V.

GREG BARTKOWSKI, et al.,

Respondents.

KEVIN MCNULTY, U.S.D.J.

I. INTRODUCTION

Petitioner, David Page, is a state prisoner currently incarcerated at the New Jersey State

Prison in Trenton, New Jersey. He is proceeding pro se with a petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254. In 2004, Mr. Page was convicted by a jury of several counts of

robbery and unlawful possession of a weapon. He is currently serving a fifty-year sentence on

these convictions with an eighty-five percent parole ineligibility. Mr. Page raises claims thatroughly fall into four categories: (1) violation of his Confrontation Clause rights; (2)

prosecutorial misconduct; (3) ineffective assistance of counsel; and (4) unconstitutional sentence.

For the following reasons, the habeas petition will be denied.

II. FACTUAL AND PROCEDURAL BACKGROUND’

On August 10, 2002, at approximately 1:30 a.m., Clyde Martin

was sitting on a porch on Bayview Avenue in Jersey City with

Alfonso Newsome, Cory McGowan and Ed McKinney, when two

men, one of whom was later identified by Martin as defendant,

approached them holding guns. Defendant shoved a silver and

black gun into Martin’s chest and said, “you know what this is,

empty your pockets.” Martin noticed that defendant was wearing

The factual background is taken from the decision, dated March 20, 2007, of the New Jersey Superior

Court, Appellate Division on Mr. Page’s direct appeal. (See Dkt. No. 9-16.)

OPINION
outside the car. Barbour looked to her left and from fifteen feet

away, saw defendant and another man “sticking up” three men

across the street. Barbour heard the robbers say to the men, “youknow what this is,” “get down” and “don’t move.” She also heard

the robbers say, “give me what you got in your pockets. Give me

everything.”

Barbour proceeded to put her key in the ignition to leave; however,as she looked back out the window, defendant was standing there

pointing a silver gun in her face. Barbour saw that defendant was

wearing white work gloves with “bubbles” on them, commonlyused in construction. Defendant told Barbour not to move and togive him the keys, while the other perpetrator opened the

passenger side door, grabbed Barbour’ s friend out of the car,

snatched and shook the friend’s bag. Defendant continued to hold

the gun to Barbour’s face and repeatedly commanded, “don’t

move.” Defendant then took Barbour’s keys. Barbour saw eitherdefendant or the other man go through Newsome’s pockets and

take his wallet. Then, defendant and the other assailant fled down

the block and jumped into a car, which drove off.

Officers Thomas Donnelly and Victor Smith, of the Jersey City

Police Department, were on patrol at 1:45 a.m. when they received

a dispatch of an armed robbery in the area of 33 Bayview Avenue.When Donnelly arrived on the scene about fifteen minutes later, he

spoke with McGowan and Martin, who reported that they had been

robbed at gunpoint. They gave the officers a description of the

perpetrators. The police then spoke to Barbour and Newsomeacross the street, and obtained a similar description from them.

All of the victims indicated that there were two individualsinvolved in the armed robbery. According to Donnelly, the victimsdescribed defendant as a dark-skinned black male with a mediumbuild, short hair and a goatee, approximately 5 feet, 9 inches tall,

wearing a gray T-Shirt, dark jeans, beige work gloves, and holding

a large silver semi-automatic handgun.McGowan reported that the robbers took a silver bracelet and his

wallet containing his personal identification and eighty dollars.

2
suddenly came at Melvin from the left and another man

approached Melvin from the right. One of the men, later identifiedas defendant, pointed a silver gun at Melvin’s face and stated, “you

know what time it is, get down on the ground.” Melvin noticed

that the gun’s hammer was cocked. Melvin clearly observed

defendant and noticed that he had close-cropped hair and was

wearing a mask that partially covered his mouth. Melvin also sawthat defendant was wearing black and green gloves. Defendant hit

Melvin on the back of the ear with the gun and ordered him to liedown.

Meanwhile, Officers Michael Kenny and James Keating were onpatrol, traveling westbound on Communipaw Avenue, when a man

flagged them down at the corner of Communipaw and Bergen

Avenues and told them that two men with guns were robbing

someone “around the corner.” Acting on this information, the

officers proceeded in their patrol car to the area of Bergen andHarrison Avenues. As they turned the corner onto Bergen Avenue,

Kenny looked to his right and observed fifteen to twenty feet awayMelvin and Perez lying on the ground with defendant standing

over them holding an unidentified object in his right hand and

pointing it at the victims at a forty-five degree angle.

Defendant looked up at Kenny and then ran eastbound on HarrisonAvenue and then south through a vacant lot towards CommunipawAvenue. Kenny approached Melvin and Perez who were still lying

on the ground; as they got to their feet, they told Kenny that they

had just been robbed at gunpoint by the individual who had fled

down Harrison Avenue and another man. Each separately

described defendant as a dark-skinned black male with a mustache,

approximately five feet, ten inches tall, and approximately 200

pounds. Melvin observed that defendant was wearing a long, white

T-shirt. Kenny broadcasted a description of defendant and thedirection he fled over the police radio.

Detective Kevin CaIdwell arrived at the robbery scene and spoke

with Melvin and Perez. Melvin reported that defendant had taken

his gold wedding band, silver watch, a blue Sprint cellular phone,$300 and keys to a Chevy Malibu. Perez stated that his red

3
area within seconds and began co

duct

g a 

oot 

robbery suspect.

At 625 Communipaw Avenue, Officer Antman saw a red Yankees

jersey hanging over an eight to ten foot high fence with razor wire.

Officer Antman looked through the fence into the secured used car

lot and observed defendant hiding near a parked car. Caldwell

arrived on the scene and also saw defendant hiding in a crouched

position with his hands covering his face. Defendant was arrested

and taken to the West District police precinct for processing.

‘When the police removed the Yankees jersey from the fence, theyfound the Yankees fitted baseball cap and a loaded silver automatic

handgun concealed inside the fence’s razor wire. At trial, Antman

identified a photograph of the handgun as the one recovered from

the fence. At trial, Melvin identified photographs ofthe jersey and

the baseball cap as the items Perez had been wearing and that were

taken by defendant during the robbery.

Later, the Emergency Services Unit opened the secured fence, and

the police found on the ground, approximately five feet fromwhere defendant had been hiding, a pair of white gloves, a five and

ten dollar bill, a white metal watch and two folded sums of money.

The police also found work gloves with small rubber dots on them

near where defendant had been. Martin, Barbour and Melvin

identified the gloves at trial as those defendant was wearing during

the robberies.

Meanwhile, at the scene ofthe robberies on Bayview Avenue, after

speaking with Melvin and Perez, Donnelly broadcasted the

description of the robbers and the vehicle over the police radio.After the description was broadcasted, Detective Frascino directed

the officers to come to the West District precinct because they had

a suspect in custody, subsequently identified as defendant, who

had been arrested in another robbery and fit that description.

At the West District precinct, Kenny obtained information fromMelvin and Perez in the front lobby. At that time, two police

officers brought defendant into the room. Kenny immediately

4
the precinct with Mr. Melvin and Mr. Perez

gathering information for the report. They wereadvising me what had been stolen and they provided

me with information regarding their personal

information, where they lived, date of birth, and

telephone numbers where they could be contacted,

and at that time, they had brought the Defendant

into the precinct, and they both looked up and said

that’s the guy right there. That’s the guy who

robbed us.

[PROSECUTOR]: Was he in the company of other

Officers at the time, if you know?

[OFFICER KENNY]: Yes, he was.[PROSECUTOR]: Do you recall whether you said

anything to them about [defendant] at all at the time

he came in?

[OFFICER KENNY]: No, I did not.

[PROSECUTOR]: Do you recall at least in your

presence whether anyone said anything to Mr.Melvin or Mr. Perez regarding anything about

[defendant] upon his entering?

[OFFICER KENNY]: No, I believe the only thing

that was said to Mr. Melvin and Mr. Perez was that

the Detectives would have to speak to them at some

point during the night.

