MODESTIN v. NOGAN

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

SHAMIR MODESTIN, ! Civil Action No. 21-2059 (MCA)

Petitioner,

! OPINION

PATRICK NOGAN, et al, !

Respondents, :

This matter has been opened to the Court by Shamir Modestin’s (“Petitioner” or

“Modestin”) filing of a habeas petition pursuant to 28 U.S.C. § 2254, Having reviewed the

Petition, Respondent’s answer, and the relevant record in this matter, the Court denies the Petition

for the reasons stated in this Opinion and also denies a certificate of appealability (“COA”),

I. FACTUAL BACKGROUND & PROCEDURAL HISTORY

On August 17, 2011, S.J. was working asa prostitute in the area of the Asian Market on

Tonnelle Avenue in Jersey City. (ST 7:16-21.) She entered the car ofa client and the two started

the drive to the Days Inn in North Bergen, (ST 7:21-22,) A dark colored SUV with flashing biue

lights pulled in behind S.J, and her client. ((T 10:1-5; 5T 7:24-25; 5T 8:8-20.) The SUV was

occupied by Modestin and his two co-defendants, Joel Williams and Eric Martin. (iT 9:11-14;

5T 7:14-15.} Before S.J. could enter the motel, she was dragged from the vehicle by Martin. (ST

8:2-3,) S.J. was handcuffed and told she was going to be arrested. (ST 8:3-4; ST 9:25-10:1.) The

' Petitioner also uses the name Sha-Mir Springer. A search of the New Jersey Department of

Corrections Inmate Locator indicates that Petitioner was released from prison on or about August

11, 2023. See hitps://www-doc.stlate.nj.us/DOC Inmate/details?x=1500257é&n=2 (last visited on

Mar. 7, 2024.)

men were displaying badges and referred to Modestin as “Sarge” throughout the encounter, (5T 8:1-

6; 5T 9:7-9.) S.J. was driven to another Location in North Bergen where Modestin forced her to perform

oral sex on him and he vaginally penetrated her. (1T 8:23-9:2; ST 8:6-7; 5T 10:2-3.) The victim

believed that she had to comply with Modestin’s demands because he was a law enforcement officer

and that she would be arrested for prostitution if she did not comply, (1T 9:3-10; 1T 10:11-14.) At

the time of the sexual assault, Modestin was employed as an auxiliary police officer in New York. (5T

6:15-7:2,)

A Hudson County Grand Jury returned Indictment No. 490-03-2012, charging Modestin

with two counts of first degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a)(3);

two counts of first degree aggravated sexual assault, in violation of N.J.S.A, 2C:14-2(a)(5); first

degree kidnapping, in violation of N.J.S.A, 2C:13-1(b); third degree criminal restrain, in violation

of N.IS.A, 2C:13-2; fourth degree impersonating a police officer, in violation of N.J.S.A. 2C:28-

8; and third degree terroristic threats, in violation of N.J.S.A. 2C:12-3(a). (RA 1-4.)

On June 27, 2013, Modestin pleaded guilty to count five of Indictment 490-03-2012, first

degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a)(5). (1T; RA 5-16.) Prior to

sentencing, Modestin filed a pro se motion to withdraw his plea which was subsequently

withdrawn.” (2T; 3T:5-17 to 6-10.) On August 12, 2014, Modestin was sentenced to fourteen years

in state prison with an 85% period of parole ineligibility pursuant to the No Early Release Act

(“NERA”). Modestin was also subject to parole supervision for life, Megan’s Law, and Nicole’s

Law, (3T:19-21 to 20-7.)

On January 15, 2015, Modestin filed a Notice of Appeal. (RA 20-21.) The matter was

heard on the SOA calendar and argued January 12, 2016. (4T.) By order dated January 12, 2016,

* The record does not include the pro se motion to withdraw the guilty plea.

the Appellate Division remanded the matter for the trial court “to reconsider the sentence without

the ‘public trust’ factor because defendant was a New York police officer, not a New Jersey police

officer,” (RA 22.)

