CARMELO HERRERA,

Civil Action No. 11-0734 (SRC)

Petitioner,

v. OPINION

PETER K. LAGANA, et al.,

Respondents.

APPEARANCES:

Petitioner p se

Carmelo HerreraNorthern State Prison

P.O. Box 2300

Newark,NJ 07114

Counsel for Respondents

Stephanie Paige Davis-Elson

Assistant Prosecutor of Hudson County

595 Newark Avenue

Jersey City, NJ 07306

CHESLER, District Judge

Petitioner Carmelo Herrera (“Petitioner”). a prisoner currently confined at Northem State

Prison in Newark, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. The respondents are Administrator Peter K. Lagana and the Attorney General of

New Jersey.

For the reasons stated herein, the Petition will be dismissed.
security guard, was assigned to work the 4:00 p.m. to 12:00 a.in. shift in a Hoboken

housing complex. He had been working in that area for approximately one month.At the conclusion of his shift. Valentin entered his car and drove to the exit to wait

for traffic to pass. While stopped, Valentin observed a man, later identified as

defendant Carmelo Herrera, approach on his bicycle before stopping near the frontof Valentin’s car and yelling something. Valentin did not hear what defendant said

to him and lowered his window. Defendant walked to the window and asked

Valentin for five dollars. When Valentin replied that he had no money, defendantpunched him twice, once in the face and once on the back of the neck, knocking

Valentin unconscious. When Valentin regained consciousness, his car was missing

and he was bleeding. He walked to a nearby security booth and called the police.

Officer James Miller ofthe Hoboken Police Department arrived at the scene

a short while later. Valentin related the incident and described his assailant as a

Hispanic male, about 57”, with a husky build, and a scar on his face, who was

wearing something white and red.[FN 1] Valentin was taken to St. Mary’s hospitalin Hoboken for treatment.

[FN 1] At trial Officer Miller testified that Valentin described

defendant as a “Hispanic male about five-seven in height, wearing

blue jeans, white sneakers, black jacket with red lettering, and he

had a short style cut black hair.” On cross-examination, OfficerMiller stated the “red lettering” was not referenced in his report, but

he recalled Valentin saying red lettering.

Meanwhile, Officer Joseph Carr ofthe Harrison Police Department was

called to an accident scene shortly after 1:00 a.m. He observed a damaged vehicle

in the roadway with the front passenger side tire missing. A man, later identified as

defendant, was standing in front ofthe vehicle. Because defendant appearedintoxicated. Officer Carr arrested and transported him to the police station toadminister a breathalvzer test. A search of his person revealed four black belt

keepers, which are used by police or security personnel to secure their belts to gun

Pursuant to 28 U.S.C. § 2254(e)(l), “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. Theapplicant shall have the burden ofrebutting the presumption of correctness by clear and

convincing evidence.”
traveled to St. Mary

s Hospital where they informed Valentin ofthe situation and

asked him to go to the police station to identify the man who attacked him.Lieutenant Mecka transported Valentin to the station, where, on arrival, Lieutenant

Mecka learned that defendant had been taken to West Hudson Hospital, so the

Lieutenant drove Valentin there. As soon as Valentin entered the emergency room

of the hospital, he looked around and identified defendant, who was sitting on a

hospital bed about six feet away. as the man who had attacked him. The only other

persons in the emergency room were two police officers and nurses.

State v. Herrera, 187 N.J. 493, 496-97 (2006).

B. Procedural History

Petitioner was indicted for first-degree caijacking, N.J.S.A. 2C: 15-2, and third-degree

receiving stolen property, NJ.S.A. 2C:20-7, Prior to trial, he unsuccessfully moved to suppress

Valentin’s out-of-court identification. Following a jury trial in the Superior Court ofNew Jersey,

Law Division, Hudson County, Petitioner was found guilty of both counts. On August 19, 2003,

the trial court sentenced Petitioner to a term ofthirty years imprisonment, subject to an eighty-five

percent period of parole ineligibility under New Jersey’s No Early Release Act, N.LSA.

2C:43-72. (Answer, Ex. Ra25-Ra26.)

