Petitioner,

V. OPINION

GREG BARTKOWSKI, et al.,

Respondents.

APPEARANCES:

CHRISTOPHER A. STOKES, Petitioner pro se

528037/277181CNew Jersey State PrisonP.O. BOX 861

Trenton, N.J. 08625

STEPHANIE PAIGE DAVIS-ELSON, Counsel for Respondents

Hudson County Prosecutor’s Office595 Newark Avenue

Jersey City, N.J. 07306

MCNULTY, District Judge

Petitioner Christopher Stokes (“Petitioner”), a prisoner currently confined

at New Jersey State Prison in Trenton, New Jersey, has submitted a petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondents areAdministrator Greg Bartkowski and the Attorney General of New Jersey.

Petitioner has also moved to amend his Petition to include two additional

grounds for habeas relief. For the reasons stated below, the Petition and the

motion are denied.
appropriate deference, see 28 U.S.C. § 2254(e)(1),’ will simply reproduce the

recitation of facts as set forth by Superior Court of New Jersey, Appellate

Division, on direct appeal:

Fred Plaza and Charlie Arrazo, were employed by Astro Enterprises

van, selling sets of speakers to the general public. On May 29, 2002,

Plaza was driving the van, Arrazo was sitting in the front passenger

seat, and the back of the van contained eight sets of speakers. They

drove the van into Jersey City, and while stopped at a red light on

Route 440, they offered to sell a pair of speakers to two black men in

a silver Daewoo. The van and Daewoo pulled into the parking lot of a

shopping center in order for the occupants to continue negotiations.

The victims described the driver of the Daewoo, later identified as

Henry Steed, as skinny, and the passenger, later identified asco-defendant William Gilliam, as heavier. In the shopping centerparking lot, Plaza negotiated with Gilliam for about a half an hour,resulting in an agreed-upon sale price of $750 for a set of speakers.

As Gilliam claimed he had only $500 on him, Plaza and Arrazo

agreed to follow the two men to Gilliam’s sister’s house for him to

retrieve the additional money.

Plaza drove the van closely behind the Daewoo through Jersey City.

As a precaution, Plaza memorized the license plate number on the

Daewoo. The Daewoo came to a stop on Broadman Parkway, a

two-way residential street. Plaza parked the van behind the Daewoo.

‘Pursuant to 28 U.S.C. § 2254(e)(1), “In a proceeding instituted by an application

for a writ of habeas corpus by a person in custody pursuant to the judgment of a State

court, a determination of a factual issue made by a State court shall be presumed to be

correct. The applicant shall have the burden of rebutting the presumption of correctness

by clear and convincing evidence.” See Williams v. Beard, 637 F.3d 195, 204 (3d Cir.

2011) (citing Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996) (deference to factual

determinations of state courts, both trial and appellate)).
along-side the van. Plaza then felt a gun pointed at the back of hishead. The man holding the gun to Plaza’s head was the man with thedreadlocks, later identified as defendant, who had approached

Gilliam outside the Daewoo moments before. He told Plaza that he

was a “cop” and not to move or he would blow his head off. Gilliam

then put his hands on Arrazo’s neck and ordered him out of the van.

When all four men were on the curb next to the van, Gilliam took a

cell phone and approximately $100 in cash from Arrazo.

As this was taking place, Patrolman (Ptl.) King and Ptl. Tedesco of

the Jersey City Police Department were traveling in a marked policecruiser on Broadman Parkway. They observed the Eclipsedouble-parked and stopped to issue a ticket. Defendant saw thepolice approach. Gilliam told Arrazo to be “cool” and to act like they

were “hanging out.” Then defendant threw the gun he had been

holding into the van and got into the Eclipse. Gilliam got into the van

and drove off. The Eclipse followed. Ptl. King then activated hisoverhead lights and pulled the Eclipse over as it turned the corner

onto Westview Court.

As the officers approached the vehicle, Plaza and Arrazo ran up to

the officers, shouting that one of the men had a gun and had robbed

them. Ptl. King drew his service weapon and ordered the driver out

of the car. Plaza and Arrazo identified defendant as the armedindividual and defendant was arrested at the scene. Cash in the

amount of $175 was found in defendant’s front pants’ pocket. When

the police checked the vehicle for a weapon, five vials of cocaine and

$640 in cash were recovered from the center console. The Eclipse

was registered to defendant.

At the police station, both Plaza and Arrazo again identified

defendant in the holding cell. Plaza provided the officers with the

license plate number of the Daewoo. The Daewoo was registered toBeatrice McClory and was located by the police in close proximity to

McClory’s home. The victims were then taken to the Daewoo, wherethey identified the vehicle as the one they had followed onto

Broadman Parkway.

3
stated he left the scene as soon as he saw the driver of the Eclipse

pull a gun on Plaza. The State submitted at trial that Steed was thethin man who drove the Daewoo to Broadman Parkway.

Steed identified a photograph of co-defendant, Gilliam, as “Speed,”the heavier man in the Daewoo. Steed also identified defendant from

a photograph as the gunman. At trial, Steed maintained he never

read the statement and merely signed it because he was told it

reflectedwhatthe-victimsto1dthe poli ardhewassuredthat if

he signed the statement and identified the photographs, he could go

home without being charged. The van was eventually recovered,

however the sets of speakers and the gun were not. No fingerprints

lifted from the Daewoo matched Gilliam’s fingerprints.

State v. Stokes, 2006 WL 3345284, at *1 (N.J. Super. Ct. App. Div. Nov. 20,2006).

On November 18, 2004, after a jury trial, Petitioner was found guilty of the

following: count one, first-degree armed robbery, contrary to N.J. Stat. Ann. §

2C: 15- 1; count two, first-degree carjacking, contrary to N.J. Stat. Ann. §

2C: 15-2; count three, third-degree theft by unlawful taking, contrary to N.J.

Stat. Ann. § 2C:20—3; count four, third-degree unlawful possession of a weapon,

contrary to N.J. Stat. Ann. § 2C:39-5b; count five, second-degree possession of a

weapon for an unlawful purpose, contrary to N.J. Stat. Ann. § 2C:39-3a and

count eight, third-degree possession of CDS, contrary to N.J. Stat. Ann. §

2C:35-lOa(1). Id. On June 3, 2005, the court granted the State’s motion to

sentence Petitioner to a mandatory extended term pursuant to N.J. Stat. Ann. §

4
Division upheld his conviction and sentence. Id. The Supreme Court of New

Jersey denied his petition for certification on February 15, 2007. State v. Stokes,

917 A.2d 787 (N.J. 2007). Petitioner filed a petition for post-conviction relief

(“PCR”) and on August 11, 2008, the state court denied that PCR petition.

