NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ELIGIO BUENO, :

: Civil Action No. 11-1631(FLW)

Petitioner, :

:

v. : OPINION

:

GREG BARTKOWSKI, :

:

Respondent. :

APPEARANCES:

ELIGIO BUENO, Petitioner pro se

498139/550762-C 

New Jersey State Prison 

P.O. Box 861 

Trenton, New Jersey 08625 

BRIAN DENNIS GILLET, Counsel for Respondent

Middlesex County Prosecutor’s Office

25 Kirkpatrick Street

3 Floor rd

New Brunswick, New Jersey 08901 

WOLFSON, District Judge

Petitioner Eligio Bueno, a prisoner currently confined at New

Jersey State Prison in Trenton, New Jersey, has submitted a

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

The respondent is the Warden of New Jersey State Prison, Greg

Bartkowski. For the reasons stated below, the Petition is denied.

I. BACKGROUND

A. Factual Background

The relevant facts are set forth in the opinion of the

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 1 of 28 PageID: 1654
Superior Court of New Jersey, Appellate Division.1

At approximately 3:30 a.m. on Saturday, June 29, 2002,

Rashiem “Rock” Reed was shot in the head as he stood on

the street in front of 76 Union Street in Carteret. He

was taken to Rahway Hospital, where he died shortly

thereafter. Earlier that morning, Reed had been at

Charlie's Pub with his friend, Javier Gonzalez, playing

pool when defendant arrived at the same location. Reed

was friends with both Gonzalez and defendant.

Reed and defendant played pool, drank some beer, and

talked until the bar closed at 3:00 a.m. After the bar

closed, Reed, Gonzalez, and defendant went to Gonzalez's

house to “have a few drinks and ... hang out in front of

[the] house.” After arriving at Gonzalez's house, they

were joined by another friend, Christian Davis, who was

walking home from a different bar. At the trial, Davis

testified that “people were just talking” for a few

minutes and then defendant said he was leaving. Davis

described what happened next as follows:

Q. And so Bueno got up and said he was

leaving. Then what happens?

A. Well, he shook people['s] hands and then

Rock asked him [do] you know where the

shortcut [is] at. He said no, show me,

something like that, and they walked off.

Q. Did one of them walk off first?

A. They walked together.

Q. Where did they walk to?

A. The front of the next house.

....

Q. How do you know they walked off?

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

1

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 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 2 of 28 PageID: 1655
A. I seen them walk off but I wasn't like

really paying attention to them.

Q. But you did see them walk off.

A. Yes.

Q. Did there come a time when they stopped?

A. Yes.

Q. Did you see what happened then?

A. They were talking. Me and Javier was

talking.

Q. Tell us what happens now.

A. A shot went off.

Q. When the shot went off where were you

looking?

A. I was facing towards Javier.

Q. When the shot went off what did you do?

A. Reaction. I looked to my left. I seen Rock

falling.

Q. What else did you see?

A. I seen Bueno turning away like jogging

like. Then he glanced back at us like he was

tucking something in his waist and kept going.

Q. Did you see what he was tucking in his

waist?

A. No.

....

Q. Did you see Bueno's face after the shot

went off?

A. After the shot, yes. He glanced back and

looked at us I guess like to see if we was

3

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 3 of 28 PageID: 1656
going to do something, or something.

Q. Was there anyone in the area besides

yourself, Javier, Rock and Bueno when the shot

went off?

A. No.

Q. Was there anyone else that you could see on

the street?

A. No.

When Javier Gonzalez was asked to tell the jury what

happened after defendant said he was leaving, Gonzalez

stated: 

Well, Rock asked him are you leaving? He said

yes. I'm going to Brunswick. He gets up and

... Rock told him I'm going to show you a

shortcut. He said where you going? He said I'm

going to the circle. I'm going to show you a

shortcut. He gets up. He shakes my hand. Rock

opens the gate. He started walking. He walks

outside of the gate. He shakes Christian's

hand. So Rock, he was walking down the

sidewalk and Bueno was on his left[-]side

shoulder behind him and I'd say 15 feet I see

Rock pointing to the right direction he was

giving to him and I see Bueno's arm raise up.

He had a black square gun and he shot him. I

heard Rock fall back on his back when he hit

the ground.... We ran towards Rock. Bueno was

jogging. He had tucked his arm under his shirt

and he was looking back and I seen blood just

coming out of Rock's side of the face so I ran

back to the house and I opened the door. I

grabbed the cordless phone and I pressed 911

and I still could see Bueno looking back while

he was jogging....

