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

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DYSHON RAGLAND,

Petitioner,

Civil Action No. 19-14136 (MAS)

V.

OPINION

THE ATTORNEY GENERAL OF THE

STATE OF NEW JERSEY, et al.,

Respondents.

SHIPP, District Judge

This matter comes before the Court on Petitioner Dyshon Ragland’s (“Petitioner”) petition

for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Following an

order to answer, Respondents the Attorney General of the State of New Jersey and Bruce Davis

(collectively, “Respondents”) filed a response to the Petition, (ECF No. 15), to which Petitioner

replied. (ECF No. 29.) The Court also permitted Respondents to file a sur-reply. (ECF No. 33.)

For the following reasons, the Court denies the Petition and denies Petitioner a certificate of

appealability.

L BACKGROUND

In its opinion affirming Petitioner’s conviction, the Superior Court of New Jersey,

Appellate Division, summarized the factual background of Petitioner’s conviction as follows:

Tried by a jury, [Petitioner] was convicted of first-degree armed

robbery, . . . first-degree conspiracy to commit murder, . . . first-

degree murder, . . . second-degree possession of a weapon for an

unlawful purpose, . . . third-degree aggravated assault, . . . third-

degree conspiracy to commit witness tampering, ... and third-

degree witness tampering. After merger, [Petitioner] was sentenced

to an aggregate term of imprisonment of sixty-two years... .

... [The following facts are] glean[ed] ... from the trial

record. On February 27, 2008, certain members of the Bloods street

gang—including [Petitioner], Niko Rossano, and Anthony Skyers—

decided to get a meal at a Subway restaurant in Toms River.

Rossano and [Petitioner] entered the Subway at approximately 5:50

p.m., whereupon Rossano recognized an employee, Quinton Allen,

but did not acknowledge him. Rossano also nodded to waiting-in-

line customer Eric Berrios, who Rossano knew from living in the

neighborhood and attending the same school.

When [Petitioner] reached the front of the customer line,

Rossano observed him pointing a gun at the cashier, stating “Give

me the money.” Rossano claimed that he “was in a daze” because

he was unaware that [Petitioner] possessed a firearm and intended

to rob the restaurant.

Allen recognized both Rossano and [Petitioner]; he went to

high school with Rossano and grew up with [Petitioner] in the

Winteringham Village neighborhood. When questioned by police,

Allen initially said that he did not know the individuals who had

entered the Subway because he “didn’t want to get involved” and

was “afraid of what [Petitioner] could do.” Allen later pled guilty

to hindering apprehension.

Three months later, on June 5, 2008, in the early evening,

Lakewood police officers observed Skyers and two other individuals

purchasing beer from a liquor store in downtown Lakewood. Skyers

appeared to be less than twenty-one years old, and the police officers

arrested him for underage possession of alcohol. His comrade,

Warren Applegate, who was not a minor, also was arrested and

charged with supplying a minor with alcohol, among other offenses.

Applegate’s charges required him to remain at the police station,

while Skyers was immediately released with a summons. During

his encounter with the police at that time, Skyers was only

questioned about his underage possession of alcohol, and nothing

else.

According to Zenobia Jackson, [Petitioner]’s live-in

girlfriend at the time, at approximately 5:30 or 6:00 p.m.,

Applegate’s sister telephoned [Petitioner]. Although she could hear

only one side of the conversation, Jackson heard [Petitioner] say, “I

hope he didn’t do what I think that he’s done” and “if he did what I

think he did, just going to have to shut him up.” After the

telephone conversation ended, [Petitioner] told Jackson that he was

referring to Skyers, who had just been “picked up and locked up by

the police” along with Applegate. Also according to Jackson,

[Petitioner] received other upsetting telephone calls about Skyers in

which [Petitioner] stated that he was “just going to take care of the

situation and eliminate the problem.”

At approximately 7:00 p.m., [Petitioner] left Jackson’s

apartment, telling her that he was “going around the corner.” Before

leaving, he telephoned Chris Brown, a fellow Bloods street gang

member, but Brown did not answer the call because he was working

in Piscataway until approximately 8:00 p.m.

Just before 10:00 p.m., Brown encountered [Petitioner] at

Jackson’s apartment complex. After spending some time with

[Petitioner] in Jackson’s apartment, the men left and walked to

Brown’s car. Along the way, [Petitioner] told Brown “he had to

show [him] Baby J,” which was a reference to Skyers. Brown was

already aware that [Petitioner] “didn’t want [Skyers] . . . around”

because Skyers had “snitch[ed] on the Subway robbery.”