On direct appeal, the Superior Court of New Jersey, Appellate Division, affirmed the

convictions but remanded for resentencing, based on the trial judge’s erroneous understanding that

New Jersey law imposed a twentyyear presumptive sentence for caijacking, (Answer, Ex,

Ra151-Ra168. Opinion of Superior Court of New Jersey. Appellate Division (Feb. 23, 2005))

Petitioner sought certification from the Supreme Court of New Jersey, which granted certification

“limited to the issue ofthe identification procedure used by the police.” (Answer, Ex, Ra199.)

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U.S. 392 (1967). Neil v. Bizgers, 409 U.S. 188 (1972), and Manson v. Brathwaite, 432 U.S. 98

(1977). (Answer, Ex. Ra200-Ra232, Defendant’s Supplemental Brief before the Supreme Court

of New Jersey.) On June 20, 2006, the Supreme Court of New Jersey affirmed the conviction.

State v. Herrera, 187 N.J. 493 (2006).

During the pendency of the direct appeal, Petitioner was resentenced on April 14, 2005, to

the same sentence previously imposed. (Answer, Ex. Ra169-Ral 70, Judnent on Resentencing.)

Petitioner appealed his sentence, and on June 4, 2007, the Appellate Division affirmed. (Answer,

Ex. Ra 335, Order of Superior Court, Appellate Division (June 4, 2007).) Petitioner did not

further appeal his sentence.

Petitioner’s initial petition for state post-conviction relief (“PCR”), filed on or about

September 22, 2006, was dismissed without prejudice, as premature, on November 9, 2006.

(Answer, Exs. Ra796-Ra806 (PCR Petition), Ra807 (Order).) On December 3, 2007, following

the conclusion of Petitioner’s direct appeals, he refiled his state petition for post-conviction relief,

in which he asserted the following grounds for relief:

Ground 1:

TRIAL COUNSEL’S FAILURE TO PERFORM PROPER PRE-TRIAL

INVESTIGATION OF BOTH STATE AND MATERIAL WITNESSES, LACK

OF TRIAL PREPARATION, FAILURE TO ESTABLISH AN EFFECTIVE

DEFENSE, AND TO RAISE CORRECT ARGUMENT TO THE TRIAL COURTREGARDING IDENTIFICATION PROCEDURES WERE SO EGREGIOUS AS

TO DENY DEFENDANT HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF

COUNSEL AND A FAIR TRIAL AS PROVIDED BY THE US.

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BY THE U.S. CONSTITUTION. AMENDS. VI. AND XIV; N.J.

CONSTITUTION. ART. I. PAR. 10.

(Answer, Ex. Ra-341, Defendant’s Verified Petition seeking PCR relief) In his supplemental

brief, Petitioner also argued that trial counsel was ineffective for coercing him not to testify, for

failing to pursue an intoxication defense and to request an intoxication charge, for failing to

request a cross-racial identification charge, for failing to argue certain mitigating factors relevant

to sentencing, and for cumulative errors. Also in his supplemental brief, Petitioner argued that

appellate counsel was ineffective in failing to argue that the trial court erred by not charging

trespass and by failing to adequately argue the mitigating factors on appeal. (Answer, Ex,

Ra349-Ra376, Defendant’s Supplemental Brief) On May 9, 2008, following oral argument, the

trial court denied relief. (Answer, Ex. Ra571-Ra592,) On March 8, 2010, the Appellate

Division affirmed the denial ofrelief State v. Herrera, No. A-5834-07T4, 2010 WL 816816 (N.J.

Super. App.Div. Mar. 8, 2010). On August 3, 2010, the Supreme Court of New Jersey denied

certification. State v. Herrera, 203 N.J. 580 (2010).

This Petition, with supporting documents dated February 7, 201 1. followed. Here,

Petitioner asserts the following wounds fbr relief:

Ground One: Identification procedures used by the police were impermissibly

suggestive in violation ofthe Sixth and Fourteenth Amendments, not following thelatest scientific techniques tainting [sic] the identification evidence which should

have resulted in reversal of the convictions based on either the federal or state

constitution.

)
meritless. Petitioner has replied and this matter is now ready for decision.

II. 28 U.S.C. § 2254

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 shallentertain 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.

