UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

PAUL REID, :

: Civil Action No. 11-4048 (JLL)

Petitioner, :

:

v. : OPINION

:

GREG BARTKOWSKI, et al., :

:

Respondents. :

APPEARANCES:

PAUL REID, Petitioner pro se

SBI # 830759C/5 

New Jersey State Prison

P.O. Box 861 

Trenton, N.J. 08625 

STEPHANIE PAIGE DAVIS-ELSON, Counsel for Respondents 

Hudson County Prosecutor’s Office

595 Newark Avenue

Jersey City, NJ 07306 

LINARES, District Judge

Petitioner Paul Reid (“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 are Greg Bartkowski and Paula

Dow. For the reasons stated below, the Petition will be denied.

I. BACKGROUND

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

affording the state court's factual determinations the

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

reproduce the recitation as set forth in the unpublished opinion

of the Superior Court of New Jersey, Appellate Division:

Defendant and one of his co-defendants, Tariq

Maqbool, were involved in the sale of cellular

telephones and prepaid calling cards at a

discount. Jawad “Jay” Mir was the roommate of

Amit “Andy” Vishal, who was involved in the

same business.

With the assistance of Mir and Vishal,

defendant and Maqbool arranged for the sale of

a large number of prepaid calling cards and

cellular telephones, purportedly at a steep

discount, to Joong “John” Ahn and Mun “Mike”

Ahn. The buyers arrived at the location where

the sale was to take place, carrying with them

a substantial amount of cash that they had

brought in order to consummate the deal.

Because they had been involved in bringing the

parties together, Mir and Vishal were also

there to help finalize the transaction.

However, defendant, Maqbool and two other

co-defendants, Zaid Tariq and Steven Reid,

overpowered the buyers, and also overpowered

Mir and Vishal.

The four co-defendants bound the four others

with duct tape and took the money that the

buyers had brought with them for the purchase.

Defendant and the three co-defendants then

forced Mir and Vishal to assist them in taking

Joong Ahn and Mun Ahn from the location where

the transaction was to have taken place and to

drive them to a remote location. Mir and

Vishal were later left in a motel room and

were eventually permitted to leave. The two

Ahns were killed, and their bodies were left

in a vehicle that was set afire in a bus

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

1

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.”

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company's parking lot. The medical examiner

determined that one died from strangulation

and one from blunt trauma to the brain and

smoke inhalation.

State v. Reid, 2005 WL 3747511, at * 1 (N.J. Super. Ct. App. Div.

February 09, 2006). Following a jury trial, Petitioner was found

guilty of two counts of felony murder, N.J.S.A. 2C:11-3a(3), one

count of first-degree kidnapping, N.J.S.A. 2C:13-1b, and one count

of second-degree armed robbery, N.J.S.A. 2C:15-1. Id. The jury

acquitted him of two counts of murder, N.J.S.A. 2C:11-3a(1); 3a(2),

but found him guilty of two lesser included charges of aggravated

manslaughter, N.J.S.A. 2C:11-4a. Id. The jury acquitted him of

two additional counts of first-degree kidnapping, but found him

guilty of two lesser included charges of third-degree criminal

restraint, N.J.S.A. 2C:13-2a. Id. The jury also acquitted

Petitioner of an additional count of aggravated assault, N.J.S.A.

2C:12-1b(4), and acquitted him of unlawful possession of a weapon,

N.J.S.A. 2C:39-5b, possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4a, and conspiracy to commit robbery, N.J.S.A.

2C:5-2. Id. 

Petitioner was sentenced to consecutive thirty-year terms of

imprisonment on each of the felony murder counts, to be served

without parole, and to two concurrent five-year terms of

imprisonment for the two criminal restraint counts, with all other

counts being merged into the felony murder counts for sentencing

purposes. Id. 

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Petitioner filed an appeal and on February 9, 2006, the

Appellate Division upheld his conviction and sentence. Id. 

Thereafter, the New Jersey Supreme Court denied certification. 

State v. Reid, 902 A.2d 1237 (N.J. July 19, 2006). On November 20,

2006, Petitioner filed a petition for post-conviction relief

(“PCR”). (Resp’t’s Br., Ex. 16, Pet’r’s Pro Se PCR Mem.) On

December 14, 2007, the state court entered an opinion and order

denying PCR. (Id. at Exs. 66-67.) Petitioner appealed and on July

9, 2010, the Appellate Division affirmed the decision of the lower

court. State v. Reid, 2010 WL 4054277 (N.J. Super. Ct. App. Div.

July 09, 2010). Petitioner filed a petition for certification

which was denied by the New Jersey Supreme Court on January 7,

2011. State v. Reid, 12 A.3d 209 (N.J. January 07, 2011). 

Thereafter, Petitioner filed the instant petition with this

Court. (Docket Entry No. 1.) He raises the following grounds: 

1. The state court’s ruling that trial

counsel’s dual representation was not a

conflict of interest, and counsel was not

ineffective was contrary to clearly

established federal law and United States

Supreme Court precedence under ineffective

assistance of counsel violated Petitioner’s

rights under U.S. Const. Amend Sixth and

Fourteenth.

