2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-13-2011

Marshall Rountree v. Karen Balicki

Precedential or Non-Precedential: Precedential

Docket No. 09-1189

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2011

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2011 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Marshall Rountree v. Karen Balicki" (2011). 2011 Decisions. Paper 1175.

http://digitalcommons.law.villanova.edu/thirdcircuit_2011/1175
1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 09-1189

_____________

MARSHALL ROUNTREE, a/k/a MARK HAWKINS,

Appellant

v.

KAREN BALICKI, Administrator of South Woods State 

Prison; ATTORNEY GENERAL OF NEW JERSEY

__________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 0312-1 : 1-07-cv-05763)

District Judge: Honorable Renee M. Bumb

__________

Argued February 14, 2011

Before: SLOVITER, HARDIMAN and ALDISERT, Circuit 

Judges.

(Filed: May 13, 2011)

Joshua C. Gillette, Esq. [ARGUED]

Gibbons P.C.
2

One Gateway Center

Newark, New Jersey 07102

Attorney for Appellant

Linda A. Shashoua, Esq. [ARGUED]

Warren W. Faulk, Esq.

Camden County Prosecutor‟s Office

25 North 5th Street

Camden, New Jersey 08102

Attorney for Appellees

__________

OPINION OF THE COURT

__________

ALDISERT, Circuit Judge.

This appeal by Marshall Rountree, from a judgment of 

the United States District Court for the District of New Jersey 

denying his 28 U.S.C. § 2254 habeas corpus petition, requires 

us to decide if the New Jersey Superior Court, Appellate 

Division, was unreasonable in concluding that alleged 

violations of Rountree‟s Sixth Amendment right to counsel 

did not undermine the reliability of the sentence he received 

for an armed robbery he committed in Camden County, New 

Jersey. Applying provisions of the Antiterrorism and 
3

Effective Death Penalty Act (“AEDPA”), we conclude that 

the New Jersey appellate court‟s decision in this case was not 

contrary to and did not unreasonably apply federal law, nor 

was it based on an unreasonable determination of the facts in 

light of the evidence. 28 U.S.C. § 2254(d). We will therefore 

affirm the District Court.

I.

A.

Within the span of two weeks in July of 1993 Marshall 

Rountree, who also uses the name Mark Hawkins, perpetrated 

two unrelated firearm incidents in New Jersey: an armed 

robbery in Camden County, and a shooting in Essex County. 

The Essex County shooting occurred on a street, after 

Rountree and two companions encountered the boyfriend of 

one of the men‟s sisters. The men exchanged words, then 

blows. At some point, Rountree drew a revolver and shot the 

boyfriend, rendering him paraplegic. The Camden County 

robbery occurred two weeks later when Rountree covered his 

face with a white towel, approached a woman from behind a 
4

dumpster in her apartment building‟s parking lot and said, “I 

have a gun. Give me your purse or I‟ll shoot you.” She 

surrendered the purse, and called the police after he fled the 

scene. Minutes later, Rountree, carrying a white towel, was 

spotted near a shopping mall. Officers arrested him and 

recovered various items that had been inside the woman‟s 

purse, but did not recover a pistol. Rountree waived his 

Miranda rights and provided a taped confession in which he 

claimed he robbed the woman with a toy pistol and then 

discarded it into a nearby wooded area. Later, during plea 

bargaining, he swore under oath that the pistol was real.

Both crimes were subject to New Jersey‟s “Graves 

Act,” which sets forth mandatory penalties if a person “used 

or was in possession of a firearm” during or in flight from a 

violent offense. See N.J. Stat. Ann. §§ 2C:43-6(c), (d), (g), 

(h), 2C:44-3(d). Of particular importance to this appeal is a

Graves Act repeat-offender provision, which substantially 

enhances sentences if a person who possesses or uses a 

firearm during a crime “has been previously convicted of an 
5

offense involving the use or possession of a firearm.”

§ 2C:43-6(c).

In 1993, a grand jury in Camden County indicted 

Rountree for first-degree armed robbery and third-degree 

hindering justice. The same year, he was also indicted in

Essex County for conspiracy to commit murder, first-degree 

attempted murder, second-degree aggravated assault, thirddegree unlawful possession of a weapon, and second-degree 

possession of a weapon for an unlawful purpose. Plea 

negotiations occurred separately in each county. Soon after

they began, Rountree‟s Camden County attorney obtained 

judicial and prosecutorial permission to consolidate the 

Camden County and Essex County negotiations into one plea 

bargaining session, pursuant to Rule 3:25A-1 of the New 

Jersey Rules of Court, which provides in pertinent part:

[W]hen a defendant has charges pending in 

more than one county at any stage prior to 

sentencing, either the defendant, or the 

prosecutor in any such county with the consent 

of the defendant, may move before the 

presiding judge of the criminal part in the 
6

county in which consolidation is sought, or 

before any judge designated to hear such 

motion, for consolidation for purposes of 

entering a plea or for sentencing.

Although there was every indication that a Rule 3:25A-1

motion would have been granted, Rountree‟s Camden County 

attorney failed to file one and, as a result, the negotiations 

continued separately.

