KATSIGIANNIS v. POWELL

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

JOHN KATSIGIANNIS, Civil Action No. 20-17155 (BRM)

Petitioner,

OPINION

v.

JOHN POWELL, et al.,

Respondents.

MARTINOTTI, DISTRICT JUDGE

Before this Court is the petition for a writ of habeas corpus (“Petition”) of Petitioner John

Katsigiannis (“Petitioner”) brought pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Following an order

to answer, Respondents filed a response to the petition (ECF No. 7) and Petitioner filed a reply

(ECF No. 8). For the reasons set forth below, Petitioner’s habeas petition is DENIED, and no

certificate of appealability shall issue.

I. BACKGROUND

The New Jersey Superior Court, Appellate Division provided the following factual

summary on collateral appeal:1

At the time of the assault, K.P. (Kelly) lived with her mother L.R.

(Lucy) and maternal grandmother. Lucy had been dating [Petitioner]

for a short period, and she testified that she and [Petitioner] would

often bring Kelly along on dates, as she trusted [Petitioner].

[Petitioner] occasionally assisted with Kelly’s care by changing

diapers and babysitting while Lucy was at work.

1 Pursuant to 28 U.S.C. § 2254(e)(1), “In a proceeding instituted by an application for a writ of

habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of

a factual issue made by a State court shall be presumed to be correct. The applicant shall have the

burden of rebutting the presumption of correctness by clear and convincing evidence.”

Throughout the relationship, and because Lucy’s mother would not

allow [Petitioner] to spend nights at their residence, Lucy and Kelly

frequently slept at [Petitioner’s] house in Fair Lawn where

[Petitioner] lived with his father, sister, uncle, and grandparents.

One afternoon, [Petitioner] and Lucy invited friends over to

[Petitioner]’s backyard for a barbeque and then a visit to a nearby

public pool. During the party, [Petitioner] offered to take Kelly

inside for a nap. Lucy agreed because she thought [Petitioner] “was

going to give [her] a little bit of a break to sit down” and she “didn’t

think there was anything odd about it at the time.”

When [Petitioner] did not soon return, Lucy testified at the second

trial that she and [Petitioner]’s friend D.C. (David) went into the

house to look for him. Lucy stated that she and David went to

[Petitioner]’s bedroom upstairs and found the door closed, so David

opened it slightly. In response, according to Lucy, [Petitioner]

closed the door and told them to go outside because [Petitioner]’s

grandmother was sleeping. Lucy testified that she assumed Kelly

was in the room as well. She then stated that when she and David

went downstairs, he said “[i]f that was my kid I would make sure

she was okay.” In response, because she trusted [Petitioner], she told

David that Kelly was “upstairs with [[Petitioner]], she’s okay.”

As Lucy began to get ready to go to the pool, she noticed that

[Petitioner] had changed Kelly into her “swimmie” diapers and

bathing suit. At the pool, [Petitioner] and Lucy stayed in the shallow

end with Kelly. [Petitioner] was holding Kelly in the water when

Lucy noticed “that she was uncomfortable and . . . it looked like she

was cold . . . .” Lucy asked [Petitioner] to give Kelly to her, and

while he initially stated “I got her, I got her,” he eventually

complied. Lucy walked to a bench and quickly changed Kelly into

a dry diaper.

Shortly thereafter, all members of the group except for David

returned to [Petitioner]’s house. According to Lucy, [Petitioner] left

the house a few minutes later “to go see [David] about something

regarding a laptop.” When [Petitioner] returned, his friends left. At

this point, Lucy stated she was going to bathe Kelly, but [Petitioner]

insisted that he do so. [Petitioner] walked her to the bathroom and

closed the door. Lucy testified that shortly thereafter, she opened the

bathroom door and saw Kelly without her clothes on and a bloody

diaper on the floor.

Lucy grabbed Kelly, brought her back into the bedroom, and noticed

an “open tear” on her vagina. Lucy screamed to call an ambulance,

but [Petitioner] replied “[o]h, that doesn’t look like anything. That’s

okay.” In response, Lucy stated that if [Petitioner] did not take them

to the hospital, she was going to call her mother to do so. [Petitioner]

drove Lucy and Kelly to the hospital, and Lucy spoke with

emergency personnel regarding Kelly’s condition. [Petitioner]

testified that at this point, he left to meet with the party guests in

order to “find out . . . any details about what had happened to

[Kelly].” [Petitioner] returned to the hospital at approximately 3:00

a.m.

Leah Raguindin, M.D., was the first doctor to examine Kelly. Dr.