On February 25, 2016, the trial court re-sentenced Modestin under the conditions set forth

in the Appellate Division’s order, (5T.) After removing the public trust factor, the trial court

imposed the sentence as set forth in the plea agreement. (5T:15-9 to 17-24.) On March 24, 2016,

Modestin filed a Notice of Appeal. (RA 26-28.) The matter was heard on the SOA calendar and

argued June 6, 2016. (6T) By order dated June 6, 2016, the Appeliate Division affirmed the

sentence but remanded the matter to correct the judgment of conviction with regard to prior service

credit. (RA 29.) Modestin filed a petition for certification (RA 30-34), and the Supreme Court of

New Jersey denied the petition by order entered September 11, 2017. (RA35.)

On January 22, 2018, Modestin filed a pro se petition for post-conviction relief (“PCR

petition”), By written opinion dated July 27, 2018, the PCR court denied Modestin’s PCR petition

without an evidentiary hearing. (RA 125-133.) On September 24, 2018, Modestin appealed the

denial of his PCR petition (Ra134-136), and the Appellate Division affirmed the denial of PCR in

an unpublished decision. (Ra212-214.) The Supreme Court of New Jersey denied Modestin’s

petition for certification on November 17, 2020, (Ra215-216.)

Petitioner filed his habeas petition (“Petition”) on or about January 26, 2021.7 (ECF No.

1, Petition at 16.) Respondents filed their original answer on December 9, 2021 and supplemented

the record by submitting transcripts at the Court’s direction on February 26, 2024. (ECF Nos. 9,

13.) Modestin did not submit a reply brief.

The Court uses the date Petitioner signed his Petition as the filing date.

3 .

Il. STANDARD OF REVIEW

Prior to bringing a federal habeas petition under 28 U.S.C. § 2254(b)(1)(A), a state prisoner

must exhaust his state remedies. Nevertheless, “[a]n application for a writ of habeas corpus may

be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies

available in the courts of the State.” § 2254(b)(2). Ifa state prisoner’s constitutional claim has

been barred in the state courts on independent and adequate state law grounds, there has been a

procedural default, and a habeas court cannot review the claim absent a showing of cause and

prejudice or actual innocence. Coleman v, Thompson, 501 U.S. 722, 729, 750 (1991).

Ifa constitutional claim has been exhausted, the following standard applies:

{aJn application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State court shall not

be granted with respect to any claim that was adjudicated on the

merits in State court proceedings unless the adjudication of the

claim--

(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).

The Third Circuit directed habeas courts to follow a two-step analysis under § 2254(d)(1).

See Rosen vy. Superintendent Mahanoy SCT, 972 F.3d 245, 253 (Gd Cir, 2020) (citing Matteo v.

Superintendent, SCI Albion, 171 F.3d 877, 888 (3d Cir. 1999) (en banc), cert. denied 528 U.S. 824

(1999)), First, courts must “determine what the clearly established Supreme Court decisional law

was at the time Petitioner’s conviction became final” and “identify whether the Supreme Court has

articulated a rule specific enough to trigger ‘contrary to’ review.” Jd, at 253 (quoting Mischeiti □□

Johnson, 384 ¥,3d 140, 148 Gd Cir. 2004)). “The ‘clearly established Federal law’ provision

requires Supreme Court decisions to be viewed through a ‘sharply focused lens.’” Jd. Clearly

established law “refers to the holdings, as opposed to the dicta, of [the Supreme Court's] decisions

as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S, 362, 412 (2000).

A decision is “contrary to” a Supreme Court holding within 28 U.S.C. § 2254(d)(1), only if the

state court applies a rule that “contradicts the governing law set forth in [the Supreme Court’s]

cases” or if it “confronts a set of facts that are materially indistinguishable from a decision of [the

Supreme Court} and nevertheless arrives at a [different result.]” Williams, 529 U.S. at 405-06,

Second, if Supreme Court precedent is not specific enough to trigger contrary review, habeas

courts should “evaluate whether the state court unreasonably applied the relevant body of

precedent,” Rosen, 972 F.3d at 253 (quoting Matteo, 171 F.3d at 888)).