As early as March of 1994, prosecutors offered 

Rountree a choice regarding his Camden County charges: he 

could plead guilty to non-Graves Act offenses in return for a 

12-year sentence, or he could plead guilty to a Graves Act 

offense in return for a 9-year sentence. If accepted, either

offer would have resolved Rountree‟s Camden County 

charges, but not his Essex County Charges. Rountree‟s

attorney wrote him a letter explaining the enhancement effect 

that a Graves Act conviction would have on any sentence that 

might be imposed for the shooting in Essex County, and 

recommended the 12-year non-Graves Act offer. Nonetheless, 

Rountree chose the 9-year offer. Under the plea agreement, 
7

Rountree‟s sentence was to run concurrently with any 

sentence imposed for the still-unresolved charges related to 

the shooting he had committed in Essex County.

In the fall of 1994, after entering his plea in Camden 

County but before the court accepted the plea and sentenced 

him, Rountree was transferred to Essex County to address the 

shooting-related charges there. Prosecutors and Rountree 

were unable to reach a plea agreement, and the case went to 

trial. In October of 1994, a jury convicted Rountree of firstdegree attempted murder, second-degree aggravated assault, 

and two separate firearm crimes. He received a 20-year 

Graves Act sentence. Soon after he was sentenced, however, 

and under threat of appeal, prosecutors agreed that faulty jury 

instructions required a new trial. Before retrial, and after 

much negotiation, Rountree pleaded guilty to aggravated 

assault and possession of a weapon for an unlawful purpose—

both of which are Graves Act offenses. The Essex County 

Court accepted Rountree‟s plea and sentenced him to two 

concurrent 10-year prison terms, during the first half of which 
8

he would be ineligible for parole. At this time Rountree stood 

convicted of his first Graves Act offense.

Rountree then returned to Camden County in July of 

1995 to complete sentencing on his plea to the robberyrelated offenses still pending there. Somewhat unexpectedly, 

the Camden County Court rejected the plea agreement. It 

explained that the 9-year sentence Rountree had accepted 

before his transfer to Essex County was either too lenient for 

the crimes he had committed or, alternatively, was illegal. 

The court reasoned thusly: even if Rountree had used a toy 

pistol (as he initially claimed) the 9-year sentence the

government had offered was too lenient under New Jersey 

law; alternatively, if the pistol was real, then the sentence was 

illegal under the Graves Act (which requires extended prison 

time for repeat firearm offenders) given Rountree‟s recent 

Graves Act conviction in Essex County. Rountree responded 

by withdrawing his guilty plea.

The Camden County case was set for trial in April of 

1996, and plea negotiations continued. On the day of trial, the 
9

Camden County prosecutor offered Rountree a 20-year 

sentence with a 7-year term of parole ineligibility, to run 

concurrently with the 10-year sentence he had received in 

Essex County (hereinafter, the “April 1996 offer”). Rountree

rejected it. He explained to the court that he was not 

interested in the prosecutor‟s offer because he believed that 

the time he had already served in Essex County was “dead 

time”—i.e., that it would not count toward either of his

sentences. The trial court explained that regardless of whether 

he accepted the plea, his time served would indeed count 

toward his Essex County sentence, but would not count 

toward his Camden County sentence. Rountree reiterated his 

rejection of the plea, the trial proceeded, and a jury convicted 

him of first-degree armed robbery (a Graves Act crime) and 

of hindering justice.

The Camden County sentencing judge determined that, 

given Rountree‟s prior Essex County Graves Act conviction, 

Rountree was a person who had “been previously convicted”

of a Graves Act crime. See N.J. Stat. Ann. § 2C:43-6(c). The 
10

court then applied the Graves Act‟s repeat-offender provision

and imposed a 50-year sentence, with parole eligibility after 

16 years and 8 months, to run consecutively with his 10-year 

Essex County sentence.

B.

Rountree challenged his conviction and his sentence 

on direct appeal, and the New Jersey Superior Court, 

Appellate Division, affirmed. State v. Hawkins, 719 A.2d 689 

(N.J. Super. Ct. App. Div. 1998). The Supreme Court of New 

Jersey denied Rountree‟s petition for certiorari. State v. 

Hawkins, 744 A.2d 1211 (N.J. 1999).

Rountree then sought post-conviction relief on several

grounds, including that his Camden County attorney‟s failure 

to consolidate his Camden County and Essex County plea 

bargaining into one, lump-sum negotiation violated his Sixth 

Amendment right to counsel. See State v. Rountree, 906 A.2d 

1124 (N.J. Super. Ct. App. Div. 2006). The state court agreed 

that the Camden County attorney‟s failure to file a motion to 

consolidate fell below what is expected of “counsel” within 
11

the meaning of the Sixth Amendment, but held that the failure 

to consolidate was not prejudicial to Rountree‟s case because

the record indicated that he would not have accepted any 

offer likely to emerge from a consolidated negotiation. Id. at 

1138. The Supreme Court of New Jersey denied review. State 

v. Rountree, 926 A.2d 852 (N.J. 2007). This exhausted 

Rountree‟s state court remedies.

Rountree then filed in the District Court an 18 U.S.C. 

