

Petitioner is not entitled to federal habeas relief on his claim. First, as noted by the

Appellate Division, Petitioner’s counsel expressly stated that he did not want the trial court to

charge the jury on manslaughter. Furthermore, the United States Supreme Court has never

recognized that an individual has a due process right to jury instructions on lesser-included

offenses in non-capital cases. See, e.g., Gilmore v. Taylor, 508 U.S. 333, 342 (1993) (“Outside of

the capital context, we have never said that the possibility of a jury misapplying state law gives

rise to federal constitutional error”); Geschwendt v. Ryan, 967 F.2d 877, 884 n.13 (3d Cir. 1992)

(observing that the Supreme Court, in Schad v. Arizona, 501 U.S. 624 (1991), cast doubt on the

theory that due process always requires the court to instruct on a lesser-included offense in non-

capital offenses by applying a harmless-error standard; conviction of an offense higher up on the

ladder, is a reliable indicator that a jury would not have convicted of the least included offense

that was not charged); cf. Beck v. Alabama, 447 U.S. 625, 627 (1980) (holding it unconstitutional

to impose a sentence of death “when the jury was not permitted to consider a verdict of guilt of a

lesser included non-capital offense”). Because this is a non-capital case, the denial of this claim

by the state court was not contrary to or an unreasonable application of clearly established

federal law.

Petitioner is also not entitled to federal habeas relief on his claim that his trial counsel

was ineffective for failing to request the lesser-included manslaughter charge. Petitioner raised

this claim on direct appeal, but the Appellate Division determined that it was more appropriately

raised in PCR proceedings. (See ECF 20 at 49). It does not appear though that Petitioner

subsequently raised this claim during the PCR proceedings. Accordingly, this Court will consider

this claim on the merits to determine whether it is “colorable.”

To show prejudice, Petitioner would have to show that there is a reasonable probability

that the jury would have convicted him of manslaughter and not of murder had counsel made the

request. See Breakiron v. Horn, 642 F.3d 126, 138 (3d Cir. 2011). Under New Jersey law:

Criminal homicide constitutes manslaughter when:

(1) It is committed recklessly; or

(2) A homicide which would otherwise be murder

under N.J.S. 2C11-3 in the heat of passion resulting

from a reasonable provocation.

N.J. Stat. Ann. § 2C:11-4b. Here, as noted by the Appellate Division, there was no reasonable

evidence produced at trial that Petitioner acted in a reckless manner. Accordingly, he fails to

show the requisite level of prejudice to be entitled to relief on this ineffective assistance of

counsel claim. See, e.g., Jackson v. Britton, No. 08-4203, 2010 WL 1337730, at *7 (E.D. Pa.

Apr. 6, 2010) (even if trial counsel had not requested involuntary manslaughter charge,

ineffective assistance of counsel claim would fail since trial evidence did not reasonably support

verdict for involuntary manslaughter). Thus, Claim III is denied.

iv. Claim IV

In Claim IV, Petitioner raises an ineffective assistance of counsel claim against both trial

and appellate counsel. This claim relates to issues concerning juror #14, E.R. The Appellate

Division during Petitioner’s PCR proceedings outlined the underlying facts surrounding the

claims related to juror E.R. as follows:

Jury selection was conducted on Wednesday, September 15, 2004.

The court explained to prospective jurors that defendant was

charged with murder. The court questioned all prospective jurors

regarding their opinions about the insanity defense, mental health,

and psychiatry. Multiple times during jury selection, the judge

advised prospective jurors not to discuss the case among

themselves or with others.

Jury selection continued until the late afternoon. Defense counsel

had exercised twelve peremptory challenges. The last juror seated

was E.R. He provided brief biographical information, and stated he

had no positive answers to the multiple questions designed to

detect bias, an inability to be fair and impartial, or strong attitudes

about mental illness and the insanity defense. Both sides declared

the jury was satisfactory. Following a brief recess, the jury was

sworn and the judge delivered the standard instructions. The jury

was then released until the following Tuesday afternoon.

Sometime before the resumption of trial, the trial judge received a

telephone call from a member of the full array, Ms. G., who was

not selected as a juror. Ms. G. reportedly told the judge that she

overheard E.R. speaking on his cellphone on the previous

Wednesday. According to Ms. G., as the judge restated on the

record, E.R. said “to the effect of if the prosecution does what it's

supposed to do, then it's a slam-dunk case.” The court did not

speak to Ms. G. on the record or in the presence of counsel. So,

Ms. G.'s precise statement and when it was received was not

preserved. The judge apparently informed counsel of her

conversation with Ms. G., although she apparently did so off the

record as well. The judge then interviewed E.R., again without

counsel present, but on the record.

E.R. admitted that he discussed the case with another person on the

previous Wednesday, but denied he made the statement as Ms. G.

described. He claimed he said, “[I]f the prosecution proofs [sic] its

case then ... you know, he'll be found guilty. I said it's up to the

prosecution to prove it and the defense to disprove it. That's what a

jury trial is.” E.R. claimed he made the call outside the courthouse

during the middle part of the afternoon—which would have been

before the jury was sworn. E.R. insisted that he had not reached

any conclusions about the case. The judge did not ask E.R. if he

spoke to the other jurors about his views. Nor did the judge inquire

whether he observed other prospective jurors nearby when he had

the overheard conversation. The judge segregated him from the

other jurors and directed him not to speak to them in the future.

The judge then brought the attorneys into chambers. Defense

counsel requested that E.R. be excused (defense counsel apparently

was previously informed, off-the-record, of Ms. G.'s allegations).

The prosecutor asked for a summary of what E.R. said in his

interview with the judge. The court then asked the reporter to read

back E.R.'s statement. We quote the colloquy in full:

THE COURT: [E.R.], please have a seat.

I needed to bring you in here because I got a report

last week. We adjourned last Wednesday and

apparently an individual who is not on the panel

selected as the jury in this case but was in the

general audience had occasion to overhear a

conversation that you had on a cell phone

downstairs I guess before—either before you came

up and got sworn in or before you left for the day,

and I don't know if you recall the contents of that

phone call—

JUROR [E.R.]: No.

