United States District Court, D. New Jersey
Alford, Petitioner pro se
Eva Colalillo, Camden County Prosecutor Linda A. Shashoua,
Assistant Prosecutor Camden County Prosecutor's Office
B. SIMANDLE, DISTRICT JUDGE
Alford has submitted a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. [Petition, Docket Entry
1]. Respondent Warden, New Jersey State Prison opposes the
petition. [Answer, Docket Entry 10]. For the reasons stated
herein, the petition shall be denied and no certificate of
appealability shall issue.
facts of this case were recounted below and this Court,
affording the state court's factual determinations the
appropriate deference, 28 U.S.C. § 2254(e)(1),
reproduces the recitation of the facts as set forth by the
New Jersey Superior Court, Appellate Division
(“Appellate Division”) in its opinion denying
Petitioner's direct appeal:
On May 22, 2005, Salvador A. Martinez, known as Twin by some
and Alex by others, was shot and killed. The victim was in an
alley on Merriel Avenue in Camden at about 9:30 p.m. when two
men dressed in dark clothing, one tall and one short, entered
the alley and pushed the victim to the ground. Lillian Davis
heard one of the men say, “don't move, just stay
there, ” and the victim ceased his attempts to stand.
She observed the men stand over the victim and rifle through
his pockets. Then she saw the taller man run from the alley,
and “[the shorter one] was getting ready to run, but he
turned back around like ... pulled it out and shot one
time.” Then the shorter assailant ran from the scene.
Davis could not identify either man because, as she stated
numerous times at trial, “I didn't see no
Carol Lofland, standing near the alley with Davis and a man
known as Beans, saw the shorter man rifle through the
victim's pockets and saw both men start to run. Lofland
then saw the shorter man stop, turn, return to the victim,
and fire one shot. Thia Kim, sitting in the park across from
the alley, saw both men run from the alley, cross the street,
run through the park, and across nearby railroad tracks. Kim
testified that he saw the faces of both men and recognized
both men. Kim recognized Alford because “I seen [him]
around.” He testified he recognized [co-defendant
Ziair] McDaniels as a person who hung around his middle
school. Kim also stated he had seen McDaniels in the
neighborhood but had not seen him with Alford. The victim was
pronounced dead at the hospital.
State v. Alford (“Alford I”),
No. A-0804-07, 2010 WL 3516787, *1 ( N.J.Super.Ct.App.Div.
Sept. 8, 2010) (omission in original) (final alteration
added). Petitioner and McDaniels were charged with
first-degree murder, N.J. Stat. Ann. § 2C:11-3(a)(1) or
(2) (Count One); first-degree felony murder, N.J. Stat. Ann.
§ 2C:11-3(a)(3) (Count Two); first-degree robbery, N.J.
Stat. Ann. § 2C:15-1 (Count Three); first-degree
conspiracy/murder/robbery, N.J. Stat. Ann. §§
2C:5-2, 11-3(a)(1); 15-1 (Count Four); second-degree
possession of a handgun for an unlawful purpose, N.J. Stat.
Ann. § 2C:39-4(a) (Count Five); third-degree unlawful
possession of a handgun, N.J. Stat. Ann. § 2C:39-5(b)
(Count Six); and second-degree certain persons not to have
weapons, N.J. Stat. Ann. § 2C:39-7 (Count Seven).
Petitioner nor McDaniels testified or presented any witnesses
on their behalf. As for the state:
Carol Lofland identified Alford, known on the street as Bling
and by some as Blaze, as the taller of the men. She did not
identify McDaniels as the shorter man. She, unlike Kim, gave
inconsistent testimony about seeing McDaniels, known on the
street as Sugar Hill, with Alford on a regular basis.
Initially, she testified that she saw them together rarely.
When confronted with her statement given about a month after
the shooting in which she stated she saw them together often,
she changed her testimony.
Jacob Eller testified he knew the victim and Alford because
he was a drug user and had purchased drugs from both men on
numerous occasions. He also recounted an encounter with
defendants earlier on May 22, when he went to a street corner
in Camden to buy drugs.
