NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

WILLIAM GRAY, :

: Civil Action No. 11-0677 (FSH)

Petitioner, :

:

v. : OPINION

:

CINDY SWEENEY, et al., :

:

Respondents. :

APPEARANCES:

Petitioner pro se Counsel for Respondents

William Gray Sara Beth Liebman

400833 Union County Prosecutor’s Office

East Jersey State Prison 32 Rahway Avenue

Lock Bag R Elizabeth, NJ 07202

Rahway, NJ 07065

HOCHBERG, District Judge

Petitioner William Gray (“Petitioner”), a prisoner currently

confined at East Jersey State Prison, has submitted a petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The

respondents are Cindy Sweeney and Paula Dow.

For the reasons stated herein, the Petition must be

dismissed.

Case 2:11-cv-00677-FSH Document 16 Filed 02/16/12 Page 1 of 19 PageID: 1871
I. BACKGROUND

A. Factual Background

The relevant facts are set forth in the opinion of the

Superior Court of New Jersey, Appellate Division. 

1

Defendant William Gray was charged, and on March 31,

1999, he was convicted by a jury of second-degree sexual

assault, N.J.S.A. 2C:14-2b (count one); third-degree

aggravated sexual contact, N.J.S.A. 2C:14-3a(count two);

fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b

(counts three and four); first-degree aggravated sexual

assault, N.J.S.A. 2C:14-2a(2)(b)(count five); second-degree

sexual assault, N.J.S.A. 2C:14-2c(5) (count six); seconddegree sexual assault, N.J.S.A. 2C:14-2c(4)(b)(count seven);

and second-degree endangering the welfare of a child,

N.J.S.A. 2C:24-4a (counts eight and nine). At trial,

defendant was represented by Robert Seelenfreund. Because

of defendant’s allegations of ineffectiveness of trial

counsel, Seelenfreund was replaced by Michael Ignatoff as

counsel following the jury’s verdict. Ignatoff filed a

motion for new trial, which was denied on October 4, 1999. 

(footnote omitted).

...

Defendant’s prosecution was based upon evidence that he

had sexually molested T.W., whom we will fictitiously call

Tina, from 1991 when Tina was eleven years old until

discovery of his conduct in January 1997. At trial, Tina

claimed among other things that sexual penetration had

occurred, commencing in 1994. Gray denied that fact,

although admissions of kissing and fondling by him were

presented. The focus of the defense at trial, as recognized

by the PCR judge, was on gaining an acquittal on the firstdegree sexual penetration charge. 

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

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.”

2

Case 2:11-cv-00677-FSH Document 16 Filed 02/16/12 Page 2 of 19 PageID: 1872
(Answer, Ex. Ra7, Opinion of Appellate Division at 1-3 (July 8,

2005)).

B. Procedural History

Petitioner was convicted on March 31, 1999 and was sentenced

on October 4, 1999 to 50 years with 19 years of parole

ineligibility. The Appellate Division affirmed the trial

conviction on July 16, 2001 and the Supreme Court of New Jersey

denied certification on March 26, 2002. The petition for postconviction relief (“PCR”) was denied on February 19, 2004. 

Petitioner then appealed the denial of PCR, and the Appellate

Division remanded to the trial court for an evidentiary hearing

on July 8, 2005. After further proceedings below, on March 31,

2010 the Appellate Division affirmed. The Supreme Court of New

Jersey denied certification on June 30, 2010. Petitioner filed

this habeas petition on February 1, 2011.

Here, Petitioner asserts the following ground for relief:

(1) inadequate assistance of trial counsel as to testimony and

investigation related to a potential witness, and (2) excessive

sentence.

In their answer, Respondents assert that Petitioner failed

to exhaust his state remedies with respect to ground two and that

therefore, the Petition should be denied. This matter has been

fully briefed and is now ready for decision. 

3

Case 2:11-cv-00677-FSH Document 16 Filed 02/16/12 Page 3 of 19 PageID: 1873
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:

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.

28 U.S.C. § 2254 (a).

With respect to any claim adjudicated on the merits in state

court proceedings, the writ shall not issue 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 determinated by the Supreme

Court of the United States; or

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

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

A state court decision is “contrary to” Supreme Court

precedent “if the state court applies a rule that contradicts the

governing law set forth in [Supreme Court] cases,” or “if the

state court confronts a set of facts that are materially

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

arrives at a result different from [the Court’s] precedent.” 

