NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MAURICE PIERCE, :

: Civil Action No. 11-3965 (FSH)

Petitioner, :

:

v. : OPINION

:

PAULA DOW, et al., :

:

Respondents. :

APPEARANCES:

MAURICE PIERCE, Petitioner pro se

# 416666/981856B

Northern State Prison

168 Frontage Road

Newark, New Jersey 07114

SARA BETH LIEBMAN, ESQ.

UNION COUNTY PROSECUTOR’S OFFICE

32 Rahway Avenue

Elizabeth, New Jersey 07202

Counsel for Respondents

HOCHBERG, District Judge

Petitioner Maurice Pierce (“Petitioner”), a convicted state 

prisoner presently confined at the Northern State Prison in 

Trenton, New Jersey, has submitted a petition for a writ of 

habeas corpus pursuant to 28 U.S.C. § 2254, challenging his New 

Jersey state court judgment of conviction entered on or about 

April 14, 2003. For the reasons stated herein, the Petition 

will be denied for lack of substantive merit.
2

I. BACKGROUND

A. Procedural History

On February 16, 2001, a Union County grand jury indicted 

Petitioner on the following counts: (Count One) first degree 

robbery, in violation of N.J.S.A. 2C:15-1; (Count Two) third 

degree unlawful possession of a firearm, in violation of 

N.J.S.A. 2C:39-5b; and (Count Three) second degree possession of 

a weapon, a firearm, for an unlawful purpose, in violation of 

N.J.S.A. 2C:39-4a. (Ra23,1 Union County Indictment No. 01-02-

00198-I at Da1-Da2.) Petitioner also was charged under a 

separate indictment on February 16, 2001, with second degree

possession of a firearm by a previously convicted person, in 

violation of N.J.S.A. 2C:39-7. (Id., Union County Indictment 

No. 01-02-00199-I at Da3.) 

A trial was held on the first indictment before a jury and 

the Honorable James C. Heimlich, J.S.C., in late October 2002. 

On October 30, 2002, the jury returned a verdict of guilty on 

all counts under Indictment No. 01-02-00198-I. Following the 

jury verdict, a separate trial was commenced on October 30, 

2002, before the same jury, on the second indictment, Indictment 

 1

 “Ra” denotes the appendix or record of the state court 

proceedings as submitted by Respondents with their answer to 

this habeas petition. (See ECF Nos. 17-2, 18.) 
3

No. 01-02-00199-I. The jury also found Petitioner guilty on the 

second indictment. (Ra23 at 1.) 

On April 4, 2003, Judge Heimlich conducted a sentencing 

hearing, granting the State’s motion to sentence petitioner to a 

discretionary extended term sentence as a persistent offender 

under N.J.S.A. 2C:44-3a. The court sentenced Petitioner to an 

extended term of 40 years in prison with 16 years parole 

ineligibility on Count One (armed robbery) to run concurrently 

with a sentence Petitioner then was serving. On Count Two 

(unlawful possession of a firearm), Petitioner was sentenced to 

a four-year prison term to run concurrently with the sentence 

imposed on Count One. On Count Three (possession of a firearm 

for an unlawful purpose), the court imposed an eight-year prison 

term with a parole ineligibility term of three year to run 

concurrently with the sentences imposed on Counts One and Two. 

Finally, on the separate Indictment No. 01-02-00199-I, the court 

imposed a term of eight years in prison to run concurrently with 

the sentences imposed on the first indictment, Indictment No. 

01-02-00198-I. (Id. at 2.)

Petitioner thereafter filed a direct appeal from his 

conviction and sentence before the Superior Court of New Jersey 

Appellate Division. On May 11, 2005, the Appellate Division 

affirmed the conviction and sentence. (Ra3.) Petitioner filed 
4

a petition for certification, which the Supreme Court of New 

Jersey granted on September 12, 2005, on the sole issue of the 

extended term sentence. (Ra5.) On August 6, 2006, the Supreme 

Court of New Jersey remanded Petitioner’s extended term for 

resentencing. State v. Pierce, 188 N.J. 155 (2006).

Petitioner was resentenced on September 22, 2006, and the 

original terms were re-imposed. (Ra22.) 

On October 2, 2006, Petitioner filed a petition for postconviction relief (“PCR”) in state court. While that state PCR 

petition was pending, on February 6, 2008, the Appellate 

Division conducted a hearing on the re-sentence and affirmed the 

trial court’s resentence, except remanding for entry of an 

amended sentence merging Petitioner’s conviction for possession 

of a weapon for an unlawful purpose into his conviction for 

armed robbery and vacating the sentence on the possession of a 

weapon for an unlawful purpose conviction. (Ra6.) The 

Appellate Division thereafter issued an opinion affirming the 

resentence on February 11, 2008. (Ra7.) On April 8, 2008, the 

Supreme Court of New Jersey denied certification. (Ra10.)

On August 20, 2008, Petitioner filed an amended PCR 

petition. After conducting a hearing on November 20, 2008, 

Judge Heimlich denied the petition. (Ra23 at 3.)
5

Petitioner then filed an appeal from denial of his PCR 

petition. On December 1, 2010, the Appellate Division affirmed 

the trial court’s denial of post-conviction relief. (Ra12; 

State v. Pierce, 2011 WL 13840 (N.J. Super. A.D. Dec. 1, 2010.) 

The Supreme Court of New Jersey denied certification on April 

14, 2011. (Ra15.)

On June 30, 2011, Petitioner filed a petition for a writ of 

habeas corpus, pursuant to 28 U.S.C. § 2254, before this Court. 

The State filed an answer, together with the relevant state 

court record, on August 8, 2012 and August 17, 2012. (ECF Nos. 

17, 18.) Petitioner filed his traverse or reply on September 

17, 2012. (ECF No. 19.)

B. Factual Background 

The facts of this case were recounted below and this Court, 

affording the state court’s factual determinations the 

appropriate deference, see 28 U.S.C. § 2254(e)(1), will simply 

reproduce the recitation as set forth in the published opinion 

of the Superior Court of New Jersey, Appellate Division, decided 

on May 11, 2005, with respect to Petitioner’s direct appeal:

The events leading to these charges occurred on November 

11, 2000, when Arthur Vaz drove to a club in Hillside at 

about 12:45 a.m. When he got there, he parked on Yale 

Street in a residential neighborhood. As he was getting 

out of the car, a beige Oldsmobile pulled up beside him, a 

man got out, began talking to him, pulled a gun, pointed it 

at Vaz’s chest and told Vaz to give him everything he had. 
6

Vaz gave him $50 to $60 and a cell phone. The man got back

into the Oldsmobile and drove away.

