NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

SERGIO RODRIGUEZ, :

: Civil Action No. 11-2432 (FSH)

Petitioner, :

:

v. : OPINION

:

GREG BARTKOWSKI, et al., :

:

Respondents. :

APPEARANCES:

Petitioner pro se

Sergio Rodriguez

New Jersey State Prison

P.O. Box 861

Trenton, NJ 08625

Counsel for Respondents

John Edwin Anderson

Essex County Prosecutor’s Office

50 West Market Street

Newark, NJ 07601

HOCHBERG, District Judge

Petitioner Sergio Rodriguez, a prisoner currently confined

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

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

§ 2254. The respondents are Administrator Greg Bartkowski and

the Attorney General of New Jersey.

For the reasons stated herein, the Petition will be denied.

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I. BACKGROUND

A. Factual Background

The relevant facts are set forth in the opinion of the

Superior Court of New Jersey, Appellate Division. 

1

On July 25, 1998, Alfonso Siguencia lived at 197

Garside Street, Newark, in a second floor apartment.

Three or four other families lived in the building. At

the time, the electricity was out on the first floor,

however, a nearby streetlight illuminated the entrance

to the building.

At approximately 9:15 p.m., Alfonso and Segundo

Romero, returned to Alfonso's apartment after playing

volleyball at nearby Branchburg Park with four of

Alfonso's nephews and others. Rodrigo Siguencia and

Mario Siguencia arrived at Alfonso's apartment first,

followed by Claudio Siguencia, Raul Siguencia, and

Gonzalo Calle, a friend of Rodrigo's.

Before Claudio, Raul, and Gonzalo arrived, Rodrigo

and Mario went to Rodrigo's car intending to leave, at

which time three males, later identified as defendants,

and two females, all apparently in their late teens,

walked by. While the two girls waited at a corner, the

males approached and, according to Rodrigo, asked them

for a cigarette. After he responded that they had no

cigarettes, the three males asked Rodrigo and Mario for

money. Rodrigo responded that they earned their money

and had none to give. A fight then broke out. Alfonso

who had witnessed these events from his porch got up

and walked over to the scene where his nephews and the

three males had gathered. At this point, Claudio, Raul,

and Gonzalo arrived.

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

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

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

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

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

rebutting the presumption of correctness by clear and convincing

evidence.”

2

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After being hit in the face, Rodrigo took his belt

off and chased the three males, who ran away with the

two girls. Maria Chaves was with a friend on Garside

Street in the vicinity of Alfonso's apartment. She saw

the three men and two girls leave and heard one of the

men state “go hide because I am coming back.” She

called the police.

After the assailants left, Rodrigo asked Alfonso

if he could use Alfonso's bathroom. Alfonso escorted

Rodrigo up to his apartment. When Alfonso returned

downstairs, he saw a group of about fifteen men arrive.

The group, which included the three men involved in the

prior incident, attacked all of the Siguencias. Alfonso

called for his nephews and friends to come inside;

Gonzalo and Raul were the first to enter, and then

friends and family followed, but the assailants, armed

with knives and bats, followed and kicked open the door

to the building.

Gonzalo, who was at the front door, was stabbed in

the heart and lung. Claudio, after being hit in the

head with a piece of wood by Rodriguez and kicked by

three assailants, got up and saw Alfonso with blood on

his shirt. Claudio was then stabbed in the back. As

three assailants attempted to pull Claudio outside, he

managed to escape, with part of his kidney protruding

through his knife wound. Claudio also saw defendant

Luis DeJesus stab Alfonso.

Meanwhile, Alfonso engaged one of the attackers.

However, he was hit with a bat from behind and was

eventually stabbed in the stomach. According to

Alfonso, he saw the three defendants stab Gonzalo and

Claudio. As Alfonso attempted to retreat up the stairs

to his apartment, he was stabbed in the leg. He was

also stabbed in the chest. Claudio also retreated

upstairs, but fell unconscious. When Rodrigo returned

from the bathroom, he saw Alfonso bleeding and Claudio

lying on the second story landing, also bleeding. Mario

sustained fatal wounds during the attack.

In court, Alfonso identified Luis DeJesus as one

of the individuals who stabbed Claudio. He also

identified two males who were in the visitors' section

of the courtroom as assailants; they were not

defendants. He admitted that it was dark on the first

floor, but claimed that sufficient light came from

3

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outside since the front door was open. He lost

consciousness after the attack for three days and was

hospitalized for six days.

Rodrigo, uninjured, chased after the attackers. He

confronted an individual, who was tall with a shaved

head, and who produced a knife. Rodrigo retreated

across the street. He described one of the attackers to

the police as being eighteen to nineteen years old,

about five feet six inches tall, wearing a white shirt,

jean shorts, and white sneakers. Rodrigo also gave a

description of a second assailant as having a thin

beard, twenty to twenty-one years old, wearing blue

jeans, a white shirt, and a baseball cap. Rodrigo

admitted that he did not see who stabbed any of the

victims. He also testified that neither he nor Mario

made any untoward statements to the two women at the

time of the first encounter.

Claudio identified Luis in court as one of the

individuals who stabbed Alfonso. He believed Rodriguez

was the individual who hit him with a piece of wood.

However, he could not identify anyone for the police

shortly after the attack, because he was still on

medication. Nevertheless, he was one hundred percent

sure of his in-court identification of Luis. A

different individual stabbed him and Alfonso from

behind. He did not know who stabbed him nor did he see

who stabbed Mario. Claudio lost his kidney and was

unconscious and in a coma for several days. He stated

that he was “100 percent” certain that the three

defendants were responsible for the stabbings.

Gonzalo admitted that it was dark inside the

building and that he could not see well. He was shown

photographic arrays following the altercation but could

not identify any of the assailants.

According to A. Wayne Williams, M.D., an assistant

medical examiner, Mario Siguencia suffered two major

injuries. The first, which was fatal, resulted from a

stab wound to the left side of his chest that pierced

the skin, muscle, two ribs, part of the left lung, the

sac surrounding the heart, the heart itself, and a part

of the liver. The knife used to kill Mario was a

single-edged knife. The second stab wound was in the

right groin area.

4

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Adelino Benavente, an officer with the Newark

Police Department, responded to the scene that night.

He noted blood throughout the crime scene and spoke

with various witnesses. Manny Garcia, the lead

detective on the case, also found blood throughout the

site. Garcia prepared photographic arrays, including

photographs of Alexis and Luis, and showed them to

various witnesses. However, no identifications were

made at that time. No bats or knives were found at the

scene.

The police began to interview individuals whom

they believed had information regarding the murder. On

August 14, 1998, Quetsie Rivera gave a statement to

detective Sheila Hobson of the Essex County

Prosecutor's Office. Rivera did not voluntarily speak

with the police. Rather, she was arrested based on a

tip that she was with Alexis and Luis. Rivera claimed

that Hobson told her that if she did not give a

statement, the police would take her children from her

and she would receive a thirty-year jail term for

harboring fugitives[.] She testified that, despite the

foregoing, her statements to the police were true.

In her statement, Rivera admitted that both

DeJesus brothers had stayed at her house following the

attack. During their stay, Luis told Rivera that he had

hit some guys with a stick and stabbed a couple guys on

Garside Street on July 25. He also told her that one

victim attempted to run up the stairs in the building,

that he ran after the victim and stabbed him in the

back. She stated that when Luis described this

incident, he was “laughing, like he didn't care .”

Alexis told Rivera that every time a victim fell to the

floor during the attack, he would “shank them up,”

meaning he would stab them. Rivera described Luis as

being chunky on August 14, 1998, with a large stomach

and buttocks, “Chinese looking eyes,” a beard, and

tattoos. Alexis was skinny with no facial hair.

Millian Santiago was interviewed by the police on

August 20, 1998. She was eventually charged with

harboring fugitives and obstructing justice. However,

these charges were reduced and resolved in municipal

court, where she was given a probationary sentence.

Santiago also claimed that she did not give her

statement willingly. She too claimed that threats were

made against her and her family unless she spoke.

5

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Specifically, she allegedly was told that DYFS would

take custody of her five-year-old handicapped child.

Nevertheless, she acknowledged that the statement she

gave the police and her testimony in court were

truthful. Santiago testified that after the incident

Luis and Alexis disappeared for two or three days, but

thereafter, they stayed with her for one day.

On August 14, 1998, Rodriguez's girlfriend,

Yvalisse Rivera, gave a statement to the police. At

trial, Yvalisse testified that her statement to the

police was untrue, that she gave it only because the

prosecutor's office threatened her. Following a hearing

pursuant to State v. Gross, 121 N.J. 1, 577 A.2d 806

(1990), the judge admitted her statement as a prior

inconsistent statement, and it was read to the jury by

Hobson.

In the statement, Yvalisse claimed that she and

another girl, “Tabitha,” were with the three

defendants, returning from a pizzeria, when they saw a

group of Hispanics near the corner of Fourth and

Garside on July 25. Luis made fun of them, since they

spoke a different dialect of Spanish. The three

defendants crossed the street after one of the Hispanic

individuals asked why Luis made fun of them. A few

minutes later, Yvalisse saw one of the Hispanics remove

his belt and swing at her friends. The three defendants

and two women ran away. She heard Luis tell one of the

Hispanics to wait for him.

Alexis and Luis enlisted two men to join them.

Luis had a double-bladed knife (i.e., sharp blades on

both sides), and one of the two new men had a bat.

Yvalisse begged Rodriguez, whose nickname was “Macho,”

not to return to 197 Garside, however, he told her he

had no choice. Yvalisse accompanied the group to 197

Garside. She saw Luis force open the door to the

building and he and the others entered the building.

She saw some men run upstairs in the building, although

she could not identify them.

Yvalisse next saw the three defendants after the

fight. Luis had a bloody knife, and Rodriguez had an

expression on his face, which led her to believe that

something bad had happened. She said her “heart just

dropped.” She also noted that although Alexis left

wearing sneakers, he had none on his return. Rodriguez

6

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told her that he fought with one of the Hispanics they

had met previously. He told her that one victim was

stabbed on the stairs and another one was stabbed in an

upstairs apartment. Rodriguez also told her that three

or four people got stabbed.