§ 2254 habeas corpus petition. See Rountree v. Balicki, No. 

07-5763, 2008 WL 4950008 (D.N.J. Nov. 18, 2008). His 

petition challenged the state court‟s post-conviction ruling as 

to his Camden County (but not his Essex County) sentence, 

alleging that deficient performance by his Camden County 

counsel undermined the reliability of his Camden County 

sentence. On November 18, 2008, the District Court applied 

the Antiterrorism and Effective Death Penalty Act 

(“AEDPA”) and denied Rountree‟s petition on the merits. Id.

at *1.
12

Less than 30 days later, on December 15, 2008, 

Rountree filed in the District Court a pro se motion for 

extension of time to file for a certificate of appealability. On 

February 24, 2009, he filed a motion for a certificate of 

appealability with this Court. One year later, on February 24, 

2010, we certified the appealability of three issues: (1) 

whether his untimely notice of appeal deprived this Court of 

jurisdiction; (2) whether his trial counsel was ineffective, and, 

if so; (3) whether his trial counsel‟s conduct was prejudicial 

to his case.

Five months later, on July 29, 2010, Rountree filed a

motion to expand his certificate of appealability to include 

certification of: (1) whether the state court acted contrary to,

or unreasonably applied, clearly established federal law when 

it held that the Supreme Court‟s decisions in Apprendi v. 

New Jersey, 530 U.S. 466 (2000), and Blakely v. 

Washington, 542 U.S. 296 (2004), did not retroactively 

invalidate Rountree‟s Camden County sentence; (2) any 

relevant sentencing implications from his not having been 
13

indicted for possession of a firearm in Camden County; (3) 

whether the Camden County trial judge made improper 

responses to jury questions; and (4) whether “other crimes 

evidence and unindicted juvenile acts” were improperly 

admitted during his Camden County trial. We granted the 

motion.

II.

The District Court had jurisdiction pursuant to 28 

U.S.C. § 2254 because Rountree‟s habeas petition alleged that 

he was incarcerated in violation of the United States 

Constitution, see Rountree v. Balicki, No. 07-5763, 2008 WL 

4950008, at *2 (D.N.J. Nov. 18, 2008), and because Rountree 

exhausted his state court avenues for relief, see State v. 

Rountree, 926 A.2d 852 (N.J. 2007). We have jurisdiction 

under 28 U.S.C. § 2253(a) because Rountree met the 

requirements for a timely pro se notice of appeal, and because 

he obtained a certificate of appealability. See id. § 2253(c)(1).

The government contends that Rountree‟s notice of 

appeal was untimely, thus depriving us of jurisdiction over 
14

his appeal from the District Court. We disagree. This case 

falls within Rule 4(a), Federal Rules of Appellate Procedure,

because this is a civil case to which the United States is not a 

party. Rule 4(a)(1)(A) provides that a notice of appeal “must 

be filed with the district clerk within 30 days after the 

judgment or order appealed from is entered.” Our Local 

Appellate Rules relax certain formalities for pro se habeas 

petitioners, including Rountree:

The court will deem a document filed by a pro 

se litigant after the decision of the district court 

in a civil, criminal, or habeas corpus case to be 

a notice of appeal despite informality in its form 

or title, if it evidences an intention to appeal.

3d Cir. L.A.R. 3.4 (2010) (“Notice of Appeal in Pro Se 

Cases”). “This rule is designed to emphasize that the 

jurisdictional requirement of a notice of appeal is met in a pro 

se case by the filing of an informal document.” L.A.R. 3.4 

(Committee Comments).

In this case, the District Court entered its denial of 

habeas corpus relief on November 18, 2008. Rountree, 2008 
15

WL 4950008, at *2. Twenty-seven days later, on December 

15, 2008, Rountree filed a pro se motion for extension of time 

to file for a certificate of appealability. See Rountree v. 

Balicki, No. 07-5763, 2009 WL 223421, at *1 (D.N.J. Jan. 

27, 2009) (“Petitioner‟s motion for an extension of time is 

dated December 12, 2008 and was docketed by the Clerk on 

December 15, 2008.”). By indicating he would file for a 

certificate of appealability, his pro se motion “evidence[d] an 

intention to appeal,” which means it constituted a notice of 

appeal pursuant to Local Appellate Rule 3.4. Because 

Rountree filed that motion within the 30-day timeline 

proscribed by Rule 4(a)(1)(A), his notice of appeal was 

timely. And, because he obtained a certificate of 

appealability, we have jurisdiction pursuant to 28 U.S.C. 

§§ 1291 and 2253(a).

III.

The state court denied Rountree‟s Strickland v. 

Washington claim on the merits, which means our review of 

his 28 U.S.C. § 2254 petition is subject to AEDPA. See 28 
16

U.S.C. §§ 2254(a), 2254(d). Under AEDPA, our task is to 

determine only whether the state court‟s adjudication of 

Rountree‟s Strickland 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.

§ 2254(d). Consistent with Supreme Court precedent, we read 

§ 2254(d) to require three distinct legal inquiries. See, e.g.,

Harrington v. Richter, --- U.S. ---, 131 S. Ct. 770, 785 (2011).

