United States District Court, D. New Jersey
August 23, 2005.
BASIM W. ABDULLAH, a/k/a HAROLD LEE GREEN, Petitioner,
TERRANCE MOORE, et al., Respondents.
The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge
This matter is before the Court on petitioner Basim W.
Abdullah's application for habeas corpus relief under
28 U.S.C. § 2254. For the reasons stated below, the petition for habeas
relief will be denied for failure to make a substantial showing
of a federal statutory or constitutional deprivation. I. BACKGROUND
A. Procedural History
Petitioner, Basim W. Abdullah, a/k/a Harold Lee Green,
("Abdullah"), is presently confined at the East Jersey State
Prison in Rahway, New Jersey, serving a life sentence with a 25
year parole disqualifier. (A-6).*fn1
On September 29, 1981, a Salem County Grand Jury returned a
three count indictment against Harold Lee Green (Abdullah),
charging him with aggravated assault, in violation of N.J.S.A.
2C:12-1b(2); first degree robbery, in violation of N.J.S.A.
2C:15-1; and first degree attempted murder, in violation of
N.J.S.A. 2C:11-2 and 2C:11-3. (A-1).
Before trial, Abdullah's counsel made a motion to dismiss the
indictment on the grounds of insufficient evidence and
prosecutorial misconduct at the grand jury proceeding. The court
denied the motion on May 24, 1982. (A-3). The case proceeded to
trial by jury before the Honorable Norman Telsey, J.S.C.,
Superior Court of New Jersey, Salem County, on June 30, 1982, and
concluded on July 2, 1982. Abdullah was found guilty as charged
on counts one and two, but was acquitted on the attempted murder
charge. On July 7, 1982, the State made a motion for an extended sentence pursuant to N.J.S.A. 2C:44-3. Abdullah was sentenced on
August 13, 1982.*fn2
Abdullah filed a direct appeal of his conviction and sentence
to the New Jersey Superior Court, Appellate Division, on or about
September 27, 1982. He claimed that the verdict was against the
weight of the evidence, that the grand jury indictment was
defective and tainted, and that the prosecutor violated a
sequestration order depriving Abdullah of a fair trial. In a
per curiam opinion dated June 24, 1985, the Appellate
Division affirmed the conviction and sentence. (A-10). The
Supreme Court of New Jersey denied Abdullah's petition for
certification on June 5, 1986. (A-20).
Abdullah then filed an application for post-conviction relief
("PCR") before the trial judge. The state PCR application was
summarily denied on September 19, 1986, and Abdullah appealed.
The Appellate Division reversed and remanded the matter on July
12, 1989, on the grounds that petitioner should have been
appointed counsel. (A-22). On remand, counsel was appointed and
the PCR application was amended and supplemented by counsel and
by Abdullah, pro se. Abdullah again raised the same claims
concerning the violation of a sequestration order during trial
and prosecutorial misconduct at the grand jury proceeding. He also raised new claims that both his trial and appellate
counsel were ineffective. Specifically, petitioner alleged that
appellate counsel was ineffective in failing to raise as a ground
for appeal the absence of a specific charge on identification by
the trial court. The trial court denied the PCR application by
letter opinion dated March 13, 1990. (A-24). An Order was entered
on May 3, 1990. (A-26).
Before the May 3, 1990 Order was entered, Abdullah appealed the
PCR denial to the Appellate Division. On July 24, 1992, the
Appellate Division affirmed the denial of Abdullah's PCR
application. The appellate court found that petitioner's first
two claims were never raised in prior proceedings and are not
cognizable on appeal.*fn3 Moreover, the claims lacked merit.
Petitioner's ineffective assistance of counsel claims were
likewise devoid of merit. (A-27, A-28). The Supreme Court of New
Jersey denied Abdullah's petition for certification on November
5, 1992. (A-29).
On April 19, 1993, Abdullah filed a state habeas corpus
petition before the Superior Court of New Jersey, Middlesex
County. The writ was denied on September 16, 1993, pursuant to N.J.S.A. 2A:67-14(b). (A-30). Abdullah then filed a motion for a
prerogative writ, which was denied on April 6, 1994. (A-31).
Abdullah appealed both denials, and on October 18, 1996, the
Appellate Division affirmed. Abdullah thereafter filed his third
state PCR petition, on July 10, 1997. In support of his petition,
Abdullah argued that the verdict was against the weight of the
evidence, the jury instructions were erroneous, and that the
sentence was illegal and excessive. The trial court denied the
third PCR petition on October 29, 1998, with a final order
entered on November 19, 1998. (A-33). An appeal was filed and the
Appellate Division affirmed on January 30, 2001. (A-34).
Certification was denied by the New Jersey Supreme Court on
February 10, 2002. (A-36).
Abdullah filed this § 2254 habeas petition on or about May 6,
2002. The petition was deficient because it failed to specify
petitioner's grounds for habeas relief. It also appeared that the
petition was time-barred under 28 U.S.C. § 2244(d)(1). The Court
issued an Order, filed June 14, 2002, granting petitioner 30 days
to resubmit an amended petition that specifies the grounds for
habeas relief, and directing petitioner to provide information
relating to the statute of limitations issue. (Docket Entry No.
3). Petitioner filed an amended petition on July 17, 2002.*fn4 Abdullah then sought to amend or
supplement his petition by motion filed on August 21, 2002.
Respondents answered the petition on November 1, 2002. Abdullah
filed another motion with a supporting certification on December
16, 2002. (Docket Entry Nos. 10, 11). In his second motion,
Abdullah asked the Court to dismiss only the unexhausted claims
raised in his petition, namely, his claims alleging a denial of
his right to testify at trial and present an alibi defense.
Abdullah filed a reply or traverse to the respondents' answer on
January 6, 2003. The motion to amend or supplement the petition
was denied by the Court by Order dated January 29, 2003. (Docket
Entry No. 13). By Order dated September 30, 2003, the Court
granted petitioner's motion to dismiss only the unexhausted
claims in the petition.*fn5 (Docket Entry No. 19).
Accordingly, those claims are not before the Court in this
On March 11, 2005, Abdullah filed another request for
appointment of counsel. He filed an amended petition, without
leave of this Court, on June 2, 2005. The request to amend the petition is granted because Abdullah seeks only to correct
typographical or pagination errors in his petition. He does not
attempt to add new claims. However, the motion to appoint counsel
will be denied as moot, since the Court finds no merit to
Abdullah's habeas petition, as set forth below.
