# VAUGHN v. RICCI > District Court, D. New Jersey · April 1, 2024 URL: https://www.frixlaw.com/law-library/cases/10656016 ## Case - **Court:** District Court, D. New Jersey - **Decided:** April 1, 2024 - **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/10656016 ## How later opinions describe it (automated extraction) - acknowledging that suspect’s choice to speak after receiving Miranda warnings is highly probative of voluntariness - stating police misrepresentation that co-defendant had confessed did not render otherwise voluntary confession inadmissible ## Opinion text Not for Publication UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY JERMAINE VAUGHN, ————C Petitioner, : Civ. No. 10-1397 (PGS) v. : MICHELLE RICCE, et al., □ OPINION Respondents. PETER G. SHERIDAN, U.S.D.J. I. INTRODUCTION. Petitioner, Jermaine Vaughn (“Petitioner”), is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (“Petition”). (ECF No. 1.) For the following reasons, the petition is denied and a certificate of appealability shall not issue. IL. FACTUAL AND PROCEDURAL BACKGROUND In March 1999, Petitioner was convicted of the robbery and shooting death of Adrian Davis. See State v. Vaughn, No. A-2877-06, 2009 WL 3460267 at *1 (Oct. 14, 2009). On Petitioner’s first post-conviction relief (“PCR”) collateral appeal, the New Jersey Superior Court Appellate Division summarized the factual background relevant here as follows: The conviction arises from a chance encounter between Adrian Davis, [Petitioner] and co-defendant Jeremiah Bass during the evening of June 5, 1995. After driving around Trenton, stopping at his home to obtain a black hooded jacket and a green hooded sweatshirt, and consuming a forty-ounce bottle of malt liquor, [Petitioner] and co-defendant decided they needed money to get into parties. Both men were armed. As they walked down a street, [Petitioner] had his revolver in his hand and noticed the victim walking towards him. The man walked right up to [Petitioner] and co-defendant. Afier a momentary struggle, [Petitioner’s] gun discharged, the man fell to the ground, and [Petitioner] and co-defendant walked away. The victim was pronounced dead at the hospital. A woman observed the entire encounter from the front window of her home. When she called police, she informed the dispatcher that the men had entered Marion Street on foot. Soon, police observed two men on Marion Street fleeing the area on foot. After a foot pursuit, during which police observed co-defendant discard his gun and ammunition, the co-defendant was detained and arrested. Although police located a small chrome revolver and a spent .32 caliber shell casing in the pocket of a black jacket in an empty lot, [Petitioner] was not arrested until June 9, when police located him in the hospital recovering from a wound received in another incident on June 6. Id, at *1, On appeal from the denial of his second PCR petition, the Appellate Division summarized the following relevant facts and history: [Following Petitioner’s arrest,] police advised [Petitioner] why he was in custody, and a detective administered his Miranda’ rights. [Petitioner] waived his rights, and approximately two hours later provided a formal statement Miranda v. Arizona, 384 U.S. 436 (1966). in which he admitted shooting the victim. [Petitioner] explained the incident as follows: “As we got closer to the [victim] he saw my gun, and then he got up on me real quick, grabbed my jacket and pulled me towards him, and. [that is] when the gun went off” At [Petitioner’s] 1999 trial, Detective Robert Sheehan of the Homicide unit testified that after being conveyed to the Trenton Police Department, [Petitioner] was placed in an interview room and advised that he was there for an investigation. Sheehan testified that [Petitioner] appeared coherent and clear-minded and stated he appeared to be “a very intelligent young man.” The detective testified that he advised defendant of his Miranda rights, reviewed the waiver of rights form with him, and ensured that [Petitioner] understood his rights. Defendant subsequently waived his rights by affixing his signature on the signature line without asking Sheehan for any clarification. Detective Sheehan testified that after [Petitioner’s] waiver, he was uncooperative and unwilling to speak, and made such statements as: “I’m not going to tell you anything;” “there’s nothing you can do to me;” and “you don’t have anything on me.” After Detective Sheehan informed [Petitioner] of the evidence against him including witness testimony, recovered weapons, ballistics, and fingerprints, [Petitioner] told Detective Sheehan that “the guy didn’t have to be a hero” and that he would tell him what happened. Sheehan testified that [he obtained a formal statement regarding the shooting from Petitioner.] ... [Petitioner] testified at trial that after he was conveyed to the Trenton Police Department, he was advised of his Miranda rights, and