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NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

:

HENRY ADAMSON, :

:

Petitioner, :

:

v. :

:

RONALD CATHEL, et al., : 

 :

Respondents. :

 :

Civil No. 06-3194 (PGS)

O P I N I O N

SHERIDAN, District Judge:

On July 14, 2006, the instant petition for a Writ of Habeas Corpus, executed pursuant to 28

U.S.C. § 2254(a) (“Petition”), was filed on behalf of Henry Adamson (“Adamson”). The Petition

challenges Adamson's judgment of conviction rendered by the Superior Court of New Jersey, and

is accompanied by an application to proceed in this matter in forma pauperis. See Docket Entry No.

1. For the reasons detailed below, the Petition will be denied.

PROCEDURAL BACKGROUND

The Petition challenges a judgment of conviction filed on October 9, 1998, after a jury

convicted Adamson on eighteen counts, including robbery, conspiracy to commit armed robbery,

aggravated assault, and unlawful possession of weapon. See Pet., ¶¶ 1-6. Being a persistent

offender, Adamson was sentenced to life imprisonment with 25 years of parole ineligibility. See

id., ¶ 3. 

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Upon appeal, the Appellate Division affirmed his convictions and sentence. Thereafter,

the Supreme Court of New Jersey denied certification, and the United States Supreme Court also

subsequently denied certiorari on June 4, 2001, including Adamson’s argument that “the crossexamination of [Adamson] on two statements made by non-testifying co-defendants implicating

him in the robbery” without a limiting instruction warranted reversal of his convictions. Id.

(“Instructions Challenge”).

Having lost on his direct appeal, Adamson sought post-conviction relief by way of an

application filed by a public defender, Linda E. Peterson (“Peterson”). Such relief was denied in

the New Jersey Superior Court, Law Division, on May 4, 2004; he then appealed such denial

with assistance of Thomas Menchin, Esq. (“Menchin”), a pool counsel appointed by the Office of

Public Defender, and who previously represented Adamson at trial. The Superior Court of New

Jersey, Appellate Division affirmed the Law Division’s decision on November 1, 2005, and the

Supreme Court of New Jersey likewise denied any action. 

During the aforesaid proceedings for post-conviction relief, Adamson raised three

concerns. First, that Adamson’s trial counsel was ineffective; second that his appellate attorney,

Taylor, was ineffective; and third, that his “sentence was illegal because the judge imposed a

sentence higher than the presumptive term based on a finding of fact not reflected in the jury’s

verdict and because he found those facts under a preponderance-of-the-evidence standard.

Id. (“Sentencing Challenge”).

On March 20, 2006, two months after the Supreme Court denied his certification with

regard to the aforesaid application for post-conviction relief, Adamson, pro se, filed another

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 During this period, Adamson and his trial attorney, Taylor, discussed his case. Evidently, 1

Taylor agreed to undertake representation of Adamson so long as Adamson did not bring a claim

against Taylor. This was corroborated on the record in this court by both Taylor and Adamson. 

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application for post-conviction relief which was denied on June 9, 2006. See id. Adamson did 1

not appeal that denial. 

The instant Petition does not state Adamson’s exact grounds raised in this action, but the

two addressed herein concern Instruction Issue and the Sentencing Issue.

STATEMENT OF FACTS

The underlying events indicate that Adamson, together with five co-defendants, was

criminally charged as a result of a hold-up of an “after[-]hours social club” named Brother’s

Candy Store “by men wearing masks and carrying firearms” on December 4, 1995. The facts are

well stated in the decision of the Appellate Division and are set forth below. Id. at 2.

After the assailants entered Brother’s, everybody was told to raise their hands and

get down on the floor. . . . [Shortly thereafter,] Patrolman Sudol . . . received a

call to respond to a disturbance at Brother’s. He arrived to see five individuals

leaving the club. Three of the five men ran . . . northbound, while two others

made left and ran [in another direction]. Sudol followed the two men . . . and

ultimately caught up with Derren Napier [who] was taken into custody. Sudol

then got back into his police car and chased the second subject [who] initially

stopped [and] stated he was not doing anything [but then] started running. After

radioing a description of the subject, Sudol returned to Brother’s [and] found a

fully loaded machine pistol on the floor, which was identified by one of the

patrons as one of the weapons used by the masked robbers. . . . Sudol [then]

returned to headquarters where he saw the second person he chased, Gaumaal

Aljamaar, [Adamson’s] cousin, in a police holding cell. 

Both Napier and Aljamaar provided statements which were transcribed on a

computer at headquarters [(“Napier and Aljamaar’s statements”)]. Based upon

the[se] statements, the police arrested [two other defendants,] Ian Green . . . and

Timothy Dixon . . . . 

[Adamson, Aljamaar's cousin,] soon became a suspect. On December 17, 1996,

[Adamson] received a telephone call from his girlfriend, Ivette Robinson, telling

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 Apparently, Robinson's car was one of the cars used by the assailants to arrive to the scene of 2

the robbery. 

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him that she was being charged with conspiracy to commit robbery and the police 2

was looking for him in connection with the same robbery. [Adamson]

surrendered himself to the police at Newark’s Penn Station and was taken to the

police [headquarters where] Detective Julius Cirelli . . . explained [to Adamson

that] he would take [Adamson’s] statement[-confession]. . . . Because the[]

assailants were masked, [Adamson’s confession] was the primary evidence

against him. Like the [statements of other defendants charged in connection with

the robbery, Adamson’s confession] was transcribed on a computer. . . . [E]ach

answer was initialed and the final page [was] signed by [Adamson.]

In the [confession, Adamson] described the other individuals involved and

explained how the plans for the robbery came about [as well as how he and the

other four assailants met, what kind of guns they prepared for the robbery, how

they executed the robbery, and how Adamson was running away from Sudol

among the three assailants that ran northbound]. In the [confession, Adamson]

acknowledged that he made a mistake committing the robbery and [verified] that

what he described was accurate. He swore his [confession] was true and

described his treatment at [the] headquarters as “good.” 

[Adamson's confession] was admitted into evidence during the State’s case. 

[Adamson] testified on his own behalf. He denied being present at Brother’s and

being involved in the robbery. [Rather, he asserted that] Detective Cirelli told

him that he was going to charge [Adamson’s] girlfriend if [Adamson] did not give

him [a false self-inculpatory] statement. [Adamson] indicated that Cirelli [went

about ensuring that Adamson would give a false self-inculpatory statement by first

giving Adamson] the statements given by Napier and Aljamaar and “told him to

read them and make [Adamson's corresponding] statement.” [Then, according to

Adamson, both Adamson and Cirelli] “sat down at a computer and started typing

[Adamson’s false confession,” which was a two-hour process]. 

Id. at 4-8.

On direct examination, Adamson asserted that the confession he gave to Cirelli was

inaccurate because Cirelli threatened to criminally charge Adamson’s girlfriend unless Adamson

confessed to the same facts as two other culprits (Napier and Aljamaar) had. Consequently, the

prosecutor, during Adamson’s cross-examination, asked questions aiming to impeach Adamson's

culpability. The prosecutor focused on two aspects of Adamson's confession: (a) the

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effectiveness and logic of the confession-producing process allegedly employed by Cirelli,

(“Process-Ineffectiveness Aspect”); and then (b) the content of his confession by comparing it

with the content of Napier and Aljamaar’s statements and establishing that these statements were

inconsistent with Adamson's confession (“Inconsistency Aspect”). See id. at 9. The apparent

goal of the prosecutor was to show that Adamson's confession was voluntarily produced by

Adamson, as Adamson saw fit. See id. at 9-10. 

DISCUSSION

I. Standard of Review

Section 2254(a) of Title 28 of the United States Code gives the court jurisdiction to

entertain a habeas petition challenging a state conviction or sentence only where the inmate's

custody violates federal law. 28 U.S.C. § 2254(a).

“In conducting habeas review, a federal court is limited to deciding whether a conviction

violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S.

62, 67-68 (1991); 28 U.S.C. § 2254(a); accord Barry v. Bergen County Probation Dep't, 128 F.3d

152, 159 (3d Cir. 1997). “Federal courts hold no supervisory authority over state judicial

proceedings and may intervene only to correct wrongs of constitutional dimension.” Smith v.

Phillips, 455 U.S. 209, 221 (1982). Generally, “[i]f a state prisoner alleges no deprivation of a

federal right, § 2254 is simply inapplicable,” Engle v. Isaac, 456 U.S. 107, 120 n.19 (1982), and

“a state court's interpretation of state law, including one announced on direct appeal of the

challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546

U.S. 74, 76 (2005).

In reviewing a § 2254 petition, a federal court is not permitted to address a federal

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constitutional claim pertinent to the facts of the case unless the petitioner asserts the claim as a

ground for relief. That is, “errors of state law cannot be repackaged as federal errors simply by

citing the Due Process Clause.” Johnson v. Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997). In

addition, “it is well established that a state court's misapplication of its own law does not

generally raise a constitutional claim.” Smith v. Horn, 120 F.3d 400, 414 (3d Cir. 1997)

(citations and internal quotation marks omitted); see also Smith v. Zimmerman, 768 F.2d 69, 71,

73 (3d Cir. 1985).

In addition to the case law, the Antiterrorism and Effective Death Penalty Act

(“AEDPA”) limits a federal court's authority to grant habeas relief when a state court has

adjudicated petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Where a federal

claim was “adjudicated on the merits” in state court proceedings, the writ must be denied unless

adjudication of the claim either involved an unreasonable application of clearly established

federal law, or was based on unreasonable determination of the facts in light of the evidence

before the state court. See 28 U.S.C. § 2254(d).

The unreasonableness standards of § 2254(d) govern only claims that were

“adjudicated on the merits in State Court proceedings.” 28 U.S.C. § 2254(d). “An

'adjudication on the merits' has a well settled meaning: a decision finally resolving the

parties' claims, with res judicata effect, that is based on the substance of the claim

advanced, rather than on a procedural, or other, ground.” Rompilla v. Horn, 355 F.3d 233,

247 (3d Cir. 2004) (citations and internal quotation marks omitted), reversed on other

grounds sub nom. Rompilla v. Beard, 545 U.S. 374 (2005); see also Rolan v. Vaughn,

445 F. 3d 671, 678 (3d Cir. 2006). A state court may render an adjudication on the merits

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of a federal claim by rejecting the claim without any discussion whatsoever. See

Rompilla, 355 F.3d at 247. On the other hand, “[i]f the petitioner’s legal claims were

presented but not addressed by the state courts, 28 U.S.C. § 2254(d) does not apply.” 

Rolan, 445 F. 3d at 678.

If the New Jersey courts adjudicated the petitioner’s claims on the merits, this

Court may not grant relief unless either § 2254(d)(1) or § 2254(d)(2) is satisfied. See 28

U.S.C. § 2254(d). Accordingly, this Court may not grant habeas relief to the petitioner

unless the adjudication of a federal claim by the New Jersey courts involved an

unreasonable application of clearly established Supreme Court law, see 28 U.S.C. §

2254(d)(1), or was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding and Adamson is in custody in violation

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

(d)(2).

When the grounds raised in the petition are governed by 28 U.S.C. § 2254(d)(1),

the court must begin its analysis by determining the relevant law clearly established by

the Supreme Court. See Yarborough v. Alvarado, 541 U.S. 652, 660 (2004). Clearly

established law “refers to the holdings, as opposed to the dicta, of [the Supreme Court's]

decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. 