Also in her statement, Yvalisse revealed that Luis

said what he did was “cool,” as if he had no

conscience. Luis further told her that a guy hit him,

“so that nigger had to wear it.” Luis also confided

that he had stabbed someone. Finally, Luis joked that

the victims were “crying on the floor and jumping up

like fish.” Yvalisse also related that, at the time of

her statement to the police, Rodriguez was in Puerto

Rico because his sister was ill.

Yvalisse identified both Luis and Alexis in

photographic arrays. No photographs of Rodriguez were

shown to her. Yvalisse testified in court that her

statement was based on responses suggested to her by

Hobson during the interview. Yvalisse also testified

that the police entered her home in the early morning

hours on August 14 looking for Rodriguez, without a

warrant.

On August 19, 1998, Rodriguez turned himself in.

Yvalisse was present at the time. Rodriguez was

interviewed and repeated the story that he and the

other defendants, together with the two women, ran into

the Siguencias near 197 Garside. He conceded that he

and the others returned to Alfonso's apartment after

the initial disagreement; however, he claimed that he

had no weapons other than his teeth, which he used

during the fight that ensued. He claimed he saw no

weapons and did not know who had weapons or who

committed the stabbings. The following day, he took a

planned trip to Puerto Rico to be with his ailing

sister.

Alexis and Luis were arrested together on August

25, 1998, and interviewed by Garcia. Alexis stated that

he was walking home from a pizzeria with his brother

Luis, his wife Tabitha, Rodriguez, and Rodriguez's

“wife” (Yvalisse), when they passed the Siguencias. One

of the Siguencias got fresh with Rodriguez's wife.

Nevertheless, according to Alexis, the group continued

to walk until he was hit with a belt buckle. He ran,

but saw that there was a brief fight behind him.

7

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He then returned with a group of individuals. He

saw some of them run into the house, at which time he

stayed outside. He saw no fighting inside or outside,

noting that it was dark inside the building. He fought

with no one, saw no knives, and eventually returned

home. He saw no stabbings and denied stabbing anyone.

The next day he learned about the stabbing, and that

the police were looking for him. He stayed with friends

until he was arrested.

Luis related a similar version respecting the

first encounter with the Siguencias. When he and the

others returned to 197 Garside, the Siguencias were on

the porch waiting, and a fight ensued. He was punched

and then left. He saw no stabbings, knives, or blood at

the scene. After learning later that someone was

killed, he became scared and went into hiding until his

arrest.

(Answer [14], Ex. 7, Opinion of Superior Court of New Jersey,

Appellate Division, at 5-16 (Feb. 17, 2004).)

B. Procedural History

Following a jury trial in the Superior Court of New Jersey,

Law Division, Essex County, Petitioner was convicted of second

degree burglary, contrary to N.J.S.A. 2C:18-2 (count one);

second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b

(count two); fourth-degree aggravated assault, as a lesserincluded offense of second-degree aggravated assault (counts

three and four); conspiracy to commit murder, contrary to

N.J.S.A. 2C:5-2 and 2C:11-3 (count five); second-degree reckless

manslaughter, as a lesser-included offense of purposeful or

knowing murder (count six); felony murder, contrary to N.J.S.A.

2C:11-3(a)(3) (count seven); and possession of a weapon with an

unlawful purpose, contrary to N.J.S.A. 2C:39-5d (count nine).

8

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On July 14, 2000, Petitioner was sentenced to an aggregate

term of thirty-eight and one-half years’ imprisonment, subject to

thirty-six years of parole ineligibility. On February 17, 2004,

the Superior Court of New Jersey, Appellate Division, affirmed. 

On June 4, 2004, the Supreme Court of New Jersey denied

certification. State v. Rodriguez, 180 N.J. 452 (2004). 

Petitioner did not seek a writ of certiorari from the United

States Supreme Court.

Petitioner timely filed a petition for post-conviction

relief (“PCR”) in the trial court in May 2005. Following oral

argument, the PCR court denied relief on August 4, 2008. 

(Answer, Ex. 12.) The Appellate Division affirmed the denial of

relief on October 27, 2010, State v. Rodriguez, 2010 WL 4226170

(N.J. Super. App.Div. Oct. 27, 2010), and the Supreme Court of

New Jersey denied certification on March 24, 2011, State v.

Rodriguez, 205 N.J. 518 (2011). This Petition followed.2

 Respondents contend that this Petition is not timely 2

because it was not filed by August 31, 2005. (Answer,

Affirmative Defenses, p. 97.) Contrary to Respondents’

contention, this Petition appears timely. The conviction became

final on September 2, 2004, ninety days after the Supreme Court

of New Jersey denied certification on June 4, 2004, when the time

for filing a petition for writ of certiorari with the Supreme

Court expired. See Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir.

2000); Morris v. Horn, 187 F.3d 333, 337 n.1 (3d Cir. 1999); U.S.

Sup. Ct. R. 13. According to the Appellate Division, Petitioner

filed his first state PCR petition on or about May 23, 2005, when

he had 103 days remaining on the federal one-year habeas

limitations period, and it was deemed timely in state court. See

State v. Rodriguez, 2010 WL 4226170, *1 n.1. Thus, that state

PCR petition tolled the federal limitations period so long as it

9

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Petitioner asserts the following grounds for relief: the

state’s motion to amend the indictment should not have been

granted (ground four); prosecutorial misconduct, in the form of a

reference to the “Latin Kings” gang by a government witness

(ground five); the trial court’s jury charges regarding 3

aggravated assault, accomplice liability, and felony murder were

improper (ground two); the jury charge regarding identification

was pending. See 28 U.S.C. § 2244(d)(2). After Petitioner

advised the state PCR court of his concerns regarding the brief

filed by counsel, the state PCR petition was voluntarily

dismissed without prejudice on May 11, 2007, with leave to apply

to re-open until December 23, 2007. (Answer, Ex. 14, at Da64.) 

Petitioner filed a brief in support of his Petition seven days

later, on May 18, 2007; it is not clear from the record before

this Court when, if ever, Petitioner’s counsel filed a more

formal motion to re-open. The state PCR court ordered the PCR

matter “reinstated” on May 28, 2008. Thus, based upon the record

before this Court, at most seven days are chargeable to

Petitioner for this interruption in the post-conviction

proceedings. (Answer, Ex. 14, at Da69-112; Ex. 14A at 9a-10a.) 

Petitioner’s state post-conviction relief proceedings terminated

on March 24, 2011, and this Petition is deemed filed nineteen

days later, on April 12, 2011, when it was placed in the prison

mailing system, well within the 97-104 days remaining on

Petitioner’s one-year limitations period. In any event, however,

the Petition is meritless, as discussed more fully, infra.

 Respondents answer this claim for relief with reference to 3

the litigation, in state court, of various other asserted forms

of prosecutorial misconduct. In the Petition, however,

Petitioner refers solely to the “Latin Kings” testimony. 

Accordingly, this Court construes the Petition as asserting only

that claim of prosecutorial misconduct. To the extent the

Petition could be construed as asserting other claims of

prosecutorial misconduct litigated in state court, this Court

finds that the decision of the Appellate Division with respect to

those claims, see Answer, Ex. 7, Opinion of Appellate Division at

31-35, was neither contrary to nor an unreasonable application of

Supreme Court precedent and that Petitioner is not entitled to

relief with respect to any claims of prosecutorial misconduct.

10

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was inadequate (ground three); ineffective assistance of trial

counsel (ground seven); the conviction is against the weight of

the evidence and the trial court erred in denying Petitioner’s

motion for acquittal (ground one); cumulative error rendered the

trial unfair (ground nine); the sentence is excessive (ground

six); ineffective assistance of appellate counsel (ground eight);

and ineffective assistance of counsel in connection with postconviction relief proceedings. Briefing is complete and this 4

matter is now ready for decision.

II. 28 U.S.C. § 2254

As amended by the Antiterrorism and Effective Death Penalty

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

part:

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

judge, or a district court shall entertain an

application for a writ of habeas corpus in behalf of a

person in custody pursuant to the judgment of a State

court only on the ground that he is in custody in

violation of the Constitution or laws or treaties of

the United States.

With respect to any claim adjudicated on the merits in state

court proceedings, the writ shall not issue unless the

adjudication of the claim

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

or involved an unreasonable application of, clearly

 Ineffective assistance of counsel in state collateral 4

post-conviction relief proceedings is not a ground for relief in

a federal habeas corpus action. See 28 U.S.C. § 2254(i).

11

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established Federal law, as determinated by the Supreme

Court of the United States; or

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

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

A state court decision is “contrary to” Supreme Court

precedent “if the state court applies a rule that contradicts the

governing law set forth in [Supreme Court] cases,” or “if the

state court confronts a set of facts that are materially

indistinguishable from a decision of th[e] Court and nevertheless

arrives at a result different from [the Court’s] precedent.” 

Williams v. Taylor, 529 U.S. 362, 405-06 (2000) (O’Connor, J.,

for the Court, Part II). A state court decision “involve[s] an

unreasonable application” of federal law “if the state court

identifies the correct governing legal rule from [the Supreme]

Court’s cases but unreasonably applies it to the facts of the

particular state prisoner’s case,” and may involve an

“unreasonable application” of federal law “if the state court

either unreasonably extends a legal principle from [the Supreme

Court’s] precedent to a new context where it should not apply or

unreasonably refuses to extend that principle to a new context

where it should apply,” (although the Supreme Court expressly

declined to decide the latter). Id. at 407-09. To be an

“unreasonable application” of clearly established federal law,

the state court’s application must be objectively unreasonable. 

12

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Id. at 409. In determining whether the state court’s application

of Supreme Court precedent was objectively unreasonable, a habeas

court may consider the decisions of inferior federal courts. 

Matteo v. Superintendent, 171 F.3d 877, 890 (3d Cir. 1999).

Even a summary adjudication by the state court on the merits

of a claim is entitled to § 2254(d) deference. Chadwick v.

Janecka, 302 F.3d 107, 116 (3d Cir. 2002) (citing Weeks v.