Under § 2254(d)(1), “an unreasonable application of federal law is different from an

incorrect application of federal law,” Harrington v. Richter, 562 U.S. 86, 101 @Q011) (quoting

Williams, 529 U.S. at 410). For relief under this provision, the state court’s decision “evaluated

objectively” must have “resulted in an outcome that cannot reasonably be justified under existing

Supreme Court precedent.” Rosen, 972 F.3d at 252 (quoting Matteo, 171 F.3d at 890)). A habeas

court must frame the “relevant question as whether a fairminded jurist could reach a different

conclusion,” Shinn v. Kayer, 141 S, Ct. 517, 524 (2020), or, in other words, whether “every

fairminded jurist would disagree” with the state court. Mays v. Hines, 141 8. Ct. 1145, 1149

(2021).

A petitioner who claims that the state court’s adjudication of his claim was based on an

unreasonable factual determination under § 2254(d)(2), faces a similarly heavy burden of proof

because “a determination of a factual issue made by a State court shall be presumed to be correct,”

28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockerell, 537 U.S. 322, 340 (2003). “The petitioner

must show that the state court verdict was based on an unreasonable determination of the evidence

and that a reasonable factfinder could not have reached the satne conclusion.” Rosen, 972 F.3d at

252 (3d Cir. 2020) (citing Campbell v. Vaughn, 209 F.3d 280, 291 (3d Cir. 2000)).

“Although state prisoners may sometimes submit new evidence in federal court,” the

habeas statute, “is designed to strongly discourage them from doing so.” Cullen v. Pinholster, 563

U.S. 170, 186 2011). “Provisions like §§ 2254(d)(1) and (e)(2) ensure that ‘[fjederal courts sitting

in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient

effort to pursue in state proceedings.’” /d. (quoting Williams, 529 U.S, at 437 (additional citations

omitted)), Review under § 2254(d)(1) is limited to the record before the state court that adjudicated

the claim on the merits. Pinholster, 563 U.S. at 180-81.

WI. DISCUSSION

Petitioner contends that he received ineffective assistance at the plea stage and that his plea

was involuntary because it was coerced by his counsel’s threat to withdraw.’ Petitioner raised

4 Petitioner’s grounds for relief appears to be taken from the point headings of his brief appealing

the denial of his PCR petition, and are reproduced below:

Ground One: Ineffective Assistance of Counsel

The post-conviction relief court erred in denying the defendant’s

petition for post-conviction relief without affording him an

evidentiary hearing to fully address his contention that he failed to

receive adequate legal representation from Trial Counsel

Ground Two: Ineffective Assistance of Counsel

The prevailing legal principles regarding claims of ineffective

assistance of counsel, evidentiary hearings, and petitions for

postconviction relief

Ground Three: Ineffective Assistance of Counsel

Defendant did not receive adequate legal representation from trial

counsel as a result of his inability to continue to pay his counsel

additional funds in the proceedings.

Petition at 5-8.

these claims in his PCR proceedings. In the moving brief accompanying his pro se PCR petition,

Modestin alleged that plea counsel demanded more money at the plea cut off and when Petitioner

could not pay that amount, plea counsel coerced Petitioner into pleading guilty by advising

Petitioner that plea counsel would withdraw from the case and Petitioner would be forced to

proceed with an appointed attorney. (RA 46-47.) Modestin submitted a sworn affidavit with his

pro se PCR petition, but, notably, that affidavit does not include any facts about piea counsel’s

threat to withdraw if Petitioner did not plead guilty. (See RA 48-49.)

PCR counsel also submitted a supporting brief arguing that Petitioner’s plea was not

knowing or voluntary because he pleaded guilty due to the pressure of his attorney abandoning

him and without knowing that consent was a defense to the charges, (RA 83-84.) PCR counsel

also argued that counsel provided ineffective assistance of counsel and violated the Rules of

Professional Conduct (“RPCs”) when counsel “essentially threatened defendant that if he were not

paid $30,000 he would not Handle the trial.” (RA 85 (emphasis in original).)