A court must look for “the governing legal principle or principles set forth by the

Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade, 538

U.S. 63, 71, 72 (2003).

A decision is “contrary to” a Supreme Court holding within 28 U.S.C. §

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 See also Marshall v. Hendricks, 307 F.3d 36, 71 n.24 (3d Cir. 2002) (“[D]ecisions of federal courts

3

below the level of the United States Supreme Court may be helpful to [a court] in ascertaining the

reasonableness of state courts' application of clearly established United States Supreme Court

precedent, as well as helpful amplifications of that precedent.”) (citations and internal quotation

marks omitted).

 There is an additional concern that Petitioner here may not have exhausted all aspects of the claims 4

he raises in his § 2254 petition on direct appeal and appeal from denial of post-conviction relief prior

to bringing the petition in federal court. It is a requirement of every § 2254 petition that federal

constitutional claims be addressed on the merits in State court and fully exhausted prior to the filing

of a habeas petition in federal court. See, e.g., Granberry v. Greer, 481 U.S. 129 (1987); Rose v.

Lundy, 455 U.S. 509, 516-18 (1982); Ex parte Royall, 117 U.S. 241 (1886); Toulson v. Beyer, 987

F.2d 984, 987 (3d Cir. 1993). This means that the claims heard by the state courts must be the

“substantial equivalent” of the claims asserted in the federal habeas petition, in other words, the legal

theory and factual predicate must be materially the same. See Picard v. Connor, 404 U.S. 270, 275-

77 (1971). This Court’s examination of the record reveals that, in essence, the substance of

Petitioner’s claims was addressed on the merits at the State level. Therefore, to the extent that any

of the more subtle nuances of the claims raised in the instant petition were not addressed in State

court, this Court will nevertheless address all issues on the merits. See 28 U.S.C. § 2254(b)(2).

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2254(d)(1), if the state court “contradicts the governing law set forth in [the Supreme

Court's] cases” or if it “confronts a set of facts that are materially indistinguishable from a

decision of th[e Supreme] Court and nevertheless arrives at a [different] result.” 

Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the “'unreasonable application’

clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court

identifies the correct governing legal principle from th[e Supreme] Court's decisions but

unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. 

Whether a state court's application of federal law is “unreasonable” must be judged

objectively; an application may be incorrect, but still not unreasonable. See id. at 409- 3

10. “The unreasonable application test is an objective one - a federal court may not grant

habeas relief merely because it concludes that the state court applied federal law

erroneously or incorrectly.” Thomas v. Varner, 428 F. 3d 491, 497 (3d Cir. 2005)

(quoting Jacobs v. Horn, 395 F. 3d 92, 100 (3d Cir. 2005)). 4

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 Although Adamson, Napier and Aljamaar were subject to the same indictment (which also 5

involved other defendants), Adamson was tried separately, and neither of his co-defendants

testified at his trial. 

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II. Instant Instructions Challenge

A. The Confrontation Clause Aspect 

Ground One, the Instant Instructions Challenge, is subdivided into two aspects: (a)

the Lack-of-Limiting-Instructions Aspect; and (b) the Confrontation Clause Aspect. The

Lack-of-Limiting-Instructions Aspect poses two contentions: (a) the lack of a limiting

instruction (“Actual Limiting Instruction Claim”); and (b) another contention, which, in

fact, challenges the instructions given (“Given Instructions Claim”). 

The Confrontation Clause Aspect, in its own turn, in essence states that, contrary

to the decision rendered by the Superior Court of New Jersey, Appellate Division,

petitioner’s case is factually and legally distinguishable from the precedent set in

Tennessee v. Street. Petitioner further argues that he was prejudiced by the admission of

co-defendants’ confessions without the ability to confront them in court by way of crossexamination. The Court addresses all these arguments seriatim. 

1. The Instant Instructions Challenge

Adamson asserts that when, “[d]uring cross-examination, the prosecutor

questioned [Adamson] in detail about two . . . statements . . . given by Napier and

Aljamaar, [Petitioner’s Confrontation Clause rights were violated because Napier and

Aljamaar's] statements indicated that [Adamson] planned and participated in the robbery,

[but Adamson’s trial counsel could not examine Napier and Aljamaar as to the

truthfulness of these statements since] neither Napier [nor] Aljamaar testified at trial.”5

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Id. On direct appeal, Adamson illustrated his Confrontation Clause challenge as follows:

In response to the assistant prosecutor’s recitation of the statements by Napier and

Aljamaar, [Adamson] could not refute the content of the [Napier and Aljamaar’s]

statements. In regard to Napier’s statement, for example, where [Napier]

indicated that [Adamson] and others “talked about the robbery,” [Adamson] could

only respond “That’s what [Napier] said in his statement.”

State v. Adamson, A-2652-98T4, Brief and Appendix on Behalf of Defendant-Appellant, at 11-

12, (filed Sep. 30, 1999).

In his direct-appellate papers, Adamson conceded that the prosecutor’s reason for this line

of questions was the prosecutor's goal to show that Adamson’s testimony (that Cirelli directed

him to produce a confession factually corresponding to Napier and Aljamaar’s statements) was

not credible, i.e. to suggest to the jurors that his confession, the key piece of evidence against

Adamson, was produced by Adamson voluntarily and as Adamson saw fit. See id. at 12-14. In

fact, Adamson even quoted, in his brief, the prosecutor’s closing line to the jury, “when you

compare the [confession given by Adamson and the statements given by Napier and Aljamaar],

as I tried to do on cross-examination, ladies and gentlemen, [you would see that] there are

inconsistencies.” See id. 

Adamson argued that the detailed content of Napier and Aljamaar’s statements (which

were conveyed to the jurors through this process of comparison) was unduly prejudicial to

Adamson, since the jurors could potentially presume that the content of Napier and Aljamaar’s

statements was offered not for the purposes of impeaching his testimony but as factual evidence

that Adamson was involved in the robbery. See id. Consequently, Adamson asserted that the

very fact that the jurors came to know the details of Napier and Aljamaar’s statements violated

his rights under the Confrontation Clause. See id. (relying on state cases, one of which, in turn,

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relied on the Supreme Court decision in Bruton v. United States, 391 U.S. 123 (1968), and

Tennessee v. Street, 471 U.S. 409 (1985). See id. at 15-18.

The Appellate Division found Adamson’s argument without merit and dismissed it,

pursuant to the holding of Tennessee v. Street, reasoning as follows:

[Adamson] maintains that the State’s use of the Napier and Aljamaar

statements violated the guarantees afforded by the Confrontation Clause of the

Sixth Amendment as applied in Bruton . . . . We disagree. An accomplice’s outof-court statement may be used for “a purpose other than proving the truth of what

it asserts without violating a defendant’s right of confrontation.” In Tennessee v.

Street, the introduction of an accomplice’s statement was permitted to show that it

was different from defendant’s statement where defendant testified that the Sheriff

had read the accomplice[’]s statement and directed defendant to say the same

thing. 

Here, the facts are not only similar to those in Street but even more

compelling. [Adamson] testified that . . . Cirelli provided him with the two other

statements whereupon they sat down at the computer, and Cirelli proceeded to

provide both the questions and the answers. When the State cross-examined

[Adamson] to show that some of the facts in his statement were different than

those recounted in the other two statements, [Adamson] testified that Cirelli

directed him to change the facts to further implicate his accomplices. [Adamson]

opened the door for the use of [Napier and Aljamaar’s] statements by his direct

testimony that Cirelli utilized them as the basis for contriving [Adamson's]

confession. His testimony that Cirelli directed him to diverge from the[se]

statements justified further use of the contents of the statements to impeach

[Adamson's] assertion that the purported confession was not his. Thus, as in

Street, the fundamental truth seeking function of the criminal trial process would

have been impeded if the State was prevented from the accomplices’ statements to

assist the jury in determining the truth of [Adamson's] assertion that the

confession was not his but one contrived by [D]etective Cirelli. Tennessee v.

Street, 471 U.S. at 415. 

State v. Adamson, A-2652-98T4, at 10-12 (N.J. Super. Ct. App. Div. Oct. 5, 2000) (citations to

state law omitted), certif. denied, 167 N.J. 90, cert. denied, 532 U.S. 1072 (2001).

Adamson has essentially raised the same argument here as on appeal. In support of his

petition, Adamson maintains that his direct testimony alleging that Cirelli “provided [Adamson]

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with [Napier and Aljamaar’s] statements [the police] had and [Cirelli] told [Adamson] to read

them and make [Adamson's confession]” should have been ignored by the prosecutor, as

inconsequential as to the relationship between his confession and Napier and Aljamaar’s

statements. Docket Entry No. 1-5 at 11. Adamson concludes that, when viewed in context, the

answers he provided on direct examination had to be understood by the prosecutor as meaning

that Cirelli produced Adamson's confession wholesale, and thus, the prosecutor acted

unreasonably when he went on to compare the content of his confession to that of Napier and

Aljamaar’s statements on cross-examination. See Docket Entry No. 6, at 6; Docket Entry No. 1-

5 at 11-12. Therefore, Adamson asserts that his Confrontation Clause rights were violated by the

prosecutorial detailed discussion of the content of Napier and Aljamaar’s statements. See id.

 Adamson also argues that the Appellate Division’s analysis of Adamson's claim under

Street was in error. See Docket Entry No. 1-5 at 13-14 (the Appellate Division “failed to

recognize” that Adamson's case was different from Street and that reliance on Street was an

unreasonable application of this Supreme Court's precedent). Consequently, Adamson concludes

that his conviction should be reversed, since: (a) under the Confrontation Clause, the content of

Napier and Aljamaar’s statements should not have ever been revealed to the jury, and (b) the

disclosure of the content of Napier and Aljamaar’s statements was the key reason for Adamson's

conviction. See Docket Entry No. 1-5 at 9. 

The Court disagrees with Adamson that the prosecutor acted unreasonably in attempting

to impeach Adamson's credibility by using his co-defendants’ statements. Adamson challenges

the prosecutor’s actions by asserting that the prosecutors's construction of Adamson's direct

testimony was unreasonable and, thus the further verification and impeachment were

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unwarranted. In support of his claim that the prosecutor unreasonably construed his direct

testimony, Adamson maintains that the ten answers that he provided on direct examination must

be read as unambiguously indicating that it was Cirelli who fabricated his confession, wholesale. 

See Docket Entry No. 6, at 4-6. 

These ten direct-examination questions and answers were as follows:

Q. Did there come a point in time where . . . Cirelli[] came in to talk to you?

A. Yes, sir. 

Q. And did [Cirelli] raise the – any questions about your girl friend?

A. Yes. 

Q. And what did he say? 

A. [Cirelli] told me that they was going to charge my girl friend if I didn’t

make a [confession]. So, then, he provided me with two other statements they had [from

Napier and Aljamaar,] and he told me [to] read them and make a [confession]. So,

[Cirelli and I] sat down at the computer and started typing up a [confession]. 

Q. Now, [Cirelli] said that he would give you the question and then he would

type in your answer. Did you give him those answers? 