THE COURT:—or making a phone call, but I will

tell you that she claims she overheard you indicate

something to the effect of if the prosecution does

what it's supposed to do, then it's a slam-dunk case.

Is that possibly something that you could have said?

JUROR [E.R.]: No. What I would have said and

what I believe I said, if the prosecution proves its

case—

THE COURT: If the prosecution—

JUROR [E.R.]: Yeah. If the prosecution proofs [sic]

its case then—

THE COURT: Okay.

JUROR [E.R.]:—you know, he'll be found guilty. I

said it's up to the prosecution to prove it and the

defense to disprove it. That's what a jury trial is.

THE COURT: Do you recall where you were

specifically within the jury assembly area when you

made the phone call?

JUROR [E.R.]: I wasn't in the building. It was

outside of the building.

THE COURT: Okay. It was outside of the building?

JUROR [E.R.]: It was outside of the building.

THE COURT: And was it after we had recessed for

the day, you were on your way home, or was it

during the recess after you went downstairs?

JUROR [E.R.]: I do not remember. I don't believe it

was—if it was the end of the day. What time was

the recess? That will—

THE COURT: Late afternoon, but I don't recall.

JUROR [E.R.]: After three?

THE COURT: It was probably around three.

JUROR [E.R.]: No. Then it wasn't the latter part. It

was during the middle part.

THE COURT: Okay. Have you in your own mind

reached any conclusions, come to any judgments

with respect to this case whatsoever one way or the

other?

JUROR [E.R.]: No. It's strictly a matter—as a

matter of fact, I had a discussion about serving on

the jury with my family and I explained to them

inasmuch as I might have a personal reason where I

don't want to because of a job that's irrelevant.

There are people overseas who are being killed to

protect our way of life. The least I could do is do

this which is part of what I'm supposed to do as a

citizen.

Any comment that I made was either

misinterpreted, might have been. I understand your

feelings, you have to—the law is the law as you had

stated, but, as far as I'm concerned, I find the whole

process fascinating. It's something that I always

wanted to do, never quite had the ability in terms of

financial or any otherwise to be able to do this. It's

very simple.

THE COURT: All right. I'm going to ask you,

number one, not to speak about this in-chambers

conference with anyone at this point—

JUROR [E.R.]: Absolutely not.

THE COURT:—and I'm going to ask you—I'm

going to have you put in another room because I

have to discuss the matter with the attorneys, but

I'm going to ask you to just stay in that room and

we'll be back to you shortly.

Okay. Thank you.

JUROR [E.R.]: Which room?

THE COURT: The sheriff's officer will direct you.

Thanks [E.R.].

JUROR [E.R.]: You're very welcome.

The judge declined to find whether or not E.R.'s version of his

telephone conversation was credible. Over the State's objection,

the court decided to excuse E.R. “[I]n the interest of making sure

that we do have a panel that has not come to any conclusions,

drawn any inferences under the circumstances, I am going to

dismiss the juror for cause....” Defense counsel did not request a

voir dire of the remaining jurors.

The judge and counsel returned to the courtroom, and the judge

advised the panel that “[w]e will be proceeding with a jury panel of

13, ladies and gentlemen.” Counsel then gave opening statements,

and the trial proceeded.

State v. Nayee, No. A-4559-11T2, 2014 WL 2197863, at *2–4 (N.J. Super. Ct. App. Div. May

28, 2014).

In his habeas petition, and specifically within Claim IV, Petitioner claims that trial

counsel was ineffective by failing to further investigate or inquire whether any other jurors were

present when E.R.’s phone conversation took place. (See ECF 20 at 14). Trial counsel was

purportedly also ineffective by failing to voir dire each individual juror on the issue. (See id.)

The Appellate Division analyzed this claim during Petitioner’s PCR proceedings as follows:

We are guided by fundamental principles regarding juror

misconduct. “A defendant's right to be tried before an impartial

jury is one of the most basic guarantees of a fair trial.” Loftin,

supra, 191 N.J. at 187. “The Sixth Amendment of the United

States Constitution and Article I, paragraph 10 of the New Jersey

Constitution guarantee criminal defendants ‘the right to ... trial by

an impartial jury.’ “ R.D., supra, 169 N.J. at 557 (quoting U.S.

Const. amends VI, XIV; N.J. Const. art. I, ¶ 10). “That

constitutional privilege includes the right to have the jury decide

the case based solely on the evidence presented at trial, free from

the taint of outside influences and extraneous matters.” Ibid.

The court has an independent duty to determine whether a juror or

jurors have been tainted, to remove tainted jurors, and then

determine whether the trial may proceed with the remaining jurors,

or a mistrial is warranted. Id. at 558–61. R.D. addressed taint

resulting from extraneous information, calling into question a

defendant's right to be judged based on evidence received in open

court and not from outside sources. Id. at 557 (citing State v. Bey,

112 N.J. 45, 75 (1988)). The juror in that case was a nurse who had

treated the alleged victim's grandmother, had “overheard things,”

and formed an opinion about the case. Id. at 555–56. Bey, supra,

involved detailed and prejudicial newspaper articles about the

defendant, and his prior convictions. 112 N.J. at 56, 79–81.

In State v. Wormley, 305 N.J. Super. 57, 68 (App. Div.1997),

certif. denied, 154 N.J. 607 (1998), a juror disclosed in the middle

of the first day of trial that she was familiar with witnesses and had

gained knowledge of facts relevant to the trial. The juror denied

she shared her knowledge with others, and the court excused her.

Id. at 69. Nonetheless, we found plain error because the court did

not voir dire the remaining jurors. Ibid. Under those circumstances,

we concluded “there was a strong likelihood that, even indirectly

or unintentionally,” the juror may have conveyed her knowledge to

other jurors. Id. at 70.

However, taint may result, as alleged here, from a juror's biases or

preconceptions that deny a defendant his right to an impartial jury.