(Resp’t’s Br., Ex. 28, PCR Order, Aug. 11, 2008). The Appellate Division affirmed

the denial of PCR relief. State v. Stokes, 2010 WL 3075664 (N.J. Super. Ct. App.

Div. August 02, 2010). On January 7, 2011, the New Jersey Supreme Courtdenied certification. State v. Stokes, 12 A.3d 210 (N.J. January 07, 2011).

Thereafter, Petitioner filed this petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254. (Docket Entry No. 1). He raises the following grounds for relief:

1. The trial court’s denial of the defense motion to sever the

narcotics charges deprived Petitioner of a fair trial.

2. The admission of testimony regarding alleged threats made to akey state’s witness without a limiting instruction deprived Petitionerof a fair trial.

3. The trial court’s accomplice liability instruction was inadequatethereby depriving Petitioner of a fair trial.4. The prosecutor impermissibly commented on Petitioner’s failure

to testify at trial.

5. Trial counsel was ineffective for failing to make a motion tosuppress the evidence seized from the Mitsubishi.

5
burden to demonstrate entitlement to habeas relief. 2(Docket Entry No. 9).

Petitioner filed a reply. (Docket Entry No. 14).

B. Motion to Amend the Petition

On January 31, 2013, almost two years after he filed the initial petition

ao&yea tehe filed hip1yPetn-ffledthet-motio,

(Docket Entry No. 16), seeking to bring two additional grounds for habeas relief:

(1) trial counsel was ineffective for failing to argue that Petitioner could not be

sentenced to an extended term for carjacking and (2) appellate counsel was

ineffective for failing to challenge Petitioner’s sentence on the same ground on

appeal. Respondents filed an opposition, arguing that Petitioner’s claims areprocedurally barred. (Docket Entry No. 18). Petitioner filed a reply. (Docket Entry

No. 19).

2 Respondents also raised untimeliness of the petition as an affirmative defense.

Both Respondents and Petitioner make reference to a “motion to file a notice of appeal aswithin time,” which apparently included a certification from counsel, that Petitioner filed

in the Appellate Division regarding his PCR petition. (See Pet’r’s Reply 2; Resp’t’s Answer

58). It appears that the motion was granted, but neither party provided this Court with

the motion papers or the order. Since this Court is denying the petition on the merits, it

will not require the parties to supplement the record.

6
(a) The Supreme court, a Justice thereof, a circuit judge, or a

district court shall entertain an application for a writ of habeas

corpus in behalf of a person in custody pursuant to the judgment of

a State court only on the ground that he is in custody in violation of

the constitution or laws or treaties of the United States.

(b)( 1) An application for a writ of habeas corpus on behalf of a person

incustody pursuan to-the-judgmen1-ofa-S+ate eourt-shalIn&tbe----—--

granted unless it appears that--

(A) the applicant has exhausted the remedies available in the courts

of the State; or

(B)(i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to

protect the rights of the applicant.

(2) An application for a writ of habeas corpus may be denied on the

merits, notwithstanding the failure of the applicant to exhaust theremedies available in the courts of the State.

(d) An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be

granted with respect to any claim that was adjudicated on the meritsin State court proceedings unless the adjudication of the claim--

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

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

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

determination of the facts in light of the evidence presented in the

State court proceeding. . .

7
[Supreme Court] cases,

or 

if the state court confronts a set of facts that are

materially indistinguishable from a decision of this Court and nevertheless

arrives at a result different from [the Court’s] precedent.” Williams v. Taylor, 529U.S. 362, 405-06 (2000). A state court decision “involve[s] an unreasonable

rule from [the Supreme] Court’s cases but unreasonably applies it to the facts of

the particular state prisoner’s case.” A state court decision may involve an

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

extends a legal principle from [the Supreme Court’s] precedent to a new context

where it should not apply or unreasonably refuses to extend that principle to a

new context where it should apply” (although the Supreme Court expressly

declined to decide the latter). Id. at 407-09. To be an “unreasonable application”of clearly established federal law, the state court’s application must be

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

application of Supreme Court precedent was objectively unreasonable, a habeas

court may consider the decisions of inferior federal courts. Matteo v.

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

An adjudication by the state court on the merits of a claim, however

summary, is entitled to § 2254(d) deference. Chadwick v. Janecka, 312 F.3d 597,

8
Hendricks, 2000 WL 1523144, *6 n.4 (D.N.J. 2000). In such a case, “the federal

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

questions of law and fact, as a court would have done prior to the enactment of

AEDPA.” Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001) (citing McCandless v.

Vaughn, 172 F.3d 255, 260 (3d Cir. 1999)). “However, § 2254(e)(1) still mandates

that the state court’s factual determinations are presumed correct unless

rebutted by clear and convincing evidence.” Appel, 250 F.3d at 210.

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

state court explicitly cited the relevant Supreme Court or other federal case law,

“as long as the reasoning of the state court does not contradict relevant Supreme

Court precedent.” Priester v. Vaughn, 382 F.3d 394, 398 (3d Cir. 2004) (citing

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

B. Analysis

1. Severing Narcotics Charges

In Ground One of the petition, Petitioner argues that he was denied his

right to a fair trial when the trial court denied defense counsel’s motion to sever

the drug charges from the other charges brought against Petitioner.

Petitioner raised this argument on direct appeal and the Appellate Division

9
and the denial constitutes an abuse of the trial court

s discretion.

Defendant argues that the evidence from the drug charge would not

have been admitted as other crimes evidence pursuant to N.J.R.E.

404(b) if the carjacking charge alone had been tried. The State

submits that the denial of the severance motion, filed after the

commencement of jury selection, was a sound exercise of the trial

court’s discretion and that defendant was not prejudiced, as the

defen-se- utilized— the- -prcscncc --of-rugs--in--fendan-t’s---ear --as- adefense to the more serious charges.

‘A motion for separate trial of counts of an indictment must be made

pursuant to Rule 3:10-2, unless the court for good cause shown,

enlarges the time.’ R. 3:15-2(c). Rule 3:10-2(a) requires that at thearraignment/status conference, counsel shall advise the court of

counsel’s intention to file a severance motion, and at the conferencethe court shall set “dates for filing, briefing and for the hearing” of

such motion. The court may permit a motion to be made thereafter

for “good cause and in the interest of justice.” 4; R. 3:15-2(c).

Failure to make such a motion constitutes waiver from which thecourt may grant relief. State v. Del Fino, 100 N.J. 154, 160 (1985).