Williams v. Taylor, 529 U.S. 362, 405-06 (2000) (O’Connor, J.,

4

Case 2:11-cv-00677-FSH Document 16 Filed 02/16/12 Page 4 of 19 PageID: 1874
for the Court, Part II). A state court decision “involve[s] an

unreasonable application” of federal law “if the state court

identifies the correct governing legal rule 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). Id. 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. 

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 F.3d 107, 116 (3d Cir. 2002) (citing Weeks 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

Hameen v. State of Delaware, 212 F.3d 226, 248 (3d Cir. 2000),

5

Case 2:11-cv-00677-FSH Document 16 Filed 02/16/12 Page 5 of 19 PageID: 1875
cert. denied, 532 U.S. 924 (2001). In such instances, “the

federal habeas court must conduct a de novo review over pure

legal questions and 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.” Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009).

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)).

Although a petition for writ of habeas corpus may not be

granted if the Petitioner has failed to exhaust his remedies in

state court, a petition may be denied on the merits

notwithstanding the petitioner’s failure to exhaust his state

court remedies. See 28 U.S.C. § 2254(b)(2); Lambert v.

Blackwell, 387 F.3d 210, 260 n.42 (3d Cir. 2004); Lewis v.

Pinchak, 348 F.3d 355, 357 (3d Cir. 2003).

6

Case 2:11-cv-00677-FSH Document 16 Filed 02/16/12 Page 6 of 19 PageID: 1876
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. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998);

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

III. ANALYSIS

A. Exhaustion of State Court Remedies

In their Answer, Respondents assert that Petitioner has

failed to exhaust his state remedies with respect to ground two,

regarding excessive sentence. This Court is in agreement that

Petitioner’s claims as to excessive sentence are not exhausted

and therefore the Petition must be dismissed. Although according

to Petitioner, he may have previously raised issues of

ineffective assistance of counsel’s representation at the

sentencing stage and during direct appeal, he does not appear to

have ever raised the sentencing issues raised in the instant

petition, that “[h]abeas corpus should be granted because the

sentence Petitioner received was excessive.” 

A state prisoner applying for a writ of habeas corpus in

federal court must first “exhaust[] the remedies available in the

courts of the State,” unless “there is an absence of available

State corrective process[] or ... circumstances exist that render

7

Case 2:11-cv-00677-FSH Document 16 Filed 02/16/12 Page 7 of 19 PageID: 1877
such process ineffective ....” 28 U.S.C. § 2254(b)(1). See Rose

v. Lundy, 455 U.S. 509, 515 (1982); Lambert v. Blackwell, 134

F.3d 506, 513 (3d Cir. 1997), cert. denied, 532 U.S. 919 (2001)

(finding that “Supreme Court precedent and the AEDPA mandate that

prior to determining the merits of [a] petition, [a court] must

consider whether [petitioner] is required to present [his or her]

unexhausted claims to the [state’s] courts”).

A petitioner exhausts state remedies by presenting his

federal constitutional claims to each level of the state courts

empowered to hear those claims, either on direct appeal or in

collateral post-conviction proceedings. See, e.g., O’Sullivan v.

Boerckel, 526 U.S. 838, 847 (1999) (“requiring state prisoners

[in order to fully exhaust their claims] to file petitions for

discretionary review when that review is part of the ordinary

appellate review procedure in the State”); Lambert v. Blackwell,

134 F.3d 506, 513 (3d Cir. 1997) (collateral attack in state

court is not required if the petitioner’s claim has been

considered on direct appeal); 28 U.S.C. § 2254(c) (“An applicant

shall not be deemed to have exhausted 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.”) Once a

petitioner’s federal claims have been fairly presented to the

state’s highest court, the exhaustion requirement is satisfied. 

8

Case 2:11-cv-00677-FSH Document 16 Filed 02/16/12 Page 8 of 19 PageID: 1878
Castille v. Peoples, 489 U.S. 346, 351 (1989)(citing Picard v.

Connor, 404 U.S. 270, 275 (1971)).

The petitioner generally bears the burden to prove all facts

establishing exhaustion. Toulson v. Beyer, 987 F.2d 984, 987 (3d

Cir. 1993). This means that the claims heard by the state courts

must be the “substantial equivalent” of the claims asserted in

the federal habeas petition. Picard, 404 U.S. at 275. Reliance

on the same constitutional provision is not sufficient; the legal

theory and factual basis must also be the same. Id. at 277.

