United States District Court, D. New Jersey
September 21, 2005.
Abdul-Halim N. SHAHID, Petitioner,
Terrance MOORE, et al., Respondents.
The opinion of the court was delivered by: WILLIAM BASSLER, District Judge
Petitioner Abdul-Halim N. Shahid ("Petitioner"), formerly
Gerald Gooding, files this petition seeking a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. In 1984, Petitioner was
convicted of felony murder, robbery, and possession of a weapon
for the purpose of using it unlawfully. After appealing his
conviction through the state court system and filing four
separate requests for Post Conviction Relief ("PCR"), Petitioner now seeks relief in this Court. He claims that (1) the admission
of certain in-person and photographic identifications into trial
violated his right to due process and a fair trial rights; (2) he
was denied the effective assistance of counsel; (3) the trial
court's failure to define the elements of criminal attempt in its
jury instruction on robbery violated his rights to due process
and a fair trial; (4) the improper and prejudicial remarks made
by the prosecutor during the summation violated his rights to due
process and a fair trial.
For the reasons set forth in this opinion, Petitioner's
petition for habeas relief is denied.
I. Factual Background
The crime with which Petitioner was charged occurred
approximately 4 a.m. on February 18, 1984. The victim, Bernard
Cruder ("Bernard"), and his adult son, Robert Cruder ("Robert"),
were in their parked vehicle on the corner of Miller Street and
Broad Avenue in Newark, New Jersey. Bernard was sitting in the
front seat, and Robert was sitting in the back seat receiving
oral sex from a male prostitute. A few minutes later an
assailant, armed with a knife, entered the rear of the vehicle
and demanded their money. Bernard and Robert struggled with the
assailant. During the struggle, Bernard was stabbed, and the
assailant was also injured. After the assailant fled from the
scene, Robert drove Bernard to St. James Hospital where Bernard died shortly after arrival. While at the hospital, Robert gave a
description of the assailant to the police. The police matched
the description to Petitioner. Petitioner had just been taken to
Beth Israel Hospital, alleging that he had been the victim of a
street mugging. After Robert identified Petitioner at the
hospital and again in a photographic identification, the police
A jury convicted Petitioner of felony murder, first degree
robbery, and third degree possession of a weapon for the purpose
of using it unlawfully. The trial court merged robbery conviction
into the felony murder conviction and sentenced Petitioner to a
term of 30 years without parole eligibility. The court also
sentenced Petitioner to a concurrent term of five years on the
II. Procedural Background
Tried to a jury, Petitioner was convicted on May 24, 1984. On
direct appeal, Petitioner unsuccessfully argued that: (1) the
trial judge erred in admitting Robert's out-of-court
identifications, and (2) acts of prosecutorial misconduct
committed during the summation were improper and prejudicial.
On June 19, 1986, the Appellate Division, in a per curium
decision, affirmed the decision of the trial court on both
issues. The New Jersey Supreme Court denied certification on March 21, 1988. The issues contained in Petitioner's direct
appeal are claims one and four of his habeas petition.
On October 6, 1989, oral arguments were held for Petitioner's
first petition for PCR. There, Petitioner claimed that he was
denied effective assistance of counsel as guaranteed under the
Sixth Amendment of the United States Constitution. The court
denied relief and Petitioner did not appeal the decision.
Petitioner subsequently filed a second petition for PCR, but
Petitioner does not raise those issues in his habeas petition.
In 1993, Petitioner filed a third petition for PCR. He claimed
ineffective assistance of appellate and trial counsel. The trial
court dismissed the petition on the basis that the ineffective
assistance of appellate counsel argument claim should be decided
by the Appellate Division. The Appellate Division remanded
Petitioner's third petition for PCR and ordered the trial court
to fully dispose of the issue. On September 2, 1998, the trial
court denied Petitioner's third PCR petition on the merits. The
court also concluded that the claim was procedurally barred from
relitigation pursuant to New Jersey Court Rules 3:22-5, because
the claim was adjudicated on the merits before, and 3:22-4,
because the claim could have been raised in a prior proceeding.
On September 2, 1998, Petitioner appealed. On February 24, 2000,
the Appellate Division affirmed the holding of the trial court.