“So important is the quality of impartiality in the trial of criminal

prosecutions that jurors who have formed an opinion as to the guilt

or innocence of the defendant must be excused.” State v. Williams,

93 N.J. 39, 61 (1983). Racial prejudice is particularly troublesome.

“[A]n allegation that a juror is racially biased strikes at the very

heart of the defendant's right to a trial by an impartial jury.” State

v. Phillips, 322 N.J. Super. 429, 442 (App. Div.1999). If a biased

juror conveys his or her views to fellow jurors, that extraneous

information may undermine the other jurors' impartiality. See State

v. Tyler, 176 N.J. 171, 176–77, 183 (2003) (allowing juror who

expressed racial bias to remain on the jury for a day as a sanction

before being excused created a presumption of prejudice).

Upon receiving evidence that a juror may be tainted—by

extraneous information or intrinsic bias—the court is obliged to

inquire, initially of the allegedly tainted juror, to determine if that

juror or other jurors have been tainted. R.D., supra, 169 N.J. at

558. Whether the trial court's inquiry requires questioning of the

entire jury panel is left to the trial court's sound discretion. The

Court expressly rejected a per se rule that required inquiry of all

remaining jurors. Id. at 561. “Although the court should not simply

accept the juror's word that no extraneous information was

imparted to the others, the court's own thorough inquiry of the

juror should answer the question whether additional voir dire is

necessary to assure that impermissible tainting of the other jurors

did not occur.” Ibid.

A court may decide that inquiring of other jurors could cause harm,

by conveying inappropriate information. Ibid. The broader inquiry

also depends on a finding that “there is a realistic possibility that

information with the capacity to prejudice defendant's right to a

fair trial may have reached members of [the] jury.” Bey, supra, 112

N.J. at 86. Generally, any questioning of the jury panel should be

conducted individually, and in camera, to assure frank and

uninhibited responses, and to avoid spreading taint from one juror

to the others. Id. at 86–89.

Whether a new trial is compelled is also a discretionary decision.

A new trial, however, is not necessary in every

instance where it appears an individual juror has

been exposed to outside influence. See Smith v.

Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 946, 71

L. Ed. 2d 78, 86 (1982) (“[D]ue process does not

require a new trial every time a juror has been

placed in a potentially compromising situation....

[I]t is virtually impossible to shield jurors from

every contact or influence that might theoretically

affect their vote.”). Ultimately, the trial court is in

the best position to determine whether the jury has

been tainted. That determination requires the trial

court to consider the gravity of the extraneous

information in relation to the case, the demeanor

and credibility of the juror or jurors who were

exposed to the extraneous information, and the

overall impact of the matter on the fairness of the

proceedings.

[R.D., supra, 169 N.J. at 559.]

The new trial decision requires a showing not of actual prejudice,

but the capacity of the irregular matter to influence the result of the

trial. Id. at 558 (citing Panko v. Flintkote Co., 7 N.J. 55, 61

(1951)).

With these principles in mind, we turn to the PCR court's review of

the trial court's inquiry. We part company with the PCR court's

characterization of E.R.'s comments. Particularly given the

sparseness of the record (resulting from the trial judge's limited

questioning), and the trial judge's failure to make credibility

findings, the PCR court had no basis to credit E.R.'s version of

what he said, as opposed to what Ms. G. claimed. In our view,

E.R.'s reference, as reported by Ms. G., to what the prosecution “is

supposed to do,” displayed a potential bias in favor of the

prosecution. E.R.'s view that the case could be a “slam-dunk,”

reflected a pre-conception about the likely nature and complexity

of the case, if not about defendant's guilt.

Even if E.R.'s statement were as he claimed, he expressed a serious

misunderstanding of the law. Stating “it's up to the prosecution to

prove it and the defense to disprove it,” he erroneously attributed a

burden to defendant. Moreover, by discussing the case with

another person in the midst of jury selection, E.R. clearly violated

the trial judge's repeated admonition not to do so.

“[A]ll doubts about a juror's integrity or ability to be fair should be

resolved in favor of removing the juror from the panel.” See Loftin,

supra, 191 N.J. at 187. The trial court did not affirmatively find

that E.R. was telling the truth about what he said. The court also

did not correct the juror regarding the burden, and find that the

juror was capable of following the law on that point. Given the

state of the record, it was appropriate to excuse E.R.

The PCR court emphasized that there was no evidence that E.R.

shared his opinions with any of the sworn jurors. However, there

also was no evidence that E.R. did not. The record is unclear

because the trial judge did not ask E.R. whether he had done so.

There is no evidence the judge asked Ms. G. if other members of

the jury array were nearby; and the judge did not ask the

impanelled jurors themselves whether E.R. spoke to them, or if

they overheard him.

Although the trial judge's inquiry should have been more probing,

and a voir dire of the whole panel would have been preferred, we

are not satisfied that voir dire of the entire panel was required, nor

that a new trial would have been warranted in the absence of such

an inquiry. We reach that conclusion based on the nature of E.R.'s

remarks, and the court's swift action in removing E.R.

Even assuming E.R.'s remarks were as Ms. G. reported, they did

not have the toxicity of racially biased comments, as in Loftin,

Tyler, or Phillips. In Loftin, supra, a juror expressed bias against

African–Americans in a case involving an African–American

defendant, and expressed a premature conclusion, after four days

of trial, that defendant was guilty. 191 N.J. at 183–84. The juror

was quoted as saying he was going to buy a rope with which to

hang the defendant. Id. at 184. Nor did E.R .'s remarks reflect

knowledge of extraneous information or facts, such as those

imparted by newspaper reports or other outside sources, as in Bey,

or by the personal knowledge of a juror, as in R.D. We recognize

that it may be difficult for jurors to ignore such information, once

imparted.

The risks of taint were also reduced by the trial judge's swift

decision to remove E.R. and direct him to have no further contact

with other jurors. That fact also distinguishes this case from those

in which a biased juror remains on the panel, presenting a greater

risk of infecting the jury. Cf. Loftin, supra, 191 N.J. at 185 (juror

remained on the panel for duration of the trial before being

designated an alternate); Tyler, supra, 176 N.J. at 179 (juror made

to remain on the panel for a day as punishment); Wormley, supra,

305 N.J. Super. at 68 (juror remained on the panel through

openings and the testimony of the first witness).

