NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

_______________________________________

CLINT WALKER, 

Plaintiff,

v.

GREG BARTOWSKI, et al.,

Defendants.

Civil Action No. 11-0400 (ES)

OPINION

Salas, District Judge

Petitioner Clint Walker (“Petitioner”) filed 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 against him for his role in a robbery. Petitioner brings a host of challenges relating to his 

trial, sentencing, and direct appeal. While Petitioner focuses on conflicting identification 

statements by the victim of the robbery, and attempts to point to constitutional error by the New 

Jersey courts, all of his claims are without merit. For the reasons detailed below, the Petition 

will be denied, and no certificate of appealability will issue. Petitioner’s application for 

appointment of pro bono counsel will be denied as moot.

I. BACKGROUND

Although the facts relating to Petitioner’s conviction are straightforward, the procedural 

history of his state court proceedings is convoluted. Moreover, Petitioner raised his claims 

before the state courts in a piecemeal fashion. Accordingly, to provide the reader with a clear 

understanding of the pertinent aspects of Petitioner’s case, this Court presents the background in

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four sections. First, the Court recounts the pre-trial investigation and arrest of Petitioner and his 

co-defendant Kenneth Grady. Second, the Court discusses the jury trial before the Superior 

Court of New Jersey, Law Division, Essex County (“trial court”), at which both defendants were 

convicted. Third, the Court recounts the substance of Petitioner’s direct appeal of his 

conviction to the New Jersey Appellate Division. And, finally, the Court addresses Petitioner’s 

post-conviction relief (“PCR”) proceedings before the trial court (“trial-level PCR court”) and 

the Appellate Division.

A. Pre-Trial Investigation and Arrest

On January 12, 2003, sixty-nine year-old Allen Cobb was robbed by two men as he 

loaded groceries into his van outside a supermarket in West Orange, New Jersey. State v. 

Walker, 2006 WL 1418632, at *1 (N.J. Super. Ct. App. Div. May 25, 2006) (D.E. No. 22-8). 

The two men were subsequently identified as Petitioner and his co-defendant Kenneth Grady. 

Id. Cobb testified that the two men approached him, one on each side. Id. Importantly, 

Cobb noticed that the men played different roles in the robbery. Id. The man on Cobb’s left

checked Cobb’s pockets, taking his car keys and wallet. Id. The wallet contained 

approximately $120 cash, Cobb’s credit cards, and his identification. Id. Unlike the man on 

Cobb’s left, the man on Cobb’s right “jacked” a sawed-off shotgun that was protruding from 

under the assailant’s coat. Id. After Cobb told both men that he had no more money, they 

drove away with his wallet and keys in a gray car, license plate number KGJ89P. Id. 

Once the two men drove off, Cobb called the police from inside the supermarket. Id. 

Officer Michael Mastras was the first to arrive on the scene—within three minutes of Cobb’s 

call. Armed with the get-a-way vehicle’s license plate number, Officer Mastras “alert[ed] all 

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units to keep an eye out for the vehicle.” Id. (alteration in original). Mastras also discovered 

that the license plate was from an older Nissan Stanza, last registered to Crystal D. Braxton in 

May of 2001. Id. 

Meanwhile, Cobb gave a sworn statement to Detective Joseph Spero (“Detective Spero”

or “Spero”) at the police headquarters. Id. at *2. In his statement, Cobb described both men

as black males in their twenties—one with “crazy looking hair and the other guy [ ]as a lighter 

skinned male with a mustache.” Id. Although Cobb was shown two books containing 

numerous photographs, he did not make a positive identification at that time. Id. 

On the same day that he took Cobb’s statement, Detective Spero spoke to Crystal 

Braxton about the Nissan Stanza. Id. Braxton stated that she was no longer in possession of 

the plates or the car. Id. According to Braxton, while she originally used the plates on the car, 

she abandoned the car (and plates) in 2000 when the car became disabled. Id. 

Shortly thereafter, Cobb informed Spero that $260 had been withdrawn from Cobb’s 

bank account with the stolen ATM card. Id. The ATM machine was at Newark Penn Station. 

Id. 

Several days later, Detective Spero learned that Petitioner shared an address with Crystal 

Braxton, and that Petitioner’s co-defendant Grady, lived in East Orange or Orange, New Jersey. 

Id. This discovery led Detective Spero to speak with Braxton a second time. Id. This time, 

Braxton stated that Petitioner was her fiancée and that he had been living with her. Id. In 

addition, Braxton told Spero that Petitioner was with her in 2000, when her vehicle became 

disabled. Id. Presented with a photograph of Grady, Braxton also identified Grady as one of 

Petitioner’s friends that she knew. Id. She signed and dated the back of the photograph. Id. 

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Spero then called Cobb to the police station for a photo array including Petitioner and 

Grady’s photographs. Id. Detective Matthew Palardy of a neighboring police department 

showed Cobb two photo line-ups, featuring six-person photo arrays.

1

 Id. Viewing the first 

photo array, Cobb identified Petitioner as one of the assailants and signed the back of Petitioner’s 

photograph. Id. Cobb stated, “that’s the guy who pointed the gun at me.” Id. In the 

second photo array, Cobb identified Grady as “the guy who went through my pockets or took my 

money.” Id. Cobb signed the back of Grady’s photograph, as he did with the photograph of 

Petitioner. Id. 

Thereafter, Detective Palardy informed Spero of the results of the photo arrays. Id. 

Based upon Cobb’s identifications, Spero obtained two arrest warrants—one for Petitioner, and 

one for Grady. Id. Both were arrested on January 23, 2003. Id. 

B. The Trial

Petitioner was tried before a jury on robbery, conspiracy, and gun possession charges, 

along with Grady as his co-defendant. Id. at *1. At the trial, issues arose with respect to 

Cobb’s identification of the assailants. See id. at *3. When asked to identify both assailants in 

court, Cobb stated that he was only “reasonably sure” that Petitioner and Grady were the two 

men that robbed him. Id. He indicated that he believed that they were the assailants, but 

explained that they looked different than they had at the time of the robbery. See id. Cobb 

noted that “the hair is different on both men” and “[o]ne man probably looks like he gained a 

little weight.” Id. 

 

1

 “Spero was not allowed to show the victim any photographs because he was involved in the 

investigation.” Id.

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Notably, when Cobb was directed to the pictures from the photo array that he had signed, 

his testimony contradicted his prior statements to the police. See id. While he previously 

identified Petitioner as the assailant in the first photo array photograph, when presented with that 

same photograph in court, Cobb indicated that the photograph depicted Grady instead. See id. 

He, similarly, contradicted his prior statement regarding the second photograph, stating in court 

that it depicted Petitioner rather than Grady. See id. The natural consequence of Cobb’s 

interchanging of the two defendants’ photographs was that Cobb’s trial testimony contradicted 

his prior statement regarding each defendant’s respective role in the robbery. See id. So, 

according to Cobb’s trial testimony, Grady was the one who held the sawed-off shotgun—not 

Petitioner.2See id. 

Ultimately, the jury found Petitioner guilty of: first-degree robbery, third-degree 

unlawful possession of a weapon (sawed-off shotgun), second-degree possession of a weapon for 

an unlawful purpose, third-degree knowingly possessing a prohibited weapon, and second-degree 

possession of a weapon by a convicted felon. Id. at *1. He was acquitted of second-degree 

conspiracy to commit robbery. Id. The trial court sentenced Petitioner to fifty-years

imprisonment with a requirement that he serve a minimum of 85% of his sentence per the No 

Early Release Act (“NERA”), N.J.S.A. 2C:43–7.2. See id.

C. Direct Appeal

Petitioner appealed to the Appellate Division. In his direct appeal, Petitioner raised 

seven points. Id. His points encompass challenges to the trial court’s jury instructions, several 

 

2

 Cobb’s testimony contradicted other prior statements made to the police, such as which 

co-defendant spoke to him first on the morning of the robbery. See id. Because these 

contradictions do not alter the Court’s analysis, they are not recounted here.

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of the court’s rulings relating to his conviction, including an ineffective assistance of counsel 

claim, as well as challenges to his sentence. The Court addresses each category of challenges in 

turn.

1. Jury Instruction Challenges

Petitioner’s first three points involved challenges to the trial court’s jury instructions. 

See Walker, 2006 WL 1418632, at *3. First, he argued that the trial court failed to instruct the 

jury on two lesser-included offenses: the offense of theft and the offense of aggravated assault. 

Id. (Point I). Second, Petitioner argued that the trial court failed to instruct the jury on the law 

of prior inconsistent statements. Id. (Point II). Third, Petitioner argued that the trial court’s 

jury instruction “that defendant was the actor”

3 was in error. Id. (Point III). 

The Appellate Division began its analysis of Petitioner’s jury instruction challenges by 

first noting that Petitioner had not raised any of these challenges to the trial court. Id. at *4. 

Because Petitioner had not requested the lesser-included charges, the Appellate Division noted, 

the trial court was not required to instruct on those charges unless “the facts adduced at trial 

clearly indicate[d] that a jury could convict on the lesser while acquitting on the greater offense.” 

Id. (citing State v. Jenkins, 840 A.2d 242 (2004); State v. Garron, 827 A.2d 243 (2003), cert. 

denied, 540 U.S. 1160 (2004)). “Thus,” the Appellate Division continued,

where the facts do not clearly raise the issue, and there is no 

request, there is no error in the failure to charge on the lesser 

offense. In such instances, a court need not sift through the 

record meticulously to find the few fragments which might suggest 

that a charge should be given.

Id. 

 

3

 In the Appellate Division’s decision the quoted language is in all uppercase letters. For 

readability purposes, this Court uses standard capitalization throughout the opinion instead.

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After summarizing the trial court record, the Appellate Division concluded that the trial 

court properly declined to charge the lesser-included offenses of theft and aggravated assault

because there was insufficient evidence to support those charges. Id. at *5. With respect to 

the prior inconsistent statements, the Appellate Division concluded that the trial court’s 

instructions on witness credibility and identification sufficiently instructed the jury “to focus on 

the victim’s [(Cobb’s)] varying accounts.” Id. at *8. Applying the plain error standard of 

review, the Appellate Division reasoned that Petitioner was, therefore, not deprived of a fair trial 

on account of the trial court’s failure to instruct the jury on the law of prior inconsistent 

statements. See id.