On June 7, 2000, the New Jersey Supreme Court denied Petitioner's petition for certification. Portions of the
claims in the third PCR petition make up the second claim in his
On March 28, 2001, Petitioner submitted his fourth petition for
PCR petition, claiming ineffective assistance of counsel, denial
of due process, and denial of the right to a fair trial because
the jury was not instructed on the law of attempt concerning the
robbery charge. In July 2001, the trial court denied the petition
and concluded that the petition was procedurally barred by the
five-year limitation period enunciated in Rule 3:33-12.
Additionally, the claim was barred by Rule 3:22-4 because it
could have been raised in prior proceeding. On September 19,
2002, the Appellate Division affirmed the denial. On November 15,
2002, the New Jersey Supreme Court denied certification. Portions
of the claims in the fourth PCR is the fourth claim in his habeas
On January 7, 2003, Petitioner filed this petition seeking
habeas relief from this Court pursuant to 28 U.S.C. § 2254.
A. State Procedurally Barred Claims
In the third petition for PCR, Petitioner raised the
ineffective assistance of counsel claim. The state court held
that the claim has been adjudicated on its merits previously,
thus barring the claim pursuant to New Jersey Court Rule 3:22-5. Furthermore, because it should have been raised in prior
proceeding, the claim was barred pursuant to Rule 3:22-4. In his
fourth petition for PCR, Petitioner claimed he was denied due
process and a fair trial because the jury was not instructed on
the law of attempt for the robbery charge. The state courts
barred the claim because it was filed after the five-year
limitation period pursuant to Rule 3:22-12.
In a case where the state court has dismissed a petitioner's
claims on procedural default, the "federal habeas court is barred
by the procedural default doctrine from considering the claims,
unless the habeas petitioner can show `cause' for the default and
`prejudice' attributable thereto." Johnson v. Pinchak,
392 F.3d 551, 556 (3d Cir. 2004) (internal citation omitted). The
procedural default "must rest on `adequate and independent' state
law grounds." Id. (quoting Harris v. Reed, 489 U.S. 255, 262
A state procedural default will not bar federal habeas relief
if the state law ground is so "interwoven with federal law" that
it can not be said to be independent of the merits of a
petitioner's federal claims. Coleman v. Thompson, 501 U.S. 722,
740 (1991). The Supreme Court sets out in Harris the "plain
statement" test for such determination. Harris,
489 U.S. at 261-63. The test was narrowed by Coleman. The federal habeas
court must first determine whether the decision of the last state
court to which the petitioner presented his federal claims "fairly
appears to rest primarily on federal law, or to be interwoven
with the federal law." Coleman, 501 U.S. at 735. If there is
such a reliance on federal law, the federal habeas court will
then determine whether the state court clearly and expressly
based its ruling on a state procedural ground. Id.
The last court to render judgments on both of the claims at
issue here were the New Jersey Supreme Court, which denied
Petitioner's petitions for certifications. These judgments,
however, simply affirm the lower court's holdings. Thus,
according to the Supreme Court's instruction, this Court must
look to the "last explained state-court judgment on the . . .
claim" to determine whether the court's decision "fairly appears
to rest primarily on federal law" or instead relies upon a state
procedural bar to deny relief. Ylst v. Nunnemaker,
501 U.S. 797, 802, 805 (1991); Pinchak, 392 F.3d at 557. Here, the
Appellate Division rendered the last explained judgment on the
ineffective assistance of counsel claim in its February 24, 2000
Opinion; the Appellate Division rendered the last explained
judgment on the due process claim in its September 19, 2002
In its February 24, 2000 Opinion the Appellate Division
affirmed the trial court's holding by emphasizing Petitioner did
not provide adequate evidence to establish ineffective assistance
of counsel. The holding rested on federal law. State v. Shahid, A-1280-98T4, at 4. Furthermore, the court did not explicitly
state its ruling was based on state law. Therefore, this Court is
not barred from reviewing the ineffective assistance of counsel
In its September 19, 2002 Opinion the Appellate Division
affirmed the trial court's holding and stressed "[Petitioner's]
petition for the fourth PCR was filed well beyond the five-year
time limitation established by R.3:22-12 and is thus time
barred." State v. Shahid, A-000005-01T3, at 3. The procedural
bar rested on an independent state law ground, and the Appellate
Division was explicit in its reliance on state law for the
ruling. Therefore this Court is barred from reviewing the claim.