Approximately fifteen to twenty minutes elapsed between the timeDonnelly initially spoke to McGowan, Martin, Newsome and

Barbour and the time they arrived at the police precinct. Barbour

was standing with “other people” who had been robbed, when sheobserved that the police “just happened to bring [defendant in]”and recognized defendant as one of the robbers. Barbour also

identified defendant as the robber at trial.

At the precinct, while Martin was giving a statement to Detective

Frascino, the police commented that “they caught the guy” and

were leading defendant into the room when Martin saw defendantand identified him as the robber. He also identified defendant at

trial as the person who robbed him. He further identified the

5
McGowen. [sic]At the West District precinct, Detective Caidwell took statements

from Melvin and Perez. Melvin identified the recovered watch as

his property, which was photographed and returned to him. Perez

identified the Yankee jersey, three ten dollar bills and a five dollar

bill as his property, which were photographed and returned to him.

Defendant neither testified nor produced witnesses at trial. In

summation, defense counsel argued that defendant had been

misidentified and pointed to factual inconsistencies among the

victim’s statements. The jury convicted defendant of all charges.

(Dkt. No. 9-16 at pp. 3-12.)

Mr. Page appealed his conviction and sentence to the New Jersey Superior Court,

Appellate Division. The Appellate Division generally affirmed the judgment and conviction, but

remanded the matter for resentencing. The Superior Court, on remand, imposed the sentence Mr.

Page is now serving. (See Dkt. Nos. 9-18 & 19.) Ultimately, the New Jersey Supreme Court

denied certification on November 20, 2007. (See Dkt. No. 9-22.)

Mr. Page filed a post-conviction relief (“PCR”) petition on February 1 1, 2008 in the New

Jersey Superior Court, Hudson County. The Superior Court denied the petition on July 2, 2008.

The Appellate Division affirmed the denial on January 26, 2010. (See Dkt. No. 9-3 8.) The New

Jersey Supreme Court denied certification on May 7, 2010. (See Dkt. No. 11 at p. 7.)

On April 28, 2011, Mr. Page filed the current federal habeas petition in this Court. 2

Respondents filed an answer and petitioner filed a reply.2 Pursuant to the prisoner “mailbox rule,” a petitioner’s court filing is deemed filed on the date he

delivered it to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 270-71 (1988). When a

6
415 n. 1 (3d Cir. 2000) (citing 28 U.S.C. § 2254). Because Mr. Page filed this petition for writ of

habeas corpus after April 24, 1996, it is subject to the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), Pub. L. 104-132, 110 Stat. 1214 (Apr. 24, 1996). See Lindh v. Murphy,

521 U.S. 320, 326 (1997). Under AED1A, federal habeas corpus relief is not available for anyclaim decided on the merits in state court proceedings unless the state court’s adjudication of the

claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of’,

clearly established federal law, as determined by the Supreme Court of the United States; or (2)

resulted in a decision that was based on an unreasonable determination ofthe facts in light of the

evidence presented in state court. See 28 U.S.C. § 2254(d).

As a threshold matter, a court must “first decide what constitutes ‘clearly established

Federal law, as determined by the Supreme Court ofthe United States.” Lockyer v. Andrade,

538 U.S. 63, 71(2003) (quoting 28 U.S.C. § 2254(d)(1)). “[Cllearly established federal law’

under § 2254(d)(1) is the governing legal principle set forth by the Supreme Court at the time the

state court renders its decision.” Id. (citations omitted). A federal habeas court making an

unreasonable application inquiry should ask whether the state court’s application of clearly

court is unable to determine the exact date that a prisoner handed his petition to a prison official formailing, it will look to the signed and dated certification of the petition. See Henderson v. Frank, 155

F.3d 1 59, 163-64 (3d Cir 1998) (using date prisoner signed petition as date he handed it to prison officials

for mailing); Maples v. Warren, No. 12-0993, 2012 WL 1344828, at *1 n. 2 (D.N.J. Apr. 16, 2012)

(“Often times, when the court is unable to determine the exact date that a petitioner handed his petition to

prison officials for mailing, it will look to the signed and dated certification of the petition.”). In this case,

Mr. Page’s habeas petition is dated April 28, 2011. Therefore, that is the date that I shall use for purposes

of determining when he filed his federal habeas petition.

7
The AEDPA standard under § 22 54(d) is a “difficult” test to meet and is a “highly

deferential standard for evaluating state-court rulings, which demands that state-court decisions

be given the benefit of the doubt.” Cullen v. Pinholster, - U.S.-, 131 S. Ct. 1388, 1398 (2011).

The petitioner carries the burden of proof and with respect to review under § 2254(d)(1) and that

review “is limited to the record that was before the state court that adjudicated the claim on the

merits.” id.

In applying AEDPA’s standards, the relevant state court decision that is appropriate for

federal habeas corpus review is the last reasoned state court decision. See Bond v. Beard, 539

F.3d 256, 289-90 (3d Cir. 2008). Furthermore, “[wihere there has been one reasoned state

judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting

the same claim rest upon the same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).

AEDPA deference is not excused when state courts issue summary rulings on claims; “[w]hen a

federal claim has been presented to a state court and the state court has denied relief, it may be

presumed that the state court adjudicated the claim on the merits in the absence of any indication

or state-law procedural principles to the contrary.” Harringron v. Richter, - U.S. -‘ 131 S. Ct.

770, 784-85 (2011) (citing Harris v, Reed, 489 U.S. 255, 265 (1989)).

8
(1) A 1-year period of limitation shall apply to an application for a

writ of habeas corpus by a person in custody pursuant to a

judgment of a State court. The limitation period shall run from

(A) The date on which the judgment became final

by the conclusion of direct review or the

expiration of the time for seeking such review;

(2) The time during which a properly filed application for State

postconviction or other collateral review with respect to the

pertinent judgment or claim is pending shall not be counted

toward any period of limitation under this subsection.

The limitations period runs from the date that Mr. Page’s state court judgment became “final.” A

judgment is deemed final at the conclusion of direct appellate review, or the expiration of the

time for seeking such review, including the ninety-day period for filing a petition for writ of

certiorari in the United States Supreme Court. See Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir.

2000); Morris v. Horn, 1 87 F.3d 333, 337 n. 1 (3d Cir. 1999) (noting that state supreme court’s

decision became final after ninety days because the time for seeking certiorari expired).

The statute of limitations is statutorily tolled during the time in which a properly filed

state PCR petition is pending. See 28 U.S.C. § 2244(d)(2). A prisoner’s application for statecollateral review is “properly filed’ when its delivery and acceptance are in compliance with the

applicable laws and rules governing filings.” Artuz v. Bennett, 53 1 U.S. 4, 8 (2000) (emphasis

omitted). Such applicable laws and rules include “time limits, no matter their form.” Pace v.

DiGigulielmo, 544 U.S. 408, 417 (2005). Thus, if a state court determines that a PCR application

is untimely, then it will not statutorily toll AEDPA’s limitation period, “regardless of whether

[the state court] also addressed the merits of the claim, or whether its timeliness ruling was

9
198 (2006)).

In this case, the state court judgment became final on February 18, 2008, ninety days

after the New Jersey Supreme Court denied certification on direct appeal. Accordingly, unless

the statute of limitations was tolled, it expired a year later, on February 18, 2009.

Mr. Page filed his PCR petition on February 11, 2008, or before the end of his ninety-day

period to seek certiorari with the United States Supreme Court. The New Jersey Supreme Court

denied certification on his PCR petition on May 7, 2010. Petitioner’s one year AEDPA statute

of limitations was therefore statutorily tolled—indeed, it did not even begin to run—until that

date. Petitioner thus had one year, i.e., until May 7, 2011, to file his federal habeas petition.

Petitioner filed his federal habeas petition within that one-year time period, on April 28, 2011.

The habeas petition is therefore timely.

B. Claim I — Confrontation Clause and Related Objections

Mr. Page claims that his Confrontation Clause rights were violated when the trial court

permitted police officers to testify to the out-of-court statements of witnesses and victims who

did not testify at trial. (Relatedly, he claims that the witnesses’ unavailability was not adequately

established.) Additionally, he argues that the trial court improperly admitted certain physical

Respondents incorrectly assert that the New Jersey Supreme Court denied certification on Mr. Page’s

PCR petition on March 16, 2010. That order did not dispose of the petition for certification, but only

granted Mr. Page’s motion for leave to file a notice of petition for certification and petition for

certification. (See Dkt. No. 9-41.) The New Jersey Supreme Court did not deny certification until May 7,

2010. (See Dkt. No. II at p. 7.)

