NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

:

SAUL HERNANDEZ, :

:

Petitioner, :

:

v. :

:

GREG BARTKOWSKI et al., :

:

Respondents. :

 :

Civil Action No. 11-1049 (FLW)

O P I N I O N

WOLFSON, District Judge:

Petitioner Saul Hernandez (“Petitioner”) filed a Petition for a Writ of Habeas Corpus

pursuant to 28 U.S.C. § 2254(a) challenging a judgment of conviction entered by the Superior

Court of New Jersey upon Petitioner’s guilty plea. See Docket Entries No. 1 and 4 (original and

amended Petitions). Following this Court’s order advising Petitioner of his rights under Mason

v. Meyers, 208 F.3d 414 (3d Cir. 2000), Respondents were directed to file an answer and duly

complied, and Petitioner traversed. See Docket Entries Nos. 2, 5, 9-17. 

For the reasons expressed below, the Court will dismiss the Petition with prejudice and

will decline to issue a certificate of appealability. See 28 U.S.C. §§ 2253(c), 2254(a), (b), (c).

I. BACKGROUND

The factual predicate underlying Petitioner’s conviction follows: on March 15, 2003,

Petitioner was in a park in Old Bridge, New Jersey, with a certain Ms. Irene Luengas, with

whom Petitioner had had a romantic relationship. During that park outing, Ms. Luengas made

certain comments about Petitioner, Petitioner’s family and Petitioner’s car; apparently, these

Case 3:11-cv-01049-FLW Document 18 Filed 07/17/12 Page 1 of 17 PageID: 534
comments upset Petitioner, who punched Ms. Luengas in the neck three times, causing her to

fall. Immediately thereafter, he went to his car, retrieved a couple of ropes and tied them, one

after another, around Ms. Luengas’ neck, intentionally causing her asphyxiation. Ms. Luengas

died from these injuries, and Petitioner was charged with first-degree murder, first-degree

aggravated sexual assault and possession of a weapon for an illegal purpose. He pled guilty to

the first-degree murder charge pursuant to a plea agreement negotiated between his defense

counsel and the State. See, generally, Docket Entries Nos. 12-3 (Petitioner’s PCR brief) and 13-

1 (State’s PCR brief). 

Petitioner’s original Petition asserted only two grounds, namely: (1) “Petitioner[’s] Sixth

Amendment right to [effective assistance of] counsel was violated [because, although] an

interpreter was appointed [to assist Petitioner (since] Petitioner speaks Spanish), th[at]

interpreter was not utilized translating English into Spanish[,] so Petitioner [was not] fully

informed and able to comprehend what took place during the plea [proceedings in] open court”;

and (2) “Petitioner should have been given an evidentiary hearing [as to effectiveness of his]

counsel[’s] . . . assistance [during the PCR proceedings when Petitioner raised the aforesaid

insufficient interpretation challenges].” Docket Entry No. 1-2, at 6-7. Petitioner’s amended

Petition, a fifty-one page submission, added a multitude of additional claims in addition to

reasserting challenges to defense counsel’s performance based on the allegedly insufficient

assistance of the interpreter, and that Petitioner should have been afforded an evidentiary hearing

during his PCR proceedings. Petitioner also asserts, inter alia, that the trial judge abused his

discretion by imposing the sentence recommended by the prosecutor and expressly agreed to by

Petitioner and his defense counsel, that the prosecutor committed misconduct, that the sentence

2

Case 3:11-cv-01049-FLW Document 18 Filed 07/17/12 Page 2 of 17 PageID: 535
imposed upon Petitioner was illegally lengthy, that Petitioner was denied his right to a fair trial,

that Petitioner’s counsel failed to investigate either the benefits or the existence of the factual

predicate needed for assertion of an “intoxication” defense.1

 See, generally, Docket Entry No. 4.

Respondents’ answer focused solely on the two grounds asserted in the original Petition

and recited in the amended Petition (i.e., the sufficiency of the interpretation and the denial of an

evidentiary hearing during Petitioner’s PCR). See Docket Entry No. 16. Petitioner’s traverse

expressed disagreements with the gist of Respondents’ position as to these issues and, in

addition, asserted that Respondents “failed to prosecute” their case by failing to comply with the

Court’s order in not addressing the other grounds recited in his Petition. See Docket Entry No.

