United States District Court, D. New Jersey
Susan D. Wigenton, United States District Judge.
before the Court is the petition for a writ of habeas corpus
of Norman Jackson (“Petitioner”) brought pursuant
to 28 U.S.C. § 2254 challenging Petitioner's state
court conviction (ECF No. 1). Following this Court's
Order to Answer, the State filed a response to the petition
(ECF Nos. 5-7), to which Petitioner has replied (ECF No. 9).
For the following reasons, this Court will deny the petition
and deny Petitioner a certificate of appealability.
opinion affirming Petitioner's conviction and sentence,
the New Jersey Supreme Court provided the following summary
of the factual basis of this matter:
At about 8:30 p.m. on January 14, 2005, [Murul] Chowdhury was
driving his taxi through Paterson to pick up a
customer. He stopped at a light on River Street, and
noticed [Petitioner] walking near the taxi. Without warning,
[Petitioner] entered the taxi through the right front door,
sat in the passenger seat, and requested a ride to Broadway,
one of Paterson's major roads, several blocks south of
the taxi's location. Chowdhury, citing his customer
waiting for him, offered to take [Petitioner] to Broadway
after picking up his customer, but [Petitioner] demanded
twice more that he be driven to Broadway immediately. After
the two men briefly argued, [Petitioner] pulled out a gun,
cautioning Chowdhury to “look at this mother
f****r.” [Petitioner] pointed the gun at
Chowdhury's chest, and the driver acceded to his
passenger's demands and drove in the direction of
PROSECUTOR: When did you start driving? Was it before he
pulled the gun ou[t], or after he pulled the gun out?
PROSECUTOR: Why did you start to drive?
CHOWDHURY: Because he demanded we go to Broadway.
With his gun pointed at Chowdhury, [Petitioner] asked for
money. Chowdhury reached into his pocket and gave
[Petitioner] sixty-five dollars, the fares he had collected
that evening. [Petitioner] then demanded Chowdhury's
wallet and Chowdhury complied:
I give it to him, my wallet. He took the money. He give me my
wallet back. Then he ask for it again, the wallet. Then he
look [at] everything, give it to me back. Then he say, oh,
f*** it. This wallet, I have my fingerprint in there. So I -
from my breath and I like, wipe. Then he said, okay, put it
in your pocket. Then I put it in my pocket.
taken the money, [Petitioner] then ordered Chowdhury to drive
him through Paterson:
Then he say, okay, start driving. Still driving, then he
said, okay, take me to Broadway. And I driving in Straight
Street and make a left in like Broadway Street and Straight
Street. Then when I cross the like,  Street, then he says,
okay, pull up the car. Then I pull up. Then he say, okay.
Don't drive, just park.
Chowdhury pulled the car over, and [Petitioner] left the car,
instructing Chowdhury to drive away slowly. Based on the
start and end locations testified to by Chowdhury, the total
distance driven by Chowdhury with [Petitioner] in his taxi
was .8 miles, representing approximately fifteen city blocks.
Almost immediately, Chowdhury flagged down a police officer,
who requested backup. Chowdhury and the officer followed
[Petitioner] into a park, where they were met by Officer
Bizarro and other police officers, and the group found
[Petitioner]. After a brief struggle, the officers handcuffed
and arrested [Petitioner]. They conducted a pat-down search
which revealed the money taken from Chowdhury, but no gun.
The officers searched the park for the weapon, turning up
nothing. At the scene of the arrest, Chowdhury identified
[Petitioner] as the individual who had threatened and robbed
him at gunpoint.
The officers then transported [Petitioner] to Paterson police
headquarters, and Officer Bizzaro and another officer brought
him to an interview room. Officer Bizzaro commenced a more
thorough search of [Petitioner]. When the officer searched
[Petitioner]'s groin area, [Petitioner] resisted the
search, and the two punched on another and wrestled. Officer
Bizzaro hit [Petitioner] with a metal police baton, and when
a second officer entered the room, she assisted Officer
Bizzaro in subduing [Petitioner]. With [Petitioner]
handcuffed, the officers searched him and found in his
underwear a “small caliber silver semi-automatic
handgun” that was missing the slide that delivers
bullets into the gun's chamber. Following the search,
[Petitioner] was transported to a hospital, where he received
stitches for a cut above his left eye that he had sustained
during his altercation with Officer Bizzaro.
Later that night, Officer Bizzaro prepared and filed a report
of the incident that contained a material misstatement of the
evening's events: it falsely stated that the officers
found [Petitioner]'s weapon at the scene of his arrest.
He later testified that he realized that his
“negligence” in conducting an incomplete search
at the scene of [Petitioner]'s arrest could have
endangered officer's lives, and had resulted in the
police transportation of a suspect carrying a gun, albeit a
disabled gun. Noting that “there's no excuse,
” Officer Bizzaro testified that he “typed up the
- the report stating that I found the weapon on the scene [of
the arrest] when, in fact, I did not.”