Regarding Petitioner’s contention that the trial court instructed the jury that Petitioner 

was “the actor,” the Appellate Division construed this challenge as asserting that the trial court 

“directed a verdict on an element of the charge of unlawful possession of a sawed-off shotgun.” 

Id. The Appellate Division rejected this challenge as “without sufficient merit to warrant 

discussion in a written opinion.” Id. (citing N.J. Ct. R. 2:11-3(e)(2)).

2. Other Conviction-Related Challenges

In addition to the jury instruction challenges, Petitioner raised several other points on 

direct appeal. See id. at *3. He argued that his trial counsel had an impermissible conflict of 

interest, and that his counsel’s representation violated the Sixth Amendment. Id. (Point IV). 

Next, Petitioner argued that the trial court should have suppressed the identification evidence 

because it was unreliable, and that admission of the evidence violated his Fourteenth 

Amendment rights. Id. (Point V). Petitioner then raised a cumulative effect argument, 

contending that his Fourteenth Amendment rights were violated by “the accumulation of trial 

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errors.” Id. (Point VI). The Appellate Division summarily rejected each of these challenges, 

noting that these challenges were “without sufficient merit to warrant discussion in a written 

opinion.” Id. at *8 (citing N.J. Ct. R. 2:11-3(e)(2)).

3. Sentencing Challenges

Petitioner, further, challenged his sentence. See id. at * 4. He argued that his sentence 

was excessive, and that the trial court did not properly balance aggravating factors. Id. (Point 

VII). He argued that he should be resentenced “because he was sentenced on the basis of an 

unconstitutional sentencing scheme.” Id. Lastly, Petitioner contended that the 85% parole 

ineligibility imposed by the trial court violated his Eighth Amendment right to be free from cruel 

and unusual punishment. Id. 

The Appellate Division focused its discussion of Petitioner’s sentencing challenges on 

New Jersey’s Graves Act, N.J.S.A. 2C:43-7a —New Jersey’s enhanced sentencing law—and the 

No Early Release Act. Id. at *8-9. The Appellate Division explained that, by operation of 

these statutes, Petitioner was subjected to a presumptive fifty-year term of imprisonment, and 

that this term carries a parole ineligibility of 85%. Id. at *9. Because the trial court’s sentence 

comported with the state statutory scheme, the Appellate Division reasoned, there was no 

constitutional error. Id.

Dissatisfied with the Appellate Division’s May 25, 2006 ruling, which rejected each of 

his claims, Petitioner filed a petition for certification with the New Jersey Supreme Court, on 

June 14, 2006. See State v. Walker, Crim. Indictment No. 02-04-1194, slip op. at 3 (Oct. 13, 

2005) (D.E. No. 22-15) (“Walker Trial PCR Decision”). That petition was denied on 

September 6, 2006. Id.

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D. PCR Proceeding – Trial Level

The month following the New Jersey Supreme Court’s denial of certification on October 

13, 2006, Petitioner filed a pro se petition for post-conviction relief with the trial court. See id. 

In his petition, he challenged the effectiveness of his counsel and contended that he did not 

receive a fair trial. See id. at 3. He delineated eleven points revolving around these two broad

issues.4 Id.

Regarding ineffective assistance of his trial counsel, Petitioner generally contended that 

his counsel was ineffective “at the pre-trial stage” and “at the trial stage.” Id. (“POINT TWO” 

through “POINT FOUR”). He further argued that his trial counsel was ineffective in several 

specific ways. See id. at 3-4. First, Petitioner argued that his counsel failed to request a jury 

charge on the lesser-included offenses of armed robbery, aggravated assault, and prior 

inconsistent statements. Id. at 4 (“POINT FIVE” through “POINT SEVEN”). Next, he 

argued that his counsel failed to object “to the trial court’s instruction to the jury that directed the 

jury to find that the defendant was the actor.” Id. (“POINT EIGHT”). In addition, Petitioner 

challenged his trial counsel’s failure to either request an alibi instruction or object to the trial 

court’s decision not to give that instruction. Id. (“POINT NINE”). Combining these 

challenges together, Petitioner then argued that the accumulation of errors by his trial counsel 

denied him due process of law. Id. (“POINT TEN”). Finally, Petitioner argued that his 

appellate counsel was ineffective for failing to challenge the trial court’s alibi jury instruction on 

appeal. Id. (“POINT ELEVEN”).

 

4 Perplexingly, Petitioner included the following as his first point: “The matter herein is 

properly presented the [sic] court by way of a petitioner for post conviction relief.” Id.

(“POINT ONE”). Because this point does not state a substantive challenge, the Court will not 

address it further in this opinion.

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Turning to his fair trial challenges, Petitioner raised two challenges—that the trial court 

failed to instruct the jury on alibi, id. at 4 (“POINT NINE”), and that the prosecutor engaged in 

misconduct, id. (“POINT TWELVE”). 

In February 2008, after the pro se petition was filed, the trial-level PCR court received 

briefing on Petitioner’s ineffective assistance and fair trial challenges from PCR counsel. See

State v. Walker, No. A-0079-08T4, slip op. at 3 (N.J. Sup. Ct. App. Div. July 12, 2010) (D.E. 

No. 22-19) (“Walker Appellate PCR Decision”). Thereafter, in June 2008, the PCR court held 

oral argument, and denied the petition on the record. Id. The court then issued a written 

decision. Id.

Separately, and thoroughly, discussing each claim, the court denied Petitioner’s requests 

for relief on the merits.5 Walker Trial PCR Decision, No. 02-04-1194, slip op. at 3. For 

example, in addressing Petitioner’s challenge to his counsel’s decision not to request an alibi 

instruction, the court detailed the pertinent facts and held that trial counsel’s decision not to 

request an alibi instruction was “a carefully considered strategic decision, which courts generally 

consider unchallengeable.” Id. The court’s ruling on this claim (and the others) applied the

well-recognized Strickland6framework. See id. at 8-14. The trial-level PCR court further 

held that the appellate counsel’s decision not to challenge, on appeal, the lack of an alibi 

instruction was also a strategic choice that did not prejudice Petitioner.7 Id. at 13-14.

 

5

 Even where the PCR court noted that a claim was procedurally defaulted because it had 

already been raised on appeal, the court nonetheless ruled on the merits of the claim. See, e.g., 

id. at 9 (discussing POINT V); id. at 11 (discussing POINT VI).

6

 Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

7

 Further detail regarding the PCR court’s analysis is included, where relevant, in the 

discussion section of this opinion.

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Additionally, the trial-level PCR court held that Petitioner’s attempt to re-litigate the 

Appellate Court’s jury instruction ruling on direct appeal was procedurally barred under state 

law. See id. at 6. On the prosecutorial misconduct claim, the PCR court rejected Petitioner’s 

factual contention that the prosecutor “knowingly allowed false testimony and statements to be 

presented” as unsupported by the trial record. Id. at 14. In fact, the court found all of 

Petitioner’s prosecutorial misconduct challenges unsupported by the record, “misleading[,] and 

verifiably inaccurate.”8 Id.

E. PCR Proceeding – Appellate Level

Following denial of his PCR petition at the trial level, Petitioner appealed to the 

Appellate Division. Walker Appellate PCR Decision, No. A-0079-08T4, slip op. at 7. As 

with his prior challenges, Petitioner again raised issues that had already been litigated. See id.

at 6-7. He argued, first, that his trial counsel failed to request jury charges on prior inconsistent 

statements, and the lesser-included offense of theft. Id. Petitioner further argued that his trial 

counsel did not conduct a meaningful investigation.9Id. at 7. New to this appeal, Petitioner 

argued in a pro se supplemental brief that his PCR counsel was ineffective for neglecting to 

“address the cross-racial jury instruction regarding identification submitted by the trial court” 

and “that [Petitioner] was not granted a proper Wade hearing.”10 Id.

 

8

 The copy of the PCR court decision provided to the Court stops at the bottom of page 14. 

See id. This Court is not concerned that any salient portions are missing from the Court’s copy 

because this copy appears to contain all of the PCR court’s analysis, and neither Petitioner nor 

Respondent has relied upon pages of the decision beyond page 14.

9

 Petitioner also argued that his claims were not, as the PCR court held, procedurally barred 

under state law, and Petitioner incorporated all of his previously asserted claims into the PCR 

appeal. Id.

10

 United States v. Wade, 388 U.S. 218 (1967).

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In a decision issued on July 12, 2010, the Appellate Division affirmed the trial-level PCR 

court’s denial of the PCR petition for substantially the same reasons set forth in the lower court’s 

written decision. Id. at 10. As for Petitioner’s pro se challenge to the effectiveness of his 

PCR counsel, the Appellate Division rejected the cross-racial identification challenge as 

unsupported by the record. Id. at 12. Contrary to Petitioner’s assertion, the Appellate 

Division noted that such a charge was instructed. Id. The Appellate Division also denied the 

Wade hearing challenge, noting that this challenge had “no merit[.]” Id.

II. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 

1214, a federal court may grant habeas relief where the petitioner’s state custody “is . . . in 

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 

Under the “highly deferential AEDPA standard,” Garrus v. Sec’y of Pa. Dep’t of Corr., 694 F.3d 

394, 400 (3d Cir. 2012), habeas relief may be granted only in two narrow circumstances, where 

the state court’s adjudication of the petitioner’s claim on the merits:

(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). In short, section 2254(d)(1) governs federal court review of the state 

court’s legal conclusions whereas section 2254(d)(2) governs review of factual findings.

Regarding a state court’s legal conclusions, a “decision involves an unreasonable 

application of clearly established federal law where the state court identifies the correct legal 

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principle from the Supreme Court’s decisions but unreasonably applies that principle to the facts 

of the prisoner’s case.” Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (quoting Siehl v. 

Grace, 561 F.3d 189, 195 (3d Cir. 2009)) (internal quotation marks and alterations omitted). A 

state court unreasonably applies clearly established federal law “if it confronts a set of facts that 

is materially indistinguishable from a decision of [the Supreme] Court but reaches a different 

result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citations omitted); see also Cullen v. 