Within a few minutes of the shooting, Carteret Police

Sergeant Dennis McFadden arrived at the scene, spoke to

Gonzalez, and then went to defendant's home where he

spoke to defendant's father and his sisters. McFadden

asked for and received a photograph of defendant. He was

also given defendant's cell phone and pager numbers.

4

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 4 of 28 PageID: 1657
Defendant elected to testify at his trial, and he denied

shooting Reed. According to defendant, he was ten or

fifteen feet in front of Reed when he heard a loud pop.

When he turned around, defendant saw “Rock on the floor”

and a “black guy” “in a white shirt” was running.

Defendant testified that he ran because “[p]anic just

kicked in.” Defendant took a cab from Carteret to

Plainfield, and then he took a train to New York.

Defendant testified that he did not go home because he

was scared. Before getting on the train, defendant spoke

with his father and sisters on the telephone. When

defendant spoke to his father, he told him “he had a

problem,” and he told his sister, Elibelka, that she was

not going to see him for a few years. Elibelka also

acknowledged telling the police that her brother told

her: “Rock tried to steal money from me and then he tried

to stab me, he cut my shoulders and my arms, and so I had

to shoot him.”

The jury also heard the testimony of Edison Jacquez.

Jacquez and defendant worked together at one of the New

Jersey Turnpike rest stops. According to Jacquez, he gave

defendant a ride home after work on Friday, June 28,

2002. On the ride home, defendant told Jacquez that he

was going to meet a friend named “Ra,” who owed him

several hundred dollars, at a bar. Defendant also said

that if the friend did not have the money, he was going

to “buck” him, which, according to Jacquez, meant shoot

him.

Jacquez told the jury that he spoke to defendant on his

cell phone after hearing about the shooting, and he asked

defendant what happened. According to Jacquez, defendant

told him that he didn't get his money, and he also told

Jacquez, “I got him.”

Defendant was arrested in Newark on July 12, 2002. He had

previously asked a friend to meet him with some money,

but the friend contacted the Carteret Police. When the

police appeared, defendant ran. However, after a short

chase, defendant was apprehended and taken into custody.

In response to defendant's motion for a new trial, the

State argued that “there were two eye witnesses,

admission[s] to family members,” and the evidence of

guilt was “simply over-whelming.” The trial court agreed,

and, based on our independent review of the record, we

concur as well.

5

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 5 of 28 PageID: 1658
Although defendant made no objection at trial, he now

contends a portion of his cross-examination was improper

because it violated his “right to remain silent and

deprived him of his constitutional right to ... a fair

trial.” During cross-examination, the assistant

prosecutor asked defendant about his telephone records

which showed that he received a telephone call at

approximately 4:18 a.m. while he was riding in a cab on

his way to the train station.

Q. 4:12 called that 917 number again. 4:12

they're calling you back. 4:12:18, you see

that entry?

A. Yes.

Q. That's when McFadden called you, right?

A. Yes.

Q. He identified himself as a police officer?

A. Yes.

Q. And he said why don't you come down and

talk to us, something like that?

A. Yes.

Q. And you didn't tell him anything about

witnessing a shooting or anything, right?

A. Well, he told me that there was a shooting

and he wanted me in for questioning and I told

him yes, give me about a half an hour and I'll

be there.

Q. Did that ever happen?

A. No.

Q. Did you ever give a description of this so

called shooter that you saw?

A. No. I didn't want nothing to do with it.

Q. You're still in the cab at this point?

6

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 6 of 28 PageID: 1659
A. Yes.

Q. 4:15 you are on that 917 number again....

[T]hat's McFadden calling you back, correct?

A. Yes, I believe so.

Q. Again you didn't tell him anything about

the shooting at that point, right?

A. I didn't talk to him again after that.

Q. Did you answer the phone if you recall?

A. It probably went into my voice mail. I

don't know.

State v. Bueno, No. A-1394-04, 2006 WL 1492496, at *1-4

(N.J.Super.Ct.App.Div. June 1, 2006.)

B. Procedural History

Following a jury trial, Petitioner was convicted of murder, in

violation of N.J.S.A. 2C:11-3(a)(1)(2); second-degree possession of

a handgun for an unlawful purpose, in violation of N.J.S.A.

2C:39-4(a); and fourth-degree resisting arrest, in violation of

N.J.S.A. 2C:29-2(a)(2). On September 17, 2004, after Petitioner's

conviction for possession of a handgun for an unlawful purpose was

merged into his murder conviction, he was sentenced to fifty-five

years in state prison, subject to an eighty-five percent parole

ineligibility term under the No Early Release Act, N.J.S.A.

2C:43-7.2. The court also imposed a consecutive one-year term for

resisting arrest. (Id. at *1.) 