17.

II. STANDARD OF REVIEW

Section 2254(a) of Title 28 of the United States Code gives the court jurisdiction to

entertain a habeas petition challenging a state conviction or sentence only where the inmate’s

custody violates federal law:

[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). 

“In conducting habeas review, a federal court is limited to deciding whether a conviction

violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S.

62, 67-68 (1991); 28 U.S.C. § 2254(a); accord Barry v. Bergen County Probation Dept., 128

1

 The Court presumes Petitioner’s desire to refer to the diminished capacity defense.

3

Case 3:11-cv-01049-FLW Document 18 Filed 07/17/12 Page 3 of 17 PageID: 536
F.3d 152, 159 (3d Cir. 1997). “Federal courts hold no supervisory authority over state judicial

proceedings and may intervene only to correct wrongs of constitutional dimension.” Smith v.

Phillips, 455 U.S. 209, 221 (1982). “If a state prisoner alleges no deprivation of a federal right, §

2254 is simply inapplicable. It is unnecessary in such a situation to inquire whether the prisoner

preserved his claim before the state courts.” Engle v. Isaac, 456 U.S. 107, 120 n.19 (1982). 

“[E]rrors of state law cannot be repackaged as federal errors simply by citing the Due Process

Clause.” Johnson v. Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997). Moreover, "it is well

established that a state court's misapplication of its own law does not generally raise a

constitutional claim." Smith v. Horn, 120 F.3d 400, 414 (3d Cir. 1997) (citation omitted); see

also Smith v. Zimmerman, 768 F.2d 69, 71, 73 (3d Cir. 1985). 

A district court must give deference to determinations of state courts. Duncan v. Morton,

256 F.3d 189, 196 (3d Cir.), cert. denied, 534 U.S. 919 (2001); Dickerson v. Vaughn, 90 F.3d 87,

90 (3d Cir. 1996). Federal courts “must presume that the factual findings of both state trial and

appellate courts are correct, a presumption that can only be overcome on the basis of clear and

convincing evidence to the contrary.” Stevens v. Delaware Correctional Center, 295 F.3d 361,

368 (3d Cir. 2002). Where a federal claim was “adjudicated on the merits” 2

 in state court

proceedings, § 2254 does not permit habeas relief unless 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

 “An ‘adjudication on the merits’ has a well settled meaning: a decision finally resolving

the parties' claims, with res judicata effect, that is based on the substance of the claim advanced,

rather than on a procedural, or other, ground.” Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir.

2001). A state court may render an adjudication or decision on the merits of a federal claim by

rejecting the claim without any discussion whatsoever. 

4

Case 3:11-cv-01049-FLW Document 18 Filed 07/17/12 Page 4 of 17 PageID: 537
(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 decision is “‘contrary to’ a Supreme Court holding if the state court ‘contradicts the

governing law set forth in [the Supreme Court's] cases’ or if it ‘confronts a set of facts that are

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

[different] result.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the “‘unreasonable

application’ clause, a federal habeas court may grant the writ if the state court identifies the

correct governing legal principle from th[e Supreme] Court’s decisions but unreasonably applies

that principle to the facts of the prisoner’s case.” Id. at 413. Whether a state court’s application

of federal law is “unreasonable” must be judged objectively; an application may be incorrect, but

still not unreasonable. Id. at 409-10. A court begins the analysis by determining the relevant

clearly established law. See Yarborough v. Alvarado, 541 U.S. 652, 660 (2004). Clearly

established law “refers to the holdings, as opposed to the dicta, of [the Supreme Court’s]

decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. 

III. DISCUSSION

A. Petitioner’s Plea

The standard for determining the validity of a guilty plea is “whether the plea represents

a voluntary [and] intelligent choice among the alternative courses open to the defendant.” North

Carolina v. Alford, 400 U.S. 25, 31 (1970); see also Boykin v. Alabama, 395 U.S. 238, 242

(1969). “Several federal constitutional rights are involved in a waiver that takes place when a

plea of guilty is entered in a state criminal trial[,]” including the defendant’s privilege against

compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers.

