UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ALTERICK KELLY,

Civil Action No. 11-363 (DMC)

Petitioner,

V. : OPINION

GREG BARTKOWSKI, et al.,

Respondents.

APPEARANCES:

ALTERICK KELLY, Petitioner pro se

410037 / SBI220246—C

New Jersey State Prison

P.O. Box 861

Trenton, N.J. 08625

BARBARA A. ROSENKRANS, Counsel for Respondents

Essex County Prosecutor’s Office

Essex County Courts Building

50 West Market Street

Newark, N.J. 07102

CAVANAUGH, District Judge

Petitioner Alterick Kelly (“Petitioner”), a prisoner

currently confined at New Jersey State Prison in Trenton, New

Jersey, has submitted a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. The respondents are Warden Greg

Bartkowski and the Attorney General of New Jersey. For the

reasons stated below, the Petition will be denied.

I. BACKGROUND

The facts of this case were recounted below and this Court,

affording the state court’s factual determinations the

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appropriate deference, 28 U.S.C. § 2254(e) (1)’, will simply

reproduce the recitation as set forth in the unpublished opinion

of the Superior Court of New Jersey, Appellate Division:

At approximately 1:00 a.m. on April 29, 1998, Newark

police officers responded to a report of shots fired in

the backyard lot of 25 Aster Street. The bodies of

Derrick Powell and Jhidoniane Anderson were discovered

slumped over each other and riddled with multiple gun

shot wounds. The bodies were surrounded by spent shell

casings from three separate weapons: a .38 caliber, a

.380 caliber and a 9mm. Officer Johnny Faulkner was one

of the first at the scene, and he saw drops of blood on

the ground leading away from the bodies. He followed a

trail of blood west on to Murray Street and south on

Brunswick Street, to a building at 86 Brunswick Street.

Faulkner then notified the officer in charge, Lieutenant

James U. O’Connor, of his observations.

O’Connor testified that he and a team of officers

followed the fresh blood trail found by Officer Faulkner

which led to an apartment building, into the foyer and to

the door at apartment lA. Believing that an injured

person was in the apartment, whether it be a murderer or

an innocent victim, O’Connor knocked on the door. A

woman, later identified as Delfonda Swint, opened the

door, and O’Connor saw a man, later identified as

defendant, standing two fee behind her with a black

pistol in his hand. One of the other officers pulled

Swint out of the way, and O’Connor and another officer

ran into the apartment. The man holding the gun fled

further back into the apartment. O’Connor saw two other

men in the apartment as he entered. Later identified as

co-defendants Deshawn Stith and Stephen Whitley, these

men were secured by other officers as O’Connor pursued

the man with a gun into the kitchen. O’Connor next saw

the defendant’s arm coming down as if he had placed

something on top of a kitchen cabinet, and he observed

blood trickling from the cabinet. When the defendant was

told to show his hands, he did not do so, holding the

1Pursuant to 28 U.S.C. § 2254(e) (1), “In a 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.”

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left side of his body. O’Connor then wrapped his hands around and discovered that defendant was wounded.

After the apartment was secured, a .38 caliber handgun, a .380 caliber handgun, and a 9mm handgun were located on top of the kitchen cabinets. The suspects were arrested and read their rights.

At trial co-defendants Stith and Whitley testified for the State after pleading guilty to aggravated manslaughter.

Kelly’s

Whitley testified that the killing was idea because there was a turf war with the victims

kill

and that “either we kill them or they’re going to us.” He said that all three assailants had a gun and that defendant had the 9mm. He said that Kelly lured the victims to the back lot and they pulled out the guns

Kelly

at the same time and started shooting. He said that was shot accidently during the execution of the two victims. Whitley’s testimony was corroborated by Stith, who said that they all agreed to kill the two victims, and they all participated in the shooting.

Defendant testified in his own defense that he was “just hanging out” drinking with the co-defendants when a patrolman told them to move off of the street, They went into the back lot where they confronted the victims. Defendant said that Stith had two guns, and Whitley had another. When the two co-defendants started shooting the victims, defendant said he tried to intervene and was accidently shot. After the shooting, they all went to

wound.

Swint’s apartment where defendant tried to treat his When the police entered a few minutes later, he said he did not have a gun in his hand but rather a black cordless phone.

Içe1ly, A-1744-00T4 (July 5, 2002)

On June 13, 2000, a jury convicted Petitioner of the

first-degree aggravated manslaughter of Derrick Powell, N.J.S,A,

2C:ll-4a, as a lesser-included offense of murder (count one); the

aggravated manslaughter of Jhidoniane Anderson, also as a

lesser-included offense of the original charge of murder (count

3

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two); third-degree unlawful possession of a firearm, N.J.S.A.

2C:39-5b (count seven); and second-degree possession of a firearm

for unlawful purpose, N,J.S.A. 2C:39-4a (count eight). State v.

Kelly, 2009 WL 4725221, at * 1 (N.J. Super. Ct. App. Div. Dec.

10, 2009) . Defendant was sentenced on July 28, 2000, to thirty

years imprisonment on count one, subject to eighty-five percent

parole ineligibility in accord with the No Early Release Act

(“NERA”), N.J.S.A. 2C:43-7.2; twenty years subject to NERA on

count two, consecutive to count one; five years imprisonment on

count seven, concurrent to count two and consecutive to count

one; and ten years with five years of parole ineligibility on

count eight, concurrent to count two and consecutive to count

one. () Defendant’s direct appeal was denied 2,and his

petition for certification was also denied on October 21, 2002.

State v. Kelly, 174 N.J. 548 (2002)

After oral argument, Petitioner’s petition for postconviction relief (“PCR”) was denied on January 11, 2008. The

Appellate Division affirmed this denial on December 10, 2009.

State v. Kelly, 2009 WL 4725221 (N.J. Super. Ct. App. Div. Dec.