While Brown and [Petitioner] walked along an unlit wooded

trail, [Petitioner] said he hoped “that Baby J’s mother . . . finds the

body.” After walking some distance, Brown saw Skyers laying face

down with a bullet hole in his head. Upon seeing Skyers’s body,

[Petitioner] told Brown that he “pulled the trigger once, . . . nothing

came out, and then... Baby J... turned around and he... pulled

again and shot.” [Petitioner] also said, “this is what happens . . . to

snitches.”

On June 8, 2008, [Petitioner] surrendered himself to the

Lakewood Police Department on an outstanding warrant for the

Subway robbery. On the way to the county jail in an unmarked

black Crown Victoria, one of the sheriffs officers assigned to the

transport detail asked the other sheriffs officer if he knew any facts

about a recent Lakewood homicide. When the second sheriff's

officer indicated that he “didn’t know any particulars about the

incident,” [Petitioner] leaned towards the vehicle’s partition

window, stating that Lakewood police “had me as the prime suspect

in the shooting.” [Petitioner] then asked two questions: “[H]ow can

I be arrested for this crime when the only witness to the crime is

dead?” and “[H]ow can I go on trial for this crime when my

codefendant is dead?”

When one of the sheriffs officers asked, “who died,”

[Petitioner] said, “just read my shirt,” which contained the words

“R.IL.P. Baby J” on the front and “Anthony” on the back. [Petitioner]

further volunteered that Skyers “was his brother and he was going

to have [Skyers’s] face tattooed on his arm.”

Kevin Allman, an Ocean County sheriffs officer,

fingerprinted [Petitioner] that day. In response to [Petitioner]’s

question regarding whether he could be charged with a crime if the

police did not have the weapon, Allman responded affirmatively.

Allman testified that [Petitioner] replied that “he did not have the

weapon anymore.”

After waiving his Miranda[| rights, [Petitioner] gave an

unrecorded statement to Toms River police detective Steven Lomer.

According to Detective Lomer, [Petitioner] denied any involvement

in the Subway robbery. [Petitioner] also stated “he was in charge of

200 Bloods” in the Lakewood and Toms River area, and a friend of

Skyers.

While incarcerated, [Petitioner] telephoned his mother,

Donna Looney, from jail. Four of those calls were recorded and

played for the jury. In those calls, [Petitioner] asked his mother to

have others talk to the Subway employee, Allen, requesting that he

submit a statement to [Petitioner]’s lawyer that [Petitioner] was not

at the scene of the Subway robbery.

While being held in the county jail on the robbery charge,

[Petitioner] befriended Charles Anderson who been

incarcerated since April 2008 for charges related to a separate armed

robbery, assault, and multiple weapon offenses. According to

Anderson, [Petitioner] spoke about the Subway robbery and

Skyers’s murder multiple times. Anderson also claimed that

[Petitioner] asked him to write a letter to the prosecutor, informing

that an individual named D-Bow committed the murder. Instead of

informing the prosecutor of that accusation, Anderson wrote a letter

seeking to be released on his own recognizance in exchange for

information about the Subway robbery and Skyers’s murder.

After meeting with detectives, Anderson agreed to wear a

wireless recording device so that further information could be

collected directly from [Petitioner]. The detectives instructed

Anderson not to discuss the Subway robbery with [Petitioner].

Additionally, they instructed him not to ask [Petitioner] questions,

but merely “let him come to [you] . . . and talk.” Anderson was not

released on his own recognizance and returned to his original

lodging in the jail.

[Petitioner]’s July 1, 2008, conversation with Anderson was

recorded and played for the jury. During the conversation,

[Petitioner] denied committing the Subway robbery, stating that he

did not fit the witnesses’ description, and Rossano would not be able

to identify [Petitioner] since they had just met, and Rossano would

be afraid to testify against him.

With respect to Skyers’s murder, [Petitioner] said it was

“impossible” for him to be charged with that crime because he “was

with [Brown]... for most of the night.” Furthermore, [Petitioner]

contended that there were three other potential suspects, and on the

day of his arrest for the Subway robbery, [Petitioner] wore a t-shirt

with Skyers’s street name inscribed on it and acted distraught in the

presence of the police about his death.

In October 2008, [Petitioner] confronted Anderson with

what appeared to be a police report, stating that Anderson had told

police that [Petitioner] committed the Subway robbery. [Petitioner]

said if Anderson did not write a letter stating [Petitioner] had not

committed the robbery, Anderson would be “food,” meaning that he

would be targeted for an assault or death. Feeling threatened,

Anderson wrote a letter recanting everything he had told the

prosecutor’s office about [Petitioner], as well as the information

contained in the “consensual intercept.”