According to Officer Bizzaro, after he typed his false
report, he noted that he had put his partner's
“name on the bottom of a report that wasn't
true.” He testified that he prepared a second report
later that night that made clear that [Petitioner]'s
weapon was not recovered until after he and [Petitioner] had
scuffled at police headquarters. According to his testimony,
he left the first, false report on the desk in the Detective
Bureau, and gave the second, correct report to his
supervisor. He did not alert his superiors to the discrepancy
between his two reports, but later testified that he assumed
that his initial, false report regarding the recovery of
[Petitioner]'s weapon had been destroyed because he
“never turned it in.” In fact, both reports
remained on file as the State's case against [Petitioner]
In April 2005, the Passaic County Prosecutor's Office
presented the State's case to a grand jury. Called to
testify before the grand jury, Officer Bizzaro was questioned
by an assistant prosecutor who, he soon realized, had framed
her questions based upon his first report containing false
information. She asked Officer Bizzaro what he had recovered
in his initial search of [Petitioner] in [the] Paterson park.
Notwithstanding the fact that his initial search of
[Petitioner] at the park had revealed only money, Officer
Bizzaro testified falsely before the grand jury that he had
found a weapon on [Petitioner] at the scene of his arrest in
the park. Although he “realized [that the prosecutor]
was asking me questions off the wrong report, ” Officer
Bizzaro “made a bad judgment call and didn't
The grand jury returned an indictment, charging [Petitioner]
with multiple offenses including first-degree robbery, [in
violation of N.J. Stat. Ann. §] 2C:15-1, and
second-degree kidnapping, [in violation of N.J. Stat. Ann.
§] 2C:13-1(b)(1). However, the Passaic County
Prosecutor's Office subsequently learned of Officer
Bizzaro's initial fraudulent report and false grand jury
testimony, and dismissed the indictment against [Petitioner].
The trial court ordered that all internal affairs reports and
investigations be turned over to defense counsel. The
Paterson Police Department administratively disciplined
Officer Bizzaro for his conduct with a five-day suspension.
[Petitioner] filed a civil suit against Officer Bizzaro for
damages alleged to have been caused by the officer's
altercation with [Petitioner] and his false testimony before
the grand jury.
On January 2, 2007, a second grand jury returned a new
indictment, including the same charges as the original
indictment. In this second grand jury proceeding, Officer
Bizzaro testified as to the events recounted in his second,
accurate report. [Petitioner] moved to dismiss the
indictment, citing Officer Bizzaro's prior official
misconduct and false grand jury testimony. He also sought the
recusal of the Passaic County Prosecutor's Office, and
moved to suppress the slide that had been a component of the
gun found on [Petitioner] during the officer's second
search. The trial judge denied [Petitioner]'s motions,
but severed some of the charges set forth in the second
indictment that did not relate to [Petitioner]'s
encounter with Chowdhury.
. . . .
In August 2007, [Petitioner] was tried before a jury on seven
counts of the second indictment: first-degree robbery, [in
violation of N.J. Stat. Ann. §] 2C:15-1; fourth-degree
aggravated assault with a firearm, [in violation of N.J.
Stat. Ann. §] 2C:12-1(b)(4); second-degree possession of
a weapon for an unlawful purpose, [in violation of N.J. Stat.
Ann. §] 2C:39-4(a); third-degree unlawful possession of
a weapon, [in violation of N.J. Stat. Ann. §]
2C:39-5(b); second-degree kidnapping, [in violation of N.J.
Stat. Ann. §] 2C:13-1(b)(1) or (2); third-degree
aggravated assault, [in violation of N.J. Stat. Ann. §]
2C:12-1(b)(5)(a); and third-degree resisting arrest, [in
violation of N.J. Stat. Ann. §] 2C:29-2(a)(3).
During the five-day trial, the prosecution presented the
testimony of Chowdhury, Officer Bizzaro and other current and
former Paterson police officers. During the testimony of the
State's witnesses, there were several references to
extraneous proceedings - litigation filed by [Petitioner] and
administrative discipline pertaining to [Petitioner]'s
altercations with the officers and Officer Bizzaro's
false grand jury testimony. The prosecutor alluded to those
referenced during his summation, and [Petitioner] moved for a
mistrial. The trial court denied the motion for a mistrial,
but instructed the jury regarding the referenced in the
testimony to extraneous legal proceedings. [Petitioner]
declined to testify, and the defense rested without calling
witnesses. [Petitioner] did not, at any time during the
course of the trial, move for a judgment of acquittal.