10, 2009) . On December 21, 2010, Petitioner submitted the

instant habeas petition to prison officials for mailing. (Docket

Entry No. 1.) He raises the following grounds for relief:

and

The Appellate Division did vacate the sentence imposed on Count Eight

reflecting

remand to the trial court for entry of an amended judgment of conviction

a merger of that charge, State of New Jersey v. Kelly, A—l744-00T4

(July 5, 2002)

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1. The state court’s ruling that Petitioner was not

subjected to the deprivation of his Sixth Amendment

constitutional right to effective assistance of trial

counsel by his failure to object to the trial court’s

failure to recharge the jury on accomplice liability when

the court recharged the jury pursuant to its request on

murder and the lesser-included offenses to murder on

several occasions, was contrary to clearly established

federal law, and an unreasonable application of federal

law.

2. The state court’s ruling that Petitioner was not

subjected to the deprivation of his due process right to

a fair trial when the state elected to try Petitioner as

an accomplice to a degree murder for which it made

clear to the jury that the two co-defendants were the

principles [sic] that pled guilty to aggravated

manslaughter, the Petitioner’s starting offense as an

accomplice should have been aggravated manslaughter

rather than l degree murder which was an offense

greater than the actual principles [sic] offense, was

contrary to clearly established federal law, and an

unreasonable application of federal law.

3. The state court’s ruling that Petitioner was not

subjected to the deprivation of his Sixth Amendment

constitutional right to effective assistance of trial

counsel by his failure to request that the jury be

instructed that the co-defendants’ pleas could not be

used as substantive evidence against Petitioner was

contrary to clearly established federal law, and an

unreasonable application of federal law.

4. The state court’s ruling that Petitioner was not

subjected to the deprivation of his Sixth Amendment

constitutional right to effective assistance of trial

counsel by his failure to ensure Petitioner’s presence at

an in-camera voir dire hearing of a juror, and by failing

to request that the other jurors be voir dired as to

improper influences, was contrary to clearly established

federal law, and an unreasonable application of federal

law.

5. The state court’s ruling that Petitioner was not

subjected to the deprivation of his Sixth Amendment

constitutional right to effective assistance of trial

counsel by his failure to utilize information he had as

his disposal at the suppression hearing to establish that

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the police had falsified the exigent circumstances to justify their entry into the house where weapons were

seized and the Petitioner was arrested in violation of the Fourth Amendment, was contrary to clearly established federal law, and an unreasonable application of federal law,

6. The state court’s ruling that Petitioner was not subjected to the deprivation of his Sixth Amendment

constitutional right to effective assistance of trial

counsel by his failure to object to the admission of testimony that both co-defendants’s pleas were

conditioned on truthful testimony at trial, and the prosecutor’s improper vouching for the credibility of the co-defendants was contrary to clearly established federal law, and an unreasonable application of federal law.

7. The state court’s ruling that Petitioner was not

subjected to the deprivation of his Sixth Amendment

constitutional right to effective assistance of trial

counsel by his failure to request that the jury be

instructed on the unreliable nature of testimony attesting to oral statements made by Petitioner was

contrary to clearly established federal law, and an

unreasonable application of federal law.

8. The state court’s ruling that Petitioner was not

subjected to the deprivation of his Sixth Amendment

constitutional right to effective assistance of appellate counsel by his failure to raise the claims raised herein, was contrary to clearly established federal law, and an

unreasonable application of federal law.

9. The state court’s ruling that Petitioner was not deprived of his Sixth and Fourteenth Amendment

constitutional rights by the trial court’s amendment of

the indictment where he changed the charging terms of the indictment as returned by the grand jury without notice

on Petitioner was contrary to clearly established federal law, and an unreasonable application of federal law.

10. The cumulative effect of trial counsel’s many

deficiencies deprived the Petitioner of effective assistance of counsel.

11. The sentence imposed on Petitioner by the trial judge was contrary to the clearly established federal precedent set forth in Blakely v. Washington.

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(Pet, Docket Entry No. 1.) Respondents filed an answer,

arguing that Petitioner has not met his burden for the writ to

issue and Petitioner filed a reply. (Docket Entry Nos. 15 & 21,)

II. DISCUSSION

A, Legal Standard

As amended by the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), 28 U.S.C. § 2254 now provides, in

pertinent part:

(a) The Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an application

for a writ of habeas corpus in behalf of a person in

custody pursuant to the judgment of a State court only on

the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.

(b) (1) An 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 unless it appears

that- -

(A) the applicant has exhausted the remedies available in

the courts of the State; or

(B) (i) there is an absence of available State corrective

process; or

(ii) circumstances exist that render such process

ineffective to protect the rights of the applicant.

(2) An 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.

(3) A State shall not be deemed to have waived the

exhaustion requirement or be estopped from reliance upon

the requirement unless the State, through counsel,

expressly waives the requirement.

(c) An applicant shall not be deemed to have exhausted

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the remedies available in the courts of the State, within

the meaning of this section, if he has the right under

the law of the State to raise, by any available

procedure, the question presented.

(d) An 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.

(e) (1) In a 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.

28 USC. § 2254.

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’sj precedenti’

Williams v. Taylor, 529 US. 362, 405—06 (2000) A state court

decision “involve[sj an unreasonable application” of federal law

“if the state court identifies the correct governing legal rule

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from [the Supreme] Court ‘s cases but unreasonably applies it to

the facts of the particular state prisoner’s case,” and may

involve an “unreasonable application” of federal law “if the

state court either unreasonably extends a legal principle from

[the Supreme Court’s] precedent to a new context where it should

not apply or unreasonably refuses to extend that principle to a

new context where it should apply,” (although the Supreme Court

expressly declined to decide the latter) . çj at 407-09.