The first is whether the state court decision was “contrary to . 

. . clearly established Federal law, as determined by the 

Supreme Court of the United States.” § 2254(d)(1). The 

second is whether the state court decision “involved an 

unreasonable application of” such law. § 2254(d)(1). And the 

third is whether the state court decision “was based on an 
17

unreasonable determination of the facts in light of the 

evidence presented” to the state court. § 2254(d)(2).

The test for § 2254(d)(1)‟s “unreasonable application 

of” clause is as follows: “[a]n „unreasonable application‟

occurs when a state court „identifies the correct governing 

legal principle from [the Supreme] Court‟s decisions but 

unreasonably applies that principle to the facts‟ of petitioner‟s 

case.” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (quoting 

Wiggins v. Smith, 539 U.S. 519, 520 (2003)). For purposes of 

§ 2254(d)(1), “[i]t is not enough that a federal habeas court, in 

its independent review of the legal question, is left with a firm 

conviction that the state court was erroneous.” Lockyer v. 

Andrade, 538 U.S. 63, 75 (2003) (internal quotations 

omitted). “Under § 2254(d)(1)‟s „unreasonable application‟

clause . . . a federal habeas court may not issue the writ 

simply because that court concludes in its independent 

judgment that the relevant state-court decision applied clearly 

established federal law erroneously or incorrectly.” Id. at 75-

76 (quoting Williams v. Taylor, 529 U.S. 362, 411 (2000)).
18

Rather, “[t]he state court‟s application of clearly established 

law must be objectively unreasonable” before a federal court 

may grant the writ. Andrade, 538 U.S. at 75.

The test for § 2254(d)(1)‟s “contrary to” clause is 

whether the state court decision “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 is 

materially indistinguishable from a decision of [the Supreme] 

Court but reaches a different result.” Brown v. Payton, 544 

U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405, and 

Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002)). Of course, 

a state court‟s resolution of a question that the Supreme Court 

has not resolved can be neither contrary to, nor an 

unreasonable application of, the Court‟s precedent. See Kane 

v. Garcia Espitia, 546 U.S. 9 (2005).

The test for § 2254(d)(2)‟s “unreasonable 

determination of facts” clause is whether the petitioner has 

demonstrated by “clear and convincing evidence,”

§ 2254(e)(1), that the state court‟s determination of the facts 
19

was unreasonable in light of the record. See Rice v. Collins, 

546 U.S. 333, 338-339 (2006) (“State-court factual findings, 

moreover, are presumed correct; the petitioner has the burden 

of rebutting the presumption by „clear and convincing 

evidence.‟”) (quoting § 2254(e)(1)) (citing Miller-El v. 

Dretke, 545 U.S. 231, 240 (2005))); see also Simmons v. 

Beard, 590 F.3d 223, 231 (3d Cir. 2009) (“Under the § 2254 

standard, a district court is bound to presume that the state 

court‟s factual findings are correct, with the burden on the 

petitioner to rebut those findings by clear and convincing 

evidence.”). Importantly, the evidence against which a federal 

court measures the reasonableness of the state court‟s factual 

findings is the record evidence at the time of the state court‟s 

adjudication. Cullen v. Pinholster, --- U.S. ---, 2011 WL 

1225705, at *11 (Apr. 4, 2011).

We will grant relief only if Rountree shows that the 

New Jersey state court‟s decision satisfied one of the three 

tests set forth above.
20

IV.

Rountree petitioned the New Jersey courts for postconviction relief on the basis of an alleged violation of 

Strickland v. Washington, 466 U.S. 668 (1984), during the 

proceedings that led to his Camden County sentence. A 

Strickland violation occurs when (1) defense counsel‟s 

conduct falls below an objective standard of reasonableness, 

and (2) there is a reasonable probability (which is more than a 

mere possibility) that but for the counsel‟s failure, the 

proceeding would have come out differently. Id. at 687. The 

New Jersey court rejected that claim, determining that 

although Rountree‟s counsel‟s performance fell below an 

objective standard of reasonableness, that failing did not 

cause prejudice to Rountree. See State v. Rountree, 906 A.2d 

1124, 1138 (N.J. Super. Ct. App. Div. 2006).

In this habeas petition, Rountree contends that the New 

Jersey court‟s rejection of his Strickland claim was

unreasonable. We recognize that AEDPA “precludes federal 

habeas relief so long as „fairminded jurists could disagree‟ on 
21

the correctness of the state court‟s decision.” Richter, 131 S. 

Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 

664 (2004)). Accordingly, we will not surmise whether the 

state court reached the best or even the correct result in 

Rountree‟s case; rather the question we must answer is 

“whether the state court‟s application of the Strickland

standard was unreasonable”—a standard that is at once 

objective and deferential. Id. at 785.

Applying AEDPA, we conclude that the New Jersey 

court‟s decision in this case survives review under § 2254. 

Although certain portions of the record can be argued to 

support Rountree‟s petition, it is precisely because 

“fairminded jurists could disagree” with each other that we 

must affirm the state court‟s holding. Alvarado, 541 U.S. at 

664. We will therefore affirm the District Court.

A.