Jacarlos McKoy,['] a fellow inmate with [Petitioner] and

Anderson in the county jail, became a member of the Bloods street

gang while incarcerated on October 31, 2008, but dropped out of the

gang in 2010. McKoy testified that [Petitioner] approached him in

the jail’s recreation yard near the end of 2008 asking him “how...

[McKoy] was living with a snitch?” [Petitioner] showed McKoy a

paper suggesting that Anderson was cooperating with law

enforcement authorities, and indicated that [Petitioner] would

increase McKoy’s rank in the street gang if he assaulted Anderson.

McKoy recruited fellow inmate Jashon Brinson to help with the

assault because Anderson was “not really a small guy.”

On March 12, 2009, Brinson and McKoy assaulted

Anderson. Anderson testified as follows: “[O]ut of nowhere I felt a

sharp object and it punctured my lip, went through my lip, shattered

my teeth and it knocked me on the floor. And [McKoy] proceeded

to kick me, punch on me, they beat me up for like a half hour. I lost

like a decent amount of blood.” As sheriff's officers were rescuing

Anderson, he saw [Petitioner] laughing at him and saying, “[H]ey,

they got you, they got you, they F you up.”

' McKoy’s name is spelled both McKoy and McCoy in various portions of the record. For

consistency’s sake, this Court will use McKoy.

After July 4, 2009, when [Petitioner] and McKoy were then

housed together in the county jail, Ragland told McKoy that he

“executed” Skyers with a revolver because he thought Skyers “was

snitching about a Subway robbery.”

On September 22, 2009, an Ocean County grand jury issued

a superseding indictment[] against [Petitioner] (and three others) for

numerous crimes associated with the robbery at the Subway

restaurant, the murder of Skyers, and the assault and witness

tampering with respect to Anderson. Prior to trial, [Petitioner]

moved to suppress his oral statements to the jailhouse informant,

Anderson, but the motion was denied.

The trial comprised ten days of testimony. At its conclusion,

the jury convicted [Petitioner of the charges noted above].

(ECF No, 21-5 at 1-3.)

Il. LEGAL STANDARD

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

habeas corpus [o]n 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 his entitlement to relief for each claim

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

712 F.3d 837, 846-47 (3d Cir. 2013). Under the statute, as amended by the Anti-Terrorism and

Effective Death Penalty Act, 28 U.S.C. § 2244 (‘AEDPA”), district courts are required to give

great deference to the determinations of the state trial and appellate courts. See 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)(1)-(2). 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, 575 U.S. 312, 316 (2015). “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.”

Id. 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 the]

applicant shall have the burden of rebutting the presumption of correctness by clear and convincing

evidence.” 28 U.S.C. § 2254(e)(1).

Wl. DISCUSSION

A. Petitioner’s Massiah Claim

In his first claim, Petitioner contends that the state courts erred in declining to suppress

recorded statements he made to Anderson, which he believes violated his Massiah rights. The

Appellate Division rejected this claim, finding both that those rights had yet to attach at the time

the recorded statements were made, as Petitioner had neither yet been indicted or sought counsel

at the time of the recordings, and because the statements in any event did not violate Petitioner’s

rights as Petitioner made the statements voluntarily and without deliberate elicitation by Anderson.

(See ECF No. 21-5 at 4-5.)

As the Supreme Court established in Massiah v. United States, 377 U.S. 201 (1964), and

its progeny, the Sixth Amendment right to counsel protects criminal defendants from being forced -

to face agents of the state without the presence of counsel where those agents seek to deliberately

elicit inculpatory statements. See, e.g., Dellavecchia v. Sec’y Pa. Dep’t of Corr., 819 F.3d 682,

693 (3d Cir. 2016). Thus, in order to show a violation of one’s rights under Massiah, a petitioner

must show that the right to counsel under the Sixth Amendment had attached at the time of the

event in question, an agent of the state or informant acting as an agent of the state was involved in

the event, and the agent or informant sought to deliberately elicit incriminating information outside

of the presence of counsel. Matteo y. Superintendent, SCI Albion, 171 F.3d 877, 892 (3d Cir.