B. Factual Background
The following rendition of facts are taken from the state court
record and the state appellate court opinions.
On August 21, 1981, Abdullah and his victim, Wallace Hahl, were
co-employees at the Anchor Hocking Glass Co. in Salem, New
Jersey. Testimony at trial confirmed that Hahl was generally
known to carry large sums of cash on him at work, and that on
August 21, 1981, he had been carrying two $100 bills, which he
called his "lucky pieces."
Abdullah had been seen "punching out" at the end of his shift
at 3:00 p.m. and reentering the plant where he worked. He was
then observed leaving the area and going through a back storage
area carrying a bundle of clothing with a jacket wrapped around
it under his arm. At the same time, a tow motor operator in the
warehouse saw a black man of the same height and weight as
Abdullah come out from behind a load in the warehouse, stop, look
and run across an alley. This person was wearing a blue shirt,
blue jeans and a blue or red bandana on his head. The tow
operator drove down the alley to see who the person was, but he found no one there. He then continued to where Hahl worked and
asked if Hahl had seen anyone. Hahl responded no. At about 3:15
p.m., another worker saw someone running from an adjacent alley
who was about the same height and weight as petitioner, and
wearing a red bandana. The worker called out, but the person did
not answer and ran between a load of wares. The worker went
searching for the person and came upon the tow operator. A few
minutes later, the worker saw petitioner come from the alley
holding a jacket which covered his hands. The petitioner was
wearing a plaid shirt and tan pants. At about 3:25 p.m., another
employee found Hahl sitting in his tow motor in an alley. Hahl
was bleeding profusely from the back of his head and stated he
thought something hit him.
Hahl was taken to the hospital and it was discovered that his
wallet was missing. He slipped into a coma and remained comatose
at the beginning of trial. The examining physician stated that
Hahl's injury was inflicted by a hard instrument, but nothing was
found at the warehouse to indicate that he had been hit by a
Abdullah was detained by the police after he was observed at
the hospital the day of Hahl's injury. Petitioner's clothing and
sneakers were taken from him as well as $560.00, which included
two $100.00 bills and lesser bills. At the warehouse, the police
found sneaker prints on two pieces of cardboard. However, the prints could not be positively matched to
petitioner's sneakers. Nevertheless, it was established that
wearing sneakers at the warehouse was a discouraged practice. The
police searched the storage area where Abdullah kept his work
clothes and found a paper bag with Abdullah's trousers, a joggin
jacket and a pair of his work shoes. A plant security officer
found a sledgehammer behind the sprinkler hose. The plant janitor
found the victim's wallet in the bay area. Police found a
bludgeon and a piece of red cloth from other places in the
general area. Half of the bludgeon was wrapped in tape found in
the area where petitioner worked. Hair taken from the red cloth
matched a hair sample taken from petitioner.
II. CLAIMS FOR HABEAS RELIEF
Abdullah raises the following claims in his federal habeas
Ground One (labeled 2-A in Petition): Ineffective assistance of
counsel based on trial counsel's failure to request a jury charge
on the crucial issue of identification. Ground Two (labeled 3 in Petition): Ineffective assistance of
trial counsel in failing to object to a deficient jury charge.
Ground Three (labeled 4 in Petition): The trial court abused
its discretion in hindering petitioner's right to a fair trial by
ruling that res judicata precluded review of an erroneous
Ground Four (labeled 5 in Petition): The indictment was
defective in that it contained charges involving murder and a
weapon, when no weapon or murder was involved.
Ground Five (labeled 6 in Petition): Prosecutor failed to
inform grand jury that a laboratory report excluded petitioner
from the crime, in violation of his Fourteenth Amendment rights.
Ground Six (labeled 7 in Petition): The extended sentence is
Ground Seven (labeled 9 in Petition): Ineffective assistance of
Ground Eight (labeled 10 in Petition): Petitioner was denied
his constitutional right to testify at trial and present alibi
defense. This last claim was dismissed at the request of
petitioner, by Order of this Court dated September 30, 2003, on
the grounds that the claim was unexhausted.*fn7 III. EXHAUSTION REQUIREMENT AND PROCEDURAL DEFAULT
Respondents argue that several of petitioner's claims are
procedurally defaulted. In particular, respondents note that
Abdullah's claims regarding the identification issue, the general
jury charge, his illegal and excessive sentence, and ineffective
assistance of trial and appellate counsel, were all held to be
procedurally barred under N.J.Ct.R. 3:22-12, by the New Jersey
Law and Appellate Divisions on state court review.
It is well established that a state prisoner applying for a
writ of habeas corpus in federal court must first "exhaust? the
remedies available in the courts of the State," unless "there is
an absence of available State corrective process? or . . .
circumstances exist that render such process ineffective. . . ."
28 U.S.C. § 2254(b)(1); see also 28 U.S.C. § 2254(c); Rose
v. Lundy, 455 U.S. 509, 510 (1982); Johnson v. Pinchak,
392 F.3d 551, 556 (3d Cir. 2004). A petitioner exhausts state
remedies by presenting his federal constitutional claims to each
level of the state courts empowered to hear those claims, either on direct
appeal or in collateral post-conviction proceedings. See,
e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 847 (1999)
("requiring state prisoners [in order to fully exhaust their
claims] to file petitions for discretionary review when that
review is part of the ordinary appellate review procedure in the
State"); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997)
(collateral attack in state court is not required if the
petitioner's claim has been considered on direct appeal), cert.
denied, 532 U.S. 919 (2001); 28 U.S.C. § 2254(c) ("An applicant
shall not be deemed to have exhausted the remedies available in
the courts of the State, within the meaning of this section, if
he has the right under the law of the State to raise, by any
available procedure, the question presented.") Once a
petitioner's federal claims have been fairly presented to the
state's highest court, the exhaustion requirement is satisfied.
Castille v. Peoples, 489 U.S. 346, 350 (1989); Picard v.
Connor, 404 U.S. 270, 275 (1971).
The petitioner generally bears the burden to prove all facts
establishing exhaustion. Toulson v. Beyer, 987 F.2d 984, 987
(3d Cir. 1993). This means that the claims heard by the state
courts must be the "substantial equivalent" of the claims
asserted in the federal habeas petition. Picard,
404 U.S. at 275. Reliance on the same constitutional provision is not
sufficient; the legal theory and factual basis must also be the
same. Id. at 277. Failure to exhaust may be excused on the basis that state
process is unavailable, but "state law must clearly foreclose
state court review of unexhausted claims." Toulson,
987 F.2d at 987. In addition, the Court of Appeals for the Third Circuit has
stated that, "if a prisoner could establish that the activities
of the state authorities made the prisoner's resort to the state
procedures in effect unavailable, exhaustion would be excused."