10
statements by witnesses were admitted at trial. The last reasoned decision on this claim was from

the Appellate Division on direct appeal. The Appellate Division described the testimony at issue

as follows:

{D]efendant argues that Officer DonrLelly’s testimony as to the

description of defendant given by the victims of the first two

robberies violated his Sixth Amendment right to confront

witnesses against him because two of those victims, McGowan and

Newsome, did not testify at trial.Donnelly, when asked by the prosecutor on direct examination

whether the victims had provided him with descriptions of the

suspects, replied as follows:

Victim number one described actor number one as

being a dark-skinned black male, approximately

five foot nine inches tall, with medium build, short

hair and a goatee, last seen wearing a gray T-shirt,

dark jeans, beige work gloves, and the actor was

holding a large silver semiautomatic handgun.Q: Do you recall that description being provided by

each of the individuals you spoke with:

A: Yes.

Donnelly identified McGowen [sic] as “victim number one.”

The Appellate Division then cogently analyzed the Confrontation Clause issue, citing

appropriate case law. It correctly determined that the issue was whether the statements of

McGowan and Newsome were “testimonial” in nature for purposes of the Confrontation Clause.

That issue, in turn, may depend on whether the statements were made in response to an

investigative interrogation, or were made to help the police deal with an ongoing emergency:

Statements are nontestimonial when made in the

course of police interrogation under circumstancesobjectively indicating that the primary purpose of

Ii
Davis v. Washington, 547 U.S. 813, 822 (2006). See also CralAfordv. Washington, 541 U.S. 36,

68-69 (2004).

The Appellate Division decided that issue in Mr. Page’s favor. The statements of

McGowan and Newsome, it held, were indeed testimonial in nature:

At the time McGowan and Newsome gave their descriptions toDonnelly, the robberies of which they had been victims were over,

and their assailants had fled the scene. There was no ongoing

emergency. Thus, the descriptions of their assailants given to the

police by McGowan and Newsome were testimonial statements

and were inadmissible in light of the failure of those witnesses toappear at trial and be cross-examined.

The Appellate Division further determined, however, that any constitutional error was

harmless:

Notwithstanding their inadmissibility, however, we are convinced

that the admission of the non-testifying victims’ statements was

harmless beyond a reasonable doubt and was not “clearly capable

of producing an unjust result.” R. 2:10-2; State v. Cotto, 182 N.J.

316, 331 (2005).

An error will be found to be “harmless” unless there is areasonable doubt that the error contributed to the verdict. This is

true even ifthe error is of constitutional dimension. State v.Macon, 57 N.J. 325, 338 (1971). The standard for determining

whether constitutional error warrants reversal requires the State toconvince the appellate court “beyond a reasonable doubt that the

error complained of did not contribute to the verdict obtained.”

Chapman v. Caflfornia, 386 U.S. 18, 24, 87 5. Ct. 824, 828, 17 L.

Ed. 2d 705, 710 (1967); State v. Scherzer, 301 N.J. Super. 363, 441

(App. Div. 1997).The two other victims, Martin and Barbour, both testified at trial

and provided the same description of Donnelly as the non

testifying victims. Kenny actually observed defendant committingthe second robbery and identified defendant both at the precinct on

12
admission of this evidence did not lead the jury to a result it

otherwise might not have reached. See Slate v. Bogus, 223 N.J.

Super. 409, 429 (App. Div.), certU: denied, 111 N.J. 567 (1988);

see also Hinton, supra, 423 F.3d at 362.

(I)kt.No. 9-I6atp. 13-23.)

Mr. Page argues that the Appellate Division’s opinion was an unreasonable application of

clearly established federal law. The Confrontation Clause of the Sixth Amendment states that,

“[i]n all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with thewitnesses against him.” U.S. CONST. amend. VI. “The Fourteenth Amendment renders the

Clause binding on the States.” Michigan v. Bryant, -U.s.-, 131 S. Ct. 1143, 1152 (2011) (citing

Pointer v. Texas, 380 U.S. 400, 403 (1965)). And pursuant to the Confrontation Clause,

“[t]estimonial statements of witnesses absent from trial have been admitted only where thedeclarant is unavailable, and only where the defendant has had a prior opportunity to crossexamine.” Crawfordv. Washington, 541 US. 36, 59(2004) (footnote omitted). “As to the

second requirement, the Confrontation Clause requires that a defendant have had ‘a full and fair

opportunity to probe and expose [testimonial] infirmities’ of an unavailable government witness

in order for that witness’s prior testimony to be admissible.” Ross v. Dist. Attorney ofCnty. of

Allegheny, 672 F.3d 198, 206-07 (3d Cir. 2012) (citing United States v. Owens, 484 U.S. 554,

558 (1988) (quoting Delaware v. Fensterer, 474 U.S. 15 (1985))). The Confrontation Clause

applies to testimonial hearsay that is admitted to establish the truth of the matter asserted. See

Crawford, 541 U.S. at 59-60 n. 9 (“The [Confrontation] Clause also does not bar the use of

13
These principles, in themselves, give rise to no constitutional habeas challenge. Page

prevailed on these issues; the Appellate Division found that the statements were testimonial, and

that they were therefore erroneously admitted. Relatedly, Mr. Page asserts that the prosecutionfailed to properly establish that these witnesses were unavailable. But this contention, too, only

goes to establish a Confrontation Clause violation, which for present purposes is conceded.

Mr. Page can only be disputing the Appellate Division’s conclusion that any error was

harmless. Harmless error analysis applies to the admission of testimonial hearsay in violation of

the Confrontation Clause. See United States v. Jimenez, 513 F.3d 62, 78 (3d Cir. 2008) (citations

omitted). A habeas petitioner, to prevail, must establish that a constitutional error resulted in“actual prejudice”—i.e., that it had a “substantial and injurious effect or influence in determining

the jury’s verdict.” Eley v. Erickson, 712 F.3d 837, 847 (3d Cir. 2013) (citing Brecht v.

Abrahamson, 507 U.S. 619, 637-3 8 (1993)). This Court does not, strictly speaking, sit in review

of the state court’s harmless error analysis; it must perform its own. “[I]n § 2254 proceedings acourt must assess the prejudicial impact of constitutional error in a state-court criminal trial

under the ‘substantial and injurious effect’ standard set forth in Brecht, supra, whether or not the

state appellate court recognized the error and reviewed it for harmlessness under the ‘harmless

beyond a reasonable doubt’ standard set forth in Chapman [v. Cahfornia], 386 U.S. 18 [1967].”

Pry v. Pliler, 551 U.S. 112, 12 1-22 (2007); see also Bondv. Beard, 539 F.3d 256, 275-76 (3dCir. 2008) (“Fry instructs us to perform our own harmless error analysis under Brecht . . . rather

14
513 U.S. 432, 438 (1995)).

I have no such “grave doubt” as to whether any Confrontation Clause error had a

substantial and injurious effect or influence on the outcome of the trial. In determining whether

an error is harmless, I look at the importance of the testimony to the government’s case, the

cumulative nature of the evidence, the existence of corroborating evidence, the extent of crossexamination allowed in the case and the strength ofthe government’s case as a whole. See

Jimenez, 513 F.3d at 78 (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).

This was a robbery spree, proven by interlocking testimony and evidence. Martin and

Barbour, victims of the initial two robberies, testified at trial. When Martin was robbed, he was

sitting on the porch with the two non-testifying declarants, McGowan and Newsome. Their

perspective was exactly the same as Martin’s, and it is not surprising that the description they

gave the officer was similar to Martin’s. Further, Martin saw Barbour robbed immediately

thereafter. And Barbour, from across the street, saw and heard the events on the porch. Her

testimony, too, paralleled the out-of-court statements of McGowan and Newsome, as well as the

in-court testimony of Martin.