1999). A prerequesite to such a claim is the attachment of the Sixth Amendment right to counsel,

which generally attaches “only at or after the initiation of adversary judicial proceedings,” such as

the levying of a “formal charge, preliminary hearing, indictment, information, or arraignment.”

fd. (internal quotations omitted). Even where the right has attached, no violation of a criminal

defendant’s rights will occur where an informant acting on behalf of the state records the

defendant’s unsolicited and spontaneous words and does not deliberately elicit inculpatory

statements. Dellavecchia, 819 F.3d at 694-95. Where a criminal defendant voluntarily provides

information about his offenses, “a state has no obligation to hinder him in making the statements

and is not required to persuade an otherwise willing individual to remain silent.” Jd. at 695.

In this matter, it is debatable whether Petitioner had reached a sufficient point in

prosecution that his right to counsel under the Sixth Amendment had attached at the time of the

recordings as he had yet to be indicted, seek counsel, or otherwise move towards adversarial

criminal proceedings. Even if one assumes that the right did attach, however, no violation of the

Massiah doctrine occurred as a review of the recordings in question clearly indicates that

Petitioner, and not the informant, initiated conversation and volunteered inculpatory information

without any deliberate elicitation on Anderson’s part. Indeed, Anderson had been expressly told

not to deliberately bring up the subject of Petitioner’s charges and not to seek to elicit incriminating

information, and had in any event not been promised any positive treatment from the State as a

result of agreeing to record conversations with Petitioner. Under the circumstances, the Appellate

Division’s conclusion that Anderson did not deliberately elicit incriminating information from

Petitioner was neither contrary to nor an unreasonable application of Massiah and its progeny, and

Petitioner has failed to show a violation of his Massiah rights as a result. Petitioner’s first claim

thus serves as no basis for habeas relief.

B. Petitioner’s Other Bad Acts Evidence Claim

In his next claim, Petitioner contends that the use of recorded jail calls between himself

and his mother during which Petitioner sought to have his mother induce a witness against him to

lie and to provide money to McKoy amounted to improperly admitted evidence of prior bad acts

in violation of state evidentiary rules. The Appellate Division rejected this claim, finding both that

the testimony in question was relevant to, inter alia, Petitioner’s cognizance of guilt and was

otherwise admissible under state law.

Because “[t]he Due Process Clause does not permit the federal courts to engage in a finely-

tuned review of the wisdom of state evidentiary rules,” see Marshall v. Lonberger, 459 U.S. 422,

438 n.6 (1983), claims challenging the admissibility of testimony or other evidence are normally

considered questions of state law which are not cognizable in habeas corpus. See Keller v. Larkins,

251 F.3d 408, 416 n.2 (3d Cir. 2001) federal habeas court .. . cannot decide whether the

evidence in question was properly allowed under the state law of evidence”); see also Estelle v.

MeGuire, 502 U.S. 62, 67-70 (1991); Wilson v. Vaughn, 533 F.3d 208, 213-14 3d Cir. 2008), cert.

denied, 556 U.S. 1170 (2009). A habeas petitioner may therefore raise a habeas claim based on a

state law evidentiary decision only where he can show that the admission of the evidence in

question denied him Due Process under the Fourteenth Amendment by depriving him of the

“fundamental elements of fairness in [his] criminal trial.” Glenn v. Wynder, 743 F.3d 402, 407 Gd

Cir. 2014) (quoting Riggins v. Nevada, 504 U.S. 127, 149 (1992) (Thomas, J., dissenting)). “The

Supreme Court has ‘defined the category of infractions that violate “fundamental fairness” very

narrowly, based on the recognition that, beyond the specific guarantees enumerated in the Bill of

Rights, the Due Process Clause has limited operation.’” /d. (quoting Medina v. California, 505

U.S. 437, 443 (1992)). “In order to satisfy due process, [Petitioner’s] trial must have been fair; it

need not have been perfect.” /d. (citing United States v. Hasting, 461 U.S. 499, 508 (1983)). Thus,

a Due Process violation will only occur in the context of a state court evidentiary ruling when that

ruling was “so arbitrary or prejudicial that it rendered the trial fundamentally unfair.” Scott v.

Bartkowski, No. 11-3365, 2013 WL 4537651, at *9 (D.N.J. Aug. 27, 2013) (citing Romano y.

Oklahoma, 512 U.S. 1, 12-13 (1994)).

The Supreme Court has never held that evidence of prior bad acts-even when they amount

to other crimes—must be excluded from criminal trials, nor that a curative instruction or other

restriction is per se required fora criminal conviction to survive constitutional scrutiny. See Minett

v. Hendricks, 135 F. App’x 547, 553 Gd Cir. 2005). See generally Estelle, 502 U.S. at 62; Greer

v. Miller, 483 U.S. 756 (1987); Spencer v. Texas, 385 U.S. 554 (1967). As with most state court

evidentiary decisions, the admission of such evidence will only warrant habeas relief where the

admission of the evidence was so unduly prejudicial that it rendered the petitioner’s trial

fundamentally unfair. Glenn, 743 F.3d at 407; Minett, 135 F. App’x at 553.