On November 10, 2004, Petitioner filed his notice of appeal. 

(Resp’t’s Ex. Ra 4, Pet’r’s Notice of Appeal, Docket Entry No. 8-

7

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 7 of 28 PageID: 1660
3.) In his supporting brief, Petitioner raised the following

arguments: 

POINT I: THE PROSECUTOR'S CROSS-EXAMINATION OF ELIGIO

BUENO, WHICH FOCUSED ON BUENO'S FAILURE TO TELL THE

POLICE THAT HE HAD WITNESSED THE SHOOTING OR PROVIDE THE

POLICE WITH A DESCRIPTION OF THE SHOOTER, VIOLATED

BUENO'S RIGHT TO REMAIN SILENT AND DEPRIVED HIM OF HIS

CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR

TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947)

ART. I, PARS. 1, 9, 10. (Not Raised Below.)

POINT II: THE PROSECUTOR ENGAGED IN MISCONDUCT BY

REPEATEDLY CASTIGATING BUENO FOR HIS PURPORTED COWARDICE,

THEREBY DEPRIVING BUENO OF HIS CONSTITUTIONAL RIGHT TO A

FAIR TRIAL. (Not Raised Below.)

POINT III: IN ACCORDANCE WITH BLAKELY V. WASHINGTON,

IMPOSITION OF A 55-YEAR TERM ON THE MURDER CONVICTION

VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY

JURY, PROOF BEYOND A REASONABLE DOUBT, DUE PROCESS OF

LAW, AND RIGHT TO INDICTMENT AND MUST BE VACATED.

POINT IV: THE SENTENCE OF 55 YEARS IS GROSSLY EXCESSIVE.

(Resp’t’s Ex. Ra 20, Pet’r’s Br. Supp. Appeal 2, Docket Entry No.

12-2.) The New Jersey Superior Court, Appellate Division affirmed

his judgment of conviction and sentence in an unreported opinion. 

Bueno, 2006 WL 1492496. 

The New Jersey Supreme Court denied his petition for

certification. State v. Bueno, 188 N.J. 356 (2006). Petitioner

filed his first post-conviction relief (“PCR”) application on

December 12, 2006. (Resp’t’s Ex. Ra 26, Pet’r’s PCR Pet., Docket

Entry No. 13-4.) Following oral argument on October 19, 2007,

Judge Mulvihill, who also presided over Petitioner's jury trial,

stated his reasons for denying the petition in an oral decision. 

8

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 8 of 28 PageID: 1661
(Resp’t’s Ex. Ra 30, PCR Hr’g Tr., Docket Entry No. 14-3.) 

Petitioner appealed, arguing that “the Court committed error by

denying the Appellant’s motion for post-conviction relief by

finding that his allegation that his trial counsel was ineffective

for not objecting to the Prosecutor’s cross-examination on the

Appellant’s pre-arrest silence was barred as having been addressed

on direct appeal.” (Resp’t’s Ex. Ra 33, Pet’r’s Br. Supp. Appeal

10, Docket Entry No. 27-1.) 

The Appellate Division denied his appeal. State v. Bueno, No.

A-4372-07, 2009 WL 3762907, at *2 (N.J.Super.Ct.App.Div. November

6, 2009.) Thereafter, the New Jersey Supreme Court denied

certification. (Resp’t’s Ex. Ra 40, Cert. Denial Order, Docket

Entry No. 17-3.) On October 28, 2010, Petitioner filed a second

petition for post conviction relief pro se. (Resp't's Ex. Ra 41,

Pet’r’s 2 PCR Pet., Docket Entry No. 18-1.) Petitioner alleged nd

ineffective assistance of counsel for “failure to investigate

witnesses.” (Id.) Oral argument was conducted in state court on

February 10, 2011, and on that same day, the state court filed an

order which denied Petitioner’s second post-conviction application

without an evidentiary hearing. (Resp't's Ex. Ra 42, 2 PCR Order, nd

Docket Entry No. 18-2.) 

Plaintiff filed his original petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254 on December 15, 2010. (Bueno

v. State of New Jersey, 10-6552 (FLW).) This Court entered three

9

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 9 of 28 PageID: 1662
orders: (1) advising Petitioner of his rights pursuant to Mason v.