According to Eller, as he awaited his turn to purchase drugs,
someone arrived in Alford's car. Eller heard the driver
say to Alford, “you're not getting your money he
owes you, ” and he heard Alford respond, “go get
my gun, I'll get my f ----- g money.” Eller said
someone obtained a gun, and gave it to Alford, who entered
the passenger seat of his car and drove away. Eller also
testified that Alford had an “associate, ” who he
identified as McDaniels. He stated he had seen them together
“a hundred times.”
Alford I, 2010 WL 3516787 at *2 (omission in
were convicted on all counts.
merging counts and sentencing Petitioner to a life term on
the felony murder charge with a concurrent twenty-year term
on Count Four and a consecutive ten-year term on Count Seven,
Petitioner “is serving life plus ten years in prison
subject to a parole ineligibility term of 68.75 years.”
Id. at *1. [See also Judgment of
Conviction, Ra2; Amended Judgment of Conviction, Ra2b].
Petitioner filed a notice of appeal. The Appellate Division
affirmed Petitioner's convictions but remanded for
reconsideration of the imposed consecutive term. Alford
I, 2010 WL 3516787 at *11. On January 21, 2011, the
trial court resentenced Petitioner to the same sentence.
filed a request for certification by the New Jersey Supreme
Court on September 9, 2010. [Ra10]. The court denied review
on February 3, 2011. State v. Alford, 13 A.3d 362
filed a pro se post-conviction relief (“PCR”)
petition on March 22, 2011. [PCR Petition, Ra13]. His counsel
filed a supplemental brief on September 20, 2011.
[Supplemental Brief, Ra14]. The PCR court heard oral argument
on September 23, 2011 and denied the petition without an
evidentiary hearing. [See generally
12T]. The Appellate Division affirmed the denial
for the reasons stated by the PCR court, State v.
Alford (“Alford II”), No.
A-2532-11, 2014 WL 2533794 ( N.J.Super.Ct.App.Div. June 6,
2014), and the New Jersey Supreme Court denied certification
on February 17, 2015. State v. Alford, 108 A.3d 635
subsequently filed this § 2254 petition. [Docket Entry
1]. The Court reviewed the petition pursuant to the Rules
Governing § 2254 Proceedings and ordered Respondent to
answer the petition. [Order to Answer, Docket Entry 2].
Respondent filed its answer, [Answer, Docket Entry 10], and
Petitioner submitted a traverse, [Traverse, Docket Entry 13].
matter is now ripe for review without oral argument.
STANDARD OF REVIEW
28 U.S.C. § 2254 permits a federal court to entertain a
petition for writ of habeas corpus on behalf of a person in
state 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).
respect to any claim adjudicated on the merits by a state
court, the writ shall not issue unless the adjudication of
(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). A state court decision is
“contrary to” Supreme Court precedent “if
the state court applies a rule that contradicts the governing
law set forth in [Supreme Court] cases, ” or “if
the state court confronts a set of facts that are materially
indistinguishable from a decision of th[e] Court and
nevertheless arrives at a result different from [the
Court's] precedent.” Williams v. Taylor,
529 U.S. 362, 405-06 (2000). “[A] state-court decision
is an unreasonable application of clearly established
[Supreme Court] precedent if it correctly identifies the
governing legal rule but applies that rule unreasonably to
the facts of a particular prisoner's case.”
White v. Woodall, 134 S.Ct. 1697, 1706,
reh'g denied, 134 S.Ct. 2835 (2014). The Court
must presume that the state court's factual findings are
correct unless Petitioner has rebutted the presumption by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
raises the following points for this Court's review:
I. The improper admission of testimony regarding
Defendant's alleged drug dealing with his
co-defendant's [sic] violated N.J.R.E. 404(b) and
deprived him of his right to due process and a fair trial.
II. The trial court permitted improper and highly prejudicial
hearsay testimony from Investigator Greer, which bolstered
the testimony of the State's three identification
witnesses, and necessitates reversal.
III. Trial court erred in charging the jury that Lofland had
“identified the [co-defendant] by build and stature as
the person with [defendant] at the scene, ” which
deprived Defendant of his right to due process and a fair
trial. (Alterations in original)
IV. The jury's exposure to Juror 7's comment that
Defendant's two teardrop tattoos meant he killed two
people deprived defendant of his right to due process of law
and a fair trial by an impartial jury.
V. The trial was so infected with error that even if the
individual errors, as set forth above do not constitute
reversible error, the errors in the aggregate denied
defendant a fair trial.