In this case, the judge stated:

Airight, obviously this issue comes very late in the

game. The jury-potential jury having already been

advised that there are narcotics charges pendingagainst the defendant. It would, I think serve littlepurpose to sever them even if severance was

appropriate based upon the reasoning in support of theapplication.

The judge noted that the drug charges arose out of

contemporaneous events as the narcotics were alleged to be in the

possession of defendant at the time of his arrest for the carjacking.

Additionally, defendant’s motion to sever was made after the jury

panel had been read the charges and as jury selection had begun.

10
Although there is preference for joinder, Rule 3:15-2(b) vests a trial

court judge with discretion to grant or deny a motion to sever counts

of an indictment. State v. Oliver, 133 N.J. 141, 150 (1993). Thus, the

decision of the trial court can be reversed only if the appellate court

finds an abuse of discretion. State v. Chenique-Puey, 145 N.J. 334,

341 (1996); State v. Mance, 300 N.J. Super. 37, 53 (App. Div. 1999).

Additionally, the court’s decision to deny defendant’s motion is

entitled to great deference on appeal. Id.

Our review of the record convinces us that defendant was notprejudiced by the denial of his motion to sever. Counsel for both

defendants used the possession of drugs in the Eclipse to their

advantage, attempting to discredit Plaza and Arrazo as drug buyers

rather than legitimate speaker salesmen.

Further, we are satisfied that severance would not have resulted inacquittal. Defendant conceded defendant’s possession of cocaine

and used it in his defense against the more serious charges. Theevidence of carjacking was equally sound. Defendant was arrested

at the scene by officers who were in the process of issuing him aticket for double-parking. The victims signaled to the officers that

they had been carjacked at gunpoint, and identified defendant at the

scene. The testimony of the victims was unequivocal as to the

defendant’s identity and his role in the armed carjacking. Therefore,

although we are satisfied that the court’s denial of the late motiondid not constitute an abuse of discretion, if there were any error, it

was harmless. See State v. Macon, 57 N.J. 325, 337-38 (1971).

State v. Stokes, 2006 WL 3345284, at *34 (N.J. Super. Ct. App. Div. Nov. 20,

2006).

The U.S. Supreme Court has observed that “[ijmproper joinder does not, in

itself, violate the Constitution. Rather, misjoinder would rise to the level of a

constitutional violation only if it results in prejudice so great as to deny a

11
or innocence. Such a risk might occur when evidence that the jury should not

consider against a defendant and that would not be admissible if a defendant

were tried alone is admitted against a codefendant. . . . [Less drastic measures,

such as limiting instructions, often will suffice to cure any risk of prejudice.”

Zafiro v. United States, 506 U.S. 534, 539 (1993). Moreover, as the Supreme

Court observed in the context of severance of defendants, “a fair trial does not

include the right to exclude relevant and competent evidence.” at 540 (citation

and internal quotation marks omitted).

Even setting aside Petitioner’s apparent procedural default under state

law, this discretionary denial of severance does not rise to the level of a

constitutional violation. The joinder of the narcotics charges with the others

allowed the state to present the full chronology of related events, and avoided theneed to repeat evidence at separate trials. It did not compromise any specific trial

right of Petitioner or prevent the jury from reliably judging Petitioner’s guilt or

innocence. As noted by the state court, Petitioner used the possession of the

cocaine to his advantage in his defense against the other more serious charges.

Moreover, the evidence of carjacking, which included a contemporaneous

identification by the victims, was very substantial, rendering any arguable error

12
Jersey courts’ adjudication of this claim was not contrary to, or an unreasonable

application of, Lane or other Supreme Court holdings. Indeed, it appears to trackthe manner in which the federal courts have interpreted such holdings. See

Cummings v. Sirmons, 506 F.3d 1211, 1239 (10th Cir. 2007) (where “it seems

inconceivable that the State could have prosecuted Cummings for Melissa’smurder without being permitted to provide the jury with some evidence

regarding the events leading up to Melissa’s death,” failure to sever was not

unreasonable application of Lane); Comer v. Schiriro, 463 F.3d 934, 957-59 (9th

Cir. 2006) (state death penalty trial was not rendered fundamentally unfair by

joinder of homicide count with kidnapping, robbery and sexual assault charges,

since some evidence was admissible as to all counts, jury instruction limited

prejudice, and evidence relating to all counts was strong); Herring v. Meachum,

11 F.3d 374, 377-78 (2d Cir. 1993) (“where a defendant is claiming a due process

violation based upon joinder of offenses, he must, to succeed, go beyond the

potential for prejudice and prove that actual prejudice resulted from the eventsas they unfolded during the joint trial”).

2. Jury Instructions

The Petitioner challenges a trial court instruction to the jury regarding the

13
state criminal proceeding,

[tjhe only question for us is “whether the ailing instruction by itself

so infected the entire trial that the resulting conviction violates due

process.” It is well established that the instruction “may not be

judged in artificial isolation,” but must be considered in the context

of the instructions as a whole and the trial record. In addition, in

reviewing an ambiguous

is a reasonable likelihood that the jury has applied the challenged

instruction in a way” that violates the Constitution. . . . “Beyond the

specific guarantees enumerated in the Bill of Rights, the Due

Process Clause has limited operation.”

Estelle, 502 U.S. at 72—73 (citations omitted). Most pertinently, the Due ProcessClause would be violated if an erroneous instruction rendered the trial as a

whole unfair or “operated to lift the burden of proof on an essential element of an

offense as defined by state law.” Smith v. Horn, 120 F.3d 400, 416 (1997). ç..ç

also In re Winship, 397 U.S. 358, 364 (1970) (“the Due Process Clause protectsthe accused against conviction except upon proof beyond a reasonable doubt

...“); Sandstrom v. Montana, 442 U.S. 510, 523 (1979) (jury instructions that

suggest a jury may convict without proving each element of a crime beyond a

reasonable doubt violate the Constitution).

a. Prior Statements

Petitioner argues that he was deprived of a fair trial by the admission,

without adequate limiting instructions, of testimony that a key State witness,

14
testimony of Detective Casio and Assistant Prosecutor Lane that

Steed received telephone calls that were threatening in nature and

compounded the error by not giving a N.J.R.E. 404(b) limitinginstruction.

Steed gave two statements. The first was Steed’s signed statement to

police in the early morning hours of May 30, 2002, less than twelvehours after the carjacking. This statement was admitted as

-substantive evidence pursuant-to -N.J;RE. 8O-3aff). Phe second

statement, given November 10, 2004, involved threats against

Steed. After conducting a N.J.R.E. 401 hearing, the court admitted

the second statement. The statement was not admitted to prove thatthreats had, in fact, been made but as a prior inconsistent

statement to show that Steed feared for his and his family’s safety

should he testify, as a result of having received several anonymous

telephone calls.