With respect to any claim adjudicated on the merits in state court proceedings, the writ

shall not issue unless the adjudication ofthe 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

ofthe United States; or

(2) resulted in a decision that was based on an unreasonable determination

of the facts in light ofthe evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

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

2 With respect to Ground One, to the extent Petitioner is arguing that the decision to admit the

identification evidence was a violation ofstate law, it is well-established that “federal habeas

corpus relief does not lie for errors of state law.” Estelle v. NcGuire, 502 U.S. 62, 67(1991)(quoting Lewis v. Jeffers, 497 US. 764. 780 (1990)).

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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), Id. at 407-09. To be an “unreasonableapplication” of clearly established federal law, the state court’s application must be objectively

unreasonable. Id. at 409. “This standard ... is ‘difficult to meet’: To obtain habeas corpus relieffrom a federal court, a state prisoner must show that the challenged state-court ruling rested on ‘an

error well understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Metrish v. Lancaster, 133 S.Ct. 1781, 1786-87 (2013) (quoting Harrington v.

Richter, 131 S.Ct. 770, 786-87 (2011)). 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. Matteo v. Superintendent, 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 Chadwick v. Janecka. 302 R3d 107. 116 (3d Cir. 2002) (çjtin Weeksv.

gçjone, 528 1*S. 225, 237 (2000)). Moreover, 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.”

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520 (1972). A pro se habeas petition and any supporting submissions must be construed liberally

and with a measure of tolerance. See Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010); 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), cert. denied, 399 U.S. 912

(1970).

III. ANALYSIS

A. Timeliness

Respondents urge this Court to dismiss the Petition with prejudice as untimely. In his

Reply in support of the Petition, Petitioner does not address this defense. Nevertheless, the

Petition clearly is timely.

The limitation period for a § 2254 habeas petition is set forth in 28 U.S.C. § 2244(d), 3

which provides in pertinent part:

(1) A i-year period oflimitations shall apply to an application for a writ of habeas

corpus by a person in custody pursuant to the judgment of a State court. The

limitation period shall run from the latest of—

(A) the date on which the judgment became final by the conclusion of direct

review or the expiration of the time for seeking such review;

The limitations period is applied on a claim-by-claim basis. çç Fielder v. Verner, 379

F.3d 113 (3d Cir. 2004), cert. denied, 543 U.S. 1067 (2005); Sweger v. Chesney, 294 F.3d 506 (3d

Cir. 2002).

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(D) the date on which the factual predicate ofthe claim or claims presented

could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or

other collateral review with respect to the pertinent judgnient or claim is pending

shall not be counted toward any period of limitation under this section.

Here, Petitioner does not assert any claims that rely on factual predicates discovered, or

constitutional rights recognized, after the date of his conviction. Nor does he allege any

impediments to filing a federal habeas petition. Thus, evaluation of the timeliness ofthis § 2254

petition requires a determination of, first, when the pertinent judgment became “final,” and,

second, the period oftime during which any application for state post-conviction relief was

“properly filed” and “pending.”

A state-court criminal judgment becomes “final” within the meaning of 2244(d)( 1) by the

conclusion of direct review or by the expiration of time for seeking such review, including the

90-day period for filing a petition for writ of certiorari in the United States Supreme Court.

Swartz v. Meyers, 204 F.3d 417. 419 (3d Cir. 2000); Morris v. Horn. 187 F.3d 333, 337 n.l (3d

Cir. 1999); U.S. Sup. Ct. R. 13. The Supreme Court has made clear that the federal limitations

period does not begin to run until both the conviction and sentence become final, including review

of amended sentences entered before filing of the federal habeas petition. See Burton v. Stewart,

549 U.S. 147. 156 (2007). See also Chew v. Hendricks, Civil Action No, 04-5894, 2007 WL

9
2:12-2(a) (allowing twenty days to file a petition for certification from a decision of the AppellateDivision). Petitioner then had until June 24, 2008, to file his federal habeas petition, unless there

were grounds for statutory or equitable tolling.

To statutorily toll the limitations period, a state petition for post-conviction relief must be

“properly filed.”

An application is “filed,” as that term is commonly understood, when it is

delivered to, and accepted by the appropriate court officer for placement into theofficial record. And an application is “properly filed” when its delivery and

acceptance are in compliance with the applicable laws and rules governing filings.

