NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

______________________________ 

 : 

WAYNE G. DOBSON, : 

 : 

 Petitioner, : 

 : 

v. : 

 : 

KAREN BALICKI, : 

 : 

 Respondent. : 

_____________________________ : 

Civil Action No. 11-2924 (JBS) 

OPINION 

APPEARANCES:

Wayne G. Dobson, Pro Se 

437073 

South Woods State Prison 

215 Burlington Road South 

Bridgeton, NJ 08302 

Robin A. Hamett, Assistant Prosecutor 

Camden County Prosecutor’s Office 

25 North Fifth Street 

Camden, NJ 08102 

Attorney for Respondent 

SIMANDLE, Chief Judge 

 Petitioner, Wayne G. Dobson, submitted this petition for 

a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and 

Respondent submitted an answer to the petition (Docket Item 13), 

with the available state court record. For the following 

reasons, the petition will be denied. 
 2

BACKGROUND 

 The relevant facts and procedural background are set forth 

in the opinion of the Superior Court of New Jersey, Appellate 

Division (“Appellate Division”), in Petitioner’s appeal of his 

post-conviction relief (“PCR”) motion.1 

 

 The following facts are pertinent to our 

decision. Defendant was charged under Camden County 

Indictment No. 01-06-1802 with first degree murder, 

N.J.S.A. 2C:11-3(a)(1) (counts one and two); first 

degree robbery, N.J.S.A. 2C:15-1 (count three); 

second degree possession of a weapon for an unlawful 

purpose, N.J.S.A. 2C:39-4(a); and third degree 

unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) 

(count five). On September 6, 2002, defendant pled 

guilty to count one, which was amended to charge first 

degree aggravated manslaughter, N.J.S.A. 

2C:11-4(a)(1). 

 At the plea hearing, the court asked defendant 

if he understood that he had been charged with 

recklessly causing the death of Louis Carter (Carter) 

under circumstances manifesting extreme indifference 

to the value of human life. Defendant said that he 

understood the charge. Defendant stated that he had 

discussed the plea with his attorney and his attorney 

had answered all of defendant's questions. Defendant 

additionally stated that he was satisfied with the 

services that his attorney had provided to him. 

 

1

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

instituted by an application for a writ of habeas corpus by a 

person in custody pursuant to the judgment of a State court, a 

determination of a factual issue made by a State court shall be 

presumed to be correct. The applicant shall have the burden of 

rebutting the presumption of correctness by clear and convincing 

evidence.” 
 3

 Defendant then provided the court with a factual 

basis for his plea. He stated that on December 1, 2000, 

he came in contact with Carter. Defendant 

acknowledged that he was in possession of a handgun 

and it discharged. He admitted that, in his encounter 

with Carter, he acted recklessly, without regard to 

the consequences of “who got hurt or what happened[.]” 

Defendant stated that, when the gun was discharged, 

Carter was struck by a bullet and died. 

 On December 6, 2002, the court sentenced 

defendant. The court found aggravating factor three, 

N.J.S.A. 2C:44-1(a)(3) (risk that defendant will 

commit another offense); six, N.J.S.A. 2C:44-1(a)(6) 

(extent of defendant's prior criminal record); and 

nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant 

and others from violating the law). The court also 

found mitigating factor six, N.J.S.A. 2C:44-1(b)(6) 

(defendant was willing to make restitution). The 

court found that the aggravating factors 

substantially outweighed the mitigating factors. 

 The court sentenced defendant in accordance with 

his plea agreement to twenty-three years of 

incarceration, with a period of parole ineligibility, 

pursuant to the No Early Release Act, N.J.S.A. 

2C:43-7.2. The court ordered that the sentence be 

served concurrently with a sentence previously 

imposed under Camden County Indictment No. 

01-06-1898. 

 Defendant appealed from the judgment of 

conviction and challenged his sentence. The appeal 

was heard on our excessive sentence calendar. We 

affirmed defendant's sentence. State v. Dobson, No. 

A-4513-02 (App. Div. Sept. 17, 2003). Defendant 

thereafter sought review of our judgment by filing a 

petition for certification with the Supreme Court. 