See Pinchak, 392 F.3d at 557 (Rule 3:22-12 is an independent
state law basis for the state court to deny a claim).*fn1 B. Standard of Review
A federal habeas court has jurisdiction to review a state
prisoner's petition for habeas relief "only on the grounds that
the petitioner's confinement violates the Constitution, law or
treaties of the United State." U.S.C. § 2254(a); see also
McCandles v. Vaughan, 172 F.3d 255, 260 (3d Cir. 1999). "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, 68 (1991).
In addition, a federal habeas court can only entertain a habeas
petition if all available state remedies have been exhausted.
28 U.S.C. § 2254 (b)(1). "To satisfy the exhausting requirement
[the] [p]etitioner must `fairly present' all federal claims to
the highest state court before bringing them in federal court."
Stevens v. Del. Corr. Ctr., 295 F.3d 361, 369 (3d Cir. 2002)
(quoting Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002));
see Picard v. Connor, 404 U.S. 270, 276 (1971). When the
petitioner has presented to the state court "in substance" the
same claim he seeks for review by the federal habeas court, he has exhausted his state remedies, even if the state court
"fail[ed] to rule on the merits of a claim." Pinchak,
392 F.3d at 555; see Picard, 404 U.S. at 276; Swanger v. Zimmerman,
750 F.2d 291, 295 (3d Cir. 1984).
Petitioner has presented all four claims to the New Jersey
Supreme Court, either through direct appeal or collateral appeal.
Thus, the exhaustion requirement is met for all the claims.
Once the exhaustion requirement is met, a federal habeas court
can grant habeas relief only if the state court's decision is (1)
"contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of
the United States," or (2) "an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding". 28 U.S.C. § 2254. The Third Circuit Court of Appeals
enunciated a two step test for evaluating the "contrary to" and
"unreasonable application" clause. Matteo v. Superintendent, SCI
Albion, 171 F.3d 877, 891 (3d Cir. 1999); see Williams v.
Taylor, 529 U.S. 362, 410 (2000) ("contrary to" and
"unreasonable application" are two independent tests and must be
considered separately). First, the federal habeas court must
determine if the petitioner demonstrated that the Supreme Court
precedent requires the contrary outcome. Id. If not, then
second, the federal habeas court must determine whether the
decision was based on an "unreasonable application" of the Supreme Court precedent. Id. Meaning, if the state
court's decision was "evaluated objectively and on the merits,"
the holding "cannot reasonably be justified." Id.
1. Claim One
Petitioner claims that the admission of the in-person and
photographic identifications into trial violated his right to due
process and a fair trial.*fn2 Petitioner specifically refers
to Robert's in-person identification of Petitioner as the
assailant in Beth Israel Hospital and the subsequent photographic
identification at the police station.
The question is whether the identification procedures were "so
unnecessarily suggestive and conducive to irreparable mistaken
identification that [Petitioner] was denied due process of law."
Stovall v. Denno, 388 U.S. 293, 302 (1967). The court must
prevent "identification procedure so impermissibly suggestive as
to give rise to a very substantial likelihood of irreparable misidentification." Neil v. Biggers, 409 U.S. 188,
197 (1972) (quoting Simmons v. United States, 390 U.S. 377, 384
(1968)). The Supreme Court in Manson v. Brathwaite,
432 U.S. 98, 110 (1977), required the court to decide the admissibility of
the evidence "on the totality of the circumstances." The
out-of-court identification is admissible if, "despite the
suggestive aspect, [it] possesses certain features of
reliability." Id.; United States v. Emanuele, 51 F.3d 1123,
1128 (3d Cir. 1995). Reliability is the "linchpin in determining
the admissibility of identification testimony." Manson, 432 at
Biggers enunciated the five factors for weighing the
reliability of the identification: (1) the opportunity of the
witness to view the criminal at the time of the crime, (2) the
witness's degree of attention, (3) the accuracy of the witness's
prior description of the criminal, (4) the level of certainty
demonstrated by the witness at the confrontation, and (5) the
length of time between the crime and the confrontation.
Biggers, 409 U.S. at 200-01; see also Emanuele,
51 F.3d at 1128. If the identification is unnecessarily suggestive and
unreliable, then "the admission [of the identification] . . .
violates the due process clause." Emanuele, 51 F.3d at 1127-28.
When such violation occurs, the court must "consider whether this
constitutional error was harmless." Id.