A police officer, Kenny, actually witnessed Page committing the subsequent robberies of

Melvin and Perez. Kenny identified Page, both at the precinct on the night of the robberies and in

court. Page was caught with the proceeds from the robberies. Further, Martin, Melvin, and

Barbour identified the defendant, the gun used in the robberies, and the gloves defendant was

15
on the jury’s verdict, and was harmless. Mr. Page is not entitled to federal habeas relief on thisground.

ii. Admission ofPhysical Evidence

The State proffered as evidence photographs ofthe bracelet taken from McGowan, and of

the jersey, cap and money taken from Perez. Mr. Page argues that the trial court erred in

admitting this physical evidence, because it belonged to non-testifying witnesses. (Dkt 1-1 at pp.

9-10)

Respondent asserts that Mr. Page failed to exhaust this argument by raising it in his state

court proceedings. That would be grounds in itselfto deny the claim. This Court has the

discretion, however, to consider and deny the claim on the merits if it is not colorable. See

Lucero v. Martinez, 526 F. App’x 161, 164 n. 5 (3d Cir. 2013) (per curiam) (citing Evans v. Ci.

Corn. P1., 959 F.2d 1227, 1231 (3d Cir. 1992) (“[A] district court may deny a claim on its merits

despite non-exhaustion if it is perfectly clear that the applicant does not raise even a colorable

federal claim.”)) (remaining citation omitted); see also Lamberi v. Blackwell, 134 F.3d 506, 515-

15 (3d Cir. 1997).

An erroneous evidentiary ruling is not itself grounds for habeas relief. To rise to the level

of a constitutional violation, a state court’s evidentiary decision must have been so arbitrary or

prejudicial that it rendered the trial fundamentally unfair, thereby violating a petitioner’s due

I am also inclined to err on the side of considering the claim because it would likely be untimely

under AEDPA if brought by any other means.

16
category of infractions that violate ‘fundamental fairness’ very narrowly.” Dowling v. UnitedStates, 493 U.S. 342, 352 (1990).

There is no substantial showing that these challenges to the admission of physical

evidence would succeed. Only a proper foundation is required; it is not a prerequisite that the

item’s owner testify. Still less would a ruling admitting such evidence, even if erroneous, rise tothe level of a Constitutional deprivation. As to this claim, habeas relief is denied.

iii. Shifting Burden to Produce Witnesses

Mr. Page next argues that the trial court essentially shifted to him the burden of

producing for trial the three victims who never testified, in violation of the Confrontation Clause.

It was the prosecutor who subpoenaed and primarily sought to compel the attendance and

testimony of these three witnesses. 5At trial, the prosecutor requested that the trial judge issue

arrest warrants for the missing three victims. He stated on the record, however, that ifthey were

not there by the next morning, the government would rest. The court agreed to issue the arrestwarrants for the missing witnesses.

The Appellate Division described the situation thus:

The prosecutor indicated to the trial judge, near the end of its case, that the State had been

having difficulty reaching the three victims. The prosecutor advised the judge that the

three non-testif,’ing victims, McGowen, Newsome and Perez, had been subpoenaed, but

that the subpoenas went unreturned. The prosecutor told the judge that as a result, the

State did not have these witnesses available for trial. The prosecutor indicated to the

judge that he would like to wait until the next day, and if the witnesses did not appear for

trial, then the State would be prepared to rest. At the prosecutor’s request, the trial judge

issued warrants for the non-appearing witnesses to testif’ at trial. On the following day,

the witnesses did not appear and the State did rest. (Dkt 9-17)

17
THE COURT: I am going to honor the Prosecutor

s request wh

c

is what you said.

MR. BRELAND: I stand by that.

THE COURT: Ifthey’re not here, then we’re proceeding with the

trial.

MR. GUALANO: Thank you, Judge.

(Dkt. No. 9-57 at p. 16.) It was in this exchange, says Mr. Page, that the Court violated his fair

trial and Confrontation Clause rights by shifting the burden of producing these witnesses to the

defense.

I cannot read this passage in the manner suggested by Page. The prosecutor sought the

court’s aid in compelling the attendance of three witnesses. Page’s counsel made a request,

which was cut off, that “come tomorrow morning, if those victims are not...” The Court,

anticipating the request, assured defense counsel that if the witnesses were not there, they would

be “proceeding with the trial”—i.e., that the prosecutors would have to proceed without them.

Defense counsel, Gualano, did not object or indicate that he had been misunderstood. He said

“Thank you, Judge.” 6To hold the government to an overnight deadline was not a defeat, but a

minor procedural victory for the defense; as it turned out, the prosecution had to do without these

witnesses’ testimony. This goes beyond default to waiver; the court did precisely what the

defense asked it to do. So the notion that this shifted to the defense the “burden” of calling these

witnesses seems misconceived at the start.

6 Common sense suggests that the defense might have anticipated that these witnesses’ testimony,

sought by the prosecution, might harm the defense case. That is not essential to my point, however.

indeed, defense counsel made much of the witnesses’ absence in his summation, telling the jury he had

seen police reports and that their statements would have helped exculpate his client. 3T at 3 1.

18
that the government, every time it does not call a potential witness, “shifts” the burden of calling

that witness to the defense, but the point has no constitutional resonance. Mr. Page cites

lvlelendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). There, the Supreme Court held that

evidence affidavits analyzing a seized substance as cocaine were “testimonial” for purposes of

the Confrontation Clause. See id. at 329. That has little to do with Mr. Page’s claim here.

Respondent argues that Mr. Page failed to exhaust this issue, and indeed it appears that he

did not raise the precise issue of whose “burden” it was to produce these witnesses. That may be

the case. But, as I say, there is no colorable claim here, and indeed any arguable claim was

waived. On this ground, too, habeas relief will be denied.

C. Claim II — Prosecutorial Misconduct

Mr. Page raises two prosecutorial misconduct issues. First, he claims that the prosecutor

committed misconduct by misrepresenting at trial that all six victims would testify. Second, Mr.

Page argues that the prosecutor committed misconduct by eliciting from Detective Caidwell

statements from Eric Perez, who never testified at trial. Mr. Page alleges that these actions

compounded the Confrontation Clause violations.

Misrepresenting That All Six Victims Would Testify

Mr. Page first claims that the prosecutor committed misconduct by initially representing

to the judge and to the defense that all six victims would testify at trial. That issue was last

19
previously raised, On appeal, as did PCR counse

, de

contends that the State’s failure to produce all six victims at trial

amounts to prosecutorial misconduct that prejudiced his right to afair trial. No explanation is proffered by defendant as to why that

particular argument, even if it had merit, could not have been

raised on direct appeal.

PCR counsel claimed, without any foundation, that the three

witnesses who did not appear would not have identified defendant.

This is indeed a bald assertion, insufficient to afford defendant any

relief. (.‘ummings, supra, 321 N.J. Super. at 170.

(Dkt. No. 9-38 at p. 9.)

Thus the claim was denied for two reasons: because Mr. Page failed to show why he did

not raise it on direct appeal, and on the merits. As to the merits, AEDPA deference still applies.

See Rolan v. Coleman, 680 F.3d 311, 321 (3d Cir. 2012).

A criminal defendant’s due process rights are violated if prosecutorial misconduct

renders a trial fundamentally unfair. See Darden v. Wainwright, 477 U.s. 168, 182-83(1986). A

habeas petition will be granted for prosecutorial misconduct only when the misconduct “so

infected the trial with unfairness as to make the resulting conviction a denial of due process.” Id.

at 181 (internal quotation marks and citation omitted). A prosecutorial misconduct claim is

examined in “light of the record as a whole” in order to determine whether the conduct “had a

substantial and injurious effect or influence” on the jury’s verdict. See Brecht, 507 U.S. at 638. A

“reviewing court must examine the prosecutor’s offensive actions in context and in light of the

entire trial, assessing the severity of the conduct, the effect of the curative instructions, and the

quantum of evidence against the defendant.” Moore v. Morton, 255 F.3d 95, 107 (3d Cir. 2001).

20
appearance via an arrest warrant, but to no avail. And, as the Appellate Division pointed out,there is no evidence or information suggesting that the missing witnesses’ testimony would have

favored the defendant.