5

Case 3:11-cv-01049-FLW Document 18 Filed 07/17/12 Page 5 of 17 PageID: 538
Boykin, 395 U.S. at 243. The voluntariness and intelligence of one’s decision to accept a plea is

determined by “considering all of the relevant circumstances surrounding it.” Brady v. United

States, 397 U.S. 742, 749 (1970). Relevant circumstances include the petitioner’s statements

during the plea colloquy:

[T]he representations of the defendant, his lawyer, and the prosecutor at [the plea]

hearing, as well as any findings made by the judge accepting the plea, constitute a

formidable barrier in any subsequent collateral proceedings. Solemn declarations

in open court carry a strong presumption of verity. The subsequent presentation

of conclusory allegations unsupported by specifics is subject to summary

dismissal, as are contentions that in the face of the record are wholly incredible.

Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).

Importantly, once a voluntary and intelligent guilty plea has been entered by a criminal

defendant, all other non-jurisdictional defects in the proceedings prior to the plea are waived,

including all claims of “denial of fair trial,” inadequacies in conduct of the presiding tribunal,

ineffective assistance of counsel – “except insofar as such inadequacies or ineffectiveness is

alleged to have rendered the guilty plea itself “involuntary” and/or “unintelligent.” United States

v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000). As the Supreme Court summarized:

[A] guilty plea represents a break in the chain of events which has preceded it in

the criminal process. When a criminal defendant has solemnly admitted in open

court that he is in fact guilty of the offense with which he is charged, he may not

thereafter raise independent claims relating to the deprivation of constitutional

rights that occurred prior to the entry of the guilty plea. He may only attack the

voluntary and intelligent character of the guilty plea by showing that the advice

he received from counsel was not within the standards set forth in McMann.

Tollett v. Henderson, 411 U.S. 258, 267 (1973) (referring to McMann v. Richardson, 397 U.S.

759 (1970)). 

Thus, when a petitioner challenges the voluntariness and/or intelligence of his/her plea

based upon allegations of ineffective assistance of counsel, the two-prong standard set forth in

6

Case 3:11-cv-01049-FLW Document 18 Filed 07/17/12 Page 6 of 17 PageID: 539
Strickland v. Washington, 466 U.S. 668 (1984), applies. See Hill v. Lockhart, 474 U.S. 52, 58

(1985); see also Premo v. Moore, 131 S. Ct. 733, 737-38 (2011) (identifying Strickland as the

clearly established federal law governing a habeas petitioner’s challenge to his conviction

obtained through a plea bargain). To obtain relief under Strickland, a petitioner must establish

that: (1) “counsel’s representation fell below an objective standard of reasonableness,” and (2)

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694.

In a plea situation, the focus of Strickland’s performance prong is “whether counsel’s

advice ‘was within the range of competence demanded of attorneys in criminal cases.’” Hill,

474 U.S. at 56-57 (quoting McMann, 397 U.S. at 771). “Judicial scrutiny of counsel’s

performance must be highly deferential,” and courts should make every effort to “eliminate the

distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,

and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at

689. Representation is ineffective only if counsel commits “serious derelictions” of his duty

when advising the accused. See Stano v. Dugger, 921 F.2d 1125, 1150-51 (11th Cir. 1991).3

To meet Strickland”s prejudice prong in a plea situation, a petitioner must establish that

“counsel's constitutionally ineffective performance affected the outcome of the plea process.”

3

 See also, Strickland, 466 U.S. at 689 (“Because of the difficulties inherent in making

the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action might be considered sound trial

strategy”); Thomas v. Varner, 428 F. 3d 491, 499 (3d Cir. 2005) (“To overcome the Strickland

presumption that, under the circumstances, a challenged action might be considered sound trial

strategy, a habeas petitioner must show either that: (1) the suggested strategy (even if sound) was

not in fact motivating counsel or, (2) that the actions could never be considered part of a sound

strategy”).