Raguindin determined that Kelly sustained multiple lacerations to

her hymenial tissue and referred her to Victor Valda, M.D., for

surgery. She also referred Kelly to Julia Debellis, M.D., because of

the type of damage and the fact that there was “no explanation for

the injury.”

Dr. Debellis, a board-certified specialist in child-abuse pediatrics,

examined Kelly next. She spoke to [Petitioner] and Lucy separately

regarding Kelly’s injury. Dr. Debellis then performed a physical

examination which revealed blood clots and bruising “all over the

hymen,” as well as lacerations on the hymen. She believed that the

injury occurred within the previous day because the wound was

“oozing blood” and concluded that the injury was caused by “[a]cute

penetrating trauma.” She also testified that the injury could not have

been the result of activities such as “sitting in a baby’s swing[,] . . .

going down on a slide,” or wiping the area. Dr. Debellis contacted

the Division of Youth and Family Services (the Division) and the

Bergen County Prosecutor’s Office “because the injuries reflected

penetrating trauma, and there was no history given about [Kelly]

suffering penetrating trauma.”

Shortly thereafter, Detective Michael Guzman of the Bergen County

Prosecutor’s Office and Detectives James Corcoran and Jeff Welsh

of the Fair Lawn Police Department (FLPD) arrived at the hospital.

FLPD Officer Sean Macys provided them with written statements

he had obtained from [Petitioner] and Lucy. In [Petitioner]’s written

statement, which was admitted at trial, he stated that prior to leaving

for the pool, he “took [Kelly] up to [his] room and took her diaper

off to put a swimming diaper on,” and that night when he and Lucy

“took [Kelly’s] diaper off[,] [they] noticed it was full of blood.” In

Lucy’s written statement, which she read into the record on cross-

examination at the second trial, she stated that before they left for

the pool, [Petitioner] changed Kelly’s diaper and she “was in the

room.” Lucy also wrote that later, as she prepared to bathe Kelly,

“when [she] took off [Kelly's] diaper there was blood in it.”

After reviewing the statements, the officers confirmed the

statements’ contents with [Petitioner] and Lucy and asked

[Petitioner] to accompany them to the pool. In his written report

memorializing the investigation, Guzman noted that Lucy informed

him that before they went to the pool, “with [[Petitioner]] present

she changed [Kelly]’s diaper into a swimming diaper . . . .” Lucy

also stated that later that night, she and [Petitioner] “decided to give

[Kelly] a bath,” and while preparing to do so, “they took off her

clothing and diaper and noticed blood in the diaper.” Guzman

further indicated that [Petitioner] “gave the same recollection of the

day,” but did not record any specific statements he made.

At the pool, [Petitioner] led the officers to the garbage can

containing the “swimmie” diaper, which they retrieved. Guzman

opened the diaper and noticed “some type of pinkish fluid” inside it.

The officers next sought to search [Petitioner]’s home, and

[Petitioner] signed a form indicating his consent. They traveled to

[Petitioner]’s home, and [Petitioner] directed them to his bedroom

and the nearby bathroom where Kelly’s diapers were thrown in the

trash. Guzman retrieved baby wipes from the garbage can in the

bedroom that he stated appeared to have blood on them and obtained

a bloody diaper from the garbage can in the bathroom.

Once upstairs, [Petitioner] was not permitted to speak with his

family members. Officers instructed [Petitioner] to remain in the

upstairs bedroom, and he was always accompanied by one or more

uniformed officers. [Petitioner]’s family members were congregated

on couches in the family room, with a police officer stationed there.

The police declined to allow [Petitioner]’s father to join him

upstairs, and they also did not allow [Petitioner]’s grandmother to

speak to him in Greek.

After returning to the hospital, the officers obtained [Petitioner]’s

consent to search his vehicle. Following that search, Corcoran and

Welsh asked [Petitioner] to go with them to the FLPD for an

interview and recorded statement, and [Petitioner] agreed to do so.

Corcoran and Welsh brought [Petitioner] to “an open common area”

in the Detective Bureau and advised him of his Miranda2 rights.

[Petitioner] thereafter went into a nearby interview room and

prepared a written statement, which was admitted at trial. In that

second written statement, [Petitioner] again stated that “[he] took

[Kelly] upstairs and changed her to her swim diaper” prior to going

2 Miranda v. Arizona, 374 U.S. 436 (1966).

to the pool, and prior to bathing her, he and Lucy “took her diaper

off . . . and saw she was bleeding.”

Guzman arrived at the station and interviewed [Petitioner] along

with Corcoran and Welsh. At that interview, [Petitioner] initially

denied injuring Kelly, but later admitted that when he was changing

her, his “finger did go in by accident. It wasn’t intentional,” and “a

little bit of blood came off [his] finger.” At this point, the officers

arrested [Petitioner].