Vaz gave a full description of the man to police and 

described the gun. Several days after the robbery, Vaz 

picked defendant out of a photo lineup and identified him 

as the man who robbed him. The weapon described by Vaz was 

found with defendant when he was arrested.

At trial, defendant presented an alibi defense with his 

sister, Phyllis Pierce, testifying that defendant was with 

her and their sister Shirley in Atlantic City at the time 

of the robbery.

(Ra3, May 11, 2005 Appellate Division Opinion at 2-3.)

II. STATEMENT OF CLAIMS

Petitioner asserts the following claims in his petition for 

habeas relief:

Ground One: The discretionary extended term sentence

violated Petitioner’s constitutional right to a trial by jury. 

Ground Two: Petitioner was denied his Sixth Amendment 

right to effective assistance of counsel when counsel failed to 

request a Wade2 hearing.

Ground Three: Petitioner’s statement was not voluntary or 

knowing, and should have been suppressed, because Petitioner was 

under the influence of marijuana and alcohol and had physical 

injuries at the time of his interrogation.

Ground Four: Trial counsel was ineffective in allowing the 

handgun to go into the jury room without first examining it.

 2 United States v. Wade, 388 U.S. 218 (1967).
7

(ECF No. 1, Petition at ¶ 12.)

The State essentially contends that the petition is without 

merit, or fails to raise a claim of federal constitutional 

dimension that would entitle Petitioner to habeas relief. The 

State also asserts that Petitioner failed to exhaust his state 

court remedies regarding Ground Four, but despite this failure 

to exhaust, the claim is subject to dismissal on the merits 

pursuant to 28 U.S.C. § 2254(b)(2).

III. STANDARD OF REVIEW

As amended by the Antiterrorism and Effective Death Penalty 

Act of 1996 (AEDPA), Pub.L. No. 104–132, 110 Stat. 1214 (1996), 

28 U.S.C. § 2254 now provides, in pertinent part:

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.

28 U.S.C. § 2254(a).

With respect to any claim adjudicated on the merits in 

state court proceedings, the writ shall not issue unless the 

adjudication of the claim

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

involved an unreasonable application of, clearly 

established Federal law, as determined by the Supreme Court 

of the United States; or
8

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

unreasonable determination of the facts in light of the 

evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); see also Parker v. Matthews, --- U.S. ----, 

----, 132 S. Ct. 2148, 2151, 183 L.Ed.2d 32 (2012).

“Clearly established Federal law” should be determined as 

of the date of the relevant state court decision and is limited 

to the record that was before the state court that adjudicated 

the claim on the merits. Greene v. Fisher, –––U.S. ––––, 132 S. 

Ct. 38, 181 L.Ed.2d 336 (2011); Cullen v. Pinholster, --- U.S. –

––, 131 S. Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). A statecourt decision is “contrary to” clearly established federal law 

if the state court (1) contradicts the governing law set forth 

in Supreme Court cases or (2) confronts a set of facts that are 

materially indistinguishable from a decision of the Supreme 

Court and nevertheless arrives at a different result. Williams 

v. Taylor, 529 U.S. 362, 405–06 (2000); Jamison v. Klem, 544 

F.3d 266, 274 (3d Cir. 2008). The state court judgment must 

contradict clearly established decisions of the Supreme Court, 

not merely law articulated by any federal court, Williams, 529 

U.S. at 405, although district and appellate federal court 

decisions evaluating Supreme Court precedent may amplify such 

precedent, Hardcastle v. Horn, 368 F.3d 246, 256 n. 3 (3d Cir.

2004) (citing Matteo v. Superintendent, SCI Albion, 171 F.3d 
9

877, 890 (3d Cir. 1999)). “[C]ircuit precedent does not 

constitute ‘clearly established Federal law, as determined by 

the Supreme Court,’ [and] therefore cannot form the basis for 

habeas relief under AEDPA.” Parker, 132 S. Ct. at 2155. The 

state court is not required to cite or even have an awareness of 

governing Supreme Court precedent “so long as neither the 

reasoning nor the result of [its] decision contradicts them.” 

Early v. Packer, 537 U.S. 3, 8 (2002); Jamison, 544 F.3d at 274–

75. Few state court decisions will be “contrary to” Supreme 

Court precedent.

The federal habeas court more often must determine whether 

the state court adjudication was an “unreasonable application” 

of Supreme Court precedent. A state-court decision ‘involves an 

unreasonable application’ of clearly established federal law if 

the state court (1) identifies the correct governing legal rule 

from the Supreme Court’s cases but unreasonably applies it to 

the facts of the particular case; or (2) unreasonably extends a 

legal principle from Supreme Court 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. Williams, 529 

U.S. at 407. A showing of clear error is not sufficient. 

Lockyer v. Andrade, 538 U.S. 63, 75–76 (2003). Nor is habeas 

relief available merely because the state court applied federal 
10

law erroneously or incorrectly. See Harrington v. Richter, ---

U.S. ––––, ––––, 131 S. Ct. 770, 785, 178 L.Ed.2d 624 (2011) 

(Under § 2254(d)(1), “an unreasonable application of federal law 

is different from an incorrect application of federal law.” 

(quoting Williams at 410)); see also Metrish v. Lancaster, ---

U.S. ----, 133 S. Ct. 1781, 1786–87, 185 L.Ed.2d 988 (2013); 

Thomas v. Varner, 428 F.3d 491, 497 (3d Cir. 2005); Jacobs v. 

Horn, 395 F.3d 92, 100 (3d Cir. 2005). “A state court’s 

determination that a claim lacks merit precludes federal habeas 

relief so long as ‘fairminded jurists could disagree’ on the 

correctness of the state court’s decision.” Harrington, 131 S. 

Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 

(2004)). Accordingly, “[a]s a condition for obtaining habeas 

corpus from a federal court, a state prisoner must show that the 

state court’s ruling on the claim being presented in federal 

court was so lacking in justification that there was an error 

well understood and comprehended in existing law beyond any 

possibility for fair-minded disagreement.” Harrington, 131 S. 