voluntarily waived them. [Petitioner] testified that he agreed to provide Detective Sheehan with his statement. . . . On cross-examination, [Petitioner] admitted that he was given the opportunity to review his statement, initialed each page, and did not make any changes. See State v. Vaughn, A-1497-16T1, 2018 WL 3614346 at #1-2 (July 30, 2018). Petitioner filed a direct appeal. The Appellate Division affirmed Petitioner’s conviction and sentence, but remanded for a Miranda hearing. (ECF No. 9-34 at □□ 13.) The New Jersey Supreme Court denied certification. Ud. at 26.) The trial court held an evidentiary hearing on remand and found that Petitioner had not invoked his right to remain silent and that his confession was properly admitted. (ECF Nos. 9-20, 9-34 at 14.) Petitioner appealed and the Appellate Division affirmed Petitioner’s conviction on June 7, 2004. (ECF No. 9-34 at 16-25.) The New Jersey Supreme Court denied certification on Petitioner’s direct appeal. State v. Vaughn, 182 N.J. 143 (2004). Petitioner filed a post-conviction relief (“PCR”) petition. The PCR. court denied his petition on January 10, 2007. (See ECF No. 9-34 at 27-49.) Petitioner appealed, and the Appellate Division affirmed the denial on October 14, 2009. Vaughn, No. A-2877-06, 2009 WL 3460267. Petitioner filed his habeas petition on March 15, 2010. (ECF No. 1.) Respondents filed an answer on October 29, 2010. (ECF No. 9.) On or about September 30, 2013, Petitioner filed for a stay and abeyance, asking the Court to stay his Petition for Petitioner to return to state court and file a motion for a new trial based on newly discovered evidence. (ECF No. 25.) The Court granted Petitioner’s motion for a stay. (ECF No. 32.) Petitioner filed a motion for PCR relief and a new trial based on newly discovered evidence, which the PCR court denied. Petitioner appealed, and the Appellate Division affirmed the denial on July 30, 2018. State v. Vaughn, No. A- 1497-16T1, 2018 WL 3614346 (July 30, 2018). The New Jersey Supreme Court denied certification on March 5, 2019. (ECF No, 35-2.) This matter was reopened on April 17, 2019. (ECF No. 39.) However, Petitioner subsequently filed another PCR petition on May 31, 20 19, On November 5, 2019, the Court again stayed this matter. (ECF No. 54.) On February 16, 2022, Petitioner filed a motion to reopen (ECF No. 59), which the Court granted on March 9, 2022. (ECF No. 60.) I. LEGAL STANDARD Under 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 on 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 y. Erickson, 712 F.3d 837, 846 (3d Cir, 2013). 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, 575 U.S. 312, 316 (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, 559 U.S. at 773), As to 28 U.S.C, § 2254(d)(1), a federal court must confine its examination to evidence in the record. Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011). “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, 574 U.S. at 316. 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 artives 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)). Finally, to the extent that a petitioner’s constitutional claims are unexhausted and/or procedurally defaulted, a court can nevertheless deny them on the merits under 28 U.S.C. § 2254(b)(2). See Taylor v. Horn, 504 F.3d 416, A427 (3d Cir. 2007) (“Here, because we will deny all of [petitioner’s] claims on the merits, we need not address exhaustion”); Bronshtein v. Horn, 404 F.3d 700, 728 (d Cir. 2005) (considering procedurally defaulted claim, and stating that “{ujnder 28 U.S.C. § 2254(b)(2), we may reject claims on the merits even though they were not properly exhausted, and we take that approach here”). IV. DISCUSSION A. Ground One In Ground One, Petitioner argues that his Fifth Amendment rights were violated when Detective Sheehan did not scrupulously honor Petitioner’s exercise of his right to remain silent. (ECF No. | at 9.) Petitioner argues that Detective Sheehan testified that Petitioner was “uncooperative” and “not willing to speak,” which required Detective Sheehan to inquire if Petitioner was invoking his right to remain silent. On direct appeal, the Appellate Division considered Petitioner’s claim that his confession had been improperly admitted based upon the failure of the investigating police officer to honor his assertion of his right to remain silent. (See ECF No. 9-34 at 1-13, State v. Vaughn, A-6299-98T4 (June 26, 2001).) The Appellate Division remanded the claim to the trial court for a hearing to allow the parties to “supplement the record with whatever additional evidence they may wish to present so that a fully informed decision may be reached regarding this contention.” Ud. at 12.) On February 19, 2002, the trial court held a remand hearing and ultimately determined that Petitioner had not invoked his right to remain silent, rather he had voluntarily and knowingly waived his right to remain silent. (See ECE