We recognize that E.R. expressed a potential bias in favor of the

prosecution—referring to what the prosecutor was “supposed to

do”—and a premature assessment of how simple and easy the case

would be—a possible “slam-dunk.” However, even if overheard,

we do not view these remarks as bearing the potential to taint the

impanelled jurors. Those jurors had already been thoroughly

questioned. Counsel and the court were satisfied they were capable

of being fair and impartial.

In many respects, E.R.'s comments were not unlike those

expressed during voir dire by other jurors who were excused for

cause. Not every remark in open court, which may prompt an

individual juror to be excused, presumptively taints the remaining

jurors who overhear it, requiring questioning and other remedial

measures. R.D., supra, 169 N.J. at 559. A prospective juror may

say in open court that he is likely to believe police officers more

than others; or a juror may express the view that a defendant is

likely to have done something illegal because he was indicted.

Moreover, just because a judge may call a juror to sidebar to

continue a discussion of the juror's experiences or view, does not

preclude the possibility that the juror shared those views or

experiences with a fellow member of the array. Our case law does

not require immediate questioning to determine if the mere

mention of those views has tainted the others. We presume, based

upon the jurors' own responses to questioning, and the court's

general instructions, that the remaining jurors are unaffected.

In this case, the jury received the model instruction after the jury

was sworn, which occurred at the end of the day Wednesday, after

E.R.'s overheard remarks. The court repeatedly instructed the

jurors to make their determination of the facts “based solely upon

the evidence submitted during the course of the trial.” The judge

also admonished the jury not to discuss the case with others, and

instructed that it would be improper “for any outside influence to

intrude upon your thinking.” The court directed the jurors to keep

an open mind until the end of the trial, to refrain from deliberating

until then, and to exercise their duties “calmly and without bias,

passion, prejudice or sympathy.” These instructions were sufficient

to overcome any reasonable possibility of taint from E.R.'s

remarks, even if as Ms. G. described, and even if overheard by one

or more impanelled jurors. We presume the jury followed the trial

court's instructions. State v. Burris, 145 N.J. 509, 531 (1996).

As we conclude that the court was not obliged under the

circumstances to voir dire the jury, we reject defendant's argument

that defense counsel was ineffective in failing to request it. See

State v. O'Neal, 190 N.J. 601, 619 (2007) (stating that “[i]t is not

ineffective assistance of counsel ... not to file a meritless motion”);

State v. Chew, 179 N.J. 186, 215 (2004) (rejecting ineffective

assistance claim where evidence did not support unrequested jury

instruction).

Nayee, 2014 WL 2197863, at *5–9.

This Court construes Plaintiff’s claims within Claim IV as two-fold; namely, first, his

trial counsel should have investigated whether any other jurors overheard E.R’s phone

conversation; and, second, trial counsel should have requested the trial judge voir dire the jurors

selected if they had overheard E.R.’s phone conversation.

Where a Petitioner can show that counsel's failure to investigate amounts to deficient

performance, he must still show prejudice. In order to do so,

a defendant basing an inadequate assistance claim on his or her

counsel's failure to investigate must make “a comprehensive

showing as to what the investigation would have produced. The

focus of the inquiry must be on what information would have been

obtained from such an investigation and whether such information,

assuming admissibility in court, would have produce a different

result.”

United States v. Askew, 88 F.3d 1065, 1073 (D.C. Cir. 1996) (quoting Sullivan v. Fairman, 819

F.2d 1382, 1392 (7th Cir. 1987)); see also United States v. Lathrop, 634 F.3d 931, 939 (7th Cir.

2011) (“[w]hen 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”); United States v. Green, 882 F.2d 999, 1002 (5th

Cir. 1989) (“A defendant who alleges a failure to investigate on the part of his counsel must

allege with specificity what the investigation would have revealed and how it would have altered

the outcome” of Petitioner's case); accord United States v. Garvin, 270 F. App'x 141, 144 (3d

Cir. 2008).

In this case, as noted by the Appellate Division, there was nothing to indicate one way or

the other whether any other impaneled jurors overheard E.R.’s purported phone conversation.

Thus, Petitioner fails to show prejudice as to counsel’s purported failure to investigate because

he has come forward with nothing to indicate what further investigation by counsel into what

impaneled jurors would have heard to possible cause taint.

Petitioner’s argument that counsel should have asked the trial judge to voir dire the entire

jury regarding any possible taint due to possibly hearing E.R.’s phone call suffers a similar fate

as Petitioner’s failure to investigate. Indeed, Petitioner has not come forward with anything to

indicate what any potential voir dire of the impaneled jury would have discovered. Thus, he

cannot show that counsel’s purported ineffectiveness in failing to make such a request would

have changed the outcome of his proceedings to a reasonable probability because of the absence

of any record that any juror was purportedly tainted. Accordingly, Petitioner is not entitled to

habeas relief on Claim IV.

v. Claim V

In Claim V, Petitioner asserts that the prosecution, over his objections, was permitted to

introduce inadmissible hearsay statements concerning the victim’s state of mind about her fear of

Petitioner. Petitioner raised this issue during his PCR proceedings. (See ECF 26-20 at 6 n.3) It

was denied without discussion as lacking merit. (See id. at 26). This summary denial is entitled

to AEDPA deference. See Harrington, 562 U.S. at 99. Within his federal habeas petition,

Petitioner further claims that appellate counsel was ineffective for failing to raise this issue on

direct appeal. It does not necessarily appear that Petitioner raised this issue of appellate counsel’s

ineffectiveness to raise this issue on direct appeal in his PCR proceedings. Nevertheless, this

Court can still deny this part of Claim V if it is determined to not be “colorable.”