Ct. at 786–87. See also Metrish v. Lancaster, 133 S. Ct. at 

1787. 

The Supreme Court repeatedly has reiterated the deference 

that the federal courts must accord to state court decisions. 

See Felkner v. Jackson, –––U.S. ––––, 131 S. Ct. 1305, 1307, 179 
11

L.Ed.2d 374 (2011) (“AEDPA imposes a highly deferential standard 

for evaluating state-court rulings and demands that state-court 

decisions be given the benefit of the doubt.”); Cullen v. 

Pinholster, 131 S. Ct. at 1398; Eley v. Erickson, 712 F.3d 837, 

845 (3d Cir. 2013). See also Harrington, 131 S. Ct. at 786 (“We 

must use habeas corpus as a guard against extreme malfunctions 

in the state criminal justice systems, not a substitute for 

ordinary error correction through appeal.”); Renico v. Lett, 559 

U.S. 766, 773 (2010) (“whether the trial judge was right or 

wrong is not the pertinent question under AEDPA”); Schriro v. 

Landrigan, 550 U.S. 465, 473 (2007) (“The question under AEDPA 

is not whether a federal court believes the state court’s 

determination was incorrect but whether that determination was 

unreasonable-a substantially higher threshold.”); Lockyer, 538 

U.S. at 75 (“it is not enough that a federal habeas court, in 

its independent review of the legal question, is left with a 

‘firm conviction’ that the state court was erroneous.”). 

Further, AEDPA’s standard applies even where “the state court 

analyzed and rejected a habeas petitioner’s federal claims on 

the merits but gave ‘no indication of how it reached its 

decision.’” Grant v. Lockett, 709 F.3d 224, 230 (3d Cir. 2013) 

(quoting Han Tak Lee v. Glunt, 667 F.3d 397, 403 (3d Cir.

2012)).
12

A state court decision is based on “an unreasonable 

determination of the facts” only if the state court’s factual 

findings are “‘objectively unreasonable in light of the evidence 

presented in the state-court proceeding.’” Miller–El v. 

Cockrell, 537 U.S. 322, 340 (2003) (citing, inter alia, 28 

U.S.C. § 2254(d)(2)). Moreover, a federal court must accord a 

presumption of correctness to a state court’s factual findings, 

which a petitioner can rebut only by clear and convincing 

evidence. 28 U.S.C. § 2254(e); see also Rice v. Collins, 546 

U.S. 333, 339 (2006) (petitioner bears the burden of “rebutting 

the presumption by ‘clear and convincing evidence.’” (quoting 28 

U.S.C. § 2254(e)(1)); Duncan v. Morton, 256 F.3d 189, 196 (3d 

Cir. 2001)(factual determinations of state trial and appellate 

courts are presumed to be correct). Where a state court’s 

factual findings are not made explicit, a federal court’s “duty 

is to begin with the [state] court’s legal conclusion and reason 

backward to the factual premises that, as a matter of reason and 

logic, must have undergirded it.” Campbell v. Vaughn, 209 F.3d 

280, 289 (3d Cir. 2000). In determining what implicit factual 

findings a state court made in reaching a conclusion, a federal 

court must infer that the state court applied federal law 

correctly. Id. (citing Marshall v. Lonberger, 459 U.S. 422, 433 

(1982)).
13

Even if the petitioner is entitled to habeas relief under 

AEDPA, the court may grant the writ only if the error was not 

harmless. Under the harmless error standard, the court must 

“assess the prejudicial impact of [the] constitutional error in 

[the] state-court criminal trial.” Fry v. Pliler, 551 U.S. 112, 

121 (2007). The court should hold the error harmless unless it 

led to “actual prejudice,” in the form of a “substantial and 

injurious effect or influence in determining the jury’s 

verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) 

(quotation omitted); Eley v. Erickson, 712 F.3d at 847.

Finally, a pro se pleading is held to less stringent 

standards than more formal pleadings drafted by lawyers. 

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

404 U.S. 519, 520 (1972). A pro se habeas petition and any 

supporting submissions must be construed liberally and with a 

measure of tolerance. See Rainey v. Varner, 603 F.3d 189, 198 

(3d Cir. 2010) (citing United States ex rel. Montgomery v. 

Brierley, 414 F.2d 552, 555 (3d Cir. 1969)); Royce v. Hahn, 151 

F.3d 116, 118 (3d Cir.1998).

IV. DISCUSSION

A. Extended Term Sentence

Petitioner first claims that the “discretionary offender 

extended term violated [his] constitutional right to a trial by 
14

jury[,]” as guaranteed by the Sixth Amendment. (Pet. at ¶ 12, 

Ground One.) Petitioner argues that the trial judge’s use of 

the “protection of the public” factor in determining an extended 

term for a persistent offender violates his right to a jury 

trial as well as his right to due process. (Id.) Petitioner 

exhausted this claim on direct review in state court.

Indeed, the issue of Petitioner’s extended term sentence 

was considered by the New Jersey Supreme Court. State v. 

Pierce, 188 N.J. 155 (2006). Citing the Supreme Court’s 

decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000) and 

Blakely v. Washington, 542 U.S. 296 (2004), Petitioner argued 

that his Sixth Amendment rights were violated when the trial 

court, and not the jury, decided facts that determined whether 

he would be sentenced to a prison term exceeding the maximum 

ordinary-term range. State v. Pierce, 188 N.J. 155, 161 (2006). 

The New Jersey court specifically held that the sentencing 

judge’s fact-findings about Petitioner’s prior convictions under 

the persistent offender statute3 did not violate his right to a 

 3

 The persistent offender statute, N.J.S.A. 2C:44-33(a), gives 

the sentencing court discretion to impose an extended sentence

when the statutory prerequisites for an extended sentence are 

found. Namely, a defendant is deemed a persistent offender if, 

at the time of the commission of the crime, he was 18 years of 

age or older and had “been previously convicted on at least two 

separate occasions of two crimes, committed at different times, 

when he was at least 18 years of age, if the latest in time of 

these crimes or the date of the defendant’s last release from 
15

trial by jury, and that Petitioner’s maximum sentence under the 

persistent offender statute is the top of the extended term 

range for purposes of Apprendi. Pierce, 188 N.J. at 163–67. 