2. Trial counsel’s failure to object and move

to have the juror who claims that he was

threaten [sic] by Petitioner’s brother along

with the juror whom he shared this information

with dismissed and replaced, was ineffective

assistance of counsel. Counsel’s actions were

contrary to the United States Supreme Court

ruling in Strickland v. Washington and clearly

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established federal law. 

3. The state court’s ruling that the state did

not violate a rule of law adopted in State v.

A.G.D., 178 N.J. 56 (2003), grounded in the

United States Constitution, was contrary to

clearly established federal law, and an

unreasonable application thereof, as well as

an unreasonable determination in light of the

evidence presented violating Petitioner’s

Fifth and Sixth Amendment [sic] of the United

States Constitution.

 

4. Petitioner contends that his conviction

should be vacated as the trial court’s

instruction to the jury on the theory of

accomplice liability did not enunciate the

shared intent requirement, nor did the trial

court adequately repeat the charge of

accomplice liability in the content of the

lesser included offenses. Trial counsel’s

failure to object to trial court’s erroneous

instructions on accomplice liability was

ineffective assistance of counsel, and

rendered Petitioner’s trial fundamentally

unfair in violation of his right to a fair

trial and due process under the United States

Constitution Amendments Fifth, Sixth and

Fourteenth. 

5. Trial and appellate counsels failure to

protect Petitioner’s constitutional rights to

due process of law and a fair trial when they

failed to challenge and/or argue that

Petitioner was illegally arrested and that the

subsequent alleged consent to search was

fruits of said illegal arrest was ineffective

assistance of counsel, contrary to clearly

established federal law, or an unreasonable

application of federal law, or an unreasonable

application of federal law and so is not

procedurally barred, therefore a writ should

issue.

6. The conviction was obtained and/or sentence

imposed in violation of the Fifth and

Fourteenth Amendment to the Constitution of

the United States, the right to a fair trial

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free from prosecutorial misconduct. A.) The

record overwhelmingly establishes that the

state regularly vouched for the credibility of

its witnesses, and stated numerous time [sic]

that Petitioner was a liar. Using perjured

testimony to secure Petitioner’s convictions. 

B.) Detective Diaz’s testimony before the

grand jury, and the petit jury was false. C.)

The false testimony renders Petitioner’s trial

fundamentally unfair requiring that a new

trial be granted. D.) The need for an

evidentiary hearing is warranted here. 

7. The state court’s ruling that appellate

counsel’s failure to raise any of the issues

mounted herein on direct appeal, and to

adequately consult with Petitioner prior to

submitting Petitioner’s brief was not

ineffective assistance of counsel, was

contrary to the United States Supreme Court

ruling in Strickland v. Washington and clearly

established federal law. Therefore, the writ

should issue. (B). PCR counsel was

ineffective for failing to secure an affidavit

or certification to support a deposition taken

from a witness by a state investigator from

the public defender’s office. 

(Pet., Docket Entry No. 1.) Respondents filed an answer,

arguing that Petitioner is not entitled to habeas relief. 

(Docket Entry No. 10.) Petitioner did not submit a reply. 

II. DISCUSSION

A. Legal Standard

As amended by the Antiterrorism and Effective Death Penalty

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

pertinent part:

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

judge, or a district court shall entertain an application

for a writ of habeas corpus in behalf of a person in

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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.

...

(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 merits in 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....

28 U.S.C. § 2254.

A state court decision is “contrary to” Supreme Court

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

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

state court confronts a set of facts that are materially

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

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

Williams v. Taylor, 529 U.S. 362, 405–06 (2000). A state court

decision “involve[s] an unreasonable application” of federal law

“if the state court identifies the correct governing legal rule

from [the Supreme] Court's cases but unreasonably applies it to

the facts of the particular state prisoner's case,” and may

involve an “unreasonable application” of federal law “if the

state court either unreasonably extends a legal principle from

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[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). Even a summary adjudication by the state

court on the merits of a claim is entitled to § 2254(d)

deference. Chadwick v. Janecka, 312 F.3d 597, 606 (3d Cir. 2002)

(citing Weeks v. Angelone, 528 U.S. 225, 237 (2000)). With

respect to claims presented to, but unadjudicated by, the state

courts, however, a federal court may exercise pre-AEDPA

independent judgment. See Hameen v. State of Delaware, 212 F.3d

226, 248 (3d Cir. 2000); Purnell v. Hendricks, 2000 WL 1523144,

*6 n. 4 (D.N.J. 2000). In such instances, “the federal habeas

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

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

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

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

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

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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 cites to Supreme Court or other

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

does not contradict relevant Supreme Court precedent.” Priester

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

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

(2002)).

B. Analysis

1. Ineffective Assistance of Counsel

The Sixth Amendment, applicable to states through the Due

Process Clause of the Fourteenth Amendment, guarantees the

accused the “right ... to 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. See Strickland, 466 U.S. at 687. 

First, the defendant must “show that counsel's representation

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fell below an objective standard of reasonableness.” Id. at

687-88. “[C]ounsel 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, 104 S.Ct. 2052). “To overcome that presumption, a

defendant must show that counsel failed to act ‘reasonabl[y]

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

then determine whether, in light of all the circumstances at the

time, the identified errors were so serious that they were

outside the wide range of professionally competent assistance. 