(ECF No. 7-12, State v. Katsigiannis, No. A-3342-18T2, 2020 WL 1933158, at *1-3 (N.J. Super.

Ct. App. Div. April 2020).)

The Bergen County Grand Jury returned Indictment No. 08-06-1066-08, charging

Petitioner with first-degree aggravated sexual assault, N.J.S.A. § 2C:14-2(a)(1) (count one) and

endangering the welfare of a child, N.J.S.A. § 2C:24-4a (count two). (ECF No. 7-1 at 66-67.)

Petitioner’s first trial ended in a mistrial. Katsigiannis, 2020 WL 1933158, at *1. On

October 24, 2012, Petitioner’s jury trial began before the Honorable Donald R. Venezia, J.S.C.

(See ECF Nos. 7-22 to 7-30.) On November 19, 2012, the jury found Petitioner guilty of first-

degree aggravated sexual assault. (See ECF No. 7-30; see also ECF No. 7-7 at 6-8.) Petitioner was

sentenced to a term of fifteen-years imprisonment, subject to the No Early Release Act (“NERA”),

along with a mandatory five-year period of parole supervision. (See ECF No. 7-31.)

Petitioner filed a direct appeal. On October 1, 2014, the Appellate Division affirmed

Petitioner’s conviction but remanded for resentencing. (ECF No. 7-3, State v. Katsigiannis, No.

A-4685-12, 2014 WL 4843978 (App. Div. Oct. 1, 2014).) At resentencing, the court stated it no

longer relied upon aggravating factor one, but otherwise left Petitioner’s sentence unchanged. See

Katsigiannis, 2020 WL 1933158, at *1. On April 24, 2015, the New Jersey Supreme Court denied

Petitioner’s petition for certification. (ECF No. 7-6 at 50, State v. Katsigiannis, 221 N.J. 286, 112

A.3d 592 (Table) (2015).)

Petitioner filed a post-conviction relief (“PCR”) petition. (ECF No. 7-7 at 9-12.) On March

4, 2019, following oral argument, the PCR court denied Petitioner’s PCR petition. (ECF No. 1-1

at 3-36.) Petitioner filed a Notice of Appeal before the Superior Court, Appellate Division. (See

ECF Nos. 7-5 to 7-10.) On April 22, 2020, the Appellate Division affirmed the denial of

Petitioner’s PCR petition. Katsigiannis, 2020 WL 1933158. On September 22, 2020, the New

Jersey Supreme Court denied Petitioner’s petition for certification. (ECF No. 1-1 at 76.)

On November 23, 2020, Petitioner filed his instant habeas petition with this Court. (ECF

No. 1.) Petitioner asserts the following grounds for relief:

1. The trial court erred by not ordering an evidentiary hearing

because Petitioner established a prima facie case of ineffective

assistance of trial counsel; and

2. The trial court erred by not granting Petitioner’s PCR petition

when he established ineffective assistance of appellate counsel.

(Id.) Respondents filed an answer asserting Petitioner is not entitled to habeas relief. (ECF No. 7.)

Petitioner filed a reply. (ECF No. 9.)

II. LEGAL STANDARD

Under the current version of the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA), 28 U.S.C. § 2254 provides, the district court “shall entertain an application for writ of

habeas corpus in [sic] behalf of a person in custody pursuant to the judgment of a State court only

on the ground that he is in custody in violation of the Constitution or laws or treaties of the United

States.” A habeas petitioner has the burden of establishing their entitlement to relief for each claim

presented in a petition, based upon the record that was before the state court. See Eley v. Erickson,

712 F.3d 837, 846 (3d Cir. 2013); see also Parker v. Matthews, 132 S. Ct. 2148, 2151 (2012).

District courts are required to “generally defer” to the determinations of the state trial and appellate

courts. Renico v. Lett, 559 U.S. 766, 772-73 (2010).

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

not grant an application for a writ of habeas corpus unless the state court adjudication:

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

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States: or

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

determination of the facts in light of the evidence presented in the

State court proceeding.

28 U.S.C. § 2254(d).

In this context, “[c]ontrary to clearly established Federal law” means the state court applied

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

state court confronted a set of facts that were materially indistinguishable from U.S. Supreme

Court precedent and arrived at a different result than the United States Supreme Court. Eley, 712

F.3d at 846 (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Federal law is clearly

established for these purposes where it is clearly expressed in “only the holdings, as opposed to

the dicta” of the opinions of the United States Supreme Court. See Woods v. Donald, 135 S. Ct.