We begin with the New Jersey state court‟s 

interpretation and application of Strickland v. Washington‟s 

“ineffectiveness” prong. See 466 U.S. at 687-688. Under 
22

Strickland, Rountree‟s first burden in the state court was to 

demonstrate that his trial counsel‟s conduct “fell below an 

objective standard of reasonableness.” Id. at 688. The test, 

which is “whether, in light of all the circumstances, the 

identified acts or omissions were outside the wide range of 

professionally competent assistance,” is applied to “the facts 

of the particular case, viewed as of the time of counsel‟s 

conduct.” Id. at 690.

To evaluate properly the decisions the state court made 

when faced with Rountree‟s Strickland claim, we must first 

examine the contentions Rountree made there. Rountree 

contended in the state court that his Camden County trial

counsel failed to render professionally competent assistance,

because the counsel did not file a motion under Rule 3:25A-1 

of the New Jersey Rules of Court to consolidate into one 

negotiation the plea bargaining over all charges pending in 

both Camden and Essex Counties. He pointed out that his 

counsel and the Camden County judge had on-the-record 

discussions about the possibility of such consolidation, and 
23

that the transcript of his (later-withdrawn) guilty plea from 

Camden County gave every indication that the judge would 

have agreed to consolidate, if a motion had been filed. Noting 

that consolidation generally redounds to the benefit of 

criminal defendants, Rountree contended that his counsel‟s

failure to file the motion—notwithstanding the strong 

indication that it would have been granted—amounted to 

conduct that “fell below an objective standard of 

reasonableness.” 466 U.S. at 688.

The state court agreed with Rountree. Rountree, 906 

A.2d at 1137. It applied the New Jersey Supreme Court‟s 

decision in State v. Pillot, 560 A.2d 634, 643 (N.J. 1989)

(construing Rule 3:25A-1 to “enable a defendant to request 

consolidation of charges pending in multiple counties for 

purposes of offering pleas and for sentencing”), and 

concluded that consolidation was legally permissible in 

Rountree‟s case. Because consolidation was legally 

permissible, and given the record‟s strong indication that it 

would have occurred had a motion been filed, the state court 
24

held that Rountree‟s counsel had a professional obligation to 

file a Rule 3:25A-1 motion.

The District Court, which was bound to accept the 

state court‟s conclusions of state law in applying New 

Jersey‟s Rule 3:25A-1, affirmed the state court. See

Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have 

repeatedly held that a state court‟s interpretation of state law, 

including one announced on direct appeal of the challenged 

conviction, binds a federal court sitting in habeas corpus.”) 

(citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), and

Mullaney v. Wilbur, 421 U.S. 684, 691 (1975)). After 

accepting that consolidation was possible in Rountree‟s case, 

the District Court concluded that the state court did not apply

Strickland in an unreasonable fashion when it held that any 

competent New Jersey attorney would have filed a Rule 

3:25A-1 motion in these circumstances.

We will affirm the District Court for substantially the 

same reasons: we too are bound to accept the state court‟s 

announcement that the Pillot decision obliges New Jersey 
25

defense attorneys to move to consolidate plea negotiations 

when the facts indicate the motion will be granted, see

Richey, 546 U.S. at 76, and we agree that the state court‟s 

interpretation of the facts in this case (i.e., its conclusion that 

a Rule 3:25A-1 motion to consolidate would have been 

granted) was not objectively unreasonable. We also agree 

that, in holding that Rountree‟s counsel‟s conduct fell short of 

what an objectively reasonable New Jersey attorney would 

do, the New Jersey court correctly applied federal law as 

stated by the Supreme Court of the United States. We will 

therefore affirm the state court‟s conclusion that Rountree 

carried his first burden under Strickland v. Washington.

B.

We turn now to the “prejudice” prong of Rountree‟s 

Strickland claim. Rountree‟s second Strickland burden in the 

state court was to show that his counsel‟s unprofessional 

conduct prejudiced his case. 466 U.S. at 688. But his burden 

before us is greater: under AEDPA, the question is “„not 

whether a federal court believes the state court‟s 
26

determination‟ under the Strickland standard „was incorrect, 

but whether that determination was unreasonable—a 

substantially higher threshold.‟” Knowles v. Mirzayance, ---

U.S. ---, 129 S. Ct. 1411, 1420 (2009) (quoting Schriro v. 

Landrigan, 550 U.S. 465, 473 (2007)). Our task is to 

determine only whether the state court adjudication of 

Rountree‟s claim warrants relief under § 2254(d)(1) or 

§ 2254(d)(2). To prevail under those subsections, he must

persuade us that the New Jersey court‟s holding suffered from 

one of the following failings: (1) it “was contrary to” or 

“involved an unreasonable application of” federal law then 

clearly established in the holdings of the Supreme Court of 

the United States; or (2) it “was based on an unreasonable 

determination of the facts” in light of the record before the 

state court. Richter, 131 S. Ct. at 785 (quoting § 2254(d) and

Williams, 529 U.S. at 412). For the reasons that follow, we 

conclude that the state court‟s determination of the prejudice 

prong of Rountree‟s Strickland claim was not unreasonable
27

within the meaning of § 2254(d), and therefore we will 

affirm.