A. No, I didn’t. 

Q. Okay. When the [confession] was finished, was it signed by you? 

A. Yes, it was. 

Q. And on the side of the [confession] there’s initials?

A. Yes.

Q. H.A.?

A. Yes.

Q. By each answer?

A. Yes.

Q. Did you put those on there? 

A. Yes.

Q. Did you in fact read [your confession]? 

A. No. 

Id. 

Read in context, the answers elicited on direct examination develop a meaning opposite

of that argued by Adamson in his petition. It suggests that Adamson's confession was produced

by Adamson upon Cirelli's directive to make a statement factually corresponding to the

statements made by Napier and Aljamaar. Consequently, and contrary to Adamson's contention,

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it was not unreasonable for the prosecutor to construe his direct testimony as asserting such a

position and, thus, it was not unreasonable for the prosecutor to proceed with questions aiming to

establish Adamson’s lack of credibility.

It shall be noted that, during the cross-examination, Adamson kept giving occasional

responses that could be construed as suggesting that Cirelli produced Adamson's confession

wholesale. However, these responses came in a package with a multitude of other statements by

Adamson verifying that Adamson produced the confession in concert with Cirelli. For instance,

the part of the cross-examination as to the Process-Ineffectiveness Aspect resulted in the

following testimony:

Q. Isn’t it a fact that during those two hours you were giving him the answers to the

questions he asked?

A. He was stopping also.

Q. He was stopping to read your answer?

A. No, stopping, giving me the questions, let me read it and giving the answers from

the statement.

Q. Wouldn't it be easier, though if [Cirelli] wanted to fabricate your

statement if he made up his own questions and answers?

A. Basically [Cirelli] could have [done] that.

Q. It's your testimony [that Cirelli] didn't do that?

A. He did it in my statement.

State v. Adamson, A-2652-98T4, at 9-10 (N.J. Super. Ct. App. Div. Oct. 5, 2000) (replicating the

relevant portion of the transcript). 

As this excerpt illustrates, Adamson’s first answer provided the prosecutor with a

response indicating that Cirelli could have but, in fact, did not “make up” Adamson answers, but

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 While, in light of the Court's § 2254 mandate to determine reasonableness of the state courts' 6

decision under the applicable Supreme Court precedent, this Court concentrated on the excerpts

from Adamson's testimony expressly highlighted in the Appellate Division's decision, the Court

finds the following excerpt (not replicated in State v. Adamson, A-2652-98T4, at 9-10 (N.J.

Super. Ct. App. Div. Oct. 5, 2000)) quite illustrative of Adamson’s position:

Q. Now, you said during your direct testimony that you were given two other

statements to read prior to giving [your confession]. Is that right?

A. Yes.

Q. And that's your testimony. That's how you knew these details [as to the crime

committed]. Is that what you are trying to tell us?

A. Yes.

Q. Whose other statement specifically was it that you were given?

A. Aljaamar and Darren Napier['s].

State v. Adamson, Transcript 6T at 88-89.

It is clear from this excerpt that Adamson indicates that Cirelli directed him to produce his

confession based upon Napier and Aljamaar's statements rather than on the basis of Cirelli's

dictations (or other prompts) of Adamson's answers.

Page 15 of 50

Adamson's second response could be interpreted as stating a direct opposite. 

The overall theme of Adamson's testimony suggested that Adamson falsified his

confession upon Cirelli's directive to produce a statement corresponding to those made by Napier

or Aljamaar. In sum, Adamson’s testimony conveys the opposite of what he contends– that

Cirelli completely fabricated Adamson’s confession on his own– and instead creates the

impression that Cirelli directed him to produce a confession factually corresponding to Napier

and Aljamaar’s statements. Even if the actual circumstances surrounding Adamson's execution

of his confession consisted of this surrealistic scenario, a reasonable person in the prosecutor's

shoes would have been justified in harmonizing Adamson's testimony into a position infinitely

more pronounced, i.e., that the confession was a product of Cirelli's order to state the same thing

as was stated by Napier and Aljamaar. 

6

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Page 16 of 50

Consequently, the Court finds that the prosecutor reasonably impeached Adamson by

comparing his confession and the statements executed by Napier and Aljamaar. Therefore, the

only question left here is whether such comparison, nonetheless, violated Adamson’s

Confrontations Clause rights. The substantial factual and legal similarity between this question

and the state courts’ inquiry conducted during Adamson’s direct appeal leads this Court to

conclude that this sole remaining question is indistinguishable from Adamson’s Street Claim, as

set forth below.

2. The Street Claim

a. Confrontation Clause Guarantees

“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with

the witnesses against him.” U.S. Const. amend. VI. This guarantee applies to both federal and

state prosecutions. See Pointer v. Texas, 380 U.S. 400 (1965).

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the Sixth

Amendment's Confrontation Clause bars “admission of testimonial statements of a witness who

did not appear at trial unless he was unavailable to testify, and the defendant has had a prior

opportunity for cross-examination.” Id. at 53-54; see also Davis v. Washington, 547 U.S. 813

(2006). 

However, under the law in effect at the time of Adamson's crime and conviction, the

Supreme Court had held that the Confrontation Clause did not bar admission of testimonial

hearsay against a criminal defendant if the statement had adequate indicia of reliability, i.e., fell

within a “firmly rooted hearsay exception" or bore “particularized guarantees of

Case 3:06-cv-03194-PGS Document 11 Filed 07/31/09 Page 16 of 50 PageID: 155
 In Idaho v. Wright, 497 U.S. 805, 818-20 (1990), the Supreme Court determined that in order 7 

to show “particularized guarantees of trustworthiness” the court must examine the relevant

circumstances, i.e., those circumstances that surround the making of the statement which render

the declarant worthy of belief and admit the out-of-court evidence upon determination that the

test of cross-examination would be of marginal utility.

Page 17 of 50

trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66 (1980). Therefore, in light of the fact that 7

hearsay is defined as an out-of-court statement that is offered into evidence to prove the truth of

the matter asserted, see, e.g., N.J.R.E. 801(c), the Confrontation Clause “does not bar the use of

testimonial statements for purposes other than establishing the truth of the matter asserted.”

Crawford, 541 U.S. at 59 n.9 (citing Tennessee v. Street, 471 U.S. 409); accord United States v.

Inadi, 475 U.S. 387 (1986) (clarifying that out-of-court statements offered into evidence for a

reason other than to prove the truth of the matter asserted cannot, by definition, be qualified as

hearsay and, thus, do not even trigger the hearsay analysis regardless of any resemblance these

statements might have with actual hearsay statements that would require such analysis but would

nonetheless be admissible as a result of workings of certain rules of evidence setting forth

exceptions to the hearsay bar).

b. The Decisions of the State Courts Were Reasonable 

Applications of Supreme Court Precedent

Adamson next argues that these allegations are marked by an attempt to state that the

prosecutor reasonably engaged in comparison of Adamson's confession to Napier and Aljamaar's

statements but the nature of the comparison in the case at bar differs from that addressed in Street

and, hence, under the holding of Street, Adamson's conviction must be reversed. See generally,

Docket Entry No. 1-5, at 11-16. Adamson’s arguments can be summarized by the following two

contentions:

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Page 18 of 50

1. “While the . . . prosecutor [aimed] to show inconsistencies between [Napier and

Aljamaar's] statements and Adamson's [confession,] the real effect of [the

prosecutor's] cross-examination of Adamson was highlighting passages of [Napier

and Aljamaar's] statements that implicated him in the robbery. . . . Furthermore,

the . . . inconsistencies between Adamson's [confession] and [Napier and

Aljamaar's] statements were trivial . . . . The overwhelming thrust of [Napier and

Aljamaar's] statements did not pertain to [these inconsistencies], but to Adamson's

participation in the robbery. Street, on the other hand, only involved one codefendant's statement that was markedly different than [defendant's confession]. .

. . Street does not allow the use of such devastatingly prejudicial hearsay without

independent corroboration of something unique in the defendant's statement

which is not found in a non-testifying co-defendant's statement.” 

Id. at 11, 16-17 (“Prejudice-Based Contention”).

2. “[I]n Street, unlike the case at bar, co-defendant['s] statement was read by a

rebuttal witness . . . who personally obtained that statement and denied that Street

was pressured to duplicate [the co-defendant's] statement. . . . Here, on the other

hand, the . . . prosecutor cross-examined [Adamson] about the details of [Napier

and Aljamaar's] hearsay statements. The Appellate Division panel failed to

recognize that Adamson, in contrast . . . , could not refute the content of those

statements . . . .” 

Id. at 13-14 (“Affiant-Based Contention”). 

Both of these Contentions are without merit. 

i. The Prejudice-Based Contention 

The bulk of Adamson's Prejudice-Based Contention is improperly before this Court. The

issue of whether a certain piece of evidence admitted during the trial proceeding was prejudicial

to defendant implicates the procedural due process guarantees of the Fourteenth Amendment,

rather than the Confrontation Clause of the Sixth Amendment.

Because Adamson failed to articulate the proper legal basis supporting his PrejudiceBased Contention by erroneously qualifying the aspect as a Sixth Amendment challenge, this

argument may not be properly considered as part of Adamson’s petition. A habeas corpus

petition must meet “heightened pleading requirements.” McFarland v. Scott, 512 U.S. 849, 856

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Page 19 of 50

(1994) (citing 28 U.S.C. § 2254, Rule 2(c)). That means the petition must “specify all the

grounds for relief which are available to the petitioner,” and set forth “the facts supporting each

of the grounds thus specified.” See Rule 2(c) of the Rules Governing Section 2254 Cases. 

These “heightened pleading requirements” apply even to pro se applicants having no legal

training. See McFarland, 512 U.S. at 856. As Adamson is represented by counsel, no less

stringent standard should apply to him. 

Here, the mere usage of the word “prejudicial” in Adamson’s Prejudice-Based Contention

is insufficient to meet the pleading standard required by law. The Supreme Court expressly

cautioned: “If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial

denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so." 

Duncan v. Henry, 513 U.S. 364, 366 (1995) (holding that a claim of “miscarriage of justice" does

not qualify as a federal constitutional claim). Relying on Duncan v. Henry, the Third Circuit

clarified, in Keller v. Larkins, 251 F.3d 408, 413-415 (3d Cir. 2001), that denial of a claim

asserting lack of “fair trial” is proper because such claim does not state a federal constitutional

violation:

[A petitioner does] not invoke the federal due process guarantee [if the petitioner

merely] claim[s] that admission of the evidence produced a “miscarriage of

justice” [or] argues that the [trial process] denied him a “fair trial.” Since the

Supreme Court found the former language insufficient to give fair notice of a

federal due process claim, we are hesitant to attach greater significance to the

passing reference to the concept of a “fair trial” on which [the petitioner's]

argument rests.

Keller, 251 F.3d at 415. Consequently, Adamson's Fourteenth Amendment due process aspect of

the Prejudice-Based Contention is subject to dismissal for failure to exhaust state remedies and

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Page 20 of 50

also for failure to state a federal claim. However, the Court will nevertheless consider the

argument on its merits. See supra note 4.

In that regard, had Adamson's Fourteenth Amendment due process aspect of the

Prejudice-Based Contention been articulated in the Petition, it still would not help to his cause. 

The Supreme Court has emphasized that “the Due Process Clause does not permit the federal

courts to engage in a finely tuned review of the wisdom of state evidentiary rules." Marshall v.