Angelone, 528 U.S. 225, 237 (2000)). With respect to claims

presented to, but unadjudicated by, the state courts, however, a

federal court may exercise pre-AEDPA independent judgment. See

Hameen v. State of Delaware, 212 F.3d 226, 248 (3d Cir. 2000),

cert. denied, 532 U.S. 924 (2001); Purnell v. Hendricks, 2000 WL

1523144, *6 n.4 (D.N.J. 2000). See also Schoenberger v. Russell,

290 F.3d 831, 842 (6th Cir. 2002) (Moore, J., concurring) (and

cases discussed therein). In such instances, “the federal habeas

court must conduct a de novo review over pure legal questions and

mixed questions of law and fact, as a court would have done prior

to the enactment of AEDPA.” Appel v. Horn, 250 F.3d 203, 210 (3d

Cir. 2001) (citing McCandless v. Vaughn, 172 F.3d 255, 260 (3d

Cir. 1999)). “However, § 2254(e)(1) still mandates that the

state court’s factual determinations are presumed correct unless

rebutted by clear and convincing evidence.” Simmons v. Beard,

581 F.3d 158, 165 (3d Cir. 2009).

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The deference required by § 2254(d) applies without regard

to whether the state court cites to Supreme Court or other

federal caselaw, “as long as the reasoning of the state court

does not contradict relevant Supreme Court precedent.” Priester

v. Vaughn, 382 F.3d 394, 398 (3d Cir. 2004) (citing Early v.

Packer, 537 U.S. 3 (2002); Woodford v. Visciotti, 537 U.S. 19

(2002)).

An petition for writ of habeas corpus shall not be granted

unless the petitioner has exhausted the remedies available in

state court. 28 U.S.C. § 2254(b)(2). A petition may be denied

on the merits, however, notwithstanding the petitioner’s failure

to exhaust his state court remedies. See Lambert v. Blackwell,

387 F.3d 210, 260 n.42 (3d Cir. 2004); Lewis v. Pinchak, 348 F.3d

355, 357 (3d Cir. 2003).

Finally, a pro se pleading is held to less stringent

standards than more formal pleadings drafted by lawyers. Estelle

v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S.

519, 520 (1972). A pro se habeas petition and any supporting

submissions must be construed liberally and with a measure of

tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998);

Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989);

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

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

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III. ANALYSIS

A. The Motion to Stay

In February 2013, after briefing in this matter was

completed, Petitioner filed a Motion [23] to stay this Petition

to permit him to exhaust, in state court, a new claim that has

not been asserted in this Petition.

Petitioner submits 1 unexhausted issue was not

raised by any of petitioner’s counsels through out all

his proceedings. With the help of a paralegal here at

the prison and petitioner pouring over the [trial]

transcripts, only then was petitioner able to discover

these unexhausted issues. And petitioner was denied a

evidentiary hearing in state court in which

petitioner’s exhausted issues was clearly related to

constitutional issues concerning failures of trial and

[appellate] counsel. Petitioner also submits that

assigned PCR counsel failed to raise this issue and did

not communicate with petitioner concerning the

unexhausted issue. Petitioner’s unexhausted issue is

as follows: Defendants PCR counsel failed to raise

trial judges unconstitutional comments in the

supplemental jury charge which tainted the jury

process. The trial court judge in defendants case

conveyed both blunt and subtle pressure upon the jury,

this pressure was inconsistent with the jury’s freedom

and responsibility to return a verdict independent of

such judicial coercion or coercion period. Such

coercion violated defendants State and Federal

Constitution. For this unexhausted issue Petitioner

seeks a stay and abeyance.

(Motion to Stay at 5-6.)

The exhaustion requirement of § 2254(b)(2) is a “total

exhaustion” rule; that is, all claims presented in the federal

habeas petition must have been exhausted in state court. Rose v.

Lundy, 455 U.S. 509 (1982). At the time Lundy was decided, there

was no statute of limitations on the filing of federal habeas

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petitions. The enactment in 1996 of a one-year limitations

period for § 2254 habeas petitions, however, “‘has altered the 5

context in which the choice of mechanisms for handling mixed

petitions is to be made.’” Crews v. Horn, 360 F.3d 146, 151 (3d

Cir. 2004) (quoting Zarvela v. Artuz, 254 F.3d 374, 379 (2d

Cir.), cert. denied, 534 U.S. 1015 (2001)). Because of the oneyear limitations period, dismissal of a timely-filed mixed

petition may forever bar a petitioner from returning to federal

court. “Staying a habeas petition pending exhaustion of state

remedies is a permissible and effective way to avoid barring from

federal court a petitioner who timely files a mixed petition.” 

Crews, 360 F.3d at 151. Indeed, the Court of Appeals for the

Third Circuit has held that “when an outright dismissal could

jeopardize the timeliness of a collateral attack, a stay is the

only appropriate course of action.” Crews, 360 F.3d at 154.

The Supreme Court has somewhat limited the stay-and-abeyance

rule announced in Crews.

[S]tay and abeyance should be available only in limited

circumstances. Because granting a stay effectively

excuses a petitioner’s failure to present his claims

first to the state courts, stay and abeyance is only

appropriate when the district court determines there

was good cause for the petitioner’s failure to exhaust

his claims first in state court. Moreover, even if a

petitioner had good cause for that failure, the

district court would abuse its discretion if it were to

grant him a stay when his unexhausted claims are

plainly meritless.

 See 28 U.S.C. § 2244(d). 5

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...

On the other hand, it likely would be an abuse of

discretion for a district court to deny a stay and to

dismiss a mixed petition if the petitioner had good

cause for his failure to exhaust, his unexhausted

claims are potentially meritorious, and there is no

indication that the petitioner engaged in intentionally

dilatory litigation tactics. In such circumstances,

the district court should stay, rather than dismiss,

the mixed petition. ... For the same reason, if a

petitioner presents a district court with a mixed

petition and the court determines that stay and

abeyance is inappropriate, the court should allow the

petitioner to delete the unexhausted claims and to

proceed with the exhausted claims if dismissal of the

entire petition would unreasonably impair the

petitioner’s right to obtain federal relief.

Rhines v. Weber, 544 U.S. 269, 277-78 (2005) (citations

omitted).6

Here, the Court is not faced with a “mixed” petition, nor is

the Court faced with a petition asserting solely unexhausted

claims protectively filed during the pendency of state postconviction proceedings, see, e.g., Heleva v. Brooks, 581 F.3d 187

(3d Cir. 2009) (stay-and-abeyance procedure may be used with

respect to protectively-filed federal habeas petition whose

 Even where stay and abeyance is appropriate, the district 6

court’s discretion in structuring the stay is limited by the

timeliness concerns reflected in the one-year statute of

limitations. “Thus, district courts should place reasonable time

limits on a petitioner’s trip to state court and back.” Id. at

278. See also Crews, 360 F.3d at 154 (“If a habeas petition is

stayed, the petitioner should be given a reasonable interval,

normally 30 days, to file his application for state postconviction relief, and another reasonable interval after the

denial of that relief to return to federal court. If a

petitioner fails to meet either time-limit, the stay should be

vacated nunc pro tunc.”) (citations omitted).

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claims are wholly unexhausted). Instead, here Petitioner

requests a stay so that he can exhaust in state court a new claim

that has not been asserted at all in this Petition.7

Moreover, Petitioner has failed to demonstrate either good

cause for his failure to exhaust this claim or that the claim is

potentially meritorious. With respect to his obligation to

establish good cause for failure to exhaust this claim,

Petitioner does not state when he first obtained a copy of the

relevant transcripts, or describe the nature of his discussions

with trial, appellate and PCR counsel regarding the jury

instructions, or state when he first considered that the

allegedly inappropriate language might be a ground for relief

from his conviction, or when (if ever) he raised this claim in

state court, or what the status of any state court proceeding is. 

Contrary to his obligation to establish that the claim is

potentially meritorious, Petitioner has described the claim in

only vague terms. He does not identify or describe the allegedly

inappropriate language in the jury instructions or explain how

 It is not at all clear that Petitioner could amend the 7

pending Petition to assert this new claim. See, e.g., Mayle v.

Felix, 545 U.S. 644 (2005) (“An amended habeas petition, we hold,

does not relate back (and thereby escape AEDPA’s one-year time

limit) when it asserts a new ground for relief supported by facts

that differ in both time and type from those the original

pleading set forth.”). Although described in only vague terms,

it seems that the new claim is completely unrelated to the claims

already asserted regarding alleged defects in the jury

instructions.

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such language was “coercive.” Most importantly, Petitioner does

not explain how this newly-raised alleged defect in the jury

instructions was so significant that it amounted to a violation

of his due process rights. See generally Estelle v. McGuire, 502

U.S. 62, 72-73 (1991), discussed more fully infra. Under these

circumstances, this Court cannot find that it would be

appropriate to stay this proceeding in order to permit Petitioner

to return to state court to pursue this new unexhausted claim. 

Because the Petition as filed by Petitioner, and answered by

Respondents, does not contain this new unexhausted claim, it is

not necessary for the Court to grant Petitioner leave to advise

the Court whether he wishes to withdraw any unexhausted claims. 

See McMillan v. Bartkowski, Civil No. 11-1586, 2012 WL 938160, *6

(D.N.J. March 20, 2012). Therefore, this Court will proceed to

determine the Petition as filed and answered.

B. The Amendment of the Indictment

Petitioner asserts that he was prejudiced by the trial

court’s granting of the State’s motion to amend the indictment

during trial.

The Appellate Division rejected this claim of error on

direct appeal.

Realizing after presenting its evidence, that

aggravated assault does not qualify as a predicate

offense to felony murder under N.J.S.A. 2C:11-3a(3),

the State moved to amend the seventh count of the

indictment to allege felony murder based upon the

predicate offense of burglary. All defendants

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objected. The trial judge granted the motion. 

Rodriguez contends that the judge erred in permitting

the State to amend the indictment during the course of

trial. We disagree.

Article I, ¶ 8, of the New Jersey Constitution

provides that, except in certain cases not relevant

here, “[n]o person shall be held to answer for a

criminal offense, unless on the presentment or

indictment of a grant jury . . . .” Article I, ¶ 10,

provides that “[i]n all criminal prosecutions the

accused shall have the right . . . to be informed of

the nature and cause of the accusation . . . .” R.

3:7-3(a) requires that an indictment provide “a written

statement of the essential facts constituting the crime

charged . . . .”

The three-fold purpose of an indictment is: (1) to

provide adequate notice so that the accused can prepare

a satisfactory defense; (2) to be sufficiently specific

for the accused to avoid a subsequent prosecution for

the same offense; and (3) to be adequately precise to

preclude the trial jury’s substitution of an offense

which the grand jury did not in fact consider or

charge. State v. LeFurge, 101 N.J. 404, 415 (1986);

State v. Mello, 297 N.J. Super. 452, 462 (App. Div.