1.

Intelligent evaluation of the state court‟s application of 

federal law to Rountree‟s case requires at least some 

evaluation of the facts to which the state court applied that 

law. We therefore pause to set forth the legal rules that 

applied in, and the arguments Rountree made before, the New 

Jersey state court.

Rountree‟s Strickland burden in the state court 

required him to demonstrate that the unprofessional errors of 

his counsel caused him prejudice. 466 U.S. at 688. This is 

because “[a]n error by counsel, even if professionally 

unreasonable, does not warrant setting aside the judgment of 

a criminal proceeding if the error had no effect on the 

judgment.” Id. at 691 (citing United States v. Morrison, 449 

U.S. 361, 364-365 (1981)). “It is not enough for the defendant 

to show that the errors had some conceivable effect on the 

outcome of the proceeding.” Id. at 693. Rather, to meet this 
28

standard, a “defendant must show that there is a reasonable 

probability that, but for counsel‟s unprofessional errors, the 

result of the proceeding would have been different.” Id. at 

694 (emphasis added).

To meet this standard in the New Jersey court, 

Rountree contended that his Camden County counsel‟s failure 

to file a Rule 3:25A-1 consolidation motion increased his 

sentence. Cf. Glover v. United States, 531 U.S. 198, 202-203 

(2001). In his view, the failure to consolidate the Camden 

County and Essex County charges into one proceeding caused 

him to be convicted of Graves Act crimes on two separate 

occasions, rather than all at once as might have happened 

after a single, lump-sum plea. That is, he argued that because 

he was first convicted of a Graves Act offense in Essex 

County, he arrived at sentencing in Camden County as a 

“previously convicted” Graves Act offender. Because the 

Graves Act imposes heightened penalties for persons 

previously convicted of Graves Act offenses, see N.J. Stat. 

Ann. § 2C:43-6(c), Rountree‟s position in the New Jersey 
29

court was that the sentencing enhancement applied to him 

was caused by his counsel‟s ineffective failure to consolidate. 

Essential to Rountree‟s position was the implied premise that, 

if offered a single lump-sum plea at a consolidated 

negotiation, he would have accepted it.

The state court rejected Rountree‟s arguments after 

concluding that Rountree would not have accepted a 

consolidated plea even had he been offered one. Rountree, 

906 A.2d at 1138. The state court based this conclusion on the 

following facts: Rountree went to trial in Camden County 

after his Graves Act conviction for attempted murder in Essex 

County, for which he received a 10-year sentence. Ten years 

is at the low end of the possible punishment under New 

Jersey law for the crimes he faced (i.e., conspiracy to commit 

murder, first-degree attempted murder, second-degree 

aggravated assault, third-degree unlawful possession of a 

weapon, and second-degree possession of a weapon for an 

unlawful purpose). In April of 1996, shortly before 

Rountree‟s Camden County trial, the Camden County 
30

prosecutor offered Rountree 20 years, during the first 7 of 

which he would be ineligible for parole. The entire Camden 

County sentence would run concurrently with his 10-year 

Essex County sentence. (The prosecutor further stated that if 

Rountree‟s Essex County conviction were overturned on 

appeal, he would agree to reduce Rountree‟s Camden County 

sentence to nine years, with three years of parole ineligibility.

This represented the bare minimum sentence that the Graves 

Act would allow.) This April 1996 offer would have settled 

all of Rountree‟s charges, in both counties, for conspiracy to 

commit murder, first-degree attempted murder, first-degree 

armed robbery, aggravated assault, unlawful possession of a 

firearm, possession of a firearm for an unlawful purpose, and 

hindering justice, with a 20-year sentence—and substantially 

less, if Rountree were paroled. In the state court‟s view, this 

offer was “as good as he reasonably could have expected if 

the cases had been consolidated for plea negotiation or 

sentencing.” 906 A.2d at 1138. Nonetheless, and against the 

advice of his counsel, Rountree rejected it.
31

Because Rountree rejected an offer that was as good as 

what he could have hoped to have received after 

consolidation, the state court saw no reason to conclude that 

the failure to consolidate caused him any harm. Id. (“There is 

no reason to conclude that he would have accepted the same 

offer if it had been made after an order of consolidation.”).

On this basis, the state court concluded that his counsel‟s

ineffective failure to move for consolidation had no “effect on 

the outcome of the proceeding”—i.e., the sentence Rountree 

received after the Camden County jury found him guilty. Id.

2.

We turn first to Rountree‟s claim under § 2254(d)(2).

When reviewing a state court decision for “an unreasonable 

determination of the facts in light of the evidence presented in 

the State court proceeding,” § 2254(d)(2), we are “bound to 

presume that the state court‟s factual findings are correct, 

with the burden on the petitioner to rebut those findings by 

clear and convincing evidence.” Simmons v. Beard, 590 F.3d 

223, 231 (3d Cir. 2009); see also § 2254(e)(1) (“In a 
32

proceeding instituted by an application for a writ of habeas 

corpus by a person in custody pursuant to the judgment of a 

State court, a determination of a factual issue made by a State 

court shall be presumed to be correct. The applicant shall 

have the burden of rebutting the presumption of correctness 

by clear and convincing evidence.”).