1372, 1376 (2015). An “unreasonable application” of clearly established federal law is an

“objectively unreasonable” application of law, not merely an erroneous application. Eley, 712 F.3d

at 846 (quoting Renico v. Lett, 130 S. Ct. 1855, 1862 (2010)).

“When reviewing state criminal convictions on collateral review, federal judges are

required to afford state courts due respect by overturning their decisions only when there could be

no reasonable dispute that they were wrong.” Woods, 125 S. Ct. at 1376. Where a petitioner

challenges an allegedly erroneous factual determination of the state courts, “a determination of a

factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have

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

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

credibility determinations, the habeas court must determine whether that credibility determination

was unreasonable.” See Keith v. Pennsylvania, 484 F. App’ x 694, 697 (3d Cir. 2012) (citing Rice

v. Collins, 546 U.S. 333, 339 (2006)).

In addition to the above requirements, a federal court may not grant a writ of habeas corpus

under § 2254 unless the petitioner has “exhausted the remedies available in the courts of the State.”

28 U.S.C. § 2254(b)(1)(A). To do so, a petitioner must “‘fairly present’ all federal claims to the

highest state court before bringing them in federal court.” Leyva v. Williams, 504 F.3d 357, 365

(3d Cir. 2007) (citing Stevens v. Delaware Corr. Ctr., 295 F.3d 361, 369 (3d Cir. 2002)). This

requirement ensures that state courts “have ‘an initial opportunity to pass upon and correct alleged

violations of prisoners’ federal rights.’” Id. (citing United States v. Bendolph, 409 F.3d 155, 173

(3d Cir. 2005) (quoting Duckworth v. Serrano, 454 U.S. 1, 3 (1981)).

Even when a petitioner properly exhausts a claim, a federal court may not grant habeas

relief if the state court’s decision rests on a violation of a state procedural rule. See Johnson v.

Pinchak, 392 F.3d 551, 556 (3d Cir. 2004). This procedural bar applies only when the state rule is

“independent of the federal question [presented] and adequate to support the judgment.” Leyva,

504 F.3d at 365–66 (citing Nara v. Frank, 488 F.3d 187, 196, 199 (3d Cir. 2007); see also Gray v.

Netherland, 518 U.S. 152 (1996), and Coleman v. Thompson, 501 U.S. 722 (1991)). If a federal

court determines that a claim has been defaulted, it may excuse the default only upon a showing

of “cause and prejudice” or a “fundamental miscarriage of justice.” Leyva, 504 F.3d at 366

(citing Lines v. Larkins, 208 F.3d 153, 166 (3d Cir. 2000)).

III. DECISION

A. Ground One: Ineffective Assistance of Trial Counsel

In his first ground for habeas relief Petitioner argues that the “trial court [on collateral

appeal] erred by not ordering an evidentiary hearing because [Petitioner] established a prima facie

case of ineffective assistance of trial counsel.” (ECF No. 1 at 6.) Petitioner claims that trial counsel

was ineffective for failing to call Dominick Cruz as a witness at Petitioner’s second trial. (Id.)

Petitioner argues that Cruz would have “testified (as he did at the first trial that ended with a hung

jury) that he observed [Petitioner], the child victim and the victim’s mother exit [Petitioner’s] room

together at the time the State alleged that [Petitioner] assaulted the infant victim.” (Id.) Petitioner

submits that he has presented a prima facie case of ineffective assistance of counsel, which required

an evidentiary hearing.3 (Id.)

The standard governing claims of ineffective assistance of counsel is well established, as

set forth by the two-prong test of Strickland v. Washington, 466 U.S. 668 (1984). To support an

ineffective assistance of counsel claim under Strickland, a petitioner must first show “counsel’s

performance was deficient. This requires [the petitioner to show] that counsel made errors so

serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.”

Id. at 687; see also United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007). In evaluating

whether counsel was deficient, the “proper standard for attorney performance is that of ‘reasonably

effective assistance.’” Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). A petitioner asserting

ineffective assistance must show counsel’s representation “fell below an objective standard of

reasonableness” under the circumstances. Id. The reasonableness of counsel’s representation must

be determined based on the particular facts of a petitioner’s case, viewed as of the time of the

3 Respondents address additional ineffective assistance of counsel arguments Petitioner raised

before the PCR court. However, Petitioner did not raise those additional arguments in his Petition

here, and he has clarified in his traverse reply that he only intended to raise the ineffective

assistance claim regarding Mr. Cruz. (See ECF Nos. 1 and 8.) As such, the Court addresses only

the above summarized ineffective assistance of trial counsel claim.

challenged conduct of counsel. Id. In scrutinizing counsel’s performance, courts “must be highly

deferential . . . a court must indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. A petitioner also

must affirmatively demonstrate that counsel’s allegedly deficient performance prejudiced his

defense such that the petitioner was “deprive[d] of a fair trial . . . whose result is reliable.”