Failure to exhaust may be excused on the basis that state

process is unavailable, but “state law must clearly foreclose

state court review of unexhausted claims.” Toulson, 987 F.2d at

987.` In addition, the Court of Appeals for the Third Circuit

has stated that, “if a prisoner could establish that the

activities of the state authorities made the prisoner’s resort to

the state procedures in effect unavailable, exhaustion would be

excused.” Mayberry v. Petsock, 821 F.2d 179, 184 (3d Cir.),

cert. denied, 484 U.S. 946 (1987). However, discovery and an

evidentiary hearing should not be made available to a habeas

petitioner who claims relief from the exhaustion rule “unless the

petitioner sets forth facts with sufficient specificity that the

district court may be able, by examination of the allegations and

the response, if any, to determine if further proceedings are

appropriate.” Id. at 186. “[T]he allegations of exhaustion must

9

Case 2:11-cv-00677-FSH Document 16 Filed 02/16/12 Page 9 of 19 PageID: 1879
be at least as specific with respect to the facts allegedly

excusing exhaustion as is required for allegations alleging

constitutional deprivation as the basis for the habeas petition.” 

Id. at 187.

Alternatively, “[a]n application for a writ of habeas corpus

may be denied on the merits, notwithstanding the failure of the

applicant to exhaust the remedies available in the courts of the

State.” 28 U.S.C. § 2254(b)(2). 

Generally, district courts should dismiss petitions

containing unexhausted claims in the absence of a state court

decision clearly precluding further relief, even if it is not

likely that a state court will consider the claims on the merits. 

Rose v. Lundy, 455 U.S. at 522; Banks v. Horn, 126 F.3d 206, 212-

14 (3d Cir. 1997); see also Toulson, 987 F.2d at 989 (“Because no

[New Jersey] court has concluded that petitioner is procedurally

barred from raising his unexhausted claims and state law does not

clearly require a finding of default, we hold that the district

court should have dismissed the petition without prejudice for

failure to exhaust state remedies”). But see Christy v. Horn,

115 F.3d 201, 206-07 (3d Cir. 1997) (“in rare cases exceptional

circumstances of peculiar urgency may exist which permit a

federal court to entertain an unexhausted claim”). 

Because the one-year statute of limitations enacted by AEDPA

in 1996 is not statutorily tolled by the premature filing of a

10

Case 2:11-cv-00677-FSH Document 16 Filed 02/16/12 Page 10 of 19 PageID: 1880
federal habeas petition, see Duncan v. Walker, 533 U.S. 167

(2001), federal courts sometimes may stay § 2254 habeas

proceedings to permit prisoners to exhaust state claims. 

Petitioner has not requested such a stay. 

The exhaustion requirement is a “total exhaustion” rule;

that is, all claims presented in the federal habeas petition must

have been exhausted in state court. Rose v. Lundy, 455 U.S. 509

(1982). At the time Lundy was decided, there was no statute of

limitation on the filing of federal habeas petitions. The

enactment in 1996 of a one-year limitations period for § 2254

habeas petitions, however, “‘has altered the context in which 2

the choice of mechanisms for handling mixed petitions is to be

made.’” Crews v. Horn, 360 F.3d 374, 379 (2d Cir. 2011), cert.

denied, 534 U.S. 1015 (2001)). Because of the one-year

limitations period, dismissal of a timely-filed mixed petition

may forever bar a petitioner from returning to federal court. 

“Staying a habeas petition pending exhaustion of state remedies

is a permissible and effective way to avoid barring from federal

court a petitioner who timely files a mixed petition.” Crews,

360 F.3d at 151. The Court of Appeals for the Third Circuit has

held that “when an outright dismissal could jeopardized the

timeliness of a collateral attack, a stay is the only appropriate

course of action.” Crews, 360 F.3d at 154. 

 See 28 U.S.C. § 2244(d). 2

11

Case 2:11-cv-00677-FSH Document 16 Filed 02/16/12 Page 11 of 19 PageID: 1881
The Supreme Court has somewhat limited the stay-and-abeyance

rule announced in Crews. 

[S]tay and abeyance should be available only in limited

circumstances. Because granting a stay effectively excuses

a petitioner’s failure to present his claims first to the

state courts, stay and abeyance is only appropriate when the

district court determines there was good cause for the

petitioner’s failure to exhaust his claims first in state

court. Moreover, even if a petitioner had good cause for

that failure, the district court would abuse its discretion

if it were to grant him a stay when his unexhausted claims

are plainly meritless.

...