These usually prescribe, for example, the form of the document, the time limits

upon its delivery, the court and office in which it must be lodged, and the requisitefiling fee. In some jurisdictions the filing requirements also include, for example,

preconditions imposed on particular abusive filers, or on all filers generally. But

in common usage, the question whether an application has been “properly filed” isquite separate from the question whether the claims contained in the application are

meritorious and free of procedural bar.

Artuz v. Bennett, 531 U.S. 4, 8-9 (2000) (citations and footnote omitted) (finding that a petition

was not “[im]properly filed” merely because it presented claims that were procedurally barredunder New York law on the grounds that they were previously determined on the merits upon an

appeal from the judgment of conviction or that they could have been raised on direct appeal hut

were not).

An application for state post-conviction relief is considered “pending” within the meaning

of 2244(d)(2), and the limitations period is statutorily tolled from the time it is “properly filed,”during the period between a lower state court’s decision and the filing of a notice of appeal to a

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notice of appeal, provided that the filing ofthe notice of appeal is timely under state law.” Evans

v. Chavis, 546 U.S. 189, 191(2006) (finding that time between denial of post-conviction relief and

filing of appeal was not tolled where appeal was untimely, even where state considered untimely

appeal on its merits). However, “the time during which a state prisoner may file a petition for writ

of certiorari in the United States Supreme Court from the denial of his state post-conviction

petition does not toll the one year statute of limitations under 28 U.S.C. § 2244(d)(2).” Stokes v.

District Attorney ofthe County ofPhiladelphia, 247 F.3d 539, 542 (3d Cir.), cert. denied, 534 U.S.

959 (2001).

Here, Petitioner properly filed his state PCR petition on December 3, 2007, 162 days afier

his conviction became final on June 24, 2007. The federal limitations period, then, was

statutorily tolled until August 3, 2010, when the Supreme Court of New Jersey denied certification

with respect to the denial of PCR relief. This habeas Petition is deemed filed on February 7,

20ll, another 188 days later. Thus, this Petition, filed 350 days into the one-year federal

limitations period, is timely.

I — —

4Error! Main Document On1y.’A] pro se prisoner’s habeas petition is deemed filed at the

moiêñTh1ir&s it to prison officials for mailing to the district court.” Burns v. Morton, 134

F.3d 109, 113 (3d Cir, 1998) (citing Houston v. Lack, 487 US. 266 (1988)).

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Iv.

We turn now to defendant’s alternative argument that the victim’s

out-of-court identification was both impermissibly suggestive and lacked

reliability.

The United States Supreme Court has recognized that in many instances

eyewitness identifications have proven unreliable. In United States v. Wade, 388

U.S. 218, 229 (1967), Justice Brennan, writing for the Court, stated that “[t]he

vagaries ofeyewitness identification are well-known; the annals of criminal law are

rife with instances ofmistaken identification.” Justice Brennan recognized that “[a]

major factor contributing to mistaken identification has been the degree of

suggestion inherent in the manner in which the prosecution presents the suspect to

witnesses for pretrial identification.” Id. at 228 Consequently, the Court held

that counsel should be present at pretrial identifications.

The same day the Court decided Wade, it also held that whether a showup is

constitutional under the Fourteenth Amendment is determined by evaluating the

totality ofthe circumstances. Stovall v. Denno, 388 U.S. 293, 302, ...(1967). In

Stovall, the police brought the defendant handcuffed to one ofthe police officers

into the victim’s hospital room the day after the defendant allegedly stabbed her.at 295 ... . The victim responded affirmatively when the police asked her whether

the defendant “was the man.” Ibid. The Court concluded that this confrontation was

necessary because: (1) the only person that could exonerate the defendant was inthe hospital; (2) the hospital was not far from the courthouse and jail; and (3) no one

knew how long the victim might live. Id. at 302 ... . The Court found that because a

station lineup was not possible, the police followed the only feasible procedure.

Ibid. The Court did not find that the identitication procedure was “so unnecessarily

suggestive and conducive to irreparable mistaken identification that [the defendant]

was denied due process of law” at 302.