Here, the Appellate Division found the recorded calls admissible under state law as they

were relevant to Petitioner’s cognizance of guilt and relationship with McKoy leading up to the

attack on Anderson and were more probative of Petitioner’s guilt than unduly prejudicial. Having

considered the calls in question, it is clear that they were relevant to Petitioner’s case. The calls

reflected that Petitioner was cognizant of his guilt in the robbery insomuch as he wished to dissuade

a witness from testifying against him. The calls also reflected that Petitioner knew McKoy and

fostered positive relations with him, which was probative of his guilt related to the attack on

Anderson. Moreover, nothing Petitioner has submitted indicates that the admission of this

10

evidence was so unduly prejudicial that it rendered his trial fundamentally unfair, especially in

light of the significant evidence of Petitioner’s guilt presented at trial. As such, the state courts’

refusal to suppress these recordings was neither contrary to or an unreasonable application of

federal law, and this claim provides no basis for habeas relief.

Cc, Petitioner’s Rebuttal Evidence Claim

In his next claim, Petitioner asserts that the state courts erred in permitting the state to call

rebuttal witnesses to rebut the assertion that Thigpen, rather than Petitioner, had killed Skyers, as

was suggested by the defense during the cross-examination of Christopher Brown. The Appellate

Division rejected this claim, finding that: (1) Petitioner had opened the door to Thigpen’s

credibility by eliciting Brown to testify that Thigpen had claimed responsibility for killing Skyers;

(2) the trial court had provided limiting instructions directing the jury to consider the rebuttal

evidence for the limited purpose of evaluating the credibility of Thigpen’s hearsay statement, and

(3) the evidence was sufficiently probative in light of defense counsel’s elicitation of a third-party

guilt defense through Thigpen’s hearsay statement. (ECF No. 21-5 at 7.)

As this claim challenges a state court evidentiary decision, it too may only serve as a basis

for habeas relief if Petitioner shows that the admission of the evidence rendered his trial

fundamentally unfair. Glenn, 743 F.3d at 407. There is no clearly established constitutional bar

to the admitting of otherwise inadmissible evidence during a criminal trial to rebut any false

impression given by a criminal defendant when he opens the door to an issue by eliciting it on

cross-examination. See, e.g., United States v. Chance, 306 F.3d 356, 385 (6th Cir. 2002); Gould

v. Bonds, No. 18-9406, 2019 WL 4785857, at *5 (D.N.J. Sept. 30, 2019). Having considered the

rebuttal evidence in question, and as this Court agrees with the state courts that Petitioner opened

the door by eliciting the hearsay statement on cross-examination regarding Thigpen claiming to

have killed Skyers, the Court finds that the admission of the rebuttal evidence to permit the jury to

11

properly evaluate the credibility of that hearsay statement did not render Petitioner’s trial

fundamentally unfair. Indeed, to refuse to permit such rebuttal would have given Petitioner the

unfair advantage of placing a third-party guilt defense into play without the risk of the credibility

of the third-party ever being placed into contention. In light of the limiting instructions provided

and Petitioner opening the door to the issue of Thigpen’s credibility, the Court finds that

Petitioner’s rebuttal claim fails to state a valid basis for habeas relief. Thus, Petitioner’s claim

must be denied as the decisions of the state courts were neither contrary to nor an unreasonable

application of applicable federal law and did not render Petitioner’s trial fundamentally unfair.

D. Petitioner’s Ineffective Assistance Claims

In his final series of claims, Petitioner asserts that his trial counsel did not adequately

investigate several witnesses at trial, and that he believes had counsel done so, his trial may have

led to a better result. The standard applicable to claims of ineffective assistance of counsel is well

established:

Claims of ineffective assistance are governed by the two-prong test

set forth in the Supreme Court’s opinion in Strickland vy.

Washington, 466 U.S. 668 (1984). To make out such a claim under

Strickland, a petitioner must first show that “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.” /d. at 687; see also

United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007). To

succeed on an ineffective assistance claim, a petitioner must also

show 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; Shedrick, 493

F.3d at 299.

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 therefore show that

counsel’s representation “fell below an objective standard of

reasonableness” under the circumstances. Jd. The reasonableness

of counsel’s representation must be determined based on the

12

particular facts of a petitioner’s case, viewed as of the time of the

challenged conduct of counsel. Jd 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

USS. at 689.