The Court denied the petition. State v. Dobson, 179 

N.J. 309, 845 A.2d 134 (2004). 

(Ra 25, State v. Dobson, A-5120-06T4 (May 4, 2010), at pp. 2-4). 
 4

 Petitioner filed a motion for post-conviction relief 

(“PCR”), which was denied in a written opinion dated February 

6, 2007, by the trial court. The Appellate Division affirmed the 

denial of PCR on May 4, 2010 (Ra 25) and the New Jersey Supreme 

Court denied certification on July 19, 2010 (Ra 29). 

 Petitioner filed this habeas petition thereafter, and was 

informed of his rights pursuant to Mason v. Meyers, 208 F.3d 414 

(3d Cir. 2000). Respondent answered the petition and filed the 

relevant state court record. This Court has reviewed all 

submissions. 

PETITIONER’S CLAIMS

 In his petition (Docket Item 1), Petitioner sets forth 

three grounds for habeas relief: (1) denial of due process 

where plea was not voluntary and there was no adequate factual 

basis; (2) ineffective assistance of counsel; and (3) 

unconstitutional sentence imposed in violation of the Sixth 

Amendment. (Petition, ¶ 12). 

 Respondent argues that Petitioner procedurally defaulted 

on Grounds One and Three, and that he failed to exhaust. 

Alternatively, Respondent argues that as to the merits of his 

petition, Petitioner is not entitled to habeas relief. (Answer, 

Docket Item 13). 
 5

DISCUSSION

A. Section 2254 Cases

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 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. 

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 
 6

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., 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. 

See 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. See Matteo v. Superintendent, 171 F.3d 

877, 890 (3d Cir. 1999). 
 7

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)), cert. denied, 543 U.S. 1093 (2005). 

Further, “Habeas corpus petitions must meet heightened 

pleading requirements.” McFarland v. Scott, 512 U.S. 849, 856 

(1994). A petition must “specify all the grounds for relief” and 

set forth “facts supporting each of the grounds thus specified.” 

See 28 U.S.C. § 2254 Rule 2(c) (amended Dec. 1, 2004). 

B. Ground One

 In Ground One of his petition, Petitioner argues that the 

trial court violated his constitutional rights by accepting his 

“plea of guilty to the amended count of aggravated manslaughter, 

where there was no adequate factual basis established to 

substantiate the elements under that offense, and where the plea 

was not voluntarily and intelligently made with sufficient 

awareness of the relevant circumstances and likely 

consequences.” (Petition, ¶ 12). 
 8

Petitioner raised this claim in his PCR motion. The PCR 

court found that Petitioner’s claim was nothing more than a “bald 

assertion,” and noted that “Petitioner admitted in open Court 

he understood the consequences of his plea and was pleading 

guilty voluntarily.” (Ra 14 at p. 14). Later, the court found 

that “Petitioner admitted that he caused the death of the victim 

and acted recklessly with the handgun in doing so, to the point 

of manifesting extreme indifference for human life. Those are 

the elements of aggravated manslaughter.” (Ra 14 at p. 43). 

 The standard for determining the validity of a guilty plea 

is “whether the plea represents a voluntary 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) (a guilty plea is invalid only 

if it is not the result of the defendant's knowing and voluntary 

waiver of his/her rights or if the offered plea has no factual 

basis). “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. Boykin, 395 U.S. 

at 243. The voluntariness of a plea “can be determined only by 
 9

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). 

 In this case, Petitioner’s plea, as summarized in the PCR 

court’s Opinion denying relief (Ra 15), is reproduced below, in 

relevant part: 

THE COURT: Sir, you are charged under Count One, on 

December l, 2000, in the City of Camden with 

recklessly causing the death of Louis Carter under 

circumstances manifesting extrerne indifference to 

the value of human life and that's contrary to New 

Jersey Statute 2C:11-4a(1). Sir, do you understand 

what you are charged with? 

DEFENDANT: Yes. 

THE COURT: Have you had enough time to discuss the 

case with your attorney? 