Id.

To satisfy the prejudice prong, the defendant must show that

“there is a reasonable probability that, absent the errors, the

factfinder would have had a reasonable doubt respecting guilt.” 

Id. at 695. “It is not enough ‘to show that the errors 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, a trial whose result is reliable.’” Harrington v. Richter,

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131 S.Ct. 770, 788 (2011)(citing Strickland, 466 U.S. at 687, 104

S.Ct. 2052). As the Supreme Court explained,

In making this determination, a court hearing

an ineffectiveness claim 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

affected in different ways. Some errors will

have had a pervasive effect on the inferences

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

the record 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 the remaining

findings, a court making the prejudice inquiry

must ask if the defendant has met the burden

of showing that the decision reached 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, which we

expect will often be so, that course should be followed.” Id.

a. Ground One

In Ground One, Petitioner argues that the state court erred

when it failed to find that his trial counsel was ineffective for

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not informing him that he was also representing Efrain Diaz, the

arresting officer. Petitioner raised this issue in his PCR

petition. The state court denied his claim: 

In this matter, Petitioner alleges he received

ineffective assistance of counsel due to the

fact that counsel had a concurrent conflict of

interest, specifically that trial counsel

represented both Petitioner and Detective

Efrain Diaz. The record, however, indicates

no such conflict and is devoid of any

suggestion of dual representation. Petitioner

argues that his sister became aware of the

dual representation, confronted trial counsel

about it, and counsel failed to disclose the

nature of the representation. Thereafter,

counsel asked whether petitioner had a problem

with him representing Mr. Diaz. Petitioner

admits he replied that he did not have an

issue with this. As an explanation to his

response, petitioner states that he felt too

invested with trial counsel at that stage of

the proceedings to withdraw, however, fails to

provide facts sufficient to support their

claim. At no time did petitioner include

affidavits or certifications of said

statements. 

Moreover, petitioner’s argument fails under

the Strickland test. Applying the first

prong, petitioner has not demonstrated that

counsel’s representation deviated from the

standard norm or failed to act as a

“reasonable professional.” In order to

establish a prima facie case, evidence must be

submitted in the form of an affidavit or

certification by someone who possesses first

hand knowledge of the statements attested

thereto. State v. Cummings. As noted above,

no affidavits or certification were provided

to the court indicating such by petitioner. 

Therefore, petition has failed to satisfy the

first prong of the Strickland test and cannot

make a prima facie showing of ineffective

counsel. 

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The State, however, has submitted a

supplemental brief which includes a

certification by Efrain Diaz whereby he

certifies that he has never been represented

by Anthony Peduto, Esq. or Genesis Peduto

Esq., nor has any member of his family,

friends, or co-workers. In light of this

information, clearly petitioner has failed to

make a prima facie claim because he has failed

to provide the requisite evidence needed to

sustain a claim of ineffective assistance of

counsel. 

(Resp’t’s Br., Ex. 67, PCR Opinion 7-8.) 

The Appellate Division affirmed that holding, stating: 

Additionally, defendant asserts that an

evidentiary hearing should have been conducted

so that Peduto could have testified regarding

his alleged representation of Diaz.

Essentially, other than the unembellished

assertion that defendant established a prima

facie case which warranted an evidentiary

hearing, no specific evidence has been brought

to our attention which required it. More is

necessary. Given Diaz's certification, and the

court's reliance upon it, defendant simply did

not present a prima facie case of ineffective

assistance of counsel. Therefore, no

evidentiary hearing was required. See State v.

Preciose, 129 N.J. 451, 462-63, 609 A.2d 1280

(1992); State v. Cummings, 321 N.J.Super. 154,

169-70, 728 A.2d 307 (App.Div. 1999) (citation

omitted). The motion judge's decision not to

grant an evidentiary hearing is therefore also

affirmed.

State v. Reid, 2010 WL 4054277, at *2 (N.J. Super. Ct. App.

Div. July 09, 2010). 

The foregoing shows that the New Jersey courts reasonably

applied the Supreme Court's holding in Strickland and its

progeny. Petitioner has demonstrated neither that counsel's

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performance was deficient, nor that the results of the trial

would have been different. Specifically, the New Jersey courts

found that Petitioner had not provided sufficient support for his

contention that trial counsel represented both Mr. Diaz and him

and as such, failed to meet the first prong of Strickland. The

Appellate Division agreed. This Court finds that the state

courts’ holdings did not result in a decision that was contrary

to, or involved an unreasonable application of, clearly

established Federal law 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. Therefore,

habeas relief is denied on this ground.

b. Ground Two

In Ground Two of the petition, Petitioner argues that his

trial counsel failed to move to have two jurors removed from the

jury after it was discovered that one of the jurors was allegedly

threatened by an individual who claimed to be Petitioner’s

brother. The juror who was approached told another juror about

the incident. Petitioner alleges that trial counsel was

ineffective for failing to request that these two jurors be

removed. 

