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

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JOSEPH AMOOP also known as

ANOOP MICHAEL JOSEPH, Case No. 20–cv–15473–ESK

Petitioner,

v. OPINION

THE ATTORNEY GENERAL OF

THE STATE OF NEW JERSEY,

Respondent.

KIEL, U.S.D.J.

THIS MATTER comes before the Court on petitioner Joseph Amoop’s,

also known as Anoop Michael Joseph, second amended petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 (Second Amended Petition). (ECF

No. 20). Respondent Attorney General of New Jersey opposes the Second

Amended Petition. (ECF No. 25.) For the following reasons, I will dismiss in

part and deny in part the Second Amended Petition. No certificate of

appealability shall issue.

I. FACTS AND PROCEDURAL HISTORY

I adopt the facts as set forth in the opinion of the New Jersey Superior

Court Appellate Division (Appellate Division) in its opinion denying petitioner’s

direct appeal.

During the early morning hours of November 6, 2006,

defendant and his co-defendant, Desmond McMoore,

drove from Philadelphia to Camden to purchase

narcotics. Amoop, apparently unhappy with the

narcotics he received, engaged in a disagreement with

S.H., the man selling the narcotics. S.H. told defendant

to go to the back of the line. During the dispute,

defendant pulled out a gun, shot S.H. numerous times,

and rifled through his pockets. Two other men in line

began to run away, but McMoore pointed his gun at them

to prevent them from calling police. McMoore and

defendant robbed the two men before fleeing to

Philadelphia.

After being arrested in Philadelphia on unrelated

charges on July 6, 2007, McMoore volunteered

information about S.H.’s murder, which led to

defendant’s criminal charges in this matter. Defendant

was arrested in Pennsylvania on July 17, 2007 on

charges unrelated to this appeal. On July 19, 2007, the

Camden County Prosecutor’s Office sought defendant’s

extradition to New Jersey so that defendant could face

trial on criminal charges relating to S.H.’s death. The

Prosecutor’s Office drafted a Governor’s Warrant, which

was sent to Pennsylvania’s extradition coordinator on

August 17, 2007 and forwarded to the Philadelphia

District Attorney’s Office on August 23, 2007.

Defendant was later indicted in New Jersey on June 11,

2008 for first-degree murder, contrary to N.J.S.A. 2C:11–

3a(1) or (2) (Count One); first-degree felony murder,

contrary to N.J.S.A. 2C:11–3a(3) (Count Two); first-

degree robbery, contrary to N.J.S.A. 2C:15–1 (Count

Three); first-degree conspiracy to commit murder or

robbery, contrary to N.J.S.A. 2C:5–2 (Count Four);

second-degree possession of a firearm for an unlawful

purpose, contrary to N.J.S.A. 2C:39–4a (Count Five);

third-degree unlawful possession of a handgun, contrary

to N.J.S.A . 2C:39–5b (Count Six); and fourth-degree

aggravated assault, contrary to N.J.S.A. 2C:12–1.2

(Count Seven).

On August 26, 2010 (approximately three years later),

the Prosecutor’s Office recalled the Governor’s Warrant

and attempted to lodge a detainer against defendant.

On August 27, 2010, the Prosecutor’s Office sent

defendant a request asking him to submit to the detainer

procedures outlined in the Interstate Agreement on

Detainers [(Detainer Act)]. Defendant refused to sign

the agreement. The Prosecutor’s Office subsequently

initiated an attempt to complete extradition pursuant to

the [Detainer Act] without defendant’s consent on

September 30, 2010. Despite sending a letter to

Pennsylvania authorities, those authorities took no

further action on the Prosecutor’s Office’s request.

On October 14, 2010, the Prosecutor’s Office sought to

proceed under the original Governor’s Warrant, with

addenda providing for defendant’s return to New Jersey.

The Prosecutor’s office drafted a new Governor’s

Warrant on October 25, 2010 pursuant to the indictment

lodged against defendant after the original Governor’s

Warrant was drafted. This new Governor’s Warrant

was sent via overnight mail to the Pennsylvania

Governor’s extradition coordinator on October 27, 2010.