The Court, however, remanded the matter for re-sentencing to 

determine the appropriate sentence “within the expanded range of 

sentences available from the bottom of the ordinary-term to the 

top of the extended-term range.” Id. at 171. The Court further 

noted that Petitioner could not be subjected to a sentence in 

excess of the one previously imposed. Id. at 174. On remand, 

Petitioner was re-sentenced to the same term of imprisonment as 

originally imposed. (Ra22.) 

A federal court may review a state sentence only where the 

challenge is based upon “proscribed federal grounds such as 

being cruel and unusual, racially or ethnically motivated, or 

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

408, 415 (D.N.J .1987) (citation omitted). Thus, a petitioner’s

challenge to a state court’s discretion at sentencing is not 

reviewable in a federal habeas proceeding unless it violates a 

separate federal constitutional limitation. See Vreeland v. 

Warren, Civ. Action No. 11-5239 (JAP), 2013 WL 1867043, *17 

(D.N.J. May 2, 2013); Rorie v. Beard, Civ. Action No. 04-3380, 

 

confinement, whichever is later, is within 10 years of the date 

of the crime for which the defendant is being sentenced.” 

N.J.S.A. 2C:44-3(a). 
16

2005 WL 825917, *6, fn. 1 (E.D. Pa. Apr. 7, 2005). See also 28 

U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67 (1991); 

Pringle v. Court of Common Pleas, 744 F.2d 297, 300 (3d Cir.

1984). 

In this case, Petitioner does not assert an Eighth 

Amendment violation regarding his sentence. “The Eighth 

Amendment, which forbids cruel and unusual punishments, contains 

a ‘narrow proportionality principle’ that ‘applies to noncapital 

sentences.’” Ewing v. California, 538 U.S. 11, 20 (2003) 

(citations omitted). The Supreme Court has identified three 

factors to be applied in determining whether a sentence is so 

disproportionate to the crime committed that it violates the 

Eighth Amendment: “(1) the gravity of the offense and the 

harshness of the penalty; (ii) the sentences imposed on other 

criminals in the same jurisdiction; and (iii) the sentences 

imposed for commission of the same crime in other 

jurisdictions.” Solem v. Helm, 463 U.S. 277, 292 (1983).

Petitioner fails to present any cogent argument as to why 

his sentence is unconstitutional under the Eighth Amendment. 

There is no showing that his sentence is grossly 

disproportionate to the crime he committed. Indeed, extended 

sentences are common in the State of New Jersey and other 

states, and they are not contrary to legitimate penological 
17

schemes. Therefore, even if the Court were to read an Eighth 

Amendment argument into Petitioner’s claims, it would not state 

a violation of federal constitutional limitations.

As to Petitioner’s argument regarding an alleged violation 

of his Sixth Amendment jury trial rights under Apprendi and 

Blakely, this Court finds no merit. In Apprendi v. New Jersey, 

the Supreme Court held that pursuant to the Sixth Amendment 

right to trial by jury, “[o]ther 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.” 530 U.S. 466, 471

(2000). In Blakely v. Washington, the Supreme Court overturned 

a sentence imposed under Washington state’s sentencing system, 

explaining that “the relevant statutory maximum is not the 

maximum sentence a judge may impose after finding additional 

facts, but the maximum he may impose without any additional 

findings.” 542 U.S. 296, 302 (2004) (internal quotations 

omitted).

Here, Petitioner appears to argue that the Supreme Court’s 

decisions in Apprendi and Blakely invalidate his extended 

sentence. That argument is unavailing. Petitioner was 

sentenced to an extended term as a persistent offender. State 

v. Pierce, 188 N.J. at 160. To establish that Petitioner was 
18

subject to an extended sentence under the persistent offender 

statute, the state court properly took notice of Petitioner’s 

prior convictions. Id. at 170. A court may take notice of 

prior convictions at sentencing. See Apprendi, 530 U.S. at 490. 

Moreover, the Supreme Court of New Jersey expressly rejected 

Petitioner’s habeas claim presented here on direct review, as 

follows:

In respect of defendant Pierce, the ordinary-term range of 

sentence was the maximum sentence applicable to him based 

on his conviction for armed robbery until the court 

determined that he satisfied the statutory criteria to be a 

persistent offender. With that judicial determination, 

which is permissible under the prior conviction exception 

recognized by Blakely and its progeny, the permissible 

range of sentences available in the court’s discretion 

expanded up to a new maximum—the top of the extended-term 

range. As we have already explained, the fact-findings 

related to the statutory criteria are fact-findings that 

may permissibly be made by a court under Apprendi and 

Blakely. The additional judicial finding of “need to 

protect the public” is no different from the judicial 

findings as to aggravating factors, which we permitted the 

court to make on remand in Natale [State v. Natale, 184 

N.J. 458 (2005)]in connection with the court’s imposition 

of a sentence higher than the old maximum represented as 

the former presumptive term. Defendant cannot claim a lack 

of notice. He knew that based on his prior record the 

prosecutor could seek to have him found to be a persistent 

offender under N.J.S.A. 2C:43–3(a) and to ask that he be 

sentenced within the discretionary extended-term range. 

Defendant’s sentencing within the discretionary extendedterm range on the basis of judicial, as opposed to jury, 

findings equates to our holding in Natale wherein we 

allowed the defendant to be sentenced to a period of 

incarceration above the presumptive term based on 

judicially found aggravating factors. No new range is 

being introduced into defendant’s resentencing on remand. 

The extended-term range was available based on the 
19

juxtaposition of his current conviction and the court’s 

findings as to his persistent offender status based on his 

prior convictions.

Pierce, 188 N.J. at 172-73.

This Court recognizes that it was Petitioner’s case that 

prompted the Supreme Court of New Jersey to revamp sentencing 

procedures for discretionary extended-term sentences so that 

such procedures would comply with the Sixth Amendment, and that 

this case was the first instance for the State court to apply 

the federal law recognized in Apprendi and Blakely to a 

discretionary extended term sentence. Therefore, in light of 

the careful review by the New Jersey Supreme Court, as discussed 

above, this Court finds no indication that the State court 

unreasonably applied established federal law in reaching its 

decision, or that the State court decision was based on an 

unreasonable application of the facts. Petitioner has not 

demonstrated that the State court’s holding, when evaluated 

objectively and on the merits, resulted in an outcome that 

cannot be reasonably justified. Harrington, 131 S. Ct. at 786; 

Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 891 (3d Cir. 