Meyers, 208 F.3d 414 (3d Cir. 2000); (2) requiring the filing fee

or complete in forma pauperis application; and (3) requiring an

amended petition naming the warden as a respondent. (Id. at Docket

Entry Nos. 2-4.) Subsequently, Petitioner filed an amended

petition, which was docketed as a new case, Bueno v. Bartkowski,

11-1631 (FLW). Petitioner filed a letter with his amended

petition, stating that he wished to withdraw his previous petition

and proceed with the amended petition. The Court entered an order

closing the original case, 10-6552 (FLW), and ordering Respondents

to file an answer to the amended petition filed in the instant

case. (Docket Entry No. 2.) Respondents filed their answer on

June 20, 2011. (Docket Entry No. 8.) Petitioner did not file a

reply. 

Petitioner raises five grounds in his petition: 

1. The prosecutor’s cross-examination of Eligio Bueno,

which focused on Bueno’s failure to tell the police that

he had witnessed the shooting, or provide the police with

a description of the shooter, violated Bueno’s right to

remain silent and deprived him of his constitutional

rights to due process of law and a fair trial.

2. The prosecutor engaged in misconduct by repeatedly

castigating Bueno for his reported cowardice, thereby

depriving Bueno of his constitutional right to a fair

trial. 

3. An imposition of a 55 year term on the murder

conviction violates defendant’s constitutional rights to

trial by jury, proof beyond a reasonable doubt, due

process of law, and right to indictment and must be

vacated.

10

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 10 of 28 PageID: 1663
4. Petitioner’s trial attorney rendered ineffective

assistance of counsel by failing to object to the

prosecution’s cross-examining petitioner regarding his

right to remain silent. 

5. Petitioner’s trial attorney rendered ineffective

assistance of counsel by failing to object to the

prosecution engaging in misconduct by repeatedly

castigating petitioner for his purported cowardice,

thereby depriving petitioner of a fair trial. 

(Docket Entry No. 1.) 

II. DISCUSSION 

A. Legal Standard

As amended by the Antiterrorism and Effective Death Penalty

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

part:

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

judge, or a district court shall entertain an application

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

custody pursuant to the judgment of a State court only on

the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.

(b)(1) An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the judgment of

a State court shall not be granted unless it appears

that–

(A) the applicant has exhausted the remedies available in

the courts of the State; or

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

process; or 

(ii) circumstances exist that render such process

ineffective to protect the rights of the applicant.

(2) An application for a writ of habeas corpus may be

denied on the merits, notwithstanding the failure of the

applicant to exhaust the remedies available in the courts

of the State...

11

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 11 of 28 PageID: 1664
(d) An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a

State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim–

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court of the United States; or 

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

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding. 

“A state-court decision is contrary to this Court's clearly

established precedents if it applies a rule that contradicts the

governing law set forth in our cases, or if it confronts a set of

facts that is materially indistinguishable from a decision of this

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

133, 141, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005) (citing Williams

v. Taylor, 529 U.S. 362, 405-06 (2000)). The “unreasonable

application” prong of AEDPA applies when a “state court identifies

the correct governing legal principle from [the Supreme] Court's

decisions but unreasonably applies that principle to the facts.” 

Adamson v. Cathel, 633 F.3d 248, 255-56 (3d Cir. 2011)(quoting

Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d

471 (2003). The test is “an objective one and does not permit a

court to grant relief simply because the state court might have

incorrectly applied federal law to the facts of a certain case.” 

Id. (citing at Wiggins, 539 U.S. at 520–21). 

A state court may render an adjudication on the merits of a

12

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 12 of 28 PageID: 1665
federal claim by rejecting the claim in an order unaccompanied by

an opinion explaining the reasons relief has been denied. See

Harrington v. Richter, –––U.S. ––––, ––––, 131 S.Ct. 770, 784, 178

L.Ed.2d 624 (2011) (“a state court need not cite or even be aware

of [Supreme Court] cases.... Where a state court's decision is

unaccompanied by an explanation, the habeas petitioner's burden

still must be met by showing there was no reasonable basis for the

state court to deny relief.”) 

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), cert. denied, 532 U.S. 924 (2001); Purnell

v. Hendricks, 2000 WL 1523144, at *6 n.4 (D.N.J. October 16, 2000).

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)(citing Appel, 250 F.3d at 210.) The deference required by §

2254(d) applies without regard to whether the state court cites to

Supreme Court or other federal caselaw, “as long as the reasoning

13

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 13 of 28 PageID: 1666
of the state court does not contradict relevant Supreme Court

precedent.” Priester v. Vaughn, 382 F.3d 394, 398 (3d Cir. 2004)

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

537 U.S. 19 (2002)).

Finally, a pro se pleading is held to less stringent standards

than more formal pleadings drafted by lawyers. Erickson v. Pardus,

551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)(citing

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);

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

denied, 399 U.S. 912 (1970). 