To be an “unreasonable application” of clearly established

federal law, the state court’s application must be objectively

unreasonable. Id. at 409. In determining whether the state

court’s application of Supreme Court precedent was objectively

unreasonable, a habeas court may consider the decisions of

inferior federal courts. Matteov.Superjntj 171 F.3d 877,

890 (3d Cir. 1999). Even a summary adjudication by the state

court on the merits of a claim is entitled to § 2254(d)

deference, Chadwjckv. Janecka, 312 F.3d 597, 606 (3d Cir, 2002)

(citing Weks V. Angelone 528 U.S. 225, 237 (2000)), With

respect to claims presented to, but unadjudicated by, the state

courts, however, a federal court may exercise pre-AEDpA

independent judgment, See Ieenv.Stateof paware, 212 F.3d

226, 248 (3d Cir. 2000); Purne11v.HendrjcJ 2000 WL 1523144,

*6 n. 4 (D.N.J, 2000) . In such instances, “the federal habeas

court must conduct a de novo review over pure legal questions and

9

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mixed questions of law and fact, as a court would have done prior

to the enactment of AEDPA.” Appel v, Horn, 250 F.3d 203, 210 (3d

Cir. 2001) (citing McCandless v. Vaughn, 172 F.3d 255, 260 (3d

Cir. 1999)) . “However, § 2254 (e) (1) still mandates that the

state court’s factual determinations are presumed correct unless

rebutted by clear and convincing evidence.” Appel, 250 F,3d at

210,

The deference required by § 2254(d) applies without regard

to whether the state court cites to Supreme Court or other

federal caselaw, “as long as the reasoning of the state court

does not contradict relevant Supreme Court precedent.” Priester

v. Vaughn, 382 F.3d 394, 398 (3d Cir, 2004) (citing Early v.

Packer, 537 U.S. 3 (2002) ; Woodford v. Visciotti, 537 U.S. 19

(2002))

Finally, a pro se pleading is held to less stringent

standards than more formal pleadings drafted by lawyers. Estelle

v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S.

519, 520 (1972). A pro se habeas petition and any supporting

submissions must be construed liberally and with a measure of

tolerance. Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998);

Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989);

United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969)

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B. Analysis

1. Ineffective Assistance of Counsel

In Grounds 1, 3, 4, 5, 6, 7, 8 and 10, Petitioner raises

claims of ineffective assistance of counsel,

The Sixth Amendment, applicable to states through the Due

Process Clause of the Fourteenth Amendment, guarantees the

accused the “right ... to have the Assistance of Counsel for his

defense,” u.s. Const. Amend. VI. The right to counsel is the

right to the effective assistance of counsel, and counsel can

deprive a defendant of the right by failing to render adequate

legal assistance. See trick1and v.Wa irigton 466 U.S. 668,

686 (1984)

A claim that counsel’s assistance was so defective as to

require reversal of a conviction has two components, both of

which must be satisfied. See Strickland, 466 U.S. at 687.

First, the defendant must “show that counsel’s representation

fell below an objective standard of reasonableness,” at

687-88. “[Ciounsel should be ‘strongly presumed to have rendered

adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.’” .ciilen v.

inholster, 131 S.Ct. 1388, 1403 (2011) (citing Strickland, 466

U.S. at 690, 104 S.Ct. 2052) . “To overcome that presumption, a

defendant must show that counsel failed to act ‘reasonabl[y]

considering all the circumstances.’” (citing ickland, 466

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U.S. at 688).

Further, a “convicted defendant making a claim of

ineffective assistance must identify the acts or omissions of

counsel that are alleged not to have been the result of

reasonable professional judgment.” iç at 690. The court must

then determine whether, in light of all the circumstances at the

time, the identified errors were so serious that they were

outside the wide range of professionally competent assistance.

Id.

To satisfy the prejudice prong, the defendant must show that

“there is a reasonable probability that, absent the errors, the

factfinder would have had a reasonable doubt respecting guilt.”

içj at 695. “It is not enough ‘to show that the errors had some

conceivable effect on the outcome of the proceeding’ . . .CounsePs

errors must be ‘so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable.’” Harrington v. Richter,

131 S,Ct. 770, 788 (2011) (citing Strickland, 466 U.S. at 687, 104

S.Ct. 2052). As the Supreme Court explained,

In making this determination, a court hearing an

ineffectiveness claim must consider the totality of the

evidence before the judge or jury. Some of the factual

findings will have been unaffected by the errors, and

factual findings that were affected will have been

affected in different ways. Some errors will have had a

pervasive effect on the inferences to be drawn from the

evidence, altering the entire evidentiary picture, and

some will have had an isolated, trivial effect. Moreover,

a verdict or conclusion only weakly supported by the

record is more likely to have been affected by errors

than one with overwhelming record support. Taking the

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unaffected findings as a given, and taking due account of

the effect of the errors on the remaining findings, a

court making the prejudice inquiry must ask if the

defendant has met the burden of showing that the decision

reached would reasonably likely have been different

absent the errors.

Strickland, 466 U.S. at 695-96.

The Supreme Court instructs that a court need not address

both components of an ineffective assistance claim “if the

defendant makes an insufficient showing on one.” Strickland, 466

U.S. at 697. “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.”

a. Re-Charge on Accomplice Liability

In Ground One of his petition, Petitioner alleges that he

was deprived of effective assistance of trial counsel due to

counsel’s failure to object to the court’s failure to re-charge

the jury regarding accomplice liability when it re-charged the

jury on murder and the lesser-included offenses pursuant to the

jury’s request. Petitioner argues that the trial court had an

obligation to re-charge the jury on accomplice liability when the

jury requested to be re-charged on first degree murder and its

lesser-included offenses.

Petitioner presented this claim in his PCR petition and in

affirming the trial court’s denial, the Appellate Division

stated:

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Under the familiar test on a claim of ineffective assistance of counsel, a defendant must first demonstrate that counsel’s performance “fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct . 2052, 2064, 80 L. Ed.2d 674, 693 (1984) . Second, a defendant must demonstrate “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Jç at 694, 104

S.Ct. at 2068, 80 L. Ed.2d at 698. Without establishing a prima facie case of ineffective assistance of counsel, there is no entitlement to a PCR evidentiary hearing. State v. Preciose, 129 N.J. 451, 462, 609 A.2d 1280

(1992); State v. Cummings, 321 N.J.Super. 154, 169-70, 728 A.2d 307 (App. Div.), certif. denied, 162 N.J. 199, 743 A.2d 852 (1999)

At the close of the trial, the judge gave the Model Jury Charges on murder, aggravated manslaughter, reckless manslaughter, possession, and accomplice liability, among

other things. During the first day of deliberations, the jury sent a note asking to be recharged on murder,

aggravated manslaughter, reckless manslaughter and

possession. The trial court asked the foreperson, after

conferring with counsel, if the panel wanted the complete instructions reread or merely the essential elements of each offense. The foreperson responded that they wanted to hear the entire instructions. The court therefore recharged the jury as they requested, and also recharged as to intoxication, as the judge opined that the intoxication instruction was inextricably intertwined with the homicide instructions and the varying mental states necessary for each offense.