Prior to the victim’s mother testifying at trial, Petitioner’s counsel sought to have the trial

court preemptively instruct the jury. Most notably, counsel asserted concerns about possible

hearsay statements some witnesses would make. (See ECF 25-7 at 2-3). However, the trial court

permitted the government to call its witnesses without giving any preemptive instruction. (See

id.) Thereafter, the victim’s mother testified first that the victim was “scared” of Petitioner. (See

id. at 8). Later, the victim’s mother testified her daughter told her she was “worried about all of

this.” (See id.). After this second reference to the victim’s statements to her mother, Petitioner’s

counsel requested a side-bar conference which was granted. (See id.) At the side-bar conference,

the trial judge instructed the prosecutor to tell the witness to not tell the jury what the victim had

said. (See id. at 9). Thereafter, the sidebar concluded and the prosecutor told the victim’s mother

she could not testify as to things her daughter, the victim said to her. (See id.)

This claim is not cognizable on federal habeas review to the extent petitioner asserts that

the state court's evidentiary ruling violated state law. See Estelle, 502 U.S. at 67–68 (stating that

“it is not the province of a federal habeas court to reexamine state-court determinations of state-

law questions”). The due process inquiry that is applicable to this claim is whether the state

court's ruling was so arbitrary or prejudicial that it rendered the trial fundamentally unfair. See

Romano v. Oklahoma, 512 U.S. 1, 12–13 (1994); see also Keller v. Larkins, 251 F.3d 408, 413

(3d Cir. 2001) (noting that to show that an evidentiary error rises to the level of a due process

violation, a petitioner must show “that it was of such magnitude as to undermine the fundamental

fairness of the entire trial”). The United States Supreme Court has “defined the category of

infractions that violate ‘fundamental fairness' very narrowly.” Dowling v. United States, 493 U.S.

342, 352 (1990).

Under the applicable harmless error test, a habeas petitioner must demonstrate

constitutional error that resulted in “actual prejudice” in order to obtain relief from a federal

court; which asks whether the error had a “substantial and injurious effect or influence in

determining the jury's verdict.” Eley v. Erickson, 712 F.3d 837 (3d Cir.2013) (citing Brecht v.

Abrahamson, 507 U.S. 619, 637–38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). Indeed, the

Supreme Court has stated that “in § 2254 proceedings a court must assess the prejudicial impact

of constitutional error in a state court criminal trial under the ‘substantial and injurious effect’

standard set forth in Brecht, supra, whether or not the state appellate court recognized the error

and reviewed it for harmlessness under the ‘harmless beyond a reasonable doubt’ standard set

forth in Chapman [v. California], 386 U.S. 18 [1967].” Fry v. Pliler, 551 U.S. 112, 121–22

(2007); see also Bond, 539 F.3d at 275–76 (“Fry instructs use to perform our own harmless error

analysis under Brecht ... rather than review the state court's harmless error analysis under the

AEDPA standard.”) In reviewing the record, if a federal habeas court is in “grave doubt” as to

whether the error had a substantial and injurious effect or influence in determining the jury's

verdict, then the error was not harmless. See Adamson v. Cathel, 633 F.3d 248, 260 (3d Cir.

2011) (citing O'Neal v. McAninch, 513 U.S. 432, 438, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)).

The state court’s denial of this claim was not an unreasonable application of clearly

established federal law. This case did not involve whether Petitioner killed the victim. Instead, it

involved Petitioner’s state of mind at the time of the killing. Thus, whether the victim stated she

was “scared” or “worried” about Petitioner to her mother prior to being killed would have had

little to no impact to render the trial fundamentally unfair because the actual act of Petitioner

killing the victim was not at issue. Accordingly, these two statements by the victim being

introduced at trial through the victim’s mother’s testimony did not render the trial fundamental

unfair. Any purported error in permitting the mother to testify regarding two of her daughter’s

statements to her about what she thought of Petitioner was harmless as the statements did not

have a substantial or injurious effect in determining the jury’s verdict based on the issues

presented at trial.

Within Claim V, Petitioner also claims appellate counsel was ineffective in not raising

this hearsay issue on direct appeal. “claims of ineffective assistance of appellate counsel are also

governed by the Strickland standard.” Lusick v. Palakovich, 270 F. App’x 108, 110 (3d Cir.

2008) (citing United States v. Mannino, 212 F.3d 835, 840 (3d Cir. 2000)). In this case,

Petitioner fails to show to a reasonable probability the outcome of his appeal would have been

different had appellate counsel raised this issue. Indeed, while the mother’s two instances of

testifying regarding her daughter’s statements regarding Petitioner may have been hearsay, there

really no doubt Petitioner was the actual perpetrator of the killing. This Court fails to see how

raising this issue would have caused the Appellate Division to reverse Petitioner’s convictions to

a reasonable probability. Accordingly, for these reasons, Petitioner is not entitled to federal

habeas relief on Claim V.

vi. Claim VI

In Claim VI, Petitioner alleges that trial counsel rendered ineffective assistance by failing

to advise him of the full consequences of declining a plea offer. (See ECF 20 at 17-18).

Petitioner states that prior to trial, counsel never mentioned any plea offers made by the state.

There was also no disclosure as to the maximum amount of sentence he would face if he was to

be found guilty according to Petitioner. (See id. at 17).

On appeal during his PCR proceedings, the Appellate Division noted PCR counsel

argued Petitioner’s trial counsel failed to advise him of the consequences of rejecting a plea

offer. See Nayee, 2014 WL 2197863, at *2 n.4. The Appellate Division further noted though

Petitioner was arguing that trial counsel failed to notify him of the plea offer altogether. See id.

The Appellate Division decided this claim as follows:

We turn briefly to address an argument presented in defendant's

pro se brief. Defendant apparently contends that his trial attorney

was ineffective because he did not inform him of a plea offer under

which, in return for a plea of guilty to murder, he would have

received a thirty-year sentence, with a thirty-year period of parole

ineligibility. We need not decide this claim as it was not raised in

defendant's petition before the trial court. See Nieder v. Royal

Indem. Ins. Co., 62 N.J. 229, 234 (1973) (noting generally that

appellate courts will decline to hear issues “not properly presented

to the trial court” unless the questions on appeal address the trial

court's jurisdiction, or concern matters of great public interest).

In any event, defendant does not clearly assert that he would have

accepted such a plea offer had he known about it before trial.