The Governor’s Warrant was signed on October 3, 2011,

after defendant was sentenced on the outstanding

Pennsylvania criminal charges. After conducting a

hearing on defendant’s petition for habeas corpus, a

Pennsylvania judge issued an order of rendition on

November 23, 2011, permitting defendant’s return to

New Jersey. Defendant was then extradited to New

Jersey on December 17, 2011. Defendant was

arraigned three days later.

Defendant asserted pretrial that his prosecution was

barred by the [Detainer Act]. The trial judge heard and

denied defendant’s motion to dismiss the indictment.

The jury trial began on October 7, 2013, and finished on

October 18, 2013. The jury acquitted defendant of

Count One, and convicted defendant of Counts Two,

Three, Four, Five and Six.

State v. Amoop, No. A–3837–13T1, 2016 WL 3619725, at *1–2 (N.J. Super. Ct.

App. Div. July 7, 2016) (Amoop I) (footnotes omitted). The trial court

dismissed Count Seven. Id. at *2 n. 3. “On Count Two, the court sentenced

defendant to life in prison subject to an eighty-five percent parole

disqualification pursuant to the No Early Release Act, N.J.S.A. 2C:43–7.2, and

five years’ imprisonment for Count Six, all consecutive to his sentences in

Pennsylvania. The court merged Counts Three, Four, and Five with Count

Two.” Id. at *2.

Petitioner filed an appeal with the Appellate Division arguing that the

indictment should have been dismissed as New Jersey triggered the Detainer

Act but failed to bring him to trial within the Detainer Act’s 120-day time frame.

Id. He also argued that his sentence was excessive. Id. The Appellate

Division affirmed petitioner’s convictions and sentence on July 7, 2016. Id. at

*4. The New Jersey Supreme Court denied certification on October 21, 2016.

State v. Amoop, 228 N.J. 64 (2016).

Petitioner filed a pro se petition for post-conviction relief (PCR) on July

14, 2017. (ECF No. 25–24). The PCR court appointed counsel, who

submitted an amended brief and appendix. (ECF No. 25–26). In addition to

several ineffective assistance of trial counsel claims, petitioner argued there

was newly discovered evidence “in the form of testimony from one Jose Lopez

which states that Desmond McMoore told [Lopez] that he committed the

murder … .” (ECF No. 25–24 p. 6.) This “Affidavit of truth,” dated November

20, 2013, read:

On November 18th 2013 after a long day at court I was in

the day room of 4 North upper E block. I was eating and

I offered “Dez” Desmond McMoore some. We started up

a conversation, small talk like we usually do about

family, court, etc. Anyhow I told him what I was locked

up for. So he told Me to stop stressing, that’s a small

thing. So I asked him what was he locked up for, he told

Me 3 murders. I told him I didn’t believe him, so he went

to his room and got a newspaper article from the Courier

Post, it might of been from October 26th 2013, it stated

“Killer Found guilty of third Murder.” As I read it it said

“Dez” testified against Joseph Amoop for the killing of

Sherill Harris and he got 25 years as a deal, it also stated

Joseph Amoop is serving two life sentences in Philly. I

said to “Dez” that’s crazy that Amoop got you caught up

in all this, he said to Me it’s the other way around while

smiling. I said what do you mean, he said “that’s all my

work” Meaning that he committed that murders “Dez” I

just gave Mike all the credit. I asked him did he have

life over Philly too, he said Hell No. He’s too smart for

that he said. I asked him what happened over here in

Camden and what he was doing over here? “Dez” said

he was drop[p]ing his cousin Wood off and they decided

(Dez and Wood) to rob somebody, he said the victim took

too long to give the shit up so he shot his dumb ass! Mike

didn’t know what was going on he was drunk, he was

trying to buy some coke, he didn’t even know the guy died!

So I asked him what happened over Philly, he told me

him and Mike “Joseph Amoop” was at a bar when they

left they met some people that had an accident, he wanted

to help. Mike said take him home “Dez” said its only

gonna be a minute, but his plan the whole time was to rob

them. [H]e said when he pulled up on them, he asked if

they was alright they said yeah that’s when he pulled out

his gun and Mike jumped out the car and ran and left

him. [T]hat’s when he robbed the victim and shot him

he said after that he was on his way home and this

Spanish guy was all in his face while he was at a light, so

he shot him too. I said to him how did Mike “Joseph

Amoop” get found guilty of those bodies? He said the

prosecutors believe anything he said, I told them Mike

shot the Spanish guy out the sunroof of his car and they

believe me and he wasn’t even there. [H]is bitch ass

already ran and left me!