The record contains an “Agreement to Provide Pretrial Legal Services” that was signed by

plea counsel and Modestin’s representative Sha-Queena Gilbert on May 2, 2012. The Agreement

pertains to the Hudson County Indictment and includes services for “plea negotiation” and “plea

on the record and sentencing” for a flat fee to be paid in installments. (See RA 52-55.) As its name

suggests, the Agreement does not mention trial services, and states that “if the above cases cannot

be resolved by a plea on the record, entry into a Pretrial Intervention Program, or a dismissal, the

Attorney’s legal representation and obligations under the AGREEMENT shall conclude.” (RA

54.) The Agreement also states that it “does not refer to any Trial (neither jury trial [nor bench

trial).” (RA 53.)

In addition, the record also contains a letter dated December 26, 2012, from plea counsel

to Gilbert regarding an attached fee agreement to provide trial legal services.” (RA 51.) The letter

states that plea counsel will represent Modestin at trial upon the receipt of a certified check in the

amount of $35,000 and a signed fee agreement. (/d.) The letter also states in relevant part:

On January 24, 2013, Shamir will have to decide if he wants to

accept whatever plea offer is available to him or have his plea

opportunity cut off and proceed to set a trial date. If Shamir does

not enter a plea at that court date, our current Pretrial Fee Agreement

will terminate, as will [plea counsel’s] representation of Shamir in

Hudson County,

(RA 51.)

The PCR court considered this evidence and rejected Petitioner’s claim that counsel was

_ deficient for threatening not to handle the trial if he was not paid. The PCR court determined that

plea counsel was retained to provide pretrial services only and that the retainer agreement stated

that a separate legal fee would be required if the case went to trial.° (RA 128.) The PCR court

also found that this arrangement did not violate the Rules of Professional Conduct (“RPCs”),

specifically RPC 7,1(a)(4). (RA 128.) The PCR court noted that prior to seeking to withdraw, plea

counsel negotiated a concurrent sentence for two separate criminal acts involving different victims,

and that, under the circumstances of the case, counsel’s performance fell within the wide range of

professional assistance. (/d.) ,

The PCR court also rejected Modestin’s claim that his plea counsel was deficient for failing

to advise Petitioner that consent was a defense to the charges. As explained by the PCR court,

Modestin

° The letter refers to an attached plea agreement but that agreement is not in the record.

6 The retainer agreement for pretrial legal services in the record does not state that a separate fee

will be required if the case went to trial, but it does clearly state that trial services are not included.

impersonated a police office, handcuffed [the victim], took her to a

remote location, and ordered her to perform sexual acts. Under these

circumstances, permission of [the victim] can neither be inferred

from acts nor statements since she was taken against her will and

ordered to perform these sexual acts. Therefore these acts could not

be considered consensual.

(RA 128-129.) The PCR court further determined that Petitioner’s conduct in impersonating a

police officer in order to engage in the sexual penetration of the victim, which Modestin admitted

in his plea colloquy, met the definition of coercion under N.J.S.A. 2C:14-2a(5), (/d.) The PCR

court found that a guilty plea to one count of aggravated assault was an “attractive strategy” in

light of the risk that a jury would find Modestin guilty at trial and that plea counsel negotiated an

extremely favorable plea deal on Petitioner’s behalf, (id. at 129-130.)

The PCR court also rejected Petitioner’s claim that his plea was coerced due to plea

counsel’s threat to withdraw and due to counsel’s failure to advise him that consent is a defense to

the charges. The PCR court found that Petitioner had not provided any credible evidence that he

was coerced and also failed to show that he was prejudiced by enforcement of the plea. (RA 131.)

The PCR court focused primarily on Modestin’s plea colloquy, in which Petitioner stated under

oath that he was not coerced or threatened into taking the plea and acknowledged that he was

satisfied with his plea counsel’s representation. (RA 130-31; see also 1T 5:21-25; 1T 6:8-10;

1T8:10-12.) The PCR court also noted that Petitioner averred during the plea colloquy that he

understood the charges against him, the penal consequences, and the trial rights he was giving up

through his guilty plea, and initialed and signed plea forms indicating the same. (RA 131-33; see

also 1T 4:23-5:3; 5:8-20; 6:5-17; 6:21-8:7.) The PCR court determined that Petitioner had not

submitted sufficient evidence that his plea was not knowing and voluntary. (RA 133.)