Several years later, in Neil v. Biggers, 409 US. 188, 194 .. (1972), the

Supreme Court addressed the validity of a showup identification procedure that

occurred seven months after the incident. In reviewing its prior decisions, the Court

found it unclear whether “unnecessary suggestiveness alone requires the exclusion

of evidence.” at 198-99 ... . The Court answered the question in the negative

and held that the test was “whether under the ‘totality ofthe circumstances’ the

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pretrial identification procedure that was impermissibly suggestive should be

excluded. The Supreme Court sought to clarify the law because the lower courts

had developed two approaches for dealing with such evidence. Id. at 110 ... . One

approach required exclusion of out-of-court identification evidence only if it were

obtained through impermissibly suggestive confrontation procedures without

regard to its reliability, while the other approach considered the reliability prong if

the out-of-court identification procedure was found to be suggestive. j4.. The

Supreme Court concluded that “reliability is the linchpin in determining theadmissibility of identification testimony.” Id. at 114 ... . The Supreme Court

explained that the following factors should be considered in determining reliability:

[Tjhe opportunity ofthe witness to view the criminal at the time of

the crime, the witness’ degree of attention, the accuracy of his prior

description ofthe criminal, the level of certainty demonstrated at theconfrontation, and the time between the crime and theconfrontation. Against these factors is to be weighed the corrupting

effect ofthe suggestive identification itself.

[d.J

In sum, the Supreme Court’s two-step analysis requires the court first to

ascertain whether the identification procedure was impermissibly suggestive, and,

if so, whether the impermissibly suggestive procedure was nevertheless reliable.

The totality ofthe circumstances must be considered in weighing the suggestive

nature ofthe identification against the reliability ofthe identification.

V.

We turn now to apply the two-step analysis to the present case. First. we

must determine whether the showup procedure at the hospital was impermissibly

suggestive.

We start with the commonsense notion that one-on-one showups are

inherently suggestive. Those showups by definition are suggestive because the

victim can only choose from one person, and, generally, that person is in police

I-,

I-)
we found your car, we located your car with somebody in it, we want you to come with us to identify the person.” Valentin also testified that while he was at the

police station, an officer told him that the individual was now in the hospital and that they would take him to “the hospital to identify [the man].” In addition,

Lieutenant Mecka testified that he informed Valentin “that his vehicle was

recovered, ... there was an occupant, and that we were going to go out there to look, let him look at the occupant.”

We conclude that in combination with the suggestiveness inherent in a showup, the added comments by the police rendered the showup procedures in the out-of-court identification of defendant impermissibly suggestive. Those

comments made by the police to the victim were inappropriate because they may have influenced the victim to develop a firmer resolve to identify someone he might otherwise have been uncertain was the culprit.

We turn now to determine whether the impennissibly suggestive showup procedure was nevertheless sufficiently reliable to warrant the admissibility ofthe identification by the victim. We must consider the totality ofthe circumstances surrounding the identification procedure The Manson factors are “the

opportunity ofthe witness to view the criminal at the time of the crime, the

witness’s degree of attention, the accuracy of his prior description ofthe criminal, the level of certainty demonstrated at the confrontation, and the time between thecrime and the confrontation.” Manson, supra, 432 U.S. at 114

We consider together the first two Manson factors concerning the opportunity of the witness to view the criminal and the witness’s degree of attention. Valentin testified that while he was leaving his security job, defendant stopped his bicycle and said something to him.

A conversation followed in which

defendant asked Valentin for money. When Valentin declined, defendant punched Valentin twice, causing him to lose consciousness. Later, Valentin told the police that during his employment as a security guard. he had observed defendant in the

area almost daily, but did not know defendant’s name. En finding that the

identification procedure was reliable, the trial court underscored that defendant was

“not a person who was a stranger to Valentin.” We agree that fact is significant, if

not controlling. Valentin had previously seen defendant on a daily basis even though he did not know his name, and he had sufficient opportunity to observe defendant during the attack. Although at the time Valentin described defendant to

the police he did not indicate he recognized defendant from seeing him in the

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he had told the police the man was wearing a black jacket, Valentin replied he did

not know. Valentin also did not recall whether the man had any facial hair. Officer

Gohde testified that he took a statement from Valentin after the showup at the

hospital. He stated that Valentin described defendant as having “olive skin, ...my

height, five-six to five-seven ... wearing blue jeans, sneakers, and had a shaved

head, ... [and] a scar on his face.”