B. Analysis

1. Pre-Arrest Silence 

In Ground One, Petitioner argues that the prosecutor’s

questions regarding his failure to tell Detective McFadden about

the shooting during either of the two phone conversations they had

prior to his arrest “suggested that [Petitioner’s] version should

not be believed because he failed to come forward and tell the

police what he saw [which] violated [his] right to remain silent

and deprived him of his constitutional rights to due process of law

and a fair trial.” (Pet. 19, Docket Entry No. 1.) 

14

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 14 of 28 PageID: 1667
The Appellate Division stated the following in denying this

claim on direct appeal: 

“A suspect has a right to remain silent while in police

custody or under official interrogation, in accordance

with his state law privilege against self-incrimination.”

State v. Muhammad, 182 N.J. 551, 558 (2005). Moreover,

this silence “cannot be used against him in a criminal

trial.” Ibid.; see also State v. Deatore, 70 N.J. 100,

115 (1976). In this case, we are not persuaded that the

questions that were asked of defendant violated his right

to remain silent. When the telephone conversation took

place, defendant was not in custody, and the conversation

did not take place “at or near” the time of defendant's

arrest. State v. Muhammad, supra, 182 N.J. at 569.

Moreover, the testimony elicited from defendant during

cross-examination was properly admitted to call into

question defendant's inconsistent statements-including

his promise to meet with the police and his subsequent

failure to do so. We are satisfied that defendant's

statements to McFadden during a telephone conversation,

which occurred almost two weeks before defendant's arrest

when defendant was not in police custody, do not

implicate defendant's right against self-incrimination.

State v. Brown, 118 N.J. 595, 613 (1990). And defendant's

failure to meet with McFadden after telling him that he

would “be there” in about a half an hour had a direct

bearing on defendant's credibility.

Bueno, 2006 WL 1492496, at *4.

The Court finds that the New Jersey courts' adjudication of

this claim was not contrary to, or an unreasonable application of

Supreme Court precedent. Specifically, the Supreme Court in

Jenkins v. Anderson, 447 U.S. 231 (1980) stated that: 

Thus, impeachment follows the defendant's own decision to

cast aside his cloak of silence and advances the

truth-finding function of the criminal trial. We conclude

that the Fifth Amendment is not violated by the use of

prearrest silence to impeach a criminal defendant's

credibility....In this case, no governmental action

induced petitioner to remain silent before arrest. The

failure to speak occurred before the petitioner was taken

15

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 15 of 28 PageID: 1668
into custody and given Miranda warnings. Consequently,

the fundamental unfairness present in Doyle is not

present in this case. We hold that impeachment by use of

prearrest silence does not violate the Fourteenth

Amendment.

Therefore, the Appellate Division’s finding that the telephone

conversations did not take place at or near the time of

Petitioner’s arrest and that the testimony elicited from Petitioner

during cross-examination was properly admitted to call into

question Petitioner’s inconsistent statements, including his

failure to meet with the police as promised, was not contrary to

and did not involve an unreasonable application of clearly

established federal law. Nor was the decision based on an

unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Therefore, Petitioner

has failed to meet his burden and this claim will be denied.

2. Prosecutorial Misconduct

In Ground Two, Petitioner argues that “during his crossexamination of the defendant the prosecutor embarked on a line of

questioning castigating Bueno for his purported cowardice depriving

the defendant of his right to a fair trial.” (Pet. 19, Docket

Entry No. 1.) 

On direct appeal, the Appellate Division rejected Petitioner's

claims of prosecutorial misconduct.

Defendant also claims for the first time that questions

asked of defendant during cross-examination “were

designed to portray Bueno as a coward,” and the assistant

prosecutor improperly “sought to inflame the jurors and

16

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 16 of 28 PageID: 1669
distract them from their task of evaluating the evidence

and reaching a fair verdict.” We do not agree. An

appellate court reviewing an allegation of prosecutorial

misconduct must determine whether the conduct “was so

egregious that it deprived the defendant of a fair

trial.” State v. Frost, 158 N.J. 76, 83 (1999). We must

consider a variety of factors, including: (1) whether

defense counsel made timely and proper objections to the

improper remarks; (2) whether the remarks were withdrawn

promptly; and (3) whether the court ordered the remarks

stricken from the record and instructed the jury to

disregard them. Ibid.

Because defense counsel did not object at trial, we infer

that the defense did not believe that the questions asked

of defendant were improper or unduly prejudicial. Id. at

83-84; see State v. Darrian, 255 N.J.Super. 435, 457-58

(App.Div.) certif. denied, 130 N.J. 13 (1992) (noting

that defense counsel's failure to object at time of trial

indicates that in the atmosphere of the trial the defense

did not believe that the prosecutor's comments were

prejudicial).