1997). An indictment must allege the essential

elements of the crime charged. State v. N.L., 253 N.J.

Super. 13, 19 (App. Div. 1991),certif. denied, 127 N.J.

560 (1992); State v. Newell, 152 N.J. Super. 460, 466

(App. Div. 1977).

R. 3:7-4 provides that an indictment may be

amended as follows:

The court may amend the indictment or accusation

to correct an error in form or the description of

the crime intended to be charged or to charge a

lesser included offense provided that the

amendment does not charge another or different

offense from that alleged and the defendant will

not be prejudiced thereby in his or her defense on

the merits. (Emphasis added.)

Under this rule, the “description of the crime may be

changed unless it is an ‘essential element.’” State v.

Walker, 322 N.J. Super. 535, 553 (App. Div.) (quoting

State v. J.S., 222 N.J. Super. 247, 258 (App. Div.),

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certif. denied, 111 N.J. 589 (1988)), certif. denied,

162 N.J. 487 (1999). Moreover, an indictment may be

amended “to correct an error in form or the description

of the crime intended to be charged,” as long as the

original indictment sufficiently informed defendant of

the charges against him or her. State v. Orlando, 269

N.J. Super. 116, 138 (App. Div. 1993), certif. denied,

136 N.J. 30 (1994).

In this case, all defendants were charged with

burglary in the first count of the indictment. 

Therefore, the first count of the indictment could have

served as the predicate offense for the felony murder

charge. The charge of burglary was not new to the

case. Defendants had defended against the burglary

charge throughout the case. The amendment of the

felony murder count was made at the close of the

State’s case. As the judge pointed out, the only

change wrought by the proposed amendment would be “in

the assemblage of [the] allegations [against

defendants],” in that the felony murder count would now

reference burglary rather than aggravated assault. 

Under these circumstances, defendant “clearly had an

adequate opportunity to defend the amended felony

murder charge.” Walker, supra, 322 N.J. Super. at 554. 

Here, unlike the facts in State v. Branch, 155 N.J.

317, 323 (1998), defendants were charged with burglary

in the indictment and received reasonable notice at

trial that the State would rely on that offense as the

predicate for felony murder. We are satisfied that the

defense did not suffer any prejudice nor was it

surprised by the amendment to the indictment. See

State v. Smith, 279 N.J. Super. 131, 147 (App. Div.

1995).

(Answer. Ex. 7, Opinion of Appellate Division at 48-51.)

The Sixth Amendment provides, in relevant part, that “[i]n

all criminal prosecutions, the accused shall enjoy the right ...

to be informed of the nature and cause of the accusation.” This

right does apply to the states through the Due Process Clause of

the Fourteenth Amendment. See Faretta v. California, 422 U.S.

806, 818 (1975). As explained by the Supreme Court, the

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sufficiency of a charging instrument is measured by two criteria:

“first, whether [it] contains the elements of the offense

intended to be charged, and sufficiently apprises the defendant

of what he must be prepared to meet, and, secondly, in case any

other proceedings are taken against him for a similar offense

whether the record shows with accuracy to what extent he may

plead a former acquittal or conviction.” Russell v. United

States, 369 U.S. 749, 763-64 (1962) (quotation marks and

citations omitted).8

The decision of the Appellate Division, that Petitioner was

provided adequate notice of the charges against him and that he

was neither surprised nor prejudiced by the amendment of the

indictment at trial, is neither contrary to nor an unreasonable

application of controlling Supreme Court precedent. Petitioner

is not entitled to relief on this claim.

 The Fifth Amendment to the U.S. Constitution provides that 8

“[n]o person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a Grant

Jury[.]” The Fifth Amendment right to an indictment by a Grand

Jury does not, however, apply to state criminal prosecutions. 

See Apprendi v. New Jersey, 530 U.S. 466, 477 n.3 (2000);

Albright v. Oliver, 510 U.S. 266, 272 (1994); Hurtado v.

California, 110 U.S. 516 (1884). Because the Due Process Clause

of the Fourteenth Amendment has not been construed to incorporate

the Fifth Amendment right to indictment by a Grand Jury, the

legality of an indictment is generally a matter of state law. 

See U.S. ex rel. Wojtycha v. Hopkins, 517 F.2d 410, 425 (3d Cir.

1975).

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C. Prosecutorial Misconduct

Petitioner asserts that a government witness improperly made

references to the “Latin Kings” gang, contrary to a pre-trial

agreement that the prosecutor would instruct his witnesses not to

make such references. Petitioner characterizes this event as

prosecutorial misconduct which denied him a fair trial.

This claim was raised on appeal not by Petitioner, but

rather by his co-defendants. Nevertheless, the issue was

considered and rejected by the Appellate Division in the

consolidated appeals.

Luis and Alexis claim that the judge erred by not

granting their motions for mistrial. Before trial

began, Rodriguez’s counsel informed the judge that all

counsel had agreed that there would be no mention of a

gang called the Latin Kings, due to the potential

prejudice it could generate. The prosecutor indicated

that he instructed his witnesses not to refer to the

gang.

Despite the foregoing pretrial colloquy and a

specific instruction from the prosecutor, Alfonso

Siguencia, who testified in Spanish with the aid of an

interpreter, referred in Spanish to the Latin Kings. 

The judge immediately interrupted the testimony, and

excused the jury from the courtroom. Rodriguez moved

for a mistrial. Denying the motion, the judge observed

that the reference to the Latin Kings was “not

sufficient here in a foreign language in this courtroom

in these circumstances to warrant a remedy by way of

mistrial.” Luis’s attorney quickly pointed out that

the comment was translated into English, and came out

“loud and clear.”[fn1] Nevertheless, the judge again

indicated that he would not grant a mistrial, stating

that even though the name of the gang might have been

heard by the jury in English,

[t]he reference to the word Latin King in and of

itself, while it would be preferable to have been

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avoided, does not necessarily mean that there’s

been an attribution to these defendants.

The word Latin King has been used once in the

course of the trial and the statement that it was

being used in was terminated midway in Spanish by

the -- by the Court. The procedure that we

outlined and is to be followed must still be

followed. This one reference is not sufficient in

and of itself to warrant a mistrial here.

[fn1] The actual testimony of which Luis and Alexis

complain does not appear in the transcript.

The jury, which had been excused, was then

instructed by the judge to disregard the question and

answer given by Alfonso before it was excused. The

judge indicated that he “suspected” that the jurors

might not even recall the answered question, but told

the jury “to disregard it if you do.”

...

The underlying principles are well settled. A

mistrial should be granted only in a situation that

would otherwise result in a manifest injustice. State

v. DiRienzo, 53 N.J. 360, 383 (1969); State v. Bogan,

297 N.J. Super. 7, 14 (App. Div.), certif. denied, 149

N.J. 142 (1997). A reviewing court should defer to the

trial court’s decision, State v. Harvey, 151 N.J. 117,

205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct.

811, 145 L. Ed. 2d 683 (1000), since the trial court is

in the best position to determine the effect of the

allegedly prejudicial actions. Absent an abuse of that

discretion, or proof of actual harm to defendant, the

trial court’s refusal to declare a mistrial should not

be reversed on appeal. State v. LaBrutto, 114 N.J.

187, 207 (1989); Hogan, supra, 297 N.J. Super. at 15.

Respecting the fleeting reference to Latin Kings,

we conclude that the judge’s instructions were adequate

to ameliorate any significant prejudice. State v.

Marshall, 123 N.J. 1, 161 (1991), cert. denied, 507

U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). 

Moreover, there is no reason to believe that the jury

was unwilling or unable to follow the curative

instruction as given. State v. Manley, 54 N.J. 259,

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270 (1969). ... The judge correctly refused to grant

defendants’ motions for mistrial.

(Answer, Ex. 7, Opinion of Appellate Division at 35-40.)

As the issue presented has been thoroughly considered by the

State courts, this Court will exercise its discretion to deny

this unexhausted claim. See 28 U.S.C. § 2254(b)(2).

The U.S. Supreme Court has recognized the obligation of a

prosecutor to conduct a criminal prosecution with propriety and

fairness.

He may prosecute with earnestness and vigor – indeed,

he should do so. But, while he may strike hard blows,

he is not at liberty to strike foul ones. It is as

much his duty to refrain from improper methods

calculated to produce a wrongful conviction as it is to

use every legitimate means to bring about a just one.

... Consequently, improper suggestions, insinuations,

and, especially, assertions of personal knowledge are

apt to carry much weight against the accused when they

should properly carry none.

Berger v. United States, 295 U.S. 78, 88 (1935). "The line

separating acceptable from improper advocacy is not easily drawn;

there is often a gray zone. Prosecutors sometime breach their

duty to refrain from overzealous conduct ... ." United States v.

Young, 470 U.S. 1, 7 (1985).

Here, there is no evidence to suggest that the prosecutor

wrongfully elicited the single reference to the Latin King gang. 

Nor is there any evidence to suggest that this single reference

rendered Petitioner’s trial unfair in violation of the Due

Process Clause of the Fourteenth Amendment. Cf. Minett v.

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Hendricks, 135 Fed.Appx. 547 (3d Cir. 2005) (no irreparable

prejudice from improper testimony that defendant had previously

been convicted of a weapons offense). To the contrary, the trial

court immediately interrupted the single instance of improper

testimony and instructed the jury to disregard it. The denial of

a mistrial under these circumstances does not violate clearly

established Supreme Court precedent; Petitioner is not entitled

to relief on this claim. See id. 

D. Jury Instructions

Petitioner argues that the trial court’s jury charge

regarding accomplice liability (in the context of the assault and

murder charges) was improper, in that it should have incorporated

certain facts. Petitioner also argues that the jury charge 9

regarding identification was inadequate because it misrepresented

the facts. 

The Appellate Division rejected these claims on direct

appeal.

Rodriguez asserts that the judge erred in his

instructions to the jury by: (1) failing to incorporate

facts into the instructions given on accomplice

liability and identification and (2) by affirmatively

misrepresenting facts in his identification charge. 

Again, the underlying principles are well settled. 

Proper jury instructions are essential to a fair trial. 

Cavanaugh v. Skil Corp., 331 N.J. Super. 134, 160 (App.

Div. 1999), aff’d, 164 N.J. 1 (2000). A trial judge is

 Petitioner does not assert that the jury charges mis- 9

stated the elements of the charged crimes. Accordingly, the

instructions will not be set forth verbatim here.