Even where a petitioner is able to show that counsel’s

representation was deficient, he must still affirmatively demonstrate

that counsel’s deficient performance prejudiced the petitioner’s

defense. Jd. at 692-93. “It is not enough for the defendant to show

that the errors had some conceivable effect on the outcome of the

proceeding.” /d. at 693. The petitioner must demonstrate that “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. Where a

“petition contains no factual matter regarding Strickland’s prejudice

prong, and [only provides] . . . unadorned legal conclusion[s] .. .

without supporting factual allegations,” that petition is insufficient

to warrant an evidentiary hearing, and the petitioner has not shown

his entitlement to habeas relief. See Palmer v. Hendricks, 592 F.3d

386, 395 (3d Cir. 2010). “Because failure to satisfy either prong

defeats an ineffective assistance claim, and because it is preferable

to avoid passing judgment on counsel’s performance when possible,

[Strickland, 466 U.S. at 697-98],” 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).

Judge v. United States, 119 F. Supp. 3d 270, 280-81 (D.N.J. 2015).

Here, Petitioner chiefly asserts that counsel failed to perform adequate pre-trial

investigations of the witnesses. As one court in this district explained,

In Strickland, the Supreme Court held that trial counsel “has a duty

to make reasonable investigations or to make a reasonable decision

that makes particular investigations unnecessary. In any

ineffectiveness case, a particular decision not to investigate must be

directly assessed for reasonableness in all the circumstances,

applying a heavy measure of deference to counsel’s judgments.”

466 U.S. at 691. “The failure to investigate a critical source of

potentially exculpatory evidence may present a case of

constitutionally defective representation,” and “the failure to

conduct any pretrial investigation generally constitutes a clear

instance of ineffectiveness.” United States v. Travillion, 759 F.3d

281, 293 n.23 (3d Cir. 2014) (internal quotations omitted); see also

13

United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989) (noting that

a complete absence of investigation usually amounts to ineffective

assistance because a counsel cannot be said to have made an

informed, strategic decision not to investigate); United States v.

Baynes, 622 F.2d 66, 69 (3d Cir. 1980).

Where a [pletitioner can show that counsel’s failure to

investigate amounts to deficient performance, he must still show

prejudice. In order to do so,

a defendant basing an inadequate assistance claim on

his or her counsel’s failure to investigate must make

“a comprehensive showing as to what the

investigation would have produced. The focus of the

inquiry must be on what information would have

been obtained from such an investigation and

whether such information, assuming admissibility in

court, would have produced a different result.”

United States vy. Askew, 88 F.3d 1065, 1073 (D.C. Cir. 1996)

(quoting Sullivan v. Fairman, 819 F.2d 1382, 1392 (7th Cir. 1987));

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

(“[w]hen a petitioner alleges that counsel's failure to investigate

resulted in ineffective assistance, the petitioner has the burden of

providing the court with specific information as to what the

investigation would have produced”); United States v. Green, 882

F.2d 999, 1002 (Sth Cir. 1989) (“A defendant who alleges a failure

to investigate on the part of his counsel must allege with specificity

what the investigation would have revealed and how it would have

altered the outcome” of [p]etitioner’s case); accord United States v.

Garvin, 270 F. App’x 141, 144 (3d Cir. 2008).

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

Petitioner first claims that counsel failed to adequately investigate the backgrounds of

Brinson and Mc[K Joy, which Petitioner believes would have revealed information to support his

contention that Brinson and Mc[K ]oy attacked Anderson without any direction from Petitioner,

largely relying on a certification written by Brinson disclaiming knowledge of Petitioner prepared

several years after Petitioner’s conviction. The state courts rejected this contention, finding the

alleged information immaterial and determining that Petitioner could show no prejudice from it

as:

14

Trial counsel had ample information with which he could or did

cross-examine Brinson and Mc[K|oy, including: Brinson’s two

prior drug convictions; McKoy’s pending murder charge; their

admitted gang membership; their videotaped assault on Anderson;

their motives to assault Anderson regardless of [Petitioner]; their

pending criminal charges arising out of the assault; and their

agreement to testify against [Petitioner] and plead guilty to some

charges in return for the concessions by the prosecutor at their

upcoming sentencings. Indeed, trial counsel’s efforts were

sufficient to gain acquittals on the charges of second-degree assault

on Anderson, and of witness tampering by employing or threatening

force against Anderson or conspiring to do so. [Petitioner] has failed

to show a prima facie case that trial counsel was ineffective.