In this case, defendant was asked about his actions on

the night of the murder and on the day of his capture.

The questions were meant to highlight the disparity

between defendant's testimony and the testimony of the

State's witnesses. Based on our review of the record, we

conclude that defendant's claim of prosecutorial

misconduct has no merit. Moreover, we are satisfied that

any possible error was harmless beyond a reasonable

doubt. State v. Macon, 57 N.J. 325, 340-41 (1971); R.

2:10-2.

Bueno, 2006 WL 1492496, at *4-5.

Habeas review of a claim based on prosecutorial misconduct is

limited to determining whether the conduct “so infected the trial

with unfairness as to make the resulting conviction a denial of due

process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974);

Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d

144 (1986). “The touchstone of due process analysis in cases of

17

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 17 of 28 PageID: 1670
alleged prosecutorial misconduct is the fairness of the trial, not

the culpability of the prosecutor.” Smith v. Phillips, 455 U.S.

209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). “A criminal

conviction is not to be lightly overturned on the basis of a

prosecutor's comments [or conduct] standing alone, for the

statements or conduct must be viewed in context.” United States v.

Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). 

“Supreme Court precedent counsels that the reviewing court must

examine the prosecutor's offensive actions in context and in light

of the entire trial, assessing the severity of the conduct, the

effect of the curative instructions, and the quantum of evidence

against the defendant.” Moore v. Morton, 255 F.3d 95, 107 (3d Cir.

2001).

This Court finds that the prosecutor's comments during crossexamination did not have the capacity on their own to so infect the

trial with unfairness as to make the resulting conviction a denial

of due process. Moreover, as set forth above, the state court

found there was more than sufficient evidence at trial to support

the convictions now challenged by Petitioner. 

Therefore, the Court finds no error of constitutional

dimension with respect to Petitioner's claim of prosecutorial

misconduct during cross-examination. The remarks by the prosecutor

did not serve to infect the trial with unfairness, thus depriving

petitioner of due process. The state court's ruling was not

18

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 18 of 28 PageID: 1671
contrary to, and did not involve an unreasonable application of,

clearly established federal law; nor was it based on an

unreasonable determination of the facts presented in the state

court proceedings. Accordingly, this claim will be denied.

3. Sentence Term

Petitioner was sentenced to a term of 55 years, 85% to be

served without parole pursuant to the No Early Release Act. The

trial court found factors (3), (6) and (9) in aggravation of his

conviction. These factors read as follows: “(3) the risk that the

defendant will commit another offense;...(6) the extent of the

defendant's prior criminal record and the seriousness of the

offenses of which he has been convicted;...(9) the need for

deterring the defendant and others from violating the law.” 

N.J.S.A. 2C:44-1(a). In Ground Three, Petitioner argues that “all

of those factors require factual determinations that are

qualitatively different from the bare finding that Petitioner has

incurred a prior conviction, yet none of the aggravating facts was

presented [sic] to the grand jury or alleged in the indictment,

imposition of the 55 year term violated Bueno’s state

constitutional right to indictment and because none of the

aggravating factors the court relied on to impoose [sic] the

sentence in excess of the presumptive term was found by the jury

beyond a reasonable doubt or admitted by [Petitioner].” (Pet. 19-

20, Docket Entry No. 1.)

19

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 19 of 28 PageID: 1672
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, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991);

Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d

606 (1990). Petitioner's claim is based upon the Sixth Amendment

right to trial by jury.

In Apprendi v. New Jersey, 530 U.S. 466, 471, 490 (2000), the

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

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

the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” In Blakely v. Washington, 542

U.S. 296, 303 (2004), the Supreme Court overturned a sentence

imposed under Washington state's sentencing system, explaining that

“the relevant statutory maximum is not the maximum sentence a judge

may impose after finding additional facts, but the maximum he may

20

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 20 of 28 PageID: 1673
impose without any additional findings.”2

After review of the relevant record, it clear that the trial

court did not violate the rule of Apprendi/Blakely or Petitioner’s

Sixth Amendment rights. The New Jersey Supreme Court has held that

there is no presumptive term for murder, but that “the standard

range for murder is a sentence between thirty years and life

imprisonment.” State v. Abdullah, 184 N.J. 497, 507 (2005). In

addition, under state law, “there is no presumption in favor of

concurrent sentences and therefore the maximum potential sentence

authorized by the jury verdict is the aggregate of sentences for

multiple convictions.” Abdullah, 184 N.J. at 513-14 (citation

omitted). The Supreme Court has held that judicial factfinding in

support of a sentencing judge's discretion to sentence within a

statutory range does not violate the constitution. See Booker, 543

U.S. at 233; Blakely, 542 U.S. at 308-09. 

