RICHARDSON v. CHETIRKIN

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

JEFFERY RICHARDSON,

Petitioner, Case No. 2:21-cv-12993 (BRM)

v. OPINION

ROBERT CHETIRKIN, et al.,

Respondents.

MARTINOTTI, DISTRICT JUDGE

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

Richardson (“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. 5), and Petitioner filed a reply

(ECF No. 6). 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 direct appeal:1

On July 21, 2011, at approximately 5:20 p.m., Newark Police

received a 9-1-1 call from an unidentified woman, reporting armed

men, wearing gloves, in a red vehicle in the area of 600 Irvine Turner

Boulevard. Detective Jimmy Rios and Officer Steven Maresca

responded to the scene in separate police vehicles. Detective Rios

saw a red Ford Taurus with three occupants and noticed the driver

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.”

was wearing gloves. After making a K-turn, he pulled his patrol car

behind the Taurus, which immediately sped off.

After a car chase, involving the two police vehicles and the suspects,

the occupants of the vehicle “bailed out,” exiting the Taurus while

it was still moving. The Taurus struck a parked car and a tree, as the

occupants fled on foot. Detective Rios radioed dispatch, reported the

fleeing suspects, and provided their descriptions and the direction

each fled. He requested back-up and positioned his vehicle to

establish a perimeter to apprehend the suspects.

Detective Rios saw the rear-seat passenger and began to pursue him

on foot. He trapped the suspect in the rear yards of the 900 block of

Belmont Terrace. He arrested the suspect, who was later identified

as co-defendant Jeffery.

Back-up officers, Detective Kevin Wright and Patrolman Walter

Melvin, arrived at the scene within two minutes and participated in

the search for the other two suspects. Detective Wright spotted a

black male “emerge from the side of one house and run across the

street into an alleyway of another house.” The officers pursued the

man into an alleyway near Hawthorne Avenue and arrested him as

he attempted to hide behind bushes. This suspect was identified by

Detective Rios and Officer Maresca as the driver of the Taurus, was

determined to be Jeffery’s brother, Colby.

Examining the 1998 Taurus, police noted its ignition was damaged,

and they found a .45 caliber handgun, a rifle, a high capacity

magazine, and a screwdriver. Police also recovered gloves,

bandanas, cellphones, and a cap at the scene.

At trial, Detective Antonio Badim, the State’s ballistics and firearms

expert, testified both guns were operable and their serial numbers

were obliterated. Robert Irizarry, the previous owner of the Taurus,

also testified. Five months earlier, in February 2011, he traded the

Taurus for a different car with C & J Auto Sales.

Other witnesses for the State testifying during the nine-day trial

included the dispatch officer, the 9-1-1 operator, and forensic

scientists from the State DNA laboratory, who linked Colby to a

bandana and Jeffery to a glove recovered at the scene. Also admitted

were various documents including transcripts of the 9-1-1 call and

radio dispatches, maps, photographs of the crime crash scene, the

damaged Taurus, and its contents.

Co-defendants presented an expert forensic scientist, who

challenged the “outdated” methods and misleading conclusion of a

DNA match drawn by the State’s DNA experts. Additionally, each

defendant testified on his own behalf.

Colby testified he worked as a driver for his brother’s roadside

assistance company, which responded to service calls for customers

of companies such as AAA and All America. On July 21, 2011, at

approximately 3 p.m., Jeffery arrived in a company van to take

Colby to work. Colby was to start work at 5 p.m., when Jeffery’s

shift ended. Sometime after 4 p.m., the van overheated so Jeffery

took it for repair at a local mechanic shop. While the two waited,

they walked to a nearby neighborhood near Hawthorne Avenue

because Colby wanted to buy marijuana.

At some point, Jeffery separated from Colby because he desired to

purchase Percocet. After his transaction was completed, Colby

emerged from an alleyway and saw police. He became nervous, as

he just purchased marijuana, so he ran. A police officer, searching

on foot, saw Colby hiding behind a bush and arrested him. Colby

stated the officer who placed him in handcuffs hit him on the side of

the head with his gun. Also he admitted he tossed the marijuana

during the chase and lost his bandana. Colby denied he was driving

a red Ford Taurus or that he possessed guns.