DEFENDANT: Yes. 

THE COURT: Has he answered all of your questions? 

DEFENDANT: Yes. 

THE COURT: And are you satisfied with his services 

to you, sir? 

DEFENDANT: Yes. 

 *** 
 10

THE COURT: Again sir, has anyone forced you to plead 

guilty? 

DEFENDANT: No. 

THE COURT: Anybody threaten you in anyway, sir? 

DEFENDANT: No. 

THE COURT: Have you taken any medication, any drugs 

or alcohol or anything that would affect your ability 

to think clearly here today? 

DEFENDANT: No 

TIIE COURT: In other words, you understand exactly 

what you're doing by pleading guilty, sir? 

DEFENDANT: Yes. 

(Ra 15 at pp. 13-14, Rta 1 at 8:9-25; 16:25, 17:1-12). 

 A review of the plea transcript reveals that the state 

courts were not unreasonable in their determination that 

Petitioner’s plea was voluntary and intelligently submitted. 

Petitioner thoughtfully considered the judge’s questions and 

understood to what he was pleading guilty. This Court sees no 

reason to upset the findings of the state court in accepting the 

plea, and finds no violation of Petitioner’s constitutional 

rights. He has not demonstrated that the state courts' 

acceptance of his plea was contrary to, or involved an 

unreasonable application of, clearly established federal law, 

or based upon an unreasonable determination of the facts in light 

of the evidence presented. Petitioner is not entitled to relief 

on this claim. 
 11

C. Ground Two

 1. Standard for Ineffective Assistance of Counsel 

 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. See Strickland v. 

Washington, 466 U.S. 668, 687, 694 (1984). A “reasonable 

probability” is “a probability sufficient to undermine 

confidence in the outcome.” Id. 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. 
 12

 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. 

 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). 

 The Strickland two-part standard applies to ineffective 

assistance claims arising out of the guilty plea process. See

Hill v. Lockhart, 474 U.S. 52, 57–9 (1985). In the context of 

guilty pleas, the first element of the Strickland test remains 

“nothing more than a restatement of the standard of attorney 
 13

competence.” Hill, 474 U.S. at 58. The “prejudice” requirement, 

“on the other hand, focuses on whether counsel's 

constitutionally ineffective performance affected the outcome 

of the plea process. In other words, in order to satisfy the 

‘prejudice’ requirement, the defendant must show that there is 

a reasonable probability that, but for counsel's errors, he 

would not have pleaded guilty and would have insisted on going 

to trial.” Hill, 474 U.S. at 59. See also Weeks v. Snyder, 219 

F.3d 245, 257 (3d Cir.), cert. denied, 531 U.S. 1003 (2000). 

 2. Petitioner’s Claims 

 Petitioner argues in his petition that he was denied the 

effective assistance of counsel when: (1) counsel failed to 

consult adequately with the defendant in preparing his case, and 

failed to investigate and pursue a passion provocation defense; 

(2) counsel failed to investigate and pursue a defense based on 

imperfect self-defense; (3) counsel failed to contact a key 

witness who could have aided in the defense; and (4) counsel 

failed because he did not argue for mitigating factor four at 

the time of sentencing. (Petition, ¶ 12). 

 These claims were raised in Petitioner’s PCR motion. Citing 

and summarizing Strickland, the PCR court found that Petitioner 
 14

did not have ineffective assistance of counsel (Ra 15 at p. 15). 

The PCR court’s written opinion, sets forth the reasoning: 

 In his pro se brief, Petitioner alleges he thinks 

trial counsel should have investigated the potential 

defenses of passion/provocation manslaughter, 

claiming there was an altercation between him and the 

victim. Again, Petitioner did not include an 

affidavit supporting this assertion. Also, while 

trial counsel has a duty to make reasonable 

investigations, he was not required to pursue 

everything Petitioner alleged. If trial counsel 

believed Petitioner's self-proclaimed account of 

self-defense would not be helpful to the defense 

strategy, he was not obliged to pursue it. The record 

indicates that Petitioner initiated the altercation 

with the victim, followed the victim to the victim's 

front porch, and escalated the altercation by pulling 

out a handgun. Petitioner would have had to testify 

at trial to raise the defense of self-defense. Trial 

counsel may have thought that a jury would not find 

Petitioner's testimony credible, since by 

testifying, the jury would find out that Petitioner 

had a prior conviction of aggravated assault and 

robbery along with the fact that his testimony would 

have been self-serving. Looking at the totality of the 

circumstances, without the advantage of hindsight, 

trial counsel appears to have made a reasonable 

professional judgment in not pursuing a self-defense 

theory or seeking a passion/provocation plea. 