Petitioner raised this issue in his PCR petition. The court

denied that claim: 

In the case at bar, Petitioner argues that the

jury was tainted, the result of which lead to

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an impartial jury and that trial counsel, the

Court, and appellate counsel alike failed to

meaningfully pursue this issue. The taint

stemmed from an incident involving jury number

three who was approached by a man claiming to

be defendant’s brother and stated “my brother

is not a killer.” However, it has been

determined that defendant’s brother, as a

matter of fact, was not present in the court

room during this alleged incident. The Court

spoke to the juror in confidence, outside the

presence of the remaining jurors to ensure

that juror number three would not be adversely

affected concerning his ability to serve as a

juror. Juror twelve also inquired as to the

identity of the man who purported to be the

brother of the defendant which prompted the

Court to similarly ensure that said juror

would not be affected as to his duty to be an

impartial juror. 

As mentioned above, R. 3:22-4 applies to this

claim which results in barring the claim from

being heard at this juncture. Clearly this

claim could have been raised within the

prescribed time limitation provided under this

rule, failure to do so will not place

petitioner within one of the enumerated

exceptions absent a showing of an

unconstitutional result. As such, Petitioner

has clearly failed to make a showing of an

unconstitutional result because the Court took

proper measures to protect the integrity and

impartiality of the jurors by addressing the

issue in the presence of the counsel and

determined no taint existed.

(Resp’t’s Br., Ex. 67, PCR Opinion 19-20.)

As found by the state court, the Court took proper measures

to ensure the integrity and impartiality of the jurors in the

presence of counsel. The court questioned the two jurors who

were aware of the comments and the court was satisfied that the

jurors were able to remain impartial. As such, it was 

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reasonable for counsel not to move to have the two jurors

removed. Morever, Petitioner has not shown any prejudice and as

such, he has not established either prong of the Strickland

standard. Petitioner has failed to show that the state courts’

holdings resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal law

or that was based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding. 

Therefore, habeas relief is denied on this ground.

c. Ground Five

In Ground Five, Petitioner alleges that counsel’s failure to

argue that Petitioner was illegally arrested and as such, the

consent to the search was “fruits of said illegal arrest,” was

ineffective assistance of counsel. The state court denied him

relief, finding: 

Petitioner argues that his arrest was illegal

because the police failed to inform him of the

charges against him and the issuance of an

arrest warrant before arresting petitioner. 

Petitioner further contends that the police’s

conduct resulted in an illegal arrest and the

subsequent evidence acquired was tainted as a

fruit of the poisonous tree. It is important

to note that the merits of this claim were

already heard by the Appellate Division,

nonetheless, Petitioners [sic] advances this

claim again despite already being adjudicated

at the appellate level. In fact, petitioner’s

argument is based largely on the same case law

that was considered by the Appellate Division. 

R. 3:22-5 bars assertion of grounds previously

adjudicated. Petitioner, undeterred by

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procedural bars, premises his argument under

the ineffective assistance of counsel again in

an attempt to circumvent the procedural bar. 

Specifically, he states that had he been given

the opportunity to testify at the suppression

motion, the results of the motion would have

been different. This assertion, however, is

speculative at best unless petitioner makes a

prima facie showing supported by a factual

basis and satisfies the burdens of the

Strickland test. In this case, petitioner has

failed to do so, thus the Court cannot grant

the relief sought. Further, R. 3:22-5

controls and ultimately requires the court to

deny the claim. 

(Resp’t’s Br., Ex. 67, PCR Opinion 21-22.)

This Court finds that the state court reasonably applied the

Supreme Court's holding in Strickland and its progeny. 

Petitioner demonstrated neither that counsel's performance was

deficient, nor that the results of the trial would have been

different. Specifically, the New Jersey courts found that

Petitioner had failed to show any prejudice as required by

Strickland. Moreover, “[a]n illegal arrest, without more, has

never been viewed as a bar to subsequent prosecution, nor as a

defense to a valid conviction.” United States v. Crews, 445 U.S.

463, 474 (1980); see also Gerstein v. Puqh, 420 U.S. 103, 119

(1975). 

This Court finds that the state courts’ holdings did not

result in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law nor

did it result in a decision that was based on an unreasonable

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determination of the facts in light of the evidence presented in

the State court proceeding. Therefore, habeas relief is denied

on this ground.

d. Ground Seven

In Ground Seven, Petitioner argues that appellate counsel

was ineffective for failing to raise on direct appeal all claims

which were raised in his PCR petition. Petitioner further argues

that his PCR counsel was ineffective for failing to obtain a

certification or affidavit regarding the conflict of interest

issue. 

The Fourteenth Amendment guarantees a criminal defendant

pursuing a first appeal as of right certain “minimum safeguards

necessary to make that appeal ‘adequate and effective,’” Evitts

v. Lucey, 469 U.S. 387, 392 (1985) (quoting Griffin v. Illinois,

351 U.S. 12, 20 (1956)), including the right to the effective

assistance of counsel, Evitts at 396. The ineffective assistance

of counsel standard of Strickland, 466 U.S. at 686, applies to a

claim that appellate counsel was ineffective. See Smith v.

Robbins, 528 U.S. 259, 285 (2000); United States v. Cross, 308

F.3d 308, 315 (3d Cir. 2002). Defense counsel has a

constitutionally imposed duty to consult with the defendant about

whether to appeal when “there is reason to think either (1) that

a rational defendant would want to appeal (for example, because

there are nonfrivolous grounds for appeal), or (2) that this

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particular defendant reasonably demonstrated to counsel that he

was interested in appealing.” Roe v. Flores-Ortega, 528 U.S.

