The opinion of the court was delivered by: JOSEPH RODRIGUEZ, Senior District Judge
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION
Bryan Miller ("Miller"), who is confined at the Northern State
Prison in Newark, New Jersey, filed a pro se Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254(a), raising
several grounds for relief. The State filed an Answer opposing
the Petition, accompanied by relevant portions of the state court
proceedings. For the reasons discussed herein, the Court will
deny habeas relief, dismiss the Petition, and decline to issue a
certificate of appealability. See 28 U.S.C. §§ 2254 (a) and
(d); 2253 (c)(2).
On April 19, 2000, Miller was convicted of first-degree robbery
in violation of N.J.S.A. 2C:15-1 (count one), and second-degree
aggravated assault in violation of N.J.S.A. 2C:12-1b(1) (count
two). (See RE4.) The jury acquitted Miller on two other related
charges of third-degree terroristic threats, N.J.S.A. 2C:12-3a
(count three), and fourth-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4a (count four). (See RE4.)
The Honorable Samuel Natal, J.S.C. ("Judge Natal") gave a
standard jury instruction on the crimes charged. (See RE15 at
168-14 to 168-23.) He did not receive objections to the
instructions. (See id. at 173-7 to 176-10.) During
deliberation, the jury asked the following question about the
difference between serious and significant bodily injury:
THE COURT: Counsel, I've received the following
question from the jury, it says: "The difference
between serious bodily injury and significant."
Counsel, what I propose to do is I'm just going to
read definitions from 2C:11-1. I would start with
bodily injury, then I would read serious bodily
injury, and then significant bodily injury.
* * *
Any objection to the Court answering that way?
Mr. Nieves (Defendant): No, Your Honor.
Ms. Ruggero (State): No, Your Honor.
(Id. at 166-22 to 167-14.) After the jury listened to Judge
Natal's instruction, it returned a verdict of first-degree
robbery, which involved an attempt to inflict serious bodily
injury in the course of committing the crime, and found Miller
not guilty of second-degree aggravated assault, which involved an
attempt to cause serious bodily injury. (See id. at 169-20 to
172-25.) The jury, however, found Miller guilty of third-degree
aggravated assault, which involved an attempt to cause
significant bodily injury. (Id.)
The judge interrupted the verdict and conferred with counsel
about the inconsistent verdict of first-degree robbery and
third-degree aggravated assault. (See id. at 173-6 to
174-11.) He obtained agreement from Miller's attorney in order to
request the jury to further deliberate on the inconsistent verdict. (See RE15 at
173-6 to 174-11.) The judge gave the following supplemental
THE COURT: Members of the jury, listening to your
verdict, I'm a little confused in that under count
one, you have found the defendant guilty of robbery.
And you have answered specifically question number
two, did the defendant in the course of committing
the robbery purposely inflict or attempt to inflict
serious bodily injury, and you've answered yes.
Yet on count two, the aggravated assault where you
were asked whether or not the defendant attempted to
cause serious bodily injury to Thomas Johnson and/or
did purposely or knowingly cause serious bodily
injury to Thomas Johnson and/or under circumstances
manifesting extreme indifference to the value of
human life did recklessly cause serious bodily
injury, you've answered not guilty.
They seem inconsistent with each other in that under
count two you've answered did the defendant, in the
course of committing a crime, attempt to cause
attempt to inflict serious bodily injury, and yet you
found him not guilty of attempting to cause serious
bodily injury under count two.
It appears to be a conflict.
Members of the jury, I don't want to go into your
reasons at this point, however, I'd like to have you
go back and reconsider these verdicts before I take
them as final verdicts because it does appear to be
inconsistent on its face.
Counsel, is that agreeable?
MR.NIEVES (Defendant): Yes, Your Honor.
MS. RUGGERO (State): Yes.
THE COURT: Members of the jury, I'm going to ask you
to go back and please I will not accept any of these
verdicts at this point. I want you to go back and
deliberate and let me know whether or not you feel
any of these verdicts as delivered to the Court are
inconsistent or you feel may be changed so that they
are consistent. Again, it's your decision that
But if you can see what I'm getting at, it appears to
be inconsistent in those questions.
And, members of the jury, if you come back, let me
know that you wish that to be your final verdict, I
will take it. However, I feel in reviewing this, it
appears that they are inconsistent.
I will return your verdict sheet to you and ask that
you please go back to continue your deliberations and
let me know when you have reached a verdict. (Jury Out)
THE COURT: Counsel, anything further at this time?
MR. NIEVES (Defendant): Not at this time, Your Honor.
MS. RUGGERO (State): Not at this time.