Defendant urges that the description Valentin gave to the officer at the

scene did not match him because he was wearing a black leatherjacket with a circleinsignia in red and black at the time of his arrest, not a white jacket as Valentin

described. From the record, we are unable to determine whether Valentin provided

an accurate description of defendant to the police. Although Officer Miller did not

testify at the pretrial hearing, at trial he testified that when he arrived at the scene,

Valentin was bleeding and shaken up. Miller stated that Valentin described his

assailant as a Hispanic male, about 5’7”, wearing blue jeans, white sneakers, and a

black jacket with red lettering. The trial court did not make a finding with regard to

Valentin’s description of defendant but did note that there was an issue “whether or

not there was a scar, not a scar on the face, left side, his clothing, but [Valentin]

testified he had seen him before ... and he used to see him almost every day.”

Consequently, we are unable to evaluate this factor.

The last two Manson factors are the “level of certainty demonstrated at the

confrontation” and “the time between the crime and the confrontation.” The trial

court found that Valentin quickly identified defendant while he was sitting on a

hospital bed, and we accept that finding. The court, however, made no fmding on

the length oftime between the incident and the showup except to say that “some

time had passed.”

Apart from the trial court’s findings, our review of the record satisfies us

that the showup took place within a reasonable time. The offense occurred shortly

after 12:00 am. Following apprehension of defendant at the scene of the accident.

the police sought and received authorization from an assistant prosecutor to

conduct a showup around 2:50 a.m. Subsequently. the police went to St. Marys

Hospital in Hoboken to have Valentin accompany them back to the Harrison Police

Station for the showup. Upon learning defendant had been taken to West Hudson

Hospital, the police transported Valentin to the emergency room where he

immediately identified defendant. Based on those facts, the State asserts that theidentification procedure occurred within a reasonable time. We aee. We conclude

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daily basis in the month prior to the incident is strong evidence in support of

reliability of Valentin’s identification of defendant. Based on the totality of the

circumstances, we conclude that the trial court properly admitted Valentin’s

out-of-court identification of defendant

State v. Herrera, 187 N.J. at 182-186 (footnotes and citations omitted).

As is evident from the New Jersey Supreme Court’s thoughtful analysis, the court correctly

identified and applied the controlling U.S. Supreme Court precedents governing analysis of

showup identifications. See United States v. Brownlee, 454 F,3d 131 (3d Cir. 2006) (analyzing

showup identification procedure under Manson v. Brathwaite, supra); United States v. Diaz, 444

F.App’x 551, 554-55 (3d Cir. 2011) (applying Neil v. Bigers, supra, in analyzing showup

identification procedure). Hence, the state court’s decision is certainly not “contrary to” SupremeCourt precedent. Moreover, Petitioner has not demonstrated that the New Jersey Supreme

Court’s decision is based on an unreasonable determination of the facts in light of the evidence

presented. Petitioner is not entitled to relief on this claim.

C. The Ineffective Assistance Claims

Petitioner argues that his trial and appellate counsel were ineffective in failing to argue that

the latest scientific techniques should have barred the identification testimony under either the

state or federal constitution.

On direct appeal, Petitioner argued to the Supreme Court ofNew Jersey, through counsel,

that the State should adopt, under the state constitution, a new and more rigorous test for

admissibility of showup identifications than that required by the US. Constitution. More

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circumstances would be inadmissible regardless of any indication ofreliability.” State v. Heffera,

187 N.J. at 498-99. The Supreme Court of New Jersey noted that three states had adopted such a

more rigorous test, but it declined to adopt a new standard under the New Jersey constitution,

because Petitioner had failed to raise the issue and create an appropriate record below, and because

the State had consistently applied federal constitutional precedent in deciding the admissibility of

identification evidence. j4. Petitioner points to counsel’s failure to raise this issue at the trial

and Appellate Division levels as the basis for his claim of ineffective assistance.

On appeal ofthe denial of PCR relief, however, the Appellate Division rejected this claim.

Pursuant to the Sixth Amendment of the United States Constitution, every

criminal defendant is guaranteed assistance of counsel. Strickland v. Washinon,

466 U.S. 668, 685 ...(1984). Whether “retained or appointed,” such counsel must

“ensure that the trial is fair”; therefore, “‘the right to counsel is the right to the

effective assistance of counsel.” Id. at 685-86

In order to establish a prima facie case of ineffective assistance of counsel,

defendant must demonstrate a reasonable likelihood of succeeding under the

two-prong test established by Strickland, supra, 466 U.S. at 687 ... . First,

defendant must show that defense counsel’s performance was indeed deficient.