No. 9-20.) Petitioner appealed to the Appellate Division arguing that the detective did not scrupulously honor Petitioner’s exercise of his right to remain silent. (ZCF No. 9-23 at 24.) The Appellate Division cited to the following findings from the trial court’s decision on the remand hearing: [T]his court does hereby today, for purposes of this hearing, reiterate all of its findings made on the record on March 3, 1999, to support the determination that the [Petitioner’s] statements were indeed admissible and the court then was convinced beyond a reasonable doubt that the [Petitioner] was given his Miranda rights, that he understood them, that he waived them, that he did so knowingly, voluntarily, and intelligently, and that he thereupon knowingly, voluntarily, and intelligently provided the statements which the court then admitted. The narrow focus of the proceedings today, as indicated, is whether or not the [Petitioner] invoked his right to remain silent. In that regard the court heard testimony from Detective Robert Sheehan who essentially repeated large portions of his testimony previously provided and also supplemented that testimony. OR KOR Now, on cross-examination defense counsel articulately tested the credibility of this witness, And the detective did concede that in his testimony at the March 17, 1999 trial date that indeed the detective testified that the [Petitioner] was uncooperative and the [Petitioner] told the detective “Pm not going to tell you anything. There’s nothing you can do to me,” or words to that effect. “You don’t have anything on me.” The detective next explained, however, that when he testified that the [Petitioner] was not willing to speak, he also - - namely the [Petitioner] - - also followed up quickly with “Until he asked me what we had on him and I told him.” The detective summed up by saying, “It was very simple. The defendant was advised of his rights. He did not want to speak. I advised him what we had on him. Then he spoke to me and gave me a statement all in the same conversation without any undue passage of time.” Furthermore, Detective Sheehan testified that essentially [Petitioner] never did stop talking. And he further stated “T couldn’t stop [Petitioner] from talking,” supporting the witness’ testimony that there was no passage of time here, that indeed this was one continuous conversation that they were having. Now, in opposition to that testimony, [Petitioner] took the stand and with regard to this issue testified that he was brought to the Trenton Police Department on Friday, June 9, 1995, He was in a room with Detective Sheehan. The detective advised him of his right to remain silent. [Petitioner] testifies today for the first time on this issue, “I advised him I did want to talk to him about it. We kept going back and forth. Eventually 1 gave him a formal statement.” On cross-examination, [Petitioner] conceded that he recalled being given his rights, that he signed the form - - both parts, that he waived his rights, including his right to remain silent. He conceded yes, I signed it. He further conceded in cross-examination this morning that at trial on March 18, he recalls being asked questions regarding the giving of the statement and the questions regarding the understanding of his rights. He further conceded that he agreed everything was fine and that at no place or time at the trial did he indicate the exercise of his right to remain silent. The court finds that there is truly no inconsistency in the testimony of Detective Sheehan and [Petitioner]. Detective Sheehan, this court finds .. is a highly experienced law enforcement officer with well over thirty years of experience in working on major cases, that he was the lead detective on this case, and that it was his obligation to investigate the murder of Adriene Davis, that [Petitioner] was a suspect, that he was properly brought to police headquarters for the conduct of the detective’s investigation. The court reiterates the finding that the [Petitioner] was meticulously given all of his Miranda rights and indeed that he signed an acknowledgment to that effect, as well as the waiver of those rights. And the subject clearly this court finds there was a conversation, and from the testimony of the detective the defense urges, based on the language that at first he was reluctant to talk to me or hesitant to talk to me, that therefore that constituted an exercise of the right to remain silent, In addition, [Petitioner] urges that based upon the testimony of the detective at the 3-17-99 trial wherein the defendant told the detective “I’m not going to tell you anything,” that that constituted an irrevocable right to remain silent which barred Detective Sheehan from speaking to the defendant any further. The court finds, based on the totality of the circumstances herein, quite to the contrary. The court finds that the statement “I’m not going to tell you anything” is taken