1999). As Petitioner was properly sentenced in accordance with 

state law, and where he has not provided this Court with any 

justification to grant habeas relief with respect to his 
20

sentence on federal constitutional grounds, Ground One for 

habeas relief is denied.

B. Ineffective Assistance of Counsel

Petitioner next alleges that he was denied his Sixth 

Amendment right to effective assistance of counsel because his 

trial counsel failed to request a Wade hearing, and because 

counsel failed to examine the handgun before it was allowed to 

go into the jury room during deliberations. (Pet., Grounds Two 

and Four.) 

The Court first will discuss the clearly established 

federal standard as set forth in Strickland v. Washington, 466 

U.S. 668 (1984). In Strickland, the Supreme Court “has 

recognized that the right to counsel is the right to the 

effective assistance of counsel. Government violates the right 

to effective assistance when it interferes in certain ways with 

the ability of counsel to make independent decisions about how 

to conduct the defense. Counsel, however, can also deprive a 

defendant of the right to effective assistance, simply by 

failing to render adequate legal assistance.” Strickland, 466 

U.S. at 685–86 (internal quotation marks and citations 

omitted)(citing and quoting McMann v. Richardson, 397 U.S. 759, 

771 n. 14 (1970), and Cuyler v. Sullivan, 446 U.S. 335, 344–50

(1980)). “The benchmark for judging any claim of 
21

ineffectiveness must be whether counsel’s conduct so undermined 

the proper functioning of the adversarial process that the trial 

cannot be relied on as having produced a just result.” 

Strickland, 466 U.S. at 686; Ross v. Varano, 712 F.3d 784, 797-

98 (3d Cir. 2013).

To prevail on an ineffective assistance of counsel claim, a 

petitioner must demonstrate (1) that his counsel’s performance 

fell below an objective standard of reasonableness, and (2) that 

but for counsel’s errors the result of the underlying proceeding 

would have been different. Strickland, 466 U.S. at 687–88. 

“Since Strickland, the Supreme Court and the Third Circuit have 

emphasized the necessity of assessing an ineffectiveness claim 

in light of all the circumstances.” Grant v. Lockett, 709 F.3d 

224, 232 (3d Cir. 2013); Siehl v. Grace, 561 F.3d 189, 195 (3d 

Cir. 2009)(citing cases).

When a federal habeas petition under § 2254 is based upon 

an ineffective assistance of counsel claim, “[t]he pivotal 

question is whether the state court’s application of the 

Strickland standard was unreasonable,” which “is different from 

asking whether defense counsel’s performance fell below 

Strickland's standard.” Grant, 709 F.3d at 232 (quoting 

Harrington, 131 S.Ct. at 785). For purposes of § 2254(d)(1), 

“an unreasonable application of federal law is different from an 
22

incorrect application of federal law.” Id. (internal quotation 

marks omitted)(emphases in original). “A state court must be 

granted a deference and latitude that are not in operation when 

the case involves [direct] review under the Strickland standard 

itself.” Id. Federal habeas review of ineffective assistance

of counsel claims is thus “doubly deferential.” Id. (quoting 

Cullen v. Pinholster, 131 S.Ct. at 1403). Federal habeas courts 

must “take a highly deferential look at counsel’s performance” 

under Strickland, “through the deferential lens of § 2254(d).” 

Id. (internal quotation marks and citations omitted); see also 

Burt v. Titlow, --- U.S. ----, --- S.Ct. ----, 2013 WL 5904117 

(Nov. 5, 2013).

1. Failure to Request a Wade Hearing

Petitioner alleges that his trial counsel was asked by the 

trial judge if she intended to request a Wade hearing. Counsel 

allegedly replied that she was Petitioner’s third lawyer and 

that such a motion should have been made earlier in the pretrial 

proceedings. Petitioner contends that counsel was ineffective 

for not requesting a Wade hearing because identification was the 

only evidence the State had and it should have been challenged 

before trial at a Wade hearing. (ECF No. 1, Pet. at Ground 

Two.) Petitioner raised this ineffective assistance of counsel

claim in his state PCR proceedings.
23

The PCR court rejected Petitioner’s claim, finding that 

neither prong under Strickland had been met by Petitioner. 

First, the PCR court determined that counsel did not render 

deficient performance. The court noted that counsel had 

reviewed the photo array and was satisfied that a Wade hearing 

on the identification procedure was unnecessary. Instead, 

counsel chose to aggressively and vigorously cross-examine the 

State’s witnesses on identification. (ECF No. 18-2, Ra24, 

November 20, 2008 PCR Transcript at 18.)

More significantly, the PCR court found that a Wade hearing 

would not have changed the outcome of the trial, and thus, 

Petitioner could not satisfy the second Strickland prong of 

prejudice. In particular, the court found that there was no 

evidence of impermissible suggestiveness as argued by 

Petitioner’s PCR counsel. The facts showed that the police who 

conducted the photo identification did not discuss the matter 

with the victim before the identification procedure. The victim

immediately identified Petitioner from the photo array, and the 

police detective did not inform the victim that the photo 

selected was that of the Petitioner. (Id., 18:10-17.)

In addition, the photos in the array were not “grossly 

dissimilar,” but contained “varying hairstyles.” (Id., 18:18-

20.) Moreover, at the time of the crime, the suspect had worn a 
24

“do-rag,” and Petitioner was told that hairstyles, moustaches 

and beards can be changed easily, and therefore, should not be 

the focus of the identification. (Id., 18:21-19:4.)

The PCR court further found the circumstances of the 

identification reliable based on several other factors:

... the victim was three to four feet from the defendant 

when the robbery occurred. The victim testified that the 

incident occurred for about four or five minutes. The 

victim contends or asserts that the view was a clear view 

and the opportunity to view the defendant was such that it 

was a long period of time to look at the defendant and that 

the victim had a heightened sense of awareness since the 

defendant was pointing a gun at the victim. The victim 

provided a description of the defendant which is consistent 

with the trial testimony, including his weight and 

approximate age. The Court does not find there is a 

significant difference between a 21 and 25-year old man, as 

suggested earlier.