Jeffery’s testimony mirrored his brother’s, as he explained how he

picked up Colby from East Orange to go to work in the roadside

assistance business, and the van overheated. The two began walking,

then separated to purchase drugs. Jeffery testified as he emerged

from where he purchased the painkillers, and as he walked on the

street, a police car pulled alongside of him. Believing the police

watched the drug transaction, he turned and ran. He tossed the

purchased Percocet during the foot chase and lost his work gloves.

Jeffery hid from police for several minutes, but ultimately was

cornered and arrested. Jeffery denied owning or using a Ford

Taurus, or possessing weapons.

(ECF No. 5-7 at 6-10, State v. Richardson, Nos A-4021-14, A-4026-14 (App. Div. June 23, 2017)

(slip op. at 5-9).)

The Essex County Grand Jury returned Indictment No. 12-04-1144, charging Petitioner

with third-degree receipt of stolen property, N.J.S.A. § 2C:20-7 (count two); second-degree

unlawful possession of a handgun, N.J.S.A. § 2C:39-5(b) (count three); fourth-degree possession

of a defaced firearm, N.J.S.A. § 2C:39-3(d) (count four); fourth-degree possession of hollow-point

bullets, N.J.S.A. § 2C:39-3(f) (counts five and seven); second-degree possession of an assault

firearm, N.J.S.A. § 2C:39-5(f) (count six); fourth-degree possession of a certain weapon, a large

capacity ammunition magazine, N.J.S.A. § 2C:39-3(j) (count eight); and fourth-degree resisting

arrest, N.J.S.A. § 2C:29-2(a) (count ten). Co-defendant Colby Richardson (“Colby”) was charged

with these offenses, as well as second-degree eluding, N.J.S.A. § 2C:29-2(b) (count one). (ECF

No. 5-5.)

On September 9, 2014, Petitioner and his co-defendant’s jury trial began before the

Honorable Alfonse J. Cifelli, J.S.C. (See ECF Nos. 5-24 to 5-37.) On September 24, 2014, the jury

found Petitioner guilty on counts two, three, four, six, seven, and eight, and not guilty on count

five. (See ECF No. 5-37.) On January 26, 2015, Petitioner was sentenced to five-years of

imprisonment on count two; fifteen-years of imprisonment, with seven-and-one-half-years of

parole ineligibility on count three, to run consecutively to count two; and eighteen-months of

imprisonment, on count four, to run consecutively to counts two and three. On count six, Petitioner

was sentenced to ten-years imprisonment, with five-years of parole ineligibility, to run

consecutively to counts two, three, and four. In addition, the court imposed eighteen-month terms

of imprisonment on counts seven, eight, and ten to run concurrently with counts two, three, and

four. The total term was thirty-one-years and six-months imprisonment, with twelve-years and six-

months of parole ineligibility. (See ECF No. 5-38.)

Petitioner filed a Notice of Appeal with the Appellate Division. On June 23, 2017, the

Appellate Division affirmed Petitioner’s convictions. (ECF No. 5-7, Richardson, No. A-4021-

14T2.) On December 8, 2017, the New Jersey Supreme Court denied Petitioner’s petition for

certification. (ECF No. 5-8, State v. Richardson, 231 N.J. 522, 177 A.3d 107 (Table) (2017).)

Petitioner filed a post-conviction relief (“PCR”) petition. On March 8, 2019, the Honorable

Marysol Rosero, J.S.C., heard oral argument and denied Petitioner’s PCR petition by way of oral

opinion. (See ECF No. 5-40.) On June 25, 2019, Petitioner filed a Notice of Appeal before the

Superior Court, Appellate Division. (ECF No. 5-12.) On December 3, 2020, the Appellate Division

affirmed the denial of Petitioner’s PCR petition. (ECF No. 5-13, State v. Richardson, No. A-4570-

18T1, 2020 WL 7066927 (N.J. Super. Ct. App. Div. Dec. 3, 2019).) On May 21, 2021, the New

Jersey Supreme Court denied Petitioner’s petition for certification. (ECF No. 5-14, State v.

Richardson, 246 N.J. 322, 250 A.3d 1133 (Table) (2021).)

Petitioner filed his instant habeas petition with this Court, which was signed on June 21,

2021. (ECF No. 1.) Petitioner argues that “the imposition of consecutive sentences for multiple

weapons simultaneously possessed is improper in light of the principles of lenity and merger.” (Id.

at 10.) Respondents filed an answer asserting Petitioner’s claim is procedurally barred and non-

cognizable. (ECF No. 5.)