(RE15 at 174-13 to 177-1.) Neither counsel objected to this
instruction. The judge acknowledged that his supplemental
instruction gave Miller the potential of being found guilty on a
lesser charge and stated:
THE COURT: I felt that while we had the jury here,
there was an opportunity for the jury to let us know
if, in fact, there was a mistake inasmuch as even if
the defendant has been convicted at this point of the
more serious offense, it would merge and, therefore,
the defendant was in no further exposure at that
He did have the opportunity, if the jury felt the
other way, to find him guilty of only a second degree
robbery and, therefore, there was no down side to the
The State was running the risk that, in fact, they
might not have a first degree conviction, it would
only be a second degree.
(Id. at 185-21 to 186-8.) The jury deliberated and returned a
verdict of first-degree robbery and second-degree aggravated
assault. (See id. at 177-18 to 183-17.) Then, the judge
merged the second-degree assault conviction into the first-degree
robbery conviction. See infra Part II.B.; (See also RE15.)
The trial court rejected the state's application to impose an
extended term for which Miller was eligible, and sentenced
Miller, on the robbery, to a maximum term of twenty years subject
to ten years of parole ineligibility. (See RE16.) Thus, the
second-degree aggravated assault charge did not affect Miller's
sentence because it was merged into the first-degree robbery
charge. Miller appealed the conviction to the Superior Court of New
Jersey, Appellate Division ("Appellate Division"). (See RE4.)
The conviction and sentence were affirmed on September 17, 2001.
(Id.) Miller claimed that: (1) the trial court's directive that
the jury re-deliberate their verdict on aggravated assault was
plain error; (2) that the photo array was highly suggestive and
should not have been allowed into evidence; (3) that there was
not effective assistance of counsel; (4) that the verdict was
against the weight of the evidence; and, (5) that the sentence
was manifestly excessive. (See RE3.)
On November 14, 2001, Miller filed a Petition for Certification
with the New Jersey Supreme Court, which contended that the
Appellate Division erred when it rejected the same five claims
raised on appeal. (Id. at 2.) On February 19, 2002, the Supreme
Court denied Miller's Petition for Certification. (See RE1.)
On October 18, 2002, Miller filed the instant Petition, which
asserts four (4) grounds for relief. First, Miller claims that
Judge Natal's directive that the jury re-deliberate its verdict
on aggravated assault was plain error because he unfairly
benefitted the State when he alerted counsel of the verdict,
controlled the conference, and conducted the conference in view
of the jury. (See Pet. ¶ 12.A.) Second, Miller argues that the
jury verdict was against the weight of the evidence. (See Pet.
¶ 12.B.) Third, Miller asserts that he received ineffective
assistance of counsel. (See Pet. ¶ 12.C.) Lastly, Miller claims
that the photo array exhibited at trial was an improper and
suggestive identification. (See Pet. ¶ 12.D.) On March 20,
2003, the State filed its Answer. II. DISCUSSION
A. Standard of Review for a § 2254 Petition in district court
The standard of review of a § 2254 Petition in district court
is mandated by the Antiterrorism and Effective Death Penalty Act
of 1996 ("AEDPA"):
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
(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(d); Marshall v. Hendricks, 307 F.3d 36
, 50 (3d
Cir. 2002). A federal habeas court must presume that a state
court's findings of fact are correct. See
28 U.S.C. § 2254(e)(1). The petitioner bears the burden of rebutting the
presumption of correctness by clear and convincing evidence.
See 28 U.S.C. § 2254(e)(1); Campbell v. Vaughn, 209 F.3d 280,
285 (3d Cir. 2000).
Section 2254(d)(1) defines two categories of cases where state
prisoners can obtain habeas corpus relief for claims adjudicated
on the merits in state court: (i) where the relevant state court
decision was contrary to the clearly established federal law as
determined by the Supreme Court; or, (ii) where it involved an
unreasonable application of such law. See
28 U.S.C. § 2254(d)(1) (emphasis added).
Under the first category, a state court decision is contrary to
Supreme Court precedent under § 2254(d)(1) where the state court reached a
"conclusion opposite to that reached by [the Supreme] Court on a
question of law or if the state court decides a case differently
than [the Supreme] Court has on a set of materially
indistinguishable facts." Marshall, 307 F.3d at 51 (quoting
Williams v. Taylor, 529 U.S. 362, 413 (2000)). Under the second
category, a state court decision is an unreasonable application
under § 2254(d)(1) if the court
identifies the correct governing legal rule from the
Supreme Court's cases but unreasonably applies it to
the facts of the particular case or if the state
court either unreasonably extends a legal principle
from the Supreme Court's precedent to a new context
where it should not apply or unreasonably refuses to
extend that principle to a new context where it
Gattis v. Snyder, 278 F.3d 222
, 228 (3d Cir. 2002) (citing
Williams, 529 U.S. at 407).
The unreasonable application test is an objective one a
federal court may not grant habeas relief merely because it
concludes that the state court applied federal law erroneously or
incorrectly. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003);
Gattis, 278 F.3d at 228. AEDPA's deferential standards of
review do not apply "unless it is clear from the face of the
state court decision that the merits of the petitioner's
constitutional claims were examined in light of ...