In this case, the trial court did not sentence Petitioner

beyond the statutory range in violation of Apprendi and Blakely. 

The statutory range for murder in New Jersey is 30 years to life

and Petitioner received 55 years, well within the range. The

aggravating factors found by the trial judge were not used to

Most recently, in United States v. Booker, 543 U.S. 220 (2005), the

2

Supreme Court applied the rule of Appendi to the U.S. Sentencing Guidelines,

holding that the Guidelines are not mandatory, but are merely advisory.

21

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 21 of 28 PageID: 1674
sentence Petitioner above the relevant range, and as such, are 3

permissible under our Supreme Court precedent. 

Therefore, the Appellate Court’s finding that “the imposition

of a fifty-five-year prison term on the murder conviction did not

violate his constitutional right to trial by jury” was not contrary

to, and did not involve an unreasonable application of, clearly

established federal law; nor was it based on an unreasonable

determination of the facts presented in the state court

proceedings. Therefore, Petitioner is not entitled to relief on

this claim.

4. Ineffective Assistance of Counsel

In Grounds Four and Five, Petitioner argues that trial counsel

rendered ineffective assistance when he failed to object to the

prosecutor’s cross-examination of Petitioner regarding his right to

remain silent and failed to object to the prosecutor’s castigating

of Petitioner for his purported cowardice. 

In his PCR petition, Petitioner argued that his trial counsel

had rendered ineffective assistance of counsel by failing to object

to the prosecutor’s cross-examination of Petitioner regarding his

right to remain silent. (Resp’t’s Ex. Ra 28, Pet’r’s Br. Supp.

Mot. PCR 12, Docket Entry No. 14-1.) Petitioner also argued that

To the extent Petitioner argues that the trial judge did not make the

3

requisite factual findings necessary to sentence Petitioner to 55 years, this

argument fails as it is clear from the record that the judge considered other

aggravating factors beyond Petitioner’s prior convictions. (Resp’t’s Ex. Ra

19, Sentencing Tr. 33:23-37:19, September 17, 2004, Docket Entry No. 12-1.)

22

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 22 of 28 PageID: 1675
his trial attorney rendered ineffective assistance of counsel by

failing to object to the prosecutor engaging in misconduct by

repeatedly castigating Petitioner for his purported cowardice. 

(Id. at 16.) 

In denying the petition, the trial court stated the following: 

The first two arguments, ineffective assistance of

counsel, were decided by the Appellate Division. That’s

a higher court than this court, and the two excerpts from

the Appellate Division decision addressed defendant’s

argument regarding the Fifth Amendment right to remain

silent; second, depriving defendant of a fair trial

because of alleged cowardice. 

So we have Appellate Division devoting a lot of time to

this. They were not persuaded that the questions asked

of defendant violated his right to remain silent. So

they covered this in great detail. They do not agree

that the questions were designed to portray Mr. Bueno as

a coward. And they say in this case defendant was asked

about his actions on the night of the murder and on the

day of the capture, and they were to meant to highlight

the disparity between the defendant’s testimony and the

testimony of the state’s witnesses. 

I mean the, the evidence against Mr. Bueno was

overwhelming. I mean there were eyewitnesses to his

actions. It indicated flight, consciousness of guilt. 

He admitted his guilt to other witnesses, and there was

physical evidence. I mean, there were all sorts of -

there was a ton of evidence. 

And the Appellate Division concluded that the defendant’s

claim of prosecutorial misconduct had no merit, and if

there was any possible error, it was harmless beyond a

reasonable doubt. 

(Resp’t’s Ex. Ra 30, PCR Hr’g. Tr. 24:13-25:15, October 19, 2007,

Docket Entry No. 14-1.) Petitioner appealed the denial of his PCR

petition, arguing that the trial court was incorrect in

23

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 23 of 28 PageID: 1676
procedurally barring his ineffective assistance of counsel argument

because it was addressed on direct appeal. In its opinion, the

Appellate Division stated the following:

We reject this argument and affirm the denial of

defendant's petition substantially for the reasons stated

by Judge Mulvihill on October 19, 2007. As Judge

Mulvihill indicated, this court previously rejected

defendant's claim that “the questions asked of [him]

violated his right to remain silent.” Thus, that issue

was procedurally barred by Rule 3:22-5. See State v.