Second, defendant must demonstrate that there exists a reasonable probability that,

but for counsel’s unprofessional errors, the result ofthe proceeding would have

been different.

There is a strong presumption that counsel rendered adequate assistance and

made all siguificant decisions in the exercise of reasonable professional judguent,Further, because prejudice is not presumed, a defendant must demonstrate how

specific errors of counsel undermined the reliability of the proceeding.

An evidentiar hearing is required only when the facts viewed in the light

most favorable to the defendant would entitle the defendant to post-conviction

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eyewitness identification, Herrera, supra, 187 N.J. at 499-501, 902 A.2d 177,

reviewed defendant’s argument that the victim’s out-of-court identification wasimperinissibly suggestive and lacked reliability, id. at 501 -09, 902 A.2d 177, and

requested the Criminal Practice Committee and the Model Jury Charge Committee

to consider the identification charge, id. at 510, 902 A.2d 177. Notably, as to thevictim’s identification of defendant, the Court concluded that the impermissibly

suggestive show-up procedure used in this case was nevertheless “reliable and did

not result in a substantial likelihood ofmisidentification.” Id. at 509, 902 A.2d 177.

State v. Herrera, 2010 WL 816816 at *2..*3 (citations omitted).

As illustrated by the above quotation, the Appellate Division correctly identified the

Strickland two-prong standard that applies to claims ofineffective assistance oftrial counsel under

the Sixth Amendment. In addition, the United States Supreme Court has emphasized that, to

prevail on a claim ofineffective assistance oftrial counsel, a habeas petitioner must show both that

his counsel’s performance fell below an objective standard ofreasonable professional assistance

and that there is a reasonable probability that, but for counsel’s unprofessional errors, the outcome

would have been different. Strickland, 466 U.S. at 687, 694. A “reasonable probability” is “a

probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694. Counsel’s

errors must have been “so serious as to deprive the defendant of a fair trial, a trial whose result is

reliable” Id. at 687, “When a defendant challenges a conviction, the question is whether there is

a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt

respecting guilt.” Id. at 695. Nevertheless, the Supreme Court has advised that the performance

and prejudice prongs of Strickland may be addressed in either order, and “[ijfit is easier to dispose

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right. Evitts v. Lucey, 469 U.S. 387 (1985). The Strickland standard for effective assistance of

trial counsel also applies to appellate counsel. See Lewis v. Johnson, 359 F.3d 646, 656 (3d Cir.

2004). Appellate counsel does not have a duty to advance every nonfrivolous argument that

could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish that

appellate counsel was constitutionally ineffective “if he shows that counsel omitted significant and

obvious issues while pursuing issues that were clearly and significantly weaker,” Mayo v.

Henderson, 13 F.3d 528, 533 (2d Cir. 1994). See also United States v. Turner, 677 F.3d 570, 577

(3d Cir. 2012) (“Attorneys need not, and should not, raise every ... claim but rather may select

among them in order to maximize the likelihood of success on appeal.”) (quoting Showers v.

Beard, 635 F.3d 625, 634 (3d Cir. 2011)) (internal quotation marks omitted).

Here, Petitioner has presented nothing to suggest that trial and appellate counsel’s failure

to argue in favor of a new state-law standard for evaluating showup identifications, that has been

adopted in only three states, constituted representation that fell below an objective standard of

reasonable professional assistance. In any event, as the Appellate Division noted, the Supreme

Court of New Jersey found that the identitication was reliable and did not result in a substantial

likelihood of misidentification. Moreover, there was additional evidence of Petitioner’s guilt,

including his presence with the stolen car and his possession ofthe black belt keepers that had been

taken from Valentin and that he identified as his. (Answer, Ex. Ral 54-156, Opinion of Appellate

Division (Feh 23. 2005)) Thus, even if counsel did err. Petitioner has not established that the

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IV. 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 taken from a final order in a proceeding under 28 U.S.C.

§ 2254. A certificate of appealability may issue “only ifthe 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 ofreason 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.” Miller-El v. 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 will issue.

V. CONCLUSION

For the reasons set forth above, the Petition will be denied. An appropriate order follows.

Stanley R. Chesler

United States District Judge

Dated:

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