Lonberger, 459 U.S. 422, 438 n.6 (1983). In Estelle v. McGuire, 502 U.S. 62 (1991), the

Supreme Court held that the state court's admission in petitioner's trial for murdering his infant

daughter of the testimony of two physicians that the child had suffered child abuse did not violate

due process because the evidence was relevant. “[N]othing in the Due Process Clause of the

Fourteenth Amendment requires the State to refrain from introducing relevant evidence.” Id. at

70. While the United States Court of Appeals for the Third Circuit has held that the admission of

evidence may violate due process where the evidence “undermine[d] the fundamental fairness of

the entire trial," Keller, 251 F. 3d at 413; see also Lesko v. Owens, 881 F. 2d 44, 51 (3d Cir.

1989) (“the erroneous admission of evidence that is relevant, but excessively inflammatory,

might rise to the level of a constitutional violation”); Bisaccia v. Att'y Gen., 623 F. 2d 307, 313

(3d Cir. 1980) (when “the probative value of . . . evidence, though relevant, is greatly outweighed

by the prejudice to the accused from its admission, then use of such evidence by a state may rise

to the posture of fundamental fairness and due process of law”), this Court is not aware of any

Supreme Court case establishing that the general admission of admissible but prejudicial

evidence necessarily constitutes a violation of federal constitutional rights. See Estelle, 502 U.S.

at 70. Consequently, even if the due process claim had been properly pled in Adamson’s

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Page 21 of 50

petition, the state courts’ decision to affirm his conviction would not violate an established

Supreme Court precedent. Thus, Adamson’s claim would, in any event, be dismissed. 

If the due process implications are removed from Adamson’s Prejudice-Based

Contention, little is left to be resolved in that Contention under the Confrontation Clause of the

Sixth Amendment.

The sole relevant sentence that the Court could detect to that effect reads, “[unlike the

case at bar,] Street . . . involved only one co-defendant's statement that was markedly different

[from defendant's confession].” Docket Entry No. 1-5, at 16 (emphasis added). The Supreme

Court in Street articulated a holding to the contrary. The Street Court clarified that, in the

scenario examined by the Court, “[co-defendant's] statement was generally consistent with

[defendant's] confession, [but] there were some differences.” Tennessee v. Street, 471 U.S. at 412

and n. 3 (listing the total of three distinctions, which the Court qualified as “details”). The Court

then proceeded to observe that, 

In this case, . . . the prosecutor did not introduce [the co-defendant's] out-of-court

[statement] to prove the truth of [the co-defendant's] assertions. [Hence, the codefendant's statement] was not hearsay under traditional rules of evidence. . . .

[This] nonhearsay aspect of [the co-defendant's statement] -- not to prove what

happened at the [crime] scene but to prove what happened when [defendant]

confessed -- raises no Confrontation Clause concerns. 

Id. at 414 (the holding of Street).

Here, just as in Street, Napier and Aljamaar's statements were “generally consistent” with

Adamson's confession, but “there were some differences.” Street, 471 U.S. at 412 and n.3. 

Indeed, no statement made in Street suggests that the differences between the co-defendant's

statement and defendant's confession have to be so dramatic as to render the documents

“markedly different” factually. See generally id. Therefore, under the holding of Street,

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Page 22 of 50

prosecutor was indeed entitled to intimate the jury, in great detail, with the content of Napier and

Aljamaar's statements to establish this fact.

Moreover, the fact that Street involved an evaluation of a single statement made by one

co-defendant in no way renders its holding inapplicable to cases where the prosecutor is faced

with multiple statements made by multiple co-defendants. 

Therefore, with respect to Adamson’s Prejudice-Based Contention, this Court finds that

the state courts' decisions to affirm Adamson’s conviction were not an unreasonable application

of the Supreme Court precedent set forth in Tennessee v. Street.

ii. The Affiant-Based Contention

Adamson's Affiant-Based Contention asserts that, since the content of Napier and

Aljamaar's statements was revealed to the jurors during his cross-examination, rather than during

Cirelli's testimony, the very status of the testifying person, that is, the status of Adamson as

defendant versus the status of Cirelli as witness, mandates reversal of Adamson's conviction

under the holding of Street. In support of this Contention, Adamson quotes the following excerpt

from Street:

The nonhearsay aspect of [defendant’s] confession -- not to prove what happened

at the murder scene but to prove what happened when respondent confessed --

raises no Confrontation Clause concerns. The [Confrontation] Clause's

fundamental role in protecting the right of cross-examination was satisfied by

[the] Sheriff[’s] presence on the stand. If respondent's counsel doubted that

[defendant’s] confession was accurately recounted, he was free to cross-examine

the Sheriff. By cross-examination respondent's counsel could also challenge [the]

Sheriff[’s] testimony that he did not read from [defendant’s] statement and direct

respondent to say the same thing. In short, the State’s rebuttal witness against

respondent was not [defendant], but [the] Sheriff . . . .

Tennessee v. Street, 471 U.S. at 414 (emphasis in original, citation omitted); accord Docket

Entry No. 1-5, at 13 (replicating the excerpt).

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Page 23 of 50

Adamson selects the phrase “was satisfied by [the] presence [of the law enforcement

officer] on the stand,” and interprets his selection as necessarily mandating that the information

about the content of the co-defendant's statement comes from the testifying law enforcement

officer. The Court disagrees. The Supreme Court in Street specifically recognized that the

existence of alternative means of presenting the evidence does not make these alternative means

“the only option constitutionally open.” Street, 471 U.S. at 416. 

Adamson overlooks the key point of the Supreme Court's finding, i.e., that the

Confrontation Clause guarantees are satisfied by the ability of defendant to examine the law

enforcement officer (rather than by having the information coming out of the law enforcement's

officer's mouth). See Street, 471 U.S. at 414.

Here, Cirelli was not only available for such examination during Adamson's trial, but he

did, in fact, testify and was cross-examined by Adamson's defense attorney. See State v.

Adamson, Transcript 6T at 61-64. While Adamson's defense attorney, same as the defense

counsel in Street, did not question Cirelli as to the process of execution of Adamson's confession,

a defendant's own decision not to utilize his/her opportunity to question a certain witness cannot

trigger the Confrontation Clause. Had Adamson's defense attorney wished to cross-examine

Cirelli on the issue of how Adamson's confession was produced, he had a full and unfettered

opportunity to do so. See Street, 471 U.S. at 414. Moreover, even if this Court were to

hypothesize an unlikely scenario where Adamson's claim of falsification was first articulated by

Adamson only when he took the stand and, hence, came as a complete surprise even to

Adamson's defense counsel, the defense counsel was certainly free to call Cirelli to the stand as

Case 3:06-cv-03194-PGS Document 11 Filed 07/31/09 Page 23 of 50 PageID: 162
 Adamson testified right after Cirelli, during the same day. See State v. Adamson, Transcript 8 

6T at 41-108 (replicating these back-to-back testimonies).

Page 24 of 50

Adamson's witness, and examine Cirelli as to the process of execution of Adamson's confession 8

in order to rebut the prosecutor's point that the confession was true.

The Court finds that the state courts correctly recognized that the Confrontation Clause

protections elaborated upon by the Supreme Court in Street were duly present during Adamson's

trial and, therefore, concludes that the state courts affirmance of Adamson's conviction under the

holding of Tennessee v. Street was not an unreasonable application of the Supreme Court

precedent. 

Consequently, the Court will dismiss the entire Confrontation Clause Aspect of the

Instant Instructions Challenge. 

B. The Lack-of-Limiting-Instructions Aspect 

1. The Actual Limiting Instruction Claim 

On direct appeal, Adamson argued “that the trial judge's failure to give the jury a limiting

instruction concerning the use of [Napier and Aljamaar's] statements constituted plain error.”

State v. Adamson, A-2652-98T4, at 12 (N.J. Super. Ct. App. Div. Oct. 5, 2000). The Appellate

Division, however, disagreed, reasoning as follows:

While we agree that a limiting instruction should have been given, we

nevertheless conclude its omission did not constitute plain error. When evidence

is admissible for one purpose and not admissible for another, the party opposing

the evidence has the burden to request a limiting instruction. A criminal

defendant is not in a favorable position to argue on appeal that the trial judge

failed to give a curative instruction where such instruction was not requested

when the error occurred. This is especially true when [the state rules of evidence]

permit[] waiver of right to a limiting instruction.

[Moreover, even factoring out the aspect that] no request [for limiting instruction]

was made by [Adamson's counsel during Adamson's trial,] we are . . . satisfied

that there was no plain error. Here[,] the failure to give a limiting instruction did

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Page 25 of 50

not have a clear capacity to produce an unjust result. Our review of the record

leads us to the conclusion, beyond a reasonable doubt, that the error did not lead

the jury to a result it otherwise might not have reached. . . . The record is more

than adequate to support a determination on the part of the jury that the defense

raised by [Adamson] was simply not credible. We are satisfied, from our review

of the jury charge, that the trial judge gave a detailed and adequate instruction

which provided the jury with a clear and accurate guide to assessing the credibility

of defendant, the witnesses, and their testimony concerning the statements

involved. We find no plain error . . . .

Id. at 12-13 (citations omitted). 

Adamson, however, asserts that this finding was in error. He points to five Supreme

Court precedents, arguing that the presence of a limiting instruction is essential to the

constitutionality of a Street-type submission of evidence. Docket Entry No. 1-5, at 17-18

(emphasis deleted). Adamsom’s argument is without merit. 

This Court's § 2254(d)(1) mandate allows the Court to grant habeas relief only with

respect to a claim so adjudicated by the state court that the state decision contradicts a clearly

established Supreme Court precedent. See 28 U.S.C. § 2254(d)(1); Yarborough, 541 U.S. at 660. 

Because federal courts do not hold appellate authority over state judicial proceedings, and “may

intervene only to correct wrongs of constitutional dimension,” Smith v. Phillips, 455 U.S. 209, 

221 (1982), in order to satisfy the mandates of § 2254(d)(1), the state court decision must be

contrary the express holding of a relevant Supreme Court precedent. See Williams, 529 U.S. at

405. Hence, it is not sufficient to merely assert that a certain remote inference might be drawn

from “a” Supreme Court precedent, rather, the litigant must demonstrate that the relevant

Supreme Court precedent requires, through its holding, an outcome contrary to that reached by

the state courts. See Outten v. Kearney, 464 F.3d 401, 413 (3d Cir. 2006). Section 2254 does

not recognize arguments based on factually and legally different Supreme Court cases, even if the

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litigant believes that such different cases might be read as somewhat “analogous” to the litigant’s

action.

 Here, Adamson's citations are inapposite to the Actual Limiting Instruction Claim

because none of those cases involve, as here, an issue of alleged plain error where a limiting

instruction was neither requested by the defendant nor given sua sponte by the trial court. See

Gray v. Maryland, 523 U.S.185, 191 (1998); Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993);

Street, 471 U.S. at 412; Francis v. Franklin, 471 U.S. 307, 318 (1985); Connecticut v. Johnson,

460 U.S. 73, 87-88 (1983).

 Further, it is well-established that inquiry as to whether a certain piece of evidence was

correctly admitted during state proceedings plays, generally, “no part [in] a federal court's habeas

review of a state conviction,” Estelle, 502 U.S. at 67. Federal courts, recognizing a strong

interest in finality of judgments, rarely reverse a criminal conviction based upon an improper jury

instruction. See Henderson v. Kibbe, 431 U.S. 145, 154 (1977); see also Namet v. United States,

373 U.S. 179, 190 (1963). Since the district courts' mandate is only to correct errors of

constitutional magnitude, a determination of whether the error amounts to such a violation

“requires a comparison of the instructions which were actually given with those that should have

been given.” Henderson, 431 U.S. at 154. The court, while conducting such comparison, should

factor into its analysis a consideration of whether the defendant actually requested the

instructions that the defendant claims should have been given. “It is the rare case in which an

improper instruction will justify reversal of a criminal conviction when no objection has been

made in the trial court.” Id.

