United States District Court, D. New Jersey
MCNULTY, U.S. DISTRICT JUDGE.
Reginald Venable has submitted a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. (Am. Pet.,
ECF No. 7.) For the reasons stated herein, the petition shall
be denied and no certificate of appealability shall issue.
Jersey Superior Court, Appellate Division, on direct appeal,
summarized the facts underlying Petitioner's conviction
According to the State's proofs, at about 11 a.m. on
September 8, 2001, Maximiliano Carabantes cashed his payroll
check in the amount of $307 at a check-cashing store at
Clinton and West Front Streets in Plainfield and then walked
to a nearby grocery store where he bought a chicken for $10.
Unknown to Carabantes, [Petitioner] and Rashon Dixon had
watched him cash his check and decided to rob him. When
Carabantes walked out of the grocery store, Dixon stopped
him, threatened him with a handgun and forced him face first
into a wall. [Petitioner] then took $300 from Carabantes'
left shirt pocket and $20 from his wallet. As the robbers
walked away, Dixon waved the handgun to stop Carabantes from
following. As they walked away, [Petitioner] divided the
money, giving Dixon $140 and keeping the remainder.
Meanwhile, Carabantes found a friend who spoke English, and
the two men flagged a Plainfield police car driven by Officer
John Henderson. Carabantes' friend translated details of
the robbery, relating Carabantes' description of two
black men with muscular builds, one wearing a red shirt and
black pants and the other wearing a black shirt with black
pants. Henderson radioed this information to the police
dispatcher and drove in the direction where Carabantes said
the men had walked. Henderson saw [Petitioner] and Dixon
walking together about 500 feet south of West Front Street on
Clinton Avenue and noted that they fit the description of the
robbers. He radioed the dispatcher that he had located two
suspects and drove back to the corner of west Front Street
and Clinton Avenue to pick up Carabantes to see if he could
identify the suspects.
When Dixon and [Petitioner] saw Henderson's police car
pass, they decided to get rid of the handgun. Dixon threw the
gun in some weeds next to a fence bordering a driveway for a
hot dog stand. [Petitioner], now accompanied by a woman named
Crystal Collins, followed Dixon down the driveway, and the
three walked back to Clinton Avenue. [Petitioner] and Collins
crossed the street and continued walking south. Dixon
remained on the opposite side of the street, walking in the
same direction and slightly behind the other two.
It was at this time that Officer Henderson drove by with
Carabantes and his friend in the car. As they approached
[Petitioner] and Dixon, now on opposite sides of the street,
Carabantes identified them as the two men who robbed him.
Henderson radioed this information to headquarters and
requested backup to make an arrest. Another patrol car
arrived and stopped [Petitioner] and Collins while Henderson
apprehended Dixon. Both men were arrested and searched.
[Petitioner] was carrying $190 in cash and Dixon, $140.
Within a few minutes Officer Edward Hafeken located a loaded
and operational BB gun, which resembled a handgun and was
identified by Carabantes.
Both [Petitioner] and Dixon were indicted for first-degree
robbery and related weapons offenses. Prior to trial, Rashon
Dixon entered a guilty plea to first-degree armed robbery in
exchange for a plea recommendation of a second-degree
sentence of seven years in State prison with five years,
eleven months and fourteen days of parole ineligibility as
mandated by the No. Early Release Act (NERA), N.J.S.A.
2C:43-7.2. In accepting the plea bargain, Dixon agreed to
testify for the State at [Petitioner's] trial.
At trial, Dixon testified he met [Petitioner] on the morning
of September 8, 2001, and [Petitioner] asked him to help him
get some money, showing him a black BB gun. They walked to a
check-cashing place to scout a likely victim, and they saw
Carabantes leave the cashier. Dixon said he took the gun from
[Petitioner] and told the victim to "get against the
wall." As he held the gun on Carabantes, [Petitioner]
took the money. Dixon then related that he and [Petitioner]
walked away and were joined by Crystal Collins. Dixon
admitted he threw the gun into the weeds near the hotdog
stand after seeing a police car.
State v. Venable, No. A-4618-02T5, slip op. at 2-5 (
N.J.Super.Ct.App.Div. Oct. 15, 2004) (available at ECF No.
January 14, 2003, a jury found Petitioner guilty of: (i)
first-degree armed robbery, N.J. Stat. Ann. § 2C:15-1;
(ii) third-degree unlawful possession of a handgun, N.J.
Stat. Ann. § 2C:39-5b; (iii) second-degree possession of
a firearm for an unlawful purpose, N.J. Stat. Ann. §
2C:39-4a; and (iv) second-degree possession of a firearm by a
previously convicted person, N.J. Stat. Ann. § 2C:39-7.