On the other hand, it likely would be an abuse of

discretion for a district court to deny a stay and to

dismiss a mixed petition if the petitioner had good cause

for his failure to exhaust, his unexhausted claims are

potentially meritorious, and there is no indication that the

petitioner engaged in intentionally dilatory litigation

tactics. In such circumstances, the district court should

stay, rather than dismiss, the mixed petition. ... For the

same reason, if a petitioner presents a district court with

a mixed petition and the court determines that stay and

abeyance is inappropriate, the court should allow the

petitioner to delete the unexhausted claims and to proceed

with the exhausted claims if dismissal of the entire

petition would unreasonably impair the petitioner’s right to

obtain federal relief. 

Rhines v. Weber, 544 U.S. 269, 277-78 (2005) (citations omitted).

Even where a stay and abeyance is appropriate, the district

court’s discretion in structuring the stay is limited by the

timeliness concerns reflected in the one-year statute of

limitations. “Thus, district courts should place reasonable time

limits on a petitioner’s trip to state court and back.” Id. at

278. See also Crews, 360 F.3d at 154 (“If a habeas petition is

stayed, the petitioner should be given a reasonable interval,

12

Case 2:11-cv-00677-FSH Document 16 Filed 02/16/12 Page 12 of 19 PageID: 1882
normally 30 days, to file his application for state postconviction relief, and another reasonable interval after the

denial of that relief to return to federal court. If a

petitioner fails to meet either time-limit, the stay should be

vacated nunc pro tunc.”)(citations omitted).

Here, Petitioner failed to exhaust his claims related to

excessive sentence, as it appears that he did not raise a

substantially equivalent similar claim during the state remedy

process. In fact, none of the three Appellate Division opinions

address any issues related to sentencing. Thus, Petitioner has

presented this Court with a “mixed” petition, but has not

requested a stay, nor has he presented any facts or argument

suggesting that there is good cause for his failure to exhaust

his state remedies. Although Petitioner asserts ineffective

assistance of counsel, that claim only raises a specific issue in

which Petitioner claims trial counsel was ineffective due to

failure to call a certain witness to testify at trial and is not

related to any challenge, or lack thereof, to an excessive

sentence. Accordingly, there is no reason to stay this matter to

permit Petitioner to exhaust his unexhausted claims. Thus, the

Petition may be dismissed as a “mixed” petition. 

Further, there is no reason to ask Petitioner if he would

like to withdraw his unexhausted claims and proceed with the

exhausted claims, as the sole exhausted claim that asserts a

13

Case 2:11-cv-00677-FSH Document 16 Filed 02/16/12 Page 13 of 19 PageID: 1883
ground for federal habeas relief, the claim of ineffective

assistance of trial counsel, is plainly meritless, as set forth

below. 

The Court notes, however, that in the alternative, even if

Petitioner had exhausted his remedies regarding ground two,

relief on that ground would not be available to him.

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

enhanced by indigencies.” See Grecco v. O’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 Pringle v. Court of Common Pleas,

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

Estelle v. McGuire, 502 U.S. 62, 67 (1991).

“The Eighth Amendment, which forbids cruel and unusual

punishments, contains a ‘narrow proportionality principle’ that

‘applies to noncapital sentences.’” Ewing v. California, 538

U.S. 11, 20 (2003) (citations omitted). The Supreme Court has

identified three factors that may be relevant to a determination

of whether a sentence is so disproportionate to the crime

committed that it violates the Eighth Amendment: “(1) the

gravity of the offense and the harshness of the penalty; (ii) the

14

Case 2:11-cv-00677-FSH Document 16 Filed 02/16/12 Page 14 of 19 PageID: 1884
sentences imposed on other criminals in the same jurisdiction;

and (iii) the sentences imposed for commission of the same crime

in other jurisdictions.” Solem v. Helm, 463 U.S. 277, 292

(1983). Additionally, Justice Kennedy has explained that Solem

does not mandate comparative analysis within and between

jurisdictions, see Harmelin v. Michigan, 501 U.S. 957, 1004-05

(Kennedy, J., concurring in part and concurring in judgment), and

he has identified four principles of proportionality review--“the

primacy of the legislature, the variety of legitimate penological

schemes, the nature of our federal system, and the requirement

that proportionality review be guided by objective factors”--that

“inform the final one: The Eighth Amendment does not require

strict proportionality between crime and sentence. Rather, it

forbids only extreme sentences that are ‘grossly

disproportionate’ to the crime,” id. at 1001 (citation omitted)

quoted with approval in Ewing, 538 U.S. at 23.