out of context because that was immediately followed by statements of [Petitioner] ““There’s nothing you can do to me. You don’t have anything on me,” but immediately followed in the same conversation with the [Petitioner] in the same breath, as Detective Shechan testifies and this court finds, asking the detective what do you have on me, followed by Detective Sheehan’s response as to the nature of the evidence[.] .. . But nonetheless the court finds that this is one continuous conversation. [Petitioner] did not testify that there was a great lapse of time. Indeed, he had the opportunity to do so, but did not provide this court with any statement as to a lapse of time. So, effectively, the court accepts the testimony and finds Detective Sheehan’s testimony to be highly credible that this was one continuous conversation, that the [Petitioner] was exceedingly talkative and, to put it in Detective Sheehan’ s own words, [Petitioner] never did stop talking and I couldn’t stop the [Petitioner] from talking. Now, the court further finds that not only is the credibility of Detective Sheehan very high... but the court observed his credibility from the witness stand and finds that he was truthful, that he had recollection of those matters that were important to him, that certainly he couldn’t recall every small detail of what he had said on two prior occasions. The court further finds that he has no interest in the outcome of this case. To the contrary, the court finds that [Petitioner’s] credibility is not high and the court does not accept his statements as true to the extent that they vary from Detective Sheehan’s... Now, based on these findings, the court further finds that [Petitioner] truly never did invoke his right to remain silent by the mere use of the phrase “P’m not going to tell you anything,” Or, put another way, if one were to accept the fact that there is some doubt as to whether he did, this court’s alternative finding was that he gratuitously continued the conversation offering his explanation after asking the question, “What do you have on me.” The court finds that the duty to clarify urged by [Petitioner] is not applicable under the facts of this case. The duty does not apply to a continuous conversation... When [Petitioner] urges the position that there was an absolute duty of the State through Detective Sheehan to stop any conversations, the court finds that the case law does not support that proposition on the facts of this case and, once again, the totality of the circumstances must be taken into consideration. (ECF No. 9-34 at 19-24.) The Appellate Division then found Petitioner’s claim was “without sufficient merit to warrant extensive discussion in a written opinion” and affirmed the trial court’s denial of the claim “substantially for the reasons articulated by Judge Pogarsky in his comprehensive oral opinion.” (Id, at 24.) The Appellate Division added the following: We find no unfairness in the judge’s rulings concerning the scope of defense counsel’s cross-examination of Detective Sheenan. [Petitioner] was well represented and Detective Sheehan was subjected to a vigorous and lengthy cross- examination by defense counsel. The findings, analysis, and conclusion by the judge that [Petitioner] voluntarily and knowingly engaged in a continuous conversation with Detective Sheehan, and did not invoke his right to remain silent is supported by adequate, substantial credible evidence in the record. See State v. Locurto, 157 N.J. 463, 470-71, 474 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964), This is not a circumstance as in State v. Hartley, 103 NJ. 252, 255-56 (1986), where fresh Miranda warnings are required before additional interrogation because a defendant has asserted in clear and unequivocal terms his right to remain silent after having been given initial Miranda warnings. (Id. at 24-25.) The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. The Fourteenth Amendment incorporates the Fifth Amendment privilege against self-incrimination. See Malloy v. Hogan, 378 U.S. 1,8 (1964). In Miranda, the United States Supreme Court held that “without proper safeguards the process of in-custody interrogation . . contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” 384 U.S. at 467. Pursuant to Miranda and its progeny, “suspects interrogated while in police custody must be told that they have a right to remain silent, that anything they say may be used against them in court, and that they are entitled to the presence of an attorney, either retained or appointed, at the interrogation.” See Thompson v. Keohane, 5 16 U.S. 99, 107 (1995) (citing Miranda, 384 US. at 444). “When police ask questions of a suspect in custody without administering the required warnings, Miranda dictates that the answers received be presumed compelled and that they be excluded from evidence at trial in the State’s case in chief.” Oregon v. Elstad, 470 U.S. 298, 317 (1985). Conversely, a waiver of the right to remain silent renders self-incriminating, inculpatory statements admissible. See North Carolina v. Butler, 441 U.S. 369, 374-376 (1979). Such waiver may be made orally, in writing, or even implied by the interrogated person’s conduct. See id. Correspondingly, a trial court can properly admit a defendant’s inculpatory statements if the court finds that the government met its preponderance-of-the- evidence burden showing that the statements were made with a valid waiver of Miranda rights. See Colorado v. Connelly, 479 U.S. 157, 168-69 (1986). In determining whether there has been a valid waiver of Miranda rights, a court must conduct a two-part inquiry ensuing from the “totality of the circumstances” test. See Moran v. Burbine, 475 U.S. 412, 421 (1986). First, the court looks to the voluntariness of the waiver to determine whether it was made “freely,” as opposed to one obtained by coercion. See id. Second, the court must consider whether the waiver was made “knowingly and intelligently,” in the sense that the accused was fully aware “both of the nature of the right being abandoned and the consequences of the decision to abandon it.” Te. As explained above, on direct appeal, the Appellate Division rejected Petitioner’s claims that Detective Sheehan did not honor Petitioner’s exercise of his right to remain silent and that he was denied his Sixth Amendment right to confront Detective Sheehan. The Appellate Division considered the totality of the circumstance and found that Petitioner did not invoke his right to remain silent and instead his statement that he was “not going to tell [Detective Sheehan] anything” was patt of continuous conversation in which Petitioner then immediately asked the detective what evidence they had on him. The Appellate Division noted that Detective Sheehan shared the evidence police had with Petitioner and Petitioner continued talking and provided a confession. This Court must presume the state courts’ factual findings that Petitioner voluntarily waived his Miranda rights and that he voluntarily chose to give statements to police ate correct. See 28 USS.C. § 2254(e)(1). Petitioner has not rebutted these findings by clear and convincing evidence or shown that they were unreasonable in light of the evidence in the record. See 28 U.S.C. § 2254(d)(@). The state courts’ factual findings are also well supported by the evidence of record. Petitioner acknowledged that he was informed of his Miranda rights, and he signed a form waiving his Miranda rights. Petitioner does not argue that he requested counsel or that the conversation was not continuous as the Appellate Division found. The trial court found Detective Sheehan credible and found Petitioner was not credible. Petitioner has presented nothing to this Court to overcome the presumption that the state courts’ factual findings were correct. The Court has reviewed the record and cannot conclude that the state court decisions were objectively unreasonable. The state court made detailed factual findings to support the decision that Petitioner waived his Miranda rights and did not subsequently invoke them or say something that required police to clarify if Petitioner was invoking his Miranda rights. “Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.” Berghuis v. Thompkins, 560 U.S. 370, 384 (2010). Additionally, the Appellate Division’s decision on the matter is consistent with Miranda and its progeny. See Berghuis, 560 U.S. at 381-82; see also Davis v. United States, 512 U.S. 452, 461-62 (1994) (“If the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him”). The Appellate Division’s decision was not contrary to this federal precedent nor was it an unreasonable application of that precedent. Therefore, habeas relief is not warranted on Ground One. B. Ground Two In Ground Two, Petitioner argues that state court violated his rights under the Confrontation Clause of the Sixth Amendment. (ECF No. | at 10-11.) Petitioner claims that during the remand hearing on this issue of whether he invoked his Miranda rights, the state court prevented Petitioner from cross-examining Detective Sheehan about his ability to recollect. Ud.) Petitioner raised this claim on direct appeal and the Appellate Division found Petitioner’s claim was “without sufficient merit to warrant extensive discussion in a written opinion” and affirmed the trial court’s denial of the claim “substantially for the reasons articulated by Judge Pogarsky in his comprehensive oral opinion.” (ECF No. 9-34 at 24.) The Appellate Division added that it found “no unfairness in the judge’s rulings concerning the scope of defense counsel’s cross-examination of Detective Sheenan. [Petitioner] was well represented and Detective Sheehan was subjected to a vigorous and lengthy cross-examination by defense counsel.” Ud.) During the remand hearing, the trial court noted the purpose of the remand hearing was “isolated