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Page 27 of 50

Here, there is no dispute that Adamson's trial counsel did not request the limiting

instruction which he now characterizes as the one needed to ensure that “the fact that the jury

should not have considered [Napier and Aljamaar's] statements for the truth of the matter

asserted would [not] be lost on a lay juror.” Docket Entry No. 1-5, at 28. Similarly, there is no

dispute that Adamson's trial judge provided the jury with detailed and adequate instructions as to

all pertinent propositions related to the substantive law involved and the basic rules of evidence. 

See generally, State v. Adamson, A-2652-98T4, at 3-68 (Transcript 7T). Adamson's point,

therefore, qualifies solely as a claim that it would be desirable for the trial judge to drive home

the non-hearsay purpose of prosecutorial examination further, i.e., that the instructions could

have been better. However, the fact that the instructions could have been better does not render

them unconstitutional. This is exactly the conclusion reached by the state courts. See State v.

Adamson, A-2652-98T4, at 12 (N.J. Super. Ct. App. Div. Oct. 5, 2000). Therefore, the Court

cannot find that the state courts’ decision to affirm Adamson’s conviction was an unreasonable

application of the relevant Supreme Court precedent.

2. The Given Instructions Claim

In order to show that the state courts' decision was an unreasonable application of the

Supreme Court precedent, Adamson also argues the instructions actually given provided the

jurors with expressly erroneous guidance as to the trial court’s purpose for admission of Napier

and Aljamaar’s statements. Specifically, Adamson asserted that, “rather than limiting the

considerations of [Napier and Aljamaar's] statements, [Adamson's trial judge] improperly told the

jurors to consider those statements [for hearsay purposes.]” Docket Entry No. 1-5, at 18-19. In

support of this claim Adamson quotes the following excerpt from the instructions:

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 Adamson’s trial judge instructed the jurors as follows: 9

What is credibility? And of course, that’s essential to any case. Credibility is

defined as worthiness of belief. It is that quality in a witness which renders his or her

evidence worthy of belief. And you will note that I have used the phrase credible

evidence. Evidence to be believed must not only proceed from the mouth of a

credible witness but it also must be credible in itself. It must be such as the common

experience and observation of mankind can approve as probable under the

circumstances. Evidence has been presented showing that at a prior time a witness

may have said something . . . that is inconsistent with that witness’ testimony during

trial. . . . However, before deciding whether the prior inconsistent . . . statement

reflects the truth, in all fairness you will want to consider all of the circumstances

under which this statement . . . occurred. . . . The extent to which such alleged

inconsistencies . . . reflect the truth is for you to determine. Consider their

Page 28 of 50

You will, of course, consider other evidence and inferences from the evidence

including statements of other witnesses or acts of the witness and others

disclosing other motives that the witness may have had to testify as he did, that is,

reasons other than which he gave us.

Id. at 18. 

Adamson concludes that the judge's usage of the phrase “statements of other witnesses”

must necessarily be interpreted as the judge's reference to Napier and Aljamaar's statements,

which--according to Adamson--signified the judge's instruction to the jurors to consider Napier

and Aljamaar's statements for the truth of the matter asserted. Id. at 19 (alleging that the only

“statements of other witnesses” were Napier and Aljamaar's statements). However, in the

context of the entire jury instruction at hand, it appears that the trial judge referred to the

testimonial statements of those who took the stand during the trial (e.g., the victims of the

robbery or the police officials) when the judge directed the jurors to consider “statements of other

witnesses”; specifically, it appears that the judge invited the jurors to determine credibility of

Adamson and Cirelli’s testimonies (i.e., Adamson’s testimony that his confession was coerced

and Cirelli’s testimony that Adamson’s confession was voluntary and produced by Adamson as

Adamson saw fit). Indeed, it would be wholly unreasonable for a lay person—much less a 9

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materiality, if any, and relationship to the entire testimony and all the evidence in the

case, when, where and the circumstances under which they were said . . . and whether

the reasons given you therefore appear to be believable and logical. In short,

consider all that I have told you about prior inconsistent statements. You will, of

course, consider other evidence and inferences from the evidence including

statements of other witnesses or acts of the witness and others disclosing other

motives that the witness may have had to testify as he did, that is, reasons other than

which he gave us.

State v. Adamson, A-2652-98T4, 7T (transcript of the jury charge).

Page 29 of 50

professional jurist--to understand the judge’s instructions as a directive to perceive Napier and

Aljamaar as trial “witnesses” and to consider the content of the documents they executed once

upon a time as “statements” made during the trial proceedings. 

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 . . . , [the court must]

inquire whether there is a reasonable likelihood that the jury has applied the

challenged instruction in a way that violates the Constitution. And [the court

must] also bear in mind [that the courts] 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, 502 U.S. at 72-73 (quotation marks and citations and omitted). Under the standard set

forth in Estelle, this Court cannot find that the instructions given by the trial judge and directing

the jury to consider “statements of other witnesses” so infected the entire trial as to cause the

jurors to commit an error of constitutional magnitude and, thus, to violate Adamson's due process

rights. Accord State v. Adamson, A-2652-98T4, at 13 (N.J. Super. Ct. App. Div. Oct. 5, 2000)

(the record provides support for the conclusion that Adamson's conviction merely reflected jury's

determination that “the defense raised by [Adamson] was simply not credible”). Consequently,

the state courts' decision to affirm Adamson's conviction was not an unreasonable application of

the Supreme Court precedent. This Court, therefore, will dismiss the Lack-of-LimitingCase 3:06-cv-03194-PGS Document 11 Filed 07/31/09 Page 29 of 50 PageID: 168
Page 30 of 50

Instructions Aspect for failure to show a violation of Adamson’s federal rights and, being

presented with no other arguments, will dismiss the Instant Instructions Challenge in its entirety. 

IV. Adamson's Sentencing Challenge

Adamson also challenges the legality of his sentence, claiming that it violates the

principles enunciated by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000).

A. Legal Regime Implicated by Adamson's Sentencing Challenge

“[No] federal tribunal has any authority to place a construction on a state statute different

from the one rendered by the highest court of the state.” Johnson v. Fankell, 520 U.S. 911, 916

(1997); see also Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). However, the highest state

court's determination whether a statute, as construed, complies with the federal constitution is not

immune from federal review; this applies, inter alia, to state sentencing regimes. 

Modern sentencing law has been reformulated due to a wave of federal and state

sentencing cases that have been decided over the past nine years. 

In Apprendi v. New Jersey, [the Supreme] Court held that, under the Sixth

Amendment, any fact (other than a prior conviction) that exposes a defendant to a

sentence in excess of the relevant statutory maximum must be found by a jury, not

a judge, and established beyond a reasonable doubt, not merely by a

preponderance of the evidence. See 530 U.S. 466, 490. The Court has applied

the rule of Apprendi to facts subjecting a defendant to the death penalty [in] Ring

v. Arizona, 536 U.S. 584, 602 [(2002)], facts permitting a sentence in excess of

the “standard range” under [a state sentencing regime in] Blakely v. Washington,

542 U.S. 296, 304-305 [(2004)], and facts triggering a sentence range elevation

under the then-mandatory [federal sentencing regime in] United States v. Booker,

543 U.S. 220, 243-244 [(2005)].

Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856, 857 (2007) (continuing the ApprendiBooker line of cases).

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The difference between Apprendi and Blakely is as follows: in Apprendi, the Supreme

Court found that New Jersey's “hate crime” law violated the Due Process Clause of the

Fourteenth Amendment, and the notice and jury trial guarantees of the Sixth Amendment,

because it allowed a judge to find facts by a lower standard of proof than would be required of a

jury and to increase a defendant's sentence beyond the “statutory maximum” for that particular

crime. The Court thus held that “other than the fact of a prior conviction, any fact that increases

the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and

proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 525. 

Four years later, in Blakely, the Supreme Court clarified what “statutory maximum”

means for the purposes of Apprendi-based analysis. See Blakely, 542 U.S. 296. It means the

highest possible sentence a judge may impose “solely on the basis of the facts reflected in the

jury verdict or admitted by the defendant,” i.e., that the “statutory maximum” is the maximum

sentence a judge may impose without finding any additional facts, that is, except by taking notice

of prior convictions. See id. at 301, 303. The next term, the Court held, in Booker, that the

rationale of Blakely applied to the federal sentencing regime. The case law following these

decisions invariably established that the holdings of the Apprendi-Cunningham line of cases had

no retroactive application. See Tyler v. Cain, 533 U.S. 656 (2001); Lloyd v. United States, 407

F.3d 608 (3d Cir. 2005); In re Olopade, 403 F.3d 159 (3d Cir. 2005); United States v. Swinton,

333 F.3d 481, 491 (3d Cir. 2003); United States v. Jenkins, 333 F.3d 151, 154 (3d Cir. 2003); In

re Turner, 267 F.3d 225 (3d Cir. 2001).

Seven months after issuance of Booker, the Supreme Court of New Jersey decided a

trilogy of cases applying the principles that were formulated by the Supreme Court from

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Apprendi to Booker. See State v. Franklin, 184 N.J. 516 (2005); State v. Abdullah, 184 N.J. 497

(2005); State v. Natale, 184 N.J. 458 (2005). In Natale, the Supreme Court of New Jersey

eliminated the presumptive term from New Jersey's sentencing process, holding that, since the

presumptive term was the “statutory maximum” for the purposes of Blakely, a sentence above

that term based solely on a judicial fact-finding of aggravating factors, other than recidivism,

would violate the Sixth Amendment. See Natale, 184 N.J. at 466. 

Much like the case law establishing lack of retroactivity of the Apprendi-Cunningham

holdings, the Supreme Court of New Jersey declined to make Natale fully retroactive. The court

recognized that “[f]ull retroactivity would overwhelm our courts with resentencings and impose a

devastating burden on the judiciary,” and elected to apply the Natale rule “retroactively [only] to

cases in the pipeline [i.e.,] to defendants with cases on direct appeal as of the date of [the Natale]

decision and to those defendants who raised Blakely claims at trial or on direct appeal.” Id. at

494.

Consequently, for Adamson's purposes, the retroactivity announced in Natale was of no

impact, since his direct appeal was completed long before Natale and Blakely were decided.

B. Genesis of Adamson's Sentencing Challenge

On direct appeal, Adamson did not raise any issue based on Apprendi or any of its

progeny, though Apprendi was decided while Adamson was still litigating his conviction and

sentence. The very first time that a challenge based on a case from the Apprendi-Booker string

of decision was raised by Adamson was during his post-conviction proceedings, i.e., when--

seven months after the Supreme Court's ruling in Blakely– Adamson filed an appeal with respect

to denial of his first petition for post-conviction relief arguing, inter alia, Adamson's Sentencing

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Page 33 of 50

Challenge. See State v. Adamson, A-5921-03T4, Brief and Appendix on Behalf of DefendantAppellant (filed on Jan. 28, 2005). 