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obliged to give a comprehensible explanation of the

questions that the jury must resolve and to inform the

jury of the law applicable to the issues in the case. 

Myrlak v. Port Auth. of NY & NJ, 302 N.J. Super. 1, 19

(App. Div. 1997), rev’d in part on other grounds, 157

N.J. 84 (1999), certif. denied, 167 N.J. 89 (2001). 

Appropriate jury charges “‘must outline the function of

the jury, set forth the issues, correctly state the

applicable law in understandable language, and plainly

spell out how the jury should apply the legal

principles to the facts as it may find them . . . .’” 

Velazquez v. Portadin, 163 N.J. 677, 688 (2000)

(quoting Jurman v. Samuel Braen, Inc., 47 N.J. 486,

591-92 (1966)). “‘When reviewing a trial court’s

instruction to the jury, an appellate court must read

the charge as a whole’ and should not reverse ‘when the

charge adequately conveys the law and does not confuse

or mislead the jury.’” Casino Reinv. Deve. Auth. v.

Lustgraten, 332 N.J. Super. 472, 487 (App. Div.)

(quoting Sons of Thunder, Inc. v. Borden, Inc., 148

N.J. 396, 418 (1997)), certif. denied, 165 N.J. 607

(2000). “There is no reversible error ‘where the

charge, considered as a whole, adequately conveys the

law and is unlikely to confuse or mislead the jury,

even though part of the charge, standing alone, might

be incorrect.’” Mogull v. CB Commercial Real Estate

Group, Inc., 162 N.J. 449, 464 (quoting Fischer v.

Canario, 143 N.J. 235, 254 (1996)), certif. denied, 165

N.J. 607 (2000).

Essentially, Rodriguez claims that the trial judge

committed reversible error by not incorporating facts

into his instructions that explained Rodriguez’s

position regarding accomplice liability. However, the

record reflects that after giving the jury the State’s

theory of the case in order to provide some context for

his upcoming accomplice liability charge, the judge

specifically told the jury that he was not endorsing

and was taking no position respecting the State’s

theory and that defendants denied the allegations

against them. Rejecting Rodriguez’s objection to this

charge on accomplice liability, the judge observed

correctly that no defendant testified and, therefore,

he had no evidence from any of them to describe to the

jury. More importantly, the judge explained to the

jury that defendants denied being present and

participating when the stabbings took place.

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Generally, “summarizing the strengths and

weaknesses of the evidence is more appropriately left

for counsel.” State v. Robinson, 165 N.J. 32, 45

(*2000) (disapproving State v. Edmonds, 293 N.J. Super.

113 (App. Div. 1996)). Trial judges “are free to add

specific factual references ... for clarity or when the

court concludes that such references are required in

the interest of justice.” Ibid. When commenting on

weaknesses in the State’s evidence, a judge is

“‘required in the interest of fairness, to mention the

State’s explanations’ for those weaknesses.” Ibid.

(Citations omitted.) “By the same token” if reference

is made “to the State’s evidence in any significant

way,” a judge “must also refer to the defendant’s

contrary contentions.” Ibid. We find no error in the

manner in which the trial judge instructed the jury on

accomplice liability.

We come to the same conclusion respecting the

instructions on identification. Rodriguez argues that

the trial judge failed “to apply the facts of the case

in the identification charge and affirmatively

misrepresented facts” by giving instructions that were

“totally insufficient” because the “identification

evidence was inherently suspect.” He further asserts

that the judge “failed to note the numerous

inconsistencies in both victims’ testimony and [their]

prior statements admitted into evidence.” Again, it

was not the judge’s responsibility to probe the

weaknesses or strengths of either side’s case. Defense

counsel is “look[ed] to ... not the court, to probe the

State’s evidence with vigor and diligence, and our

adversarial system depends on counsel for that

purpose.” Ibid. Defense counsel did his part in

vigorously cross-examining the State’s witnesses and

forcefully arguing in his summation that the

identification was not reliable.

Here, as previously explained, the judge advised

the jury that defendants denied participation in the

crimes and he referred to their statements, which

supported their not guilty pleas. Further, the judge

discussed the evidence, including the testimony of the

victims and statements of Quetsie and Yvalisse Rivera,

which worked to both the advantage and disadvantage of

defendant, Rodriguez. In doing so, the judge

repeatedly told the jury that if its recollection of

the facts differed from his, then the jury recollection

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controlled. The judge’s comments were not overly

detailed nor did they highlight or appear to advocate

one side over the other. State v. Swint, 328 N.J.

Super. 236, 259 (App. Div.), certif. denied, 165 N.J.

492 (2000). We are satisfied that the instruction

given when viewed in its entirety was fair, impartial,

and adequately conveyed the applicable law. We see no

reason to intervene.

(Answer, Ex. 7, Opinion of Appellate Division at 44-48.)

Generally, questions relating to jury instructions are

matters of state law not cognizable in federal habeas review. 

See Engle v. Isaad, 456 U.S. 107 (1982); Henderson v. Kibbe, 431

U.S. 145 (1977). Thus, even a jury instruction that is

inconsistent with state law does not necessarily merit federal

habeas relief. 

Where a federal habeas petitioner seeks relief based upon

the jury instructions given in a state criminal proceeding,

[t]he only question for us is “whether the ailing

instruction by itself so infected the entire trial that

the resulting conviction violates due process.” It is

well established that the instruction “may not be

judged in artificial isolation,” but must be considered

in the context of the instructions as a whole and the

trial record. In addition, in reviewing an ambiguous

instruction ..., we inquire “whether there is a

reasonable likelihood that the jury has applied the

challenged instruction in a way” that violates the

Constitution. And we also bear in mind our previous

admonition that we “have defined the category of

infractions that violate ‘fundamental fairness’ very

narrowly.” “Beyond the specific guarantees enumerated

in the Bill of Rights, the Due Process Clause has

limited operation.”

Estelle v. McGuire, 502 U.S. 62, 72-73 (1991) (citations

omitted). 

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Thus, the Due Process Clause is violated only where “the

erroneous instructions have operated to lift the burden of proof

on an essential element of an offense as defined by state law.” 

Smith v. Horn, 120 F.3d 400, 416 (1997). See also In re Winship,

397 U.S. 358, 364 (1970) (“the Due Process Clause protects the

accused against conviction except upon proof beyond a reasonable

doubt of every fact necessary to constitute the crime with which

he is charged”); Sandstrom v. Montana, 442 U.S. 510, 523 (1979)

(jury instructions that suggest a jury may convict without

proving each element of a crime beyond a reasonable doubt violate

the constitutional rights of the accused).

Even if there is “‘ambiguity, inconsistency, or deficiency’

in the instruction, such an error does not necessarily constitute

a due process violation. Rather, the defendant must show both

that the instruction was ambiguous and 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.” Waddington v.

Sarausad, 555 U.S. 179, 190-91 (2009) (internal citations

omitted).

Here, the Appellate Division considered whether the

challenged instructions correctly conveyed state law and found

them proper. As the Appellate Division found, the trial court’s

limited references to the evidence and testimony in the case,

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provided to establish a context for the instructions, did nothing

to relieve the State of its obligation to prove Petitioner’s

guilt beyond a reasonable doubt. The decision of the Appellate

Division was neither contrary to nor an unreasonable application

of the controlling Supreme Court law regarding jury instructions. 

Petitioner is not entitled to relief on these claims.

E. Ineffective Assistance of Counsel

Petitioner asserts that his trial counsel failed in numerous

ways to provide constitutionally adequate assistance. In 10

addition, Petitioner asserts generally that his appellate counsel

failed to provide constitutionally adequate assistance.

The Appellate Division meticulously examined each of the

claimed deficiencies and rejected Petitioner’s challenges.

A defendant must establish two elements to prove

ineffective assistance of counsel. First, he must

demonstrate that counsel's performance was deficient.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 2064, 80 L. Ed.2d 674, 693 (1984). Performance is

 More specifically, Petitioner alleges that trial counsel 10

failed to permit Petitioner to testify at the hearing pursuant to

Miranda v. Arizona, 384 U.S. 436 (1966), to determine the

admissibility of his statement to police; failed to move to

dismiss based on the State’s opening argument; failed to move to

sever Petitioner’s trial from that of his co-defendants; failed

to investigate potential exculpatory witnesses; failed to object

to the testimony of Alfonso Siguencia; failed to conduct himself

in a professional manner in front of the jury; failed to properly

prepare for trial; failed to properly advise Petitioner that he

should be present at trial; failed to argue self-defense; failed

to move for a mistrial; failed to object to the State’s

summation; was ineffective with regard to the charge and recharge

to the jury; and was ineffective in failing to argue effectively

at sentencing.

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deficient when “counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed

the defendant by the Sixth Amendment.” Id. at 687, 104

S.Ct. at 2064, 80 L. Ed.2d at 693. ... Second, a

defendant must establish that counsel's deficiency

prejudiced the defense by demonstrating 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 S.Ct. at 2068, 80 L. Ed.2d at 698. “A

reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Ibid. There is a

“strong presumption that counsel's conduct falls within

the wide range of reasonable professional assistance.”

Id. at 689, 104 S.Ct. at 2065, 80 L. Ed.2d at 694. In

order to rebut this presumption, a defendant must prove

that counsel's actions did not amount to “sound trial

strategy.” Id. at 689, 104 S.Ct. at 2065, 80 L. Ed.2d

at 694-95. ...

“‘Judicial scrutiny of counsel's performance must

be highly deferential,’ and must avoid viewing the

performance under the ‘distorting effects of

hindsight.’ “ State v. Norman, 151 N.J. 5, 37, 697 A.2d

511 (1997) (quoting Strickland, supra, 466 U.S. at 689,

104 S.Ct. at 2065, 80 L. Ed.2d at 694). Thus, an

attorney's strategy decision should not be

characterized as ineffective assistance merely because

the decision did not produce the desired result. See

id. at 37-38. ... 

IV

Against this backdrop and applying these legal

principles, we now consider the arguments raised on

appeal. We begin with Point I in defendant's counsel's

brief, in which fourteen assertions of ineffective

assistance of trial counsel are raised.

In Point I.A, defendant argues that his trial

counsel was deficient for failing to permit him to

testify at the Miranda hearing. We defer discussion of

this issue to the next section of this opinion. ... 