Therefore, we discern no showing of prejudice from any alleged

ineffectiveness in conveying the offer. Moreover, acceptance of a

plea offer would have required defendant to waive the insanity

defense, and acknowledge that he had the state of mind to commit

murder. However, in his sworn statements in support of PCR,

defendant asserted he did not “fully understand what happened on

the evening Ann Mendez died, although I did understand that I was

the person who killed her.” A defendant may not secure PCR based

on a claim he would have accepted a plea offer, where the

defendant's factual basis would entail perjury. State v. Taccetta,

200 N.J. 183, 194–96 (2009).

Nayee, 2014 WL 2197863, at *9.

Petitioner’s Sixth Amendment right to counsel extends to the plea-bargaining process.

See Lafler v. Cooper, 566 U.S. 156, 162 (2012). “When addressing a guilty plea, counsel is

required to give a defendant enough information “‘to make a reasonably informed decision

whether to accept a plea offer.’”” United States v. Bui, 795 F.3d 363, 367 (3d Cir. 2015) (quoting

Shotts v. Wetzel, 724 F.3d 364, 376 (3d Cir. 2013) (quoting United States v. Day, 969 F.2d 39, 43

(3d Cir. 1992))). Potential sentencing exposure is an important factor in a defendant’s decision-

making process. See id. Indeed, as noted by the Third Circuit, “[k]knowledge of the comparative

exposure between standing trial and accepting a plea offer will often be crucial to the decision

whether to plead guilty.” Day, 969 F.2d at 43. “A defendant who rejects a guilty plea and

receives a more severe sentence after trial makes a claim of ineffective assistance when ‘he

alleges that the advice he received was so incorrect and so insufficient that it undermined his

ability to make an intelligent decision about whether to accept the offer.’” Morris v. Adm’r New

Jersey State Prison, 770 F. App’x 601, 605 (3d Cir. 2019) (quoting Day, 969 F.2d at 43). In the

context of rejecting a plea, a petitioner must show that “‘but for counsel’s deficient performance

there is a reasonable probability he and the trial court would have accepted the guilty plea’ and

the resulting sentence would have been lower.” Shotts, 724 F.3d at 376 (citing Lafler, 132 S. Ct.

at 1391).

The Appellate Division’s denial of this claim was not an unreasonable application of

clearly established federal law. The Appellate Division noted Petitioner did not clearly assert he

would have accepted the plea offer had he been presented with it. This is in line with the relevant

law that a petitioner needs to show to a reasonable probability he would have accepted the plea.

Petitioner has come forward with nothing in the record before the state court to counter the state

court’s conclusion that he did not state with any clarity he would have accepted the thirty-year

murder plea offer. In analyzing whether the state court’s decision runs afoul of § 2254(d), this

Court is limited to the record that was before the state court. See Cullen, 563 U.S. at 81.

Accordingly, for this reason, the state court’s denial of this claim was not an unreasonable

application of clearly established federal law. Petitioner is not entitled to federal habeas relief on

Claim VI.

vii. Claim VII

Petitioner argues in Claim VII he is entitled to federal habeas relief when the trial court

failed to instruct the jury as requested by his counsel that the jurors were not to concern

themselves about any possible danger Petitioner could pose to the community if they found him

not guilty by reason of diminished capacity. During the jury charge conference, Petitioner’s

counsel argued as follows:

Your Honor, on page 34 in terms of instructions to the jury to alay

their fears that if they find someone not guilty by reason of insanity

they’re instructed that that does not mean the person is going to be

released into the streets and that was added to give some comfort

and understanding to the jury because it is so intellectually and

emotionally a disconnect and to somehow give them assurance that

even though they are finding this person sick, that they’re not

going to go out and do harm to other people because of their

sickness. They say, well, there’s a check and the check is the

Court, the Court will make a decision when, if someone leaves

based on a not guilty by reason of insanity from an institution, I

would argue that the same concept should apply in this case for the

mental disease or defect since we are arguing and we have said all

along that he is antipsychotic. The State psychiatrist, even Doctor

Hume to the present time finds him psychotic and we do know if

the jury ever found him not guilty either by reason of insanity or

by reason of mental disease or defect he’s going nowhere. He is

absolutely going nowhere because of the treatment he is presently

receiving because of the diagnosis of the various doctors over the

past three years. And I would request that the same assurance

relating to insanity that the jury may have by these word [sic] also

be applied with diminished capacity because the concern, even

danger is equally present. The very reason we have this language

here for insanity is equally applicable to the defense of mental

disease or defect in this case because they’re identical. My position

is not divergent. I am not arguing a different medical position of

insanity as I am for mental disease or defect.

(ECF 24-12 at 7). The trial judge rejected this request by Petitioner’s counsel noting as follows:

[a]gain, the same basis for denying this request as the previous

request to intermingle the legal consequences. They are different

and distinct as set forth in the statute created by the Legislature and

an effort to explain them the same way by putting and interjecting

that language into the charge is not appropriate and I decline to do

so.

(Id. at 8).

Petitioner then raised this issue on direct appeal. The Appellate Division analyzed this

claim as follows:

Defendant also argues that the court erroneously declined to charge

the jurors that they were not to concern themselves with any

danger that defendant might pose to the community should they

find him not guilty due to diminished capacity. Included in the

charge was the following:

A verdict of not guilty by reason of insanity does

not necessarily mean that the defendant will be

freed or that the individual will be indefinitely

committed to a mental institution. Under our law if

you find the defendant not guilty by reason of

insanity, it will then be for the Court to conduct a

further hearing and among other matters, determine

whether or not the defendant's insanity continues to

the present and whether the defendant poses a

danger to the community or himself. The resolution

of those issues will ultimately determine what

appropriate restrictions need to be placed on the

defendant. Thus, procedures exist to adequately

provide for the defendant and to protect the public

in the event the defendant is found not guilty by

reason of insanity.

The court properly declined to give such a charge with regard to

diminished capacity. The insanity charge given by the court is

required under State v. Krol, 68 N.J. 236 (1975). A successful

insanity defense triggers direct consequences, which include court-

ordered evaluations and institutionalizations and reviews. These

consequences are a part of the criminal justice system, and the jury

should be made aware of them. As we have noted above, a

diminished capacity defense “may negate the mental state that is an

element of the offense charged.” Delibero, supra, 149 N.J. at 92.