Adamson's Sentencing Challenge was based expressly on the holding of Blakely. His

legal argument involved a detailed review of Blakely and its progeny in New Jersey courts. See

id. Specifically, Adamson urged the state courts to follow Natale, a decision the gist of which

Adamson read as favorable to his cause, and not to follow the holding of State v. Abdullah, 184

N.J. 497, the decision which Adamson read as adverse to his interests. See id. at 39-41

(explaining his position that, in Abdullah, the New Jersey Supreme Court reached an

unnecessarily broad conclusion when it arrived at the umbrella holding that a judicial finding of

aggravating factors falls within the “prior conviction” exception to the Apprendi rule). Aside

from his discussion of the allegedly unduly sweeping reach of Abdullah, Adamson did not

discuss any Apprendi aspect: Apprendi appeared in Adamson’s brief only twice, both times as

part of a massive block-quotation from Blakely. See id. at 33.

The Appellate Division, concentrating on the limited retroactivity aspect of Natale, which

was left unaddressed, affirmed the trial court's decision as to Adamson’s sentence. See State v.

Adamson, A-5921-03T4 (filed on Nov. 1, 2005). Dedicating merely a short paragraph to this

issue, the Appellate Division observed:

[W]e address [Adamson's] contention that [his] sentence violates the

constitutional considerations announced in Blakely v. Washington, 542 U.S. 296

(2004). While this appeal was pending, our Supreme Court decided State v.

Natale, 184 N.J. [at] 466, [that] “a sentence above the presumptive statutory term

based solely on a judicial finding of aggravating factors, other than a prior

criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee.”

Recognizing, however, that “[f]ull retroactivity would overwhelm our courts with

resentencings and impose a devastating burden on the judiciary,” the Court

limited its holding to cases on direct appeal as of the date of its [Natale] decision

or to those defendants who raised Blakely claims at trial or on direct appeal. Id. at

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 Although it is not clear that all aspects of Petitioner’s sentencing arguments were presented at 10

the state level, this Court will nevertheless consider the application on its merits as the

substantive portions of the argument, i.e., that petitioner’s sentence was illegal under Apprendi, 

was addressed at the state level. See supra note 4.

Page 34 of 50

494. [Adamson's] direct appeal did not raise the constitutional validity of our

sentencing scheme and was filed more than four years prior to the decision in

Blakely. Accordingly, [Adamson's] constitutional claims [requesting re-

]sentencing are not cognizable on this appeal. 

 

Id. at 12-13. 

Applying to the Supreme Court of New Jersey for certification, Adamson did not offer

any counter-argument to the Appellate Division's conclusion that Adamson's sentencing claim

fell outside the limited retroactivity reach of Blakely or Natale. See State v. Adamson, A-5921-

03T4 (a letter in lieu of a formal petition for certification, filed on November 9, 2005).

Adamson’s Sentencing Challenge has been revived in this action. The Instant 10

Sentencing Challenge, as set forth in his memorandum accompanying Adamson's Petition, could

be summed up into the following three points, the first two of which appear to be substantive

(“Adamson’s Substantive Argument”), while the third one appears to be procedural (“Adamson’s

Procedural Argument”):

1. The New Jersey Criminal Code contains two provisions dealing with extended prison

term, N.J. Stat. Ann. § 2C:44-3 and N.J. Stat. Ann. § 2C:44-6c. Since the preamble of the former

utilizes the phrase “[t]he court may . . . sentence [a convicted defendant] to an extended term,”

while the latter provides that the defendant “shall be sentenced by the court to an extended term,”

the distinction between the words “shall” and “may” qualifies Section 2C:44-3 as discretionary

sentencing provision and Section 2C:44-6c as a mandatory one, even though both Sections allow

imposition of an extended term solely on the basis of recidivism. However, under state case law,

a discretionary extended term imposed pursuant to Section 2C:44-3 may be imposed only if there

is a finding that the extended term is “necessary for the protection of the public from future

offenses by defendant through deterrence.” See Docket Entry No. 1-5, at 19-20 (emphasis in

original).

2. At Adamson's sentencing hearing, the judge found Adamson, who had three previous

convictions, to be “a person from whom the public must be protected.” See id. at 20. Since the

judge's finding that the public needed to be protected from Adamson was a fact, this judicial

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finding violated the rule applied by the United States Supreme Court in the ApprendiCunningham line of cases. See id. at 21-22. While the New Jersey courts invariably determined

that a finding that the public needed to be protected from the defendant might be made on the

basis of defendant's prior conviction, the logical leap connecting the prior convictions and the

public's need for protection exceeds the permissible exception adopted by the ApprendiCunningham line of cases; such finding can only be made by the jury. See id. at 23-25. 

3. The Appellate Division's conclusion that Adamson's sentencing fell outside the limited

retroactivity reach of Blakely or Natale was incorrect by the very virtue of the Appellate

Division's examination of the issue through the prism of Blakely, rather than that of Apprendi,

which--in turn--triggered the limited retroactivity of Natale. Since Adamson's direct appeal was

still in the pipeline at the time the Supreme Court's decision in Apprendi, Adamson cannot be

deemed procedurally barred from relief and, therefore, his extended term must be vacated as

based on un impermissible fact finding by a judge rather than a jury. See id. at 26-27. 

Respondents filed an answer urging this Court to deny Adamson a writ, arguing that the

Instant Sentencing Challenge raises a Blakely type of issue falling under the limited retroactivity

of Natale. See Docket Entry No. 5, at 15-22. In response, Adamson filed a reply. See Docket

Entry No. 6. The reply elaborated on Adamson’s Procedural Argument as follows:

1. The sole rule pertinent to the Instant Sentencing Challenge is that of Apprendi, and that

rule was never a “new rule” announced by the United States Supreme Court: the entire line of

Apprendi-Cunningham cases is nothing but the same “not so new” Apprendi rule. Therefore,

the Supreme Court of New Jersey made a procedural error in Natale by refusing to extend the

right to re-sentencing beyond those defendants who raised Blakely on direct appeal. See id. at 9-

10.

2. Natale created an “illusory remedy” because, under the post-Natale regime, a judge can

re-sentence a criminal defendant to a term above the now eliminated presumptive maximum

without a jury finding enabling such sentencing. See id. at 10-14. 

C. Conflict-of-Interest Implications 

An additional concern raised by the Instant Sentencing Challenge pertains to what

appears to be a potential conflict of interest between Taylor and Adamson. 

[C]onflicts arise from divided loyalties . . . . The potential prejudice from an

attorney's divided loyalties is not limited to any particular type of proceeding;

while it may be true that most conflict issues arise in the trial context, it certainly

does not follow that no conflicts of interest are possible absent a trial. . . . The

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Page 36 of 50

[c]ourt [shall] not coerce [the litigant] into giving up his right to choice of counsel

. . . . See Wheat [v. United States], 486 U.S. 153, 163 [(1988)] (given the

difficulties inherent in foreseeing the development of conflicts of interest, trial

courts “must be allowed substantial latitude” in their handling of conflicts issues).

[The litigant's] own statements, as well as those of . . . his attorneys, [might be

accepted by the court during a court proceeding as] indicat[ing] that [the litigant]

knowingly, intelligently and voluntarily [prefers] to proceed with [the conflicted

attorney] as his counsel. See Blackledge v. Allison, 431 U.S. 63, 74 (1977)

(“Solemn declarations in open court carry a strong presumption of verity”).

 United States v. Pryor, 275 Fed. App'x 99, 102-03 (3d Cir. 2008) (emphasis added).

Here, there appeared to be a conflict of interest between Taylor and Adamson because

Adamson raised an ineffective assistance of counsel argument as to Taylor’s performance on

direct appeal in Adamson’s post-conviction relief brief. The issue was resolved at oral argument

of petitioner’s application, wherein he confirmed to this Court that, although he had alleged

ineffective assistance of counsel on Taylor’s part in a previous proceeding, he no longer alleged

such ineffective assistance, that he understood that his failure to bring an ineffective assistance

argument in this petition would cause it to be forever waived, and that he was further satisfied to

have Taylor represent him with regard to the instant petition. On this basis, the Court deems the

conflict of interest waived. Therefore, this issue is moot. See supra note 4.

D. The Instant Sentencing Challenge Shall Be Dismissed

1. Adamson’s Procedural Argument Fails to State a Colorable Federal Claim

Adamson's Procedural Argument, scattered throughout the pages of Adamson's

memorandum and reply, can be summarized into the following contention: the Supreme Court

of New Jersey erred in Natale (a) by not guaranteeing that the state courts would re-sentence

eligible defendants (previously sentenced to an Upper Half Term on the basis of judicial factfinding) to a Lower Half Term (“First Procedural Aspect”), and (b) by not including into the pool

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of defendants eligible to be re-sentenced those individuals whose conviction became finale

before the United States Supreme Court issued its Blakely decision (“Second Procedural

Aspect”). See Docket Entry No. 1-5, at 26-27; Docket Entry No. 6, at 9-14. 

In the Second Procedural Aspect, Taylor challenges the temporal scope of retroactivity

selected by the Supreme Court of New Jersey in Natale by asserting that the re-sentenced

convicts should necessarily end up better off after the re-sentencing, and the pool of such

favorably re-sentenced convicts should be enlarged to include, at the very least, those whose

cases were “in pipeline” at the time when the United States Supreme Court issued its Apprendi

decision. Adamson therefore argues that, if he is entitled to re-sentencing under the Apprendi

principles, then he should be re-sentenced to the presumptive maximum term (applicable to

Adamson's offences and existing at the time of his conviction) because Adamson's case was on

direct appeal when Apprendi was decided. See id. 

 Adamson's Second Procedural Aspect poses a two-prong inquiry, largely academic for

the purposes of this Court's § 2254 review, i.e.: (1) whether the holding of Blakely is a “new

rule” in comparison with that of Apprendi; and, if so, (2) whether the rule enunciated by the

Supreme Court of New Jersey in Natale was a Blakely-type of rule or that of an Apprendi type. 

In Teague v. Lane, 489 U.S. 288 (1989) and subsequent cases, the United States Supreme

Court laid out the framework to be used in determining whether a rule announced in one of the

Court's opinions should be applied retroactively to judgments in criminal cases that are already

final on direct review. See Whorton v. Bockting, 549 U.S. 406, 127 S. Ct. 1173, 1180 (2007). 

Under the Teague framework, an old rule applies both on direct and collateral

review, but a new rule is generally applicable only to cases that are still on direct

review. See Griffith v. Kentucky, 479 U.S. 314 (1987). A new rule applies

retroactively in a collateral proceeding only if (1) the rule is substantive, or (2) the

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rule is a “'watershed rul[e] of criminal procedure' implicating the fundamental

fairness and accuracy of the criminal proceeding." Saffle [v. Parks, 494 U.S.

484,] 495 [(1999)]. 

Id. at 1180-81.

For Teague purposes, a new rule is one of “procedure" if it affects the operation of the

criminal trial process, and a new rule is one of “substance" if it alters the scope or modifies the

applicability of a substantive criminal statute. See Bousley v. United States, 523 U.S. 614, 620

(1998). Each overruling of state sentencing laws in the Apprendi-Cunningham line of cases was

clearly a procedural rule, since it affected the operation of the criminal trial process, but did not

affect the scope of a substantive criminal statute.