Pinholster, 131 S. Ct. 1388 (2011). For § 2254(d)(1) purposes, “[i]t is not enough that a federal 

habeas court, in its independent review of the legal question, is left with a firm conviction that 

the state court was erroneous.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal quotations 

omitted); see also Rountree v. Balicki, 640 F.3d 530, 537 (3d Cir. 2011) (same). Habeas relief 

should be granted only where the state court ruling “was so lacking in justification that there was 

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

fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011). 

With respect to a state court’s factual determinations, “[a] state court decision is based on 

an unreasonable determination of the facts only if the state court’s factual findings are 

objectively unreasonable in light of the evidence presented in the state-court proceeding.” Eley 

v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013) (quoting Miller-El v. Cockrell, 537 U.S. 322 

(2003)) (internal quotation marks omitted). A federal court, sitting in habeas review, must 

presume that the state-court factual findings are correct. Miller–El v. Dretke, 545 U.S. 231, 240 

(2005)) (quoting § 2254(e)(1)). To rebut the presumption that a state court’s factual findings 

are correct, a petitioner must point to “clear and convincing evidence” that supports a contrary 

conclusion. Han Tak Lee v. Glunt, 667 F.3d 397, 403 (3d Cir. 2012) (citing 28 U.S.C. § 

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2254(e)(1)). Indeed, the state court’s finding should not be disturbed where the “evidence in 

the state-court record can fairly be read to support the . . . court’s factual determination.” Wood 

v. Allen, 558 U.S. 290, 302 (2010). 

Finally, where a constitutional error is found, the petitioner must further demonstrate that 

the state court determination had a “substantial and injurious effect” on the conviction or 

sentence in order to obtain habeas relief. Fry v. Pliler, 551 U.S. 112, 121 (2007), cited in 

Garrus, 694 F.3d at 412.

III. DISCUSSION

In his Petition here, Petitioner seeks to have this Court rule upon all the claims he 

raised—both pro se and with the assistance of counsel—on direct appeal, and in his PCR 

proceedings before the trial-level PCR court and at the Appellate Division. As explained 

above, Petitioner challenged the effectiveness of his trial, appellate, and PCR counsel, and 

contended that he did not receive a fair trial. 

In assessing Petitioner’s claims here, the Court looks to the last reasoned state court 

decision on the merits. Simmons v. Beard, 590 F.3d 223, 232 (3d Cir. 2009). A determination 

as to which state court ruling is the last reasoned decision depends upon the issue raised. As 

noted, Petitioner raised his claims in a piecemeal fashion before the state courts. By way of 

example, some of his jury instruction challenges were raised only on direct appeal. So, for 

those claims, the Appellate Division ruling on direct appeal is the last reasoned state court 

decision. See McBride v. Superintendent, SCI Houtzdale, 687 F.3d 92, 101 (3d Cir. 2012) 

(“[A]n adjudication on the merits can occur at any level of state court.”) (quoting Thomas v. 

Horn, 570 F.3d 105, 115 (3d Cir. 2009)) (internal quotation marks omitted). Conversely, for 

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his ineffective assistance of counsel claims, those claims were addressed in the trial-level PCR 

court’s written decision issued in 2008.

11

 Thus, the Court looks to that decision for its review 

of Petitioner’s ineffectiveness of counsel challenges, save his challenges to his PCR counsel’s 

performance that were raised for the first time in his PCR appeal. The Court must look to the 

Appellate Division’s PCR decision for that sole claim. Finally, since the prosecutorial 

misconduct claims were addressed by the PCR court at the trial level, the Court looks to the trial 

court’s written decision for those challenges.

Because the state court’s legal conclusions constitute reasonable applications of United 

States Supreme Court law, and evidence in the state court record supports that court’s factual 

findings, this Court will deny Petitioner’s request for federal habeas relief. In addressing 

Petitioner’s claims, the Court groups them as follows: jury instructions, identification, 

prosecutorial misconduct, sentencing, and ineffective assistance of counsel claims (including 

trial, appellate, and PCR counsel).

A. Jury Instructions

Petitioner argues that the trial court erred in failing to instruct the jury on the two 

lesser-included offenses of theft and aggravated assault, and for instructing the jury in such a 

manner to direct a verdict against him, i.e., directing that he was “the actor.” The Court

addresses the lesser-included claims first.

 

11

 This Court looks to the PCR court, trial-level decision because the Appellate Division 

affirmed for substantially the same reasons expressed by that court, adding only a few additional 

comments. See Johnson v. Pinchak, 392 F.3d 551, 557 (3d Cir. 2004) (“[W]hen the last state 

court decision simply affirms summarily the lower court's denial of relief, a federal court should 

look to the ‘last explained state-court judgment on the . . . claim.’”) (emphasis added) (quoting 

Ylst v. Nunnemaker, 501 U.S. 797, 802, 805 (1991)).

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1. Lesser-Included Offenses

The Appellate Division rejected the lesser-included claims on direct appeal. The court 

explained that, under New Jersey law, the trial court’s responsibility in “[d]etermining whether 

to charge the jury on a lesser-included offense depends largely on whether or not a charge was 

requested by defendant at trial.” Walker, 2006 WL 1418632, at *4 (citing State v. Savage, 799 

A.2d 477, 491-92 (2002)). Where, as in Petitioner’s case, defense counsel did not request the 

lesser-included offense charges, state law directs the trial court to instruct on the lesser offense 

“only when the facts adduced at trial clearly indicate that a jury could convict on the lesser while 

acquitting on the greater offense.” Id. (citing State v. Jenkins, 840 A.2d 242, 250-51 (2004)). 

The court went on to assess the evidentiary record and concluded that the record did not 

“clearly indicate” that the theft and aggravated assault charges were appropriate. Id. at *4. 

The Appellate Division reasoned, with respect to the theft charge:

While Cobb’s identification of defendant may have wavered, he 

never departed from his initial statement that one of his assailants 

was armed with a sawed-off shotgun, that he was threatened with 

immediate bodily harm, and that the other assailant removed his 

wallet and car keys. These facts provide no basis for a charge of 

theft as a lesser included offense.

Id. at *5. Addressing the aggravated assault charge, the court explained that, under New Jersey 

law, aggravated assault is not always a lesser-included offense of robbery, “largely because the 

use of force required to sustain a robbery conviction is not necessarily equivalent to the use of 

force necessary to sustain an assault conviction.” Id. In the court’s view, because “Cobb’s 

wallet was forcibly taken from him; there is no evidence to support the proposition that 

defendant committed an aggravated assault without a theft.” Id.

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As is clear from this recounting of the Appellate Division’s ruling, the court relied on 

New Jersey law in rendering its decision. The United States Supreme Court and Third Circuit 

have made clear that it is not the role of the federal courts to review state court jury instruction 

rulings that are based on state law; rather, the federal court’s “task is to determine whether [a 

petitioner] ‘is in custody in violation of the Constitution or laws or treaties of the United States.’” 

Barkley v. Ortiz, 209 F. App’x 120, 124 (3d Cir. 2006) (quoting 28 U.S.C. § 2254); see also 

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court 

to re-examine state court determinations on state-law questions.”) In other words, federal 

“habeas review of jury instructions is limited to those instances where the instructions violated a 

defendant’s due process rights.” Echols v. Ricci, 492 F. App’x 301, 312 (3d Cir. 2012) (citing

Estelle, 502 U.S. at 72-73). 

In his direct appeal, Petitioner did not present his claim to the Appellate Division as one 

rooted in federal law. He did not point to any United States Supreme Court decisional law, or 

even lower federal court decisions, in support of his claim. See Pet. Br. on Direct Appeal at 

12-19 (D.E. No. 22-6) (citing State v. Perry, 590 A.2d 624 (1991), and other New Jersey law, in 

support of theft argument); id. at 19-22 (citing neither state nor federal law in support of 

aggravated assault argument). In Baldwin v. Reese, 541 U.S. 27 (2004), the Supreme Court 

held that a habeas petitioner did not “fairly present” a federal claim where the petitioner failed to 

explicitly state that the claim was federal and failed to cite federal law. Id. at 32-33. Cf. 

Howell v. Mississippi, 543 U.S. 440 (2005) (dismissal of writ of certiorari) (concluding that 

petitioner did not “properly present his claim [to a state court] as one arising under federal law” 

because “[i]n the relevant argument, he did not cite the Constitution or even any cases directly 

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18

construing it, much less any of [the Supreme] Court’s cases”). Likewise, Petitioner in this 

action did not present his claim as a federal one. In fact, the only reference to the Constitution 

in this section of Petitioner’s brief is the mere title of the section, which states that “the trial court 

deprived the defendant of due process of law as guaranteed by the Fourteenth Amendment.” 

Pet. Br. on Direct Appeal at 12 (D.E. No. 22-6). 

Not surprisingly, the New Jersey Appellate Division did not analyze Petitioner’s 

lesser-included-offense challenges under federal law.12 Accordingly, this Court may not pass 

on the Appellate Division’s ruling, and may not grant habeas relief. Accord Barkley, 209 F.

App’x at 125 (“Here, the New Jersey Superior Court did not apply or analyze federal law 

because Barkley did not prompt it to do so. Therefore, Barkley’s claim that the New Jersey 

Superior Court improperly ruled on his jury instruction argument cannot give rise to habeas 

relief.”).

13

 

Moreover, while Petitioner references the Due Process Clause of the Fourteenth 

Amendment in his papers to this Court, the Supreme Court has never held that the Due Process 

 

12 The court’s analysis relied solely on state law, and the only reference to federal law in the 

decision is in the restatement of the points asserted by the Petitioner. For example, the court 

describes Point I as “The Trial Court deprived the Defendant of Due Process of Law as 

guaranteed by the Fourteenth Amendment to the United States Constitution and Art. 1 Par. 1 of 

the New Jersey Constitution by failing to instruct the Jury on pertinent Lesser-Included 

Offenses.” Walker, 2006 WL 1418632, at *3. However, because Petitioner’s brief did not cite 

any federal law in support of its decision, the Appellate Division did not analyze the claim as a 

federal one.

13

 To the extent that Petitioner challenges the state court’s factual findings that the trial 

evidence did not support charges on the theft and aggravated assault charges, his claim still fails. 

“[T]he factual determinations of state trial and appellate courts are presumed to be correct [and 

t]he petitioner bears the burden of rebutting the presumption by clear and convincing evidence.” 