7

Case 3:11-cv-01049-FLW Document 18 Filed 07/17/12 Page 7 of 17 PageID: 540
Hill, 474 U.S. at 59. “It is not enough for [petitioner] to show that the errors had some

conceivable effect on the outcome of the proceeding.” Strickland, 466 U.S. at 693. Rather, the

petitioner must demonstrate a reasonable probability that, but for counsel’s errors, (s)he would

not have pled guilty at all and would have insisted on going to trial. See Hill, 474 U.S. at 58-59.

“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 130 S. Ct. 1473,

1485 (2010). “Establishing that a state court’s application of Strickland was unreasonable under

§ 2254(d) is all the more difficult.” Richter, 131 S. Ct. at 788. As the Richter Court explained:

The standards created by Strickland and § 2254(d) are both “highly deferential,”

and when the two apply in tandem, review is “doubly” so. The Strickland

standard is a general one, so the range of reasonable applications is substantial.

Federal habeas courts must guard against the danger of equating unreasonableness

under Strickland with unreasonableness under § 2254(d). When § 2254(d)

applies, the question is not whether counsel's actions were reasonable. The

question is whether there is any reasonable argument that counsel satisfied

Strickland’s deferential standard.

Id. (citations omitted).4

 

Here, Petitioner asserts that the interpretative English-Spanish/Spanish-English services

provided to him by his the interpreter (who was present and available to Petitioner at all times)

4

 In the recent past, the Supreme Court has examined the intersection of voluntariness

and intelligence of a criminal defendant’s plea agreement and the Strickland standard on

numerous occasions. See, e.g., Premo v. Moore, 131 S. Ct. 733 (holding that an inmate was not

entitled to habeas relief based on ineffective assistance of counsel it was not unreasonable to find

that counsel did not perform deficiently by failing to move to suppress a confession before

advising the inmate to plead guilty or to find no prejudice in light of a second, admissible

confession); compare Lafler v. Cooper, S. Ct. 1376 (2012) (the fact that an inmate received fair

trial did not bear on the possibility of prejudice from counsel's erroneous legal advice which

caused inmate to reject plea bargain). Hence, these decisions stress the long-established twoprong principle namely, that: (a) what had or might have occurred during the trial has no

relevance to the issue of voluntariness and intelligence of a criminal defendant’s decision to take

or reject a plea; and (b) a viable challenge to one’s decision to take a plea must be based on a

showing that, absent counsel’s errors, the defendant would have not pled guilty at all. See Hill,

474 U.S. at 58-59.

8

Case 3:11-cv-01049-FLW Document 18 Filed 07/17/12 Page 8 of 17 PageID: 541
and by his bilingual counsel were not as perfect as Petitioner would have desired, and these

imperfections might have prevented Petitioner from understanding the implications of his plea

“fully.” However, Petitioner’s subjective beliefs to that effect do not and cannot serve as a valid

basis for his habeas challenges.5

 

The record shows that, during his plea proceedings, Petitioner acknowledged that his

counsel discussed with him the plea, paragraph by paragraph, that this discussion was conducted

in Spanish and the trial court made a factual finding that Petitioner’s counsel did, indeed, speak

fluent Spanish and that Spanish was his counsel’s native language.6 

5

 The deficiency of Petitioner’s position is most evident from review of a rather recent

Court of Appeals case, Pabon v. Mahanoy, 654 F.3d 385 (3d Cir. 2011). Pabon involved

prisoner Pabon’s appeal of the dismissal of his pro se habeas petition as untimely, wherein Pabon

argued that his complete inability to speak, read, or write English, coupled with the prison’s

absolute lack of Spanish-language legal materials and repeated denials of any translation

materials, were extraordinary circumstances warranting equitable tolling. After articulating the

general holding that a petitioner’s :inability to read or understand English, combined with

[complete] denial of access to translation or legal assistance, can constitute extraordinary

circumstances that trigger equitable tolling,” id. at 400, the Court of Appeals reversed the

dismissal of Pabon's petition as time-barred, since “he . . . was repeatedly denied legal materials

in Spanish or translation assistance.” Pabon, 654 F.3d at 401. The holding of Pabon, thus,

clearly establishes that: (a) one’s inability to speak, read, or write English might be relevant to

one’s Section 2254 challenges; but (b) such relevance could exist only if the litigant is either

denied all assistance in his/her native tongue or the assistance is so minimal that it is virtually

absent. See, e.g., Lopez v. Phelps, 2011 U.S. Dist. LEXIS 135980 (D. Del. Nov. 28, 2011)