Mayberry v. Petsock, 821 F.2d 179, 184 (3d Cir.), cert.
denied, 484 U.S. 946 (1987).*fn8
When a claim has not been fairly presented to the state courts
because state procedural rules bar the prisoner from seeking
further relief in state court, the exhaustion requirement is
satisfied because there is "an absence of available State
corrective process." 28 U.S.C. § 2254(b). See Werts v.
Vaughn, 228 F.3d 178, 192-93 (3d Cir. 2000), cert. denied,
532 U.S. 980 (2001); McCandless v. Vaughn, 172 F.3d 255, 260
(3d Cir. 1999). However, when a state procedural rule has
prevented the state courts from reaching the merits of a petitioner's federal claims,
federal habeas review of those claims ordinarily is barred
because the petitioner has procedurally defaulted the claims.
Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991). Where one state
judgment rejects a petitioner's federal claims on state
procedural grounds, "later unexplained orders upholding that
judgment or rejecting the same claims rest upon the same ground."
Id. at 803.*fn9
A procedural default occurs when a prisoner's federal
claim is barred from consideration in the state
courts by an "independent and adequate" state
procedural rule. See, e.g., Doctor[v. Walters,
96 F.3d 675, 683 (3d Cir. 1996)]. Federal courts may
not consider the merits of a procedurally defaulted
claim unless the applicant establishes "cause" to
excuse the default and actual "prejudice" as a result
of the alleged violation of the federal law or unless
the applicant demonstrates that failure to consider
the claim will result in a fundamental "miscarriage
of justice." Coleman v. Thompson, 501 U.S. 722,
750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).
Carpenter v. Vaughn, 296 F.3d 138
, 146 (3d Cir. 2002).
On habeas review of state prisoner claims, a federal court
"will presume that there is no independent and adequate state
ground for a state court decision when the decision `fairly
appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of
any possible state law ground is not clear from the face of the
opinion.'" Coleman, 501 U.S. at 734-35 (quoting Michigan v.
Long, 463 U.S. 1032, 1040-41 (1983)).*fn10 Only a "firmly
established and regularly followed state practice" is adequate to
prevent subsequent habeas review in federal court. James v.
Kentucky, 466 U.S. 341, 348-351 (1984). See also Lee v.
Kemna, 534 U.S. 362, 376 (2002) ("Ordinarily, violation of
"firmly established and regularly followed" state rules . . .
will be adequate to foreclose review of a federal claim."
(citations omitted)). Generally speaking, "[a] state court's
refusal to address a prisoner's federal claims because he has not
met a state procedural requirement is both independent and
adequate." Cabrera v. Barbo, 175 F.3d 307, 312 (3d Cir. 1999)
(citations omitted), cert. denied, 528 U.S. 886 (1999).
The "cause" standard requires a petitioner to show that some
objective factor external to the defense impeded his efforts to
comply with the state procedural rule. See Coleman,
501 U.S. at 752 (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). In
the absence of a Sixth Amendment violation, the petitioner bears
the risk in federal habeas for all attorney errors made in the
course of the representation. Coleman, 501 U.S. at 754. Neither a pro
se prisoner's ignorance of the procedural rule nor inadvertence
satisfies the cause standard. Murray at 485-87. Failure of the
state court to "bend the rules" for a pro se litigant is not
cause. Caswell v. Ryan, 953 F.2d 853, 862 (3d Cir. 1992),
cert. denied, 504 U.S. 944 (1992).
To establish "prejudice," a petitioner must prove "`not merely
that the errors at . . . trial created a possibility of
prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of
constitutional dimension.'" Murray v. Carrier, 477 U.S. 478,
494 (1986) (quoting United States v. Frady, 456 U.S. 152, 170
(1982)). In the context of an ineffective assistance claim, the
Court of Appeals for the Third Circuit has held that prejudice
occurs where "there is a reasonable probability that, but for
counsel's deficient performance, the result of the proceeding
would have been different." Sistrunk v. Vaughn, 96 F.3d 666,
670 (3d Cir. 1996).
In the alternative, in order to establish that failure to
review an otherwise procedurally defaulted claim will result in a
"miscarriage of justice," a petitioner must show that "a
constitutional violation has probably resulted in the conviction
of one who is actually innocent." Carrier, 477 U.S. at 496.
"Thus, to establish a miscarriage of justice, the petitioner must prove that it is more likely than not that no reasonable juror
would have convicted him." Werts, 228 F.3d at 193 (citing
Schlup v. Delo, 513 U.S. 298, 326 (1995)).
Here, the State court determined that Abdullah's claims
alleging failure to instruct the jury on identification, and the
State's failure to prove identification, asserted by petitioner
in his petition for post-conviction relief, were barred under
N.J.Ct.R. 3:22-4 because they were never raised in prior
proceedings and are not cognizable on appeal.*fn11 (July 24,
1992 Appellate Division opinion on petitioner's appeal from
denial of state PCR application, A-27, A-28). The court
alternatively determined, without discussion, that the claims
"clearly lack merit." (A-28). The Appellate Division further
found that the ineffective assistance of trial and appellate
counsel claims were "equally devoid of substance." (A-28). In
Abdullah's second PCR petition on appeal, the Appellate Division
found, without discussion, that the claims raised by Abdullah were without
merit. The Appellate Division relied substantially on the reasons
set forth in the lower court's opinion dated October 29, 1998,
including the procedural bar of N.J.Ct.R. 3:21-4, 5, and
12.*fn12 (January 30, 2001 Appellate Division per curiam
Opinion, A-34, A-35).