(Id., 19:5-19.)

Finally, the PCR court concluded that had a Wade hearing 

been conducted, the photo array and identification procedure

would have been allowed and therefore, the Wade hearing would 

not have changed the outcome of the trial. (Id., 19:20-25.)

On appeal from denial of the PCR petition, the Appellate 

Division affirmed, likewise finding that Petitioner had not 

shown deficient performance by trial counsel for not requesting 

a Wade hearing. The court specifically noted that counsel’s 

decision constituted a sound “trial strategy” as counsel 
25

conducted “very aggressive trial examination” of the State’s 

witnesses before the jury. Pierce, 2011 WL 13840 at *3.

The state appellate court also applied the Supreme Court 

standards governing out–of-court identifications as set forth in 

Manson v. Brathwaite, in determining that the procedures 

employed in this case were not so suggestive as to give rise to 

“a substantial likelihood of irreparable misidentification.” 

432 U.S. 98, 116 (1977) (citation and internal quotation marks 

omitted). The Appellate Division remarked that the photo array 

itself was not suggestive, the victim relied on his own 

recollection to identify the robber, and the Petitioner was 

“only three feet away from the victim and his face was 

unobstructed with the victim looking directly at him.” Pierce, 

2011 WL 13840 at *3. The victim also identified the gun that 

Petitioner had pointed at the victim. Id. 

The Appellate Division further quoted the reliability 

factors recognized in Neil v. Biggers, 409 U.S. 188, 199 (1972), 

and found that all of these factors were present to substantiate 

the reliability of the victim’s out-of-court identification. 

Namely, “the victim had the ‘opportunity ... to view the 

criminal at the time of the crime;’ the degree of attention that 

he demonstrated; the level of certainty he exhibited when he 

made an immediate identification upon being shown the photo 
26

array; and the time between the crime and the viewing, which was 

only a few days.” Pierce, supra (citing Biggers, supra). 

Accordingly, the Appellate Division concluded that Petitioner 

was unable to meet the second prong under Strickland, i.e., that 

there was no “reasonable probability” that, but for counsel’s 

deficiency in requesting a Wade hearing, the outcome of the 

trial would have been different. Pierce, supra (citing 

Strickland, 466 U.S. at 694).

The Supreme Court has observed that improper pretrial 

identification procedures by police may cause witnesses to 

misidentify a criminal. See Simmons v. United States, 390 U.S. 

377, 383 (1968). An identification procedure may be deemed 

unduly and unnecessarily suggestive if it is based on police 

procedures that create “a very substantial likelihood of 

irreparable misidentification.” Id. at 384. In that case, “the 

witness thereafter is apt to retain in his memory the image of 

the [misidentification] rather than that of the person actually 

seen, reducing the trustworthiness of subsequent lineup or 

courtroom identification.” Id. at 383–84. “It is the 

likelihood of misidentification which violates a defendant's 

right to due process.... Suggestive confrontations are 

disapproved because they increase the likelihood of 

misidentification.” Biggers, 409 U.S. at 198.
27

The Supreme Court has held that, even if an identification 

procedure is unnecessarily suggestive, admission of the 

suggestive identification does not violate due process so long 

as the identification possesses sufficient aspects of 

reliability, Manson v. Brathwaite, 432 U.S. at 106, for 

reliability is the “linchpin in determining the admissibility of 

identification testimony.” Id. at 114; see also United States 

v. Wise, 515 F.3d 207, 215 (3d Cir. 2008). The central question 

is “‘whether under the totality of the circumstances the 

identification was reliable even though the confrontation 

procedure was suggestive.’” Brathwaite, 432 U.S. at 106 

(quoting Biggers, 409 U.S. at 199); see also United States v. 

Maloney, 513 F.3d 350, 355 (3d Cir. 2008). Factors to be 

considered include “the opportunity of the witness to view the 

criminal at the time of the crime, the witness’ degree of 

attention, the accuracy of the witness’ prior description of the 

criminal, the level of certainty demonstrated by the witness at 

the confrontation, and the length of time between the crime and 

the confrontation.” Biggers, 409 U.S. at 199. Significantly, 

the Supreme Court has ruled that, where “identifications were 

entirely based upon observations at the time of the [incident] 

and not at all induced by the conduct” of the pretrial 
28

identification procedures, the identification does not violate 

due process. See Coleman v. Alabama, 399 U.S. 1, 7 (1970).

Here, as discussed above, the New Jersey state courts

determined that the out-of-court identification of Petitioner 

was not contrary to, or an unreasonable application of the 

factors which the Supreme Court requires to be considered in 

evaluating the likelihood of misidentification. See Biggers, 

409 U.S. at 199. Moreover, the state courts concluded that 

trial counsel’s decision not to request a Wade hearing 

constituted sound trial strategy, and that under the 

circumstances of the victim’s identification of Petitioner, a 

Wade hearing would not have altered the outcome of trial. Thus, 

Petitioner has not demonstrated deficient performance by counsel 

or resulting prejudice, as required under Strickland to prevail 

on this claim of ineffective assistance of trial counsel. 

Therefore, based on all of the above, this Court concludes 

that the determination of the state PCR court and appellate 

court in finding no constitutionally ineffectiveness of counsel, 

resulted in a decision that was neither contrary to, nor 

involved an unreasonable application of, clearly established 

federal law under Strickland, nor did it result in a decision 

that was based on an unreasonable determination of the facts in 

light of the evidence presented in the state court proceeding. 
29

See Williams, 529 U.S. at 413. The Court will deny federal 

habeas relief on this ineffective assistance of counsel claim

because it is substantively meritless.

2. Failure to Examine Gun Before Submission to Jury

Petitioner also argues that trial counsel was 

constitutionally ineffective because she did not examine the gun 

before it was submitted to the jury. Specifically, Petitioner 

contends that the gun was tagged and that tag stated that 

Petitioner was arrested in a stolen vehicle. 

The State counters that this claim is unexhausted, but even 

so, such claim is meritless. This Court notes that Petitioner 

had raised this claim on direct appeal, but the Appellate 

Division did not consider it, finding that it was “best left to 

post-conviction relief proceedings.” (Ra3, May 11, 2005 App. 