470, 480 (2000). The term “‘consult’ convey[s] a specific

meaning-advising the defendant about the advantages and

disadvantages of taking an appeal, and making a reasonable effort

to discover the defendant's wishes.” Flores-Ortega at 478.

Petitioner raised the issue of ineffective assistance of

appellate counsel in his PCR petition. The court denied his

claim:

Petitioner argues that appellate counsel was

ineffective for failing to raise the issues

raised in the instant petition. The two

pronged Strickland standard first requires

that counsel’s performance fell below an

objective standard of reasonableness and, if

that is the case, the defense was prejudiced

by counsel’s action or inaction. Strickland,

supra, 466 U.S. at 693. The second prong

requires a finding that there was a reasonable

probability that, but for counsel’s

unprofessional errors, the result of the

proceeding would have been different. Id. at

694.

Counsel argues that had appellate counsel

rendered effective assistance, petitioner may

have well received a reversal of his

conviction on appeal. However, the Court

finds petitioner’s arguments absent of a

specific factual basis demonstrating that

counsel deviated from a professional standard. 

More problematic is that petitioner has failed

to specifically outline how the outcome of the

trial would have been more favorable had

counsel raised the claims contained herein

during the appeal. This critical flaw obliges

the court to rule that the Strickland test has

not been satisfied, consequently this claim

must therefore be denied. 

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(Resp’t’s Br., Ex. 67, PCR Opinion 25-26.)

In this case, the New Jersey courts' adjudication of

Petitioner's ineffective assistance of appellate counsel claim

was not contrary to, or an unreasonable application of Strickland

and other Supreme Court holdings. Specifically, the PCR court

found that Petitioner had not satisfied either prong of

Strickland. He did not provide any factual basis indicating that

counsel had deviated from the professional standard and moreover,

Petitioner had not shown how the outcome would have been more

favorable had counsel raised said claims. Therefore, Petitioner

did not meet the requirements for an ineffective assistance of

appellate counsel claim and the petition will be denied on this

ground. 

With respect to Petitioner’s claim of ineffective assistance

of PCR counsel, such claim must be dismissed pursuant to 28

U.S.C. § 2254(i), because the “ineffectiveness or incompleteness

of counsel during Federal or State collateral post-conviction

proceedings shall not be a ground for relief in a proceeding

arising under section 2254.” 28 U.S.C. § 2254(I).

2. Confession

In this third ground for relief, Petitioner argues that his

rights pursuant to State v. A.G.D., 178 N.J. 56 (2003) were

violated when the police failed to inform him prior to

questioning that a criminal complaint or arrest warrant had been

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filed against him. 

Petitioner raised this issue in the state court

suppression hearing conducted before the trial began. 

So the case here, the A.G.D. case, is easily

distinguished from the case at bar. 

I believe what the Supreme Court has said

here, and it’s exactly right, a

reinforcemement of Miranda. And what they

have indicated here is that law enforcement

cannot bamboozle a defendant...

And I think it’s always been the understanding

of Miranda that, you know, to waive one’s

Miranda rights means that one understands

their rights. Okay. But, more importantly,

and I think this case points it out, that they

also understand what they are waiving. What

rights are they waiving in terms of what they

could be facing or what the charge is. 

Now the case at bar has two very distinctive

aspects to it. 

Number one, there’s no question, and it has

not been refuted in any way, that Mr. Reid was

arrested. That’s number one....

Arrest itself certainly is a form of notice. 

You know that you, by virtue of being

arrested, are being at least charged with a

crime. 

Now, that being said, Detective testified that

he then, in order to, you know, get him away

from the neighborhood and whatever, put him in

the car, gave him Miranda warnings at that

time and he admitted that he didn’t go into

any specifics with regard to what the, he was

actually being arrested for, but they went at

that time to the Prosecutor’s Office.

Now, he then further testified, and it has not

been refuted, that once they get there, they

start a conversation with him and they tell

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him that they are investigating a double

homicide that had taken place in Sayreville

and they, according to the Detective, they

also advised him that the arrest was pursuant

to that double homicide. 

Now, in my opinion, that is certainly

sufficient notice to this Defendant as to why,

and the circumstances under which he was being

held and the magnitude and possibility of

those circumstances for the future for him, to

indicate that he had given Miranda

voluntarily. 

Because, clearly, and again it has not been

refuted, I have in front of me the statement

that was given by this Defendant to the

detectives in which it is perfectly clear that

he was, in fact, told, number one, that he was

being asked to give answers concerning his

knowledge of an investigation which is the

death of Joong Ahn and Muni Ahn which occurred

on November the 1 of 2002. st

So, clearly, he is put on notice with regard

to the specifics of the investigation, the

death of these two persons. And is also told

that he is going to be answering questions. 

And he is asked if he understands and he says

yes. 

He tells him you were taken into custody

earlier in Sayreville and I advised you of

your rights?

And he says, “You certainly did.” 

So that certainly indicates to me that that

was done.

“And you understood them?”

“Yes.”