(denying equitable tolling because “”Lopez does not contend that he was denied access to

translation of such materials. In fact, the documents filed in this proceeding and in his state

collateral proceedings are in English and well-written, indicating that Lopez was either proficient

enough in the English language to complete the filings himself or that he received assistance in

translating the English materials to Spanish and in drafting his filings in English”). Here,

Petitioner’s claims turn not on the assertion that he was completely ignorant of and could not

comprehend the events of his plea proceedings; rather, he claims that he did not understand the

intricacies of what was going on “fully” because the Spanish-English/English-Spanish

interpretation provided to him was imperfect.

6

 A district court must give deference to factual determinations of state courts. See

(continued...)

9

Case 3:11-cv-01049-FLW Document 18 Filed 07/17/12 Page 9 of 17 PageID: 542
Moreover, during his plea colloquy, Petitioner responded to defense counsel in English,

showing sufficient command of English for the purposes of admitting the facts underlying his

conviction. Specifically, the following statements were made under oath:

Defense Counsel: Saul Hernandez, you’re pleading guilty to murder in the

first degree?

Petitioner: Yes.

Defense Counsel: And that carries a maximum life sentence, which is 72

years, with 85 percent, which would mean approximately

67 years incarcerated. And the maximum fines are

$200,000 . . . . You understand that, correct?

Petitioner: Yes.

Defense Counsel: You understand that you’re going to have to tell the judge

what you did; you’re going to have to – you’re going to

have a conviction; you’re giving up the right to remain

silent; to confront witnesses; and to have a trial in this

courtroom?

Petitioner: Yes.

. . .

Defense Counsel: Now, we’ve spoken today for at least an hour, correct?

Petitioner: Yes.

Defense Counsel: We spoke the last time you were in court in May, correct?

Petitioner: Yes.

Defense Counsel: And you are entering this guilty plea freely and voluntarily,

correct?

Petitioner: Yes.

Defense Counsel: If you recall, the date of March 15th, 2003 . . . 

Petitioner: Yes.

Defense Counsel: . . . in Old Bridge in the park, were you with Irene

Luengas?

Petitioner: Yes.

6

(...continued)

Duncan v. Morton, 256 F.3d 189, 196 (3d Cir.), cert. denied, 534 U.S. 919 (2001); Dickerson v.

Vaughn, 90 F.3d 87, 90 (3d Cir. 1996). Federal courts “must presume that the factual findings of

both state trial and appellate courts are correct, a presumption that can only be overcome on the

basis of clear and convincing evidence to the contrary.” Stevens v. Delaware Correctional

Center, 295 F.3d 361, 368 (3d Cir. 2002); see also Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir.

2000) (same, citing U.S.C. section 2254(e)(1)). Here, Petitioner does not offer this Court any

clear and convincing evidence that his defense counsel was not fluent in Spanish: all he offers is

his self-serving belief that his defense counsel’s Spanish was not as perfect as Petitioner desired. 

10

Case 3:11-cv-01049-FLW Document 18 Filed 07/17/12 Page 10 of 17 PageID: 543
Defense Counsel: And you got in an argument, is that correct?

Petitioner: Yes.

Defense Counsel: And basically you punched her in the neck?

Petitioner: Yes.

Defense Counsel: Punched her three times in the neck, correct?

Petitioner: Yes.

Defense Counsel: And she fell?

Petitioner: Yes.

Defense Counsel: And you went to your car and got rope and some other

rubber rope, correct?

Petitioner: Yes.

Defense Counsel: And basically what you did was you tied one of the ropes

around her neck, correct?

Petitioner: Yes.

Defense Counsel: And what else did you do? Why did you tie the rope

around her neck?

Petitioner: Because we had an argument and well – well, we

had – I killed her, you know.