Petitioner appealed the denial of his PCR petition, arguing that the PCR court erred in

denying Modestin’s PCR petition without an evidentiary hearing on his claims that he received

inadequate legal counsel at the plea cut off once plea counsel learned that Modestin was unable to

continue to pay him. (RA 147.) Modestin also argued that plea counsel told him that he should

accept the plea offer or plea counsel would withdraw from the case. Ud.) Modestin further argued

that he felt he had no alternative but to accept the plea offer because plea counsel refused to

represent him and he had no money to hire another attorney. (/d.) As a result, Modestin claimed

that his plea was involuntary. Ud. at 147-149.)

The Appellate Division, which is the last reasoned decision, concluded that Petitioner’s

arguments “lack[ed] sufficient merit to warrant discussion in a written opinion[,] R. 2:11-

3(e)(2)[,]” and “affirm[ed] substantially for the reasons set forth by the judge in his well-reasoned

decision.” Modestin, 2020 WL 2516876, at *1. The Appellate Division also “add[ed] the

following brief remarks”:

A defendant is entitled to an evidentiary hearing only when he “has

presented a prima facie [case] in support of [PCR],” meaning that a

defendant must demonstrate “a reasonable likelihood that his ...

claim will ultimately succeed on the merits,” State v. Marshall, 148

N.J. 89, 158 (1997) (first alteration in original) (quoting State ¥,

Preciose, 129 N.J. 451, 462 (1992)). To obtain relief based on

ineffective assistance grounds, a defendant must demonstrate not

only that counsel's performance was deficient, but also that the

deficiency prejudiced his right to a fair trial. Strickland v.

Washington, 466 U.S. 668, 687 (1984); State v Fritz, 105 N.J. 42,

58 (1987) (adopting the Strickland two-part test in New Jersey, now

known as the Strickland/Fritz test), Defendant failed to meet this

standard warranting an evidentiary hearing; he has not established a

prima facie case of ineffectiveness, but instead made unsupported

bald assertions.

Modestin, 2020 WL 2516876, at *1.

a. Ineffective Assistance Claims

The Court begins with Petitioner’s claims that he was provided ineffective assistance at the

plea stage. These claims are governed by the familiar standard set forth in Strickland v.

Washington, 466 U.S, 668 (1984), which constitutes “clearly established Federal law” for AEDPA

10

purposes, See Williams v. Taylor, 529 U.S. 362 (2000); Rainey v. Varner, 603 F.3d 189, 197 (3d

Cir. 2010). “Under Strickland, a defendant who claims ineffective assistance of counsel must

prove (1) ‘that counsel’s representation fell below an objective standard of reasonableness,’ and

(2) that any such deficiency was ‘prejudicial to the defense.’” Garza v. Idaho, 139 S. Ct. 738, 744,

(2019) (citations omitted) (quoting Strickland, 466 U.S. at 687-88, 692). With respect to the

performance prong, Strickland admonishes that “a court must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance; that is a

petitioner must overcome the presumption that, under the circumstances, the challenged action

might be considered sound trial strategy.” Jd, at 689 (internal citations omitted); see also

Harrington, 562 U.S. at 105 ([w]hen § 2254(d) applies, the question is not whether counsel’s

actions were reasonable. The question is whether there is any reasonable argument that counsel

satisfied Strickland’ deferential standard”). To establish prejudice, “(t]he defendant must show

that there is a reasonable probability that, but for counsel’s unprofessional errors, the resuit of the

proceeding would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” /d at 694. A reasonable probability means a

‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” Shinn, 141 S. Ct. at 523

(citing Pinholster, 563 U.S. at 189), “If it is easier to dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice, which we expect will often be so, that course should be

followed.” Strickland, 466 U.S. at 697,

Where a petitioner claims that his guilty plea was the result of ineffective assistance of

counsel, he must also establish that “counsel’s representation fell below an objective standard of

reasonableness,” Hill y. Lockhart, 474 U.S. 52, 57-58 (1985) (quoting Strickland, 466 U.S, at