The Court will first address whether the photographic and in-person identifications are unnecessarily suggestive. The
photographic identification is not suggestive. There is no
evidence to support Petitioner's argument that Robert's
identification was tainted by the earlier identification at the
hospital. First, Robert did not see Petitioner's face at Beth
Israel Hospital because it was partially covered by a sheet.
Second, the photographic identification took place at the police
station. The detectives randomly shuffled six photographs, placed
them in a stack and did not tell Robert which photograph to pick.
(2T39:15 to 19; 97:20 to 98:7.) Robert independently identified
Petitioner as the assailant.
The in-person identification at Beth Israel Hospital, however,
was suggestive. Officer Black had taken Petitioner to Beth Israel
Hospital to treat various injuries. Officer Black heard the
dispatcher broadcast that the police were looking for a suspect
involved in a stabbing that fit Petitioner's description. He
instructed the detectives to bring Robert to the hospital to
identify the suspect. When Robert arrived at Beth Israel Hospital
with the two detectives, Officer Black told the detectives, that
he had someone in his custody who fit their suspect's
description. (2T 83:12 to 25.) It is unclear from the record
whether Robert was either with the detectives at the time of this
conversation or could have overheard the conversation. Petitioner
was then carried on a stretcher to Robert, where he identified Petitioner as the assailant.
Robert testified that the detectives did not tell him or
suggest to him that the man they brought out for identification
was the assailant. (2T45:8 to 17.) Petitioner, however, presents
credible counter evidence from Robert's cross-examination. On
cross-examination Robert admits that he knew the police were
taking him to the hospital to identify a suspect. (2T31:9 to
32:18.) This testimony does suggest that the identification in
the hospital was unnecessarily suggestive.*fn3 Also, "the
practice of showing suspects singly to persons for the purpose of
identification . . . has been widely condemned." Stovall,
388 U.S. at 302. Accordingly this Court will evaluate the five
reliability factors from Biggers to ensure that the admission
of the in-person identification did not violate Petitioner's
right to due process and a fair trial.
(1) The Opportunity of the Witness to View the Assailant at
the Time of the Crime
From the time the assailant entered the car through their
struggle, Robert had ample opportunity to see the assailant. In
fact, at one point during the struggle Robert was in direct, close proximity to the assailant's face and had a clear view of
the right side of the assailant's face. (2T24:21 to 25:4; 44:22
to 45:2.) Additionally, the inside of the vehicle was illuminated
by the street light and the car's interior light, providing
adequate light for Robert to see the assailant. (2T18:20 to 19:1;
19:21 to 20:3.)
(2) The Witness's Degree of Attention
Petitioner argues that Robert could not have paid attention to
the assailant during their struggle because after the incident
Robert was emotionally unstable and could only give a general
description of the assailant. These arguments are not persuasive.
While Robert was confused and upset after the incident, he could
have been alert and focused during the struggle. There is no
evidence to reflect Robert's degree of attention or lack thereof.
(3) The Accuracy of the Witness's Prior Description of the
When Robert initially described the assailant to the police, he
told them the assailant was a black male, about six feet tall,
180 pounds, and was wearing a brown coat and jeans.*fn4
(2T7:17 to 8:3.) Even though Petitioner contends he was wearing a pair of
"gray corduroy pants," the description is still accurate.
(3T47:21 to 48:2.) Officer Black was able to correctly identify
Petitioner as a suspect from Robert's description.
(4) The Level of Certainty Demonstrated by the Witness at the
Although Robert was not certain either time, he twice
identified Petitioner as the assailant. Robert could not identify
Petitioner with complete certainty at the hospital because
Petitioner's face was partially covered by a sheet, and he was
still recovering from the trauma of losing his father and
struggling with an armed assailant. (2T8:19 to 21; 92:1 to 11;
35:5 to 13.) But at the photographic identification, Robert,
again identified Petitioner as the assailant, with relative
certainty. (2T14:19 to 23.) The two consistent identifications
demonstrate Robert recognized the assailant as Petitioner.
Furthermore, Robert told the detective he could positively
identify Petitioner in person. (2T98:19 to 99:4.)