This is an Affidavit of Truth and nothing but the truth so

help Me God!

(ECF No. 25–24 pp. 7, 8) (Lopez Affidavit). The PCR court denied the petition

without addressing the newly discovered evidence claim. (ECF No. 25–66

p. 13.) Petitioner appealed, and the Appellate Division issued a limited

remand directing the PCR court to consider the newly discovered evidence

claim. (ECF No. 20–2 p. 44.)

The PCR court conducted oral argument on July 10, 2020. (ECF No.

25–67.) PCR counsel argued that trial counsel had been ineffective for failing

to investigate the Lopez Affidavit and make a motion for a new trial. (Id. p. 4.)

PCR counsel stated that he had attempted to contact Lopez and McMoore but

they refused to cooperate. (Id.) The PCR court rejected the claim, finding

that the Lopez Affidavit was not sufficiently authenticated, failed to comply

with the New Jersey Court Rules, and had no one to attest to its veracity. (Id.

pp. 11, 12, 13.) It further noted that petitioner did not present any evidence

“that trial counsel was aware of or is currently aware of this document. There

is no certification submitted from trial counsel indicating that he was aware of

this document before defendant was sentenced.” (Id. p. 13.)

Petitioner returned to the Appellate Division. The court rejected

petitioner’s appeal on June 30, 2021. State v. Amoop, No. A–00737–18, 2021

WL 2711113, at *3 (N.J. Super. Ct. App. Div. June 30, 2021) (Amoop II). The

New Jersey Supreme Court denied certification on October 8, 2021. State v.

Amoop, 248 N.J. 489 (2021).

II. LEGAL STANDARD

“The federal habeas statute, as amended by the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), imposes important limitations

on the power of federal courts to overturn the judgments of state courts in

criminal cases.” Shoop v. Hill, 586 U.S. 45, 48 (2019). A federal court may

entertain a petition for writ of habeas corpus on behalf of a person in state

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.” 28 U.S.C. § 2254(a).

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).

A state court decision is “contrary to” Supreme Court precedent “if the

state court applies a rule that contradicts the governing law set forth in

[Supreme Court] cases,” or “if the state court confronts a set of facts that are

materially indistinguishable from a decision of th[e] Court and nevertheless

arrives at a result different from [the Court’s] precedent.” Williams v. Taylor,

529 U.S. 362, 405–06 (2000). “[A] state-court decision is an unreasonable

application of [the Supreme Court’s] clearly established precedent if it correctly

identifies the governing legal rule but applies that rule unreasonably to the

facts of a particular prisoner’s case.” White v. Woodall, 572 U.S. 415, 426

(2014). “This means that a state court’s ruling must be ‘so lacking in

justification that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement.’” Shoop, 586

U.S. at 48 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). I must

presume that the state court’s factual findings are correct unless the petitioner

rebuts the presumption by clear and convincing evidence. 28 U.S.C.

§ 2254(e)(1).

Even if a petitioner meets AEDPA’s “difficult” standard, he must still show

that any constitutional error had a “substantial and injurious effect or

influence” on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

See Brown v. Davenport, 596 U.S. 118, 134 (2022) (“[E]ven a petitioner who

prevails under AEDPA must still today persuade a federal habeas court that

‘law and justice require’ relief.”).

III. DISCUSSION

Petitioner presents 5 claims for me to review:

• The New Jersey Appellate Division’s

determination that PCR counsel was not

ineffective in failing to investigate the ‘Lopez

Affidavit’ was an unreasonable application of

clearly established federal law and the decision

involved an unreasonable determination of the

facts (Ground A).

• Instructions to the jury on the charge of

conspiracy violated petitioner’s constitutional

right to a unanimous verdict; trial counsel was

ineffective for failing to object to unconstitutional

jury instructions, and post-conviction counsel was

ineffective for failing to raise same (Ground B).