to the issue of whether or not [Petitioner] invoked his right to remain silent.” (ECF No. 9-20, Remand Hr. 9/19/02 at 21:10-12.) The trial court found defense counsel was permitted to cross-examine Detective Sheehan to impeach his credibility regarding only the testimony he gave at the hearing. (Ud. at 22:5-16.) Defense counsel then attempted to cross-examine Detective Sheehan regarding his recollection of the number of other cases the detective had handled and the trial court sustained an objection, finding defense could not go “outside the scope of this witness’ testimony on this narrow issue today.” (Id. at 24:2-13.) The trial court limited defense counsel to cross-examining Detective Sheehan regarding the testimony he provided about his recollection of Petitioner’s waiver of his Miranda tights and the subsequent conversation between Petitioner and Detective Sheehan. (See generally id.) Defense counsel engaged in a lengthy and thorough cross- examination of what Detective Sheehan recollected regarding Petitioner’s waiver of his Miranda tights. (See id. at 27-64.) The Confrontation Clause guarantees a criminal defendant the right to confront “the witnesses against him.” U.S. Const. amend. VI. “The Fourteenth Amendment renders the [Confrontation] Clause binding on the States.” Michigan □□ Bryant, 562 U.S. 344, 352 (2011) (citing Pointer v. Texas, 380 U.S. 400, 403 (1965)). The Confrontation Clause bars the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54 (2004). “As to the second requirement, the Confrontation Clause requires that a defendant have had ‘a full and fair opportunity to probe and expose [testimonial| infirmities’ of an unavailable government witness in order for that witness's prior testimony to be admissible.” Ross v. Dist. Attorney of Cnty. of Allegheny, 672 F.3d 198, 206-07 (3d Cir, 2012) (citing United States v. Owens, 484 U.S. 554, 558 (1988) (quoting Delaware v. Fensterer, 474 U.S. 15 (1985))). Here, Detective Sheehan is not a “witness who did not appear,” rather he testified on his own behalf half at the remand hearing. As found by the Appellate Division, defense counsel was permitted to perform a lengthy and exhaustive cross- examination of Detective Sheehan regarding the issue before the trial court on remand. On this record, the Court cannot find that the Appellate Division’s rejection of the confrontation claim was contrary to or an unreasonable application of clearly established federal law or an unreasonable application of the facts. Accordingly, Petitioner is not entitled to habeas relief on Ground Two. C. Ground Three The third ground for habeas relief submits that Petitioner’s Sixth Amendment rights were violated when the trial court failed to suppress Petitioner’s confession because Detective Sheehan used trickery to convince Petitioner to inculpate himself, rendering his confession involuntary. (ECE No. 1 at 11.) The trial court held a suppression hearing based on Petitioner’s allegation that his confession was not voluntary based on Detective Sheehan’s “trickery.” (See ECF Nos. 9-5, 9-6.) The trial judge noted that after Petitioner inquired into what evidence the detective had, Detective Sheehan advised Petitioner “someone was murdered, that they’ve arrested one party, that they’ve recovered two weapons, they have fingerprints implicating [Petitioner], and that this other party arrested has already spoken to them indicating that he was implicating (Petitioner].” (ECF No. 9-6, Pre- Trial Hr. N.T, at 102:21 to 103:2.) Detective Sheehan testified that “everything he told [Petitioner] was true, but for the fact that they had [Petitioner’s] fingerprints on the weapon.” (Id. at 103:2-5.) The trial court considered all of the testimony and made the following finding: I am satisfied, | find that I am convinced beyond a reasonable doubt that the defendant J ermaine Vaught was given his required Miranda Warnings and Rights on the morning of June 9, 1995. That he understood all of those rights based upon the fact that he is an intelligent young man. Articulate. A graduate of high school. That he has had prior involvement with the criminal process by virtue of having had six prior juvenile arrests and one prior adult arrest, | am further satisfied and find beyond a reasonable doubt that [Petitioner] knowingly, intelligently and voluntarily waived each of those constitutional rights given to him by virtue of signing S-2 in evidence. I further find that the police procedures with regard to that phase of speaking to [Petitioner] to have been professional as expected, That there was no force, intimidation or pressure or coercion of any kind upon [Petitioner]. { further find and I’m convinced beyond a reasonable doubt, that Officer - - Detective Sheehan once he secured the waiver, discussed with [Petitioner] the fact that he has some evidence and he wished [Petitioner] to speak with him. And while the detective candidly admitted that he wasn’t