(5) The Length of Time Between the Crime and the
The crime took place at approximately 4 a.m. on February 18,
1984. Shortly thereafter, Petitioner was taken to the hospital,
where Robert made the first identification approximately twenty
minutes after Petitioner's arrival. (2T73:23 to 24; 74:17 to 21; 75:7 to 10.) After leaving the hospital and visiting the crime
scene a couple of times, the police brought Robert back to the
police station. There Robert identified Petitioner from the
photograph array. (2T37:7 to 14; 96:8 to 15.) The duration from
the crime to the last identification was about five hours.
The Court concludes, from weighing the reliability factors,
that Robert's in-person identification of Petitioner as the
assailant is reliable. Therefore, the identifications do not
present a "very substantial likelihood of irreparable
misidentification." Biggers, 409 U.S. at 197. Hence, their
admission into trial did not violate Petitioner's right to due
process and a fair trial. As such, the Court need not engage in a
harmless error analysis.
2. Claim Two
Petitioner asserts that he was denied effective assistance of
counsel as guaranteed by the Sixth Amendment. Petitioner claims
that defense counsel fell below an objective standard of
professional norms because he failed to: (1) investigate and call
key defense witnesses, and (2) contest the state's suppression of
First, Petitioner claims that counsel knowingly failed to
investigate and produce at trial two key witnesses, Dr.
Washington and Officer Chieppa. Dr. Washington was Petitioner's
attending physician at Beth Israel Hospital. Petitioner claims that his testimony would have been "critical" in establishing
Petitioner as the victim of a separate mugging incident. He
argues that Dr. Washington could have testified to the severity
of his injuries. Dr. Washington's testimony would have proven
that he suffered from a triple extreme leg fracture, making
fleeing from the vehicle to the fence, where he was found,
The second key witness is Officer Chieppa. Petitioner claims
Officer Chieppa would also have served to verify that Petitioner
was mugged. Petitioner asserts that Officer Chieppa would have
told the jury that he was the first officer to arrive at the
scene and would testify to the description Petitioner gave of his
"attackers." Petitioner further asserts that Chieppa would have
testified to what actions the police undertook to search for the
Second, Petitioner claims that counsel failed to contest the
State's alleged violation of Brady v. Maryland, 373 U.S. 83
(1963). The State did not produce the pants Petitioner was
allegedly wearing at the time of the crime. Petitioner contends
that because the pants the State has in its possession are
different from the pants described by Robert, the discrepancy
would have undermined Robert's credibility, which is the
"substance of State's case." (Memo. Law at 36.) Had the jury seen
the pants, Petitioner believes the jury would have ruled differently.
The Supreme Court in Strickland v. Washington, 466 U.S. 668
(1984), provides the proper framework for evaluating an
ineffective assistance of counsel claim. The Supreme Court
instructs the federal habeas court to judge ineffective
assistance claims by evaluating "whether counsel's conduct so
undermined the proper function of the adversarial process that
the trial cannot be relied on as having produced a just result."
Strickland, 466 U.S. at 686 (1984). The Supreme Court also
enunciated a two-part test to evaluate counsel's performance.
First, the petitioner must show that "counsel made errors so
serious that counsel was not functioning as the `counsel'
guaranteed by the Sixth Amendment." Id. at 687 (internal
citation omitted). The standard has been described as "simply
reasonableness under prevailing professional norms." Id. at
690. The judicial scrutiny of counsel's performance must be
highly deferential and the court must indulge a strong
presumption that counsel's conduct falls within a wide range of
reasonable professional assistance. Id. at 689.
Second, the petitioner must prove that counsel's performance so
"prejudiced" the defense that the petitioner was deprived of a
fair trial. Id. To satisfy this criterion, the petitioner must
show a reasonable probability that the result would have been
different in the absence of counsel's errors. See id. at 694.
A "reasonable probability is a probability sufficient to undermine
[the court's] confidence in the outcome of the proceeding."
Id.; United States v. Gray, 878 F.2d 702, 710 (3d Cir. 1989).
The petitioner needs to satisfy both elements of the Strickland
test to establish a claim of ineffective assistance of counsel.
Petitioner fails to meet the Strickland test. In support of
his claim that Dr. Washington should have been introduced as a
witness, Petitioner relies on Holsomback v. White, 133 F.3d.
1382 (11th Cir. 1998). In Holsomback, the trial counsel failed
to investigate pertinent medical evidence, and the Court of
Appeals for the Eleventh Circuit reversed the district court's
denial of a petitioner's habeas petition. 133 F.3d at 1382.