In any event, the evidence against Mr. Page was strong and the witnesses’ testimony

presumably would have been cumulative of that ofthe other victims who testified. Even ifthe

prosecutor’s actions had been improper, I could not find that they had a deleterious effect on the

fairness of the trial. Accordingly, Mr. Page fails to show that he is entitled to federal habeasrelief on this prosecutorial misconduct claim.

ii. Eliciting Eric Perez ‘s Statementsfrom Detective Caidwell

Mr. Page also argues that the prosecutor committed misconduct by eliciting from

Detective Caldwell certain statements of Eric Perez, who did not testify at trial. Mr. Page did not

exhaust this claim by raising it in the state courts, which is enough to require that it be denied.

Nevertheless, I consider it and deny it on the merits because it fails to state a colorable claim. See

Lambert, 134 F.3d at 5 14-15.

During redirect examination of Detective CaldweIl, the prosecutor asked him about his

report, which included Caldwell’s question to Mr. Perez as to whether he got a good look at the

robber. (See Dkt. No. 9-60 at p. 5.) Caldwell testified that Mr. Perez described the individual

with the weapon as being “[ajbout 180 pound, five foot eight to five foot nine inches tall, goatee,dark brown skin, he had a white shirt.” (Id.)

21
testimony so impacted the trial as to render it trial fundamentally unfair. Therefore, this claim

will be denied.

D. Claim III — Ineffective Assistance of Counsel

Mr. Page has raised a number of claims of ineffective assistance of counsel. The legal

standard of review was well settled in Stricklandv. Washington, 466 U.S. 668 (1984).

First, the petitioner must show that considering all ofthe circumstances, counsel’s

performance fell below an objective standard of reasonableness. See id. at 688; see also Ross v.

Varano, 712 F.3d 784, 798 (3d Cir. 2013). Petitioner must identify acts or omissions that are

alleged not to have been the result of reasonable professional judgment. See Strickland, 466 U.S.

at 690. The federal court must then determine whether in light of all of the circumstances, the

identified acts or omissions were outside the wide range of professional competent assistance.

See id.

Second, a petitioner must affirmatively show prejudice, which is found where “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result ofthe proceeding

would have been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” See id. at 694; see also McBride v. Superintendent, 8(7 Houtzdale,

687 F.3d 92, 102 n. 11 (3d Cir. 2012). “With respect to the sequence of the two prongs, the

Strickland Court held that ‘a court need not determine whether counsel’s performance was

deficient before examining the prejudice suffered by the defendant as a result of the alleged

22
is an additional consideration:

The pivotal question is whether the state court’s application of theStrickland standard was unreasonable. This is different from

asking whether defense counsel’s performance fell below

Strickland’s standard. Were that the inquiry, the analysis would beno different than if, for example, this Court were adjudicating a

Strickland claim on direct review of a criminal conviction in a

United States district court. Under AEDPA, though, it is a

necessary premise that the two questions are different. For

purposes of § 2254(d)(l), an unreasonable application of federal

law is different from an incorrect application of federal law. A

state court must be granted a deference and latitude that are not in

operation when the case involves review under the Stricklandstandard itself.

Harrington, 131 S. Ct. at 785 (internal quotation marks and citation omitted) (emphasis in

original).

Mr. Page states that he is here incorporating all of the ineffective assistance of counsel

claims raised on direct appeal and in his PCR proceedings. On direct appeal, Mr. Page raised the

following ineffective assistance claims: (1) failure to request a pretrial Wade hearing; (2) failure

to request a Clawans charge with regard to the three victims who did not testify at trial; and (3)

requesting that petitioner sit elsewhere in the courtroom without having researched the legal

authority in advance. In his PCR proceedings, petitioner raised the following ineffective

assistance claims: (1) failure to subpoena McGowan, Newsome and Perez; (2) conducting poorcross-examination of witnesses; (3) failure to object to inadmissible hearsay and a suggestive

show-up identification; and (4) giving an inadequate summation. In his federal habeas petition,

23
Each of these claims is considered in turn.

i. Failure to request a Wade hearing

Page contends that trial counsel was ineffective for failing to request a pretrial Wade 7

hearing to challenge the witnesses’ out-of-court identifications of him. The last reasoned

decision on this claim was that of the Appellate Division on direct appeal:

Defendant asserts that the identification of defendant amounted to

a “show-up.” The first four victims were seated together in awaiting area in the precinct, were indirectly advised by policeofficers that one of the armed robbers had been caught, and they

shortly thereafter at a second precinct identified defendant as he

was being brought in for processing in handcuffs.

Defendant must establish two elements to show that he wasprovided ineffective assistance of counsel. First, defendant must

show, by identifying acts or omissions that his trial counsel failed

to fulfill the counsel guarantee of the Sixth Amendment. Strickland

v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 90 L. Ed.

2d 674, 693 91984); State v. Fritz, 105 N.J. 42, 52 (1987). Second,

defendant must establish that his counsel’s performance was so

deficient as to create a reasonable probability that thesedeficiencies materially contributed to his conviction. See Frtiz,

supra, 105 N.J. at 58.

On August 23, 2004, at the Plea Cutoff Hearing, defense counsel

made the following statement to the trial judge when the judge

inquired concerning the notation of a Wade hearing on a prior plea

cutoff form.

I’ve already had discussions with [defendant] both

at the County, again at the courthouse concerning

whether or not I would actually conduct a Wade

Hearing. I don’t think in this case I would.

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

24
Wade Hearing, I will do one right before trial.Frankly, at this juncture, even if I did see an issue of

a taint, in a case like this, I have explained to

[defendant], I would rather a jury hear that fresh

from a witnesses because a jury pick up —

THE COURT: for strategic reasons even if you did

find —

[DEFENSE ATTORNEY}: Yes.

Upon conducting a Wade hearing, the trial court engages in a two

step analysis. State v. Madison, 109 N.J. 223, 232 (1988). The

court must first determine whether the identification procedure was

impermissibly suggestive. Ibid. If the court makes this

determination, it must then decide whether the identification

procedure was nonetheless reliable. Ibid. The reliability

determination is to be made from the totality of the circumstances

in a particular case. Id. at 239; Manson v. Braithwaite, 432 U.s.

98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1970). Factors the court

should consider in determining reliability are:

[T]he opportunity of the witness to view the

criminal at the time of the crime, the witness’

degree of attention, the accuracy of the witness’

prior description of the criminal, the level of

certainty demonstrated by the witness at the

confrontation, and the length oftime between the

crime and the confrontation.

[Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253,

53 L. Ed. 2d at 154.]

Ifthe court finds that the identification is reliable despite the

impermissibly suggestive nature ofthe procedure, the

identification may be admitted into evidence.” Madison, supra,

109 N.J. at 232.

In State v. Herrara, 187 N.J. 493 (2006), the Supreme Court

affirmed the allowability of show-up identifications in

25
learned the vehicle involved in the accident was owned by t

e

security guard, the police took the security guard to the emergency

room (ER) of the hospital where the defendant was taken. The

police told him to identify the person. The victim identified the

defendant, who was sitting on a hospital bed about six feet away.

The only other persons in the ER were two police officers and

nurses. Id. at 497-505.

The defendant argued that the statements made by the police to the

victim made the show-up procedure impermissibly suggestive. Id.

at 498. Further, he asserted that the show-up procedure lacked

trustworthiness because the description defendant provided of the

defendant was inaccurate and because a significant period of time

elapsed from the time of the incident to the time of the show-up

identification.

The Court reiterated its adherence to federal constitutional

precedents in deciding the admissibility of show-up identification

procedures. Id. at 499-501. The Court noted that the

constitutionality of a show-up identification is determined by

examining the totality of the circumstances. Id. at 502. Further, the

Court clarified that the test was “whether under the totality of the

circumstances the identification was reliable enough though the

confrontation procedure was suggestive.” Id. at 503 (quoting Neil

Biggers, 409 U.S. 188, 194, 93 S. Ct. 375, 380, 34 L. Ed. 2d

401, 408 (1972)). The Court further noted that “reliability is the

linchpin in determining the admissibility of identification

testimony.” ibid. (quoting Manson, supra, 432 U.S. at 99, 97 S.