Div. Op. at 20.) There was no discussion of this 

ineffectiveness of counsel issue at the November 20, 2008 state 

PCR hearing, and the claim was not raised in Petitioner’s brief 

filed on appeal from denial his PCR petition. Thus, it would 

appear that the claim was not exhausted.

Nevertheless, the Court may deny this claim on the merits, 

notwithstanding Petitioner’s failure to exhaust his available 

state court remedies. 28 U.S.C. § 2254(b)(2).
30

On direct appeal, Petitioner raised the underlying claim 

that the gun was presented to the jury with an evidence tag that 

noted that Petitioner was “apprehended in a stolen motor 

vehicle.” Petitioner argued that the trial judge erred in 

denying his motion for a mistrial and stressed that the curative

jury instruction only served to “highlight” the tag with “a 

misrepresentation of the facts.” (Ra3, May 11, 2005 App. Div. 

Op. at 13.)

The Appellate Division noted that the trial judge gave a 

curative instruction “immediately after the tag was discovered, 

and the jurors responded that they understood the instruction.” 

(Id. at 14-15.) Further, the appellate court opined that 

although the trial judge expressly instructed the jury that 

Petitioner “had nothing to do with the stolen motor vehicle, 

that mistake was of no consequence to the outcome because it 

indicated that defendant was less culpable than he actually 

was.” (Id. at 15.) The Appellate Division concluded that the 

“trial court properly exercised its discretion in denying 

defendant’s motion for a mistrial,” where the curative 

instruction given by the trial court was adequate and defense 

counsel made no objection. (Id.)

This Court finds that, under these circumstances, 

Petitioner cannot meet the Strickland test to prevail on this 
31

claim of ineffective assistance of counsel. Regardless of 

whether trial counsel should have first examined the gun before 

it was presented to the jury, the court gave a strong curative 

instruction admonishing the jury that they were to disregard the 

tag and further informing the jury several times that Petitioner 

was not involved with the stolen vehicle. Consequently, there 

was no prejudicial impact against Petitioner. The other 

evidence against Petitioner, namely the witness’ identification 

of the gun at trial and of Petitioner as the culprit, was 

sufficiently strong such that, had trial counsel removed the tag

before it was presented to the jury, it would not have changed 

the outcome of the trial. Therefore, this claim is denied for 

lack of merit.

C. Petitioner’s Statement Should Have Been Suppressed

Finally, Petitioner contends that his statement should have 

been suppressed because Petitioner was suffering from injuries 

and was under the influence of marijuana and alcohol at the 

time, rendering him incapable of giving a knowing and voluntary 

statement. (Pet., ¶ 12, Ground Three.) This claim was raised 

on direct appeal.

At a pretrial hearing regarding suppression of Petitioner’s 

statement, Petitioner testified that he had sustained a broken 

foot and sprained ankle as a result of fleeing from police in a 
32

stolen vehicle. Petitioner had jumped out of the car while it 

was going 40 miles per hour during his flight from police. 

However, because of his injuries, police were able to apprehend 

him and arrested Petitioner. Petitioner stated that he was 

taken to the hospital in an ambulance but was later released 

that same night, at which time the police took Petitioner to 

headquarters for questioning. (Ra3, May 11, 2005 App. Div. Op. 

at 7.) 

Petitioner further testified that he was in too much pain 

and should not have been released from the hospital. He also 

stated that the police officers were “forcing” him and “putting 

pressure” on him to give a statement on a “package deal” 

concerning his charges. (Id.) Petitioner additionally 

testified that he had never heard of Miranda4 warnings before and 

did not understand the waiver. However, he admitted that he had 

been arrested before and had six prior convictions on indictable 

offenses. Finally, petitioner testified that he had a ninth 

grade education. (Id.)

Detectives Barr and Dvorak were the officers who questioned 

Petitioner and took his statement. At the pretrial hearing, 

Detective Barr testified that Petitioner did not appear to be in 

“any great pain” at the time of questioning. (Id. at 8.) He 

 4

 Miranda v. Arizona, 384 U.S. 436 (1966).
33

also stated that, while Petitioner admitted to smoking marijuana 

and drinking alcohol, Petitioner did not seem intoxicated. 

(Id.) 

Detective Dvorak testified that interrogation of Petitioner 

took about thirty minutes. During the interrogation, Petitioner 

was cooperative and his speech was “coherent.” (Id.) Dvorak 

noticed, however, that Petitioner was in “slight pain” because 

Petitioner had “grimaced” a little when he placed weight on his 

foot. (Id.) Dvorak further testified that he had 15 years of 

experience in narcotics, and that based on this experience, 

Petitioner did not exhibit any signs of intoxication, nor did 

Petitioner appear sleepy or confused at any point during the 

interrogation. Dvorak also testified that he believed 

Petitioner’s responses were voluntary when Petitioner signed the 

Miranda waiver. Dvorak stated that Petitioner never asked for 

an attorney and did not indicate at any time that he wanted the 

interrogation to stop. (Id.)

The Appellate Division reviewed the factual record and 

found no merit to Petitioner’s claim that his statement was not 

voluntary. First, the court noted that, in order to determine 

whether there has been a “‘knowing, intelligent, and voluntary 

waiver of Miranda rights,’ the trial court must review ‘the 

totality of the circumstances, including the characteristics of 
34

the defendant and the nature of the interrogation.’” (Id., 

quoting State v. DiFrisco, 174 N.J. 195, 235 (2002), cert. 

denied, 537 U.S. 1220 (2003)). “‘[T]he ultimate question is 

whether the defendant’s will was overborne and his capacity for 

self-determination seriously impaired.” (Id., quoting State v. 

Wade, 40 N.J. 27, 35 (1963)). In particular, the court stated:

Here, the trial judge rendered a lengthy and detailed 

decision on the record, in which he found that defendant 

was only given aspirin at the hospital and was cooperative 

and coherent despite having a broken foot. The judge noted 

that defendant’s medical records stated that he was “alert” 

and that his condition was “non-urgent.” Defendant never 

asked to stop the interview or to speak with an attorney. 

He was given Miranda warnings twice, after which he gave a 

detailed account of where and when he purchased the gun.

Although defendant’s statement was made at 1:45 a.m., the 

total length of the interrogation was a half hour. 