Under Teague, the determination whether a constitutional rule of criminal

procedure applies to a case on collateral review [requires the court to] ascertain

the “legal landscape as it then existed,” Graham v. Collins, 506 U.S. 461, 468

(1993), and ask whether the Constitution, as interpreted by the precedent then

existing, compels the rule, Saffle, [494 U.S.] at 488. That is, the court must

decide whether the rule is actually “new." 

. . .

[The court] must therefore assay the legal landscape as of [the pre-Blakely time]

and ask “whether the rule later announced in [Blakely] was dictated by thenexisting precedent--whether, that is, the unlawfulness of [Blakely's sentence] was

apparent to all reasonable jurists." Lambrix [v. Singletary, 520 U.S. 518,] 527-

528 [(1997)].

. . .

[A] generalized [preceding] rule . . . could be thought to support the Court's

conclusion in [the following rule]. But what is essential here is [whether] it does .

. . mandate the [following] rule. [If] reasonable jurists could have differed as to

whether the [preceding] principle compelled [the following rule, the following

rule must be deemed “new”]. See Lambrix, 520 U.S. at 527-528. But there is no

need to guess [whether reasonable jurists could have differed as to the

apparentness of the following rule if any of the] Justices dissented [when the

following rule became law, especially if the dissenting opinions were

distinguishing the preceding rule from the following rule].

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Page 39 of 50

Beard v. Banks, 542 U.S. 406, 411-16 (2004).

In the case of Blakely, there is no question that Blakely was a “new rule,” as compared to

Apprendi, since a generalized principle of Apprendi supported but did not mandate the holding

of Blakely, as evidenced by thirty-three pages of different dissenting opinions filed by Chief

Justice Rehnquist and Justices O'Connor, Breyer, and Kennedy, each drawing distinctions

between Blakely and Apprendi. See Blakely v. Washington, 542 U.S. at 313-46; accord

Apprendi v. New Jersey, 530 U.S. at 523-66. 

While Adamson is of the impression that neither the rule in Apprendi nor that in Blakely

was a “new rule,” see Docket Entry No. 6, at 10, the federal courts uniformly concluded to the

contrary and refused to apply retroactively any decision from the Apprendi-Cunningham line,

Blakely included. See, e.g., Lloyd v. United States, 407 F.3d 608, 615-16 (3d Cir. 2005)

(observing that Blakely did not contain directions indicating that a retroactive rule was

announced by the Supreme Court); see also Yuzary v. Samuels, 269 Fed. App's 200, 201 (3d Cir.

2008) (“The Supreme Court has not made Blakely retroactive to cases on collateral review”)

(citing In re Olopade, 403 F.3d 159 (3d Cir. 2005)).

The second prong of the Second Procedural Aspect is a determination of whether the

decision by the Supreme Court of New Jersey in Natale was a ruling based on the holding of

Blakely rather than Apprendi. The answer, obviously, is in the facts and law of Natale. In Natale,

the Supreme Court of New Jersey: (a) assessed New Jersey's sentencing scheme, which provided

for statutory maximums and minimums but also referenced presumptive sentences, which fell

somewhere in between; and (b) eliminated presumptive sentences. See State v. Natale, 184 N.J.

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 California's determinate-sentencing system was stricken down by the United States Supreme 11 

Court in Cunningham v. California, 549 U.S. 270, with Justices Alito, Kennedy and Breyer,

dissenting and expressing the view that California's sentencing system was indistinguishable

from the advisory guidelines approved in Booker. 

Page 40 of 50

458. Concluding that the elimination of presumptive sentences was necessary, the Natale court

reasoned as follows:

In Blakely v. Washington, the Court refined Apprendi, by clarifying what

constituted the statutory maximum for sentencing purposes. . . . Under

Washington's law [stricken in Blakely] a judge [could] impose a sentence above

the standard range if he f[ound] 'substantial and compelling reasons justifying an

exceptional sentence. . . . The Supreme Court observed that the trial court's

factfinding of [an element of the crime] was neither admitted by the defendant

[who took the plea nor could have been found by a jury, had the jury been

presented with an injury as to the elements to which the defendant pled guilty]. 

The Court defined the “statutory maximum” for Apprendi purposes as the

maximum sentence a judge may impose solely on the basis of the facts reflected in

the jury verdict or admitted by the defendant. . . . As such, the Court found that

Washington's sentencing procedure violated the Sixth Amendment. . . . Courts in

states with sentencing schemes similar to our own have reached varying

conclusions regarding the impact of Blakely and Booker, [the case following and

building up on Blakely,] on presumptive sentencing. Some [like the courts in

Indiana, Arizona, Minnesota and Oregon,] have held that . . . an increase in the

sentence above the presumptive based on judicial findings violates the Sixth

Amendment. Others, including the Supreme Court of California, have concluded

that there is no Sixth Amendment impediment when a judge increases a sentence

above the presumptive term, but within the statutory range, based on discretionary

judicial findings. We reject the California approach because it appears to be in

direct conflict with Blakely. 1

1

Natale, 184 N.J. at 475-82.

The foregoing excerpt unambiguously indicates that Natale was a decision mandated,

factually and legally, by Blakely rather then by Apprendi. And, since Blakely was the governing

“new rule,” the holding of Natale was necessarily subject to limited collateral retroactivity with

respect to those defendants who raised a Blakely argument prior to attaining finality of their

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 In other words, Natale was not a “new rule.” Rather, it was a “‘watershed rul[e] of criminal 12

procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding,” Saffle,

494 U.S. at 495, and applying a binding Supreme Court precedent set forth by the “new rule” in

Blakely. See Natale, 184 N.J. 458 (where the unanimity of the Natale court verified the fact that

Blakely was the binding precedent Natale followed). Consequently, if the Natale court erred

constitutionally, it erred only in its observation that it had options of applying the Natale-coined

rule prospectively, without regard to the date of the United States Supreme Court's issuance of

Blakely. See Natale, 184 N.J. at 494 (“[W]e can apply the new rule in one of three ways: (1)

purely prospectively to all cases, (2) prospectively to all cases but the case in which the rule is

announced, or (3) retroactively to cases in the pipeline.”). However, this oversight does not

impact the validity of Natale holding, since the Supreme Court of New Jersey correctly chose the

option of “applying [the] holding [of Natale] to defendants with cases on direct appeal as of the

date of [the Natale] decision and to those defendants who raised Blakely claims at trial or on

direct appeal who raised Blakely claims.” Id.

Page 41 of 50

convictions. Consequently, Adamson's challenge to the temporal scope of retroactivity selected 12

by the Supreme Court of New Jersey in Natale is without merit. However, and paramountly here,

it is also of no relevance to Adamson's Apprendi-based argument.

Here, Adamson attacked the temporal scope of retroactivity selected by the Supreme

Court of New Jersey in Natale by stating:

As generally acknowledged by the New Jersey Supreme Court: “To the extent that

retroactivity issues arise in the context of criminal-procedure decisions

implicating rights guaranteed under the federal constitution, United States

Supreme Court precedents control the scope of retroactivity.” State v. Lark, 117

N.J. 331, 335 (1989); see also Am. Trucking Eastness v. Smith, 496 U.S. 167, 178

(1990) (“In order to ensure the uniform application of decisions construing

constitutional requirements and to prevent States from denying or curtailing

federally protected rights, we have consistently required that state courts adhere to

our retroactivity decisions”). Since Adamson's convictions were not final until . .

. after Apprendi was decided in 2000, [Adamson's] extended term sentence must

be vacated. See Allen v. Reed, 427 F.3d 767, 770 (10th Cir. 2005) (in applying

Apprendi, “If the conviction is not yet final when the Court announces the rule,

lower courts must apply that rule to the defendant's case”); Vogt v. Novak, 153

Fed. [App'x] 474, [476] (10th Cir. 2005) (in the context similar to Adamson's

whereby state prisoner asserted [an] Apprendi violation for the first time on state

post-conviction relief, Apprendi applied since petitioner's “conviction was not

final at the time Apprendi was decided”).

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Docket Entry No. 1-5, at 26-27. In other words, Adamson asserts that the court in Natale was

obligated but failed to follow the federal retroactivity rule because the federal courts presented

with Apprendi challenges (raised by petitioners eligible to state such challenges) entertained such

challenges. “These allegations mix apples and oranges, and many other fruits as well.” In re Ins.

Brokerage Antitrust, 2007 U.S. Dist. LEXIS 25632, at *122 (D.N.J. Apr. 5, 2007).

As discussed above, the court in Natale adopted the temporal retroactivity identical to that

employed by the federal courts: it made the Natale rule retroactively applicable as to the

petitioners whose convictions were not final at the time when Natale, was decided. This

retroactivity decision of the Natale court has nothing to do with the fact that the United States

Court of Appeals for the Tenth Circuit in Allen and Vogt found that the petitioners who actually

raised Apprendi-based challenges during their appellate or post-conviction-relief proceedings

deserved an Apprendi review.

A state court's decision, like Natale, does not become wrongly decided simply because it

is inapposite to the case at bar. If Adamson wished to raise an Apprendi-based challenge during

his first or second post-conviction proceeding, he certainly could have done so. However,

Adamson did not raise such a challenge during his second post-conviction review, and Adamson

expressly built Adamson's first post-conviction challenges on Blakely. See Docket Entry No. 3,

¶ 11; State v. Adamson, A-5921-03T4, Br. and App’x on Behalf of Def. (filed on Jan. 28, 2005). 

Moreover, as discussed above, Adamson wholly ignored Apprendi on direct appeal. See State v.

Adamson, A-2652-98T4, Br. and App’x on Behalf of Def., at 11-12, (filed Sep. 30, 1999). 

Adamson's failures to raise an Apprendi challenge during Adamson's appellate and postconviction-review proceedings cannot render the retroactivity of Natale erroneous. Similarly, the

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 The issue of whether the Natale court erred in deciding that the defendants who are subject to 13

a Natale-based re-sentencing could be re-sentenced to an Upper Half Term is even further

removed from Adamson's Substantive Argument based on Apprendi and, thus, falls outside this

Court's § 2254 review of the instant Petition: it is a purely academic exercise. Nevertheless, in

the interests of completeness, the Supreme Court of New Jersey articulated in State v. Pierce, 188

N.J. 155, 174 (2006) that a “defendant may not be subjected to a sentence in excess of the one

previously imposed” when being re-sentenced pursuant to Natale. 

Page 43 of 50

state courts' decision that Adamson's Blakely-based claim was barred by the retroactivity limit set

forth in Natale does not have anything to do with Adamson's instant desire to litigate an

Apprendi challenge: no state court rejected Adamson's Substantive Argument based on Apprendi

because no state court was ever presented with such claim. For these reasons, the Second

Procedural Aspect, same as the entire Adamson’s Procedural Argument, will be dismissed for

failure to state even a colorable federal claim. 

13

2. Adamson's Substantive Argument Has No Merit

Adamson's Substantive Argument is as follows -- Adamson’s trial judge’s decision to

sentence Adamson to an extended term of imprisonment was a violation of Adamson’s Sixth

Amendment right to a jury trial, under the Apprendi-Cunningham line of cases, because the

judge: (a) found that Adamson was eligible for an extended term of imprisonment and, in

addition, (b) found the presence of public protection interest warranting the imposition of such

extended term.