And so he tells him, “I’m going to advise you

of your rights again. Every time, after

every, or when, sir, please answer. You

understand it, answer it okay?”

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I don’t quite know what that means. And then

he goes specifically into each of the rights.

...

“With the rights in mind, do you still, do you

wish to talk to us now?”

And the answer was, “Yeah.”

...

Certainly this was classic Miranda Rights. I

have no reason to believe at that point that

this Defendant did not understand what was

being done. This was actually the second time

that it was given to him. He acknowledged

that with, you know, an affirmation. 

Number two, I am satisfied that he knew that

he was being questioned with regard to the

death of two people. 

Number three, that he had been arrested with

regarding the situation surrounding the death

of these two people. 

So, clearly, the new Supreme Court case is not

applicable here....

[T]he Court does find that the Miranda

warnings and the statement given by Mr. Reid

under the circumstances are well within the

law and the Court’s [sic] finds them to be

voluntary and that Mr. Reid was put under no

duress and that he certainly had full

knowledge of what he was facing or at least

what the preliminary charges were with regard

to his detainment by the Prosecutor’s Office

under those circumstances.

(Resp’t’s Br., Ex. 88, Suppress. Mot. Hr’g 39:8-45:19, Oct. 22,

2003.) 

The Appellate Division affirmed the trial court’s holding. 

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Defendant's second argument on appeal is that

the pretrial judge erred in denying his motion

to suppress the statements he made to police.

Prior to trial, defendant moved to suppress

all of the statements he made to the police,

arguing that his Miranda rights had been

violated. In particular, he asserted that the

officers who questioned him did not advise him

that there was an arrest warrant or a criminal

complaint against him and did not explain to

him why he was being questioned, in violation

of our Supreme Court's holding in State v.

A.G.D., 178 N.J. 56, 66-68 (2003). The motion

judge heard the testimony of the officers who

were involved in questioning defendant,

concluded that defendant's waiver of his

Miranda rights was both knowing and voluntary,

and rejected the assertion that the

then-recent decision in A.G.D., supra, 178

N.J. at 56, required a contrary result. We

agree.

According to the evidence presented at the

suppression hearing, defendant was

apprehended, told that he was under arrest,

placed in handcuffs and transported to the

police station. He was advised of his Miranda

rights both at the time of his arrest and

prior to questioning. He was then advised that

the officers were investigating a double

homicide and asked if he would agree to speak

with them about it. These facts are unlike the

circumstances addressed in A.G.D. In A.G.D.,

the defendant agreed to accompany the officers

to the police station and agreed to speak with

them at a time when he was unaware that there

was already an arrest warrant for him in

connection with the crime. See Id. at 59-61.

Here, when defendant agreed to speak with the

officers, he was already under arrest and was

fully aware of the events that the police

officers were investigating. We therefore find

no merit in his argument that the statements

he gave should have been suppressed or that

the motion judge erred in his analysis.

State v. Reid, 2005 WL 3747511, at * 2 (N.J. Super. Ct.

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App. Div. February 09, 2006). 

At the outset, the Court notes that “[f]ederal courts hold

no supervisory authority over state judicial proceedings and may

intervene only to correct wrongs of constitutional dimension.”

Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 71 L.Ed.2d

78 (1982). “If a state prisoner alleges no deprivation of a

federal right, § 2254 is simply inapplicable.” Engle v. Isaac,

456 U.S. 107, 120 n. 19, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). 

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

to address a federal constitutional claim pertinent to the facts

of the case unless the petitioner asserts the claim as a ground

for relief. Nor may the Court re-characterize a ground asserted 2

under state law as a federal constitutional claim. “[E]rrors of 3

state law cannot be repackaged as federal errors simply by citing

the Due Process Clause.” Johnson v. Rosemeyer, 117 F.3d 104, 110

See, e.g., Withrow v. Williams, 507 U.S. 680, 695-96, 113 S.Ct. 1745, 2

123 L.Ed.2d 407 (1993) (where habeas petition raised claim that the police had

elicited petitioner's statements without satisfying Miranda, the district

court erred when it "went beyond the habeas petition and found the statements

[petitioner] made after receiving the Miranda warnings to be involuntary under

due process criteria"); Baker v. Barbo, 177 F.3d 149, 156 n. 7 (3d Cir. 1999)

(where petition contains ground asserting the ineffective assistance of

counsel during plea negotiations and trial, court is not permitted to consider

ground, evident from the facts but not raised in the petition, that appellate

counsel was ineffective by failing to advise petitioner that he faced a longer

sentence by appealing the conviction).

See Engle, 456 U.S. at 119-20 & n. 19 (insofar as petitioners simply 3

challenged the correctness of the self-defense instructions under state law,

their petitions alleged no deprivation of federal rights and § 2254 was

inapplicable); Kontakis v. Beyer, 19 F.3d 110, 116-17 & n. 10 (3d Cir. 1994)

(where petitioner asserted in § 2254 petition that the exclusion of testimony

violated his rights under state law, federal court may not consider ground,

not set forth in the petition, that exclusion of the testimony violated his

federal due process rights).

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(3d Cir. 1997). And “it is well established that a state court's

misapplication of its own law does not generally raise a

constitutional claim.” Smith v. Horn, 120 F.3d 400, 414 (3d Cir.