truthful with regard to one of the representations, namely the representation that law enforcement has the fingerprints on the deadly weapon. I’m satisfied that such lone example of trickery or artifice is not sufficient and does not rise to the level of negating [Petitioner| making a voluntary statement. That the impact of the other representations are - - were truthful and proper means of a trained detective to induce a criminal suspect to speak with him. That such is a proper procedure for law enforcement. The issue becomes whether or not ultimately [Petitioner] when giving the statement gives it voluntarily and of his own free will with his will not being overborne. And J am convinced beyond a reasonable doubt that [Petitioner’s] will was not overborne and that he freely and voluntarily and openly gave that statement. (id, at (11:19 to 113:10.) On direct appeal, the Appellate Division denied Petitioner’s claim that the trial court erred in failing to suppress his statement to police based on Detective Sheehan’s trickery. (ECF No. 9-26 at 41-43.) The Appellate Division found the following: We have carefully reviewed the record and conclude that the factual determinations made by Judge Alan J. Pogarsky are adequately supported by the evidence, and we accept them. R. 2:1 {-3(e)(1)(A); State v. Locurto, 157 N.J. 463, 472 (1999.) In addition, we are satisfied that the judge applied the correct legal principles in rejecting [Petitioner’s] argument that his statement should be suppressed and conclude that [Petitioner’s] arguments are without sufficient merit to warrant discussion, See R. 2:11- 3(e)(1)(E). (Id. at 42-43.) Coercive police activity” is a “necessary predicate” to holding a confession constitutionally involuntary. See Connelly, 479 U.S. at 167. However, there is a distinction between police trickery as a means of coercion and police trickery as mere strategic deception; “[p]loys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda’s concerns.” Illinois v. Perkins, 496 U.S. 292, 297 (1990). In other words, a law enforcement agent may use some psychological tactics or even actively mislead a defendant in order to obtain a confession, provided that a rational decision remains possible. See Frazier v. Cupp, 394 U.S. 731, 739 (1969) (stating police misrepresentation that co-defendant had confessed did not render otherwise voluntary confession inadmissible). As a general rule, police can lie to a suspect about the extent of the evidence against the suspect or feign friendship with the suspect without fear of rendering the resulting confession involuntary. See id. at 73 1, 737-39, “Subtle pressures may be as telling as coarse and vulgar ones. The question whether the accused was deprived of his free choice to admit, to deny, or to refuse to answer.” Garrity v. State of N.J., 385 U.S. 493, 496 (1967); see also Schneckloth y. Bustamonte, 412 U.S. 218, 226 (1973) (stating test for determining voluntariness of confession is whether, in light of all surrounding circumstances, defendant's will was overborne), Here, Petitioner has already been advised of his Miranda rights, waived them, and was aware that any statement made would be used against him. Although a knowing and voluntary Miranda waiver does not necessarily demonstrate that a subsequent statement was voluntary, it does show that Petitioner knew he had the right to remain silent, yet he still provided a statement. See Oregon v. Elstad, 470 U.S. 298, 318 (1985) (acknowledging that suspect’s choice to speak after receiving Miranda warnings is highly probative of voluntariness). Therefore, the question before the Court is whether Detective Sheehan’s statement that Petitioner’s fingerprints were on one of the weapons so seriously changed the circumstances that Petitioner’s answers were no longer voluntary, knowingly and intelligent. See Wyrick vy. Fields, 459 U.S. 42, 47 (1982). After reviewing the totality of the circumstances, the Court finds that Detective Sheechan’s statement regarding the fingerprints did not amount to coercive police activity rendering Petitioner's statement unvoluntary. Detective Sheehan. made that statement after Petitioner was informed of his Miranda rights, after he signed the Miranda waiver form, and after Petitioner asked what evidence police had against him. Detective Sheehan was honest in informing Petitioner that they had the weapons and Petitioner’s co-defendant had been atrested and implicated Petitioner. The Court does not find that the added false information that police had Petitioner’s fingerprints was so coercive that it misled Petitioner into waiving his already waived Miranda rights and making a statement. The Appellate Division’s determination that the trial court did not error in finding Petitioner’s statement voluntary was not contrary to, or an unreasonable application of, clearly established federal law, nor was it an unreasonable application of the facts. See 28 US.C. § 