 

 Petitioner also asserts in his pro se brief, 

trial counsel should have investigated and 

interviewed certain witnesses that would have helped 

his theory of self-defense. However, Petitioner did 

not attach any affidavits from those witnesses, 

explaining what they would have said. Petitioner 

asserts in his brief that Mark Wise would have said 

Mr. Adams (victims' friend) told Mr. Wise, after the 

homicide, he had drugs on him and that was why he gave 

a statement alleging Petitioner robbed the victim. 

Also, Petitioner alleges further investigation of Ms. 

Campbell should have been done, since she said in her 

statement to police the victim was using drugs at the 
 15

time of his homicide. Petitioner asserts this is 

relevant as to whether he could have asserted 

self-defense. Again, trial counsel is not required to 

pursue what he believes are fruitless stories. Since 

Ms. Campbell gave a statement that is contained in the 

discovery, trial counsel most likely read it and made 

a strategic decision that it was not strong enough to 

support a valid defense. 

 The lack of affidavits coupled with the strong 

presumption trial counsel rendered adequate 

assistance and to have made all significant decisions 

in the exercise of reasonable professional judgment, 

Petitioner cannot show that counsel made a "gross 

error." In fact, the record shows that in large part, 

counsel's recommendation was a wise choice, since the 

Petitioner was facing significantly more prison time 

if he went to trial and was convicted. The plea bargain 

called for a concurrent sentence to the sentence he 

was already serving, and increased his sentence only 

four years for the crime of aggravated manslaughter. 

 Additionally, the record shows that during the 

plea hearing, through its own inquiry, the Court 

assured that Petitioner's trial attorney had answered 

all of Petitioner's questions and that Petitioner was 

satisfied with his legal representation. This would 

have been an opportune time for Petitioner to express 

his displeasure with his trial counsel. Petitioner 

did not express he did not understand the implications 

of pleading, nor did he express that he wished to go 

to trial. Also, the Court specifically questioned 

Petitioner about his satisfaction with the assistance 

provided to him by counsel. The plea transcript 

indicates that Petitioner was satisfied with his 

counsel . . . . 

(Ra 15 at pp. 18-20). The Appellate Division affirmed the PCR 

court’s “thorough and comprehensive opinion,” and citing 

Strickland, added “defendant failed to establish that his 

attorney conducted an inadequate investigation of the matter, 
 16

thereby denying him the effective assistance of counsel.” (Ra 

25 at p. 8). 

 This Court finds no reason to upset the plea entered by 

Petitioner based on ineffective assistance of counsel. Besides 

the examination conducted by the state courts as to Petitioner’s 

arguments, Petitioner himself stated at his plea that he was 

“satisfied with [his attorney’s] services” and that his attorney 

answered all of his questions. (Rta 1 at 8:18-25 - 9:1). Further, 

Petitioner has not shown that counsel’s decisions in handling 

his case as to defenses and witnesses were anything other than 

sound trial strategy. Finally, this Court agrees that Petitioner 

has not demonstrated a reasonable probability that he wouldn’t 

have pled guilty had counsel performed differently, especially 

considering the sentencing consequences that he faced had he 

gone to trial. 

 The Court is satisfied that none of the ineffective 

assistance of counsel claims presented by Petitioner in Ground 

Two of his petition are sufficient to warrant habeas relief. As 

the state courts correctly relied on Strickland, the state 

courts' decisions were neither contrary to, nor involved an 

unreasonable application of, clearly established federal law. 