In Point I.B, defendant argues that his trial

counsel was deficient for failing to move to exclude

the use of his nickname, “Macho,” during the trial. ...

Further, the argument lacks substantive merit. Many of

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the witnesses knew defendant only by his nickname and

referred to him as “Macho” in their statements.

Therefore, the use of the nickname was relevant to

establish defendant's identity. ... Further, we are

unpersuaded by defendant's claim of prejudice. The

nickname is not inherently pejorative. Yet, defendant

contends that, in the context of this case, use of the

name was prejudicial. The overwhelming evidence was

that all three perpetrators, after the initial

encounter on the street with the other group, returned

to continue the altercation. In light of that evidence,

there was little or no prejudice in the use of the

nickname. ... 

Point I.C asserts ineffectiveness of trial counsel

for failing to move to dismiss the case on the basis of

the prosecutor's opening statement, during which he

said, in describing the events, that the peace of the

evening was interrupted when the three defendants and a

couple of their girlfriends came up to a group of

people and “who knows what actually happened.” This

issue ... lacks merit. Contrary to defendant's

argument, this isolated phrase did not signify that the

State admitted it could not prove what happened that

night that would form the basis of a criminal

conviction for defendant.

In Point I.D, defendant criticizes his trial

counsel for not moving for severance. This, too, ... is

substantively meritless because a joint trial is

preferable when the charges emanate from the same or

related acts and the factfinder will consider much of

the same evidence in determining the guilt or innocence

of each defendant. ... This was such a case. Any motion

to sever would have surely been denied.

In Point I.E, defendant alleges that his trial

counsel was ineffective for failing to investigate

potential witnesses to exculpate defendant. In support

of his PCR petition, defendant argued that his attorney

should have sent an investigator to interview the

witnesses that ultimately testified at trial. He

contended that “[t]hese witnesses that were present at

the scene could have supported the fact that no weapons

were visible, further supporting the petitioner's

assertion that he had no knowledge of any weapons.” The

witnesses, of course, testified at trial and were

subject to cross-examination by all defense counsel.

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Defendant has offered no affidavits or certifications

from any of these witnesses to establish that they

would have provided some testimony other than that

which they gave at trial and which would have been

exculpatory. Such “bald assertions,” unsubstantiated by

appropriate affidavits or certifications, cannot

provide the basis for a finding of ineffective

assistance of counsel ... .

Under Point I.F, defendant argues that his trial

counsel was deficient for failing to object to certain

testimony of Alfonso Siguencia. Defendant argues that

Siguencia testified that “he” hit him in the head with

a bat, without specifying that Siguencia was referring

to defendant. It may well have been sound trial

strategy to see if the victim could specify which

defendant. However, objecting on that basis could

easily have worked to defendant's disadvantage if the

victim testified that it was defendant who wielded the

bat. We will not second guess the strategic decision to

leave this inconclusive testimony unchallenged. There

was no deficient conduct in this regard.

In Point I.G, defendant argues that his trial

counsel was deficient by failing to conduct himself in

a professional manner in front of the jury. In Point

I.H, defendant argues that his trial counsel was

deficient because he “made no effort to obtain

defendant's arrest photograph until the midst of

trial.” In Point I.I, defendant argues that his trial

counsel failed to properly advise defendant that he

should be present at trial. In Point I.J, defendant

claims that his trial counsel was deficient for failing

to argue self-defense. In Point I.K, defendant

complains that his trial counsel should have moved for

a mistrial when defendant threatened the prosecutor

saying, “Slapping the shit out of his ass, man.”

These arguments lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2). It is

sufficient to note that there is no evidence to suggest

that trial counsel's aggressive questioning of

witnesses on behalf of his client constituted

unprofessional conduct; defendant has made no showing

as to how his arrest photograph could have aided his

defense; the record reveals that trial counsel clearly

advised defendant that he should remain in the

courtroom during trial, and the judge questioned

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defendant to assure that he realized the potential

adverse consequences of absenting himself; the defense

of self-defense was not applicable in this case; and

after defendant's vulgar outburst, the judge gave an

immediate and effective curative instruction, telling

the jurors that sometimes emotions run high and that

their verdict must be based on the evidence alone.

The final three points, I.L (failure to object to

the State's summation), I.M (asserted ineffectiveness

with regard to the jury instructions), and I.N (failing

to argue effectively at sentencing) deal with issues

that were raised and adjudicated on direct appeal and

they are procedurally barred by Rule 3:22-5. Defendant

has offered no basis upon which the “very limited”

exception to this bar should apply. The issues raised

on these points in the PCR proceeding are either

identical or substantially equivalent to those resolved

on direct appeal. That resolution is deemed conclusive

and cannot be relitigated in a collateral proceeding.

...

V

We now deal with the ineffective assistance claims

related to the Miranda motion. First, defendant argues

that his trial counsel was deficient for failing to

permit defendant to testify at the Miranda hearing. He

further argues that trial counsel was deficient for

failing to call defendant's girlfriend, Yvalisse

Rivera, as a witness. Finally, defendant argues that

his trial counsel should have called an expert to

explain why defendant's statement was not voluntary.

The second issue raised with respect to the

Miranda hearing is defendant's contention that his

appellate counsel was ineffective for failing to raise

on direct appeal the argument that because a criminal

complaint had previously been issued charging defendant

with murder, failure of the police to advise defendant

of the existence of the complaint precluded, as a

matter of law, defendant's ability to knowingly and

voluntarily waive his Miranda rights. In support of

this argument, defendant points out that our Supreme

Court so held in [State v. A.G.D., 178 N.J. 56 (2003),]

on October 9, 2003, two months before his case (and his

co-defendants' cases) was submitted to this court on

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December 17, 2003, and four months before this court

rendered a decision on February 17, 2004.

A.

With respect to the conduct of the Miranda

hearing, we summarily reject defendant's argument that

an expert should have been called. Defendant has

produced no report from any such expert, accompanied by

an appropriate affidavit or certification. Therefore,

this argument fails to satisfy the threshold criteria

of Cummings, and is not sustainable.

To place defendant's statement in proper

perspective, it must be noted that he presented himself

voluntarily at the prosecutor's office in the company

of his girlfriend, Yvalisse Rivera. Defendant referred

to Rivera as his “wife.” She was pregnant with his

child. Shortly after the crime, defendant had traveled

to Puerto Rico. He contended this was a preplanned trip

to visit ailing family members.

Five days prior to defendant's August 19, 1998

statement, Rivera gave a statement of her own to the

police on August 14, 1998. Rivera described the events

of July 25, 1998 at 197 Garside Street, stating that

she and defendant, in the company of the DeJesus

brothers and another girl, Tabitha, encountered the

other group of individuals on the street. After a

verbal argument ensued, one of the individuals from the

other group took off his belt and started swinging it.

Defendant and the DeJesus brothers began running toward

Second Avenue. Rivera and Tabitha walked toward Second

Avenue. One of the DeJesus brothers punched one of the

other men in the face.

Rivera then gave this account of what happened

next:

We jogged up towards them. I was begging Macho not

to go back. He said he had no choice, he had to.

He also said he wished he was home. Puto [Luis

DeJesus] and Frijole [Alexis DeJesus] got two more

people along with Macho. Only two of them had

weapons. Puto had the knife. I didn't see it

before. I saw it after the stabbing. I don't know

the other guy who had the bat.

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Rivera said that defendant did not possess any

weapon. She said that Luis DeJesus pushed the door open

to the apartment building at 197 Garside Street, and

all of the men in his group, including defendant, ran

in. She saw some of them run up the stairs, but she

could not tell who was doing what once they got inside.

Rivera also described what happened when

defendant, the DeJesus brothers, and the other two men

exited the building. Luis DeJesus came out holding a

bloody knife. Defendant, who looked upset, told Rivera

that someone got stabbed. Defendant told her he was

fighting with one of the members of the other group

inside the building. At no time did she observe

defendant in possession of any weapon, either before or

after he entered the building, nor did she see any

blood on defendant after he exited the building.

Investigator Sheila Hobson of the Essex County

Prosecutor's Office took Rivera's statement. Rivera

told Hobson that defendant was then in Puerto Rico.

Hobson asked Rivera if she would request that defendant

contact her. Rivera did so, as a result of which

defendant voluntarily presented himself at the

prosecutor's office in the company of Rivera. Hobson

took defendant's statement as well.

Defendant's statement was consistent with the

statement Rivera had given several days earlier.

Defendant obviously knew that the police were aware of

his presence during the altercation and that he was one

of the individuals involved in the verbal dispute on

the street and who then went back into the apartment

building shortly afterwards. Undoubtedly, Rivera

related to defendant what she had told Hobson in her

statement. Consistent with Rivera's statement,

defendant's statement was self-serving and exculpatory

(except to the extent that he placed himself at the

scene, which defendant knew was information the police

already possessed).

He described an initial verbal dispute, followed

by members of the other group chasing defendant and the

DeJesus brothers swinging their belts at them. He then

described how Rivera pleaded with him “to stay away and

not go back there and look for more problems.” He

nevertheless went back with the DeJesus brothers and

the other men. He denied possessing any kind of weapon

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at any point during the episode, and he denied seeing

any of his cohorts in possession of any weapons. He

said he was being beaten up by a member of the other

group in the first floor hallway. When asked whether he

saw anyone run up the stairs to the second floor,

defendant responded: “I couldn't see nothing. I was

getting so beat up, I couldn't see nothing. I didn't

see nobody get stabbed that day.”

Defendant said when he left the building he and

Rivera walked away from the scene. He went home, and

soon afterwards left for his preplanned trip to Puerto

Rico. He said he did not learn that anyone got stabbed

until Rivera called him in Puerto Rico and informed

him. He said he had not talked to anyone other than

Rivera about the fight after it occurred. He denied

seeing anyone bleeding in the course of the fight.

As we have stated, defendant did not testify at

the Miranda hearing, nor did his trial counsel call

Rivera or any other witnesses to testify. In his

affidavit in support of his PCR petition, defendant

said that Rivera told him Hobson wanted to speak to him

and that the police knew that he did not stab anyone.

In the affidavit, defendant suggested he was under

pressure to give a statement because he and Rivera were

told that if he did not do so, he would be arrested,

and he would go to prison and never see his baby.