The court admitted the statement for the purpose of permitting the

jury to evaluate the credibility of Steed and the veracity of his

statement. There was nothing in the statement to suggest that either

defendant or Gilliam made the telephone calls, nor was there anyother evidence of the identity of the callers. Further, neitherdefendant was charged with witness tampering.

3 To the extent Petitioner is challenging the admission of this testimony under

state rules of evidence itself, habeas reliefwould necessarily be denied. The violation of a

right created by state law is not cognizable as a basis for federal habeas relief. Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991) (‘We have stated many times that ‘federal habeas

corpus relief does not lie for errors of state law.’” (quoting Lewis v. Jeffers, 497 U.S. 764,680 (1990))). Even if an error of state law underlay the evidentiary ruling, Petitioner

could not obtain relief unless the ruling rose to the level of a deprivation of due process.

To prevail on such a claim, a habeas petitioner must show that the error was so

pervasive as to have denied him a fundamentally fair trial. Keller v. Larkins, 251 F.3d

408, 413 (3d Cir. 2001). Petitioner has made no such showing here.

15
been responsible for the calls being made. Defendant, therefore,

contends that the statement must be evaluated pursuant to

N.J.R.E. 403 and must be excluded because “its probative value is

substantially outweighed by the risk of undue prejudice.

The burden to prove that N.J.R.E. 403 considerations should

control is on the party seeking exclusion. Biunno, Current N.J.

Rules of Evidence, comment on N.J.R.E. 403 (2006). The trial court

has broad discretion in performing a-RuleO&balancing test; fbM;”

“Determinations by the trial court pursuant to Rule 403 will not be

overturned on appeal unless it can be shown that there was apalpable abuse of discretion, a ‘finding so wide off the mark that a

manifest denial of justice resulted.” Ibid. (quoting Green v. New

Jersey Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). We find no abuse of

discretion here.

Defendant contends, however that a proper limiting instruction in

the court’s charge to the jury was necessary in order to avoid thepossibility of undue prejudice to defendant. However, no charge wasrequested by counsel.

The court instructed the jury as to the appropriate criteria to be

utilized in assessing Steed’s inconsistent statements to the police as

follows:

Now as far as Mr. Steed is concerned, his testimony as I

recall it and once again I caution you, it’s yourrecollection and not mine that determines the facts. As I

recall it, he indicated on the stand that the statement he

signed did not contain his words but were merely the

police rendition of the victim’s statement to them and

that he signed them only to indicate he was not involved

in the robbery. He also denied stating to Assistant

Prosecutor Lane that as a result of several phone callsthat he received he was fearful that his testimony at

trial would endanger the safety of himself and his

family.

16
of the following relevant. First Henry Steed’s connectionto and interest in the matter reported in the prior

statement.Second, the person or persons to whom he gave thestatement.

Third, the place and occasion of the giving of the

Fourth, that Henry Steed was then in custody or

otherwise a target of the investigation.

Fifth, the physical and mental condition of Henry Steed

at the time.

Sixth, the presence or absence of other persons.Seventh, whether Henry Steed incriminated himself orsought to exculpate himself by the statement.Eighth, whether a writing is in a person’s handwriting.Ninth, the presence or absence and the nature of any

interrogation.

Tenth, whether a writing contains all or only a portion

or somewhat of what Henry Steed said.

Eleventh, the presence or absence of any motive to

fabricate.

Twelfth, the presence or absence of any explicit or

implicit pressure, inducement or coercion to make amistake.

Thirteenth, whether the use to which the authorities

17
evidence .

Now I further instruct you that a witness’ prior

inconsistent statement under police interrogation mustbe carefully examined and assessed in light of all the

surrounding circumstances including his interest in

giving the statement at that time.

Steed’s statement was incorrect, only that Steed’s second

inconsistent statement as to the threats allegedly made should have

been treated in a more particularized way.

We are satisfied that the court’s general instruction respecting

Steed’s inconsistent statements was correct. Although the court did

not directly address the fact that Steed never identified the caller as

one of the co-defendants and that the jury should not assume the

caller was one of them, we are convinced that the failure to so charge

did not subject defendant to unfair prejudice and was not clearly

capable of producing an unjust result. This is particularly true given

the overwhelming evidence against defendant based on the victims’

eyewitness identification of defendant at the scene. Macon,

supra, 57 N.J. at 337-38; R. 2:10-2.

State v. Stokes, 2006 WL 3345284, at *5...6 (N.J. Super. Ct. App. Div. Nov. 20,2006).

Steed was a recanting witness who contradicted at trial his signed,

seven-page post-arrest statement, which described the crime and inculpated the

defendants. He also denied at trial that he had, in the interim, received

4 These factors were seemingly adopted from State v. Gross, 216 N.J. Super. 98,

109-110, 523 A.2d 215 (App. Div. 1987), affd, 121 N.J. 1, 10, 577 A.2d 806 (1990).

18
testify. 5 Petitioner’s challenge focuses on the second statement about the

threats.

At a Rule 104 hearing out of the presence of the jury, an Assistant

Prosecutor, Lane, and a Detective, Casio, testified that approximately a week

earlier, Steed had told them that he had received six threatening telephone calls,

and that he feared for his safety and that of his family. When he described the

phone calls, Steed allegedly cried. He referred to someone being on the top ten

most wanted list in Essex County and he acknowledged being afraid to testify.

(11/16/2004 Trial Tr. at pp. 83-133). At the time of trial, Steed denied having

made such statements to Lane and Casio, and denied the substance of the

statements. The trial judge ruled that Lane or Casio could testify to Steed’s

inconsistent earlier statements about the threatening phone calls. The judge,

The State court’s analysis to some extent seems to have lumped the two

statements together, analyzing them as components of a prior inconsistent statement

for purposes of N.J.R. Evid. 803(a)(1); see also N.J.R. Evid. 607. Evidence of Steed’s

statements that he had received telephone threats and was therefore afraid of testifyingdid not necessarily come in either as substantive evidence or as an ordinary prior

inconsistent statement. It would have been admissible as impeachment of Steed’stestimony or bias evidence to explain Steed’s recantation of his post-arrest statement. It

might also have been independently admissible over a hearsay objection as a statement

of the declarant’s then-existing emotional condition, pursuant to N.J.R. Evid. 803(c)(3).

As noted above, however, the statement’s admissibility, or not, under state evidentiary

law is not relevant to whether it constitutes grounds for federal habeas relief.

