# RICHARDSON v. CHETIRKIN

> District Court, D. New Jersey · March 29, 2023

URL: https://www.frixlaw.com/law-library/cases/10655467

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** March 29, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10655467

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

NOT FOR PUBLICATION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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10655467. Public record. Not legal advice.