Ct. at 2245, 53 L. Ed. 2d at 144).

The Court determined that in combination with the suggestiveness

inherent in a show-up, the added comments by the police rendered

the out-of-court identification impermissibly suggestive because

the police comments may have influenced the victim to develop a

firmer resolve to identify someone he might otherwise have been

uncertain was the culprit. Id. at 506.However, the Court found that the impermissibly suggestive show

up procedure was nevertheless sufficiently reliable to warrant the

26
daily. Because the victim quickly identified the defendant in the

ER, the Court determined there was a level of certainty

demonstrated in the identification. The Court, after weighing the

factors in favor of reliability against the corrupting effects ofthe

impermissibly suggestive procedure, was satisfied that the

identification procedure was reliable and did not result in a

substantial likelihood of misidentification. Id. at 506-09.

[Officer] Kenny testified that [victims] Melvin and Perez were

seated in the lobby speaking with him when defendant was brought

in. The officer indicated that the two victims looked up, saw

defendant, and immediately indicated that he was the man who had

robbed them. Similarly, while in the precinct, Barbour observed

that the police ‘just happened to bring [defendant] in.” Barbour

immediately identified defendant as the robber at that time.

Further, defendant was brought into another room while Martin

was giving a statement to Detective Frascino, at which time,

Martin saw defendant and identified him as the robber. Martin

testified:

We got [to the police precinct], we gave our

statements and like 15 minutes into giving the

statements, they said they caught the guy. He was in

the process, I guess, of robbing somebody else.

They brought him in.

They brought him in and walked him past us and we

identified him. That was him.

On direct examination, Barbour testified:

Q. Do you remember whether you stayed around to

give like a formal statement where they type up and

you signed it?

A. [Yes].

Q. And how long did that take?

A. I was there for a minute, because in the process

of all ofthat, they caught him.

Q. And how long was it when you first saw him on

Bayview to where you saw him?

27
, 

y 

p

p

g p

p

when they spontaneously identified defendant when he wasbrought in after his capture, was not impermissibly suggestive. We

are convinced, however, that the transporting ofthe other fourvictims from one precinct to the waiting area of another precinctfor purposes of identifying “the guy” was an impermissibly

suggestive show-up.

Notwithstanding the impermissible suggestiveness ofthe show-up

resulting in the identification by McGowan, Martin, Barbour and

Newsome, we are convinced that their identifications of defendant

were nonetheless reliable. The identifications took place within anhour of the commission of the robberies, each victim had a goodview ofthe victim when he robbed them at gun point, each victim

furnished a reasonably accurate description of the defendant to the

police, including the gloves he was wearing, and the victims

exhibited a high level of certainty in their identification ofdefendant the perpetrator. Additionally, they identified the items of

their property, which had been taken from them, which was foundin close proximity to defendant when he was apprehended. Melvinand Perez interrupted their conversation with Kenny when theylooked up, recognized defendant, and identified defendant as therobber. Barbour immediately recognized defendant as the personwho had robbed her, which was demonstrated by her spontaneous,

panicked reaction upon seeing him at the precinct. Finally, the time

between the crimes and the identification was very brief. Thus,

defendant cannot show that even iftrial counsel had requested a

Wade hearing that the hearing would have been conducted, and if

conducted, that the court would have excluded the out-of-court

identifications.Further, defendant cannot demonstrate that even if the out-of-courtidentifications were excluded, that he would have been acquitted ofthe charges against him. The State had overwhelming evidence

against defendant, including the victims’ positive identification of

property taken during the robberies that was found in defendant’s

possession or in close proximity to him upon his apprehension, thevictims’ identification of the gun used during the robbery, and

28
to request a Wade hearing as matter of trial strategy was deficient

or that his counsel’s performance prejudiced the defendant. See

State v Savage, 120 N.J. 594, 617 (1990).

(Dkt. No. 9-16 at p. 24-32.)

The denial of this claim was not an unreasonable application of the Strickland standard.

The Appellate Division properly stated the law and found that Mr. Page failed to satisfy either of

the Strickland prongs. Page failed to show that his counsel’s decision to bypass a Wade hearing

fell below an objective standard of reasonableness. Indeed, there was no need to indulge the

Strickland presumption that defense counsel’s actions implemented trial strategy—counsel said

so at the time. He explicitly waived a Wade hearing, stating that “strategically” he preferred to

cross-examine these witnesses at trial, without giving them a “trial run” in a pretrial hearing. The

Appellate Division could, and did, find that this was within the broad scope of permissible trial

strategies. Accordingly, Mr. Page fails to show that the Appellate Division’s decision

unreasonably applied the first prong of Strickland. See Pierce v. Dow, No. 11-3965, 2013 WL

6027928, at * 11 (D.N.J. Nov. 13, 2013) (finding that petitioner failed to demonstrate deficient

performance by counsel’s decision not to request a Wade hearing as state courts concluded that

the decision constituted sound trial strategy).

Nor did the Appellate Division unreasonably apply the second, “prejudice” prong of

Strickland. Mr. Page failed to demonstrate that a Wade hearing would have resulted in the

exclusion of the out-of-court identifications. That was not an unreasonable application of clearly

established federal law. Accord Richardson v. Superintendent ofMid-Orange Corr. Facility, 621

29
identification was not unduly suggestive as it was a spontaneous occurrence).

As the state court noted, the identifications by Melvin and Perez were spontaneous and

reliable, not the product of impermissible suggestion. In so holding, the Appellate Division

correctly laid out the applicable factors, including “the opportunity ofthe witness to view the

criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior

description ofthe criminal, the level of certainty demonstrate at the confrontation and the timebetween the time and the confrontation.” Manson v. Brathwaite, 432 U.S. 98, 114 (1977);

United States v. Anthony, 458 F. App’x 215, 218 (3d Cir. 2012) (not precedential). The Appellate

Division noted that the identifications took place within an hour ofthe commission of therobberies. See Manson, 432 U.S. at 131 (“[Tjhe reliability of an identification is increased only if

it was made within several hours of the crime.”). The victims furnished a reasonably accuratedescription of the perpetrator to the police and identified property which had been taken from

them found on Mr. Page’s person or in his vicinity. Mr. Page failed to establish that the state

court’s decision in this respect was an unreasonable application of clearly established federal

law. See, e.g., United Slates v. Nobles, 322 F. App’x 96, 98 (3d Cir. 2009) (defendant failed to

show that show-up identification was unreliable where witness saw defendant cross the street,

saw his face in the restaurant, described defendant accurately to police and identification wascertain and made shortly after the crime).

30
whether the totality of the circumstances nonetheless renders the identification reliable. See

United States v. Roland, 545 F. App’x 108, 114 (3d Cir. 2013) (not precedential; setting forth

steps that are necessary before suppressing identifications under Wade) (citing Thomas v.

Varner, 428 F.3d 491, 503 (3d Cir. 2005)). These identifications took place within an hour of the

robberies, each victim had a good view of the robber and described him (and his gloves)

accurately to the police, each showed a high degree of certainty, and they identified some of the

stolen property found near the defendant. That was a reasonable application of federal law,

which I cannot overturn.

Therefore, the claim will be denied.

ii. Failure to Request a Clawans Charge

Mr. Page’s next claim is that his trial counsel was ineffective when he failed to request

that the jury be instructed in accordance with State v. Clawans, 38 N.J. 162, 183 A.2d 77(1962),

that it could infer that the three non-appearing victims would have testified adversely to the

prosecution.

The last reasoned decision on this claim is that of the Appellate Division on direct appeal,

excerpted here:

Under Clawans, for the jury to be charged on the adverse inference

permitted to be drawn from the non-production of a witness, it

must appear that (1) the witness is within the power or control of

one party, (2) the witness is practically and physically available to

that party, (3) the witness’ testimony will elucidate relevant and

critical facts in issue, and (4) the witness’ testimony would have

31
but that the subpoenas went unreturned. The prosecutor told the

judge that as a result, the State did not have these witnesses

available for trial. The prosecutor indicated to the judge that he

would like to wait until the next day, and ifthe witnesses did not

appear for trial, then the State would be prepared to rest. At the

prosecutor’s request, the trial judge issued warrants for the nonappearing witnesses to testify at trial. On the following day, the

witnesses did not appear and the State did rest.