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 behalf of a person in custody pursuant to the judgment of a State court only on

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

States.” Habeas petitioners bear the burden of establishing their entitlement to relief for each claim

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

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

District courts are required to give great deference to the determinations of the state trial and

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

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

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

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

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States: or

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

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

State court proceeding.

28 U.S.C. § 2254(d).

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

contradicted the governing law set forth in U.S. Supreme Court precedent or that the state court

confronted a set of facts that were materially indistinguishable from U.S. Supreme Court precedent

and arrived at a different result than the Supreme Court. Eley, 712 F.3d at 846 (citing Williams v.

Taylor, 529 U.S. 362, 405-06 (2000)). Federal law is clearly established for these purposes where

it is clearly expressed in “only the holdings, as opposed to the dicta” of the opinions of the United

States Supreme Court. See Woods v. Donald, 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); 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. DISCUSSION

Petitioner argues that the trial court erred in sentencing insofar as his unlawful possession

of a handgun (count three), possession of a defaced firearm (count four), and possession of an

assault firearm (count six) weapons offenses should have merged for sentencing purposes. (See

ECF No. 1.) Plaintiff argues the imposition of consecutive sentences on those weapons offenses

was improper. (Id.)

Possible errors in sentencing by the state court are not cognizable on federal habeas review,

so long as the sentence is within the statutory limit, because sentencing is a matter of state law.

See Jones v. Superintendent of Rahway State Prison, 725 F.2d 40, 43 (3d Cir. 1984); U.S. ex rel.

Jackson v. Myers, 374 F.2d 707, 711 n.11 (3d Cir. 1967) (noting that “the severity of a defendant’s

sentence alone constitutes no ground for [federal habeas] relief,” “so long as the [sentence] is

within statutory limits”); Smith v. Kerestes, No. 08-cv-0061, 2009 WL 1676136, at *16 (E.D. Pa.

June 15, 2009), aff’d, 414 F. App’x 509 (3d Cir. 2011) (“[T]he Third Circuit has held that absent

a Constitutional violation, a federal court has no power to review a sentence in a habeas corpus

proceeding unless it exceeds the statutory limits.”). Here, Petitioner does not allege that the

sentence imposed exceeded statutory limits or that the court’s sentence was arbitrary. Therefore,

to the extent the claim is construed solely as a claim of sentencing error, it is non-cognizable.

The Court has thoroughly reviewed the state court briefings and decisions and it does not

appear that Petitioner raised the instant claim as a federal constitutional claim before the state

court, rather Petitioner raised a state law merger claim. (See ECF Nos. 5-9, 5-10, 5-13, 5-15, 5-17,

5-40.) Here, Petitioner argues his sentence violates the Fifth Amendment Double Jeopardy Clause.

(See ECF No. 1 at 32-41.) However, Petitioner’s state law merger claim may implicate double

jeopardy. The Third Circuit, in considering Pennsylvania state law, has held that when a petitioner

raises a claim to the state courts that the trial court erred in not merging counts, such a claim places

the state courts on adequate notice that he is making a federal double jeopardy argument, and

therefore such a claim is properly exhausted for purposes of federal habeas review. Wilkerson v.

Sup’t Fayette SCI, 871 F.3d 221, 229 (3d Cir. 2017). The Third Circuit acknowledged that merger

claims and double jeopardy claims are different, explaining that “merger is a challenge to a

defendant’s sentence, while double jeopardy is a challenge to the underlying conviction.” Id. at

231 n.7 (citations omitted). However, the Third Circuit concluded that the different claims and

remedies are “immaterial to whether the nature of the violation claimed put the state court ‘on

notice that a federal claim [was] being asserted.’” Id. (quoting McCandless, 172 F.3d at 261). In

Wilkerson, the Third Circuit considered Pennsylvania law and found that the Pennsylvania

Supreme Court had imported the federal double jeopardy test into its merger doctrine. Id. at 230.

Here, N.J.S.A. 2C:1-8(a) governs merger of offenses and “focus[es on] whether the offense

charged and the related offense share a common factual nucleus.” State v. Thomas, 187 N.J. 119,

130 (2006). The New Jersey Supreme Court has noted that Courts merge convictions where

multiple counts otherwise call for “double punishment for a single wrongdoing.” State v. Diaz,

144 N.J. 628, 637 (1996) (emphasis added). For the purposes of this matter, the Court will assume

Petitioner’s merger claim can be read to assert a double jeopardy violation and will review the

merits of the claim.