688). If the petitioner satisfies the first prong of this test, he must generally show “that there is a

11

reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would

have insisted on going to trial.” Hill, 474 U.S. at 59,

In addition, the Supreme Court has emphasized “the special importance of the AEDPA

framework in cases involving Strickland claims.” Shinn, 141 8. Ct. at 524. In Shinn, the Supreme

Court explained that “federal courts may not disturb the judgments of state courts unless ‘each

ground supporting the state court decision is examined and found to be unreasonable.’” /d. at 524

(quoting Wefzel vy. Lambert, 565 U.S, 520, 525 (2012)). Thus, the Court explained, “if a fair-

minded jurist could agree with either [the state court’s}] deficiency or prejudice holding, the

reasonableness of the other is ‘beside the point,’ Jd.

Here, the state court did not unreasonably apply the two-part Strickland test, which applies

to chailenges to guilty pleas based on ineffective assistance of counsel. See Hill, 474 U.S. at 58,

In rejecting Modestin’s claim that his counsel provided inadequate representation, the PCR court

relied on the retainer agreement, counsel’s communications, Modestin’s sworn statements at the

plea colloquy, plea counsel’s negotiation of a favorable plea deal prior to withdrawing, and the

lack of other credible evidence of a threat. The Appellate Division agreed that Modestin did not

establish a prima facie case of ineffective assistance and instead made “unsupported bald

assertions.”’ This Court finds that the state courts did not unreasonably apply Strickland’s

performance prong or rely on any unreasonable determinations of the facts in rejecting Petitioner’s

claim based on his attorney’s alleged threat to withdraw.

Moreover, even if plea counsel crossed the line and provided ineffective assistance by

asking for additional money near the plea cut off and threatening to withdraw if Modestin did not

7 As noted above, the record does include any sworn statements from Modestin regarding the

alleged threats by his counsel.

12

accept the plea deal, Petitioner fails to show Strickland prejudice, which focuses on whether

counsel’s alleged errors affected the outcome of the plea process. See Hill, 474 U.S. at 59. “[T]o

obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the

plea bargain would have been rational under the circumstances.” Padilla v. Kentucky, 559 U.S,

356, 372 (2010) (citing Roe v Flores—Ortega, 528 U.S. 470, 480, 486 (2000)). Petitioner has not

established Strickland prejudice with respect to his claim that his attorney was deficient for asking

for additional money to represent him at trial and threatening to withdraw if he did not accept the

plea deal because he has not shown a reasonable probability that he would have rejected the plea

and proceeded to trial but for his attorney’s threats to withdraw, See Hill, 474 U.S. at 59.

Petitioner vaguely alludes to “defenses to the charges in this matter” in his PCR appellate

brief (RA 129), but such vague contentions do not show that he would have rejected the plea deal

and proceeded to trial in the absence of plea counsel’s threat to withdraw. Petitioner has offered

no credible evidence or arguments that he would have proceeded to trial on the sexual assault and

related charges or that plea counsel could have negotiated a better plea deal.

Before the PCR court, Petitioner raised consent as a defense to the charges.* As the PCR

court found, however, consent was not a valid defense where the evidence showed that Modestin

impersonated a police officer and the victim was taken against her will and ordered to perform

sexual acts. Because Petitioner has not shown that he would have risked going to trial instead of

taking a favorable plea deal, he fails to show prejudice.

Petitioner also asserts that the state courts erred in denying him a hearing on his ineffective

assistance claims. The state courts were not required to hold a hearing on his claims, because it

determined that he did not establish a prima facie case of ineffective assistance and relied on

5 He does not raise this issue here, but it would fail for the reasons explained by the PCR court.

13

unsupported allegations. Because that determination was not an unreasonable application of

Strickland or an unreasonable determination of the facts, the Court denies relief on this claim as

well,

b. Involuntary/Coerced Plea

Petitioner also argued in his PCR petition that his guilty plea was involuntary because his

counsel threatened to withdraw from the case ifhe did not accept the plea deal offered to him, The

PCR court found, however, that Petitioner had the opportunity to apprise the trial court of this

threat, that Petitioner’s sworn statements in his plea colloquy undermined his claim that his plea

was involuntary, and that there was a lack of credible evidence in the record to support the threat.