The Delibero Court explained:

The consequences of a verdict of insanity differ

from one of diminished capacity. A judgment of not

guilty by reason of insanity does not result in a

defendant being set free; rather, the defendant is

subject to further commitment proceedings. A

judgment of not guilty because of the defendant's

diminished capacity does result in a defendant being

set free.

[Id. at 104-05 (citations omitted).]

Consequently, there was no reason for the judge to comment on

any danger defendant might or might not pose to the community

by reason of any alleged diminished capacity and certainly no

reason to suggest that such a commitment proceeding would be

instituted against defendant. The judge correctly declined to charge

the jury on some future event that might never occur.

Nayee, 2007 WL 1931336, at *8–9.

“[A]n error in the instructions to the jury” may violate due process. Henderson v. Kibbe,

431 U.S. 145, 154 (1977). “The question [during habeas review] is whether the ailing instruction

by itself so infected the entire trial that the resulting conviction violate[d] due process.” Id.

(citation and internal quotation marks omitted); accord Waddington v. Sarausad, 555 U.S. 179,

191 (2009). In that regard, it is also “well established” that the challenged instruction “may not

be judged in artificial isolation,” but must be viewed in the context of the overall charge and the

trial record. Cupp v. Naughton, 414 U.S. 141, 146 (1973). Moreover, where the alleged error

consists of failure to give an instruction, the petitioner’s burden is “especially heavy,” because

“[a]n omission, or an incomplete instruction is less likely to be prejudicial than a misstatement of

the law.” Henderson, 431 U.S. at 155. In short, it is the rare case in which “an erroneous

instruction was so prejudicial that it will support a collateral attack on the constitutional validity

of a state court’s judgment.” Id. at 154; accord Middleton v. McNeil, 541 U.S. 433, 437 (2004)

(“not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due

process violation.”). Indeed, “the fact that [an] instruction was allegedly incorrect under state law

is not a basis for habeas relief.” Estelle, 502 U.S. at 71–72. Instead, a habeas petitioner must

establish that the instructional error “had [a] substantial and injurious effect or influence in

determining the jury’s verdict.” Brecht, 507 U.S. at 637. For example, due process is violated

where “the erroneous instructions have operated to lift the burden of proof on an essential

element of an offense as defined by state law.” Smith v. Horn, 120 F.3d 400, 416 (3d Cir. 1997);

see also Williams v. Beard, 637 F.3d 195, 223 (3d Cir. 2011) (noting that due process is violated

when “the instruction contained some ambiguity, inconsistency, or deficiency,” and “there was a

reasonable likelihood that the jury applied the instruction in a way that relieved the State of its

burden of proving every element of the crime beyond a reasonable doubt.”) (internal quotation

marks omitted).

The Appellate Division’s denial of this claim was not an unreasonable application of

clearly established federal law. The potential consequences for not guilty by reason of insanity

and not guilty by reason of diminished capacity are potentially different. Indeed, as noted by the

Appellate Division:

Diminished capacity “describes a disease or defect of mind that

may negate the mental state that is an element of the offense

charged. The insanity defense exculpates an actor from guilt for

conduct that would otherwise be criminal.” Id. at 92-93. In contrast

to insanity, which is an affirmative defense that a defendant must

prove by a preponderance of the evidence, “diminished capacity

refers to evidence that can negate the presence of an essential

mental element of the crime ... [a] jury considers evidence of

diminished capacity in relation to the State's burden to prove the

essential elements of the crime.” Id . at 98-99; see also State v.

Breakiron, 108 N.J. 591, 600-01 (1987); State v. Harris, 141 N.J.

525, 555 (1995). In addition, the consequences of a judgment by

reason of insanity differ from one of diminished capacity. “A

judgment of not guilty by reason of insanity does not result in a

defendant being set free; rather, the defendant is subject to further

commitment proceedings. A judgment of not guilty because of the

defendant's diminished capacity does result in a defendant being

set free.” Delibero, supra, 149 N.J. at 105; see also State v.

Humanik, 199 N .J.Super. 283, 299 (App.Div.), certif. denied, 101

N.J. 266 (1985). Thus, the two concepts are inherently different

both in their substance and in their consequences.

State v. Bachelder, No. A-2908-05T4, 2007 WL 1146722, at *7 (N.J. Super. Ct. App. Div. Apr.

19, 2007).

This Court sees no fault with the rejection of Petitioner’s requested instruction for the

reasons given by the state court. Certainly, omitting the requested instruction did not violate

Petitioner’s due process rights. Accordingly, Claim VII is denied.

viii. Claim VIII

Claim VIII is somewhat related to Claim IV. In Claim VIII, Petitioner argues he was

denied his right to counsel when the trial judge conducted an ex parte interview of juror E.R..

While Petitioner raised issues concerning the circumstances surrounding E.R. in his PCR

proceedings, it does not appear that he raised the issue of the trial judge’s ex parte

communication with E.R. in the context of a right to counsel claim during his initial PCR

proceedings. Indeed, the Appellate Division noted that Petitioner did not raise this claim in its

2014 opinion noting that the judge erred in conducting this interview ex parte. See Nayee, 2014

WL 2197863, at *2 n.6. Petitioner though then raised this issue in another PCR petition. In

deciding this claim, the Appellate Division found this claim was procedurally barred and/or that

it was decided by the Appellate Division in its 2014 decision. (See ECF 27-14 at 3).

Neither party truly addresses whether this claim is procedurally defaulted. Furthermore,

this Court disagrees with the Appellate Division’s characterization of its 2014 opinion that this

claim was previously decided on the merits. Indeed, the Appellate Division’s footnote in its 2014

opinion did not address whether the error by the trial judge was harmless, only that the trial judge

committed error. Notwithstanding these potential procedural roadblocks, this Court will deny

this claim on the merits because it is not “colorable.”