(Id. at 1-2; see also Jan. 14, 2003 Trial
Trs., ECF Nos. 14-41 and 14-42.) On March 28, 2003, the trial
court sentenced Petitioner "to an aggregate term of
fifty years imprisonment with a twenty year period of parole
ineligibility and five years of parole supervision upon
release[.]" (Id. at 2; see also Mar.
28, 2003 Sentencing Tr., ECF No. 14-43.) The Appellate
Division affirmed Petitioner's conviction and sentence on
October 15, 2004. (Id. at 8.) The New Jersey Supreme
Court denied certification of Petitioner's direct appeal
on May 23, 2005. (ECF No. 14-6.)
thereafter filed two separate post-conviction relief
("PCR") applications in state court. Petitioner
filed his first PCR petition on or about July 19, 2005.
(See, e.g., ECF No. 14-27 at 1.) The PCR court held
a hearing on Petitioner's first PCR application on April
3, 2007. (PCR Hr'g Tr., ECF No, 9-44.) On that date, the
PCR court issued an order denying Petitioner's first PCR
petition "for the reasons stated on the record on April
3, 2017." (ECF No. 14-15.) The Appellate Division
affirmed the denial of Petitioner's first PCR petition on
May 4, 2010. State v. Venable, No. A-6315-06T4, slip
op. at 7 ( N.J.Super.Ct.App.Div. May 4, 2010) (available at
ECF No. 14-20). The New Jersey Supreme Court denied
certification of Petitioner's first PCR appeal on
September 10, 2010. (ECF No. 14-23.)
filed his second PCR petition on or about March 8, 2011.
(See, e.g., ECF No. 14-27 at 2.) The PCR court held
a hearing regarding these claims on February 15, 2013. (PCR
Hr'g Tr., ECF No. 14-45.) The PCR court issued an order
and accompanying written decision denying Petitioner's
second PCR petition on June 4, 2013. (ECF No. 14-27.) The
Appellate Division affirmed the denial of Petitioner's
second PCR petition on July 13, 2015. State v.
Venable, No. A-0999-13T3, slip op. at 11 (
N.J.Super.Ct.App.Div. July 13, 2015) (available at ECF No.
14-31). The New Jersey Supreme Court denied certification of
Petitioner's second PCR appeal on October 6, 2015. (ECF
filed his original § 2254 petition on September 2, 2011.
(ECF No. 1.) At that time, this matter was assigned to
District Judge Dennis M. Cavanaugh. On August 1, 2012, Judge
Cavanaugh stayed this matter in light of Petitioner's
then-pending second PCR petition. (ECF No. 3.) On November
23, 2015, the Court received a letter from Petitioner stating
that the New Jersey Supreme Court had denied certification
with respect to Petitioner's second PCR petition, and
requesting that the Court lift its stay of this matter. (ECF
No. 6.) On that date, Petitioner also filed a motion to amend
his habeas petition to assert certain additional claims. (ECF
No. 7.) Judge Cavanaugh having retired from the bench, on
December 1, 2015, the matter was reassigned to me. (ECF No.
January 19, 2016, 1 issued a Memorandum and Order which,
inter alia: (1) lifted the stay of this matter; (2)
granted Petitioner's motion to amend; (3) performed a
substantive analysis with respect to "[P]etitioner's
claim in his amended habeas petition that PCR counsel was
ineffective"; (4) denied habeas relief and declined to
issue a certificate of appealability on that claim; and (5)
ordered Respondent to "file a full and complete answer
to [the balance of the claims asserted in] the amended habeas
petition." (ECF No. 8.) Respondent filed an answer on
April 22, 2016. (ECF No. 14.) Petitioner acknowledged receipt
of Respondent's answer by way of a letter dated May 5,
2016 (see ECF No. 15), but did not file any reply.
STANDARD OF REVIEW
application for writ of habeas corpus by a person in custody
under judgment of a state court can be granted only for
violations of the Constitution, laws, or treaties of the
United States. See Engle v. Isaac, 456 U.S. 107, 119
(1982); see also Mason v. Myers, 208 F.3d 414, 415
n.1 (3d Cir. 2000) (citing 28 U.S.C. § 2254). Petitioner
filed this petition for writ of habeas corpus after April 24,
1996, thus, the Antiterrorism and Effective Death Penalty Act
of 1996 ("AEDPA"), Pub. L. 104-132, 110 Stat. 1214
(Apr. 24, 1996), applies. See Lindh v. Murphy, 521
U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus
relief is not available for any claim decided on the merits
in state court proceedings unless the state court's
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 state court.
See 28 U.S.C. § 2254(d).
threshold matter, a court must "first decide what
constitutes 'clearly established Federal law, as
determined by the Supreme Court of the United
States.'" Lockyer v. Andrade, 538 U.S. 63,
71 (2003) (quoting 28 U.S.C. § 2254(d)(1)).