Strickland, 466 U.S. at 687, 692–93; Shedrick, 493 F.3d at 299. “It is not enough for the defendant

to show that the errors had some conceivable effect on the outcome of the proceeding.” Strickland,

466 U.S. at 693. The petitioner must demonstrate “there is a reasonable probability, but for

counsel’s unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at

694; see also Shedrick, 493 F.3d at 299.

“Because failure to satisfy either [Strickland] prong defeats an ineffective assistance claim,

and because it is preferable to avoid passing judgment on counsel’s performance when possible,”

courts should address the prejudice prong first where it is dispositive of a petitioner’s claims.

United States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002) (quoting Strickland, 466 U.S. at 697–98).

When a federal habeas petition under § 2254 is based upon an ineffective assistance of

counsel claim, “[t]he pivotal question is whether the state court’s application of the Strickland

standard was unreasonable,” which “is different from asking whether defense counsel’s

performance fell below Strickland’s standard.” Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013)

(quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)). For § 2254(d)(1) purposes, “an

unreasonable application of federal law is different from an incorrect application of federal law.”

Grant, 709 F.3d at 232. “A state court must be granted a deference and latitude that are not in

operation when the case involves [direct] review under the Strickland standard itself.” Id. Federal

habeas review of ineffective assistance of counsel claims is therefore “doubly deferential.” Id.

(quoting Cullen, 563 U.S. at 189). Federal habeas courts must “take a highly deferential look at

counsel’s performance” under Strickland, “through the deferential lens of § 2254(d).” Grant, 709

F.3d at 232.

Petitioner raised his ineffective assistance of counsel claim on collateral appeal and the

Appellate Division denied it as follows:

“Determining which witnesses to call to the stand is one of the most

difficult strategic decisions that any trial attorney must confront.”

State v. Arthur, 184 N.J. 307, 320 (2005). Defense counsel’s

decision as to which witnesses he or she will call is “an art,” id. at

321 (quoting Strickland, 466 U.S. at 693), and review of such a

decision should be “highly deferential.” Ibid. (quoting Strickland,

466 U.S. at 689). Counsel has a duty, however, “to make reasonable

investigations or to make a reasonable decision that makes particular

investigations unnecessary.” Strickland, 466 U.S. at 691.

In an affidavit provided to the PCR court, David4 stated that he

routinely took painkillers and muscle relaxers due to injuries

sustained as a result of multiple car accidents. As [Petitioner] further

certified, on the day David was to be called as a witness, trial counsel

informed [Petitioner] that David was “f—ked up and looked

anxious.” [Petitioner] contended this was “just how [David] acts,”

and trial counsel allegedly told [Petitioner] he would call David the

next day. The following day, trial counsel ended its case-in-chief

with [Petitioner]’s testimony and advised [Petitioner] of his trial

strategy that it was most effective to present [Petitioner]’s testimony

last. We agree with the PCR court that trial counsel’s assessment of

David’s demeanor on the first day of the defense’s presentation and

his strategy to end with [Petitioner] on the second day rendered his

decision against calling David as a witness objectively reasonable

under the circumstances.

Further, as David stated in his affidavit in support of [Petitioner]’s

PCR petition, he “would have given the same testimony as [he] did

at [Petitioner]’s first trial.” Notably, at [Petitioner]’s first trial, David

never testified that he observed Lucy in [Petitioner]’s bedroom at

the time [Petitioner] changed Kelly, and only stated that he saw

[Petitioner], Lucy, and Kelly “coming down” the stairs. While he

4 The Appellate Division opinion refers to Mr. Cruz as “David.”

testified that Lucy “had to have been up[stairs] . . . because she came

down,” David admitted that he had not “heard her or s[een] her”

upstairs. Moreover, David also testified on direct examination at the

first trial that when he knocked on [Petitioner]’s bedroom door,

[Petitioner] “didn’t tell [David] he was changing the diaper.” This

allowed the State to cross-examine him on a prior inconsistent

statement he made to Guzman in which he stated he “knocked on

the door and [Petitioner] said he was changing a diaper.” David’s

testimony, as at the first trial, would have been subject to cross-

examination regarding that prior inconsistent statement.

Katsigiannis, 2020 WL 1933158, at *6-7.