Thus, there is no clear and unambiguous determination by the
state courts that the claims were dismissed solely on the grounds
of procedural default or bar. Rather, the courts also determined
that the claims were without merit. Thus, this Court finds that
with respect to all remaining grounds for habeas relief, see
this Opinion, supra, at § II, pp. 9-10, the exhaustion
requirement was satisfied as Abdullah presented each claim to the
New Jersey courts and denial of relief on the merits was affirmed
by the New Jersey Appellate Division and New Jersey Supreme
Even if the Court determines that the claims are procedurally
defaulted, the Court may opt to review the allegedly unexhausted,
defaulted claims, and deny them on the merits pursuant to
28 U.S.C. § 2254(b)(2). Section 2254(b)(2) provides that "[a]n
application for writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to exhaust
the remedies available in the courts of the State." Here, the respondents have fully addressed each of petitioner's
claims on the merits, as well as asserting affirmative defenses
to some of them. It is the Court's preference to deny this
petition on the merits, pursuant to 28 U.S.C. § 2254(b)(2), when
"it is perfectly clear that an applicant does not raise even a
colorable federal claim." Lambert, 134 F.3d at 514-15.
A. Standard Governing Review of § 2254 Claims
The Court recognizes that a pro se pleading is held to less
stringent standards than more formal pleadings drafted by
attorneys. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines
v. Kerner, 404 U.S. 519, 520 (1972). Thus, a pro se habeas
petition should be construed liberally and with a measure of
tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir.
1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir.
1989); Duarte v. Hurley, 43 F. Supp.2d 504, 507 (D.N.J. 1999).
Because Abdullah is proceeding pro se in his application for
habeas relief, the Court will accord his petition the liberal
construction intended for pro se litigants.
Under § 2254, as amended by the Anti-Terrorism and Effective
Death Penalty Act of 1996 ("AEDPA"), federal courts in habeas
matters must give considerable deference to determinations of the
state trial and appellate courts. See 28 U.S.C. § 2254(e);
Duncan v. Morton, 256 F.3d 189, 196 (3d Cir.), cert. denied, 122 S.Ct. 269 (2001); Dickerson v. Vaughn,
90 F.3d 87, 90 (3d Cir. 1996) (citing Parke v. Raley, 506 U.S. 20, 36
(1992)). Section 2254(d) sets the standard for granting or
denying a habeas writ:
(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(d).
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court
explained that subsection (d)(1) involves two clauses or
conditions, one of which must be satisfied before a writ may
issue. The first clause, or condition, is referred to as the
"contrary to" clause. The second condition is the "unreasonable
application" clause. Williams, 529 U.S. at 412-13. In the
"contrary to" clause, "a federal court may grant the writ if the
state arrives at 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." Id. Under the "unreasonable application" clause, a federal court may grant the
writ if "the state court identifies the correct governing legal
principle from [the Supreme] Court's decisions but unreasonably
applies that principle to the facts of [the petitioner's] case."
Id. at 413. Habeas relief may not be granted under the
"unreasonable application" condition unless a state court's
application of clearly established federal law was objectively
unreasonable; an incorrect application of federal law alone is
not sufficient to warrant habeas relief. Id. at 411. See
also Werts v. Vaughn, 228 F.3d 178, 197 (3d Cir. 2000),
cert. denied, 532 U.S. 980 (2001); Matteo v. Superintendent,
SCI Albion, 171 F.3d 877, 891 (3d Cir. 1999), cert. denied
sub nom Matteo v. Brennan, 528 U.S. 824 (1999).
Consonant with Williams, the Third Circuit has held that §
2254(d)(1) requires a federal habeas court to make a two step
inquiry of the petitioner's claims. First, the court must examine
the claims under the "contrary to" provision, identify the
applicable Supreme Court precedent and determine whether it
resolves petitioner's claims. See Werts, 228 F.3d at 196-97;
Matteo, 171 F.3d at 888-891. If the federal court determines
that the state court's decision was not "contrary to" applicable
Supreme Court precedent, then the court takes the second step of
the analysis under § 2254(d)(1), which is whether the state court unreasonably applied the Supreme Court precedent in reaching its
decision. Werts, 228 F.3d at 197.
This second step requires more than a disagreement with the
state court's ruling because the Supreme Court would have reached
a different result. Id. AEDPA prohibits such de novo review.
Rather, the federal habeas court must determine whether the state
court's application of the Supreme Court precedent was
objectively unreasonable. Id. In short, the federal court must
decide whether the state court's application of federal law, when
evaluated objectively and on the merits, resulted in an outcome
that cannot reasonably be justified under existing Supreme Court
precedent. Id.; see also Jacobs v. Horn, 395 F.3d 92, 100
(3d Cir. 2005).
Finally, federal courts are required to apply a "presumption of
correctness to factual determinations made by the state court."
Id.; see also 28 U.S.C. § 2254(e)(1). The Third Circuit has
ruled that this presumption of correctness based upon state court
factual findings can only be overcome by clear and convincing
evidence. See Duncan, 256 F.3d at 196 (citing
28 U.S.C. § 2254(e)(1)). Consequently, a habeas petitioner "must clear a high
hurdle before a federal court will set aside any of the state
court's factual findings." Mastracchio v. Vose, 274 F.3d 590,
597-98 (1st Cir. 2001). B. Ineffective Assistance of Trial Counsel
In Grounds 2-A and 3 of his petition, and in his traverse,
Abdullah alleges that his trial counsel was ineffective for (1)
failing to request a Wade hearing; (2) failing to object to an
allegedly deficient jury charge on attempted murder and on the
crucial issue of identification; (3) failing to "explore" the
laboratory reports with respect to physical evidence; and (4)
failing to adequately represent petitioner at the sentencing
phase of the criminal proceedings.
The "clearly established Federal law, as determined by the
Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), is
the standard for ineffective assistance of counsel as enunciated
in Strickland v. Washington, 466 U.S. 668 (1984). Under
Strickland, a petitioner seeking to prove a Sixth Amendment
violation must demonstrate that his counsel's performance fell
below an objective standard of reasonableness, assessing the
facts of the case at the time of counsel's conduct. Id. at
688-89; Jacobs v. Horn, 395 F.3d 92, 102(3d Cir. 2005); Keller
v. Larkins, 251 F.3d 408, 418 (3d Cir.), cert. denied,
534 U.S. 973 (2001). Counsel's errors must have been "so serious as
to deprive the defendant of a fair trial, a trial whose result is
reliable." Strickland, 466 U.S. at 688. "In any case presenting
an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the
circumstances." Id. The Supreme Court further explained:
Judicial scrutiny of counsel's performance must be
highly deferential. It is all too tempting for a
defendant to second-guess counsel's assistance after
conviction or adverse sentence, and it is all too
easy for a court, examining counsel's defense after
it has proved unsuccessful, to conclude that a
particular act or omission of counsel was
unreasonable. A fair assessment of attorney
performance requires that every effort be made to
eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's
perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must
indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable
professional assistance; that is, the defendant must
overcome the presumption that, under the
circumstances, the challenged action "might be
considered sound trial strategy."