• The trial prosecutor’s serial improper comments

during closing argument constituted a violation of

due process of law; trial counsel was ineffective for

failing to object; and post-conviction counsel was

ineffective for failing to raise same (Ground C).

• The delay in bringing petitioner’s case to trial

violated the Sixth Amendment’s speedy trial

provision and the Interstate Agreement on

Detainers Act; the state court’s holding finding

otherwise was contrary to clearly established

Supreme Court precedent (Ground D).

• Trial counsel’s cumulative errors undermine

confidence in Mr. Amoop’s convictions (Ground E).

A. Procedural Default

Respondent asserts that Grounds B, C, and E must be dismissed as they

are procedurally defaulted. (ECF No. 25 p. 29) Petitioner concedes that

Grounds B and C are procedurally defaulted because he did not exhaust these

claims in the state courts and cannot do so now. (ECF No. 20–1 pp.15, 16.)

However, he asserts Ground E does not require exhaustion. (Id. p. 15.)

First, I reject petitioner’s argument that he was not required to exhaust

his claim of trial counsel’s cumulative error. “[A] cumulative error argument

constitutes a standalone constitutional claim subject to exhaustion and

procedural default … .” Collins v. Sec’y of Pennsylvania Dep’t of Corr., 742

F.3d 528, 541 (3d Cir. 2014). Petitioner did not exhaust this claim, so it is also

subject to procedural default.

“[P]rocedural default protects against ‘the significant harm to the States

that results from the failure of federal courts to respect’ state procedural rules.”

Shinn v. Ramirez, 596 U.S. 366, 378–79 (2022) (quoting Coleman v. Thompson,

501 U.S. 722, 730 (1991)). “‘Out of respect for finality, comity, and the orderly

administration of justice,’ federal courts may excuse procedural default only if

a prisoner ‘can demonstrate cause for the default and actual prejudice as a

result of the alleged violation of federal law.’” Id. at 379 (quoting Dretke v.

Haley, 541 U.S. 386, 388 (2004); Coleman, 501 U.S. at 750). “To establish

cause, the prisoner must ‘show that some objective factor external to the defense

impeded counsel’s efforts to comply with the State’s procedural rule.’” Id.

(quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).

To establish prejudice, “[t]he habeas petitioner must show ‘not merely that

the errors at … trial created a possibility of prejudice, but that they worked to

his actual and substantial disadvantage, infecting his entire trial with error of

constitutional dimensions.’” Murray, 477 U.S. at 494 (emphasis and omission

in original) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)).

Alternatively, petitioner can excuse his default by “demonstrat[ing] that failure

to consider the claims will result in a fundamental miscarriage of justice.”

Coleman v. Thompson, 501 U.S. 722, 750 (1991). I am limited to the state court

record in making its determination. Shinn, 596 U.S. at 375–76 (“[O]nly rarely

may a federal habeas court hear a claim or consider evidence that a prisoner

did not previously present to the state courts in compliance with state

procedural rules.”).

Petitioner acknowledged the procedural default in the Second Amended

Petition but reserved addressing cause and prejudice for a reply brief. (ECF

No. 20–1 p. 16.) He further briefly addressed the miscarriage of justice

exception, stating “[s]uch a miscarriage of justice trumps any [procedural] bar

… .” (Id.) Petitioner did not submit a reply brief after respondent submitted

the answer, however, leaving the cause and prejudice and miscarriage of justice

arguments unaddressed. “[A]rguments raised in passing … but not squarely

argued, are considered waived.” John Wyeth & Bro. Ltd. v. CIGNA Int’l Corp.,

119 F.3d 1070, 1076 n. 6 (3d Cir. 1997). As petitioner has not established

either cause and prejudice to excuse the default or a fundamental miscarriage

of justice, I cannot consider the merits of Grounds B, C, and E. See

McCandless v. Vaughn, 172 F.3d 255, 263 (3d Cir. 1999) (noting court was not

free to consider merits of procedurally defaulted arguments when petitioner did

not argue cause and prejudice or miscarriage of justice exceptions). Therefore,

I will dismiss Grounds B, C, and E as procedurally defaulted.