The Double Jeopardy Clause of the Fifth Amendment provides that “nor shall any person

be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. Amend. V.

The Fifth Amendment “is applicable to the States through the Fourteenth Amendment.” Benton v.

Maryland, 395 U.S. 784, 787 (1969). The Clause protects against, among other things, “‘multiple

punishments for the same offense’ imposed in a single proceeding.” Jones v. Thomas, 491 U.S.

376, 381 (1989) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). “To assess whether

two crimes constitute the ‘same offense’ for double jeopardy purposes,” courts use the test set

forth by the Supreme Court in Blockburger v. United States, 284 U.S. 299 (1932). Wilkerson, 871

F.3d at 230. “That is, ‘where the same act or transaction constitutes a violation of two distinct

statutory provisions, the test to be applied to determine whether there are two offenses or only one,

is whether each provision requires proof of a fact which the other does not.’” Id. (quoting

Blockburger, 284 U.S. at 304). “If this test yields ‘only one’ offense, ‘cumulative sentences are

not permitted, unless elsewhere specially authorized by Congress.’” Id. (quoting Whalen v. United

States, 445 U.S. 684, 693 (1980)).

The Appellate Division addressed Plaintiff’s merger claim on collateral appeal.

“We follow a ‘flexible approach’ in merger issues that ‘requires us

to focus on the “elements of the crimes and the Legislature’s intent

in creating them,” and on “the specific facts of each case.”’” State

v. Miller, 237 N.J. 15, 32 (2019) (quoting State v. Brown, 138 N.J.

481, 561 (1994) (citations omitted)). The overriding principle of our

merger analysis “is that a defendant who has committed one offense

‘cannot be punished as if for two.’” Ibid. (quoting Brown, 138 N.J.

at 561 (citations omitted)). This approach requires

analysis of the evidence in terms of, among other

things, the time and place of each purported

violation; whether the proof submitted as to one

count of the indictment would be a necessary

ingredient to a conviction under another count;

whether one act was an integral part of a larger

scheme or episode; the intent of the accused; and the

consequences of the criminal standards transgressed.

[Id. at 33 (quoting State v. Davis, 68 N.J. 69, 81 (1975)).]

Moreover, “merger issues implicate a defendant’s substantive state

constitutional rights that are rooted in principles of double jeopardy,

due process, or some other legal tenet. The purpose of merger is to

avoid double punishment for a single wrongdoing.” State v. Hill,

182 N.J. 532, 542 (2005) (quoting State v. Diaz, 144 N.J. 628, 637-

38 (1996) (citations omitted)). However, “the Legislature may

fractionalize a single criminal episode into separate offenses when

the Legislature intends them to be punished separately and when the

fractionalization does not offend constitutional principles.” Miller,

237 N.J. at 33 (quoting State v. Mirault, 92 N.J. 492, 504 (1983)).

Defendant argues that the only evidence presented by the State was

that a detective saw him in the Taurus, which was believed to have

been stolen, and two weapons were found in the vehicle after he was

apprehended. He argues that it was inappropriate to charge and

convict him of four separate offenses where each charged offense

was part of the same criminal episode. We disagree.

In our opinion on defendant’s appeal, we rejected his contention that

the trial judge erred by imposing consecutive sentences on counts

two, three, four, and six. Richardson I, slip op. at 46-47. We stated

that

the judge rejected the argument [that] these crimes

constituted a single event. He found the identified

crimes were “separate and apart.” Noting that there

are no “free crimes,” the judge found it would be

“grossly unjust” were he to ignore the necessity to

“provide for the safety of the general public” and

imposed a consequence for the distinct offenses

committed. The offenses of receipt of a stolen

automobile, unlawful possession of a handgun,

possession of a defaced firearm, and possession of an

assault rifle occurred at separate times, and were not

a single transaction, but each offense had distinct,

independent objectives and involved separate threats

of violence.

[Id. at 46.]

Our discussion of defendant’s contention regarding the imposition

of consecutive sentences applies to defendant’s merger argument.

In support of his contention that, at the very least, the weapons

offenses should merge, defendant relies upon State v. Harper, 153

N.J. Super. 86 (App. Div. 1977). In that case, the defendant was

charged under N.J.S.A. 2A:151-8 with unlawful possession of a

loaded revolver, brass knuckles, and a bludgeon. Id. at 87-88. The

statute made it unlawful for any person, who had been convicted of

certain crimes, to possess any firearms or dangerous instruments. Id.

at 88.