In Rushen v. Spain, 464 U.S. 114, 117-19 (1983), the United States Supreme Court

“emphatically disagreed” with the Ninth Circuit’s conclusion that an unrecorded ex parte

communication between the trial judge and a juror can never be harmless error. More

specifically, the Supreme Court noted as follows:

Our cases recognize that the right to personal presence at all

critical stages of the trial and the right to counsel are fundamental

rights of each criminal defendant. “At the same time and without

detracting from the fundamental importance of [these rights], we

have implicitly recognized the necessity for preserving society's

interest in the administration of criminal justice. Cases involving

[such constitutional] deprivations are [therefore] subject to the

general rule that remedies should be tailored to the injury suffered

... and should not unnecessarily infringe on competing interests.”

United States v. Morrison, 449 U.S. 361, 364, 101 S. Ct. 665, 667,

66 L. Ed. 2d 564 (1981); see also Rogers v. United States, 422

U.S. 35, 38–40, 95 S. Ct. 2091, 2094–2095, 45 L. Ed. 2d 1 (1975).

In this spirit, we have previously noted that the Constitution “does

not require a new trial every time a juror has been placed in a

potentially compromising situation ... [because] it is virtually

impossible to shield jurors from every contact or influence that

might theoretically affect their vote.” Smith v. Phillips, 455 U.S.

209, 217, 102 S. Ct. 940, 946, 71 L. Ed. 2d 78 (1982). There is

scarcely a lengthy trial in which one or more jurors do not have

occasion to speak to the trial judge about something, whether it

relates to a matter of personal comfort or to some aspect of the

trial. The lower federal courts' conclusion that an unrecorded ex

parte communication between trial judge and juror can never be

harmless error ignores these day-to-day realities of courtroom life

and undermines society's interest in the administration of criminal

justice.

This is not to say that ex parte communications between judge and

juror are never of serious concern or that a federal court on habeas

may never overturn a conviction for prejudice resulting from such

communications. When an ex parte communication relates to some

aspect of the trial, the trial judge generally should disclose the

communication to counsel for all parties. The prejudicial effect of

a failure to do so, however, can normally be determined by a post-

trial hearing. The adequacy of any remedy is determined solely by

its ability to mitigate constitutional error, if any, that has occurred.

See, e.g., United States v. Morrison, supra, 449 U.S., at 365, 101

S. Ct., at 668; Rogers v. United States, supra, 422 U.S., at 40, 95 S.

Ct., at 2095. Post-trial hearings are adequately tailored to this task.

See, e.g., Smith v. Phillips, supra, 455 U.S., at 218–219, and n. 8,

102 S.Ct., at 946–947 and n. 8; Remmer v. United States, 347 U.S.

227, 230, 74 S. Ct. 450, 451, 98 L. Ed. 2d 654 (1954).

The final decision whether the alleged constitutional error was

harmless is one of federal law. Chapman v. California, 386 U.S.

18, 20–21, 87 S. Ct. 824, 826, 17 L. Ed. 2d 705 (1967).

Nevertheless, the factual findings arising out of the state courts'

post-trial hearings are entitled to a presumption of correctness. See

28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539, 101 S. Ct.

764, 66 L. Ed. 2d 722 (1981). The substance of the ex parte

communications and their effect on juror impartiality are questions

of historical fact entitled to this presumption. Thus, they must be

determined, in the first instance, by state courts and deferred to, in

the absence of “convincing evidence” to the contrary, by the

federal courts. See Marshall v. Lonberger, ––– U.S. ––––, ––––,

103 S. Ct. 843, 850, 74 L. Ed. 2d 646 (1983).

Rushen, 464 U.S. at 117–20; see also United States v. Riley, 336 F. App’x 269, 271-72 (3d Cir.

2009) (applying harmless error analysis to trial judge’s communication with jury).

This case is even one stepped removed from what was discussed in Rushen in that the

trial judge’s communication with E.R., while ex parte, was recorded. Counsel for both sides

were read back the trial judge’s discussion with the E.R. regarding E.R.’s phone conversation

with someone about the trial. Ultimately, the trial judge removed E.R. from the jury for cause.

Based on this record, any purported error by the trial judge in initially communicating with E.R.

ex parte was harmless error as it did not have a substantial or injurious effect on the outcome of

the case based on these circumstances. Accordingly, Claim VIII is denied.

ix. Claim IX

In Claim IX, Petitioner argues PCR, trial and appellate counsel were ineffective in failing

to raise the arguments he makes in Claim VIII related to the error of the trial judge in conducting

an ex parte interview with E.R. Petitioner raised these claims in his second PCR petition. The

Appellate Division determined these claims were procedurally defaulted. Once again, the party’s

do not explicitly address the potential procedural default of this claim. However, this Court

denies this claim on the merits because it is not “colorable.”

First, Petitioner’s claim that PCR counsel was ineffective does not entitle him to federal

habeas relief. Indeed, 28 U.S.C. § 2254(i) precludes claims for ineffective assistance of PCR

counsel. See Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012) (while ineffective assistance on

initial collateral review proceedings may be grounds for excusing procedural default, it is not the

basis for an independent constitutional claim). Next, this Court finds Petitioner has failed to

show he was prejudiced by trial and appellate counsel’s failure to object to the trial court’s ex

parte interview of E.R. The interview was transcribed and read back to counsel. After

communicating with counsel, the trial judge immediately removed E.R. for cause. Given these

circumstances, this Court fails to see how raising an objection to the trial judge’s ex parte

interview would have changed the outcome of the proceedings to a reasonable probability,

particularly given the harmlessness of the trial judge’s error as previously described.

Accordingly, Claim IX is denied.

V. CERTIFICATE OF APPEALABILITY

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

appealability, an appeal may not be taken from a final order in a proceeding under 28 U.S.C. §

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

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

this standard by demonstrating that jurists of reason could disagree with the district court's

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

adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327

(2003). Applying this standard, this Court finds that a certificate of appealability is only

appropriate on Claims I and III and shall not issue on the remaining claims.

VI. CONCLUSION

For the foregoing reasons, Petitioner’s amended habeas petition is denied. An appropriate

order will be entered.

DATED: April 23, 2021

s/Peter G. Sheridan

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