Preciose, 129 N.J. 451, 476, 609 A.2d 1280 (1992) (“[A]

prior adjudication on the merits ordinarily constitutes

a procedural bar to the reassertion of the same ground as

a basis for post-conviction review.”). Moreover, based

upon this court's rejection of defendant's pre-arrest

silence claim, it is clear that defendant's trial

attorney was not ineffective for failing to present

evidentiary arguments that would not have been

successful.

Bueno, 2009 WL 3762907, at *2. 

The Sixth Amendment, applicable to states through the Due

Process Clause of the Fourteenth Amendment, guarantees the accused

the “right ... to have the Assistance of Counsel for his defense.”

U.S. Const. amend. VI. The right to counsel is the right to the

effective assistance of counsel, and counsel can deprive a

defendant of the right by failing to render adequate legal

assistance. See Strickland v. Washington, 466 U.S. 668, 686

(1984).

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

require reversal of a conviction has two components, both of which

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

24

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 24 of 28 PageID: 1677
defendant must “show that counsel's representation fell below an

objective standard of reasonableness.” Id. at 687-88. “[C]ounsel

should be ‘strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable

professional judgment.’” Cullen v. Pinholster, 131 S.Ct. 1388,

1403 (2011)(citing Strickland, 466 U.S. at 690, 104 S.Ct. 2052). 

“To overcome that presumption, a defendant must show that counsel

failed to act ‘reasonabl[y] considering all the circumstances.’”

Id. (citing Strickland, 466 U.S. at 688, 104 S.Ct. 2052). 

Further, a “convicted defendant making a claim of ineffective

assistance must identify the acts or omissions of counsel that are

alleged not to have been the result of reasonable professional

judgment.” Id. at 690. The court must then determine whether, in

light of all the circumstances at the time, the identified errors

were so serious that they were outside the wide range of

professionally competent assistance. Id.

To satisfy the prejudice prong, the defendant must show that

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

factfinder would have had a reasonable doubt respecting guilt.” 

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

conceivable effect on the outcome of the proceeding’...Counsel's

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

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

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

25

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 25 of 28 PageID: 1678
S.Ct. 2052). As the Supreme Court explained,

In making this determination, a court hearing an

ineffectiveness claim must consider the totality of the

evidence before the judge or jury. Some of the factual

findings will have been unaffected by the errors, and

factual findings that were affected will have been

affected in different ways. Some errors will have had a

pervasive effect on the inferences to be drawn from the

evidence, altering the entire evidentiary picture, and

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

a verdict or conclusion only weakly supported by the

record is more likely to have been affected by errors

than one with overwhelming record support. Taking the

unaffected findings as a given, and taking due account of

the effect of the errors on the remaining findings, a

court making the prejudice inquiry must ask if the

defendant has met the burden of showing that the decision

reached would reasonably likely have been different

absent the errors.

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

The Supreme Court instructs that a court need not address both

components of an ineffective assistance claim “if the defendant

makes an insufficient showing on one.” Strickland, 466 U.S. at

697. “If it is easier to dispose of an ineffectiveness claim on

the ground of lack of sufficient prejudice, which we expect will

often be so, that course should be followed.” Id.

As stated above, Petitioner’s arguments regarding his right to

remain silent and the prosecutor’s alleged castigating of him

regarding his alleged cowardice are without merit. Therefore, it

was not unreasonable for counsel not to have raised said arguments

before the state court. Further, Petitioner has not shown any

prejudice that resulted from the alleged failures of trial counsel.

26

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 26 of 28 PageID: 1679
As the state courts repeatedly pointed out, there was ample

evidence to support Petitioner’s conviction. 

Therefore, the state courts’ decisions on the ineffective

assistance of counsel issues were not contrary to, and did not

involve an unreasonable application of, clearly established federal

law; nor were they based on an unreasonable determination of the

facts presented in the state court proceedings. Therefore,

Petitioner is not entitled to relief on these claims.

III. CERTIFICATE OF APPEALABILITY

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

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

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

A certificate of appealability may issue “only if the applicant has

made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree

with the district court’s resolution of his constitutional claims

or that jurists could conclude the issues presented are adequate to

deserve encouragement to proceed further.” Miller-El v. Cockrell,

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

Here, jurists of reason would not disagree with this Court’s

finding that Petitioner has failed to make a substantial showing

of the denial of a constitutional right. No certificate of

appealability shall issue.

27

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 27 of 28 PageID: 1680
IV. CONCLUSION

For the reasons set forth above, the Petition must be denied.

An appropriate order follows.

Dated: January 6, 2012

 /s/ Freda L. Wolfson

Freda L. Wolfson

United States District Judge

28

Case 3:11-cv-01631-FLW Document 28 Filed 01/06/12 Page 28 of 28 PageID: 1681