State v. Ragland, No. A-0747-16T2, 2018 WL 3596376, at *4 (N.J. Super. Ct. App. Div. July 27,

2018). Having reviewed the record, this Court agrees that the result of Petitioner’s trial would not

have been different had counsel discovered the information in the Brinson certification—Brinson

already testified that he acted at McKoy’s behest and would have done so without any involvement

by Petitioner, and counsel secured highly favorable results for Petitioner on this issue in any event.

It is not likely that the certification or the information in it would have changed the outcome of

Petitioner’s trial and he therefore cannot show prejudice. This claim therefore fails to set forth a

valid basis for habeas relief.

Petitioner next asserts that counsel failed to discover that two witnesses against him—

Zenobia Jackson and Jovina Vega—were paid relocation expenses by the state in relation to their

testimony, asserting that such information could have aided in cross-examination of those two

witnesses. During his PCR proceedings, Petitioner raised this claim both as a claim for ineffective

assistance and as a species of Brady claim, contending that this information had been improperly

withheld from him. The Appellate Division rejected the claim, finding both that trial counsel had

requested such information, see Ragland, 2018 WL 3596376, at *5, and regardless of how

Petitioner’s claim was construed, the information was not material and thus was not prejudicial.

The Appellate Division explained that conclusion as follows:

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Trial counsel had ample ammunition for cross-examining [Jackson],

including her gang membership; her long-held belief [that

Petitioner] was innocent; her subsequent relationship with [Brown],

who told her [Petitioner] was meeting with other girls after Skyers

was killed; her repeated lying to police in her earlier statements; the

police cursing at her and telling her people were after her and her

children needed her; her delay of over a year in giving a statement

inculpating [Petitioner]; her failure to tell her cousins and others

what she was telling the jury; and her failure to disclose [Petitioner]

was living with her to protect her subsidized housing and welfare

payments. Indeed, trial counsel cross-examined [Jackson] for over

ninety-five pages.

Given this wealth of cross-examination material to show

[Jackson] was a lying, jealous former girlfriend who was pressured

by police, information that the State paid to relocate [Jackson]

would have added little. . ..

Moreover, eliciting that the State paid to relocate [Jackson],

“although possibly beneficial to [Petitioner], posed the clear risk of

an adverse jury reaction.” .... To explain why she had withheld

inculpatory information for over a year, the prosecution elicited

from her that she “was kind of afraid.” On cross-examination,

defense counsel got her to admit that [Petitioner had] never

threatened her or told her not to talk to anyone. To elicit that State

found it necessary to pay to relocate her would risk confirming that

she was really afraid of retaliation by [Petitioner]. Not only would

that aid the credibility of her final statement inculpating [Petitioner],

but it would paint [Petitioner] in a bad light and corroborate that he

would retaliate against those who snitched against him, which was

the theory of why he murdered Skyers and went after Anderson.

Moreover, the other evidence against [Petitioner] was

strong. The other juvenile with [Petitioner] in the Subway, and a

customer, identified him as the robber. [Brown] testified how

[Petitioner] showed him Skyers’s body, and how [Petitioner]

admitted he killed Skyers for snitching that he committed the

robbery. Anderson testified that [Petitioner] confessed to the

robbery and the murder. The recording of their conversation was

incriminating. Anderson, McKoy, and Brinson testified how

[Petitioner] sought to retaliate against Anderson. Finally,

[Petitioner] made incriminating remarks to the police.

Thus, even assuming that the State paid to relocate

[Jackson], and that information was not disclosed to or unearthed by

defense counsel, [Petitioner] has not shown a prima facie case that

there was a reasonable probability the result of the trial would have

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been different if defense counsel had elicited that the State paid to

relocate [Jackson].

[Petitioner] also cannot show that the verdict would have

been different if defense counsel had elicited that the State paid to

relocate [Vega]. [Vega] gave very brief testimony. She did not

know [Petitioner] or other witnesses in his trial. She testified that

Thigpen told her he lured a “boy” into the woods and shot him twice

because he ratted on “D-Block,” [a nickname for Petitioner], but she

did not know who D-Block was.[] Given her testimony that Thigpen

committed the murder, defense counsel on cross-examination did

not try to discredit [Vega]. Rather, he elicited that [Vega] “didn’t

hold anything back” from the police, that Thigpen “was telling her

what he honestly believes,” and that Thigpen told her he was alone

when he committed the murder, D-Block was locked up at the time,

and D-Block was not part of the conversation about whether to shoot

the boy.