Id. at 689 (citations omitted); see also Virgin Islands v.
Wheatherwax, 77 F.3d 1425
, 1431 (3d Cir.), cert. denied,
519 U.S. 1020 (1996).
If able to demonstrate deficient performance by counsel,
Abdullah must next show that counsel's substandard performance
actually prejudiced his defense. Strickland, 466 U.S. at 687.
Prejudice is shown if "there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome."
Id. at 694. The reviewing court must evaluate the effect of any
errors in light of the totality of the evidence. Id. at 695-96. Thus, the petitioner must establish both
deficient performance and resulting prejudice in order to state
an ineffective assistance of counsel claim. Id. at 697. See
also Jacobs, 395 F.3d at 102; Keller, 251 F.3d at 418.
1. Counsel's Failure to Request a Wade Hearing
Abdullah's first argument appears to suggest that his trial
counsel was ineffective for failing to request a Wade hearing.
This claim is clearly without merit. Abdullah does not allege
that any out-of-court identification procedures were conducted by
the police. Thus, there is no evidence to suggest that any
identification procedures were unnecessarily suggestive. In fact,
the record shows that no witness testified at trial with respect
to an out-of-court identification of petitioner at the scene of
Abdullah's trial counsel cannot be expected to file a motion to
suppress identification testimony in a case where no such
questionable testimony has been proffered. To establish
ineffective assistance of counsel based on a failure to file a
motion on this ground, petitioner must be able to show that the
motion would have succeeded. Counsel's failure to file motions
does not per se constitute ineffective assistance of counsel.
See Kimmelman v. Morrison, 477 U.S. 365, 383-84 (1986);
Jelinek v. Costello, 247 F. Supp.2d 212 (E.D.N.Y. 2003).
Rather, a determination of ineffectiveness depends on whether the
motion or objection would have been granted or sustained had it been made.
United States v. Oakley, 827 F.2d 1023, 1025 (5th Cir. 1987).
Thus, "[c]ounsel cannot be faulted for failing to pursue
meritless or futile objections." Johnston v. Love,
940 F. Supp. 738, 776 (E.D. Pa. 1996), aff'd 118 F.3d 1576 (3d Cir.),
cert. denied, 522 U.S. 972 (1997); see also Bolender v.
Singletary, 16 F.3d 1547, 1573 (11th Cir.), cert. denied,
513 U.S. 1022 (1994) (failure to raise non-meritorious issues
does not constitute ineffective assistance of counsel). Moreover,
the filing of pretrial motions "falls squarely within the ambit
of trial strategy." Murray v. Maggio, 736 F.2d 279, 283 (5th
Cir. 1984), and Abdullah has alleged no facts that would overcome
the presumption that counsel's decision in this regard was
strategic. Strickland, 466 U.S. at 689.
This Court finds nothing in the record to support Abdullah's
meritless claim that counsel should have requested a Wade
hearing. Counsel cannot be expected to raise issues that are
plainly frivolous and without merit. Therefore, on this claim,
the Court concludes that Abdullah has failed to demonstrate
ineffective assistance of trial counsel.
2. Failure to Object to Jury Charge
Next, it appears that Abdullah is asserting a claim that
counsel should have objected to the jury charge on identification
and on attempted murder. The trial court denied a similar claim raised by petitioner in
his state PCR proceedings. In a March 13, 1990 letter opinion,
the trial court found that it was "obvious that the third count
of the indictment charged attempted murder and Judge Telsey's
charge on that count defined attempted murder and that the
language `during the commission of the crime of robbery' was
merely descriptive and superfluous and had no tendency to mislead
the jury in its deliberations as to that count and the other
counts of the indictment." (A-24; A-25).
This Court finds no error in the charge on attempted murder
that would give rise to a claim of ineffective assistance of
counsel for failing to object to the charge.*fn13 Moreover, Abdullah was acquitted of attempted murder. Consequently, to the
extent there may have been an error in failing to object to the
attempted murder charge, it was plainly harmless. As to the lack of an identification charge, the PCR court found
no error in counsel's failure to have a separate and specific
charge included in the jury instructions. Specifically, the court
concluded that identification testimony was not a critical or key
issue in petitioner's case:
Obviously, your conviction turned on the jury's
determination of whether or not you are the one
guilty of the commission of the crime charged as
opposed to whether or not you were present on the
scene. The factual pattern considered by your jury is
so far different from that involved in State v.
Norman Green, supra, [citation omitted] that the
necessity to include such a charge on identification
evaporates and failure to include such a charge is
not error much less plain error requiring relief.
(A25, March 13, 1990 letter opinion).
After reviewing the record, this Court finds nothing to
indicate that the state court decisions (which concluded there
was no error, and hence, no ineffective assistance of counsel)
were based on an unreasonable application of the facts in light
of the evidence presented at trial. Nor were the decisions
contrary to established federal law. Abdullah has not
demonstrated that the state court decisions, when evaluated
objectively and on the merits, resulted in an outcome that cannot
be reasonably justified. Matteo, 171 F.3d at 891. Accordingly,
this claim of ineffective assistance of counsel is without merit.
3. Counsel's Alleged Failure to "Explore" Lab Reports
The Court construes this next claim inartfully asserted by
Abdullah as a claim that counsel was ineffective for failing to investigate or prepare a proper defense based on what petitioner
characterizes as inconclusive lab results.
"[A]n attorney must investigate a case, when he has cause to do
so, in order to provide minimally competent professional
representation." United States v. Kauffman, 109 F.3d 186, 190
(3d Cir. 1997); Lewis v. Mazurkiewicz, 915 F.2d 106, 111 (3d
Cir. 1990) (counsel has a duty to investigate or to make a
reasonable decision that makes particular investigations
unnecessary). When assessing an ineffectiveness claim based on
failure to investigate, a court must assess the decision not to
investigate "for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel's judgments."
Strickland, 466 U.S. at 691; Kimmelman v. Morrison,
477 U.S. 365, 384 (1986); see also Duncan v. Morton, 256 F.3d 189,
201 (3d Cir.), cert. denied, 534 U.S. 919 (2001).
"[S]trategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation."