Applying those rules, we will defer to two critical facts 

found by the state court, because we conclude that Rountree 

has not rebutted them by “clear and convincing evidence.”

§ 2254(e)(1); Simmons, 590 F.3d at 231. The first is the state 

court‟s finding of what might have been offered during a 

consolidated plea negotiation. We will defer to the state 

court‟s conclusion that the April 1996 plea offer Rountree 

received in Camden County (for a 20-year sentence with 7 

years of parole ineligibility, to run concurrently with his 

Essex County sentence) was “as good as he reasonably could 

have expected if the cases had been consolidated for plea 

negotiations or sentencing.” Rountree, 906 A.2d at 1138. We 

accept this conclusion because Rountree has not offered 
33

“clear and convincing evidence,” § 2254(e)(1), that there was 

a “reasonable probability,” Strickland, 466 U.S. at 695, that 

he could have settled his charges for conspiracy to commit 

murder, first-degree attempted murder, first-degree armed 

robbery, aggravated assault, two distinct firearm offenses, and 

hindering justice, for less than the terms of the April 1996

offer. We will therefore accept the New Jersey court‟s 

conclusion that the offer Rountree rejected in April 1996 was 

as good as he could have expected to receive at a consolidated 

plea negotiation.

The second finding of fact to which we will defer is 

the state court‟s finding of how Rountree would have reacted 

to a consolidated offer. We will defer to its conclusion that, 

had consolidation occurred, Rountree would not have 

accepted any offer likely to emerge from it. 906 A.2d at 1138. 

The state court based this finding on its conclusion that any 

offer from a consolidated plea would not have been better 

than the one he rejected in April 1996. See id. (“There is no 

reason to conclude that he would have accepted the same 
34

offer if it had been made after an order of consolidation.”). To 

persuade us to reverse, Rountree must offer “clear and 

convincing evidence,” § 2254(e)(1), that there was a 

“reasonable probability,” Strickland, 466 U.S. at 695, that if

consolidation had occurred, he would have accepted an offer 

extending from that agreement. To make this showing, 

Rountree calls our attention to the transcript leading to his 

rejection of the April 1996 offer:

[Rountree]: I would just like to add that I was 

trying to respond to him that it‟s a thing—it‟s 

not just that I don‟t want to take the deal and 

such, but they tell me that the last six, the last—

since December of 1994 till now . . . all that 

time is not counting [toward my sentence]. The 

time I‟ve been in prison is basically dead time. 

This has a lot to do with me—do you 

understand what I‟m saying?

The Court: It‟s not dead time. It counts toward 

the sentence you are serving [in Essex County], 

sir. It just doesn‟t count on the sentence you 

might get in this case if you‟re convicted. Now, 

the other thing is that‟s the offer. It‟s been made 

to you. It is [your attorney‟s] representation that 

you have no interest in accepting the offer. 

Correct?
35

. . . .

[Rountree]: . . . correct, your honor.

App. 35. Rountree contends that (1) “the only logical reading 

of the transcript” is that, in saying “they tell me,” Rountree 

was referring to his counsel, and that (2) but for his counsel‟s

advice he would indeed have accepted the April 1996 offer. 

The state court rejected both of these interpretations. It 

concluded that Rountree‟s contention that he turned down the 

April 1996 offer because he believed that he was not going to 

receive credit for the time he had been serving on his Essex 

County sentence was a “bald assertion,” 906 A.2d at 1133, 

not sufficient to satisfy the “reasonable probability” standard 

Strickland imposes. See 466 U.S. at 694.

Under AEDPA, the question we must answer is 

whether Rountree has presented clear and convincing 

evidence that the state court‟s conclusion was wrong. 

Simmons v. Beard, 581 F.3d 158 165 (3d. Cir. 2009). At 

bottom, the question of how to read this transcript (i.e., 
36

whether or not it indicates that Rountree would have accepted 

the offer but for his counsel‟s advice) is a question of fact that 

can be argued either way. That the transcript can be read in 

more than one way does not—by itself—rise to the level of 

“clear and convincing evidence,” § 2254(e)(1), that the state 

court must be deemed unreasonable in choosing one reading 

over another. § 2254(d)(2). In this case, Rountree has offered 

only his assertion, backed by inferences, that when he said 

“they tell me” he referred to his counsel. He has not explained 

why we should ignore the Camden County judge‟s correction 

of his misstatement (“It‟s not dead time”), or how his selfserving assertion—standing alone—trumps the New Jersey 

court‟s factual finding to the contrary. Simply put, the record 

in this case does not contain the “clear and convincing”

evidence, § 2254(e)(1), required to meet § 2254(d)(2)‟s high

standard.

In sum, we conclude that Rountree has not 

demonstrated that the New Jersey court‟s conclusions were 

based on an unreasonable determination of the facts in light 
37

of the evidence, because he has not rebutted “by clear and 

convincing evidence,” § 2254(e)(1), the state court‟s 

conclusions that (1) the April 1996 offer he rejected was as 

good as he would have received at a consolidated negotiation, 

and (2) he would have rejected the same offer had it occurred 

after an order of consolidation. In light of these facts, which

we accept, it was not unreasonable for the state court to 

conclude that consolidation would not have made any 

difference in Rountree‟s case. We will therefore affirm the 

District Court‟s denial of relief under § 2254(d)(2).