Eley, 712 F.3d at 846 (internal citation and quotation marks omitted). Here, Petitioner has not 

pointed to clear and convincing evidence that contradicts the state court’s findings.

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Clause mandates lesser-included-offense instructions in non-capital cases like his. See Johnson

v. Keith, 726 F.3d 1134, 1135 n.2 (10th Cir. 2013) (“[N]either this court nor the Supreme Court 

has recognized a federal constitutional right to a lesser included instruction in non-capital 

cases.”); cf. Gilmore v. Taylor, 508 U.S. 333, 342 (1993) (“Outside of the capital context, we 

have never said that the possibility of a jury misapplying state law gives rise to federal 

constitutional error.”).

14

 Beck v. Alabama, 447 U.S. 625 (1980) (requiring 

lesser-included-offense-instructions in capital cases). Where the Supreme Court has not held 

that a particular jury instruction, or failure to give that instruction, is unconstitutional, there is no 

right to habeas relief. See Smith v. Spisak, 558 U.S. 139 (2010) (declining to grant habeas relief 

based where jury instructions were not “previously held . . . unconstitutional”). Therefore, 

Petitioner’s request for habeas relief on this ground is denied. Accord Carney v. Fabian, 487 

F.3d 1094, 1098 (8th Cir. 2007) (“Because [t]he Supreme Court has never held that due process 

requires the giving of lesser-included-offense instructions in noncapital cases, the trial court’s 

refusal to give the heat-of-passion manslaughter instruction here cannot be contrary to clearly 

established federal law.”) (internal citation and quotation marks omitted).

 

14

 The Third Circuit, in Vujosevic v. Rafferty, stated that while the Supreme Court has held 

that instructions must be given for lesser-included-offenses only in capital cases, the circuit 

applies the Supreme Court’s requirement to non-capital cases. 844 F.2d 1023, 1027 (3d Cir. 

1988). The Third Circuit and other courts have called Vujosevic’s conclusion into question. 

See Geschwendt v. Ryan, 967 F.2d 877, 884 n.13 (3d Cir. 1992); Robertson v. Hanks, 140 F.3d 

707, 711 n.5 (7th Cir. 1998); Peoples v. Cathel, No. 05-5916, 2006 WL 3419787, at *7 (D.N.J.

Nov. 21, 2006). More importantly, for habeas review purposes, this Court may consider only 

Supreme Court law–not court of appeals precedent. See Marshall v. Rogers, 133 S. Ct. 1446, 

1450 (2013) (holding that courts may not use circuit precedent “to refine or sharpen a general 

principle of Supreme Court jurisprudence into a specific legal rule that this Court has not 

announced.”)

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2. Prior Inconsistent Statements

Next, Petitioner argues that the trial court should have given a jury instruction on prior 

inconsistent statements, in light of Cobb’s inconsistent identification accounts. As noted above, 

at trial, Cobb testified that Petitioner’s co-defendant Grady held the sawed-off shotgun during the 

robbery. In his earlier statement to the police, Cobb stated that Petitioner, not Grady, held the 

gun. In Petitioner’s direct appeal to the Appellate Division, he argued that the trial court should 

have given a prior inconsistent statement instruction so that the jury was aware that it could rely 

on the prior police statement both to assess Cobb’s credibility and as substantive evidence. 

This claim was addressed, and rejected, by the Appellate Division. As an initial matter, 

the court noted that, while the trial judge did not charge on prior inconsistent statements, the 

judge gave “extensive instructions regarding witness credibility and identification.” Walker, 

2006 WL 1418632, at *6. In these instructions, the trial judge expressly referenced Cobb’s 

prior statement. Among other things, the trial judge explained to the jury:

The State has presented the testimony of Allen Cobb. You 

will recall that this witness identified the defendants in Court as the 

persons who committed the robbery.

[The] State also presented testimony that on a prior 

occasion, before this trial, this witness identified the defendants as 

the persons who committed these offenses.

According to the witnesses-according to the witness, his

identification of the defendants was based upon the observations 

and perceptions that he made of the perpetrators at the time the 

offense was being committed.

It's your function to determine whether the witness' 

identification of the defendants is reliable and believable, or 

whether it's based on a mistake, or for any reason not worthy of 

belief. You must decide whether it's sufficient reliable evidence 

upon which to conclude that these defendants are the persons who 

committed the offenses charged.

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Id. at *7 (emphasis added). In addition, the Appellate Division found the trial judge’s specific

reference to “discrepancies or inconsistencies between identifications” a significant factor for the 

jury to consider. Id.

The Appellate Division reasoned that the trial court’s thorough credibility instruction –

only a portion of which is recounted here–ensured that any failure to charge on prior inconsistent 

statements did not contribute to an unjust result. According to the Appellate Division, 

[t]he central issue in this case was whether defendant was one of 

the men who robbed Cobb at gunpoint in the Pathmark parking lot. 

The victim’s confusion at trial related to the central issue of 

identification. The extremely thorough instruction delivered by the 

court allowed the jury to focus on the victim’s varying accounts. 

Id. at *8.

As with his lesser-included-offense challenges, Petitioner did not present a federal law 

challenge to the Appellate Division for its review but brought his challenge under state law. 

See Pet. Br. on Direct Appeal at 22-25 (D.E. No. 22-6) (citing only New Jersey law in support of 

argument). Federal courts do not “sit as super state supreme courts for the purpose of 

determining whether jury instructions were correct under state law.” Johnson v. Rosemeyer, 

117 F.3d 104, 110 (3d Cir. 1997); see also Estelle, 502 U.S. at 67-68 (stating that federal courts

do not “re-examine state court determinations on state-law questions”). Moreover, Petitioner 

has not pointed to any Supreme Court precedent that the state court unreasonably applied. As 

noted, federal “habeas review of jury instructions is limited to those instances where the 

instructions violated a defendant’s due process rights” under the United States Constitution. 

Echols, 492 F. App’x at 312 (citing Estelle, 502 U.S. at 72-73). Accordingly, his request for 

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habeas relief on account of the trial judge’s failure to instruct on prior inconsistent statements is 

denied. 

3. Directed Verdict – “Defendant the Actor”

Petitioner argued before the Appellate Division on direct appeal that the trial court erred 

in making the following instruction to the jury, which Petitioner views as directing them to find 

that he was the perpetrator or actor:

Knowingly, with knowledge or equivalent terms have the same 

meaning. A person acts knowingly with respect to his conduct if 

he’s aware that his conduct is of that nature. You must determine 

whether a defendant was aware of the nature of his conduct in this 

case.

See Pet. Br. on Direct Appeal at 26 (D.E. No. 22-6) (quoting Trial Tr. 114-21 to 115-1). The 

Appellate Division summarily rejected this claim on direct appeal, stating that it was “without 

sufficient merit to warrant discussion in a written opinion.” Walker, 2006 WL 1418632, at *8 

(citing N.J. Ct. R. 2:11-3(e)(2)). The claim was not addressed on the merits by the trial-level 

PCR court or by the Appellate Division on PCR appeal. 

Although the Appellate Division did not express the rationale for its decision, it is clear 

that this claim does not warrant habeas relief. According to the United States Supreme Court, 

the paramount question on habeas review of a jury instruction is “whether the ailing instruction 

by itself so infected the entire trial that the resulting conviction violates due process.” Estelle, 

502 U.S. at 73. To show that a jury instruction so infected the trial, “a habeas petitioner must 

demonstrate both (1) that the instruction contained some ambiguity, inconsistency, or deficiency, 

and (2) that there was a reasonable likelihood that the jury applied the instruction in a way that 

relieved the State of its burden of proving every element of the crime beyond a reasonable 

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doubt.” Williams v. Beard, 637 F.3d 195, 223 (3d Cir. 2011) (emphasis added) (quoting 

Waddington v. Sarausad, 555 U.S. 179, 189 (2009)) (internal quotation marks omitted).

Habeas relief is inappropriate here because the trial court’s jury charge did not take away 

the prosecution’s obligation to prove beyond a reasonable doubt that Petitioner committed the 

charged offenses. Throughout the jury instructions, the trial judge stressed to the jurors the

State’s obligation to prove its case. See generally Trial Tr. 79-128 (D.E. No. 22-26). For 

example, when instructing the jury on the robbery count, the trial judge explained: 

A person is guilty of robbery if in the course of committing 

a theft, he knowingly inflicts bodily injury or uses force upon 

another, or threatens another with or purposely puts him in fear or 

immediate bodily injury.

In order for you to find the defendant guilty of robbery, the 

State is required to prove each of the . . . elements [of robbery] 

beyond a reasonable doubt.

* * * *

In [this connection], the State must also prove beyond a 

reasonable doubt [that] the defendants knowingly inflicted bodily 

injury or used force upon another.

Id. at 105:13-107:14 (emphasis added). Indeed, the trial judge methodically covered every 

element that the State had to prove in order to obtain Petitioner’s robbery conviction. See id. at 

105:3-113:3. 

For the firearm conviction, the trial judge similarly, and repeatedly, told the jury that “the 

State must prove” all required elements in order for the jurors to return a guilty verdict. See, 

e.g., id. at 113:12 (“In order for the State to convict the . . . defendant of [possession of a sawed 

off shotgun], the State must prove beyond a reasonable doubt these three elements: One, there 

was a shotgun. Two, the defendants knowingly possessed the shotgun. And three, the 

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defendants did not have a valid Firearms Purchaser Identification Card.”); id. at 114:10-12 (“The 

second element the State must prove beyond a reasonable doubt is that the defendants knowingly 

possessed a shotgun.”); id. at 117:19-21 (“If you find the State has failed to prove any of these 

elements beyond a reasonable doubt your verdict must be not guilty.”).

Accordingly, the Appellate Division’s conclusion that the petitioner’s challenge to the 

trial court’s charge was without merit and comports with Supreme Court law. As noted, to 

demonstrate a constitutional violation, the Petitioner must show that “there was a reasonable 

likelihood that the jury applied the instruction in a way that relieved the State of its burden of 

proving every element of the crime beyond a reasonable doubt.” Williams, 637 F.3d at 223. 

Because Petitioner has not shown such a reasonable likelihood here, the state court’s conclusion 

cannot be an unreasonable application of Supreme Court precedent. Habeas relief on this 

ground is denied.