Defendant contended that although he did not want to

give a statement, Rivera, who remained present during

the entire time Hobson interviewed him, prevailed upon

him to do so. Throughout the affidavit, defendant

stated several times that Hobson told him he was only a

witness and not a suspect. However, at one point in the

affidavit defendant stated that Hobson said he “was not

the prime suspect and that she knows [defendant] did

not kill anyone.” (emphasis added).

Defendant contended in his affidavit that he

informed his trial attorney before the Miranda hearing

of the circumstances under which he gave the statement

as described in his PCR affidavit. Yet, his attorney

declined to call Rivera as a witness, and told

defendant that “he was not allowing me to testify

because he didn't think it would help and that he

didn't prepare me to testify so if I testified and said

something on the stand it could be used to hurt me in

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trial.” Defendant said in his affidavit he wanted to

testify, but his trial counsel “would not let [him].”

With respect to Rivera, defendant's assertions

about the matters to which she would have testified are

nothing more than the kind of “bald assertions” that

... are insufficient to provide a basis for

post-conviction relief or to warrant an evidentiary

hearing. The record contains no affidavit or

certification from Rivera. Indeed, it is more likely

that she would have testified in a manner consistent

with the statement she gave to the police, which did

not include the information about any threats by

Hobson, pressure by Rivera, or expressions by defendant

that he did not want to give a statement.

That brings us to defendant's argument pertaining

to the circumstances under which he did not testify at

the Miranda hearing. ... 

In ruling upon the issue in the PCR proceeding,

the judge also reasoned that the claim was

substantively meritless because defendants rarely

testify at Miranda hearings, so trial counsel was

merely adhering to the common practice and did not

deviate from accepted standards of performance. The

judge concluded that second guessing such a strategic

decision could not provide a basis for relief in the

PCR proceeding.

The judge further noted that during the course of

the trial, defendant was very assertive and from time

to time spoke out, even when he should not have, on

matters of concern to him about the trial proceedings.

After the State rested, and defendant had the

opportunity to testify, he was questioned by his trial

counsel and by the court, and confirmed that he chose

not to testify at trial. Based upon this course of

events, the judge inferred that if defendant truly

wanted to testify at the Miranda hearing, he would have

made that known to the court.

We agree with the judge's analysis regarding

judicial scrutiny of trial counsel's performance under

the “highly deferential” standard applicable to

strategic decisions, which should not be subject to the

“distorting effects of hindsight.” We temper this

agreement, however, because of defendant's statement in

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his PCR affidavit that he wanted to testify and that

trial counsel would not allow him to do so (as opposed

to advising him not to do so). Even if this fact could

be established at an evidentiary hearing, however, and

if it could satisfy the first Strickland prong, we are

not convinced that the second prong would be satisfied.

From our review of the record, we conclude there was

not a reasonable probability that the result of the Miranda

hearing would have been different if defendant had

testified. The judge would have had to find credible

defendant's proposed testimony that he was pressured into

giving the statement because he was told he was not a

suspect and because Rivera pressured him because of the

alleged threat that if defendant did not give a statement he

would be put in jail and would never see his baby. As we

stated, defendant presented no corroboration in his written

PCR submissions from Rivera as to the accuracy of these

allegations. Presumably, therefore, she would not have

testified accordingly at an evidentiary hearing, and the

absence of her testimony would have certainly given rise to

an adverse inference against the truthfulness of defendant's

assertion. Further, the judge would have had to have found

defendant's testimony more persuasive than that of Hobson

and another detective who was present for part of

defendant's statement. They testified that defendant was

cooperative, was never threatened or coerced in any way, and

voluntarily gave his statement after being fully advised of

his Miranda rights.

Telling in defendant's PCR affidavit was the

contention that Hobson told defendant that he was not a

“prime” suspect, clearly signifying a distinction

between those who actually did the stabbing and those

who played a lesser role in the incident. In this

regard, knowing that he was already placed at the scene

and in the fracas, defendant's statement was completely

exculpatory regarding his role as a potential

accomplice. He denied possessing any weapons, seeing

any of his cohorts in possession of any weapons, or

knowing until days later when he was in Puerto Rico

that anyone had even gotten stabbed. These self-serving

statements were consistent with those previously given

to the police by Rivera.

These circumstances militate against defendant's

assertion of coercion. Before voluntarily presenting

himself at the prosecutor's office, defendant knew that

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the investigation by law enforcement placed him in the

melee. Defendant's purpose in voluntarily going to the

authorities to give a voluntary statement was to

minimize his role and potential culpability in the

incident.

We therefore conclude that the result of the

Miranda hearing would not have been different had

defendant testified. We also conclude that admission at

trial of defendant's statement was not critical to the

State's proofs and that, had there been no statement,

the result of the trial would not have been any

different.

B.

We now address defendant's second argument with

regard to the Miranda hearing, that his appellate

counsel was deficient for not raising on direct appeal

the argument that the failure of the police to inform

him before giving his statement that a criminal

complaint had been signed charging him with murder

constituted ineffective assistance of appellate

counsel. As we stated, A.G.D. was decided on October 9,

2003, while defendant's appeal was pending. His appeal

was scheduled for submission to the court on December

17, 2003. Presumably, the parties had already submitted

their briefs before the A.G.D. decision. However, after

briefs are filed, parties are permitted to communicate

with the court, calling the court's attention to the

significance of relevant cases decided subsequent to

the filing of the brief. R. 2:6-11(d). Defendant argues

that failure of his appellate counsel to issue such a

communication to the court regarding A.G.D. constituted

deficient conduct.

...

... In our view, the A.G.D. principles were not

violated here. We do not read A.G.D. as prescribing the

immutable bright-line rule defendant suggests.

In A.G.D., the defendant was questioned regarding

“allegations of sexual abuse that had been asserted

against him, but the detective did not specify the

charges.” An arrest warrant had already been issued

against the defendant, but the police did not advise

him of that fact. Defendant then confessed to the

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crime. The Court held that “[w]ithout advising the

suspect of his true status when he does not otherwise

know it, the State cannot sustain its burden to the

Court's satisfaction that the suspect has exercised an

informed waiver of his rights, regardless of other

factors that might support his confession's admission.”

In a subsequent case, however, a panel of this

court distinguished A.G.D. in circumstances in which

the police advised the defendant they had a warrant for

his arrest and told him he was being taken to the

homicide unit, but did not tell him he had been

arrested for the murder of the victim. State v.

Henderson, 397 N.J.Super. 398, 404, 937 A.2d 988

(App.Div.), certif. granted and certif. denied, 195

N.J. 521 (2008). We declined to extend the A.G.D.

principles in those circumstances, where “defendant

well-understood why he was arrested.” 

We view the case before us as materially similar

to Henderson. Defendant “well-understood” why he was

giving a statement. He was doing so to minimize his

role in the criminal episode, with full knowledge that

the police investigation had already placed him in the

altercation, both the initial confrontation on the

street and the follow-up fight inside the apartment

building.

...

In other words, when defendant gave his statement

to the police on August 19, 1998, he was not telling

them anything they did not already know. He did so with

full knowledge that he was there because the police

already knew that information about his role in the

incident. He voluntarily presented himself at the

prosecutor's office and, after being Mirandized,

voluntarily gave the self-serving statement in an

effort to minimize his role in the crime. Under these

circumstances, defendant was not deprived of his

ability to knowingly and voluntarily waive his Miranda

rights. As in Henderson, we conclude that

notwithstanding the failure of the police to inform

defendant of the criminal complaint that had been

issued against him, the A.G.D. principles do not

require suppression of defendant's statement.

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State v. Rodriguez, 2010 WL 4226170, *7-17 (Oct. 27, 2010)

(citations omitted).

The Counsel Clause of the Sixth Amendment provides that a

criminal defendant “shall enjoy the right ... to have the

Assistance of Counsel for his defence.” U.S. Const. amend. VI. 

The right to counsel is “the right to effective assistance of

counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)

(emphasis added). See also Strickland v. Washington, 466 U.S.

668, 687, 694 (1984) (detailing a two-pronged approach to

evaluating claims of ineffective assistance of counsel). 

The Supreme Court has held that the Due Process Clause of

the Fourteenth Amendment guarantees a defendant the effective

assistance of counsel on a first direct appeal as of right. 

Evitts v. Lucey, 469 U.S. 387 (1985). The Strickland standard

for effective assistance of counsel applies to appellate counsel. 

See Lewis v. Johnson, 359 F.3d 646, 656 (3d Cir. 2004). 

Here, the Appellate Division correctly identified and

applied the principles governing Petitioner’s numerous claims of

ineffective assistance of counsel. Petitioner is not entitled to

relief on these claims.

F. Sufficiency of the Evidence

Petitioner asserts that the conviction is against the weight

of the evidence and that the trial court erred in denying his

motion for acquittal.

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The Appellate Division rejected this claim on direct appeal.

All defendants assert that there was insufficient

evidence to support their convictions and that the

judge erred in denying their motions for a judgment of

acquittal and new trial. The “road test” for

determination of a motion to acquit “is whether the

evidence at that point is sufficient to warrant a

conviction of the charge involved.” State v. Reves, 50

N.J. 454, 458 (1967). Specifically, the appellate

court is constrained to sustain a trial judge’s denial

of a R. 3:18-1 motion to acquit at the close of the

State’s case if, “‘viewing the State’s evidence in its

entirety, be that evidence direct or circumstantial,’”

and giving the State the benefit of all reasonable

inferences, “‘a reasonable jury could find guilt of the

charge beyond a reasonable doubt.’” State v. Josephs,

174 N.J. 44, 80 (2002) (quoting Reves, supra, 50 N.J.

at 459).

...

On appeal, Rodriguez argues that the proofs in

this case respecting his actions did not constitute any

criminal offenses and the State failed to provide any

evidence regarding a conspiracy to commit any of the

acts alleged in the indictment. ...

Rodriguez and his co-defendants were charged as

either principals or accomplices. Whether Rodriguez

actually stabbed one of the victims, or not, is largely

irrelevant, since the evidence showed him to be at

least an accomplice. N.J.S.A. 2C:2-6(a) provides that

an individual can be guilty of an offense committed “by

the conduct of another person for which he is legally

accountable.” Moreover, a person is legally

accountable for the conduct of another when he is “an

accomplice of such other person in the commission of an

offense,” or when he is “engaged in a conspiracy with

such other person.” N.J.S.A. 2C:2-6(b)(3) and (4). An

individual is an accomplice if, “[w]ith the purpose of

promoting or facilitating the commission of the

offense, he ... [a]ids or agrees or attempts to aid

such other person in planning or committing it.” 