Strickland, 466 U.S. at 691-92. Even if counsel was deficient
in his decision not to investigate, a petitioner must show a
reasonable likelihood that, but for the deficiency, the result of
the proceeding would have been different. Lewis,
915 F.2d at 115.
It is firmly established that a court must consider the
strength of the evidence in deciding whether the second prong under Strickland, i.e., prejudice, has been satisfied. A
court "must consider the totality of the evidence before judge or
jury." Strickland, 466 U.S. at 695. This is necessary because
prejudicial error by counsel requires a court to determine
whether there is a reasonable probability that, but for counsel's
errors, the trial result would have been different. Id.;
Flamer v. Delaware, 68 F.3d 710, 728 (3d Cir. 1995), cert.
denied, 516 U.S. 1088 (1996). A court simply cannot make this
determination without considering the strength of the evidence
against the defendant.
The principal argument asserted by petitioner here is that
trial counsel did not adequately investigate and prepare a
defense with respect to allegedly exculpatory evidence noted in
the lab reports. These reports purportedly excluded petitioner
from the scene of the crime. No fingerprints were found to match
Abdullah. The sneaker prints were too faint to compare, and hair
samples were inconclusive.
The record shows that all forensic reports were provided to
counsel in discovery. More significantly, however, the issues
raised by petitioner concerning the exculpatory nature of the lab
reports were stipulated at trial. The prosecutor and defense
counsel stipulated that the forensic chemist report indicates
that a drop of blood found on a pair of rust-colored pants
belonging to petitioner was insufficient to determine its origin or blood grouping. They also stipulated that the sneaker prints
found on the cardboard pieces did not match petitioner's sneakers
and that the prints were too smeared to draw any conclusion. The
photographs of the sneaker prints were too faint to make any
comparison. (July 1, 1982 trial transcript 210:6-211:6;
Finally, the Court's review of the trial transcript reveals
that defense counsel was thoroughly prepared and aware of the
critical issues in the matter. This is reflected in defense
counsel's aggressive cross-examination of Anchor Hocking
witnesses, the investigating police officers, and other witnesses
on key areas of credibility and circumstantial evidence.
Moreover, counsel's closing argument was exhaustive and
forcefully stressed the lack of direct physical evidence placing
petitioner at the scene, the weaknesses in the witnesses'
testimony, and the absence of any eyewitness testimony.
Consequently, the record does not reveal anything that was not
already known and investigated by defense counsel in preparing a
defense for trial, and this Court finds no basis for a claim that
counsel's performance was deficient or substandard.
Trial counsel is only required to make "reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary." See Strickland,
466 U.S. at 691. Thus, as stated above, the Court finds that
Abdullah's trial counsel ably represented petitioner with a clear
understanding of the evidence, witnesses and the critical issues
in the case. It cannot be said that he was ill-prepared to defend
Further, this Court notes that, in the absence of some
competent proof that the investigation he suggests would have
actually produced different evidence at trial, Abdullah cannot be
said to have demonstrated a reasonable probability that, but for
a failure to investigate, the result of the trial would have been
different. See Strickland, 466 U.S. at 687. Nothing was
presented at trial, or by petitioner in his habeas application
here, that would support his mostly frivolous claims. In the
absence of some competent proof that additional investigation
would have produced exculpatory evidence, the Court finds no
merit in Abdullah's claim. Hence, even if the Court assumes for
arguments' sake that trial counsel was deficient in investigating
and preparing a defense, it is plain from the lack of evidence
produced by petitioner that he could not have met the second
prong under Strickland, that is, that the investigation would
have resulted in a different outcome at trial. The trial record
shows that the weight of the evidence, albeit circumstantial
evidence, presented at trial was sufficiently strong that the
jury would not have reached a different verdict. Therefore, the Court concludes that Abdullah is not entitled to
habeas relief based on allegations that trial counsel failed to
investigate and prepare a defense.
4. Ineffective Representation at Sentencing Phase
This last claim is addressed more fully in this Opinion,
infra, as it relates to petitioner's claim that his extended
sentence was illegal. Because there is no basis to the claim that
a sentencing hearing on the extended term was not held, or that
the elements of the first degree robbery conviction were not
proven to support an extended term, the Court finds that
Abdullah's claim that trial counsel was ineffective at the
sentencing phase is wholly without merit.
In sum, Abdullah has failed to show any instance of deficient
performance by counsel in his case, which would give rise to a
claim of constitutional deprivation. Therefore, the ineffective
assistance of counsel claim is denied on the merits.
C. The Trial Court Abused Its Discretion
In another inartfully stated claim, Abdullah argues that the
trial court abused its discretion in hindering Abdullah's right
to a fair trial by ruling that res judicata precluded a
review of an erroneous jury charge.
This claim appears to stem from the state PCR court's November
19, 1998 Order denying Abdullah's motion for post-conviction
relief. In that Order, the court found that Count 2 of Abdullah's PCR motion was "covered by a prior appeal [and] is
barred by court rule and res judicata." The Order further
stated that "Counts 3, 4 and 5 were not raised on an earlier
appeal but were handled at a prior motion for post conviction
relief and are barred by res judicata." (A-33, November 19,
1998 Order filed by Superior Court of New Jersey, Law Division,
Salem County, denying Motion for Post-Conviction Relief).
It is apparent from the November 19, 1998 Order that Abdullah's
PCR motion was held to be barred by operation of state procedural
law, namely, N.J. Court Rules 3:22-3 and 3:22-4. Matters of state
procedural law are not generally reviewable in a federal habeas
petition. The Supreme Court has stated that "it is not the
province of a federal habeas court to reexamine state-court
determinations on state-law questions." Estelle v. McGuire,
502 U.S. 62, 67-68 (1991). This is generally true even where the
state court incorrectly applied state law. Id. at 71. Rather, a
federal habeas claim will lie only where a state court
determination violated some federally protected right. Id. at
68. The Third Circuit likewise stated:
Our review of a federal habeas corpus petition is
limited to remedying deprivations of a petitioner's
federal constitutional rights. We can take no
cognizance of non-constitutional harm to the
defendant flowing from a state's violation of its own
procedural rule, even if that rule is intended as a
guide to implement a federal constitutional
guarantee. Wells v. Petsock, 941 F.2d 253, 256 (3d Cir. 1991),
cert. denied, 505 U.S. 1223 (1992); see also
Smith v. Zimmerman, 768 F.2d 69, 73 (3d Cir. 1985)
("a `mere error of state law' is not a denial of due
Here, it is not for this Court to review on a federal habeas
petition whether the state PCR court incorrectly applied state
procedural law to bar review of Abdullah's claims that were
previously raised and decided on direct appeal and on a prior PCR
petition. Further, it is plain that petitioner was not denied due
process or other federally protected right. The record clearly
indicates that the PCR court correctly applied the state
procedural bar and that the Appellate Division also found
petitioner's claims to be without merit. Therefore, this claim by
petitioner is denied for failure to state a federal
D. The Indictment Was Defective
Next, Abdullah contends that the indictment was defective
because it allegedly charged him with murder by use of a weapon,
and no murder was committed, and no weapon was found. This claim
is obviously without merit. The indictment clearly charges
petitioner with "attempted murder", not murder. It also plainly
states that the first count charging petitioner with aggravated
assault was by use of "a deadly weapon, to wit, by striking said
victim, Wally Hahl, over the head with a bludgeon." (A-1, A-2; Indictment dated August 21, 1981). Evidence and testimony was
produced at the grand jury proceedings to support the charges.