19
calls went to their weight, not their admissibility, and that they could be used by

the prosecution to explain why Steed had backed off the inculpatory statementhe had given. (Id. at 139-41). On direct examination, Steed did indeed deny that

he had been threatened. (Id. at 160) In accordance with the trial court’s ruling,

Assistant Prosecutor Lane testified briefly that Steed reported the threatening

phone calls to himself and Casio, and that Steed was fearful of testifying.

(11/17/2004 TrialTr. at 145-47).

Petitioner’s objection to all of the foregoing is actually quite narrow. He

objects to the trial court’s 15-part instruction to the jury as to how they shouldcarefully consider and weigh out of court statements. According to the Petitioner,

this instruction should also have included an admonition that the threats beconsidered solely for the purpose of explaining Steed’s change of story. Petitioner

also objects that the calls were not specifically linked to the Petitioner.

This error, if it was an error, did not rise to the level of a due process

violation requiring federal habeas relief. The purpose of the testimony -

explaining Steed’s recantation and undermining his denials of what he hadearlier stated -was a proper one. That specific purpose would have been fairly

apparent to the jury with or without an instruction from the judge. Evidence of a

20
precedential support for admission of extrinsic evidence of witness’s bias);

United States v. Green, 617 F’.3d 233, 251 (3d Cir. 2010); United States v.

Martinez, 962 F.2d 1161, 1165 (3d Cir. 1992). Extrinsic evidence thatcontradicts the material testimony of a witness as to a specific, relevant fact is

also admissible, even if it would have been inadmissible to impeach a witness’s

general credibility. United States v. Console, 13 F.3d 641, 661-62 & n. 19 (3d Cir.

1993), cert. denied, 511 U.S. 1076, 513 U.S. 812 (1994); United States v. Calle,

822 F.2d 1016, 1021 (11th Cir. 1987). Because such evidence is highly relevant

to the finder of fact, it has not been held to violate the Rules of Evidence, let alone

the due process clause. Whatever may be said about this evidence, its admission

did not rise to the level of violating clearly established United States Supreme

Court case law, which is the threshold for habeas relief.

6 State practice diverges somewhat from federal practice in this regard,

particularly as to the use of extrinsic evidence to impeach a party’s own witness. E.g.,

compare Fed. R. Evid. 607 (any party may impeach witness) with N.J. R. Evid. 607

(imposing additional requirements). The differences are not pertinent to federal habeas

relief.

21
not tip the balance. This evidence was introduced not to accuse the Petitioner of

making threatening calls but to explain that Steed had changed his testimony

out of fear. Neither the judge nor the attorneys for either side ever suggested

anything to the contrary. No defendant, let alone Stokes specifically, was

accused of placing the threatening calls. Steed had already said in his

post-arrest statement, which was before the jury, that he was afraid of “Speed”

(i.e. Gilliam), not Stokes; this secondhand evidence about the telephone calls

was therefore somewhat cumulative. In summation the prosecutor, while

referring to Steed’s having been threatened, cited only Steed’s post-arrest

statement; the prosecutor did not mention the threatening phone calls at all,

which tends to suggest that they were not regarded as an important component

of the government’s case. Defense counsel touched on this telephone call

evidence only briefly, to suggest ironically that it was absurd to suggest “that wehad something to do with it.” (11/18/2004 Trial Tr. at 35). In short, there was no

evidence linking Petitioner to the phone calls; the prosecutor never said therewas; and defense counsel pointed out that there wasn’t. There was no

constitutional error merely because the judge did not jump on this bandwagon.

The trial court’s instructions, if not as complete as Petitioner would have

22
of impeaching Steed’s recantation of his post-arrest statement. Particularly in

the context of all of the other very potent evidence against Petitioner, any error in

the manner in which this evidence was admitted was necessarily harmless.

b. Accomplice liability

In Ground Three of his petition, Petitioner argues that the trial court failed

to properly instruct the jury regarding accomplice liability. Petitioner raised this

claim on direct appeal, and the Appellate Division resolved it as follows:

Defendant next argues that the trial court’s charge with respect to

accomplice liability was inadequate. Specifically, defendant asserts

that since count one involved a charge of first-degree robbery andthe lesser-included offense of second-degree robbery the trial courterred in not instructing the jury in accordance with Model Jury

Charge No. Two, which refers to a situation where a defendant ischarged as an accomplice and the jury is instructed as to thelesser-included charges. Defendant argues that the jury shouldhave been expressly informed that the parties who participated in

the charged criminal offenses could be found guilty of different

degrees of the offenses, depending on their own actions, theirrequisite states of mind, and that an accomplice could be guilty of alesser-included offense compared to the offense to which the

principal was found guilty. Defendant thus contends that the jury

was not adequately instructed as to how it should apply accomplice

liability principles to each defendant as it related to each offense.

The objection was not raised below. However, because the error

complained of involves the elements of the crimes charged, we mustreverse unless the instruction as a whole adequately conveyed the

essential elements for defendant’s conviction. See State v.Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993).

23
The trial court explained accomplice liability to the jury as follows:

Now there’s one thing I need to explain to you at this

point and that is the law at times will make one personresponsible or liable for the conduct of another person.

So it’s not only your own conduct that sometimes the

law will hold you accountable for, but there areinstances when the law will make you responsible for

--theeonde ef-anoher-per-son - The law here in New Jersey is a person is guilty of an

offense if it is committed by his own conduct or the

conduct of another person for which he is legallyaccountable or both, okay?

A person is legally accountable for the conduct of

another person when he’s an accomplice of such otherperson in the commission of the offense. A person is an

accomplice of another person in the commission of an

offense if, with the purpose of promoting or facilitatingthe commission of the offense, he solicits the otherperson to commit the offense or aids or agrees or

attempts to aid such other person in planning orcommitting the offense, okay? Everybody understand

what we mean by that?This provision of law means that not only is the person

who actually commits the criminal act responsible for

it, but one who is legally accountable as an accompliceis also responsible as if he committed the crime himself.

Okay? Everybody understand that?

The trial court then gave illustrative examples of accomplice liability

that demonstrated a shared purpose to commit the crime wasrequired for conviction:

In Bielkiewicz, we determined that “a jury must be instructed that to

24
established if the defendant 

agreed to assist [codefendant] in the

commission of an offense with a full knowledge and a shared

purpose.” The judge also instructed that liability required proof that

to be an accomplice defendant had “to have the same purpose, a

shared purpose and you must agree to either commit or assist or

help [codefendant] in committing the crime.”While portions of this instruction read in isolation suggest that -— enough, we are convinced that the instruction read as a whole could

not have misled the jury. The elements of each crime were stated

and the judge told the jurors that the State was required to prove a

shared purpose to commit the crime. We are satisfied that the

court’s accomplice liability charge adequately communicated that

each defendant was guilty only of the crimes in which they had a

shared purpose or intent. Additionally, we are satisfied that the

examples the judge gave in connection with his accomplice liability

instruction made the necessary elements clear, despite the fact that

he never used the model jury instruction language, “the State mustprove it was defendant’s conscious object that the specific conduct

charged be committed.” Model Jury Charge (Criminal), § 2C:2—6.