B. Identification

Petitioner also argued before the Appellate Division, on direct appeal, that Cobb’s 

identification testimony should have been suppressed as unreliable. The Appellate Division

summarily rejected this claim as without merit, and did not explain the basis for its ruling. See 

Walker, 2006 WL 1418632, at *8. In his Petition to this Court, Petitioner states as the factual 

predicate for his claim that Cobb originally identified him as brandishing the weapon but, at trial, 

identified Grady as the one who threatened him (Cobb) with the weapon. See Pet. at 3 (D.E. 

No. 11). To demonstrate that Cobb’s identification testimony should be suppressed, Petitioner 

would have to show that “the identification process was unduly suggestive,” and that “the totality 

of the circumstances” did not “render[ ] the identification reliable.” Thomas v. Varner, 428 

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F.3d 491, 503 (3d Cir. 2005) (citing Neil v. Biggers, 409 U.S. 188 (1972)). When the trial 

identification testimony follows a pretrial identification by photograph, the testimony “will be set 

aside only if the photographic identification was so impermissibly suggestive as to give rise to a 

very substantial likelihood of . . . misidentification.” Id. (quoting Simmons v. United States, 

390 U.S. 377, 384 (1968)). Here, Petitioner has not even attempted to argue that the photo 

array conducted by Detective Palardy was impermissibly suggestive. Therefore, there is no 

basis for this Court to conclude that the Appellate Division’s decision was contrary to, or an 

unreasonable application of, Supreme Court precedent. For this reason, his request for habeas 

relief on this basis is denied.

C. Prosecutorial Misconduct

The trial-level PCR court ruled on Petitioner’s prosecutorial misconduct claim, noting 

that prosecutorial misconduct may warrant reversal only where “the misconduct is so egregious 

in the context of the trial as a whole as to deprive the defendant of a fair trial.” See Walker 

Appellate PCR Decision, No. A-0079-08T4, slip op. at 14 (quoting State v. Wakefield, 91 A.2d 

954 (2007)). Petitioner asserted that the prosecutor had allowed false testimony to be presented 

at trial. The court rejected Petitioner’s factual contention that the prosecutor “knowingly 

allowed false testimony and statements to be presented” as unsupported by the trial record. Id. 

According to the PCR court,

defense states that during the Wade hearing Detective Spero15

inaccurately testified that he reviewed a teletype from the Orange 

Police Department at the start of his investigation. Both the 

defense and the prosecution acknowledge that Detective Spero 

reviewed the teletype several days after the investigation 

commenced. Counsel references lines 1T 16-13 to 14 of the 

transcript from the Wade hearing. However, lines 13-14 clearly 

 

15 Detective Spero was the detective who investigated the robbery.

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state that Detective Spero reviewed the tapes a few days earlier. 

Therefore, Petitioner’s allegation is simply inaccurate.

Id.

The court also found Petitioner’s second prosecutorial misconduct challenge unsupported 

by the record, “misleading[,] and verifiably inaccurate.” Id. Specifically, the court discussed 

Petitioner’s assertion that the prosecutor introduced an inflammatory narrative report by 

Detective Spero. Rejecting this characterization, the trial-level PCR court noted that the 

narrative was “simply a factual recitation of the incident and investigative steps taken by the 

detective after the incident,” and that there was nothing “offensive or provocative” about the 

report. Id. 

Finally, the trial-level PCR court addressed Petitioner’s contention that the prosecutor 

allowed Detective Spero to lie when he (the detective) stated in the Wade hearing that Detective 

Palardy was not involved in the investigation. According to Petitioner, Detective Palardy 

subsequently contradicted Detective Spero’s testimony, admitting that he was involved in the 

investigation. Id. According to the court, it is clear from the context surrounding Detective 

Spero’s statement that he was referring to the stage of investigation preceding Detective 

Palardy’s participation in the photo array given to the victim, Cobb. Id. (citing 1T 22-20 to 24; 

23-1 to 9). And, Detective Palardy’s admission was only that he was involved in administering 

the photo arrays. Id. (citing 3T 133-15 to 147-18). “Therefore, [the trial-level PCR court 

reasoned], there is no inconsistency in the two detectives’ accounts.” Id.

As is clear from the aforesaid discussion, the trial-level PCR court rejected the 

Petitioner’s prosecutorial misconduct challenges on factual grounds, finding his challenges to be 

unsupported by the record. The state court’s factual findings are presumptively correct and, to 

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rebut this presumption, Petitioner must point to “clear and convincing evidence” that supports a 

contrary conclusion. Han Tak Lee, 667 F.3d at 403. Moreover, as long as “evidence in the 

state-court record can fairly be read to support the . . . court’s factual determination[,]” the 

court’s finding should not be disturbed. Wood, 558 U.S. at 302. 

In this case, Petitioner has not pointed to clear and convincing evidence that would 

suggest the court’s factual determinations are erroneous. Indeed, a review of the Wade hearing 

transcript reveals that there is record evidence that supports the court’s factual determinations. 

Regarding Detective Spero’s statements about the teletype, Petitioner asserts that the detective 

inaccurately stated that he reviewed the teletype at the start of his investigation. However, as 

the court noted, it is clear from the Wade transcript that the detective clearly indicates he 

reviewed the teletype several days after the investigation started on January 12, 2003:

Q. And calling your attention to January 12th of the 

year 2003 . . . what position did you hold?

A. Detective.

Q. . . . did you become around that time involved in a 

case involving a robbery .... ?

A. Yes.

* * *

Q. Okay. And how did you become involved in this 

case?

A. I was called at home to respond to headquarters.

Q. Okay. What day of the week was it?

A. I believe it was Sunday.16

 

16

 The Court takes judicial notice that January 12, 2003 was a Sunday.

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* * *

Q. Was an identification made on that day, on January 

12th?

A. No.

Q. Okay. Where, what happened with your 

investigation regarding identification, Detective? What occurred?

A. I was reviewing the teletypes a few days later and I 

read one from Orange Police Department.

Trial Tr. 13:15-16:14 (D.E. No. 22-23) (emphasis added).

As for Detective Spero’s statements regarding Detective Palardy’s involvement, 

Detective Spero clearly acknowledged during the Wade hearing that Detective Palary conducted 

the photo array. In response to the question, “what were your instructions to Detective Polardi 

[sic] on January 22nd?” Detective Spero states “I told him there were two photo arrays to show 

Mr. Cobb, and I gave him six individual photos.” Id. at 23:7-23:11. Thus, there is evidence in 

the record that fairly supports the court’s factual finding regarding the Wade hearing testimony. 

To the extent Petitioner challenges the court’s legal conclusion, his claim fails on that 

basis as well. “When analyzing a claim of prosecutorial misconduct, the key question is 

whether [the misconduct] ‘so infec[ted] the trial with unfairness as to make the resulting 

conviction a denial of due process.’” Rolan v. Coleman, 680 F.3d 311, 321 (3d Cir. 2012) 

(quoting Greer v. Miller, 483 U.S. 756, 765 (1987)) (quotation marks and citation omitted). 

Pursuant to the Supreme Court’s decision in Napue v. Illinois, a constitutional due process 

violation may exist where “the State, although not soliciting false evidence, allows it to go 

uncorrected when it appears.” 360 U.S. 264, 269 (1959). Under this standard, “[t]o establish 

prosecutorial misconduct for the use of false testimony, a defendant must show the prosecutor 

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knowingly used perjured testimony, or failed to correct what he subsequently learned was false 

testimony . . . .” United States v. McNair, 605 F.3d 1152, 1208 (11th Cir. 2010), cited with 

approval in Prosdocimo v. Sec’y, Pa. Dept. of Corr., 458 F. App’x 141, 147 n.5 (3d Cir. 2012).

In this case, even assuming that the PCR court’s factual findings regarding the Wade 

transcript testimony were erroneous, the court’s refusal to grant relief is not an unreasonable 

application of Supreme Court precedent because there is no indication that Detective Spero’s 

testimony was perjurious. The Third Circuit addressed this issue in Prosdocimo. In that case, 

the circuit explained that some courts have interpreted Napue to apply only to the introduction of 

perjured testimony, and that, under such an interpretation, it would not apply to false testimony 

that was the “result of confusion, mistake, or faulty memory.” Prosdocimo, 458 F. App’x at 

147 (quoting United States v. Hoffecker, 530 F.3d 137, 183 (3d Cir. 2008)). The circuit found 

that habeas relief was not warranted in that case, where it was impossible to discern from the 

state court record whether the disputed testimony was perjurious. Likewise, here, Petitioner has 

not pointed to any evidence in the state court record that would suggest Detective Spero 

committed perjury as opposed to misspeaking out of confusion, mistake, or faulty memory.

Lastly, the Court briefly addresses Petitioner’s contention that the prosecutor committed 

misconduct by not striking Detective Spero’s report. A copy of the report was not provided to 

this Court. However, it is still clear that Petitioner’s claim fails because he has not quoted from 

or pointed to specific language in the report that is inflammatory. As noted, it is Petitioner’s 

burden to point to clear and convincing evidence that undermines the state court’s factual finding 

that the report was not offensive or provocative. Accordingly, for the foregoing reasons, 

Petitioner’s prosecutorial misconduct challenge fails.

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D. Sentencing

Petitioner raised two sentencing challenges in his direct appeal: (1) the trial court 

erroneously balanced the aggravating factors; and (2) the trial court should not have imposed an 

extended term under the No Early Release Act.17 The Appellate Division rejected both of these 

claims. 

With respect to the trial court’s balancing of the aggravating factors, the Appellate 

Division reasoned: 

We . . . discern no error in the identification and evaluation of the 

aggravating and, in this case, the non-existent mitigating factors. 

When sentenced, defendant had been convicted on four separate 

occasions of first degree robbery, at least one of which was 

committed while armed, and two prior second degree robberies. 

Defendant had been involved in the criminal justice system 

continuously since 1983. In the face of this record, the 

imposition of the presumptive fifty-year term was unremarkable.

Walker, 2006 WL 1418632, at *9. 