Under federal law, a failure to investigate potentially exculpatory evidence or witnesses

may form the basis of ineffective assistance of counsel. See Strickland, 466 U.S. at 690-91; see

also Brown v. United States, No, 13-2552, 2016 WL 1732377, at *4-5 (D.N.J. May 2, 2016). It is

well-settled that an otherwise reasonable decision by counsel not to call certain witnesses is not

ineffective simply because it differed from the defendant’s wishes. See, e.g., Diggs v. Owens, 833

F.2d 439, 445–46 (3d Cir. 1987). Moreover, to succeed on an ineffective assistance claim based

on counsel’s failure to call certain witnesses, a petitioner must show how their testimony would

have been favorable and material. See United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989). To

successfully establish this claim, a petitioner “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 . . . and whether such information, assuming admissibility in court, would have

produced a different result.” See Brown, 2016 WL 1732377, at *5 (quoting United States v. Askew,

88 F.3d 1065, 1073 (D.C. Cir. 1996) (internal quotation marks omitted)). The petitioner must also

still demonstrate he suffered prejudice. See Strickland, 466 U.S. at 690-91.

Here, in finding counsel’s performance was not deficient, the state court did not violate

clearly established law and was not unreasonable in their application of Strickland. The Appellate

Division first found that trial counsel’s decision to not call Cruz as a witness when he was visibly

“f—ked up and looked anxious” was objectively reasonable, as was trial counsel’s strategy that it

was most effective to present Petitioner’s testimony last. Katsigiannis, 2020 WL 1933158, at *6.

The Appellate Division applied Strickland and found trial counsel’s decision was reasonable. Id.

Assuming arguendo, that trial counsel’s decision to not call Cruz the following day fell

below an objective standard of reasonableness, Petitioner has also failed to meet the prejudice

prong of Strickland. To show prejudice, Petitioner would have to demonstrate a substantial

likelihood of a different result. See Cullen, 563 U.S. at 189. As noted by the Appellate Division,

Cruz’s affidavit to the PCR court did not indicate that he saw the victim’s mother in the bedroom

with Petitioner, rather Cruz indicated that he “knocked on [Petitioner’s] bedroom door and

attempted to open the door[, but Petitioner] said he was busy.” (ECF No. 7-8 at 7.) Cruz went

downstairs and then sometime later observed Petitioner and the victim’s mother come down the

stairs together. (Id.) At Petitioner’s first trial, Cruz testified to the same. (Id. at 16-17.) At the first

trial, Cruz testified that he did not hear the victim’s mother in the bedroom when he knocked on

the door. (Id. at 48.) The State also cross-examined Cruz, asking why in a prior interview Cruz had

not indicated that he saw the victim’s mother come down the stairs with Petitioner, but rather Cruz

had stated that after he knocked on the bedroom door, he went outside and told the victim’s mother

that she could check on the victim. (Id. at 48-49.) Petitioner denied making these statements in the

prior interview. (Id.) Additionally, Petitioner admitted that his “finger did go in [the victim] by

accident” and “a little blood came off [his] finger.” (See ECF No. 7-6 at 24-25.) Considering

Petitioner’s admission and the fact that Cruz would not have testified that he actually saw the

victim’s mother in the bedroom with Petitioner, Petitioner has failed to show that but for counsel’s

failure to call Cruz at Petitioner’s second trial, the outcome of the trial would have been different.

See Albrecht v. Horn, 485 F.3d 103, 127 (3d Cir. 2007) (quoting Strickland, 466 U.S. at 694).

On habeas review, this Court must provide “double deference” to the state court’s

disposition of ineffective assistance of trial counsel claims. Davis v. Adm’r New Jersey State

Prison, 795 F. App’x 100, 102 (3d Cir. 2019), cert. denied sub nom. Davis v. Johnson, 140 S. Ct.

2748, 206 L. Ed. 2d 923 (2020) (citing Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).

Petitioner has not crossed the high threshold to establish that the Appellate Division’s denial of his

ineffective assistance of counsel claim based on the failure to call Cruz as a witness involved an

unreasonable application of Strickland. See Lewis v. Horn, 581 F.3d 92, 108 (3d Cir. 2009) (even

if counsel’s investigation and presentation of an alibi defense was deficient, the strength of the

evidence of guilt precluded reasonable probability that the outcome of trial would have been

different). As Petitioner has failed to show trial counsel was ineffective, the PCR court did not err

in not holding an evidentiary hearing. As such, Petitioner’s first ground for habeas relief is denied.

B. Ground Two: Ineffective Assistance of Appellate Counsel

In his second ground for habeas relief, Petitioner argues that the trial court erred in not

granting his PCR petition when he established that he was deprived of effective assistance of direct

appeal counsel. (ECF No. 1 at 8.) Petitioner argues that he raised the issue that his custodial

statement to the police must be suppressed on Fourth, Fifth, and Sixth Amendment grounds.