'"[C]learly established federal law under §
2254(d)(1) is the governing legal principle set forth by the
Supreme Court at the time the state court renders its
decision." Id. (citations omitted). A federal
habeas court making an unreasonable-application inquiry
should ask whether the state court's application of
clearly established federal law was "objectively
unreasonable." See Williams v. Taylor, 529 U.S.
362, 409 (2000). Thus, "a federal court may not issue a
writ simply because the court concludes in its independent
judgment that die relevant state court decision applied
clearly established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable."
Id. at 411. The AEDPA standard under § 2254(d)
is a "difficult" test to meet and is a "highly
deferential standard for evaluating state-court rulings,
which demands that state-court decisions be given the benefit
of the doubt." Cullen v. Pinholster, 563 U.S.
170, 181 (2011). The petitioner has the burden of proof and,
with respect to § 2254(d)(1), review "is limited to
the record that was before the state court that adjudicated
the claim on the merits." Id.
applying AEDPA's standards, the relevant state court
decision that is appropriate for federal habeas corpus review
is the last reasoned state court decision. See Bond v.
Beard, 539 F.3d 256, 289-90 (3d Cir. 2008). Furthermore,
the court will assume that, "[w]here there has been one
reasoned state judgment rejecting a federal claim, later
unexplained orders upholding that judgment or rejecting the
same claim rest upon the same ground." Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991); see also
Wilson v. Sellers, 138 S.Ct. 1188, 1194 (2018).
Additionally, AEDPA deference is not excused when state
courts issue summary rulings. For example, "[w]hen a
federal claim has been presented to a state court and the
state court has denied relief, it may be presumed that the
state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles
to the contrary." Harrington v. Richter, 62
U.S. 86, 99 (2011) (citing Harris v. Reed, 489 U.S.
255, 265 (1989)).
raises the following points for this Court's review:
Ground One: Petitioner was denied his [Sixth] Amendment right
to effective assistance of counsel because trial counsel
failed to advi[se] Petitioner that he faced an extended term
of incarceration if he was convicted at trial...
Ground Two: Petitioner was denied his [Sixth] Amendment right
to confrontation [because the unidentified individual who
translated Mr. Carabantes' account of the robbery to
police did not testify at trial].
Ground Three: Petitioner was deprived of his [Fourteenth]
Amendment right to due process and a fair trial [because]:
(A) [Petitioner's] co-defendant [Rashon Dixon] was
allowed to testify in prison garb while in shackles;
(B) [the] trial court failed to give the proper jury
instructions limiting the use of [Rashon Dixon's] guilty
plea [by failing to expressly note] that [the jury] cannot
[use a] co-defendant's guilty plea as substantive
evidence of petitioner's guilt; and
(C) [the] trial court erred in charging the jury regarding
(A) [Petitioner's second] PCR petition should not have
been procedural[ly] barred;
(B) [Petitioner] established a prima facie case of
counsel's ineffectiveness, in that trial counsel failed
to inform him properly regarding his sentencing exposure and
PCR counsel failed to pursue this claim in the first
(C)[i] trial counsel failed to effectively cross-examine
[Rashon] Dixon[;] and [ii] [the trial court improperly
denied] a [request] that was posed by the jury at the time of
deliberation [to review a copy of Rashon Dixon's]
statement [to police]
Pet., ECF No. 7 (capitalization in original omitted).)
Ineffective Assistance of Trial Counsel
claims that he is entitled to habeas relief because his
counsel rendered ineffective assistance at trial. More
specifically, Petitioner asserts that his trial counsel,
Howard G. Golden, Esq., failed to (1) "advi[se]
Petitioner that he faced an extended term of incarceration if
he was convicted at trial" (see Am. Pet. at
Ground One); and (2) "effectively cross-examine [Rashon]
Dixon" (id. at Ground Four, sub-point C). These
claims are governed by the two-prong test set forth in the
Supreme Court's opinion in Strickland v.
Washington, 466 U.S. 668 (1984).
Strickland, a habeas petitioner first "must
show that counsel's performance was deficient. This
requires [the petitioner to show] that counsel made errors so
serious that counsel was not functioning as the
'counsel' guaranteed by the Sixth Amendment."
Id. at 687; see also United States v.
Shedrick,493 F.3d 292, 299 (3d Cir. 2007). With respect
to evaluating whether counsel's performance was deficient
under Strickland, the "proper standard ... is
that of 'reasonably effective assistance.'"
Jacobs v. Horn,395 F.3d 92, 102 (3d Cir. 2005). A
petitioner asserting ineffective assistance must therefore
show that counsel's representation "fell below an
objective standard of reasonableness" based on the
particular facts of a petitioner's case, viewed as of the
time of the challenged conduct of counsel. Id. In
scrutinizing counsel's performance, ...