Accordingly, the Court finds petitioner's claim in this regard to
be absurd and without merit.
E. Prosecutorial Misconduct Before the Grand Jury
Abdullah also claims that the prosecutor failed to tell the
grand jury about lab reports which purportedly excluded him from
the scene of the crime, and that he improperly characterized the
facts to get an indictment. Thus, the grand jury was unduly
influenced, and the indictment should be dismissed.
This claim was initially raised on direct appeal and was
rejected as without merit. First, the state court found no merit
to Abdullah's suggestion of prosecutorial misconduct during the
grand jury proceedings. (A-16, June 24, 1985 Appellate Division
Opinion, at pg. 7). The court stated:
It is defendant's position that the prosecutor
usurped the grand jury's decision making function by
improperly characterizing the facts. . . . There is
no impropriety in the prosecutor's assisting in the
investigation and examination of witnesses, in
advising the grand jury as to the admissibility of
evidence and in explaining testimony with reference
to the law of the case so long as the prosecutor does
not express his views on questions of fact, comment
on the weight or sufficiency of the evidence or
attempt to influence the grand jury in its findings.
[citations omitted]. A chance remark before the grand
jury does not affect the ultimate determination of
defendant's guilt and therefore should not be judged
on the same level with improper comment before a
petit jury. [citation omitted]. Unless the
prosecutor's misconduct before a grand jury is
extreme and clearly infringes upon the jury's
decision making function, it should not be utilized
to dismiss the indictment. [citation omitted]. . . . Moreover, the prosecutor did not urge that the
grand jury should indict because of the facts recited
but rather stated the jury should refer to the
testimony it had heard in determining whether there
was probable cause to believe defendant committed had
committed any crime. Defendant's contentions of
prosecutorial interference with the grand jury
deliberations are therefore rejected.*fn14
(A-16 to A-17).
Second, there is no federal constitutional right to a grand
jury in state criminal proceedings, thus defects in a state grand
jury process are not reviewable via a federal habeas petition
unless they "rise for some other reason to the level of a denial
of rights protected by the United States Constitution."
Wainwright v. Goode, 464 U.S. 78, 86 (1983); see also
Jelinek v. Costello, 247 F. Supp.2d 212, 278 (E.D.N.Y. 2003)
("On its face, a state prisoner's claim that he was denied the
procedural right to be indicted by a grand jury appears to
implicate a right that is exclusively of state concern").
Abdullah has been unable to show how the alleged defect in the
grand jury proceedings, that is, the prosecutor's failure to
present the lab reports, deprived him of his constitutional
rights. Moreover, the forensic reports were not yet available
when the grand jury proceedings took place. (September 17, 1981
Grand Jury transcript, 20:21).*fn15 Thus, the prosecutor could not present evidence to the grand jury
which the State did not yet possess.
Moreover, a claim as to the validity of a state indictment, as
opposed to the fairness of a trial, does not typically rise to
the level of a constitutional deprivation because any such claims
alleging error in a state grand jury proceeding are rendered
harmless by the subsequent guilty verdict by a petit jury. See
Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989). See also
United States v. Mechanik, 475 U.S. 66, 72-73 (1986); United
States v. Enigwe, 17 F. Supp.2d 390, 393 (E.D. Pa. 1998),
aff'd, 248 F.3d 1131 (3d Cir. 2000), cert. denied,
531 U.S. 1185 (2001). Therefore, the petit jury's eventual conviction of
Abdullah, even after the inconclusive findings of the lab
reports, which had been stipulated by counsel on the record,
renders harmless Abdullah's otherwise unsupported claim of
irregularities in the grand jury proceedings. Accordingly, this
claim for habeas relief will be denied.
F. The Extended Sentence is Illegal
In this ground for relief, Abdullah contends that the sentence
as imposed was excessive. The record shows that petitioner was
sentenced to a discretionary extended term as a persistent
offender under N.J.S.A. 2C:43-7 and 2C:44-3. The sentencing court
sets forth its reasons for the extended term, pursuant to
N.J.Ct.R. 3:21-4(e) in the Judgment of Conviction and Order for Commitment, attached to the Answer at A-8, and the
amended petition at P.App.5. It appears that the statement of
reasons was taken from the court's ruling at petitioner's
sentencing hearing.*fn16 The court first states that
petitioner was convicted of robbery in the first degree. The
court went on to note the testimony disclosed at trial which,
although circumstantial, was sufficient for the jury to conclude
that Abdullah was the offender. The court next stated that the
crime was "heinous and deliberate", and found the following
the offense was committed in an especially heinous,
cruel or depraved manner as evidenced by the fact
that it was not only calculated and deliberated as
shown by the changes of clothes and clocking out and
the returning and making a bludgeon, but the victim
also suffered irreparable and permanent injuries. The
second aggravating circumstance is the gravity and
seriousness of the harm inflicted upon the victim. He
is in a permanent coma with no hope for recovery.
This was caused by the bludgeoning. I have considered
the fact there is a risk the defendant will commit
another offense based upon his overall attitude as
well as his prior criminal record. He does not seem
to concern himself much about society's rules. Not
only has he committed many crimes in the past, but
his personal life would indicate disregard for the
rules. He has support arrearages of substantial
amounts from several marriages. I must also consider
the need for deterring others as well as the defendant from violating the law. There is a very
strong need for deterrence in this type of case.