With regard to the NERA, the Appellate Division succinctly explained why Petitioner is 

subject to an extended term under that statute:

. . . Under the Graves Act’s repeat-offender provision, the trial 

judge is required to sentence a person convicted of a second 

Graves Act offense to both an extended term and a parole 

disqualifier. N.J.S.A. 2C:43-6c; 2C:44-3d. Defendant was 

convicted of armed robbery in 1991. In fact, defendant never 

contested his eligibility. He, therefore, qualified for the mandatory 

extended term.

 Having been convicted of armed robbery, a first degree 

offense, and subject to an extended term, defendant was subject to 

an extended term of imprisonment between twenty years and life, 

 

17 In his Petition to this Court, Petitioner separately asserts that his sentence is excessive. 

However, his challenge to the trial court’s balancing of the aggravating factors and to the 

extended term subsume this claim. Indeed, the Appellate Division did not separately list a 

claim based on excessiveness. See Walker, 2006 WL 1418632, at *4.

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N.J.S.A. 2C:43-7a(2), and a presumptive term of fifty years. 

N.J.S.A. 2C:44-1f(1). He was also subject to a parole ineligibility

term between one-third and one-half of the base term. N.J.S.A.

2C:43-7c. Here, however, defendant was convicted of an offense, 

armed robbery, that is subject to NERA. N.J.S.A. 2C:43-7.2. These 

terms carry a parole ineligibility term of 85% of the base extended 

term. Ibid. In other words, the fifty-year extended term, 85% of 

which must be served without parole, is entirely consistent with the 

law.

Id. at *8-9 (emphasis added). In short, the appellate court ruled that Petitioner’s extended term 

of imprisonment was consistent with state law.

In his Petition to this Court, Petitioner contends that the aggravating factor, which takes 

into account the need to protect the public, should have been submitted to a jury, and that the 

trial court’s failure to submit this issue to the jury is unconstitutional. See Pet. at 3 (D.E. No. 

11). He cites no law in support of this proposition, but seemingly relies on the principle 

established in Apprendi v. New Jersey, 530 U.S. 466 (2000): all facts, other than the existence of 

a prior conviction, which extend a sentence beyond the statutory maximum for that sentence,

must be submitted to a jury.18 To the extent Petitioner is making this argument, it is without 

merit. As the Appellate Division noted, and Petitioner has not disputed, Petitioner had a prior 

conviction for armed robbery. Under Apprendi, this fact did not need to be submitted to a jury. 

See United States v. Blair, 734 F.3d 218 (3d Cir. 2013). Based on this prior conviction, the trial 

 

18

 The Court does not interpret the Petition as asserting a claim under Alleyne v. United 

States, 133 S. Ct. 2151 (2013), as the Petition was filed prior to that Supreme Court decision’s 

issuance. Alleyne held that facts which increase a mandatory minimum sentence must be 

submitted to a jury. Even if the Petition was construed to assert an Alleyne claim, Alleyne may 

not be applied retroactively on habeas review. See Simpson v. United States, 721 F.3d 875, 876

(7th Cir. 2013). Cf. Johnson v. United States, No. 10-2984, 2013 WL 3990812, at *2 (D.N.J. 

Aug. 1, 2013) (holding that Alleyne did not apply retroactively on a motion to alter judgment);

United States v. Reyes, No. 11-6234, 2013 WL 4042508, at *17-19 (E.D. Pa. Aug. 8, 2013) 

(explaining why, under Supreme Court and Third Circuit law, Alleyne is not a retroactive rule 

applicable to motions brought pursuant to 28 U.S.C. § 2255).

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court was required to impose an extended term under state law. See 33A N.J. Prac. § 40.15 

(Extended Terms – Permissible Ranges).19 Moreover, the statutory maximum for first degree 

robbery is life imprisonment, thus, Petitioner’s sentence of fifty years does not exceed the 

statutory maximum. See N.J.S.A. 2C:43-7(a)(2); 33A N.J. Prac. § 40.15 (Extended Terms –

Permissible Ranges). Finally, in convicting Petitioner of first degree robbery and third degree 

unlawful possession of a weapon (sawed-off shotgun), the jury found that Petitioner or his 

co-defendant utilized a weapon in the course of the robbery.20 Hence, to the extent Petitioner 

relies on Apprendi, his challenge fails.

Regarding Petitioner’s NERA challenge, NERA expressly applies to armed robbery 

convictions, see N.J.S.A. 2C:43-7.2(d)(9), and Petitioner has not pointed to any constitutional 

violation occasioned by this state law. To the extent he suggests that an extended term with 

limited opportunity for parole constitutes an Eighth Amendment violation for cruel and unusual 

punishment, courts consistently reject that argument.

21

 See, e.g., United States v. Miknevich, 

638 F.3d 178, 186 (3d Cir. 2011) (“Generally, a sentence within the limits imposed by statute is 

neither excessive nor cruel and unusual under the Eighth Amendment. This is so because we 

accord substantial deference to [the legislature], as it possesses broad authority to determine the 

 

19

 “A mandatory extended term must be imposed if the person convicted is a repeat violent 

offender. A person is denominated a ‘repeat violent offender’ and must be sentenced to an 

extended term of imprisonment if convicted of . . . a second degree robbery.”

20

 According to New Jersey law, a first degree robbery is one that, “in the course of 

committing the theft the actor . . . purposely inflicts or attempts to inflict serious bodily injury, or 

is armed with, or uses or threatens the immediate use of a deadly weapon.” N.J.S.A. 

2C:15-1(a).

21

 While a pre-2001 version of NERA has been held to have violated Apprendi, the version in 

effect when Petitioner committed his crime has not. See State v. Johnson, 766 A.2d 1126, 

1136-37 (2001) (explaining Apprendi issues with prior version of statute).

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types and limits of punishments for crimes.”) (citations omitted); United States v. Walker, 473 

F.3d 71, 83 (3d Cir. 2007) (holding that 55-year mandatory sentence for armed robbery did not 

violate Eighth Amendment); State v. Johnson, 766 A.2d 1126, 1140-41 (2001) (holding that New 

Jersey’s NERA statute does not constitute cruel and unusual punishment). Finally, if Petitioner 

is challenging the state courts’ application of state law, he may not do so on habeas review. See 

Chapman v. United States, 500 U.S. 453, 465 (1991) (“[A] person who has been so convicted is 

eligible for, and the court may impose, whatever punishment is authorized by statute for his 

offense, so long as that penalty is not cruel and unusual, and so long as the penalty is not based 

on an arbitrary distinction that would violate the Due Process Clause of the Fifth Amendment.”). 

Accordingly, Petitioner’s sentencing challenges fail and he is not entitled to habeas relief on 

those grounds.

E. Ineffective Assistance of Counsel

Finally, Petitioner argues that his trial, appellate, and PCR counsel were each ineffective 

in representing him. The trial and appellate counsel challenges were heard by the trial-level 

PCR court, and affirmed on appeal by the Appellate Division for substantially the same reasons 

expressed by the trial court. The PCR counsel challenge was addressed only the Appellate 

Division in its PCR review. 

Strickland v. Washington, 466 U.S. 668 (1984), governs ineffective assistance of counsel 

claims. “The Strickland test has two prongs: the petitioner must show (1) that counsel’s 

performance was deficient, and (2) that the deficient performance prejudiced the defense.” Id.

at 687. Under the first prong, the petitioner must demonstrate that counsel’s errors were “so 

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 

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Amendment.” Id. Under the second prong, which is often referred to as the “prejudice” 

prong, the petitioner must demonstrate that the errors were “sufficiently serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable.” Id. In this connection, the petitioner 

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

result of the proceeding would have been different.” Id. See also Palmer v. Hendricks, 592 

F.3d 386, 394 (3d Cir. 2010) (detailing the Strickland standard). With this standard in mind, 

the Court addresses each of Petitioner’s challenges in turn.

1. Trial Counsel

Before the trial-level PCR court, Petitioner argued generally that that his trial counsel was 

ineffective during the pre-trial and trial stages of his proceeding. Petitioner contended that trial 

counsel failed to thoroughly investigate Petitioner’s case, and that he failed to meet with 

Petitioner, among other errors. The bulk of Petitioner’s challenges, however, focused on jury 

instruction issues: failure to request a jury charge on the lesser-included offenses of theft, 

aggravated assault, and prior inconsistent statements; failure to object “to the trial court’s 

instruction to the jury that directed the jury to find that the defendant was the actor . . . [;]”

22 and 

failure to either request an alibi instruction or object to the trial court’s decision not to give that 

instruction. Petitioner, further, argued that the accumulation of his trial counsel’s errors denied 

him due process of law. 

a. Failure during Pretrial Stage

The trial-level PCR court rejected Petitioner’s contention that his trial counsel was 

ineffective during the pretrial stage of Petitioner’s proceeding. Specifically, the court 

disagreed that trial counsel failed to investigate exculpatory evidence, meet with Petitioner, 

 

22

 Walker Trial PCR Decision, No. 02-04-1194, slip op. at 4 (“POINT EIGHT”).

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timely provide Petitioner with discovery, or “subpoena the crime victim to the Wade hearing.” 

Walker Trial PCR Decision, No. 02-04-1194, slip op. at 9. In the court’s view, the Petitioner 

did not support his arguments with adequate evidence or explanations. Turning first to 

Petitioner’s argument that trial counsel only met with him at the holding cell of the courthouse, 

the court noted that Petitioner “does not state how many meetings took place there, how long in 

duration the meetings lasted, and whether the attorney, and his client corresponded about the 

case through any other means. All these facts would be important in determining whether trial 

counsel’s representation was truly deficient.” Id. Regarding Petitioner’s argument that that 

trial counsel did investigate a surveillance photograph of an ATM where the victim’s bank card 

was used, the court reasoned: 

The supporting brief does not offer more information about this 

photograph, including when it was taken. Again, without these 

details and a fuller explanation, the court cannot make a fair 

determination about whether this evidence was in fact exculpatory 

or even relevant. There could be any number of reasons trial 

counsel chose not to expend time and resources on investigating 

this one possible piece of evidence. It is not the court’s job to 

judge every strategic decision counsel makes.

 

Id. Lastly, regarding the decision not to subpoena, the court reasoned that Petitioner did not 

“show why this decision was anything other than a strategic one.” Id. The court concluded its 

analysis by holding that Petitioner had failed to satisfy either prong of Strickland–he neither 

showed that his counsel’s performance fell below the standard of care, nor that he was prejudiced 

by his counsel’s acts. See id.