2254(d). Accordingly, Ground Three is denied as meritless. D. Ground Four In Ground Four, Petitioner argues that this Sixth Amendment right to a fair trial was violated when the trial court failed to instruct the jury that it must consider whether Petitioner’s confession was corroborated by other credible evidence. (ECF No. | at 12.) Petitioner raised this claim on direct appeal and the Appellate Division denied it, finding the claim was “without sufficient merit to warrant discussion in a written opinion.” (ECF No, 9-34 at 13.) That a jury “instruction was allegedly incorrect under state law is not a basis for habeas relief.” Duncan v. Morton, 256 F.3d 189, 203 Gd Cir.) (quoting Estelle y. McGuire, 502 U.S. 62, 71-72 (1991)), cert. denied, 534 U.S. 919 (2001). A petitioner can, therefore, only show an entitlement to habeas relief based upon allegedly inadequate jury instructions where the petitioner proves that “the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Jd, (quoting Henderson v. Kibbe, 431 U.S. 145, 154 (1977)). That a challenged instruction was “undesirable, erroneous, or even universally condemned” insufficient to warrant habeas relief; a petitioner can only prevail on such a claim by showing that the instruction rendered his trial fundamentally unfair. □□□ Additionally, courts may not judge the instruction in isolation but must consider the instruction “in the context of the instructions as a whole and the trial record.” Estelle, 502 U.S. at 72. Where the error is the omission of an instruction, a petitioner’s burden is “especially heavy” because an omission is “less likely to be prejudicial than a misstatement of the law.” See Estelle, 502 U.S. at 155, In such a case, a petitioner must demonstrate that the omission was so “inconsistent with the rudimentary demands of fair procedure” as to result in a miscarriage of justice. See Smith v. Arvonio, No. 93-25, 1994 WL 327123, *3 (D.N.J. June 24, 1994) (citing Hill v. United States, 368 U.S. 424, 428 (1962)). Petitioner has not met this “especially heavy” burden. Even assuming arguendo that it was an error to charge the jury specifically on corroboration, the record does not show that the lack of such a charge resulted in a miscarriage of justice. There was sufficient evidence at trial corroborating the trustworthiness of the confession to support the conviction, including eyewitness testimony and Petitioner’s own testimony at trial. Accordingly, Petitioner has failed to show that the trial court erred by not providing a corroboration instruction, or that his conviction was a violation of due process. As Petitioner has not demonstrated a wrong of constitutional dimension sufficient to warrant federal habeas relief, Ground Four will be dismissed. E. Ground Five The fifth ground for habeas relief submits that Petitioner’s Sixth Amendment right to a fair trial was violated when the trial court failed to comply with the jury’s request for a written summary of the elements of each charge and by then failing to inform the jury that it had the option of being ye-charged on the elements. (ECE No. 1 at 12.) Petitioner raised this claim on direct appeal and the Appellate Division denied it, finding the claim was “without sufficient merit to warrant discussion in a written opinion.” (ECF No. 9-34 at 13.) The state appellate court’s determination that the trial court’s jury instructions were proper under state law is binding upon this court on habeas review. “[FJederal habeas corpus review does not lie for errors of state law.” Estelle, 502 U.S. at 68; see also Johnson v. Rosemeyer, 117 F.3d 104, 110, 115 (3d Cir. 1997) (A federal district court in a habeas corpus case cannot decline to follow the opinion of a state intermediate court of appeal with respect to jury instructions on state law rendered in earlier proceedings involving the petitioner, and noting that “errors of state law cannot be repackaged as federal errors simply by citing the Due Process Clause.”). Petitioner has not demonstrated that the Appellate Division’s decision regarding the jury’s request for a written summary of the elements of every charge against Petitioner was contrary to or an unreasonable application of United States Supreme Court precedent. Petitioner has cited no United States Supreme Court decision, and this Court has not located any, addressing a criminal defendant’s constitutional right to the jury receiving a written list of the elements of the charges against the defendant or delineating the manner in which a trial court should respond to a jury’s request for such. In the absence of United States Supreme Court precedent on this issue, this Court cannot conclude that the Appellate Division’s decision regarding written elements to the jury was contrary to of an unreasonable application of United States Supreme Court precedent. Accordingly, to prevail on this claim, Petitioner must establish that the state court’s actions violated the “