To reiterate, before he administered the instructions again, the judge asked the foreperson to confirm his interpretation of the note. After he reinstructed the panel, the judge asked for confirmation that the instructions he had just given were what they had asked to hear. The foreperson answered “yes.”

Defense counsel did not request the court to repeat the accomplice liability instruction. Defendant now claims this failure of trial counsel to do so, and the failure

of appellate counsel to raise this omission on appeal, constitutes ineffective assistance of counsel.

“When a jury requests clarification,” a judge must “clear

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the confusion.” State v. Conway, 193 N.J.Super. 133,

157, 472 A.2d 588 (App. Div.), certif. denied, 97 N.J.

650, 483 A.2d 174 (1984) . The court is obliged to

determine the meaning of any ambiguous request. State v.

Graham, 285 N.J.Super. 337, 342, 666 A.2d 1372 (App,Div.

1995) . In this case, the judge did precisely that-he

clarified his understanding of the jury’s note orally

prior to the recharge and confirmed that they were

satisfied to continue deliberations without further

instructions after the recharge.

Erroneous jury instructions “are poor candidates for

rehabilitation under the harmless error theory.” State

v, Weeks, 107 N.J. 396, 410, 526 A.2d 1077 (1987)

Therefore, defendant contends, the court committed

harmful error by failing to remind the jury that even if

a principal is guilty of purposeful murder an accomplice

can be found guilty of a lesser crime. In other words,

that the accomplice liability instruction should have

been given anew.

In our view, defendant’s reliance on State v. Harrington,

310 N.J.Super. 272, 278, 708 A.2d 731 (App. Div.),

certif. denied, 156 N.J. 387, 718 A.2d 1216 (1998), in

support of this contention, is misplaced. Harrington

requires a jury to be instructed that it can find a

principal and an accomplice guilty of different degrees

of the same crime or of different crimes altogether.

Ibid. It is undisputed that the judge gave that

instruction as part of his comprehensive closing charge.

It is also undisputed that the jury did not ask to hear

the instruction again.

There is no requirement, nor should there be, that a

judge reread all instructions previously administered to

a jury when the jury requests specific charges be read to

them. State v. McClain, 248 N.J.Super. 409, 421, 591

A.2d 652 (App. Div.), certif. denied, 126 N .J. 341, 598

A.2d 897 (1991). The fact that the jury did not ask

implies that they understood; to assume otherwise is

unfounded speculation. As we said in I’4cçlain, “[t]he

failure of the jury to ask for further clarification or

indicate confusion demonstrates that the response was

satisfactory.” Ibid. Indeed, it would not have been

appropriate for the judge to have recharged accomplice

liability sua sponte. State v. Perry, 124 N.J. 128,

162-64, 590 A.2d 624 (1991) . There was no basis for

trial counsel to make the request or for appellate

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counsel to raise this argument on appeal. In addition,

defendant does not even suggest the impact this would

have had on the outcome, particularly where he was found

guilty of the lesser offense and not of murder.

State v. Kelly, 2009 WL 4725221, at * 2-3 (N.J. Super, Ct. App.

Div. Dec. 10, 2009)

The trial court and the Appellate Division both reviewed

trial counsel’s assistance with regard to this issue pursuant to

the Supreme Court’s holding in Strickland and both courts founds

that it was not ineffective assistance for trial counsel not to

object to the trial court’s failure to re-charge the jury

regarding accomplice liability when their question to the judge

did not pertain to accomplice liability. The Appellate Division

also found that Petitioner did not meet the prejudice prong of

Strickland. Petitioner has not demonstrated that the actions of

the state courts “resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determinated by the Supreme Court of the United

States” or “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.” Therefore, this ground

for habeas relief is denied.

b. Co-Defendants’ Pleas and Testimony

In his third ground for relief, Petitioner argues that it

was constitutional error for trial counsel not to request that

the jury be instructed that his co-defendants’ pleas could not be

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used as substantive evidence against Petitioner.

The Appellate Division stated the following when addressing

this issue, on appeal from the trial court’s denial of PCR:

Defendant also contends that counsel was ineffective because he did not request an instruction as to the proper use of the co-defendants’ testimony. To the contrary, as the State points out in its brief, the judge told the jury:

Also on the subject of credibility of the

witnesses, in this case evidence has been

introduced to show that certain witnesses

currently have testified pursuant to plea

agreements that are now in effect under which

they pled guilty to lesser charges, await

sentences and dismissal of certain other charges. In criminal trials when a witness

takes the witness stand to testify the fact that he has such an agreement or charges

pending against him or a sentence being

awaited or charges to be dismissed is permitted to be placed before the jury for

your consideration, not for the general

credibility to be given to the testimony of

that witness, but only to evaluate whether or

not the witness has testified the way he did

in hopes or consideration of getting favorable

treatment from the State in connection with

the pending charges or pending plea agreement.

Now, each of the other two defendants named in all of the counts of the indictment 1 through

9 ... that are on trial here, that is Stephan

Whitley and [DeShawn] Stith, each has admitted

his guilt and has testified on behalf of the

State. I remind you that each has admitted

guilt to the offense of aggravated

manslaughter rather than the offense of

murder. The law requires that the testimony of

such a witness be given careful scrutiny. In

weighing his testimony, therefore, as to each

of them you may consider whether he has a

special interest in the outcome of the case and whether his testimony was influenced by

the hope or expectation of any favorable

17

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treatment or reward or any feelings of revenge or reprisal. If you believe that the particular witness is credible and worth[yj of belief then you have a right to find the defendant guilty on the testimony of the witness alone provided, of course, that upon a Consideration of the whole case you are satisfied beyond a reasonable doubt of the defendant’ s guilt.

You are not to be affected by the fact that another defendant has pled guilty to a particular count or a particular charge. That does not bear upon the issue of whether this defendant is guilty or not guilty. So you’re not to be affected by that in making your determination as to whether or not this defendant is not guilty or guilty of any offense in this case.