However, on direct appeal, appellate counsel only raised the Fifth and Sixth Amendment grounds.

(Id.)

Petitioner raised this claim on collateral appeal and the Appellate Division denied the claim

as follows:

We also reject [Petitioner]’s ineffective assistance claim regarding

appellate counsel’s failure to raise the issue that [Petitioner]’s

confession to the officers should have been excluded at trial due to

an “unlawful Fourth Amendment seizure” that allegedly occurred

when the officers searched his home hours earlier.

The Fourth Amendment of the United States Constitution and

Article I, Paragraph 7 of the New Jersey Constitution guarantee

“[t]he right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures” by

requiring warrants issued on probable cause. “Under our

constitutional jurisprudence, when it is practicable to do so, the

police are generally required to secure a warrant before conducting

a search . . . .” State v. Hathaway, 222 N.J. 453, 468 (2015) (citations

omitted).

In New Jersey and federal courts, “[t]he exclusionary rule will not

apply when the connection between the unconstitutional police

action and the secured evidence becomes so attenuated as to

dissipate the taint from the unlawful conduct.” State v. Shaw, 213

N.J. 398, 414 (2012) (internal quotation marks omitted). “In making

that determination, the test is not whether the authorities would have

failed to obtain the challenged evidence ‘but for’ their illegal

conduct.” Johnson, 118 N.J. at 653. Rather, “[t]he test followed by

both federal and New Jersey courts is based on three factors: (1) the

temporal proximity between the illegal conduct and the challenged

evidence; (2) the presence of intervening circumstances; and (3) the

flagrancy and purpose of the police misconduct.” Ibid. (citing

Brown v. Illinois, 422 U.S. 590, 603-04 (1975)). Applying those

three factors, we have held that evidence seized after a [Petitioner]’s

voluntary consent to search should not be excluded if the consent

was “‘sufficiently an act of free will to purge the primary taint.’”

State v. Chapman, 332 N.J. Super. 452, 468 (App. Div. 2000)

(quoting Wong Sun v. United States, 371 U.S. 471, 486 (1963)).

Relying on the Brown factors, [Petitioner] claims that had appellate

counsel raised the Fourth Amendment argument on direct appeal,

we would have determined that there was “an unbroken causal

connection between his seizure and confession,” that his confession

should have been suppressed, and that his conviction would have

been reversed. We disagree.

Importantly, in our opinion affirming [Petitioner]’s conviction, we

“part[ed] company with the suppression judge” in that we concluded

[Petitioner] was in custody “for purposes of self-incrimination

analysis” at the time the police searched his home. Katsigiannis, slip

op. at 27-28. We made no comment as to whether [Petitioner] was

illegally seized in violation of the Fourth Amendment.

As the State correctly argues, even if [Petitioner] was seized for

Fourth Amendment purposes at the time the police searched his

residence, he consented to the subsequent search. The State bears

the burden to establish knowing and voluntary consent; in other

words, “that the individual giving consent knew that he or she had a

choice in the matter.” State v. Hagans, 233 N.J. 30, 39 (2018)

(quoting State v. Carty, 170 N.J. 632, 639 (2002)). “The lynchpin to

voluntary consent ‘is whether a person has knowingly waived [his

or her] right to refuse to consent to the search.’” Ibid. (quoting State

v. Domicz, 188 N.J. 285, 308 (2006)).

Here, [Petitioner] signed a consent-to-search form permitting the

officers to “conduct [a] complete search of the property and

premises located at [[Petitioner]’s address].” That form also stated

that he provided “consent to search freely and voluntarily without

fear, threat, coercion, or promises of any kind,” and that he

knowingly waived his right to refuse consent. Further, he showed

the officers the location of Kelly’s bloody diaper and the baby wipes

used by Lucy and [Petitioner] to attempt to clean Kelly’s wound.

And, even assuming [Petitioner]’s consent to search the home did

not render any Fourth Amendment seizure lawful, the State correctly

asserts that his confession to the police nearly nine hours later was

sufficiently attenuated as to render that confession admissible.

Where the connection between the unlawful police conduct and the

seizure of evidence is “so attenuated as to dissipate the taint” from

the unlawful conduct, the evidence need not be excluded. Brown,

422 U.S. at 609 (1975); see also State v. Badessa, 185 N.J. 303, 311

(2005).