Defense Counsel: The reason why you tied the rope is because you wanted to

ensure and it was your intent to kill her?

Petitioner: Yes.

Defense Counsel: And you understand that by putting the rope around her

neck, she would be asphyxiated?

Petitioner: Yes.

Defense Counsel: And you also put another rope where?

Petitioner: Same, the neck.

Defense Counsel: Okay. And it covered the chin area, correct?

Petitioner: Yes.

Id. at 2-5.

The plea transcript further reflects that the Prosecutor asked additional questions

regarding Petitioner’s understanding of the plea form, and that Petitioner agreed that defense

counsel translated the plea form from English into Spanish:

Prosecutor: [Your defense counsel] went over the plea form with you,

correct?

Petitioner: Yes.

Prosecutor: And [your defense counsel] spoke to you in Spanish,

correct?

Petitioner: Yes, yes.

11

Case 3:11-cv-01049-FLW Document 18 Filed 07/17/12 Page 11 of 17 PageID: 544
Prosecutor: [Asking both Petitioner and Petitioner’s defense counsel]

And for the record, [your defense counsel] speaks fluent

Spanish, correct?

Defense counsel: That’s correct.

Trial Judge: The Court acknowledges [the fact] that [Petitioner’s

defense counsel] speaks fluent Spanish. That is one of her

[native] languages. . . .

Prosecutor: So when [your defense counsel] went through the questions

with you, she translated what was written on this [plea

bargain agreement] form from English to Spanish and then

you answered the questions in Spanish, and [your defense

counsel] circled the appropriate English answer, correct?

Petitioner: Yes.

. . .

Trial Judge: The Court is satisfied . . . . For the record, [Petitioner’s

defense counsel is well known as being extremely fluent in

Spanish. Not through school, but because that’s her

background, that’s her nationality, that’s her language.

Docket Entry No. 10-1, at 5-6. 

At no point during his colloquy with his counsel or in answering the Prosecutor’s

additional questions did Petitioner fail or refuse to answer a question, nor did he suggest that he

was confused or unable to understand, partly or fully, any of the questions. Yet, now, as he did

during his state PCR proceedings, Petitioner alleges that he did not understand the colloquy. 

Despite his professed understanding on the day of the colloquy that he could be sentenced to life

imprisonment, he now asserts that he was hopeful that his trial judge might impose a sentence

less than thirty years with a thirty-year parole disqualifier (which sentence was agreed to as a

condition to the plea). See Docket Entries Nos. 13-2 and 13-3. 

Petitioner made this same argument in his PCR application and that argument was denied

by the trial court. The Appellate Division affirmed the trial court’s decision, stating as follows:

[Petitioner] has not shown either prong of the Strickland v. Washington’ standard

for determining ineffective assistance of counsel. . . . [Petitioner’s] allegation that

he did not receive accurate information about his exposure [to thirty years with a

12

Case 3:11-cv-01049-FLW Document 18 Filed 07/17/12 Page 12 of 17 PageID: 545
thirty-year parole disqualifier] is belied by the record. Although [Petitioner]

claims that he needed an interpreter [to detail this issue to him further], the plea

transcript indicates that he understood all aspects of the plea. He did not show

signs of confusion or lack of understanding. He first raised this issue almost five

years after the entry of the plea and sentence.

Docket Entry No. 14-3, at 3, certif. denied, Docket Entry No. 15-4 (replicating the decision by

the Supreme Court of New Jersey).

The state courts’ determination was not an unreasonable application of Supreme Court

precedent. The cumulative circumstances gleaned from the record verify that Petitioner’s plea

was both voluntary and intelligent within the meaning of either prong of Strickland: Petitioner

had an interpreter at his disposal at all times, but the interpreter’s services did not have to be

utilized since his counsel was bilingual and natively fluent in Petitioner’s tongue. Petitioner

verified his understanding of the plea time and again, and Petitioner displayed no signs of

misunderstanding, uncertainty or confusion. Therefore, Petitioner failed to show any errors in

his counsel’s conduct suggesting that Petitioner would have rejected the plea had he been given

“more translations” and would have insisted on proceeding to trial. 