We are satisfied that the fourth hickman factor could not be shown

because the non-testifying victims would have only provided

cumulative and not “superior” testimony to that evidence already

presented. Id. at 414. The victims were robbed in three sets of two,

and one victim from each set testified. In addition, Officer Kenny,

who witnesses defendant in the midst of robbing Melvin and Perez,

gave an account of his observations at trial. Furthermore, Officer

Donnelly and Detective Caldwell testified as to McGowan’s and

Perez’s identification of their property taken during the robberies,

which was recovered by the police within a few feet of where

defendant was arrested.

Further, the prosecutor explained to the court that he had

subpoenaed the missing victims and attempted to produce them at

trial. The judge issued warrants requiring their appearance.

Apparently they could not be located or were evading subpoenas.

Thus, the second Hickman factor was also not able to be

demonstrated.

We are satisfied that the factors necessary to warrant a C’lawans

charge were not satisfied here. Therefore, counsel could not have

been deficient under the first prong of the Strickland-Fritz test. As

for the second prong, defendant has failed to show how the

outcome of the trial would have been different had a Clawans

charge been requested.

(Dkt. No. 9-17 at p. 2-5.)

32
case would have been different.

The Appellate Division noted that failure to give a Clawans charge was not an error, even

under state law. One witness to each of the three robberies had testified, and the prosecutor had

explained to the Court that it could not locate the missing three victims. See State v. Hickman,

499 A.2d 231, 234 (N.J. Sup. Ct. App. Div. 1985). And there is no showing of prejudice: as the

Appellate Division pointed out, the charge, if requested, would not have been given.

Accordingly, this claim does not merit federal habeas relief

iii. Failure to Research Seating Petitioner Elsewhere During Trial

On direct appeal, Mr. Page also argued that trial counsel was ineffective for failing to

research whether he could sit elsewhere while the victims were testifying. His position at counsel

table, he contends, too strongly suggested to these victim witnesses that he was the culprit. The

ineffective assistance claim is confined to the “failure to research”; Mr. Page’s counsel did in

fact request that his client be permitted to sit elsewhere during the victims’ testimony. The trial

court rejected that request, addressing Page’s counsel as follows:

[Sjhow it to the court, where a defendant who says he wants to sit

on the last row of the courtroom instead of the first row at Counsel

8 Federal habeas is not available to correct errors of state law. A habeas petitioner who

substantively challenges state jury instructions must “point to a federal requirement that jury instructions

must include particular provisions,” or demonstrate that the jury “instructions deprived him of a

defense which federal law provided to him.” Johnson v. Rosemeyer, 117 F.3d 104, 110 (3d Cir.1997).

Moreover, ‘[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement

of the law.” Henderson v. Kibbe, 431 U.S. 145, 155 (1977). Recasting the claim as one of ineffective

assistance does not alter the picture appreciably, except insofar as it tends to excuse the failure to raise it

at trial.

33
(Dkt. No. 9-52 at p. 2 1-22.) The Appellate Division denied this claim on direct app

discussion.

The state court’s decision was not contrary to, or an unreasonable application of clearly

established federal law. See C’ullen, 131 S.Ct. at 1402 (“Section 2254(d) applies even where

there has been a summary denial.”). And Mr. Page failed to show that the outcome ofthe

proceeding would have been different had trial counsel done more research into the issue.

Mr. Page relies on United States v. Thoreen, 653 F.2d 1332 (9th Cir. 1981). There, in

dicta, the United States Court of Appeals for the Ninth Circuit stated that if identification were at

issue, an attorney could test a witness’s credibility by obtaining the the court’s permission to (1)

seat two or more persons at counsel table without identifying the defendant; (2) have no one sitat counsel table, or (3) hold an in-court lineup. See Id. at 1342 n.7.

Mr. Page has not demonstrated a reasonable probability that a New Jersey state trial court

would have even followed that non-binding and isolated dictum, already 23 years old at the time

of his trial. (Recall that the trial court challenged the defense to produce a binding ruling of the

“Supreme Court, an Appellate Division Court, that this Court would have to follow.”) And, as

he acknowledges, the Ninth Circuit at best suggested that a trial court possesses the discretion to

grant such a request, not that it was required to do so. (See Dkt. No. 9-1 1 at p. 6.) Finally, even

if Page had been seated elsewhere, there is no showing of a reasonable probability that the trial

would have turned out differently.

34
Mr. Page also incorporates the ineffective assistance of counsel claims he made in his

State PCR proceedings. As previously stated, Mr. Page argued there that trial counsel was

ineffective because he: (1) failed to subpoena McGowan, Newsome and Perez; (2) conducted a

substandard cross-examination of witnesses; (3) failed to object to inadmissible hearsay as well

as the suggestive show-up identification; and (4) gave an inadequate summation. The last

reasoned decision on these claims was from the New Jersey Superior Court, Appellate Division,

on appeal from the denial of PCR:

Without establishing a prima facie case of ineffective assistance of

counsel, there is no entitlement to a PCR evidentiary hearing. R.

3:22-10(a). See also State v. Preciose, 129 N.J. 451, 462 (1992);

State v. Cummings, 321 N.J. Super. 154, 169 (App. Div.), certf

denied, 162N.J. 199 (1999).

When the court applied the Strickland v. Washington test, it

concluded that petitioner had not met his obligation to prove that

the representation provided by his attorney fell below an objective

standard of reasonableness.” Strickland, supra, 466 U.S. at 688,

104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The court considered the

attorney’s strategy not only reasonable given the overwhelming

proofs, but that defendant utterly failed to establish “that his

attorney was not well-prepared, thoroughly familiar with the

record and persistently and forcefully advocating for his interests.”

In addition, as the court stated, defendant failed to prove that but

for any decision made by his attorney, “the outcome of his case

would have been different.” Relying on State v. Fritz, supra, 105

N.J. 42, the court noted that prejudice is not presumed but must be

proven by the petitioner, and that defendant had not identified any

prejudice flowing from his attorney’s conduct. Id. at 52.

35
It is also asserted that counsel, during summation, mistakenly

referred to Perez, who failed to appear, as Melvin, the victim whodid appear. Again, defendant does not explain how the mistaken

reference prejudiced him.

As the PCR judge noted, a defendant must establish “that there is a

reasonable probability that, but for counsel’s unprofessional errors,the result of the proceeding would have been different.”

Strickland, supra, 466 U.S. at 694, 104 5. Ct. at 2068, 80 L. Ed. 2d

at 698. A reasonable probability is one which undermines

confidence in the outcome of the trial. Ibid. Defendant must prove

by a preponderance of the evidence that trial counsel’s conduct fell

outside the broad spectrum of competent legal representation. See

Fritz, supra, 105 N.J. at 52. Defendant has failed to carry that

burden.

(Dkt. No. 9-38 atp. 7,8,9-10.)

Counsel’s failure to subpoena McGowan, Newsome and Perez to testify, Mr. Page

argues, was harmful because they would have failed to identify him at trial. There is no evidence

of that, however, beyond Page’s say-so. More fundamentally, the state court cannot have

unreasonably applied Strickland here. The prosecution not only attempted to subpoena these

witnesses, but obtained arrest warrants for them. There is no reason to conclude that, if Mr.

Page’s trial counsel had added his own subpoena to those of the prosecution, the witnesses

would have appeared. For these reasons, Mr. Page fails to show that he is entitled to federal

habeas relief on this claim.

Mr. Page faults his attorney’s cross-examination of police witnesses, arguing that counsel

should have elicited that Page would have needed an automobile to commit the robberies. The

36
best. Page makes no showing that the proffered testimony could have been elicited from thesewitnesses, that it had any factual basis whatever, or that it would have been significantly

exculpatory. Further, in light of the strong identification and other evidence against Mr. Page,

there is no reasonable possibility that this line of cross-examination would have led to a different

result.This claim does not merit federal habeas relief.