We are satisfied that the charge as a whole properly instructed the

jury on the concept of accomplice liability and, therefore, there was

no error in the court’s charge.

State v. Stokes, 2006 WL 3345284, at *6..8 (N.J. Super. Ct. App. Div. Nov. 20,

2006).

In Waddington v. Sarausad, the Supreme Court rejected a habeas

petitioner’s claim that an accomplice liability instruction violated due process.

555 U.S. 179 (2009). In doing so, the Court summarized the law regarding

standards governing federal court review of the constitutionality of state court

25
[2] that there was” ‘a reasonable likelihood’ “that the jury applied

the instruction in a way that relieved the State of its burden ofproving every element of the crime beyond a reasonable doubt.

In making this determination, the jury 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.” Estelle, supra, at

72Beausetis-notengh-thathere see lightpossibilithat the jury misapplied the instruction, Weeks v. Angelone, 528

U.S. 225, 236 . . . (2000), the pertinent question “is ‘whether the

ailing instruction by itself so infected the entire trial that the

resulting conviction violates due process,” Estelle, supra, at 72, 502

U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (quoting Cupp, supra, at

147, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368).

Id. at 190-91 (bracketed numbers and line breaks added; citations and internal

quotation marks omitted); Williams v. Beard, 637 F.3d 195, 223 (3d Cir. 2011)

(citing the two-step test from Waddington, supra, and noting that the due

process analysis “depends as much on the language of the court’s charge as it

does on the particularities of a given case”).

Here, Petitioner does not show that there was a reasonable likelihood that

the jury applied the instructions in a way that relieved the state of its burden of

proving the elements of accomplice liability. Indeed, I agree with the State

appellate court that the instructions, taken as a whole, adequately conveyed to

the jury that the offense had a lesser-included second degree offense and that, tobe found guilty as an accomplice, Petitioner had to share in the principal’s

26
particular phrasing, as opposed to the overall thrust, of the instructions does not

set forth a fundamental due process defect that would give rise to habeas relief.Nor does he point to any Supreme Court holding that would be violated by thefailure to deliver the particular Model Jury Instruction that he would prefer.

Petitioner has not shown that the state courts’ adjudication of his claims

challenging the lack of limiting instruction regarding the threatening phone calls

and the instructions as to accomplice liability were contrary to, or an

unreasonable application of, Supreme Court precedent. He is not entitled to

habeas relief on these grounds.

3. Prosecutoi’s Comments

In his fourth ground for relief, Petitioner argues that the prosecutor, in her

closing argument, posed questions to the jury and then answered them “in a

fashion which supported the State’s theory of the case,” a rhetorical strategy that

allegedly highlighted Petitioner’s decision not to testify. Petitioner raised this

argument on direct appeal.

Defendant also argues that the State’s summation included

improper remarks, which implicated his Fifth Amendment right not

to testify. The State asserts that the remarks were drawn onpermissible inferences from the facts adduced at trial. We are

satisfied from our thorough review of the prosecutor’s summationthat defendant’s argument is without merit and does not warrant

27
statement, “[t]he relevant question is whether the prosecutor’s comments ‘so

infected the trial with unfairness as to make the resulting conviction a denial of

due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly

v. DeChristoforo, 416 U.S. 637 (1974)). Even on direct appeal, a comment on

defendant’s silence will not be presumed; the court will not lightly infer that the

jury drew the most damaging possible meaning from the prosecutor’s remarks.

See Donnelly, 416 U.S. at 647. In addition, “Supreme Court precedent counsels

that the reviewing court must examine the prosecutor’s offensive actions incontext and in light of the entire trial, assessing the severity of the conduct, the

effect of the curative instructions, and the quantum of evidence against the

defendant.” Moore v. Morton, 255 F.3d 95, 107 (3d Cir. 2001).

The Petitioner objects to two sets of statements. First, noting that after the

Petitioner left the scene, turned at the nearest corner and only thereafter stoppedin response to police pursuit, the prosecutor asked, rhetorically: “Maybe you’re

saying to yourself why does Christopher Stokes stop? What’s he doing there?” (R.

at 64:9-11, Nov. 18, 2004). Answering her own question, the prosecutor

suggested that Stokes was buying time to permit his codefendant in the van

containing the speakers to get away. Second, arguing that Petitioner and Gilliam

28
explained only if he had spoken to Gilliam beforehand and planned the crimewith him.

Petitioner believes that these portions of the summation “inferentially

comment[ed] upon the Petitioner’s Fifth Amendment privilege [to not testify at

triall. . . . The only way in which the prosecutor’s questions could have been

answered in a fashion which supported the defense theory of the case would

have been had the defendant himself testified.” (Pet. for Writ of Habeas Corpus at

13-14 [Docket Entry No. lj).

This Court finds that the prosecutor’s statements during her closing

arguments did not have the capacity to so infect the trial with unfairness as tomake the resulting conviction a denial of due process. These comments, fairly

read, do not directly or indirectly refer to Petitioner’s silence or his decision not to

testify. Nor did the prosecutor directly or inferentially direct her questions to

Petitioner or call upon him to answer them. Rather, the prosecutor simplyemployed a rhetorical device, posing questions that the jurors should be asking

themselves and suggesting how the evidence answered those questions and

pointed to Petitioner’s guilt. The lack of a contemporaneous objection by counsel

tends to confirm that the participants in the trial did not interpret the

29
incrimination simpliciter. The trial judge delivered the usual instruction that the

jury could not draw an adverse inference from the defendant’s silence.

(11/18/2004 Trial Tr. at 82:7-13). Juries are presumed to follow instructions, a

presumption that can be overcome only by a showing of an “overwhelmingprobability” that they were unable to do so. Richardson v. Marsh, 481 U.S. 200,

208 (1987). Nothing about these fairly innocuous questions by the prosecutor

would have overborne a jury’s inclination or ability to follow the judge’s

instructions. Finally, in the context of the strong evidence at trial, any error

would have been harmless.

Therefore, the Court finds no error of constitutional dimension with

respect to Petitioner’s claim of prosecutorial misconduct. The state court rulings

were not contrary to, and did not involve an unreasonable application of, clearly

established federal law; nor were they based on an unreasonable determination

of the facts presented in the state court proceedings. Accordingly, this ground forhabeas relief is denied.