Here, Petitioner’s challenge to the state court’s sentencing

would not be reviewable in this Court; he has presented no cogent

argument why his sentence is unconstitutional. This Court finds

that Petitioner’s sentence is not “grossly disproportionate” to

the crime he committed and as such, even had he exhausted his

remedies related to this issue, would not be entitled to relief

on this ground. 

15

Case 2:11-cv-00677-FSH Document 16 Filed 02/16/12 Page 15 of 19 PageID: 1885
B. Ineffective Assistance of Trial Counsel

Petitioner alleges that he did not receive effective

assistance of trial counsel, related only to the assertion that

his trial counsel failed to call a certain witness, Bayshiel

Martin, or conduct an investigation regarding that individual. 

This issue was thoroughly examined below. During PCR, the

Appellate Division remanded to the trial court for an evidentiary

hearing on this issue. Subsequent to the evidentiary hearing,

the trial court found that counsel had not been ineffective. The

Appellate Division then affirmed that finding. 

As to this issue, the Appellate Court held:

The gist of Gray’s appeal is that the PCR judge

erroneously concluded that Seelenfreund and Ignatoff were

not ineffective during the trial and post-trial proceedings,

arguing that they were in fact ineffective because they

failed to present Martin’s purported exculpatory evidence. 

Our review of the record, in light of our standard of

review, convinces us otherwise. 

There was evidence in the record, found to be credible

by the PCR judge, that Gray did not provide sufficient

information to Seelenfreund to enable him to contact Martin

directly, and that, in fact, Gray undertook to procure

Martin’s attendance at a time when he was not incarcerated. 

There is also credible evidence that Martin did not appear

at the courthouse until the testimony had been completed,

the jury had been charged, and the jury’s deliberations were

underway. Finally, there was evidence to support

Seelenfreud’s opinion that Martin “didn’t appear to be the

most forthcoming witness” and that he was “reluctant to

divulge information.” 

(Answer, Ex. Ra10, Opinion of Appellate Division at 18 (March 31,

2010)).

16

Case 2:11-cv-00677-FSH Document 16 Filed 02/16/12 Page 16 of 19 PageID: 1886
The Counsel Clause of the Sixth Amendment provides that a

criminal defendant “shall enjoy the right ... to have the

Assistance of Counsel for his defence.” U.S. Const. amend. VI. 

The right to counsel is “the right to effective assistance of

counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)

(emphasis added).

To prevail on a claim of ineffective assistance of counsel,

a habeas petitioner must show both that his counsel’s performance

fell below an objective standard of reasonable professional

assistance and that there is a reasonable probability that, but

for counsel’s unprofessional errors, the outcome would have been

different. Strickland v. Washington, 466 U.S. 668, 687, 694

(1984). A “reasonable probability” is “a probability sufficient

to undermine confidence in the outcome.” Strickland 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.

The performance and prejudice prongs of Strickland may be

addressed in either order, and “[i]f it is easier to dispose of

an ineffectiveness claim on the ground of lack of sufficient

prejudice ... that course should be followed.” Id. at 697.

17

Case 2:11-cv-00677-FSH Document 16 Filed 02/16/12 Page 17 of 19 PageID: 1887
There is “a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.” 

Strickland, 466 U.S. at 689. As a general matter, strategic

choices made by counsel after a thorough investigation of the

facts and law are “virtually unchallengeable,” though strategic

choices “made after less than complete investigation are

reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation.” Id. at 690-

91. If counsel has been deficient in any way, however, the

habeas court must determine whether the cumulative effect of

counsel’s errors prejudiced the defendant within the meaning of

Strickland. See Berryman v. Morton, 100 F.3d 1089, 1101-02 (3d

Cir. 1996).

Here, the state courts’ findings were based upon application

of the correct Strickland standard. The state court decisions

were neither contrary to, nor involved an unreasonable

application of, clearly established federal law, nor were they

based upon an unreasonable determination of the facts in light of

the evidence presented. Petitioner is not entitled to relief on

this claim. 

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.

18

Case 2:11-cv-00677-FSH Document 16 Filed 02/16/12 Page 18 of 19 PageID: 1888
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.” 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 shall issue.

V. CONCLUSION

For the reasons set forth above, the Petition must be

denied. In his traverse, Petitioner made a request to be

appointed counsel for representation for the remainder of the

case. As the case will now be dismissed, the request for counsel

is denied as moot. An appropriate order follows.

s/ Faith S. Hochberg 

Faith S. Hochberg

United States District Judge

Dated: February 16, 2012 

19

Case 2:11-cv-00677-FSH Document 16 Filed 02/16/12 Page 19 of 19 PageID: 1889