There, the petitioner was convicted of first degree sodomy of his
ten year old son. Id. at 1384. The petitioner's counsel
accepted the prosecution's claim that there was no medical
evidence that the sodomy had occurred and did not investigate the
medical evidence. Id. at 1387. The court held that the
counsel's decision not to conduct any investigation of the
medical evidence of sexual abuse was not reasonable, and it
prejudiced the petitioner's defense because the doctor who
examined the boy might have had favorable evidence for the
petitioner. Id. at 1389.
This case is not analogous to Holsomback. Petitioner did not
provide evidence that counsel's action was not a part of
reasonable and professional trial strategy. Second, Petitioner provides no evidence to show that Dr. Washington would have given
testimony that the petitioner could not have hopped, crawled, or
walked away from the crime scene. Therefore, the omission of Dr.
Washington's testimony is a trial strategy that did not prejudice
Similarly, Petitioner's argument that Officer Chieppa's
testimony was critical for his defense is also unpersuasive. The
state court correctly concluded that Officer Chieppa's testimony
would have been repetitive. Officer Black also heard Petitioner's
description of the mugging suspect and witnessed the police's
measure to locate the mugging suspect. The Court agrees with the
state court's conclusion that "the mere fact that the petitioner
may have related his story to Officer Chieppa before Officer
Black does not however, make the story any more believable. A lie
told twice is no more believable than a lie told once." (PCR Op.
6:12 to 16.) Petitioner has not provided any evidence to suggest
that Officer Chieppa's testimony would have been any different
from Officer Black's. Thus, Officer Chieppa's testimony is
Petitioner's claim that counsel failed to contest the State's
Brady violation has no merit. There was no Brady violation
for counsel to contest. The Supreme Court stated in Brady that
"suppression by prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of
good faith or bad faith of the prosecution." Brady,
373 U.S. at 87. The three main elements of a Brady misconduct claim are:
" The evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is impeaching;
 that evidence must have been suppressed by the State, either
willfully or inadvertently; and  prejudice must have ensued."
United States v. Mitchell, 365 F.3d 215, 254 (3d Cir. 2004)
(quoting Banks v. Dretke, 540 U.S. 668, 691 (2004)).
The issue here is whether the pants were exculpatory evidence,
such that its suppression would prejudice Petitioner's defense.
Kyles v. Whitly, 514 U.S. 419, 435 (1995), is the touchstone on
evaluating the materiality of the evidence. Banks,
540 U.S. at 698. The evidence is material when "the favorable evidence could
reasonably be taken to put the whole case in such a different
light as to undermine confidence in the verdict." Kyles,
514 U.S. at 435. This standard does not require the court to
determine whether the defendant would be more likely than not to
have received a different verdict with the evidence. Id. at
Pursuant to the standard in Kyles, the suppression of the
pants did not undermine this Court's confidence in the verdict.
The State's case relied on more than just Robert's testimony. For
instance, Detective Fultz gave a description of Petitioner's hat and earing that was consistent with Robert's description,
(2T102-8 to 23; 2T115-21 to 25; 2T101-2 to 14,). The male
prostitute, who is Petitioner's cousin, also identified
Petitioner as the assailant. (2T51:14 to 51:16; 52:2 to 52:7;
59:12 to 59:13). Furthermore, Robert gave a thorough description
of Petitioner that included more than just the style of
Petitioner's pants; Robert's description was mostly accurate.
Therefore, even though the pants may have benefitted Petitioner,
it is not exculpatory evidence. Their suppression is not a
Brady violation. Furthermore, despite Petitioner's claim,
counsel understood that the credibility of the witnesses was the
substance of the State's case. The transcripts reveal that
defense counsel extensively and vigorously attacked the validity
of Robert's identification of Petitioner and even attacked the
trustworthiness of the prostitute's eyesight.
The Court finds that Petitioner has not overcome counsel's
presumed competence nor has Petitioner proven that, had counsel
investigated and litigated the case without the alleged errors, a
reasonable probability exists that the result would have been
different. Therefore, Petitioner's Sixth Amendment rights were
3. Claim Four
Petitioner claims the prosecutor made three improper and
prejudicial remarks during the summation, which deprived him of a fair trial. Specifically, Petitioner asserts that the prosecutor
misquoted the testimony of a State witness, vouched for the
credibility of State witnesses' testimonies, and asserted
personal belief of guilt, while vouching for the credibility of
A prosecutor's improper remarks only violate a petitioner's
constitutional rights if the remarks "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, 643 (1974)).