The court’s recitation of the model charge did inform the jury that the fact that Stith and Whitley had entered guilty pleas had no bearing on the issue of the guilt of defendant. Since the record does not bear out defendant’s assertion,

2

we will not consider this issue further, P.. :ll-3(e) (2).

2009 WL 4725221, at * 3-4 (N.J. Super. Ct.

App. Div. December 10, 2009). The PCR court and Appellate

Division determined that the jury was informed of the fact that

the entry of guilty pleas by his co-defendants has no bearing on

the guilt or innocence of the Petitioner. As such, Petitioner’s

claims to the contrary had no merit. This Court finds that

Petitioner has not demonstrated that the actions of the state

courts “resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal law,

18

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as determinated by the Supreme Court of the United States” or

“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.” Therefore, this ground for habeas

relief is denied.

c. Presence at Voir Dire of Deliberating Juror

In his fourth ground for relief, Petitioner argues that it

was a violation of his Sixth Amendment right to effective

assistance of trial counsel when counsel failed to ensure that

Petitioner was present at an in-camera voir dire of a juror who

had come to the judge and expressed a desire to be released from

the jury. The judge, defense counsel, prosecutor and juror were

present at the conference. However, Petitioner alleges that he

was not present at the hearing and he did not waive his right to

be present at the hearing. Further, Petitioner alleges that

counsel should have requested that the other jurors be voir dired

to determine if the juror had improperly influenced them.

Petitioner raised this claim in his PCR petition. In

denying this ground, the Court stated:

The belated expression or desire on the part of Mr. Kelly

to be present during the examination of the juror in

camera certainly is understandable in light of the recent

cases such as State v. W.A., et cetera. But what has to

be clear in those cases is that, even there, that

requires a request on the part of the defendant. There

was no such request made here. Indeed, that wasn’t the

law at the time. And the method that was used at the

time in this case was a method that, even in the face of

such a request, is a method that is continued to be

19

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treated as an appropriate method for communication with

a defendant and achieving the defendant’s presence

through that form of shuttle communication.

An examination of a juror may very well be intimidating

to the juror, especially a juror who is already coming to

the Court expressing some concerns. And there is no

basis here for believing that that sort of a situation

should have been created either by request of the

defense, or by instance on the part of the Court.

The juror was expressing concern in large part. The

Court was cautious not to interfere or intrude into

deliberations. And some of the suggestions that are made

here in the briefs, and even in argument, would imply

that Mr. Kelly thinks that this Court should have in some

way intruded into deliberations. That would be contrary

to the integrity of the trial and to the duty of counsel

and the Court. So on no basis is that appropriate.

And the comment that Mr. Kelly is the boss; I understand

what Mr. Henry means by that. By there are professional

decisions that attorneys make in the course of a trial

that a defendant or defendants would rely upon. And when

the case is over with and they’re unhappy with the

result, then they want to go back and second guess. It’s

Monday morning quarterbacking.

At the time that the decisions were made, there was no

expression on the part of Mr. Kelly or otherwise with any

- of any dissatisfaction with the manner in which Mr.

Feinberg was conducting the trial or proceedings

concerning the voir dire of that juror.

Furthermore, that voir dire was not part of jury

selection in the sense that has been often referred to in

the recent cases, but was a particularized problem where

it might very well be that a juror would feel

intimidated, singled out, and made uncomfortable by

having a defendant present. And there may well have been

reasons such as that. It’s reasonable to believe that

Mr. Feinberg may have made that determination. It would

be a reasonable determination, and his acting in that

manner, his conduct in that matter is not a deviation

from a proper professional standard that would in some

way be beyond what is appropriate for an attorney

conducting such a matter and rendering that view of a

version of ineffective assistance of counsel, nor can

20

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that in any way be demonstrated to have had a prejudicial impact on the outcome of this trial.

(Resp’t’s Br,, Ex. 36, PCR Hr’g Tr. 25:1-27:10, Jan. 11, 2008.)

The state PCR court properly reviewed the conduct of

Petitioner’s trial counsel and found that it was not objectively

unreasonable. Further, Petitioner had not shown prejudice from

the allegedly ineffective conduct. Petitioner has not

demonstrated that the actions of the state courts “resulted in a

decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determinated

by the Supreme Court of the United States” or “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.” Therefore, this ground for habeas relief is denied.

d. Suppression Hearing

In Ground Five of his petition, Petitioner argues that it

was a violation of his Sixth Amendment right to effective

assistance of trial counsel when his attorney failed to utilize

information he had at his disposal during the suppression hearing

to show that the police had falsified the exigent circumstances

to justify their entry into the house.

In denying Petitioner relief on this ground, the PCR court

stated the following:

The defense also appears to have raised a question as to the handling of the evidence in the motion to suppress proceeding. It’s very clear that the motion to suppress

21

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hearing demonstrated in the evidence that there was

sufficient exigent circumstance to warrant going to that

apartment. There was a blood trail from the scene of the

shooting directly to the apartment door. It was

unavoidable, inescapable that the police would have to

make inquiry there at the time that they did in the

immediate aftermath of the shooting. There justifiably

was concern for the safety and protection of anyone who

might be in that apartment, be it a defendant, another

victim, another injured party, there having been two

shootings in the immediate vicinity. There’s obvious

bleeding.

The knock on the door was appropriate on the part of the

officers. When the door was opened and the officers

observed this defendant with a gun in hand, in light of

the shootings, they were totally justified in rushing in

to disarm him. At that point, with all that they had, it

would have been derelict on their part to have done less.

The argument that DNA testing demonstrating that this was

the defendant’s blood should have been advanced at the

motion to suppress hearing is a specious argument. At

the time that the police observed the blood, whose blood

it was, what the DNA might show later, was not in any way

material to what was taking place and the action the

police were engaged in. No matter whose blood it was, no

mater what DNA might show later, it was incumbent upon

those officers to follow the trail of that blood and to

make sure that anyone who was injured or was still in

danger received proper treatment, or, if it was someone

that needed to be apprehended, to take that action as

well, as, indeed, they did.

There’s no reasonable argument to be made that there was

any deficiency in the conduct of the proceedings on the

part of Mr. Feinberg or any other counsel because they

didn’t bring out the results of DNA testing at the motion

to suppress proceeding. I’m hard pressed at this time to

believe that I would have permitted it.