B. Ineffective Assistance of Counsel

In Ground A, petitioner argues that trial counsel was ineffective for

failing to investigate the Lopez Affidavit. (ECF No. 20–1 p. 19.)1 To succeed

on his ineffective assistance claim, petitioner must first “show that counsel’s

representation fell below an objective standard of reasonableness.” Strickland

v. Washington, 466 U.S. 668, 688 (1984). He must then show “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

1 Petitioner also refers to the ineffective assistance of PCR counsel, but “[t]he

ineffectiveness or incompetence of counsel during Federal or State collateral post-

conviction proceedings shall not be a ground for relief in a proceeding arising under

section 2254.” 28 U.S.C. § 2254(i).

proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. at 694.

The “pivotal question” in a § 2254 Strickland claim “is whether the state

court’s application of the Strickland standard was unreasonable. This is

different from asking whether defense counsel’s performance fell below

Strickland’s standard.” Harrington v. Richter, 562 U.S. 86, 101 (2011). My

review is thus “doubly deferential[.]” Cullen v. Pinholster, 563 U.S. 170, 190

(2011). “When § 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’s deferential standard.” Harrington, 562

U.S. at 105.

Petitioner argued during his PCR proceeding that trial counsel did not

investigate the Lopez Affidavit and file a motion for a new trial. The Appellate

Division denied this claim on the merits, concluding that petitioner “did not

show that his counsel was ineffective under prong one of the Strickland

standard because he has not supported the veracity of the Lopez document and

has merely made vague, conclusory, and speculative allegations.” Amoop II,

2021 WL 2711113, at *3. This is a reasonable application of Strickland based

on the state court record.

Petitioner contends that “[d]efense counsel obtained, shortly after the

conclusion of trial, an affidavit from an individual named Jose Lopez,” (ECF No.

20 p. 8), but there is no evidence to support this assertion. Petitioner did not

submit a sworn statement from trial counsel stating that he knew about the

Lopez Affidavit, nor did petitioner submit his own sworn statement asserting

that he gave the Lopez Affidavit to trial counsel. (ECF No. 25–67 p. 13 (finding

by PCR court that petitioner “makes a bald statement unsupported by any

affidavit or certification that counsel was aware of [the Lopez Affidavit) prior

to” sentencing).) This “non-specific claim of providing sufficient information to

his attorney earlier is thus ‘inadequate on its face’ and inconsistent with the

record … .” Cordero v. United States, 253 F. Supp. 2d 173, 176 (D.P.R. 2003)

(denying relief where there was no evidence that the defendant had ever given

counsel any information concerning an alibi defense). Therefore, petitioner’s

claim fails even if I assume the contents of the Lopez Affidavit are true because

he has not shown that trial counsel knew about it but failed to investigate it.

Petitioner has the burden of proof under §2254, Cullen v. Pinholster, 563 U.S.

170, 182 (2011), and he “cannot meet his burden to show that counsel made

errors so serious that his representation fell below an objective standard of

reasonableness based on vague and conclusory allegations … .” Zettlemoyer v.

Fulcomer, 923 F.2d 284, 298 (3d Cir. 1991); see also Villanueva v. Rozum, No.

06–cv–05564, 2008 WL 268060, at *12 (E.D. Pa. Jan. 28, 2008) (“It is certainly

reasonable to conclude that an ineffective assistance claim lacks merit when it

lacks factual support.”) Accordingly, the Appellate Division court did not

apply the first prong of Strickland in an objectively unreasonable manner.

Petitioner is not entitled to habeas relief on this basis.

C. Interstate Agreement on Detainers

In Ground D, petitioner asserts that the indictment should have been

dismissed as New Jersey violated the Detainer Act. The Appellate Division

rejected this argument on direct appeal. Amoop I, 2016 WL 3619725, at *1–2.

Therefore, I may only grant habeas relief if the Appellate Division’s decision

“was contrary to, or involved an unreasonable application of, clearly established

Federal law,” or “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). I find that petitioner has not met this standard.