Mr. Page also claimed in his PCR proceedings that counsel was ineffective for failing to

object to inadmissible hearsay and suggestive show-up identifications at the police precinct. On

direct appeal, the Appellate Division ruled that these errors, considered substantively, were

harmless, and I agree. No different result is required when they are subjected to the Strickland

prejudice test. This claim, too, will be denied.

Finally, Mr. Page faults trial counsel’s summation because counsel mixed up the name of

Melvin, who did testify, with that of Perez, who did not. That slip of the tongue does not giverise to a Strickland claim. Indeed, the trial court caught the error, and Page’s trial counsel

corrected himself in response. More generally, the trial judge gave this jury the customaryinstruction that they should be guided by their own recollection of the evidence, not the

statements of counsel, and the jury is presumed to have followed that instruction. See Weeks v.

Angelone, 528 U.S. 225, 234 (2000). Accordingly, this claim does not warrant federal habeas

relief as the state court did not unreasonably apply Strickland.

37
because petitioner never raised it before the state courts. Despite that apparent lack of

exhaustion, Twill briefly analyze this claim. See Lambert, 134 F.3d at 5 14-15.

When the prosecutor called Barbour to testify, she arrived in court with a three-year-old

child. Mr. Page’s trial counsel moved for a mistrial based on the child’s potential to elicit

sympathy from the jury. The trial court found that the circumstances did not require a mistrial.

When Barbour stated that there was no one to care for the child, the Court permitted her totestify, but instructed the jury as follows:

THE COURT: I am going to have Officer Runne swearing you in

a moment. I want to give you an instruction that, as far as I

understand, this particular witness came in with a child because

she — that’s all she could do. She didn’t have, at this moment anyother place to have the child. She had to bring the child to Court

with her. [] Though we do have a room downstairs for children in

the Family Court on the second floor, you cannot leave the child

down there unaccompanied. So that’s the point. I do not want you

to take any inferences whatsoever at all from the fact she brought

the child into this Court. I don’t want you to consider that. That

should not be regarded by you. I want you merely to concentrateon the testimony of this witness as she gives that testimony to you.

(Dkt. No. 9-56 at p. 15-16.)

Petitioner is not entitled to federal habeas relief on this claim. He fails to show a

reasonable probability that the outcome of his appeal would have been different had appellate

counsel raised this issue. On appeal, the standard of review of this denial of a mistrial would

have been abuse of discretion. E.g., State v. Winter, 96 N.J. 640, 647 (1984); State v. DiRienzo,

53 N.J. 360, 383 (1969). The trial court, faced with a practical dilemma, did not simply ignore

38
empower a federal court, whether or not it would have responded in the same manner, to review

such a discretionary determination.

Finally, for the reasons previously stated, the case against Mr. Page was strong. He does

not show that, even if appellate counsel had pressed this argument, the Appellate Division would

have found that the trial court’s exercise of discretion tainted the verdict.

Accordingly, even assuming that he could overcome the exhaustion threshold, Mr. Page

would not be entitled to federal habeas relief on this claim.

vi. Cumulative Effect ofIneffective Assistance ofCounselMr. Page also argues in his federal habeas petition that the cumulative effect of all of his

ineffective assistance of counsel claims merits granting federal habeas relief. 9Errors that do not

individually warrant federal habeas relief may sometimes do so when combined. See Aibrechi v.

Horn, 485 F.3d 103, 139 (3d Cir. 2007) (citing Marshall v. Hendricks, 307 F.3d 36, 94 (3d Cir.

2002)) (footnote omitted). In this case, Mr. Page fails to demonstrate a reasonable probability

that the outcome of his proceedings would have been different. As explained above, some of his

claims do not involve deficient performance at all. Additionally, in light of the strongindependent evidence in the case, there is no substantial or colorable showing that the outcome

I note that Mr. Page raised a cumulative error argument in his PCR proceedings with respect to his

ineffective assistance of counsel claims raised in those proceedings. However, as Mr. Page raises other

ineffective assistance of counsel claims in this federal habeas petition, I have included all of hisineffective assistance of counsel arguments in analyzing this claim.

39
“three strikes” law. He claims that his status as a repeat offender, found by the trial judge, should

have been alleged in the indictment and submitted to the jury. Additionally, he claims that one of

his prior convictions was successfully appealed, and therefore should not have been used to

increase the statutory maximum sentence in this case.

Petitioner raised these issues in his pro se brief on direct appeal. The Appellate Division

denied this claim without discussion. 1 review the record to determine whether the state court’s

decision was contrary to, or an unreasonable application of clearly established federal law. See

Cullen, 131 S. Ct. at 1402.

Mr. Page’s argument that his repeat-offender status was an issue for the jury rests on the

Sixth Amendment as interpreted in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely V.

Washington, 542 U.S. 296 (2004). InApprendi, 530 U.S. at 490, the Supreme Court held that

“[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond

the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In

Blakely, the Supreme Court further defined the “statutory maximum” that could not be increased

without jury findings: “[T]he relevant statutory maximum is not the maximum sentence a judge

may impose after finding additional facts, but the maximum he may impose without any

additional findings.” 542 U.S. at 302 (internal quotation marks omitted).

Under N.J. STAT. A1’N. § 2C:43-7(a)(2), certain designated offenses may be punishable

by an “extended sentence” of imprisonment for twenty years to life. (See Dkt. No. 9-17 at p. 8.)

40
years before the current offense. Mr. Page’s trial counsel responded to the prosecutor’s notice

that he was aware of Mr. Page’s exposure to a mandatory extended term. (See Dkt. No. 9-7.) At

sentencing, the trial court took notice that Mr. Page met the criteria for an extended term, granted

the prosecutor’s “three strikes” motion, and found that the applicable statutory sentencing range

was twenty years to life. (See Dkt. No. 9-66 at p. 13.)

A court may, consistent with Apprendi, take notice of prior convictions at sentencing.

What Apprendi specifically reserves for jury consideration is a fact “other than the fact of a priorconviction.” See Apprendi, 530 U.S. at 490 (emphasis added). Based on Page’s prior convictions,

the trial court found that the statutory extended sentencing range was twenty years to life. Thetrial court imposed a sentence of fifty years’ imprisonment, within that statutory range. (Dkt. No.

9-8.) See Perez v. Glover, No. 10-0655, 2012 WL 481122, at *23..24 (D,N.J. Feb. 14, 2012)

(denying Apprendi habeas claim as to extended sentence based on prior convictions under NewJersey statute). That was permissible under Apprendi.

Relatedly, because the prior convictions did not have to be determined by a jury, they did

not have to be alleged in the indictment. “[T]he Supreme Court [has] held that the existence of

prior convictions that increase the statutory maximum sentence may be determined by the

District Court at sentencing and need not be included in the indictment or established as an

element of the offense.” United Stales v. Vazquez, 381 F. App’x 168, 174 (3d Cir. 2010) (citing

Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998)).

41
matter for resentencing based on a downgrade from first degree to second degree robbery. See

N.J. Stat. Ann. 2C:15-1. On remand, Page was resentenced on May 25, 2000, and a new

judgment was entered.’° (See Dkt. No. 9-6 at pp. 5-7.) It was based upon that new judgment (not

the first, vacated judgment) that the prosecution sought, and the court imposed, an extended

sentence. See N.J. Stat. Ann. 2C:43-7.1(b)(l).

For the foregoing reasons, Mr. Page is not entitled to federal habeas relief on any of his

sentencing claims.

V. CERTIFICATE OF APPEALABILITY

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

appealability, an appeal may not be taken from a final order in a proceeding under 28 U.S.C. §

2254. A certificate of appealability may issue “only ifthe applicant has made a substantial

showing ofthe denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfiesthis standard by demonstrating that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude the issues presented are

adequate to deserve encouragement to proceed further.” A’filler-El v. Cockrell, 537 U.S. 322, 327

(2003). Applying this standard, the Court finds that a certificate of appealability shall not issue in

this case.

10 Indeed, it appears as if Mr. Page was resentenced on that first-degree robbery conviction by theSuperior Court on May 25, 2000. (See Dkt. No. 9-6 at p. 5-7.)

42
KEVIN MCN(JLTY

United States District Judges

43