At most, his Petition shows his dissatisfaction in not receiving a shorter sentence than

that negotiated by the prosecutor and defense counsel, and adopted by the trial judge. However,

such remorse cannot serve as a basis for a viable claim. See, e.g., Roche v. Ricci, 2009 U.S.

Dist. LEXIS 61136 (D.N.J. July 16, 2009) (“This Court agrees with the state courts that

Petitioner's claims regarding his guilty plea are without merit. A review of the plea transcript

demonstrates that Petitioner entered the plea knowing and voluntarily, and that the factual

statement in support of the plea was sufficient. Petitioner was provided a Spanish interpreter. 

Upon counsel's questioning, Petitioner admitted shooting the victim five or six times with a

13

Case 3:11-cv-01049-FLW Document 18 Filed 07/17/12 Page 13 of 17 PageID: 546
pistol. Petitioner stated that he understood everything, understood the sentence, and understood

that he was waiving his right to trial”); Colon v. Ericson, 2008 U.S. Dist. LEXIS 115480 (E.D.

Pa. Oct. 15, 2008) (“petitioner failed to satisfy the deficient performance prong of the standard

for ineffective assistance of counsel. In addition, petitioner is unable to demonstrate that there is

a ‘reasonable probability that, but for counsel’s alleged errors [ensuing from petitioner’s claims

of imperfect interpretation], he would not have pleaded guilty and would have insisted on going

to trial’”); Colon v. Moore, 2005 U.S. Dist. LEXIS 36443 (D.N.J. Dec. 27, 2005) (“Petitioner's

claim that he was not able to understand his attorney, nor the advice provided by said counsel

because the attorney did not speak Spanish is entirely devoid of any merit. In fact, an interpreter

was appointed by this court exactly for that purpose, namely, to eliminate any doubt that the

defendant fully understood his constitutional rights prior to ultimately entering his guilty plea”); 

Rosario v. New Jersey, 2005 U.S. Dist. LEXIS 33452 (D.N.J. Dec. 13, 2005) (“given the totality

of circumstances, the Court concludes that the guilty plea was entered voluntarily and with the

requisite knowledge and understanding of its consequences”); Paulino v. Lavan, 2005 U.S. Dist.

LEXIS 46335 (E.D. Pa. May 25, 2005) (“This court finds that the state court appropriately

concluded that trial counsel was not ineffective for failing to request or procure an interpreter 

for his client. Petitioner spoke to the court, at length, without the assistance of an interpreter,

thus, demonstrating basic English comprehension”); Choi Kim v. Klem, 2003 U.S. Dist. LEXIS

27805 (E.D. Pa. July 31, 2003) (“In the present case, in concluding that petitioner's claims did

not warrant post conviction relief, the Superior Court found that petitioner was fully advised of

the consequences of pleading guilty, through an interpreter, and that petitioner assured the Court

that he was pleading of his own free will”). 

14

Case 3:11-cv-01049-FLW Document 18 Filed 07/17/12 Page 14 of 17 PageID: 547
Therefore, for the purposes of Petitioner’s ineffective assistance of counsel challenges

with regard to his plea, Petitioner’s claims are facially devoid of any factual predicate supporting

these challenges. Accordingly, the Court must dismiss his challenge to his plea, since the state

counts’ findings were not unreasonable applications of the governing Supreme Court precedent.7

B. Evidentiary Hearing

Petitioner’s second ground raised in the original Petition asserts that his PCR court erred

by not holding an evidentiary hearing on the issue of the effectiveness of Petitioner’s defense

counsel. However, Petitioner has no federal right to an evidentiary hearing or other relief denied

by a state PCR court: infirmities in a state PCR proceeding do not raise constitutional questions

in a federal habeas action. See Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998) (“what

occurred in the petitioner's collateral proceeding does not enter into the habeas calculation”). 

Since errors in Petitioner’s state PCR proceedings, even if presumed present, were collateral to

his conviction and sentence, they could not give rise to a claim for federal habeas relief. See

7

 The Court also takes notice of Petitioner’s other claims against his trial judge, the

prosecutor and defense counsel. In his amended Petition, Petitioner alleges that his trial judge

“informed [him] of inadequate sentence . . . to ‘force him into submitting a plea of guilty.” 