1997) (citation omitted); see also Smith v. Zimmerman, 768 F.2d

69, 71, 73 (3d Cir. 1985). As such, since it appears that

Petitioner relies solely on the state court’s alleged

misapplication of State v. A.G.D., 178 N.J. 56 (2003), this claim

would be dismissed on these grounds alone. 

Further, to the extent Petitioner is arguing a violation of

his Miranda rights, that claim would also fail. Pursuant to the

Fifth Amendment to the United States Constitution, applicable to

the States through the Fourteenth Amendment, “No person ... shall

be compelled in any criminal case to be a witness against

himself....” In Miranda v. Arizona, the Supreme Court of the

United States held that:

when an individual is taken into custody or

otherwise deprived of his freedom by the

authorities in any significant way and is

subjected to questioning, the privilege

against self-incrimination is jeopardized.

Procedural safeguards must be employed to

protect the privilege and unless other fully

effective means are adopted to notify the

person of his right of silence and to assure

that the exercise of the right will be

scrupulously honored, the following measures

are required. He must be warned prior to any

questioning 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

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he so desires. Opportunity to exercise these

rights must be afforded to him throughout the

interrogation. After such warnings have been

given, and such opportunity afforded him, the

individual may knowingly and intelligently

waive these rights and agree to answer

questions or make a statement. But unless and

until such warnings and waiver are

demonstrated by the prosecution at trial, no

evidence obtained as a result of interrogation

can be used against him.

384 U.S. at 478–79 (footnote omitted).

A waiver may be made orally or may be implied from a

suspect's conduct. See North Carolina v. Butler, 441 U.S. 369,

373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); United States v. Cruz,

910 F.2d 1072, 1080 (3d Cir. 1990). To introduce into evidence a

suspect's statement made during custodial interrogation, the

government must establish, by a preponderance of the evidence, a

voluntary waiver of Miranda rights. Colorado v. Connelly, 479

U.S. 157, 168–69, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). This is

a rule of constitutional dimension, violation of which may

justify issuance of a writ of habeas corpus. See generally

Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147

L.Ed.2d 405 (2000).

Once warnings have been given, the subsequent

procedure is clear. If the individual

indicates in any manner, at any time prior to

or during questioning, that he wishes to

remain silent, the interrogation must cease. 

At this point he has shown that he intends to

exercise his Fifth Amendment privilege; any

statement taken after the person invokes his

privilege cannot be other than the product of

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compulsion, subtle or otherwise. Without the

right to cut off questioning, the setting of

in-custody interrogation operates on the

individual to overcome free choice in

producing a statement after the privilege has

been once invoked.

Miranda, 384 U.S. at 473–74. A defendant's right to cut off

questioning must be “scrupulously honored.” Michigan v. Mosley,

423 U.S. 96, 103–04, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

“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.

“[T]he ultimate issue of ‘voluntariness' is a legal question

requiring independent federal determination,” and is thus not

subject to the § 2254(d) presumption of correctness. Miller v.

Fenton, 474 U.S. 104, 109–110, 106 S.Ct. 445, 88 L.Ed.2d 405

(1985).

The Supreme Court has made clear that a

statement is involuntary when the 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, 111

S.Ct. 1246, 113 L.Ed.2d 302 (1991). In

determining whether a statement is voluntary,

Supreme Court precedent requires consideration

of “the totality of all the surrounding

circumstances-both the characteristics of the

accused and the details of the interrogation.” 

Dickerson v. United States, 530 U.S. 428, 434,

120 S.Ct. 2326, 147 L.Ed.2d 405 (2000)

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(quoting Schneckloth v. Bustamonte, 412 U.S.

218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854

(1973)). These surrounding circumstances

include “not only the crucial element of

police coercion, Colorado v. Connelly, 479

U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473

(1986),” but may also include “the length of

the interrogation, its location, its

continuity, the defendant's maturity,

education, physical condition, and mental

health.” Withrow v. Williams, 507 U.S. 680,

693, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993)

(some internal citations omitted).

Lam v. Kelchner, 304 F.3d 256, 264 (3d Cir. 2002). “[S]ubsidiary

questions, such as the length and circumstances of the

interrogation, the defendant's prior experience with the legal

process, and familiarity with the Miranda warnings, often require

the resolution of conflicting testimony of police and defendant.

The law is therefore 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 enumerated in § 2254(d)

are inapplicable.” Dickerson, 474 U.S. at 117.

Here, the state courts correctly identified the applicable

Supreme Court case law. The courts properly found that

Petitioner was advised on more than one occasion of his Miranda

rights and that he agreed to speak to detectives. Further, the

courts properly found that given the totality of the

circumstances, Petitioner was put on notice of the crimes for

which he was arrested and thereafter questioned. Petitioner is

not entitled to relief on this claim.

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3. Jury Instructions

In his fourth ground for relief, Petitioner argues that the

trial court’s instructions to the jury regarding accomplice

liability were insufficient because the court did not “enunciate”

the shared intent requirement and failed to repeat the charge

regarding accomplice liability in the context of the lesser

included charges. 

Petitioner raised this claim in his PCR petition and the

court denied him relief.