We held that the three counts of the indictment should merge. Id. at

90. We noted that the “weapons were found in the same place, the

bedroom dresser, and at the same time, upon execution of the search

warrant.” Ibid. However, in Harper, the defendant was charged with

three offenses under the same statute. Id. at 87-88.

Here, defendant was charged with unlawful possession of a handgun

under N.J.S.A. 2C:39-5(b), possession of a defaced firearm under

N.J.S.A. 2C:39-3(d) (count four); and possession of an assault

firearm under N.J.S.A. 2C:39-5(f). These are separate offenses in

the Code of Criminal Justice, which indicates the Legislature

intended that these three offenses would be punished separately.

Miller, 237 N.J. at 33 (citing Mirault, 92 N.J. at 504).

Defendant also relies upon State v. Lattimore, 197 N.J. Super. 197

(App. Div. 1984). There, the defendants were found guilty “of six

[weapons] offenses, two involving a sawed-off shotgun and four

involving two handguns.” Id. at 206. We held the convictions for

possession of the handguns without a permit to carry should merge.

Id. at 214-15.

We stated that “[t]he gravamen of the offense [was] the failure to

have a permit” and if “a defendant had such a permit it would cover

all handguns owned by him but not necessarily all handguns

possessed by him . . . .” Id. at 215. We noted that there was no

evidence as to the ownership of the guns and the codefendants had

constructive possession of the weapons. Ibid.

Defendant’s reliance upon Lattimore is misplaced. In that case, the

merged offenses pertained to the same type of weapon, namely

handguns. Moreover, as we explained, the “gravamen of the offense

[was] the failure to have a permit,” and one permit would have

covered all handguns owned by the person who possessed them.

Ibid. Here, defendant has been found guilty of possessing a

handgun, a defaced firearm, and an assault weapon.

(ECF No. 5-13, Richardson, 2020 WL 7066927 *3-4.)

The Appellate Division’s conclusion was neither contrary to, nor an unreasonable

application of Supreme court precedent set forth in Blockburger. Blockburger requires courts to

consider whether “each provision requires proof of a fact which the other does not.” 284 U.S. at

304. The Appellate Division noted that New Jersey law requires the court to consider “whether the

proof submitted as to one count of the indictment would be necessary ingredient to a conviction

under another count.” (ECF No. 5-13, Richardson, 2020 WL 7066927 *3, citing Miller, 237 N.J.

at 33.) The Appellate Division found that each of Petitioner’s weapons offenses were not a single

transaction, but had distinct, independent objectives and involved separate threats of violence. (Id.

at *4.) The Appellate Division also found that Petitioner was charged under three separate offenses

of the Code of Criminal Justice, which the Legislature intended would be punished separately.

(Id.)

Although all three sentences challenged by Petitioner involved weapons offenses, that does

not mean that under the standards expressed above, they should be automatically merged. While

all three weapons offenses require knowing possession, the offenses have distinct elements.

Unlawful possession of a handgun requires the State to prove Petitioner did not have a permit to

possess the weapon, N.J.S.A. 2C:39-5(b), whereas possession of a defaced firearm requires the

State to prove that the firearm was defaced, N.J.S.A. 2C:39-3(d). An individual who has a permit

to carry a handgun would not violate N.J.S.A. 2C:39-5(b) but if he later altered the serial numbers

of that handgun, he would violate N.J.S.A. 2C:39-3(d). Unlawful possession of an assault firearm,

N.J.S.A. 2C:39-5(f), requires the State to prove Petitioner did not have “license” to possess an

assault firearm, whereas unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), requires the State

to prove Petitioner did not have a “permit” to possess a handgun. An individual may qualify for a

permit to possess a handgun but not qualify for a license to possess an assault firearm. The statutory

processes of obtaining a permit and license are different. See N.J.S.A. 2C:39-5(b); N.J.S.A. 2C:39-

5(f). The Appellate Division’s finding that Petitioner was properly sentenced under three separate

offenses was neither contrary to nor an unreasonable application of clearly established federal law.

Petitioner is not entitled to relief on this claim.

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. Thus, 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’s certificate of appealability is DENIED. An appropriate order

follows.

Date: March 29, 2023

/s/Brian R. Martinotti _____

HON. BRIAN R. MARTINOTTI

UNITED STATES DISTRICT JUDGE