A federal habeas court must examine the prosecutor's actions in
the context of the entire trial, assessing the severity of the
conduct, curative instructions, and the quantum of evidence
against the defendant. Moore v. Morton, 255 F.3d 95, 107 (3d
Cir. 1998) (quoting 28 U.S.C.A. sec. 2254 (d)(1)); see also
United States v. Young, 470 U.S. 1, 11 (1985) ("A criminal
conviction is not to be lightly overturned on the basis of a
prosecutor's comments standing alone, for the statements or
conduct must be viewed in the context of the entire
First, Petitioner claims the prosecutor "proffered a blatant
falsification of actual testimony" by stating that Robert saw
Petitioner stab his father. (Memo. Law at 48.) During the
summation, the prosecutor stated, "Robert ? knocked [Petitioner] to the ground and that's when he noticed
[Petitioner] stabbed his father." (3T86-1-2.) The record shows
during Robert's testimony he stated that he did not see
Petitioner stab his father. (2T6-4 to 6.)
Second, Petitioner claims that the prosecutor "prejudicially
vouch[ed] for the credibility of [S]tate witnesses." (Memo Law at
45.) Petitioner quotes prosecutor's comment, "you must believe
that they [the State witnesses] came towards you, swore that the
testimony they gave [was true,] and deliberately and
intentionally lied, because that's what [Petitioner] said."
(3T82:23 to 83-1.)
Finally, Petitioner claims that the prosecutor implied "that
the testimony of police witness was entitled to special deference
. . . [and] also imparted a personal a belief in the defendant's
[Petitioner's] guilt." (Memo. Law at 46.) During summation, the
prosecutor stated: "The police have nothing against [Petitioner].
Why would they want to convict an innocent man?" (3T89:8 to 10.)
In addition, the prosecutor remarked: "to allow a man who is
guilty of robbery, murder, possession of a weapon for unlawful
purpose to walk out of the courtroom a free man would be the
greatest injustice a jury could return." (3T88:8 to 12.)
In support of his claim Petitioner cites United States v.
Garza, 608 F.2d. 659,665 (5th Cir. 1979). In Garza, the Court
of Appeals for the Fifth Circuit ordered a new trial for a defendant, finding that a prosecutor's inappropriate comments
during summation amounted to "plain error." Id. at 666. The
court noted that most of the prosecutor's summation was used to
bolster the credibility of the witnesses. See id. at 663-64.
The prosecution continually praised the witnesses as
"professional" and "dedicated" men doing the "right thing." Id.
at 664. Most significantly, the prosecutor insisted to the jury
he personally would not have participated in the trial if the
defendant's guilt had not already been determined. Id. The
Court finds that the prosecutor's statements here did not amount
to the same level of egregious conduct as the prosecutor in
Although the State concedes that the prosecutor made
inappropriate remarks, "it is not enough that the prosecutor's
remarks were undesirable or even universally condemned."
Darden, 477 U.S. at 181 (internal quotation marks omitted). The
comments did not deny Petitioner a fair trial. When reviewed in
the context of the entire trial, the Court finds there was
sufficient evidence for the jury to find Petitioner guilty
without the prosecutor's inappropriate statements. The physical
evidence, combined with the identification of Petitioner by
Robert and the male prostitute as the assailant, constitutes
credible and sufficient evidence to convict Petitioner.
Moreover, the trial court repeatedly instructed the jurors that the jury was the trier of fact and that its role was to
determine credibility based on the presented evidence.
(3T93:20-21; 107:19 to 108:6; 109:22 to 24.) The jury was not to
consider the opening and closing statements by attorneys as
evidence. (3T94:9 to 18.) Courts have always presumed that a jury
will follow the instructions of the court. Weeks v. Angelone,
528 U.S. 225, 234 (2000); Richardson v. Marsh, 481 U.S. 200,
211 (1987). Therefore, any potential harms caused by the
prosecutor's remarks were ameliorated by the instructions. The
Court finds that the remarks made by the prosecutor did not
infect the trial with unfairness so as to deny Petitioner's right
to due process.
For the foregoing reasons, Petitioner's application for federal
habeas corpus relief is denied.
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