Docket Entry No. 4, at 38. These challenges, being not presented to state courts, render the

Petition a “mixed” petition subject to dismissal on the grounds of failure to exhaust Petitioner’s

challenges. See Rose v. Lundy, 455 U.S. at 522; Banks v. Horn, 126 F.3d 206, 212-14 (3d Cir.

1997). However, as noted supra, the Court can address even unexhausted challenges if such

challenges are facially meritless, see 28 U.S.C. § 2254(b)(2), as it is the case here. Indeed, the

transcript record recited by Petitioner himself in his amended Petition verified that Petitioner was

informed the exact sentence he was facing (and which he indeed received). See id. at 38-39. 

While Petitioner now tries to characterize the statements made during his plea proceedings as

“ambiguous,” see id. at 39, the transcript itself is crystal clear and evinces no ambiguity of any

sort. See id. Therefore, Petitioner’s allegations, being also devoid of any factual predicate, do

not warrant habeas relief. 

15

Case 3:11-cv-01049-FLW Document 18 Filed 07/17/12 Page 15 of 17 PageID: 548
Hassine, 160 F.3d at 954. Therefore, Petitioner’s challenges based on denial of an evidentiary

hearing are necessarily subject to dismissal for failure to assert a violation of his federal rights. 

C. Remaining Challenges

The foregoing analysis leaves the Court only with Petitioner’s challenges added in his

amended Petition. However, all these challenges are unexhausted (during his direct appeal,

Petitioner challenged only the length of his sentence, while during his PCR proceedings he

challenged only the performance of his defense counsel), hence rendering the Petition subject to

dismissal as “mixed.” Moreover, these challenges are also subject to prejudicial dismissal

pursuant to the Court’s power to resort to the mandate of 28 U.S.C. § 2254(b)(2) (allowing the

Court to address unexhausted facially meritless claims). Since Petitioner entered a guilty plea,

all his challenges other than those asserting that his plea was involuntary/unintelligent are

necessarily barred. See Tollett v. Henderson, 411 U.S. at 267. Therefore, while Petitioner now

desires to assert a score of new claims and strives to relitigate his entire criminal prosecution,

Petitioner cannot do so: his challenges that, inter alia, the prosecutor committed misconduct, that

the sentence imposed upon Petitioner was illegally lengthy, that Petitioner was denied his right

to a fair trial, that Petitioner’s counsel failed to investigate the “intoxication” defense, are

necessarily barred – Petitioner’s guilty plea conclusively bars this Court from conducting review

of any of these matters. In other words, under § 2254(b)(2), these challenges are not cognizable

and necessarily subject to dismissal – regardless of being unexhausted.8

 

8

 Respondents did not clarify the basis for their election not to address the multitude of

Petitioner’s claims added to the original two challenges and comprising the bulk of Petitioner’s

51-page amended Petition. However, the Court assumes that Respondents’ election ensued

expressly from the bar on additional challenges ensuing from Petitioner’s taking a guilty plea

(continued...)

16

Case 3:11-cv-01049-FLW Document 18 Filed 07/17/12 Page 16 of 17 PageID: 549
IV. CERTIFICATE OF APPEALABILITY

The Court denies a certificate of appealability because Petitioner has not made “a

substantial showing of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2). See

Miller-El v. Cockrell, 537 U.S. 322 (2003). 

V. CONCLUSION

Based on the foregoing, the Court dismisses the Petition with prejudice and declines to

issue a certificate of appealability under 28 U.S.C. § 2253(c).

 /s/ Freda L. Wolfson 

Freda L. Wolfson, 

United States District Judge

Dated: July 16, 2012

8

(...continued)

(and, potentially, from Petitioner’s failure to exhaust all these additional challenges). 

Correspondingly, Petitioner’s application to strike Respondents’ answer for “failure to

prosecute” (which application is included in Petitioner’s traverse) is denied, as both are meritless

and moot.

17

Case 3:11-cv-01049-FLW Document 18 Filed 07/17/12 Page 17 of 17 PageID: 550