An examination of the record also reveals no evidence that they 
 17

were based on an unreasonable determination of the facts 

presented in the state court proceedings. Petitioner is not 

entitled to relief on this ground. 

D. Ground Three

 In Ground Three of his petition, Petitioner argues that he 

is entitled to habeas relief because the sentencing court 

“increased his sentence beyond the prescribed statutory maximum 

solely upon facts that were not admitted by the defendant or 

submitted to a jury and, as such, violates defendant’s Sixth 

Amendment right to a jury trial.” (Petition, ¶ 12). 

 This Court notes from the onset that 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); Lewis v. Jeffers, 497 U.S. 764, 

780 (1990). 
 18

 Here, Petitioner was sentenced in accordance with state law 

pursuant to his plea agreement. Petitioner has not provided this 

Court with any justification to grant habeas relief and upset 

the state court proceedings. 

 However, to address Petitioner's claims more fully, this 

Court notes that in Apprendi v. New Jersey, 530 U.S. 466, 471, 

490 (2000), pursuant to the Sixth Amendment right to trial by 

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

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

beyond the prescribed statutory maximum must be submitted to a 

jury, and proved beyond a reasonable doubt.” In Blakely v. 

Washington, 542 U.S. 296 (2004), the Supreme Court overturned 

a sentence imposed under Washington state's sentencing system, 

explaining that “the relevant statutory maximum is not the 

maximum sentence a judge may impose after finding additional 

facts, but the maximum he may impose without any additional 

findings.” 542 U.S. at 302 (internal quotations omitted). 

 In State v. Natale (“Natale II”), 184 N.J. 458 (2005), the 

New Jersey Supreme Court evaluated the constitutionality of the 

New Jersey sentencing scheme in light of the Apprendi line of 

cases, and found: 
 19

Our Code provisions make clear that, before any 

judicial factfinding, the maximum sentence that can 

be imposed based on a jury verdict or guilty plea is 

the presumptive term. Accordingly, the “statutory 

maximum” for Blakely and Booker purposes is the 

presumptive sentence. 

Natale, 184 N.J. at 484 (emphasis added). Because the Code's 

system allowed for sentencing beyond the statutory maximum 

presumptive term, the New Jersey Supreme Court found the system 

unconstitutional and determined that the appropriate remedy 

would be to follow the lead of Booker and abolish the presumptive 

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

authorized by the jury verdict or the facts admitted by a 

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

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

offense.” Natale II, 184 N.J. at 487 (citation omitted) 

(emphasis added). 

 The Court of Appeals for the Third Circuit generally has 

held that the rules announced in the Apprendi line of cases are 

not applicable retroactively to cases on collateral review. See 

generally, United States v. Swinton, 333 F.3d 481 (3d Cir.), 

cert. denied, 540 U.S. 977 (2003) (holding that Apprendi does 

not apply retroactively to cases on collateral review). 

Similarly, the New Jersey Supreme Court has held that the rule 

it announced in Natale II is applicable retroactively only to 
 20

cases in the direct appeal pipeline as of the date of that 

decision. See Natale II, 184 N.J. at 494 (holding that “’Pipeline 

retroactivity'-applying our holding to defendants with cases on 

direct appeal as of the date of this decision and to those 

defendants who raised Blakely claims at trial or on direct 

appeal-best balances principles of fairness and repose”). 

 In this case, Petitioner's direct appeal concluded in 2004, 

prior to the decision in Natale II. See State v. Dobson, 179 N.J. 

309, 845 A.2d 134 (2004). Thus, his claim that his sentence 

violated the mandates of Blakely is meritless, as Blakely would 

not apply to his case, which was not in the direct appeal 

“pipeline” as of the Natale II decision. Petitioner is not 

entitled to habeas relief on this claim. 

E. 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 
 21

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. 

CONCLUSION

 For the reasons set forth above, the Petition for a Writ 

of Habeas Corpus is denied. No certificate of appealability will 

issue. 

 An appropriate Order follows. 

 s/ Jerome B. Simandle 

 JEROME B. SIMANDLE, Chief Judge 

 United States District Court 

Dated: April 10, 2014