Applying the Brown factors, between eight and nine hours elapsed

between the search of [Petitioner]’s home and his confession at the

police station. Any unreasonable police seizure at his home nine

hours earlier did not influence [Petitioner]’s confession. As such, the

temporal proximity factor weighs in favor of the State.

Regarding the second prong, [Petitioner]’s written statement at the

police station functions as an intervening event sufficient to purge

the taint of any illegal seizure. It was only after that statement,

during a verbal recorded interview with Guzman, Corcoran, and

Welsh that [Petitioner] admitted that his “finger did go in on

accident” and that “a little bit of blood came off [his] finger.”

Finally, any alleged police misconduct in searching [Petitioner]’s

home was not flagrant. [Petitioner] signed a consent form permitting

the police to search his home and directed the police to the location

of the trash can containing diapers while inside the home. The record

does not indicate that [Petitioner]’s consent was coerced or that the

police engaged in any other misconduct while searching

[Petitioner]’s home. Based on the Brown factors, any illegal seizure

of [Petitioner] by the police was sufficiently attenuated from his

confession.

In this regard, as noted, counsel has no obligation to put forth a

meritless argument. See Worlock, 117 N.J. at 625. As [Petitioner]’s

confession at the police station after having written a

nonconforming statement was sufficiently attenuated from any

alleged Fourth Amendment seizure that occurred during the consent

search of his home, [Petitioner]’s claim was meritless. Thus,

appellate counsel was not ineffective for failing to argue on

[Petitioner]’s direct appeal that [Petitioner]’s confession should

have been suppressed based on a Fourth Amendment violation.

Katsigiannis, 2020 WL 1933158, at *11-13.

The Constitution prohibits the government from conducting “unreasonable searches” of

“persons, houses, papers, and effects,” U.S. Const. amend. IV. In U.S. v. Wade, 628 F. App’x 144,

148 (3d Cir. 2015), the Third Circuit stated:

Evidence obtained as a result of a Fourth Amendment violation

ordinarily must be suppressed as “fruit of the poisonous tree.” Wong

Sun v. United States, 371 U.S. 471, 487–88 (1963). Evidence is not

fruit of the poisonous tree and need not be suppressed, however, “if

the connection between the illegal police conduct and the discovery

. . . of the evidence is so attenuated as to dissipate the taint.” United

States v. Perez, 280 F.3d 318, 338 (3d Cir. 2002) (internal quotation

marks and citation omitted). Miranda warnings alone do not

necessarily render a confession free of the taint of an earlier Fourth

Amendment violation. Brown v. Illinois, 422 U.S. 590, 603 (1975).

Rather, pursuant to Brown, to determine whether this causal

connection is sufficiently attenuated, we consider: (1) the temporal

proximity between the unlawful conduct and the recovery of the

evidence; (2) “the presence of intervening circumstances”; and (3)

“particularly, the purpose and flagrancy” of the unlawfulness. Id. at

603–04; see also United States v. Dupree, 617 F.3d 724, 739 (3d

Cir. 2010).

The Appellate Division decision was not contrary to clearly established federal law. The

Appellate Division applied the test annunciated by the Supreme Court in Brown v. Illinois, to find

that even if the Court was to assume that Petitioner’s consent to search his home did not render

any Fourth Amendment seizure lawful, the connection between the seizure and Plaintiff’s

confession was sufficiently attenuated. Katsigiannis, 2020 WL 1933158, at *12. The state court

noted that (1) Petitioner’s statement was given over eight hours after Plaintiff was allegedly seized

at his home at 6:30 a.m.; (2) there was an intervening voluntary written statement before Petitioner

confessed to digitally penetrating the victim; and (3) there was no evidence that Petitioner’s

consent to search his home was coerced or the police engaged in misconduct. Id. Petitioner has

failed to show the Appellate Division finding that Plaintiff’s Fourth Amendment argument was

meritless was an unreasonable application of clearly established law.

Since the underlying substantive claim is meritless, trial counsel could not be ineffective

for failing to raise a meritless argument. Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000). As

such, this ground for habeas relief is denied.

IV. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a habeas

proceeding where that petitioner’s detention arises out of a state court proceeding unless he has

“made a substantial showing of the denial of a constitutional right.” “A petitioner satisfies this

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

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

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

Here, Petitioner has failed to make a substantial showing of the denial of a constitutional

right. Therefore, no certificate of appealability shall issue.

V. CONCLUSION

For the reasons stated above, Petitioner’s petition for a writ of habeas corpus (ECF No. 1)

is DENIED, and Petitioner is DENIED a certificate of appealability. An appropriate order

follows.

Date: March 30, 2023

/s/Brian R. Martinotti _____

HON. BRIAN R. MARTINOTTI

United States District Judge