The trial-level PCR court’s analysis of Petitioner’s pretrial ineffective assistance claims 

comports with Supreme Court law. As the court correctly noted, a habeas petitioner bears the 

burden of establishing that his counsel’s performance was deficient and that he was prejudiced as 

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a result. See Breakiron v. Horn, 642 F.3d 126, 137 (3d Cir. 2011). Moreover, habeas courts 

are to presume that counsel rendered adequate assistance and that counsel reasonably exercised

his or her professional judgment. See Strickland, 466 U.S. at 690; United States v. Mercado, 

No. 12-2894, 2013 WL 4647258, at *3 (3d Cir. Aug. 30, 2013). The Supreme Court recently 

reiterated these two points of law in its Burt v. Titlow decision: 

We have said that counsel should be “strongly presumed to have 

rendered adequate assistance and made all significant decisions in 

the exercise of reasonable professional judgment,” and that the 

burden to “show that counsel’s performance was deficient” rests 

squarely on the defendant.

No. 12-414, 2013 WL 5904117, at *6 (Nov. 5, 2013) (citations omitted). And, as the trial-level 

PCR court noted, it is not the court’s role to judge every strategic decision made by counsel. As 

the Third Circuit has explained, reviewing courts “must resist the urge to second guess counsel’s 

decision for ‘it is all too easy for a court, examining counsel's defense after it has proved 

unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.’” 

Mercado, 2013 WL 4647258, at *3 (quoting Strickland, 466 U.S. at 689). For these reasons, 

this Court finds no error in the state court’s ruling and concludes that the state court reasonably 

applied Supreme Court precedent. Habeas relief is denied on this ground.

b. Jury Instruction – Theft

On Petitioner’s challenge to his trial counsel’s decision not to request a jury instruction 

on the lesser-included offense of theft, the trial-level PCR court first noted that state law 

procedurally barred the claim because the Appellate Division already addressed it on direct 

appeal. Walker Trial PCR Decision, No. 02-04-1194, slip op. at 9. Nonetheless, the court 

addressed the merits of the claim, in the alternative.

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The court concluded that the trial counsel’s decision not to request a theft instruction was 

a strategic choice that was supported by the evidence presented at trial. Recall that the 

Appellate Division ruled on direct appeal that the trial judge did not err in failing to give a theft 

instruction because the facts did not support such a charge:

While Cobb’s identification of defendant may have wavered, he 

never departed from his initial statement that one of his assailants 

was armed with a sawed-off shotgun, that he was threatened with 

immediate bodily harm, and that the other assailant removed his 

wallet and car keys. These facts provide no basis for a charge of 

theft as a lesser included offense.

Walker, 2006 WL 1418632, at *5. Referring back to the Appellate Division’s ruling, the 

trial-level PCR court reasoned that, assuming “the jury concluded that Petitioner was not the 

perpetrator holding the shotgun, as [Petitioner] argues could have happened, the other assailant 

still used force and threat of immediate harm in the commission of the crime. Even the 

defense’s alternate version of facts support a charge for robbery, not theft.” Walker Trial PCR 

Decision, No. 02-04-1194, slip op. at 10. Furthermore, the court noted, the defense’s primary 

strategy was misidentification. 23 Id. Thus, it would have been incompatible for trial counsel 

to argue to the jury, on one hand, that Petitioner was not the assailant, while arguing on the other 

that Petitioner’s conduct qualified for the lesser-included offense charge of theft. Id.

(“Simultaneously arguing misidentification and requesting a charge for a lesser included offense 

does not make sense.”). For these reasons, the court concluded that Petitioner failed to 

demonstrate that his counsel’s performance fell below the standard of care. Id.

 

23 The court quoted trial counsel’s summation in support of its assessment of the defense’s 

strategy. “The bottom line in this case is all the chips fall, one way or the other. Either you 

believe my client was one of the two people that committed this blatant robbery of a 70-60 year 

old man in the parking lot at Pathmark in the morning, Sunday morning, or you aren’t sure.” 

Id. (quoting 4T19-11 to 16).

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As with the pretrial challenges, the trial-level PCR’s counsel analysis comports with the 

Strickland standard. The court’s ruling essentially relied on the maxim that “[a] counsel's 

‘strategic choices made after thorough investigation of law and facts relevant to plausible options 

are virtually unchallengeable.’” Shotts v. Wetzel, 724 F.3d 364, 375 (3d Cir. 2013) (quoting 

Strickland, 466 U.S. at 690). Moreover, the state court’s factual finding that a trial counsel’s 

decision was a strategic one is entitled to deference unless the petitioner points to clear and 

convincing evidence to the contrary–a task that Petitioner has not even attempted here. See

McBride, 687 F.3d at 107 (“[T]he PCRA Trial Court found that trial counsel ‘made some 

strategic choices in furtherance of the defense theme,’ a factual finding that we are bound to 

presume is correct because McBride has not rebutted it by clear and convincing evidence.”) 

(citation omitted). Accordingly, the state court’s ruling was neither contrary to nor an 

unreasonable application of clearly established federal law, and habeas relief is denied on this 

ground.

c. Jury Instruction – Aggravated Assault

Habeas relief is not warranted on Petitioner’s aggravated assault jury instruction 

challenge for similar reasons. As with the theft instruction, the trial-level PCR court concluded 

trial counsel made the strategic decision not to seek an aggravated assault instruction. After 

noting that the claim was procedurally barred under state law, the court explained:

The argument [Petitioner] presents on this point makes little 

logical sense. [His] brief suggests that the jury could have 

concluded that the defendant was in fact the assailant holding the 

firearm, but that he did not share the same criminal intent to steal 

from the victim as his accomplice did. [However, i]t is not 

plausible that the defendant would hold and continue to hold a shot 

gun pointed toward the crime victim as his accomplice demanded 

money without harboring the intent to commit larceny.

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Walker Trial PCR Decision, No. 02-04-1194, slip op. at 11. Moreover, the court relied on the 

Appellate Division’s ruling on direct appeal, which reasoned that “[t]he record clearly indicates 

that Cobb’s wallet was forcibly taken from him; there is no evidence to support the proposition 

that defendant committed an aggravated assault without a theft.” Id. (quoting Walker, 2006 WL 

1418632, at *5). Based on these considerations, the court concluded that “[t]here was no 

reasonable basis for trial counsel to ask for an aggravated assault instruction.” Id. And, as 

with counsel’s strategic choice not to seek the theft instruction, the court noted that requesting 

this lesser-included offense “would have been incompatible with the defense’s overall theory of 

the case.” Id.

In rejecting Petitioner’s aggravated assault challenge, the trial-level PCR court did not 

contravene or unreasonably apply Supreme Court law. As noted above, Strickland affords 

counsel great strategic latitude, and the state court thoroughly explained why it would not have 

made strategic sense for trial counsel to seek an aggravated assault instruction. Further, the 

state court’s factual finding that trial counsel’s decision was strategic in nature is entitled to 

deference as it is unchallenged here. Therefore, in light of AEDPA’s highly deferential 

standard of review, habeas relief will be denied on this ground.

d. Jury Instruction – Prior Inconsistent Statements

Like his theft and aggravated assault challenges, Petitioner argues that his trial counsel 

erred in failing to request another jury charge: prior inconsistent statements. Once again 

noting that this claim was procedurally barred under state law, the trial-level PCR court 

nonetheless addressed the merits of this claim. Recall that, in addressing on direct appeal 

whether the trial court’s failure to instruct was erroneous, the Appellate Division noted that the 

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trial judge gave “extensive instructions regarding witness credibility and identification.” 

Walker, 2006 WL 1418632, at *6. With this background in mind, the trial-level PCR court 

focused its analysis on prejudice:

[E]ven if counsel’s failure to request the jury instruction on the law 

of inconsistent statements was an unreasonable error, . . . the lack

of instruction did not prejudice the defendant. The instruction 

provided was more than adequate to guide the jury in evaluating 

the victim’s statements and credibility. For those reasons, 

[Petitioner] does not and cannot establish that but for the attorney’s 

failure to request the instruction on the law of inconsistent 

statements, the result of the proceeding would have been different.

Walker Trial PCR Decision, No. 02-04-1194, slip op. at 11-12.

24

The trial-level PCR court’s ruling comports with federal law. “[T]o prevail on an 

ineffective assistance of counsel claim, a petitioner must establish prejudice by showing a 

reasonable probability that, but for attorney error, the outcome of the proceeding would have 

been different.” Bond v. Beard, 539 F.3d 256, 278 (3d Cir. 2008) (citing Albrecht v. Horn, 485 

F.3d 103, 128 (3d Cir. 2007)). Here, Petitioner has not shown that, had his counsel requested 

the instruction, he would have been successful on direct appeal if the trial court denied counsel’s 

request. Indeed, the Appellate Division reached the contrary conclusion in his direct appeal, 

reasoning that the trial judge’s thorough instructions on credibility squarely placed Cobb’s prior 

inconsistent statements before the jury, and that lack of a prior inconsistent statement instruction 

did not undermine the fairness of Petitioner’s trial. Walker, 2006 WL 1418632, at *6-8. 

Accordingly, the trial-level PCR court reasonably applied federal law in concluding that 

 

24 In affirming the trial PCR court’s ruling, the Appellate Division affirmed substantially for 

the reasons stated by that court. Underscoring its agreement with the court, the Appellate 

Division added: “even if a more detailed charge should have been sought, Walker has not 

demonstrated a reasonable likelihood that the result would have been different had it been 

requested.” See Walker Appellate PCR Decision, No. A-0079-08T4, slip op. at 11. 

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Petitioner cannot demonstrate that he was prejudiced by his counsel’s failure to request the prior 

inconsistent statement jury charge. Habeas relief, on this ground, is denied.

e. Jury Instruction – “Defendant the Actor”

In this challenge, Petitioner argues that his counsel was ineffective for failing to 

challenge the following trial court’s instruction. 

Knowingly, with knowledge or equivalent terms have the same 

meaning. A person acts knowingly with respect to his conduct if 

he’s aware that his conduct is of that nature. You must determine 

whether a defendant was aware of the nature of his conduct in this 

case.