To elicit that the State paid to relocate [Vega] to discredit her

would have undermined her testimony that [Petitioner] was

uninvolved in the murder. It could also have had the same adverse

jury reaction.

Id. at 6-7.

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

application of Strickland and its progeny.* As noted, the information in question was of at best

? In his habeas petition, Petitioner did not try to raise the claim as a Brady violation. In his reply,

counsel belatedly attempts to resurrect the claim under Brady. (See ECF No. 29 at 2.) Even if the

Court were to consider the late-raised Brady claim which was raised here for the first time in reply,

the Appellate Division’s conclusions do not amount to an unreasonable application of Brady and

its progeny as the Appellate Division found the information in question to be immaterial—it was at

best cumulative and highly risky to the extent it was aimed at Jackson, and was either irrelevant

or actively damaging to his case insofar as it related to Vega. As the information was at best

cumulative, there is no reasonable likelihood that the outcome of the case would have been

different had the information been available and used by defense counsel, and the information was

therefore not sufficiently material to support a Brady claim. See, e.g., Kyles v. Whitley, 514 U.S.

419, 432 (1995) (Brady claim requires showing that the state suppressed material evidence which

was favorable to the defense); United States v. Bagley, 473 U.S. 667, 682 (1985) (“evidence is

material only if there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.”). The Appellate Division’s

rejection of the claim insomuch as it was raised under Brady was thus neither contrary to nor an

unreasonable application of federal law, and thus provides no basis for habeas relief even had the

Brady aspect of the claim been properly raised.

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marginal cumulative value in impeaching Jackson and carried a great risk of leading the jury to

conclude that Jackson believed Petitioner to be a threat to her safety. Such a conclusion would be

of no benefit to Petitioner, and the fact that she received relocation funds would have been of little

benefit in light of the significant efforts counsel already made to impeach her credibility and the

great strength of the considerable evidence against Petitioner. There is simply no reasonable

likelihood that the outcome of trial would have changed had counsel been able to raise the

relocation funds issue as to Jackson. Turning to Vega, as the Appellate Division noted, it was not

in any way in Petitioner’s interests to call her credibility into question through the raising of the

issue. Such a credibility attack would have actively hindered counsel’s strategy of using her to

suggest Thigpen’s guilt over Petitioner’s, all while carrying the same potential negative inferences

regarding Petitioner had the jury learned witnesses feared him enough to seek relocation. All

considered, there is no reasonable likelihood of a different outcome at trial had counsel raised these

issues, and there is a significant likelihood that the information would have hurt Petitioner’s case

further. Petitioner thus failed to show prejudice, and his ineffective assistance of counsel claim

serves as no basis for habeas relief.

In his final claim, Petitioner asserts that counsel was ineffective in allegedly failing to

acquire the unredacted recordings of Petitioner’s conversations with Anderson, only portions of

which were played at trial. The Appellate Division rejected this claim as Petitioner failed to

provide any affidavits, certifications, or other evidence which indicated that any redacted portions

of the recordings or testimony regarding the reliability or identity of those who had been recorded:

would have been of any benefit to him at trial. Ragland, 2018 WL 3596376, at *4. That same

failure exists in his habeas petition. Petitioner identifies no portions of the unredacted recordings

that he attempts to show were both admissible or relevant at trial, nor does he indicate what

evidence or witnesses—expert or otherwise—a review of any unredacted recordings would have led

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to at trial. Petitioner has thus failed to make a showing of how further investigation would have

affected the outcome at trial and assumes, rather than shows, any prejudice. As Petitioner has

failed to show how the outcome of his trial would have been likely to change had further

investigation been conducted as to the recordings and does not otherwise show how he was

prejudiced by counsel’s alleged failure, he fails to make out a prima facie showing of ineffective

assistance of counsel. The rejection of Petitioner’s final claim by the state courts was thus neither

contrary to nor an unreasonable application of Strickland, and serves as no basis for habeas relief.

As all of Petitioner’s claims are clearly without merit, Petitioner’s habeas petition 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 his state court conviction unless he has

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

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

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

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

Because Petitioner’s habeas claims are without merit for the reasons set forth above, he has failed

to make a substantial showing of a denial of a constitutional right, and his petition is not adequate

to receive encouragement to proceed further. This Court therefore denies Petitioner a certificate

of appealability.

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V. CONCLUSION

In conclusion, Petitioner’s habeas petition (ECF No. 1) is DENIED, and Petitioner is

DENIED a certificate of appealability. An appropriate order follows.

MICHAEL A. Sulpp

UNITED STATES DISTRICT JUDGE

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