N.J.S.A. 2C:2-6(c)(1)(b).

Thus, under N.J.S.A. 2C:2-6, accomplice liability

attaches when a defendant shares the purpose of the

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principal who commits the offense charged, State v.

Norman, 151 N.J. 5, 32 (1997), and the defendant

“actually foresee[s] and intend[s] the result of his or

her acts,” State v. Bridges, 133 N.J. 447, 456 (1993). 

It is a well established principle that “distinctions

between the culpability and punishment of a principal

and accomplice have been abolished, and that an

accomplice has equal culpability and is subject to the

same punishment as a principal in the crime’s

commission.” In re D.A.C., 337 N.J. Super. 493, 496-97

(App. Div. 2001).

Here, the record demonstrates sufficient evidence

of a conspiracy among the defendants to support the

notion that Rodriguez was also an accomplice of the

DeJesus brothers, and was, therefore, liable for any

offenses committed by them. Not only was there ample

evidence to establish that Luis and Alexis were

actually involved in the stabbings, but also that

Rodriguez aided or attempted to aid them in the

commission of the offenses with which they were

charged. The evidence established that Rodriguez aided

or attempted to aid the others by brandishing a stick

and using it at least against Claudio. The fact that

there was no independent proof as to who was

responsible for Mario’s death is of no moment. Simply

stated, there was sufficient evidence presented upon

which a jury could find beyond a reasonable doubt that

all defendants were guilty either as accomplices or

principals.

To establish that a defendant was guilty of

conspiracy, the State was required to prove beyond a

reasonable doubt that defendant “agree[d] with such

other person or persons” to commit the crime, or

“agree[d] to aid such other person or persons” in that

crime. N.J.S.A. 2C:5-2a(1) and (2). The focus of the

inquiry is not on the existence of an actual agreement

between the parties, but on defendant’s intent. State

v. Del Fino, 100 N.J. 154, 160 (1985); Cannel, New

Jersey Criminal Code Annotated, comment 4 on N.J.S.A.

2C:5-2 (2000).

In State v. Graziani, 60 N.J.Super. 1, 13 (App.

Div. 1959), aff’d o.b., 31 N.J. 538, cert. denied, 363

U.S. 830, 80 S. Ct. 1601, 4 L. Ed. 2d 1524 (1960), the

court noted that conspiracy is “rarely capable of proof

through direct evidence.” The State may prove

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conspiracy solely through circumstantial evidence. 

State v. Hardison, 99 N.J. 379, 384-85 (1985); State v.

Ball, 268 N.J. Super. 72, 109 (App. Div. 1993), aff’d,

141 N.J. 142 (1995), cert. denied, 516 U.S. 1075, 116

S. Ct. 779, 133 L. Ed. 2d 731 (1996). Moreover, “a

common purpose and plan may be inferred from a

development and a collocation of circumstances.” State

v. Naglee, 44 N.J. 209, 227 (1965), rev’d on other

grounds sub nom., Garrity v. New Jersey, 385 U.S. 493,

87 S. Ct. 616, 17 L. Ed. 2d 562 (1967).

Defendants first confronted Mario and Rodrigo when

they either asked for a cigarette or money (State’s

version) or when Mario and Rodrigo insulted the two

women in their company (defendants’ version).

Following this initial encounter, defendants went

home, armed themselves, recruited others, and returned

to Alfonso’s apartment building where they engaged in a

brutal assault resulting in death and severe injuries. 

The evidence established that Rodriguez participated in

this planned and vicious attack and showed his intent

to do so by commenting that he had to go. Concluding

that there was sufficient evidence to submit the case

to the jury, the trial judge correctly observed that

defendants were

armed with these weapons, they are deadly weapons,

they are returning, and they have in mind, the

jury can fairly infer, purpose to kill, purpose to

do serious bodily injury that will result in

death. And they make a plan to do that. As a

matter of fact, Sergio Rodriguez acknowledges the

plan. He says that he has to go back with them,

that he cannot avoid going back. He says it to

Yvalisse Rivera.

(Answer, Ex. 7, Opinion of Appellate Division at 19-24.)

A claim that the jury’s verdict was against the weight of

the evidence raises a due process concern. Only where, “after

viewing the evidence in the light most favorable to the

prosecution, [no] rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt” should

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the writ issue. Jackson v. Virginia, 443 U.S. 307, 319 (1979). 

This standard must be applied “with explicit reference to the

elements of the criminal offense as defined by state law.” 

Jackson, 443 U.S. at 324, n.16. See also Orban v. Vaughn, 123

F.3d 727 (3d Cir. 1997), cert. denied, 522 U.S. 1059 (1998). As

noted above, state court factual determinations are presumed to

be correct. See Werts v. Vaughn, 228 F.3d 178, 186 (3d Cir.

2000).

Here, the state-law standard applied by the Appellate

Division was neither contrary to nor an unreasonable application

of the Jackson standard. The Appellate Division applied the

standard with explicit reference to the elements of the offenses

of conviction. The decision of the Appellate Division was not

unreasonable in light of the evidence before it, as set forth at

length in the Appellate Division’s Opinion. Petitioner is not

entitled to relief on this claim.

G. Cumulative Error

Petitioner asserts that cumulative errors rendered the trial

unfair. The Appellate Division rejected this claim as so

meritless that it did not warrant discussion in a written

opinion. State v. Rodriguez, 2010 WL 4226170, *17 (Oct. 27,

2010).

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Under certain circumstances, cumulative errors may

demonstrate that a criminal defendant was denied a fair trial,

even though individual errors do not justify relief.

Individual errors that do not entitle a petitioner to

relief may do so when combined, if cumulatively the

prejudice resulting from them undermined the

fundamental fairness of his trial and denied him his

constitutional right to due process. Albrecht v. Horn,

471 F.3d 435, 468 (3d Cir. 2006). “Cumulative errors

are not harmless if they had a substantial and

injurious effect or influence in determining the jury’s

verdict, which means that a habeas petitioner is not

entitled to relief based on cumulative errors unless he

can establish ‘actual prejudice.’” Id. (citing Brecht

v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123

L.Ed.2d 353 (1993)).

Fahy v. Horn, 516 F.3d 169, 205 (3d Cir. 2008).

This Court agrees with the Appellate Division that the claim

of “cumulative error” is patently meritless. Petitioner is not

entitled to relief on this claim.

H. Excessive Sentence

Petitioner asserts that his sentence is manifestly

excessive. In state court, Petitioner asserted that the trial 11

judge improperly identified and balanced the aggravating and

mitigating factors. The Appellate Division summarily rejected

 On the felony murder count, Petitioner was sentenced to a 11

term of 30 years’ imprisonment, with a 30-year parole

disqualifier. On the second-degree aggravated assault count,

Petitioner was sentenced to a consecutive term of seven years’

imprisonment, with an 85% parole disqualifier. On the fourthdegree aggravated assault counts, Petitioner was sentenced to

consecutive terms of nine months’ imprisonment.

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this claim on direct appeal. (Answer, Ex. 7, Opinion of

Appellate Division at 25, 30-31.)

A federal court’s ability to review state sentences is

limited to challenges based upon “proscribed federal grounds such

as being cruel and unusual, racially or ethnically motivated, or

enhanced by indigencies.” See Grecco v. O’Lone, 661, F.Supp.

408, 415 (D.N.J. 1987) (citation omitted). Thus, a challenge to

a state court’s discretion at sentencing is not reviewable in a

federal habeas proceeding unless it violates a separate federal

constitutional limitation. See Pringle v. Court of Common Pleas,

744 F.2d 297, 300 (3d Cir. 1984). See also 28 U.S.C. § 2254(a);

Estelle v. McGuire, 502 U.S. 62, 67 (1991); Lewis v. Jeffers, 497

U.S. 764, 780 (1990).

“The Eighth Amendment, which forbids cruel and unusual

punishments, contains a ‘narrow proportionality principle’ that

‘applies to noncapital sentences.’” Ewing v. California, 538

U.S. 11, 20 (2003) (citations omitted). The Supreme Court has

identified three factors that may be relevant to a determination

of whether a sentence is so disproportionate to the crime

committed that it violates the Eighth Amendment: “(1) the

gravity of the offense and the harshness of the penalty; (ii) the

sentences imposed on other criminals in the same jurisdiction;

and (iii) the sentences imposed for commission of the same crime

in other jurisdictions.” Solem v. Helm, 463 U.S. 277, 292

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(1983). More recently, Justice Kennedy has explained that Solem

does not mandate comparative analysis within and between

jurisdictions, see Harmelin v. Michigan, 501 U.S. 957, 1004-05

(Kennedy, J., concurring in part and concurring in judgment), and

he has identified four principles of proportionality review--“the

primacy of the legislature, the variety of legitimate penological

schemes, the nature of our federal system, and the requirement

that proportionality review be guided by objective factors”--that

“inform the final one: The Eighth Amendment does not require

strict proportionality between crime and sentence. Rather, it

forbids only extreme sentences that are ‘grossly

disproportionate’ to the crime,” id. at 1001 (citation omitted)

quoted with approval in Ewing, 538 U.S. at 23.

Here, Petitioner appears to challenge his sentence solely on

state law grounds, which do not provide a basis for federal

habeas relief. In any event, he has failed to establish that his

sentence violates any federal constitutional limitations. 

Certainly, the sentence is not “grossly disproportionate” to the

crimes. Accordingly, Petitioner is not entitled to relief on

this claim.

IV. 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. 

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A certificate of appealability may issue “only if the applicant

has made a substantial showing of the denial of a constitutional

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

standard by demonstrating that jurists of reason could disagree

with the district court’s resolution of his constitutional claims

or that jurists could conclude the issues presented are adequate

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

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

Here, Petitioner has failed to make a substantial showing of

the denial of a constitutional right. Jurists of reason would

not disagree with this Court’s resolution of Petitioner’s claims. 

Accordingly, no certificate of appealability will issue.

V. CONCLUSION

For the reasons set forth above, the Petition will be

denied. An appropriate order follows.

s/ Faith s. Hochberg 

Faith S. Hochberg

United States District Judge

Dated: March 4, 2013 

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