4. Ineffective Assistance of CounselIn his fifth, sixth and seventh grounds for relief, Petitioner alleges that his

trial counsel was so ineffective as to violate his Sixth Amendment rights.

30
Petitioner raised these claims in his PCR petition in state court. The

Appellate Division affirmed the trial court’s denial of the petition, stating:

Before considering the individual allegations, we briefly summarize

the substantial evidence of defendant’s guilt produced at trial to

provide context for defendant’s arguments raised in his petition.

On May 29, 2002, on behalf of their employer, Frederick Plaza and

Charles Arazzo were in a van attempting to sell home theater

speakers to the general public. William Gilliam, a passenger in asilver Daewoo driven by Henry Steed, agreed to buy a pair of

speakers and requested Plaza and Ara.zzo follow him to another

location to obtain the money.

Plaza and Arazzo followed the Daewoo to a residential neighborhoodin Jersey City and parked the van directly behind the Daewoo on theright side of the street. Gilliam was talking on his cell phone outside

the Daewoo when a man with dreadlocks, later identified as

defendant, approached and appeared to ask Gilliam for directions.

After defendant walked away, Gilliam went to the passenger side of

the van, put his hands on Arazzo’s neck, and ordered him out of the

vehicle. Defendant pulled up next to the van driving a blue

Mitsubishi Eclipse and parked it in the middle of the street. He

exited the car and put a gun to Plaza’s head, ordering him out of the

van. Gilliam took about $100 and a cell phone from Arazzo’s pocket.

Steed drove off after seeing the gun.

While on patrol, Officers King and Tedesco of the Jersey City Police

Department happened on the scene. Observing the Eclipse parked

in the middle of the street, they stopped to issue a ticket. As theywere writing the ticket, defendant got into the Eclipse and drove off

following Gilliam, who had driven away in the van. King gave chase

in his cruiser and stopped defendant a short distance away.

As the officers approached the Eclipse, Plaza and Arazzo ran up to

31
Plaza and Arazzo identified defendant a second time as he sat alone

in a holding cell and a third time at trial.

In a signed written statement, Steed identified defendant as the

gunman and Gilliam as the other man involved in the carjacking.

Steed repudiated his statement at trial; however, the prosecutionread the statement to the jury as a prior inconsistent statement. - -- - -It -mater nan-su ive-eha1nge- i-1imitth-o

allegations that trial counsel (1) failed to timely file a motion to sever

the CDS count, (2) failed to file pre-trial motions to suppress the

drugs and money found in the vehicle upon defendant’s arrest; and

(3) failed to request a Wade hearing to challenge the out of court

identifications. We conclude these arguments are unpersuasive.

On direct appeal, we considered and rejected defendant’s argument

regarding the severing of those counts of the indictment regarding

drug possession and distribution. Further review is barred. See

State v. McQuiad, 147 N.J. 464, 483, 688 A.2d 584 (1997) (stating a

prior adjudication upon the merits of any ground for relief is

conclusive); see also Rule 3:22-5 (same).

Defendant contends that had counsel moved to suppress the

evidence found in the automobile search incident to his arrest such

motion would have been granted because police lacked “exigent

circumstances,” as mandated in State v. Peña-Flores, 198 N.J. 6,

28, 965 A.2d 114 (2009). However, Peña-Flores was decided long

after defendant’s trial. To be effective, counsel is not charged withbeing prescient.

At the time of defendant’s trial, the law allowed a warrantless search

of a motor vehicle incident to arrest to ensure police safety or to

avoid the destruction of evidence. Chimel v. California, 395 U.S.

752, 762-63, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685, 694 (1969); see

State v. Welsh, 84 N.J. 346, 355, 419 A.2d 1123 (1980) (affirming

“[tjhe relevant facts, then, appear to be those which disclose what

places the person under arrest presently could reach at the time the

32
connection with a carjacking and robbery. An automobile chase

ensued. More important, defendant was alleged to be armed.

In accordance with the precedents then in effect, and under the

circumstances of this case, the search for the weapon incident toarrest was valid. Had counsel made a pre-trial motion to suppress

alleging an illegal warrantless search, it would not have been

successful in excluding the seized evidence. Defendant cannot

suain his

Strickland/ Fritz test.

Turning to the out-of-court identifications, as noted by the PCR

judge, “the first identification of [} defendant took place at the scene,

within moments of the commission of the offense, and did not

involve any police conduct.” There was nothing suggestive about this

identification as it resulted not from any police procedure but from

the victims’ positive spontaneous and voluntary statements. As

correctly determined by the trial judge, “there was little to no

likelihood of misidentification under these circumstances.”

Similarly, the second one-on-one identification, made by the same

victims while defendant was in a holding cell, was not shown to be

unreliable based upon its proximity to the event and the victims’

prior spontaneous identification.

Consequently, the absence of impermissible suggestibility or the

likelihood of misidentification obviated the need for a Wade hearing.

State v. Ortiz, 203 N.J.Super. 518, 522, 497 A.2d 552 (App. Div.),

certif. denied, 102 N.J. 335, 508 A.2d 212 (1985). Defendant fails to

satisfy the first prong of the Strickland/Fritz test, as counsel’s

decision not to challenge the victims’ identifications was notimproper.

Accordingly, as defendant failed to establish a prima facie showing

of ineffective assistance of counsel, he was properly denied an

evidentiary hearing. Preciose, supra, 129 N.J. at 462, 609 A.2d

1280; Cummings, supra, 321 N.J. Super. at 170, 728 A.2d 307.

33
have the Assistance of Counsel for his defense.” U.S. Const. amend. VI. The right

to counsel is the right to the effective assistance of counsel, and counsel can

deprive a defendant of the right by failing to render adequate legal assistance.

See Strickland v. Washington, 466 U.S. 668, 686 (1984).

A claim that counsel’s assistance was so defective as to require reversal of

a conviction has two components, both of which must be satisfied.

Strickland, 466 U.S. at 687. First, the defendant must “show that counsel’srepresentation fell below an objective standard of reasonableness.” at 687-88.

“[Cjounsel should be ‘strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment.” Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011) (citing Strickland,

466 U.S. at 690). “To overcome that presumption, a defendant must show that

counsel failed to act ‘reasonabl[yj considering all the circumstances.” Id. (citing

Strickland, 466 U.S. at 688).