On August 9, 2007, the jury convicted [Petitioner] of
first-degree robbery, fourth-degree aggravated assault with a
firearm, second-degree possession of a weapon for an unlawful
purpose, third-degree unlawful possession of a weapon,
second-degree kidnapping, third-degree aggravated assault of
a law enforcement officer with no finding that the officer
suffered bodily injury, and third-degree resisting arrest.
The trial court then instructed the jury on the offense of
second-degree certain persons not to have weapons, [in
violation of N.J. Stat. Ann. §] 2C:39-7, and the jury
convicted [Petitioner] of that crime.
[Petitioner] moved for a new trial. After denying the motion,
the trial court sentenced [Petitioner] to an extended term of
thirty years' incarceration for the first-degree robbery
charge with a period of eighty-five percent parole
ineligibility and a five-year term of parole supervision
under the No Early Release Act, [N.J. Stat. Ann. §
2C:43-7.2]. For the second-degree kidnapping charge, the
trial court sentenced [Petitioner] to ten years in prison
with an eighty-five percent period of parole ineligibility
pursuant to NERA, with the sentence for the kidnapping
offense to be served concurrently with [Petitioner]'s
other prison terms. After merging the appropriate offenses
into the first-degree robbery charge, the trial court
sentenced [Petitioner] on the remaining counts to terms of
incarceration to run concurrently with the thirty-year term
imposed for the armed robbery.
[Petitioner] appealed his conviction, raising six claims of
error by the trial court. An Appellate Division panel
reversed [Petitioner]'s conviction on the kidnapping
count, but otherwise affirmed his conviction.
(Document 24 attached to ECF No. 5 at 5-13).
thereafter petitioned for certification with the New Jersey
Supreme Court, and the state cross-petitioned on the
kidnapping issue. (Id. at 15). The New Jersey
Supreme Court granted certification on two issues - whether
Petitioner was properly convicted of kidnapping under New
Jersey Law, and whether the trial court erred in denying
Petitioner's motion for a mistrial based on alleged
prosecutorial misconduct during summation. (Id.). On
August 13, 2012, the New Jersey Supreme Court affirmed
Petitioner's conviction in its entirety, and reinstated
Petitioner's conviction for kidnapping as the record more
than supported the conclusion that Petitioner had either
subjected Chowdhury to “substantial confinement”
and forced him to move Petitioner a “substantial
distance” as required by the alternative prongs of the
kidnapping statute. (Id.).
thereafter filed a petition for post-conviction relief (PCR)
in September 2012 asserting various claims of ineffective
assistance of trial and appellate counsel. (See
Document 26 attached to ECF No. 5). Following an evidentiary
hearing solely addressing Petitioner's claim that counsel
failed to convey his plea counteroffer to the State during
plea negotiations, the PCR court denied that petition on
March 14, 2014. (Document 22 attached to ECF No. 5).
Petitioner appealed, and the Appellate Division affirmed the
denial of post-conviction relief by way of a written opinion
issued on June 6, 2016. (Document 25 attached to ECF No. 5).
Petitioner petitioned for certification, but his petition was
denied by the New Jersey Supreme Court on February 13, 2017.
(Document 31 attached to ECF No. 5). Petitioner thereafter
filed his current habeas petition. (ECF No. 1).
28 U.S.C. § 2254(a), the district court “shall
entertain an application for a writ of habeas corpus [o]n
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.” A habeas petitioner has the burden of
establishing his entitlement to relief for each claim
presented in his petition based upon the record that was
before the state court. See Eley v. Erickson, 712
F.3d 837, 846 (3d Cir. 2013); see also Parker v.
Matthews, ___U.S. ___, ___, 132 S.Ct. 2148, 2151 (2012).
Under the statute, as amended by the Anti-Terrorism and
Effective Death Penalty Act, 28 U.S.C. § 2244
(“AEDPA”), district courts are required to give
great deference to the determinations of the state trial and
appellate courts. See Renico v. Lett, 559 U.S. 766,
claim has been adjudicated on the merits by the state courts,
the district court shall not grant an application for a writ
of habeas corpus unless the state court adjudication
(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;
(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)(1)-(2). Federal law is clearly
established for these purposes where it is clearly expressed
in “only the holdings, as opposed to the dicta”
of the opinions of the United States Supreme Court. See
Woods v. Donald, ___ U.S. ___, ___, 125 S.Ct. 1372, 1376
(2015). “When reviewing state criminal convictions on
collateral review, federal judges are required to afford
state courts due respect by overturning their decisions only
when there could be no reasonable dispute that they were
wrong.” Id. Where a petitioner challenges an
allegedly erroneous factual determination of the state
courts, “a determination of a factual issue made by a
State court shall be presumed to be correct [and the]
applicant shall have the burden of rebutting the presumption
of correctness by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1).