See Pet. Br. on Direct Appeal at 26 (D.E. No. 22-6) (quoting Trial Tr. 114-21 to 115-1). 

Petitioner interprets this instruction as directing the jury to find that he was the perpetrator.

The trial-level PCR court rejected this claim on prejudice grounds, after it noted that the 

claim was procedurally defaulted under state law. The court reasoned that the Appellate 

Division did not find the jury instruction invalid on direct appeal, thus, Petitioner could not 

establish prejudice under Strickland. Walker Trial PCR Decision, No. 02-04-1194, slip op. at 

12. As with Petitioner’s other jury instruction challenges, there is no constitutional error here. 

Earlier in this opinion, the Court concluded in its review of the substantive jury instruction 

challenge that Petitioner has not shown that “there was a reasonable likelihood that the jury 

applied the instruction in a way that relieved the State of its burden of proving every element of 

the crime beyond a reasonable doubt.” Williams, 637 F.3d at 223. Accordingly, the Petitioner 

has not demonstrated that he was harmed by inclusion of the instruction. Nor has he shown that 

he would have obtained a different result on direct appeal had his counsel objected and the trial 

court overruled that objection. Because the Appellate Division has already found the 

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instruction harmless, and this Court likewise finds no constitutional error with the instruction, 

Petitioner cannot demonstrate prejudice under Strickland, and he is not entitled to habeas relief.

f. Jury Instruction – Alibi 

On this jury instruction challenge, Petitioner contends that his trial counsel erred by 

failing to request an alibi instruction. In addressing Petitioner’s challenge, the trial-level PCR 

court exhaustively detailed the pertinent facts. See Walker Trial PCR Decision, No. 

02-04-1194, slip op. at 12. The court explained that Petitioner argued that his counsel should 

have requested the instruction on account of Crystal Braxton’s (his former girlfriend) testimony. 

According to the court, Braxton had given a handwritten statement to police in which she stated 

that she had seen Petitioner at 11 am on the day of the robbery, and then again at 6 pm that day. 

Id. She stated at trial, however, that she had lied in that handwritten statement, and that 

Petitioner was home with her from 8 am on the morning of the robbery. Id. at 13.

In light of her inconsistent testimony, and given that her credibility was already suspect 

due to her romantic relationship with defendant, the trial-level PCR court concluded that Braxton 

“was not a solid alibi.” Id. at 12. More to the point, the court found that trial counsel’s 

decision not to request an alibi instruction was “a carefully considered strategic decision, which 

courts generally consider unchallengeable.” Id. (citing Strickland, 466 U.S. at 690). The court 

further reasoned that Petitioner had not demonstrated prejudice, stating that “Petitioner does not 

prove that but for counsel’s failure to request the alibi instruction, the result of the proceeding 

would have been different.” Id. at 13. According to the court, the fact that the trial judge did 

not give an alibi instruction did not prevent the jury from considering Braxton’s testimony. Id.

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Petitioner has not pointed to clear and convincing evidence that would call into question 

the state court’s factual finding that Braxton was a poor alibi, or that trial counsel’s decision was 

a strategic one. Id. at 12. Indeed, the state court’s latter conclusion is consistent with the 

Third Circuit’s ruling in Echols, which applied Strickland to a counsel’s alleged failure to pursue 

an alibi defense:

Echols's argument suggests that, in the absence of the alibi theory, 

there was an aimless defense. That is not the case. Trial counsel 

argued—from opening through summation—that Echols was not 

the assailant . . . . That tactical choice is precisely the sort of 

decision which Strickland precludes us from second guessing.

492 F. App’x at 311. Moreover, in this case, Petitioner has not even attempted to show that, 

had his counsel requested an alibi instruction, the result of his proceeding would have been 

different. Thus, the state court reasonably applied Strickland to conclude that Petitioner failed 

to satisfy both the performance and prejudice prongs. Accordingly, there is no basis for this 

Court to grant habeas relief.

g. Conflict of Interest

Petitioner argued to the Appellate Division on direct appeal that he was deprived of his 

Sixth Amendment right to counsel on account of a conflict of interest between himself and trial 

counsel. In his Petition to this Court, he bases the claim on the fact that he filed a grievance 

against trial counsel, prior to the start of trial, based on his counsel’s alleged failure to provide 

him with pretrial discovery. See Pet. at 2 (D.E. No. 11). The Appellate Division summarily 

rejected this claim on direct appeal, noting that it was “without sufficient merit to warrant 

discussion in a written opinion.” Walker, 2006 WL 1418632, at *8. 

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Although the appellate court did not explain the basis for its ruling, Petitioner has not 

shown that he is entitled to habeas relief. The Sixth Amendment right to counsel includes “a 

correlative right to representation that is free from conflicts of interest.” Wood v. Georgia, 450 

U.S. 261, 271 (1981). To demonstrate that this right was violated, Petitioner must show that the 

conflict existed and that he was adversely affected by his counsel’s representation. Mickens v. 

Taylor, 535 U.S. 162, 170-71 (2002); United States v. Fawkes, 501 F. App’x 183, 187 (3d Cir. 

2013) (citing same). For reasons explained in more detail herein, Petitioner has not

demonstrated that this counsel was ineffective, or that he received an unfair trial; thus, he cannot 

show that he was adversely affected by his counsel’s representation in any way. Accordingly, 

his request for habeas relief on this ground is denied. Accord Royal v. Balicki, No. 07-5234, 

2009 WL 137335, at *16-18 (D.N.J. Jan. 20, 2009) (denying habeas relief where petitioner 

argued that “trial counsel did not properly represent him after he filed an ethics complaint against 

counsel”).

h. Accumulation of Errors

Finally, Petitioner argues that the accumulations of errors by his trial counsel violated his 

Sixth Amendment right to counsel. As this Court has rejected each of Petitioner’s specific 

challenges, his accumulation claim necessarily fails.

2. Appellate Counsel

Turning to appellate counsel’s performance, Petitioner contends that his counsel on direct 

appeal was ineffective. In Petitioner’s view, his counsel erred in failing to challenge his trial 

counsel’s decision not to request an alibi instruction. In rejecting this claim as without merit, 

the trial-level PCR court applied Strickland and Jones v. Barnes, 463 U.S. 745 (1983). The 

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court reasoned that, while a defendant is entitled to counsel on appeal, counsel “does not have a 

constitutional duty to raise every nonfrivolous issue requested by the defendant.” Walker Trial 

PCR Decision, No. 02-04-1194, slip op. at 13 (quoting Jones, 463 U.S. at 751). In considering 

the weaknesses of the alibi defense, the court found that appellate counsel winnowed out that 

weak claim and focused, instead, on the eyewitness and identification procedure. Id. The 

court concluded that appellate “counsel’s decision not to raise the alibi claim on appeal was a

matter of appellate strategy.” Id. Moreover, the court held that Petitioner did not demonstrate 

prejudice because he did not show why the Appellate Division “would have reversed and ordered 

a new trial based on the lack of an alibi instruction.” Id.

As an initial matter, the state court properly recognized that Strickland governs 

ineffective assistance claims brought against appellate counsel. See Smith v. Robbins, 528 U.S. 

259, 285 (2000). To prevail on an ineffective assistance claim against appellate counsel, a 

petitioner

must first show that his counsel was objectively unreasonable in 

failing to find arguable issues to appeal—that is, that counsel 

unreasonably failed to discover nonfrivolous issues and to file a 

merits brief raising them. If [the petitioner] succeeds in such a 

showing, he then has the burden of demonstrating prejudice. That 

is, he must show a reasonable probability that, but for his counsel’s 

unreasonable failure to file a merits brief [on the challenged issue], 

he would have prevailed on his appeal.

Id. at 285-86. Moreover, as the state court also correctly noted, appellate counsel is not 

obligated to raise every nonfrivolous claim on appeal. See United States v. Turner, 677 F.3d 

570 (3d Cir. 2012) (stating that the Supreme Court has not held that “the indigent defendant has a 

constitutional right to compel appointed counsel to press [even] nonfrivolous points requested by 

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the client, if counsel, as a matter of professional judgment, decides not to present those points.”

(quoting Jones, 463 U.S. at 751)).

Before this Court, Petitioner has not pointed to clear and convincing evidence that would 

undermine the state court’s factual finding that appellate counsel’s decision was strategic and 

within the bounds of “reasonable professional judgment.” Strickland, 466 U.S. at 690. Nor 

has Petitioner explained how he was prejudiced by appellate counsel’s decision not to pursue the 

alibi issue. Indeed, as the Appellate Division found no error with the lack of alibi instruction on 

direct appeal, and this Court finds that habeas relief was not warranted on Petitioner’s 

alibi-related claims, Petitioner could not demonstrate prejudice. Accordingly, the state court’s 

Strickland application was reasonable, and habeas relief is not warranted on this claim.

3. PCR Counsel

Finally, Petitioner argues that his counsel before the trial-level PCR court was ineffective. 

However, under 28 U.S.C. § 2254(i), “[t]he ineffectiveness or incompetence of counsel during 

Federal or State collateral post-conviction proceedings shall not be a ground for relief in a 

proceeding arising under section 2254.” Accordingly, Petitioner’s request for relief on this 

ground is denied. Accord Taylor v. Horn, 504 F.3d 416, 437 (3d Cir. 2007).

Because each of Petitioner’s grounds for relief is denied, his application for the 

appointment of pro bono counsel will be denied as moot.

IV. CERTIFICATE OF APPEALABILITY

Pursuant to AEDPA, an appeal may not be taken to the Court of Appeals from a district 

court’s order entered in a § 2254 proceeding unless a judge issues a certificate of appealability. 

Such a certificate is issued where “the applicant has made a substantial showing of the denial of 

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a constitutional right.” 28 U.S.C. § 2253(c)(2); see also 28 U.S.C. § 2255(d); Gonzalez v.

Thayer, 132 S. Ct. 641, 648 (2012). In this case, the Court denies a certificate of appealability 

because jurists of reason would not find it debatable that Petitioner has failed to make a 

substantial showing of the denial of a constitutional right.

V. CONCLUSION

For the foregoing reasons, Petitioner’s habeas petition is DENIED. An appropriate 

Order accompanies this Opinion.

s/Esther Salas 

Esther Salas, U.S.D.J.

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