The Detainer Act “‘is a compact which has been adopted by 48 states, the

District of Columbia, and the United States, to encourage expeditious and

orderly disposition of outstanding criminal charges filed against a person

incarcerated in a different jurisdiction.’ [Detainer Act] violations are

cognizable in federal habeas corpus because the [Detainer Act] is a ‘law of the

United States’ for purposes of 28 U.S.C. § 2254.” McCandless v. Vaughn, 172

F.3d 255, 263 (3d Cir. 1999) (quoting Cooney v. Fulcomer, 886 F.2d 41, 43 (3d

Cir. 1989)); see also Reed v. Farley, 512 U.S. 339, 347 (1994) (“While the

[Detainer Act] is indeed state law, it is a law of the United States as well.”)

This ability to grant habeas relief is limited, however; a Detainer Act violation

is a basis for federal habeas corpus relief only when the “error qualifies as ‘a

fundamental defect which inherently results in a complete miscarriage of

justice [or] an omission inconsistent with the rudimentary demands of fair

procedure.’” Reed, 512 U.S. at 348 (alteration in original) (quoting Hill v.

United States, 368 U.S. 424, 428 (1962)).

Here, the relevant provisions are Detainer Act Article IV and Article V,

enacted in New Jersey as N.J.S.A. 2A:159A–4 and N.J.S.A. 2A:159A–5,

respectively. Article IV sets forth the process by which a prosecutor may file a

detainer against a defendant incarcerated in another state to compel his

presence at trial:

The appropriate officer of the jurisdiction in which an

untried indictment, information or complaint is pending

shall be entitled to have a prisoner against whom he has

lodged a detainer and who is serving a term of

imprisonment in any party State made available … upon

presentation of a written request for temporary custody

or availability to the appropriate authorities of the State

in which the prisoner is incarcerated … .

N.J.S.A. 2A:159A–4(a). Once a defendant has arrived in the receiving state,

trial must commence within 120 days, subject to reasonable and necessary

continuances based on a showing of good cause. N.J.S.A. 2A:159A–4(c). If

not, Article V(c) requires the trial court to dismiss the indictment with

prejudice. N.J.S.A. 2A:159A–5(c).

The Appellate Division concluded that the Detainer Act did not apply

because petitioner’s “extradition was conducted pursuant to a Governor’s

Warrant issued under the Uniform Criminal Extradition Act (UCEA), N.J.S.A.

2A:160–9 et seq., not pursuant to the [Detainer Act].” Amoop I, 2016 WL

3619725, at *3. Petitioner points to no Supreme Court case that holds a state

cannot rescind its Detainer Act request and bring a defendant to trial under a

different statute, meaning the decision was not contrary to established

Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 405–06 (2000).

Petitioner also has not established that the Appellate Division’s decision

was “so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded

disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). The order of

rendition signed by the Pennsylvania court authorized petitioner’s extradition

to New Jersey “pursuant to the agreement between the governor of the State of

New Jersey and the governor of the Commonwealth of Pennsylvania.” (ECF

No. 25–5 p. 37.) The Appellate Division reasonably concluded from the order

that the Detainer Act did not apply.

Assuming arguendo that the Detainer Act governs here, petitioner’s claim

does not warrant habeas relief. A plurality of the Supreme Court noted that

“Article V(c) instructs only that ‘the appropriate court of the jurisdiction where

the indictment ... has been pending’—i.e., the original trial court—shall

dismiss the charges if trial does not commence within the time Article IV(c)

prescribes.” Reed v. Farley, 512 U.S. 339, 352 (1994) (omission in original).

“Article V(c) does not address the discrete question whether relief for violations

of the [Detainer Act’s] speedy trial provisions is available on collateral review.”

Id. “[A] state court’s failure to observe the 120-day rule of [Detainer Act]

Article IV(c) is not cognizable under § 2254 when the defendant registered no

objection to the trial date at the time it was set, and suffered no prejudice

attributable to the delayed commencement.” Id.; see also Cooney v. Fulcomer,

886 F.2d 41, 45–46 (3d Cir. 1989) (“[T]he 120-day limitation of Article IV(c),

while it does contain a remedy of dismissal, is not so fundamental as to warrant

an automatic grant of habeas relief without a showing of prejudice.”)

Petitioner has not shown that he made a timely speedy trial request.

