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Cordero v. Barkowski

United States District Court, D. New Jersey

February 26, 2014

GREG BARKOWSKI, et al., Respondents.

Misael Cordero, Pro Se, #257533 Trenton, NJ.

John Anderson Essex County Prosecutor's Office, Newark, NJ, Attorney for Respondents.


JOSE L. LINARES, District Judge.

Petitioner Misael Cordero submitted this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state court conviction, and Respondents submitted an answer to the petition (ECF No. 11), with the available state court record. Petitioner also filed a traverse to the answer (ECF No. 33). For the following reasons, the petition will be denied.


The relevant facts are set forth in the opinion of the Superior Court of New Jersey, Appellate Division ("Appellate Division"), in Petitioner's direct appeal.[1] See Respondents' Exhibit ("RE") 6.

In late April or early May 1991, knowing that Elias Lopez was going to be returning from Puerto Rico with a large amount of cocaine, defendant and Santiago plotted to kill him and to steal the cocaine. Defendant and Santiago agreed that Santiago would kill Lopez in exchange for $20, 000, which would be paid after the drugs were sold. On May 6, 1991, defendant and Santiago requested that Ruiz dig a hole in the dirt floor of the premises at 133 Parker Street, Newark, because they were "going to kill a guy." Ruiz agreed to dig the hole in exchange for $400.
On May 7, 1991, Lopez arrived at defendant's apartment at 126 Parker Street, Newark, to take part in a scheduled drug sale. Inside defendant's apartment were defendant and his girlfriend, Cynthia Cordero. Santiago remained outside the apartment. Having observed Lopez arrive, Santiago went to the basement of 126 Parker Street, left a bag containing $2, 000 in cash and newspapers cut to resemble stacks of cash on a table, and then joined the others upstairs in defendant's apartment. After defendant and Lopez "tested the coke, " defendant and Santiago lured Lopez to the basement where Lopez anticipated to be paid. As Lopez proceeded into the basement, Santiago shot him in the back of the head, killing him. Defendant took the money, drugs, and Lopez's car keys. After the murder, defendant and Cynthia drove to her mother's house, where defendant showered and changed into new clothes purchased by Cynthia with money provided by defendant. Defendant, after having returned to 126 Parker Street with Jose Carrabollo, a friend, directed Carrabollo to clean the basement and wrap Lopez's body. Defendant and Santiago left the basement in order to dispose of Lopez's car by abandoning it in East Orange. Upon their return to the place of the murder, Santiago and Carrabollo placed Lopez's body into the trunk of defendant's car, drove it across the street to 133 Parker Street, and buried it in the basement grave. At a later date, cement was poured over the dirt floor in the basement at 133 Parker Street.
In early 1999, when Cynthia Cordero was questioned as part of an investigation into an unrelated homicide, she provided a formal statement about Lopez's murder. In April 1999, the police executed search warrants at 126 and 133 Parker Street. Lopez's remains were recovered from the basement of 133 Parker Street, after which an autopsy confirmed the remains as being that of Lopez. The autopsy further confirmed the entrance and exit wounds in the back of the neck and forehead areas of Lopez's skull. The cause of death was determined to have been a gunshot wound to the head.

(RE 6 at pp. 1-2).

On May 13, 2002, after a jury trial, Petitioner was found guilty of first-degree murder, first-degree robbery, and other charges, contrary to New Jersey state law. Petitioner was sentenced on July 31, 2002 to a life sentence, with thirty years of parole ineligibility. Petitioner's sentence was upheld by the Appellate Division on August 15, 2006 (RE 6). On December 8, 2006, the New. Jersey Supreme Court denied Petitioner's petition for certification (RE 7B)

Petitioner filed a motion for post-conviction relief ("PCR") in the trial court which was denied on August 26, 2008 (RE 11). The denial was upheld by the Appellate Division on October 1, 2010 (RE 16). On September 7, 2011, the New Jersey Supreme Court denied certification of Petitioner's petition for review (RE 20).

Petitioner filed this petition on or about October 17, 2011 (ECF No. 1). Respondents filed a Response and the relevant state court record on June 1, 2012 (ECF Nos. 11-32), to which Petitioner replied on August 20, 2012 (ECF No. 33).

In his petition before this Court, Petitioner seeks relief under 28 U.S.C. § 2254, arguing: (1) he was denied his right to effective assistance of counsel; (2) jury selection procedures resulted in a denial of Petitioner's constitutional rights; and (3) failure to correct the testimony of a state witness through the use of an interpreter violated Petitioner's constitutional right to a fair trial and due process (Pet., ¶ 13).


A. Section 2254 Cases

As amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254 now provides, in pertinent part:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C. § 2254(a).

With respect to any claim adjudicated on the merits in state court proceedings, § 2254 further provides that the writ shall not issue unless the adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence ...

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