(Resp’t’s Br., Ex. 36, PCR Hr’g Tr. 27:25-29:17, Jan. 11, 2008.)

The state PCR court properly reviewed the conduct of

Petitioner’s trial counsel and found that it was not objectively

22

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Case 2:11-cv-00363-DMC Document 22 Filed 07/19/12 Page 23 of 37 PageID: 1831
prosecutor had “vouched” for co-defendants’ credibility; as such,

it was ineffective assistance of counsel for Petitioner’s trial

counsel not to object to said comments.

Petitioner has not met either prong of Strickland.

Petitioner has failed to show that counsel’s representation fell

below an objective standard of reasonableness. Prosecutorial

misconduct may “so infect[J the trial with unfairness as to make

the resulting conviction a denial of due process.” Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974). The quantum or weight

of the evidence is crucial to determining whether the

prosecutor’s statements before the jury were so prejudicial as to

result in a denial of due process. Darden v. Wainwright, 477

U.S. 168, 182 (1986); Donneliy, 416 U.S. at 644; Moore v. Morton,

355 F.3d 95, 111 (3d Cir. 2001) . Petitioner has not shown that

the comments by the prosecutor “so infected the trial with

unfairness as to make the resulting conviction a denial of due

process.” Donneliy, 416 U.S. at 643.

Moreover, Petitioner has not alleged, let alone shown, that

“there is a reasonable probability that, absent the errors, the

factfinder would have had a reasonable doubt respecting guilt.”

Strickland, 466 U.S. at 695. As such, this ground for habeas

relief is denied.

f. Petitioner’s Oral Statements

In Ground Seven of his petition, Petitioner argues that he

24

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was deprived of effective assistance of counsel when his trial

counsel did not request that the jury be instructed on the

“unreliable nature of testimony attesting to oral statements made

by the Petitioner.” Specifically, Petitioner argues that his

attorney should have objected to co-defendant Whitley’s statement

that Petitioner said “I know them so either we kill them or

they’re going to kill us.”

Even if this Court were to assume, arguendo, that Petitioner

can establish the first prong of Strickland, it is clear that he

has not met the second prong since he has not alleged, let alone

shown, that “there is a reasonable probability that, absent the

errors, the factfinder would have had a reasonable doubt

respecting guilt.” Strickland, 466 U.S. at 695. Even without the

statement by co-defendant Whitley, there was substantial evidence

upon which to find Petitioner guilty. As such, this ground for

habeas relief is denied.

g. Appellate Counsel

In his eighth ground for relief, Petitioner argues that he

was denied effective assistance of appellate counsel when counsel

failed to raise the claims raised on PCR, on direct appeal.

Specifically, that appellate counsel was ineffective for failing

to raise the issue of trial counsel’s ineffectiveness.

The PCR court denied this claim, stating:

I don’t see, for all the reasons I’ve expressed, any deficiency on the part of appellate counsel for failure

25

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to complain of or raise any of these issues because all of these issues appear to me, and are demonstrated in the evidence not to give rise to any conclusion of ineffective assistance of counsel, or any other deprivation of due process.

(Resp’t’s Br., Ex. 36, PCR Hr’g Tr. 29:23-30:4, Jan. 11, 2008,)

The Fourteenth Amendment guarantees a criminal defendant

pursuing a first appeal as of right certain “minimum safeguards

necessary to make that appeal ‘adequate and effective,’” Evitts

469 U.S. 387, 392 (1985) (quoting Gf y Illinois,

351 U.S. 12, 20 (1956)), including the right to the effective

assistance of counsel, Evitts at 396. The ineffective assistance

of counsel standard of Strickland, 466 U.S. at 686, applies to a

claim that appellate counsel was ineffective. Smith v.

Robbins, 528 U.S. 259, 285 (2000); United Statesv .Cross, 308

F.3d 308, 315 (3d Cir. 2002)

In this case, the New Jersey courts’ adjudication of

Petitioner’s ineffective assistance of appellate counsel claim

was not contrary to, or an unreasonable application of Strickland

and other Supreme Court holdings. None of the claims that

Petitioner raised in his PCR petition were found to be

meritorious and in fact, one of the claims appellate counsel

raised on direct appeal, the claim regarding merger, was accepted

by the Appellate Division and remanded to the trial court for

proper merger of the possession charge. e of New Jersey V

Uy, A-l744-00T4 (July 5, 2002) . As such, Petitioner failed to

26

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meet the first prong.

Even if the Court were to assume arguendo that Petitioner

had met the first prong of Strickland, Petitioner failed to show

any prejudice as a result of the alleged ineffectiveness.

Therefore, he does not meet the requirements for an ineffective

assistance of appellate counsel claim and this ground is denied.

See Buehl v. Vaughn, 166 F.3d 163, 172 (3d Cir. 1999) (rejecting

state petitioner’s § 2254 claim that right to effective

assistance of counsel on direct appeal was violated by appellate

counsel’s failure to argue that trial counsel had rendered

ineffective assistance)

h. Cumulative Errors

In Ground Ten of his petition, Petitioner argues that the

cumulative effect of trial counsel’s many deficiencies deprived

him of effective assistance.

The test for a “cumulative error” claim is whether the

overall deficiencies “so infected the trial with unfairness as to

make the resulting conviction a denial of due process.” Hin

v, Sullivan, 601 F.3d 897, 917 (9th Cir.2010) (relying on

Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40

L.Ed.2d 431 (1974)) . also Fahy v. Horn, 516 F.3d 169, 205

(3d Cir. 2008) (“Cumulative errors are not harmless if they had a

substantial and injurious effect or influence in determining the

jury’s verdict, which means that a habeas petitioner is not

27

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entitled to relief based on cumulative errors unless he can

establish ‘actual prejudice’”)

Petitioner raised his cumulative error claim in his state

PCR proceedings. Because the PCR court found no merit to any of

Petitioners claims for post-conviction relief, there is likewise

no basis or merit for habeas relief based upon an alleged

accumulation of errors which did not exist.

2. Accomplice Charges

In his second ground for relief, Petitioner argues that his

due process rights were violated when the state elected to try

Petitioner as an accomplice to a first degree murder, when the

co-defendants, who were the principals, pled guilty to aggravated

manslaughter. Based on the arguments made by Petitioner in

support of this claim, it is not clear precisely what he is

challenging.