Petitioner alleges that the Court improperly

instructed the jury regarding accomplice

liability. However, a close examination of

the record indicates the contrary; the Court

gave specific and comprehensive charges on

accomplice liability memorialized on page 74

of the jury charge. In support of this

finding, the Court notes that the trial court

was guided by the principles established in

State v. Bielkiewicz, 267 N.J. Super 520 (App.

Div.) as he was charging the jury. 

Ultimately, this claim is procedurally barred

and therefore relief under this claim cannot

be granted. 

(Resp’t’s Br., Ex. 67, PCR Opinion 21.)

The Due Process Clause of the Fourteenth Amendment requires

proof beyond a reasonable doubt of every fact necessary to

constitute the elements of the crime. See In re Winship, 397

U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In Waddington v.

Sauausad, 555 U.S. 179, 129 S.Ct. 823, 172 L.Ed.2d 532 (2009),

the Supreme Court outlined the law regarding the

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constitutionality of state court instructions:

Even if there is some ambiguity,

inconsistency, or deficiency in the

instruction, such an error does not

necessarily constitute a due process

violation. Rather, the defendant must show

both that the instruction was ambiguous and

that there was “‘a reasonable likelihood’”

that the jury applied the instruction in a way

that [violated the Constitution]. Estelle,

supra, at 72, 502 U.S. 62, 112 S.Ct. 475, 116

L.Ed.2d 385 (quoting Boyde v. California, 494

U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316

... (1990)). 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 72. 

Because it is not enough that there is some

“slight possibility” that the jury misapplied

the instruction, Weeks v. Angelone, 528 U.S.

225, 236, 120 S.Ct. 727, 145 L.Ed.2d 727 ...

(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).

Waddington, 129 S.Ct. at 831–832 (2009) (citations and internal

quotation marks omitted).

The New Jersey courts' adjudication of these claims was not

contrary to, or an unreasonable application of Supreme Court

holdings. The state courts properly found that the instructions

given by the trial court did not impermissibly shift any burdens

to the defense. Petitioner has failed to establish that he is

entitled to habeas relief on this ground.

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4. Prosecutorial Misconduct

In his sixth ground, Petitioner argues that he was denied a

fair trial because the prosecutor improperly vouched for the

credibility of its witnesses and called into question

Petitioner’s credibility in his closing argument. 

It appears that Petitioner raised this claim in his PCR

petition, under the theory of ineffective assistance of counsel.

[A]s mentioned above, this Court finds nothing

in the record to show that any sort of

prosecutorial misconduct occurred, so even if

the Petitioner was not procedurally barred, he

would still have no argument to support this

claim. Applying the Strickland standards,

trial counsel must show a reasonable

likelihood that had counsel objected to the

purported improper statements, the outcome of

the trial would have been different. Said

statements were not “improper” because New

Jersey case law has stated that prosecutors

are afforded considerable leeway in closing

arguments as long as their comments are

reasonably related to the scope of the

evidence presented. State v. Timmendequas,

161 N.J. 515, 587 (1999). The prosecutor

cannot be said to have engaged in comments

that are not reasonably related to the scope

of the evidence presented being that the State

has submitted an overwhelming number of

physical evidence and testimony. Bearing in

mind the great leeway given to the prosecutor

during summation, trial counsel did not

deviate from reasonably professional

misconduct [sic], therefore no evidentiary

hearing should be granted. 

(Resp’t’s Br., Ex. 67, PCR Opinion 15.)

When reviewing a prosecutor’s comments in an opening or

closing statement, “[t]he relevant question is whether the

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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)). In evaluating the likely

effect of improper comments, a court may consider whether the

improper comments were invited by or responsive to prior comments

by opposing counsel. Darden, 477 U.S. at 181–82. Thus, “Supreme

Court precedent counsels that the reviewing court must examine

the prosecutor's offensive actions in context and in light of the

entire trial, assessing the severity of the conduct, the effect

of the curative instructions, and the quantum of evidence against

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

Based on a careful review of the entire trial record, this

Court finds that the prosecutor's conduct during trial did not

have the capacity to so infect the trial with unfairness as to

make the resulting conviction a denial of due process. The trial

court record shows no vouching by the prosecutor for the

witnesses' testimony that would rise to the level of a

constitutional violation. 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 was it based on an

unreasonable determination of the facts presented in the state

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court proceedings. Accordingly, this ground for habeas relief

will be denied.

III. CERTIFICATE OF APPEALABILITY 

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

judge issues a certificate of appealability, an appeal may not be

taken from a final order in a proceeding under 28 U.S.C. § 2254.

A certificate of appealability may issue “only if the applicant

has made a substantial showing of the denial of a constitutional

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

standard by demonstrating that jurists of reason could disagree

with the district court's resolution of his constitutional claims

or that jurists could conclude the issues presented are adequate

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

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

Here, Petitioner has failed to make a substantial showing of

the denial of a constitutional right. No certificate of

appealability shall issue.

IV. CONCLUSION

For the above reasons, the § 2254 habeas petition is denied,

and a certificate of appealability will not issue. An appropriate

Order follows.

DATED: Nov. 15, 2012

s/ Jose L. Linares 

JOSE L. LINARES

United States District Judge

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