Moreover, defendant’s claim that he was unfamiliar with 

Miranda warnings is belied by his “extensive experience 

with the criminal justice system.” State v. Roach, 146 

N.J. 208, 227, cert. denied, 519 U.S. 1021 [] (1996). His 

criminal record strongly indicates that he understood the 

Miranda warnings and voluntarily waived them. Ibid. There 

was no error in the trial court’s denying defendant’s 

motion to suppress.

(Ra3, May 11, 2005 App. Div. Op. at 10.)

Under the Fifth Amendment’s privilege against selfincrimination and the Due Process Clause of the Fourteenth 

Amendment, a confession must be voluntary to be admitted into 

evidence. See Dickerson v. United States, 530 U.S. 428, 433

(2000). Miranda also provides that the accused may waive his 
35

rights if he does so “voluntarily, knowingly and intelligently.” 

Miranda, 384 U.S. at 475.

Certain procedural safeguards must be employed to protect 

the privilege. Generally, an individual must be warned before 

interrogation commences “that he has the right to remain silent, 

that anything he says can be used against him in a court of law, 

that he has the right to the presence of an attorney, and that 

if he cannot afford an attorney one will be appointed for him 

prior to any questioning if he so desires.” Id. at 478-79.

Further, the individual must be given the opportunity to 

exercise these rights throughout the interrogation process. 

However, once the warnings are given and such opportunity is 

afforded, the individual may “knowingly and intelligently waive 

these rights” and agree to answer questions or make a statement. 

Id.

“The requirement that Miranda warnings be given does not, 

of course, dispense with the voluntariness inquiry. But ... 

[c]ases in which a defendant can make a colorable argument that 

a self-incriminating statement was ‘compelled’ despite the fact 

that the law enforcement authorities adhered to the dictates of 

Miranda are rare.” Dickerson, 530 U.S. at 444 (internal 

quotation marks and citation omitted).
36

The Supreme Court has made clear that a statement is 

involuntary when a suspect’s “will was overborne in such a way 

as to render his confession the product of coercion.” Arizona 

v. Fulminante, 499 U.S. 279, 288 (1991). However, a 

determination of whether a statement is voluntary, requires 

consideration of “the totality of all the surrounding 

circumstances—both the characteristics of the accused and the 

details of the interrogation.” Dickerson, 530 U .S. at 434 

(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). 

These circumstances include not only the accusations of police 

coercion, see Colorado v. Connelly, 479 U.S. 157, 167 (1986), 

but also such factual aspects as the length of the 

interrogation, its location, its continuity, the suspect’s

maturity and experience. See Withrow v. Williams, 507 U.S. 680, 

693 (1993); see also Lam v. Kelchner, 304 F.3d 256, 264 (3d Cir.

2002).

In determining whether there has been a valid waiver of 

Miranda rights, a court must conduct a two-part inquiry under 

the aforesaid totality of the circumstances standard. See Moran 

v. Burbine, 475 U.S. 412, 421 (1986). First, the court shall 

examine the voluntariness of the challenged statements to 

determine whether the waiver was freely and deliberately given,

as opposed to being obtained by coercion, intimidation, or 
37

deception. See id. Second, the court must consider whether the 

waiver was “knowing and intelligent,” that is, whether the 

suspect was fully aware “both of the nature of the right being 

abandoned and the consequences of the decision to abandon it.” 

Id. 

The “totality of the circumstances” approach is the clearly 

established federal standard applied to determine whether there 

has been a voluntary waiver of Miranda rights. See, e.g., Fare 

v. Michael C., 442 U.S. 707, 725 (1979). It looks at the timing 

of the Miranda warnings and the statement given, and the length 

and nature of the interrogation and the accompanying detention. 

See United States v. Velasquez, 885 F.2d 1076, 1086 (3d Cir.

1989), cert. denied, 494 U.S. 1017 (1990). Same as the federal 

bench, the New Jersey state courts have traditionally employed 

the totality of the circumstances test. See State v. Presha, 

163 N.J. 304 (2000); State v. Miller, 76 N.J. 392, 402 (1978).

“[S]ubsidiary questions, such as the length and 

circumstances of the interrogation, the defendant’s prior 

experience ... and familiarity with the Miranda warnings, often 

require the resolution of conflicting testimony of police and 

defendant. The law is ... clear that state-court findings on 

such matters are conclusive on the habeas court if fairly 

supported in the record and if the other circumstances 
38

enumerated in § 2254(d) are inapplicable.” Miller v. Fenton, 

474 U.S. 104, 117 (1985) (emphasis supplied).

Applying the federal standard here, there is nothing in the 

record that would suggest that Petitioner was coerced or 

pressured to give a statement. His interrogation was short, 

only 30 minutes. There are no allegations that Petitioner was 

subjected to any physical force or any form of deprivation. He 

never gave any indication that he wanted to stop the 

interrogation, or that he wanted an attorney. Moreover, there 

was no physical evidence, other than Petitioner’s own 

allegation, that he was under the influence. Both detectives 

testified that Petitioner was “cooperative” and “coherent” and 

did not exhibit signs of intoxication. Finally, while 

Petitioner had a ninth grade education, he admitted he was 

familiar with the criminal justice system, having been convicted 

nine prior times. Thus, his claim that he did not understand 

his Miranda rights was not credible. 

Accordingly, given the totality of the circumstances as set 

forth in the record, there is no merit to Petitioner’s claim 

that his statement was involuntary or unknowing, and the state 

courts’ decision in denying suppression of the statement was not 

an unreasonable application of Supreme Court precedent, nor was 

it based on an unreasonable determination of the facts in light 
39

of the evidence at trial. See 28 U.S.C. § 2254(d)(1), (2). 

Thus, Ground Three of the habeas petition will be denied.

V. CERTIFICATE OF APPEALABILITY

This 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). For 

the reasons discussed above, this Court’s review of the claims 

advanced by Petitioner demonstrates that he has failed to make a 

substantial showing of the denial of a constitutional right 

necessary for a certificate of appealability to issue. Thus, 

this Court declines to issue a certificate of appealability 

pursuant to 28 U.S.C. § 2253(c)(2).

V. CONCLUSION

For the above reasons, this Court finds that the § 2254 

habeas petition must be denied for lack of substantive merit, 

and a certificate of appealability will not issue. An 

appropriate Order follows.

s/ Faith S. Hochberg____________

FAITH S. HOCHBERG

United State District Judge

Dated: November 13, 2013