Further, a “convicted defendant making a claim of ineffective assistance

must identify the acts or omissions of counsel that are alleged not to have been

the result of reasonable professional judgment.” Id. at 690. The court must thendetermine whether, in light of all the circumstances at the time, the identified

34
reasonable doubt respecting guilt.” Id. at 695. “It is not enough ‘to show that theerrors had some conceivable effect on the outcome of the proceeding.’ .

Counsel’s errors must be ‘so serious as to deprive the defendant of a fair trial, atrial whose result is reliable.” Harrington v. Richter, 131 S. Ct. 770, 787-88

(2011) (citing Strickland, 466 U.S. at 687). As the Supreme Court explained,

In making this determination, a court hearing an ineffectivenessclaim must consider the totality of the evidence before the judge or

jury. Some of the factual findings will have been unaffected by the

errors, and factual findings that were affected will have been affectedin different ways. Some errors will have had a pervasive effect on theinferences to be drawn from the evidence, altering the entire

evidentiary picture, and some will have had an isolated, trivial effect.

Moreover, a verdict or conclusion only weakly supported by therecord is more likely to have been affected by errors than one with

overwhelming record support. Taking the unaffected findings as a

given, and taking due account of the effect of the errors on theremaining findings, a court making the prejudice inquiry must ask if

the defendant has met the burden of showing that the decisionreached would reasonably likely have been different absent the

errors.

Strickland, 466 U.S. at 695-96.

The Supreme Court instructs that a court need not address both

components of an ineffective assistance claim “if the defendant makes an

insufficient showing on one.” Strickland, 466 U.S. at 697. “If it is easier to

dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,

35
Appellate Division opinion, I agree. Counsel did not act unreasonably in failing to

raise these arguments before the state court; they would not have succeeded.

Further, Petitioner has not shown any prejudice that resulted from the alleged

failures of trial counsel. As the state courts repeatedly pointed out, there was

ample evidence to support Petitioner’s conviction, including the observations of

the police officers and two identifications by the victims, one of which took place

at the scene of the crime. Counsel’s errors, if errors they were, are unlikely to

have affected the result.

The state courts’ decisions on the ineffective assistance of counsel issues

were not contrary to, and did not involve an unreasonable application of, clearly

established federal law. Nor were they based on an unreasonable determination

of the facts presented in the state court proceedings. Therefore, Petitioner is not

entitled to relief on these claims.III. MOTION TO AMEND THE PETITION

Petitioner’s motion seeks to add the following grounds to his petition: (1)

his trial counsel was ineffective for failing to argue that Petitioner could not be

sentenced to an extended term for carjacking and (2) his appellate counsel wasineffective for failing to challenge Petitioner’s sentence on the same ground on

36
possible only by the United States Supreme Court’s holding in Martinez v. Ryan,

132 S. Ct. 1309 (2012), and that his failure to raise them earlier should therefore

be excused.

In this case, Petitioner was advised on June 28, 2011 of his rights under

Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), and notified that under the

AEDPA, he was required to file one, all-inclusive petition for a writ of habeas

corpus. (Docket Entry No. 2.) Because the AEDPA bars second or successive

petitions, Petitioner was informed that this all-inclusive § 2254 petition must be

filed within one year of the date his conviction became final. The Mason Order

cited the relevant federal statutes and asked Petitioner if he wanted this Court to

rule on the Petition “as is” or if he wanted to withdraw the pending petition in

order to add additional claims, subject to the one-year statute of limitations. It

informed him that if he did not respond, his petition would be ruled on “as is.”

Petitioner did not respond.

Petitioner waited to raise these two additional ineffective assistance claims

until January 31, 2013, nearly two years after he filed his original petition. It is

clear that he was aware of the facts forming the basis of the claims at the time his

conviction became final and at the time he filed his Petition — i.e., he necessarily

37
(1944). It is uncontested that these claims were not exhausted. Petitioner seems

to be arguing that he did not litigate these claims before because they would havebeen barred as procedurally defaulted. Based on the holding of the Supreme

Court in Martinez, however, Petitioner argues that he has now has a “cause andprejudice” basis to overcome that procedural bar. 7 He therefore filed this motion

to amend the Petition some ten months after Martinez was decided. Petitioner did

not attempt to raise these claims in State court.

In the end, however, it does not matter. Even if the Court were to permit

the amendment, it would necessarily deny these claims. Counsel was not

ineffective. As the Appellate Division held, there was no merit to the sentencing

issue that Petitioner faults counsel for failing to raise. Specifically, on direct

appeal, the Appellate Division held that:

We are convinced that the judge correctly applied Dillihay when he

concluded that the mandatory extended term for robbery survived

merger. also State v. Wade, 169 N.J. 302 (2001); State v.

Baumann, 340 N.J. Super. 553 (App. Div. 2001); Cannel, New

Jersey Criminal Code Annotated, comment 9 on N.J.S.A. 2C: 1-8

(2005) (“occasionally one aspect of a sentence for one of the offenses

being merged will be more severe than that for the other offense and

a second aspect will be less severe. In such a case, the more severe

in Martinez, the Supreme Court held that “[i]nadequate assistance of counsel at

initial-review collateral proceedings may establish cause for a prisoner’s procedural

default of a claim of ineffective assistance at trial.” 132 S. Ct. at 1315.

38
(2) based on the armed robbery conviction, the extended term under the Graves

Act was proper. Accordingly, had Petitioner’s counsel made this argument, it

would have been unsuccessful. Accordingly, Petitioner cannot demonstrate

either deficient performance or prejudice as a result of counsel’s failure to raise

the issue.

Therefore, at this late point in the litigation of this habeas petition, and for

the reasons set forth above, the motion to amend, and in the alternative the

amended claims themselves, will be denied.

IV. CERTIFICATE OF APPEALABILITY

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

certificate of appealability, an appeal may not be taken from a final order in aproceeding under 28 U.S.C. § 2254. A certificate of appealability may issue “only

if the applicant has made a substantial showing of the denial of a constitutional

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

demonstrating that jurists of reason could disagree with the district court’s

resolution of his 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).

39
certificate of appealability will not issue. 8 An appropriate Order follows.Dated: May 3, 2013 

--•--—------- ------------- ----K- IN-MeNUL-TY

United States District Judge

8 In Petitioner’s Reply, he appears to challenge the state court’s decision not to

grant him a evidentiary hearing on his PCR petition. (Pet’r’s Reply 3 1-23, Docket EntryNo. 14). The denial of an evidentiary hearing in a state court PCR proceeding does not give rise to a constitutional question in a federal habeas action. Hassine v.

Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998) (“what occurred in the petitioner’s collateral proceeding does not enter into the habeas calculation”). To the extent

Petitioner intended that his argument be construed as a motion for this Court to hold an

evidentiary hearing, the motion is denied as moot.

40