In his PCR appeal, Petitioner reiterates his claim that his plea was involuntary due to his attorney’s

threat to withdraw and argued that the Court erred in denying this claim without a hearing.? (RA

147-148.) The Appellate Division did not address this claim separately in its decision and

presumably rejected it for the reasons stated by the PCR court.

In order to be valid, a guilty plea most be both knowing and voluntary. Parke v. Raley, 506

20 (1992). Because a guilty plea must be the voluntary expression of the defendant’s own

choice, see Brady vy. United States, 397 U.S, 742, 748 (1970), the Supreme Court has long held

that “the agents of the state may not produce a plea by actual or threatened physical harm or by

mental coercion overbearing the will of the defendant.” /d at 750; see also Machibroda y. United

States, 368 U.S. 487, 493 (1962) “[a] guiity plea, if induced by promises or threats which deprive

it of the character of a voluntary act, is void” and “open to collateral attack.”) The voluntariness

? In his PCR appellate brief, Petitioner cites to Sate v. Simon, 161 N.J, 416, 443 (1999) for the

proposition that a plea must be voluntary and free from coercion, and that state court decision

relies on Blackledge v. Allison, 431 U.S. 63, 74 (1977), along with other authorities.

14

ofa plea “can be determined only by considering all of the relevant circumstances surrounding it.”

Brady, 397 US. at 749. ‘

As relevant here, the Supreme Court has also held that “[a] transcript showing full

compliance with the customary inquiries and admonitions furnishes strong, although not

necessarily conclusive, evidence that the accused entered his plea without coercion and with an

appreciation of its consequences.” See Boykin v. Alabama, 395 U.S. 238, 242-44 & 244 n. 7

(1969), And although such “[sjolemn declarations in open court carry a strong presumption of

verity” that create a “formidable barrier in any subsequent collateral proceedings” see Blackledge

v. Allison, 431 U.S, 63, 74 (1977), there is no per se rule that a defendant’s sworn statements are

an “insurmountable” obstacle to a coercion claim. See id.

In Blackledge v, Allison, 431 U.S. 63 (1977), a state defendant was required to complete a

printed form used by the trial court in connection with guilty pleas. One of the questions asked

whether the defendant understood he could be imprisoned for a minimum of ten years to life. The

defendant wrote “Yes” in response. The other relevant question was whether “the Solicitor, or your

lawyer, or any policeman, law officer or anyone else made any promises or threat to you to

influence you to plead guilty.” Jd at 66. The defendant answered “No.” After sentencing, the

defendant filed a petition in federal court alleging that before he entered his plea, his attorney had

led him to believe that as a result of an agreement with the Solicitor and the judge the sentence

would be no more than ten years. The defendant also asserted that he had been instructed to answer

the questions on the court’s form as he had done. The Supreme Court held that Allison’s habeas

corpus petition should not have been dismissed simply because of his answers to the questions at

the plea proceeding. The Court explained that “the barrier of the plea or sentencing proceeding

record, although imposing, is not invariably insurmountable.” Jd. at 74. Consequently, “the federal

15

courts cannot fairly adopt a per se ruling excluding all possibility that a defendant’s representations

at the time his guilty plea was accepted were so much the product of such factors as

misunderstanding, duress, or misrepresentation by othets as to make the guilty plea a

constitutionally inadequate basis for imprisonment.” Jd, at 75.

The Third Circuit has expressly held that “[a] threat by a defendant’s attorney to withdraw

from the case if the defendant does not plead guilty may render a guilty plea involuntary.” Heiser

Ryan, 951 F.2d 559, 561 (3d Cir. 1991) (citing Downton v. Perini, 511 F. Supp. 258, 259, 264-

66 (N.D. Ohio 1981)). The petitioner in Heiser had waited more than eleven years for a

Pennsylvania state court to hear his motion to withdraw a guilty plea and more than four years had

passed since he filed a PCRA petition alleging that his guilty plea was coerced. See id. at 560.