To the extent he is challenging charges brought against him

in the indictment, that argument is without merit. Generally,

deficiencies in state grand jury proceedings are not grounds for

relief under 2254. Lopez v. Riley, 865 F.2d 30, 32 (2d Cir,

1989). This conclusion flows from United States v. Mechanik, 475

U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986), in which the

Supreme Court held that a violation of Fed.R.Crim.p. 6(d) (which

governs who may be present while the grand jury is in session,

deliberating, or voting), discovered only at trial, did not

28

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justify relief after the petit jury had rendered its verdict.

[T)he petit jury’s subsequent guilty verdict means not

only that there was probable cause to believe that the

defendants were guilty as charged, but also that they are

in fact guilty as charged beyond a reasonable doubt.

Measured by the petit jury’s verdict, then, any error in

the grand jury proceedings connected with the charging decision was harmless beyond a reasonable doubt.

Mechanik, 475 U.S. at 70 (footnote omitted); see also United

States v. Console, 13 F.3d 641, 671—72 (3d Cir. 1993) (with the

exception of a claim of racial discrimination in the selection of

grand jurors, a petit jury’s guilty verdict renders harmless any

prosecutorial misconduct before the indicting grand jury) (citing

Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598

(1986)) . Thus, to the extent there were any deficiencies in the

grand jury proceedings, they must be considered harmless.

To the extent Petitioner is challenging the sufficiency of

the jury instructions on accomplice liability, the PCR court

denied that claim, finding that: “After all the testimony was in,

all counsel made arguments, the Court gave instructions. The

Court gave thorough instructions concerning culpability as to

mental state and otherwise under Bielkiewicz in presenting the

accomplice liability instructions.” (Resp’t’s Br., Ex, 36, PCR

Hr’g Tr, 20:1-5, Jan, 11, 2008.) Further, as stated above with

regard to the issue of re-charge, the Appellate Division found:

“In our view, defendant’s reliance on State v. Harrington, in

support of this contention, is misplaced. Harrington requires a

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jury to be instructed that it can find a principal and an

accomplice guilty of different degrees of the same crime or of

different crimes altogether. Ibid. It is undisputed that the

judge gave that instruction as part of his comprehensive closing

charge.” (citations omitted)

The Due Process Clause of the Fourteenth Amendment requires

proof beyond a reasonable doubt of every fact necessary to

constitute the elements of the crime. See In re Winship, 397

U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) . In Waddinqton v.

Sauausad, 555 U.S. 179, 129 S.Ct. 823, 172 L.Ed.2d 532 (2009)

the Supreme Court outlined the law regarding the

constitutionality of state court instructions:

Even if there is some ambiguity, inconsistency, or

deficiency in the instruction, such an error does not

necessarily constitute a due process violation. Rather,

the defendant must show both that the instruction was

ambiguous and that there was “ ‘a reasonable likelihood’

that the jury applied the instruction in a way that

[violated the Constitution] .“ Estelle, supra, at 72, 502

U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (quoting Boyde v.

California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108

L.Ed.2d 316 ... (1990)). In making this determination,

the jury instruction “may not be judged in artificial

isolation, but must be considered in the context of the

instructions as a whole and the trial record.” Estelle,

supra, at 72. Because it is not enough that there is

some “slight possibility” that the jury misapplied the

instruction, Weeks v. Angelone, 528 U.S. 225, 236, 120

S.Ct. 727, 145 L.Ed.2d 727 ... (2000), the pertinent

question “is ‘whether the ailing instruction by itself so

infected the entire trial that the resulting conviction

violates due process,’” Estelle, supra, at 72, 502 U.S.

62, 112 S.Ct. 475, 116 L.Ed.2d 385 (quoting Cupp, supra,

at 147, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368)

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Waddinqton, 129 S.Ct. at 831—832 (2009) (citations and internal

quotation marks omitted).

The New Jersey courts’ adjudication of the claim was not

contrary to, or an unreasonable application of Supreme Court

holdings. As such, this ground for relief is denied,

3. Amendment of Indictment

In Ground Nine of the petition, Petitioner argues that he

was deprived of his constitutional rights when the trial court

changed the charging terms of the indictment without notice.

Specifically, Petitioner argues that when the Court removed the

language “by their own conduct” from the indictment, without

sending the matter back to the grand jury, it violated his

rights.

Petitioner raised this argument in his PCR petition and in

denying this ground, the PCR court stated:

It is true that the prosecutor moved to amend the

indictment prior to opening, as I recall, prior to jury

selection, I believe, to eliminate the words “by his own

hand.” And the Court granted that. I don’t recall there

was any real contest about it. It appeared to be

appropriate, and it was appropriate, and avoided

vicarious

confusion for the jury because the State’s theory was a

liability theory. It did not require that the

gunfire of a particular individual be the killing shots,

and

culpable

that participation by all of them would make them

if they had the appropriate state of mind. That

mind

instruction was given to the jury concerning state of

going to culpability as part of the overall lesser

included accomplice liability instruction.

(Resp’t’s Br., Ex. 36, PCR Hr’g Tr. 20:6-20, Jan. 11, 2008.)

There is no Fifth Amendment right to indictment by a grand

31

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jury in state court criminal proceedings.

510 U.S. 266, 272 (1994) (citing rtado .California, 110 U.S.

516 (1884)) . Nevertheless, charging instruments must meet

certain due process standards. The sufficiency of a charging

instrument is measured by two criteria: “first, whether [itj

contains the elements of the offense intended to be charged, and

sufficiently apprises the defendant of what he must be prepared

to meet, and, secondly, in case any other proceedings are taken

against him for a similar offense whether the record shows with

accuracy to what extent he may plead a former acquittal or

conviction.” Russell v.Unitedgttes 369 U.S. 749, 763-64

(1962) (internal citations omitted)

In determining whether the notice in an indictment is sufficient to afford a defendant due process, the question is whether under the circumstances there was reasonable notice and information of the specific charge against him and a fair hearing in open court. Pterno v. 334 U.S. 314, 320, 68 S.Ct. 1044, 1047, 92 L,Ed, 1409 (1948) . The indictment must be read as a whole. citychav.Hopkjns 517 F.2d 420 (3d Cir. 1975).