3.

We turn next to Rountree‟s claim under § 2254(d)(1), 

and examine whether the state court‟s decision was either 

“contrary to” or “involved an unreasonable application of”

clearly established federal law as determined by the Supreme 

Court of the United States. In making that evaluation, our 

“review under § 2254(d)(1) is limited to the record that was 

before the state court that adjudicated the claim on the 
38

merits.” Cullen v. Pinholster, --- U.S. ---, 2011 WL 1225705, 

at *8 (Apr. 4, 2011).

The state court‟s decision was not “contrary to” clearly 

established federal law. § 2254(d)(1). The state court 

correctly articulated the federal standard for ineffective 

assistance of counsel as set forth by the Supreme Court of the 

United States in Strickland. See Rountree, 906 A.2d at 1133-

1134 (articulating the Strickland standard). And, it correctly 

applied that standard when it inquired into whether Rountree 

had satisfied “both prongs,” and then weighed Rountree‟s 

arguments against the “reasonable probability” test that 

Strickland imposes. Id. at 1138 (applying Strickland‟s 

prejudice prong).

Nor did it “involve[] an unreasonable application of”

federal law. § 2254(d)(1). As we have already discussed, 

Rountree has not “rebut[ted] the presumption of correctness”

of the New Jersey court‟s fact-finding “by clear and 

convincing evidence.” § 2254(e)(1). Under AEDPA, we will 

accept the state court‟s conclusion that Rountree would have 
39

rejected any likely consolidated plea offer. That means his 

counsel‟s failure to move to consolidate his plea bargaining

did not affect the outcome of his Camden County plea 

negotiations. These facts were, under clearly established 

Supreme Court case law, a reasonable and sufficient basis 

upon which to deny his claim. Strickland, 466 U.S. at 691 

(“An error by counsel, even if professionally unreasonable, 

does not warrant setting aside the judgment of a criminal 

proceeding if the error had no effect on the judgment.”).

Because the New Jersey court applied Strickland

reasonably, it follows necessarily that it did not reach “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.” § 2254(d)(1). We 

will therefore affirm the District Court‟s denial of relief.

In sum, we conclude that Rountree‟s petition does not 

warrant relief under AEDPA. In light of the facts before the 

state court—particularly Rountree‟s rejection of a plea offer 

that was as good as anything that might have come after a 
40

motion to consolidate—it was not unreasonable for the state 

court to conclude that Rountree‟s attorney‟s failure to file a 

Rule 3:25A-1 motion had no effect on the sentence he 

received for his Camden County crimes. Although 

“fairminded jurists could disagree” with the way the state 

court weighed the evidence in this case, Alvarado, 541 U.S. at 

664, it was not objectively unreasonable of the state court to 

conclude that, had consolidation occurred, Rountree would 

have rejected any offer it produced, gone to trial, been 

convicted separately for the separate Graves Act crimes he 

did commit, and been sentenced as the repeat-offender that—

at the end of the day—he actually was.

We will therefore affirm the District Court.

V.

On July, 29, 2010, Rountree filed a motion to expand 

the certificate of appealability to include four additional 

issues. We granted the motion, but upon review we conclude 

that the issues raised in the expanded certificate of 

appealability lack merit. First, Rountree complains that his
41

sentence was enhanced based on a judge-made finding that 

his Camden robbery involved a real gun, in violation of 

Apprendi v. New Jersey, 530 U.S. 466 (2000). We have held 

that Apprendi does not apply retroactively to convictions that, 

like Rountree‟s, were made final before Apprendi was 

announced. See United States v. Swinton, 333 F.3d 481, 491 

(3d Cir. 2003). Accordingly, this claim lacks merit.

Second, Rountree claims that because he was never 

indicted for possession of a firearm, he cannot be sentenced to 

an extended Graves Act sentence. This claim fails because it 

was not exhausted in state court. Further, the Graves Act‟s 

applicability is not limited to those who are indicted and 

convicted for illegally possessing a firearm. It applies equally 

to those who use weapons in the course of another crime. See

N.J. Stat. Ann. § 43-6(c).

Third, Rountree contends that the Camden trial judge‟s 

responses to jury questions were improper. However, as the 

District Court held, the state appellate court reasonably 
42

concluded that the judge‟s answers did not have a prejudicial 

effect on the jury.

Finally, Rountree claims that his Camden trial counsel 

was ineffective for failing to move to exclude other crimes 

evidence. The record demonstrates that trial counsel objected 

to the evidence and moved for a mistrial, but the Judge denied 

the motion and directed the jury to disregard the other crimes 

evidence. We agree with the state appellate court that the 

judge‟s limiting instruction forestalled any unjust result. 

Accordingly, we will summarily affirm the state court on 

each of the issues raised in Rountree‟s motion for an

expanded certificate of appealability.

* * * * *

The judgment of the District Court will be affirmed.