United States District Court, D. New Jersey
BRIAN R. MARTINOTTI, UNITED STATES DISTRICT JUDGE.
this Court is a Petition for a Writ of Habeas Corpus (ECF No.
1), pursuant to 28 U.S.C. § 2254, brought by pro
se Petitioner Clifford Grabowski
("Petitioner"), challenging a conviction by the
State of New Jersey for aggravated manslaughter and driving
while impaired. The State filed an Answer addressing the
merits of Petitioner's claims (ECF No. 8), and Petitioner
did not file a reply. For the reasons stated below, the
Petition is DENIED.
Petition essentially raises two claims. First, Petitioner
asserts he received an excessive sentence due to trial
counsel's ineffective assistance at sentencing, even
though he received a sentence bargained for pursuant to a
plea agreement. The state court, in addition to addressing
the merits, ruled the claim procedurally barred by N.J. Ct.
R. 322-4, because "defendant argues his sentence was
excessive, not that it was illegal. PCR will not be granted
on excessive sentence grounds." (ECF No. 1-5 at 9.)
"Federal habeas courts generally refuse to hear claims
'defaulted . . . in state court pursuant to an
independent and adequate state procedural rule.'"
Johnson v. Lee, 136 S.Ct. 1802, 1803 (2016) (quoting
Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
"State rules count as 'adequate' if they are
'firmly established and regularly followed.'"
Id. (quoting Walker v. Martin, 562, U.S.
307, 316 (2011)). New Jersey courts routinely bar excessive
sentence claims based on ineffective assistance of counsel.
See State v. Osorio, Indictment No. 96-10-1550, 2016
WL 4527593, at *3 (N.J. Sup. Ct. App. Div. Aug. 30, 2016);
State v. Wagner, Indictment No. 10-07-1737, 2015 WL
3886403, at *2-3 (N.J. Sup. Ct. App. Div. June 25, 2015);
State v. Pessoa, Accusation No. 10-06-1204, 2014 WL
2117994, at *1 (N.J. Sup. Ct. App. Div. May 22, 2014);
see also State v. Acevedo, 205 N.J. 40, 46 (2011)
("[M]ere excessiveness of sentence otherwise within
authorized limits, as distinct from illegality by reason of
being beyond or not in accordance with legal authorization,
is not an appropriate ground for post-conviction relief and
can only be raised on direct appeal from the
conviction." (citation omitted)); State v.
Evans, Indictment No. 09-07-1249, 2017 WL 1208005, at *5
(N.J. Sup. Ct. App. Div. Apr. 3, 2017) ("[W]e caution
defendants not to cloak displeasure with a sentence as an
ineffective assistance of counsel claim If a defendant
believes his sentencing is excessive, direct appeal is the
appropriate avenue for relief"). Although the state
court also reached the merits of this claim, "a state
procedural bar may count as an adequate and independent
ground for denying a federal habeas petition even if the
state court had discretion to reach the merits despite the
default." Johnson v. Lee, 136 S.Ct. 1802, 1806
(2016) (citation omitted). As such, relief on this claim is
second claim is based on his allegation that "[t]rial
counsel's inadequate assistance caused non acceptance to
original plea offer of Reckless Manslaughter offered by the
State." (ECF No. 1-2 at 6.) This claim was not addressed
by the state court, likely because "[a]ssigned counsel
then filed an amended petition." (ECF No. 1-5 at 5.)
Nevertheless, the Court construes the Petition as raising a
claim under Martinez v. Ryan, 132 S.Ct. 1309 (2012),
and attributes the lack of exhaustion of this claim in state
court on PCR counsel's apparent failure to raise
Regardless, Petitioner's claim makes little sense, since
attorneys do not accept or reject plea agreements; defendants
do. Boyd v. Waymart, 579 F.3d 330, 351 (3d Cir.
2009) ("Because there are weighty consequences at stake,
the decision whether to plead guilty is an intensely personal
one that may be made only by the defendant.").
extent Petitioner argues that counsel's ineffective
assistance led him to reject the original plea,
a defendant must show that but for the ineffective advice of
counsel there is a reasonable probability that the plea offer
would have been presented to the court . . ., that the court
would have accepted its terms, and that the conviction or
sentence, or both, under the offer's terms would have
been less severe than under the judgment and sentence that in
fact were imposed.
Laflerv. Cooper, 132 S.Ct. 1376, 1386 (2012).
However, the only factual allegation regarding the original
plea asserted by Petitioner is that "prior to
consideration and acceptance of the plea for reasons unclear,
that plea offer was rescinded by the state." (ECF No.
1-2 at 4.) As such, Petitioner asserts none of the elements
required for a Lafler claim-there is no allegation
that the original plea offer was for less than the ten-year
imprisonment he ultimately received, and no allegation that
had the offer been accepted, the trial court would have
accepted it. Indeed, based on his single factual allegation,
it is not even clear that there was an offer he could accept
and present to the trial court; Petitioner does not allege
that he rejected the original plea, but only that the State
withdrew the offer for reasons unknown. How or why counsel
should be blamed for the State withdrawing the offer
is not explained by Petitioner. Without more,
Petitioner's claim is vague, conclusory, and not entitled
to relief. Anderson v. Pa. Att'y Gen., 82
Fed.Appx. 745, 749 (3d Cir. 2003) ("[V]ague and
conctusory grounds for habeas relief are subject to summary
disrrrissal[.]" (citing United States v.
Thomas, 221 F.3d 430, 438 (3d Cir. 2000)); see
United States v. McClellan, No. 16-2943, 2017 WL
2822315, at *1 (3d Cir. Jan. 3, 2017) ("[Habeas
petitioner] cannot meet his burden of proving ineffective
assistance of counsel based on vague and conclusory
allegations[.]" (internal quotations and citation
omitted)). Accordingly, relief on this claim is denied.
Having denied all claims, the Petition is
the Court denies a certificate of appealability. Pursuant to
28 U.S.C. § 2253(c), unless a circuit justice or judge
issues a certificate of appealability, an appeal may not be
taken from a final order in a proceeding under 28 U.S.C.
§ 2254. A certificate of appealability may issue
"only if the applicant has made a substantial showing of
the denial of a constitutional right." 28 U.S.C. §
2253(c)(2). "A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the
district court's resolution of his constitutional claims
or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further."
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Here, Petitioner has failed to make a substantial showing of
the denial of a constitutional right. Thus, no certificate of
appealability shall issue.
 Although the Court does not reach the
merits of Petitioner's claim, the state court's
decision on the merits was certainly a reasonable application
of established federal law, based on a reasonable
determination of the facts.
 Martinez held that in states,
as it is in New Jersey, where ineffective trial counsel
claims can only be brought on PCR, failure to raise an
ineffective trial counsel claim on PCR is good cause to
excuse the failure to exhaust. 132 S.Ct. at 1318.
 Petitioner also raises a
cumulative-error claim Because the Court finds no error in
the aforementioned claims, there can be no cumulative error.
See United States v. Herrera-Genao, 419 Fed.Appx.
288, 296 (3d Cir. 2011) ('Herrera-Genao complains only of
the cumulative effect of the preceding claims; because we
have found no error regarding those ...