Petitioner refused to agree to extradition via the Detainer Act in 2010 and

challenged his extradition on the Governor’s Warrant in 2011. To be clear,

petitioner had the right to make these challenges, but they cut against his

claim that he wanted a quick resolution to the New Jersey charges. See

Hakeem v. Beyer, 990 F.2d 750, 764 (3d Cir. 1993) (“Repeated assertions of the

[speedy trial] right do not, however, balance this factor in favor of a petitioner

when other actions indicate that he is unwilling or unready to go to trial.”)

Petitioner also did not make a speedy trial request upon his arrival in

New Jersey. He arrived in New Jersey on December 17, 2011 and was

arraigned on December 20, 2011. (ECF No. 25–55 p. 21.) Another

conference took place on February 21, 2012, at which time counsel requested

that a status conference be scheduled. (Id.) The status conference took place

on March 19, 2012, and a scheduling order was completed setting a pretrial

conference for April 30, 2012. (Id.) This April 30 pretrial conference appears

to be the first time petitioner informed the trial court that the Detainer Act

may apply. (Id.)2 A formal speedy trial motion was not filed until July 27,

2012. (Id.; ECF No. 25–4.) Therefore, it appears from the record that

petitioner invoked the Detainer Act’s limitation for the first time two weeks

after the 120-day deadline, again assuming it applied, passed on April 16,

2012.

2 The trial court also observed that “on [April 30, 2012], defense counsel

indicated he was ready to proceed with the trial date.” (ECF No. 25–55 p. 22.)

The Supreme Court noted in Reed that “[w]hen a defendant obscures

Article IV(c)’s time prescription and avoids clear objection until the clock has

run, cause for collateral review scarcely exists.” 512 U.S. at 349. Petitioner’s

failure to show that he invoked the deadline before it expired and when the

state could have taken steps to comply with the 120-day deadline cuts against

his claim that the delay resulted in a complete miscarriage of justice. See id.

at 354 (“We see no reason to afford habeas review to a state prisoner like Reed,

who let a time clock run without alerting the trial court … .”); Barker v. Wingo,

407 U.S. 514, 532 (1972) (“We emphasize that failure to assert the right will

make it difficult for a defendant to prove that he was denied a speedy trial.”)

In addition to failing to show that he timely requested a speedy trial,

petitioner has failed to show that he was prejudiced by the delay. In speedy

trial cases, prejudice to a defendant “should be assessed in the light of the

interests of defendants which the speedy trial right was designed to protect.”

Barker, 407 U.S. at 532. These include the prevention of oppressive pretrial

incarceration, the minimization of anxiety and concern to the accused, and the

limitation of the possibility that the defense will be impaired. Id.

Petitioner’s argument that he was prejudiced because the delay in his trial

allowed McMoore to be able to testify fits within the third consideration.

(ECF No. 20–1 p. 36.) This is not persuasive.

The Supreme Court has included the need to secure the testimony of

witnesses among the “inevitable and wholly justifiable” reasons for a pretrial

delay. Doggett v. United States, 505 U.S. 647, 656 (1992). Citing Barker, the

trial court found the State’s need to obtain McMoore for trial to be good cause

for continuing petitioner’s trial. (ECF No. 25–55 pp. 31, 32.) Petitioner does

not argue that he lost access to exculpatory evidence or witnesses due to the

delay, or that trial counsel was unable to effectively prepare for trial. (ECF

No. 20–1 p. 36.); see also Cross v. Cunningham, 87 F.3d 586, 588 (1st Cir. 1996)

(rejecting Detainer Act claim on habeas review when petitioner made “no claim

that the alleged [Detainer Act] violation actually impaired his ability to

prepare a defense … .”) He does not provide any case law supporting that a

delay caused solely by the need to secure a witness for trial prejudices a

defendant to the degree that the indictment must be dismissed. (ECF No. 20–

1 p. 36.)

In summary, I find that the Appellate Division’s decision is not contrary

to, or an unreasonable application of, clearly established federal law.

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 here are adequate to deserve encouragement to proceed

further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Because petitioner’s

habeas claims are all 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. I will

deny petitioner a certificate of appealability.

V. CONCLUSION

For the reasons stated above, I will dismiss in part and deny in part the

Second Amended Petition. An appropriate Order accompanies this Opinion.

/s/ Edward S. Kiel

EDWARD S. KIEL

UNITED STATES DISTRICT JUDGE

Dated: March 19, 2025