(A-8, Judgement of Conviction and Order for Commitment, Reasons
for Sentence pursuant to R. 3:21-4(e)).*fn17
motion for post-conviction relief in state court, the PCR court
found that petitioner should have raised the issue on direct
appeal, and was barred from presenting the issue pursuant to
N.J.Ct.R. 3:22-12. (A-33) The Appellate Division also found that
the claims presented on the PCR motion lacked merit that did not
warrant discussion. (A-35).
In the habeas petition and traverse, Abdullah argues that he
was deprived of a hearing on the request for an extended term,
and thus, his sentence is illegal. He also argues that the
Supreme Court ruling in Apprendi v. New Jersey 530 U.S. 466
(2001) provides that any fact that increases the penalty for a
crime beyond the prescribed statutory maximum, is an element of
the crime that must be presented to the jury and proven beyond a
reasonable doubt. Abdullah further contends, inaccurately, that
his extended term was based on his conviction for a robbery
instead of "theft", and that the "degree" of robbery is not part
of the substantive offense but rather is merely a grading
provision. Finally, Abdullah wrongly asserts that his conviction
for first degree robbery charge is in error because such an offense necessarily includes the use of a deadly weapon, and
Abdullah implies that a deadly weapon is a gun, which was not at
issue here. In short, Abdullah argues that he did not commit the
type of robbery one must commit to be eligible for sentencing to
an extended term.
Respondents argue that Abdullah's excessive sentence claim is
procedurally barred because the claim was never raised on direct
appeal and the state PCR court and Appellate Division
subsequently found the claim to be procedurally barred under N.J.
Ct.R. 3:22-12. (Answer at 19; A-33, A-35). Respondents did not
address the merits of petitioner's claim in their answer.
However, as stated in this Opinion, supra, at pp. 18-19, the
Court will exercise its discretion under § 2254(b)(2) to deny
relief where it is plain that no error occurred and that
petitioner's arguments are without merit.
First, the Court construes petitioner's claim as an argument
that the imposition of the extended term (life imprisonment with
a 25-year parole disqualifier) violated petitioner's right to due
process. Based upon review of the record, however, the Court
finds that petitioner was appropriately sentenced as a persistent
offender and that there was no denial of due process in the
It is apparent from the record that petitioner had a sentencing
hearing and was accorded all process that was due under the law. The sentencing court weighed all of the
aggravating factors and apparently found no mitigating factors.
To the extent Abdullah claims that he did not commit the type of
crime encompassed by a first degree robbery charge, it is belied
by the jury conviction for first degree robbery. Further, the
sentencing court listed the elements of the offense, and the
evidence proven at trial that supported a conviction on all
elements of a first degree robbery offense.
Thus, the sentencing court expressly found that Abdullah was
subject to an enhanced sentence on a first degree robbery
conviction as a persistent offender and that the enhanced
sentence imposed was appropriate in the exercise of that court's
discretion. See N.J.S.A. 2C:44-3a (regarding enhanced sentences
for persistent offenders). Accordingly, where Abdullah does not
challenge his status as a persistent offender but instead claims
that he did not have a due process hearing, the Court concludes
that the illegal and excessive sentence claim is meritless.
Next, the Court finds that Abdullah's Apprendi claim is not
availing. The Supreme Court held in Apprendi: "Other than the
fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond reasonable doubt."
Apprendi, 430 U.S. at 489. Here, the first basis for an
extended term, that Abdullah was convicted of first degree
robbery, had been submitted to a jury and proven beyond a reasonable doubt.
The second basis, that Abdullah was a persistent offender, does
not fall within the scope as set forth in Apprendi. Id.
Indeed, the Supreme Court held in Blakely v. Washington,
542 U.S. 296 (2004) that an enhanced sentence as a persistent
offender based upon a record of prior convictions is a fact which
could be determined by the judge and could serve as the basis for
determining the statutory maximum sentence. Accordingly,
Abdullah's Apprendi argument with respect to his excessive
sentence claim also lacks merit and will be denied.
In sum, based on the record, this Court finds that petitioner's
sentence fell within the permissible statutory limit in effect at
the time. The Court also finds the determining factors advanced
by the sentencing judge in support of an extended term were sound
and reasonable. Moreover, even if this Court was of the opinion
that the sentence was excessive, which is not the case, it is
well established that "the severity of the defendant's sentence
alone constitutes no ground for [habeas] relief." United States
ex rel. Jackson v. Myers, 374 F.2d 707, 711 n. 11 (3d Cir.
1967); see also Townsend v. Burke, 334 U.S. 736, 741
(1948). Therefore, having determined that the state court's
sentence did not violate any federal constitutional rights,
federal habeas relief cannot be granted, and this claim will be
denied. G. Ineffective Assistance of Appellate Counsel
Lastly, Abdullah broadly asserts that his appellate counsel was
ineffective in violation of his constitutional rights for his
failure to raise obvious issues of error that were meritorious
and would have likely led to his conviction being reversed on
appeal. In his state PCR petition, this claim relating to the
ineffectiveness of appellate counsel appears to be limited to
counsel's failure on appeal to challenge the trial court's
failure to request an identification charge. The PCR court found
that "[S]ince . . . there is no plain error involved in this
failure to include a separate and specific charge on
identification, the claim of ineffective appellate counsel based
on that point must also fail and this final ground of
Post-Conviction Relief is denied." (A25).
Claims of ineffective assistance of appellate counsel are
evaluated under the Strickland standard previously discussed.
See Wright v. Vaughn, 2004 WL 1687865, *6, n. 10 (E.D. Pa.
July 26, 2004). In order to prevail on a claim that appellate
counsel was ineffective, Abdullah must show that (1) counsel's
performance fell below an objective standard of reasonableness,
and (2) there was a reasonable probability, but for counsel's
deficiency in raising the arguments on appeal, that the
conviction would have been reversed on appeal. See Buehl v. Vaughn, 166 F.3d 163, 173-74 (3d Cir. 1999), cert.
dismissed, 527 U.S. 1050 (1999).
Here, Abdullah has failed to show that the performance of his
appellate counsel was deficient and that he was prejudiced
thereby, and in light of the evaluation of this issue by the
state courts, this Court cannot conclude that that the
determination of this issue resulted in a decision that was
contrary to, or involved an unreasonable application or
determination of law or fact. Williams v. Taylor, supra.
Accordingly, the Court will deny relief on this claim.*fn18
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 Abdullah 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).
For the foregoing reasons, this Court finds that Abdullah's §
2254 habeas petition should be denied on the merits. A
certificate of appealability will not issue. An appropriate Order
accompanies this Opinion.