 While conceding that the judge properly made the eligibility finding on the basis of

Adamson’s three prior convictions, Taylor maintains that the finding of the public protection

interest had to be made by a jury. 

By now, it is well established that “[ j]udicial factfinding in the course of selecting a

sentence within the permissible range does not implicate or offend the Fifth and Sixth

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Amendment rights to a jury trial . . . .” United States v. Grier, 449 F.3d 558, 564-55 (3d Cir.

2006) (emphasis added). The issue of what exactly constitutes this “permissible range” for the

purposes of defendants who are persistent offenders was tackled by the New Jersey courts. 

Specifically, the Supreme Court of New Jersey addressed the issue in Pierce, 188 N.J. 155, a case

substantively identical to Adamson’s scenario. 

In Pierce, the defendant, having been convicted of robbery and various weapon-related

charges was designated a persistent offender, under N.J. Stat. Ann. § 2C:44-3, and sentenced to

forty years with a sixteen-year parole ineligibility component. The defendant asserted that the

imposition of the extended term violated his Sixth Amendment rights because it involved an

impermissible judicial fact-finding as to the need to protect the public. When the Appellate

Division affirmed the defendant’s sentence, he sought certification from the Supreme Court of

New Jersey, which observed as follows:

[T]he specific judicial finding of “necessity to protect the public" added by

operation of Dunbar . . . , involves an evaluation of the “entire person of the

defendant before the sentencing court,” [State v. Dunbar, 108 N.J. 80, 91 (N.J.

1987), overruled by State v. Pierce, 188 N.J. 155 (2006)], and necessarily

encompasses a judicial assessment and finding that goes beyond the objective

facts of a defendant's criminal-conviction record. . . . [T]he judicial finding of

“need to protect the public” exceeds a mere finding of the existence of a prior

conviction. It is unlike an examination of the record of a prior conviction in order

to determine whether the earlier conviction qualifies as the type required by an

enhancement statute. . . . Rather, Dunbar's supplemental finding, from the

inception, contemplated an added factual assessment of the defendant's whole

person. See [State v.] Roth, 95 N.J. [334,] 360 [(1984)] (noting that central focus

in second-tier sentencing provisions of enhanced-term statutes is on offenderrelated characteristics) . . . . Thus, the “need to protect the public” finding does

not fit within the limits of the prior-conviction exception recognized in Blakely. . .

. The determination calls for a finding beyond the pure fact of the prior

conviction, and involves the very exercise of judicial discretion. See State v.

Foster, 109 Ohio St. 3d 1 (2006) (examining statutorily required judicial finding

of “need for protection of public" when sentencing repeat offenders and

concluding that that finding violates Apprendi and Blakely).

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 Where, within that range of sentences, the court chooses to sentence a defendant remains in 14

the sound judgment of the court--subject to reasonableness and the existence of credible evidence

in the record to support the court's finding . . . . On appellate review, the court will apply an

abuse of discretion standard to the sentencing court's explanation for its sentencing decision

within the entire range.

 

Pierce, 188 N.J. at 169-70.

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That said, in light of the Supreme Court's [Apprendi and Blakely] decisions, we

must . . . set in proper perspective the timing and purpose of the judicial factfinding related to the “need for protection of the public.” That finding is not made

until after a defendant has been determined to be subject, for Apprendi purposes,

to a sentence up to the maximum of the discretionary extended-term range based

on statutory eligibility as a persistent offender. The determination of the length of

sentence imposed on a defendant and whether that sentence should be within the

permissibly enhanced range are, and henceforth must be regarded as, separate and

distinct from the court's determination of the top of the entire range of sentences

to which a defendant is potentially subject as a persistent offender. The

sentencing court must first, on application for discretionary enhanced-term

sentencing under N.J. [Stat. Ann.] 2C:44-3(a), review and determine whether a

defendant's criminal record of convictions renders him or her statutorily eligible. 

If so, then the top of the range of sentences applicable to the defendant, for

purposes of Apprendi, becomes the top of the enhanced range. Thereafter,

whether the court chooses to use the full range of sentences opened up to the court

is a function of the court's assessment of the aggravating and mitigating factors,

including the consideration of the deterrent need to protect the public. 

Consideration of the protection of the public occurs during this phase of the

sentencing process. 

Pierce, 188 N.J. at 167-68 (emphasis added). 

In other words, the state courts’ position is that the right to Apprendi-mandated jury factfinding attaches only to the first step, i.e., the stage of determining the range of the sentence a

criminal defendant is exposed to; once it is established that the defendant is eligible for an

extended sentence, the sentencing judge, during the second step of sentencing, i.e., during the

actual imposition of an extended term, is entitled, under Apprendi, to make factual findings

supporting a prison term within the entire range of the sentence that starts from “the minimum of

the ordinary-term range and ends] at the maximum of the extended-term.” Id. at 169. 14

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It follows that Adamson’s Substantive Argument is wholly inapposite to the state courts’

position. Here, Adamson concedes that his persistent offender status rendered Adamson eligible

for a discretionary extended term. See Docket Entry No. 1-5, at 22; Docket Entry No. 6, at 13. 

In light of the state courts’ position in Pierce, that concession should have ended the inquiry. 

However, in his reply, Adamson further argues:

Contrary to the State’s assertion, Apprendi provided the rule, not new, which was

in effect during the pendency of Adamson’s direct appeal:

Other than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable doubt.

Apprendi v. New Jersey, 530 U.S. [at] 490 . . . . That rule is especially on point

here since Adamson, as Apprendi, was subjected to an extended term of

imprisonment . . . .

Docket Entry No. 6, at 10 (emphasis added). 

The excerpt suggests Adamson’s potential disagreement with the proposition that the

“statutory maximum” discussed in Apprendi could be construed, as it was done in Pierce, to

mean the “entire range” of sentence spreading from “the minimum of the ordinary-term range

and [to] the maximum of the extended-term,” Pierce, 188 N.J. at 169-70, i.e., that the language of

Apprendi inherently prohibits any merger of the term applicable to a particular offense with the

applicable extended term into an “entire range” spreading from “the minimum of the ordinaryterm range [to] the maximum of the extended-term.” If Adamson meant to so argue, his claim is

without merit. 

The constitutional guarantees of “trial. . . by an impartial jury,” U.S. Const.

amend. VI, and “due process of law,” U.S. Const. amend. V, stand as a bulwark of

individual liberty. . . . 

This principle is rooted in common law considerations of fundamental fairness. 

See, e.g., Blakely v. Washington, 542 U.S. 296, 301-02, 305-07, 311-12 . . . ;

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Apprendi, 530 U.S. at 476-77; Harris v. United States, 536 U.S. 545, 556-68

(2002) (plurality opinion). Individuals must be provided notice of the

consequences of their conduct. They must be informed of the nature of illegal

acts, . . . and of the possible sentences for those offenses upon conviction. See

Blakely, 542 U.S. at 301-02, 306-07, 311-12; Apprendi, 530 U.S. at 476-77, 489-

94; Harris, 536 U.S. at 556-68. An individual who is provided such notice and is

nevertheless found guilty by a jury beyond a reasonable doubt to have engaged in

illegal conduct has no grounds to complain when the maximum punishment

authorized by the legislature is meted out by a judge. See Blakely, 542 U.S. at

304-05, 309; Harris, 536 U.S. at 556-68. . . . 

Grier, 449 F.3d at 564-55 (emphasis added). 

This is a two-pronged inquiry. First the court must determine whether the provision at

issue expressly put the defendant on notice as to the existence of an extended term. If yes, then

the court must determine whether, under this provision, the fact that defendant’s eligibility for an

extended term requires a factual finding by a jury, pursuant to the holding of Apprendi. 

Here, New Jersey law provides an express notice to persistent offenders; that notice

reads: “[t]he court may . . . sentence a person who has been convicted of a crime of the first,

second or third degree to an extended term of imprisonment if it finds one or more of the grounds

specified in subsection a., b., c., or f. of this section. (a) The defendant has been convicted of a

crime of the first, second or third degree and is a persistent offender.” N.J. Stat. Ann. § 2C:44-

3(a). Section 2C:44-3(a) clearly meets the notice requirement: a persistent offender “provided

[with] such notice and found guilty by a jury [on the applicable underlying offense] has no

grounds to complain when the maximum punishment authorized by the legislature [and ranging

to the maximum extended term] is meted out by a judge.” Grier, 449 F.3d at 564-55.

In that sense, the notice aspect as to the maximum punishment ensuing from Section

2C:44-3(a) is qualitatively different from the notice aspect existing with respect to the maximum

punishment, which had been set forth in Section 2C:44-3(e) and was invalidated by the Supreme

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Court in Apprendi as constituting a separate offense subject to additional fact-finding by a jury. 

Additionally, here, Adamson admits that he was a persistent offender, and was thus subject to an

extended term on that basis. Wholly different from the facts of Apprendi, Adamson meets the

notice requirements set out in Grier. 

Consequently, Adamson simultaneously states two opposite positions, but only the one he

is conceding, i.e., the right of the trial judge to determine the fact of Adamson's eligibility, is

correct. Adamson's concession ends up this Court's § 2254 inquiry. The judicial fact-findings

made by Adamson's trial judge afterwards, i.e., the findings made in order to impose a particular

term selected by the judge from the “entire range” of the juxtaposed sentence, spreading from

“the minimum of the ordinary-term range [to] the maximum of the extended-term,” did not

violate the rule of Apprendi. The state courts decision to that effect in Pierce was not an

unreasonable application of the Supreme Court precedent. The Court, therefore, finds

Adamson's Substantive Argument without merit. Having no other claims raised by Adamson due

to Adamson's waiver of all other challenges, and being precluded by Section 2254's mandate

from raising any challenges that the Court discerns on its own, the Court dismisses the instant

Petition, with prejudice. 

V. Certificate of Appealability

The Court next must determine whether a certificate of appealability should issue. See

Third Circuit Local Appellate Rule 22.2. The Court may issue a certificate of appealability only

if the petitioner “has made a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2).

When a court denies a habeas petition on procedural grounds, the prisoner must

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demonstrate that jurists of reason would find it debatable: (1) whether the petition states a valid

claim of the denial of a constitutional right; and (2) whether the court was correct in its

procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural

bar is present and the district court is correct to invoke it to dispose of the case, a reasonable

jurist could not conclude either that the district court erred in dismissing the petition or that the

petitioner should be allowed to proceed further.” Id. Further, to the extent that the Court may

have determined subtle nuances of claims that were not fully exhausted in the state proceedings

on the merits, 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), but “[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, the Petition has failed to make a substantial showing of the denial of a

constitutional right to Adamson, and the Court is persuaded that jurists of reason would not

disagree as to this conclusion. Therefore, no certificate of appealability will issue.

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CONCLUSION

For the foregoing reasons, this Court dismisses the Petition and denies Adamson a writ of

habeas corpus, pursuant to 28 U.S.C. § 2254. No certificate of appealability will issue, pursuant to

28 U.S.C. § 2253(C)(2). An appropriate order accompanies this Opinion.

s/Peter G. Sheridan 

PETER G. SHERIDAN, U.S.D.J. 

Dated: July 30, 2009

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