Still awaiting rulings in state court, “Heiser filed a habeas petition contending that this post-verdict

delay violated his due process rights and that his guilty plea was neither knowing nor voluntary.”

id. The district court excused exhaustion on the basis of the inordinate delay but denied Heiser’s

habeas petition on the merits without a hearing. /d. at 560-61. The district court had relied on the

plea colloquy alone to reject Heiser’s claims of coercion, but the Third Circuit found this was “not

enough” and that an evidentiary hearing was required because Heiser’s claims were not adequately

developed or resolved in the state court proceedings. fd, at 562-63.

Here, however, the state courts addressed Modestin’s involuntary plea claim in the first

instance, and, in order to obtain relief, Petitioner must show that the state court unreasonably

applied clearly established Supreme Court precedent or made an unreasonable determination of

the facts in light of the record evidence, Using the more deferential AEDPA standard, this Court

finds that the state court did not unreasonably apply clearly established Supreme Court precedent

in rejecting Petitioner’s claim that his plea was coerced. In resolving this claim, the PCR court

16

considered the totality of the circumstances and relied primarily on Petitioner’s sworn statements

in his plea colloquy, Petitioner’s failure to mention the threat to the trial court despite several

opportunities to do so, and the lack of other credible evidence of a threat. The record before the

PCR court also included 1) a retainer agreement showing that plea counsel was retained for pretrial

legal services only and 2) a letter setting forth the fees for trial services and explaining that the

representation under the pretrial services agreement would conclude if Petitioner chose not to take

the plea deal. The PCR court found that this evidence undermined Petitioner’s claim that plea

counsel “threatened” to withdraw if he did not accept the plea deal, The state court’s factual

findings are entitled to AEDPA deference, 28 U.S.C. § 2254(b)(2), and Petitioner has not shown

clear and convincing evidence sufficient to overcome those findings. Ultimately, under the

circumstances of this case, Petitioner did not present sufficient evidence to overcome the heavy

burden that his plea was entered into voluntarily and not as a result of his attorney’s threat to

withdraw from the case. See, ¢.g., Mullins v. Rozem, No. 11-2504, 2011 WL 6812888, at *3 (E.D.

Pa, 2011) (Dec. 28, 2011) (@ejecting claim involving alleged threats by prosecutor based on the

petitioner’s sworn statements in the plea colloquy),

Moreover, even if Petitioner’s plea was involuntary or the product of coercion, the alleged

error must have had a “substantial and injurious effect” on the verdict to qualify for habeas relief.

See Brecht v. Abramson, 507 US. 619, 637 (1993); Fry v. Pliler, 1278. Ct. 2321, 2328 (2007) (“a

court must assess the prejudicial impact of constitutional error ... under the “substantial and

injurious effect’ standard set forth in Brecht, 507 U.S, 591, whether or not the state appellate court

recognized the error and reviewed it for harmlessness under the ‘harmless beyond a reasonable

doubt’ standard set forth in Chapman, 386 U.S, 18,”), Here, Petitioner has not shown that he was

17

prejudiced in any way by his attorney’s alleged coercion and thus is not entitled to relief on claim

that his plea was involuntary.

c. Certificate of Appealability

Pursuant to Local Appellate Rule 22.2 of the Rules of the United States Court of Appeals

for the Third Circuit, at the time a final order denying a habeas petition is issued, the district judge

is required to determine whether a certificate of appealability (“COA”) should issue. Pursuant to

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

he has “made a substantial showing of the denial of a constitutional right.” See Slack y. McDaniel,

529 US, 473, 484 (2000); Miller-El v, Cockrell, 537 U.S, 322 (2003), Because Petitioner has not

made a substantial showing of the denial of a constitutional right, the Court will deny a COA.

IV. CONCLUSION

For the reasons explained in this Opinion, the Court denies the Petition and also denies a

COA. An appropriate Order follows.

Madeline Cox Arieo

ll’ 13 United States District Judge

DATED: "2024.

18