J1yv. Tard, 741 F.2d 26, 29 (3d Cir. 1984).

Here, Petitioner had notice of the specific nature of the

type of criminal offense that he was alleged to have intended.

The charging instrument did not deprive Petitioner of his right

to due process. The change made to the indictment, prior to

trial, was minor and did not alter the charges against

Petitioner. Petitioner has not demonstrated that the actions of

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the state courts “resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determinated by the Supreme Court of the United

States” or “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.” Petitioner is not

entitled to relief on this claim.

4. Sentence

In his final ground, Petitioner argues that the sentence

imposed on him is contrary to the clearly established federal

precedent set forth in Blakely v. Washington, 542 U.S. 296

(2004.)

Petitioner raised his sentencing claim before the PCR court,

which denied his request, stating:

The matter is not a matter that was in the pipeline during the Natale ruling by the Supreme Court, and does

not appear to be a case in which the sentencing should be

revisited, The sentencing appears to this Court to be

totally appropriate in the circumstances.

Therefore, at this time, the sentence itself will stand.

It was reviewed by the Appellate Court and it was held

not to be excessive. It was held to be a proper

sentence. And that issue has already been addressed.

(Resp’t’s Br,, Ex. 36, PCR Hr’g Tr. 30:5-15, Jan. 11, 2008.)

A federal court’s ability to review state sentences is

limited to challenges based upon “proscribed federal grounds such

as being cruel and unusual, racially or ethnically motivated, or

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enhanced by indigencies.” Grecco v. Q’Lone, 661, F.Supp. 408,

415 (D.N.J. 1987) (citation omitted) . Thus, a challenge to a

state court’s discretion at sentencing is not reviewable in a

federal habeas proceeding unless it violates a separate federal

constitutional limitation. See Pringie v. Court of Common Pleas,

744 F.2d 297, 300 (3d Cir. 1984), See also 28 U.S.C. § 2254(a);

Estellev .McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d

385 (1991); Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092,

111 L.Ed.2d 606 (1990)

In pprendi v. New Jersy, 530 U.S. 466, 120 S.Ct. 2348, 147

L.Ed.2d 435 (2000), pursuant to the Fourteenth Amendment right to

due process, coupled with the Sixth Amendment right to trial by

jury, the Supreme Court held that “[o]ther than the fact of a

prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a

jury, and proved beyond a reasonable doubt,” In ]elyv.

542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004),

the Supreme Court overturned a sentence imposed under Washington

state’s sentencing system, explaining that “the relevant

statutory maximum is not the maximum sentence a judge may impose

after finding additional facts, but the maximum he may impose

without any additional findings.” 542 U.S. at 302 (internal

quotations omitted) . More specifically, “the ‘statutory maximum’

for Apprendi purposes is the maximum sentence a judge may impose

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solely on the basis of the facts reflected in the jury verdict or

admitted by the defendant.” 542 U.S. at 303 (citations omitted)

Most recently, in itedStatesvoj 543 U.S. 220, 125

S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court applied the

rule of to the United States Sentencing Guidelines,

finding the Guidelines unconstitutional, and rendering them

merely advisory, rather than mandatory.

In atev.Natale, 878 A.2d 724 (N.J. 2005), the Supreme

Court of New Jersey evaluated the constitutionality of the New

Jersey sentencing scheme in light of the pprendi line of cases,

Our Code provisions make clear that, before any judicial factfinding, the maximum sentence that can be imposed based on a jury verdict or guilty plea is the presumptive

and

term. Accordingly, the “statutory maximum” for Jy Booker purposes is the presumptive sentence.

Natale, 878 A.2d at 739. Because the Code’s system allowed for

sentencing beyond the statutory maximum presumptive term, the

Supreme Court of New Jersey found the state sentencing system

unconstitutional and determined that the appropriate remedy would

be to follow the lead of cker and abolish the presumptive

terms. “Without presumptive terms, the ‘statutory maximum’

authorized by the jury verdict or the facts admitted by a

defendant at his guilty plea is the top of the sentencing range

for the crime charged, e.g ., ten years for a second-degree

offense.” Natale, 878 A.2d at 741 (citation omitted) . The

Supreme Court of New Jersey held that the rule it announced in

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Natale was applicable retroactively only to cases in the direct

appeal pipeline as of the date of that decision, August 2, 2005.

Natale, 878 A.2d at 745. Petitioner had already concluded his

direct appeals by the date of the Natale decision; thus, the

Natale decision did not entitle him to relief, as a matter of

state law.

Similarly, the Court of Appeals for the Third Circuit

generally has held that the rules announced in the pprendi line

of cases are not applicable retroactively to cases on federal

collateral review. generally In re Olopade, 403 F.3d 159 (3d

Cir. 2005) (finding that the decision of the Supreme Court in

Booker does not apply retroactively to cases on collateral

review); United States v. Swinton, 333 F.3d 481 (3d Cir. 2003)

(holding that Apprendi does not apply retroactively to cases on

collateral review); In re Turner, 267 F.3d 225 (3d Cir. 2001)

(holding that Apprendi does not apply retroactively to cases on

collateral review)

Here, whether or not the sentence was imposed in violation

of the rules announced in the Apprendi/Natale line of cases,

Petitioner is not entitled to relief in this federal collateral

proceeding.

III. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or

judge issues a certificate of appealability, an appeal may not be

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taken from a final order in a proceeding under 28 U.S.c. § 2254.

A certificate of appealability may issue “only if the applicant

has made a substantial showing of the denial of a constitutional

right.” 28 U.S.c. § 2253(c) (2). “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 the issues presented are adequate

to deserve encouragement to proceed further.” er:Jv.

Cockrell, 537 U.S. 322, 327 (2003)

Here, Petitioner has failed to make a substantial showing of

the denial of a Constitutional right. No certificate of

appealability shall issue.

IV. CONCLUSION

For the above reasons, the § 2254 habeas petition is denied,

and a certificate of appealability will not issue. An appropriate

Order follows.

DATED:

United States Di :rict Judge

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