VI. By improperly imposing consecutive terms, the court
imposed an excessive sentence, necessitating reduction.
VII. Petitioner was denied his constitutional right to
effective assistance of counsel by the failure of trial
counsel to present third party guilt.
VIII. Petitioner was denied his constitutional right to
effective assistance of counsel by the failure of trial
counsel to effectively confront state witnesses Thia Kim and
IX. Petitioner was denied his constitutional right to
effective assistance of counsel due to the cumulative errors
X. The order denying post-conviction relief should be
reversed and the matter remanded for a full evidentiary
hearing because Defendant made a prima facie showing that his
Fourteenth Amendment Due Process right to be protected
against a deception that there was no pending plea bargain
between the state and Thia Kim, and his Fourteenth Amendment
Due Process right to Effective assistance of counsel were
XI. The order denying post-conviction relief should be
reversed and the matter remanded for a full evidentiary
hearing because trial counsel's failure to cross-examine
Jacob Eller on his expectation of a favorable treatment from
the State satisfied the prima facie standard for ineffective
assistance of counsel under the Strickland/Fritz
XII. Post-conviction relief should be granted because of
prosecutorial and judicial misconduct.
Admission of Improper Testimony
Grounds I and II, Petitioner alleges the trial court erred by
admitting evidence about Petitioner's alleged drug
dealing and by admitting hearsay evidence from Investigator
Other Crimes Evidence
argues that the admission of Eller's testimony regarding
Petitioner's history as a drug dealer violated New Jersey
Rule of Evidence 404(b). [See Petition at 6;
Traverse at 12-20]. This ground lacks merit. “[I]t is
not the province of a federal habeas court to reexamine
state-court determinations on state-law questions. In
conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution,
laws, or treaties of the United States.” Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991). Even if the
admission the testimony violated New Jersey's evidence
rules, “‘federal habeas corpus relief does not
lie for errors of state law.'” Id. at 67
(quoting Lewis v. Jeffers, 497 U.S. 764, 780
(1984)). Petitioner presented both state and federal
arguments to the Appellate Division, but the Appellate
Division rejected Petitioner's arguments solely on the
basis of state law and did not address his federal claim.
“When a state court rejects a federal claim without
expressly addressing that claim, a federal habeas court must
presume that the federal claim was adjudicated on the
merits[.]” Johnson v. Williams, 568 U.S. 289,
301 (2013). The Court therefore applies the appropriate AEDPA
of ‘other crimes' evidence provides a ground for
federal habeas relief only if ‘the evidence's
probative value is so conspicuously outweighed by its
inflammatory content, so as to violate a defendant's
constitutional right to a fair trial.'”
Bronshtein v. Horn, 404 F.3d 700, 730 (3d Cir. 2005)
(quoting Lesko v. Owens, 881 F.2d 44, 52 (3d Cir.
1989)). Eller testified he knew Petitioner as “Johnny
Blaze” and had been buying drugs from him for a long
time. [5T206:1-7]. Eller stated that just before the murder,
he went to purchase crack cocaine from Petitioner when a car
belonging to Petitioner pulled up. [5T215:18 to 216:2]. The
driver told Petitioner that “you're not getting the
money he owes you.” [5T219:11]. Petitioner then became
angry and stated: “go get my gun, I'll get my
fucking money.” [5T220:15-16].
conclusion of Eller's testimony, the trial court
instructed the jury on the limited purposes for which it
could use the evidence regarding Petitioner's drug
[Y]ou've also heard evidence that the defendants in this
matter, Lamar Alford and Ziair McDaniels may have been
involved in drug-dealing.
Normally, this evidence is not permitted under our Rules of
Evidence. Our rules specifically exclude evidence that a
defendant has committed other crimes, wrongs, or acts when
it's offered only to show he has a disposition or
tendency to do wrong and therefore must be guilty of the
. . . Before you can give any weight to this evidence, you
must be satisfied that the defendant committed other crimes,
wrongs, or acts. If you are not satisfied, you may not
consider it for any purpose.
However, our rules do permit evidence of other crimes,
wrongs, or acts when the evidence is used for certain
specific, narrow purposes.
In this case, it was admitted solely to prove the knowledge
and the identity of the defendants and a possible motive for
Whether this evidence does, in fact, demonstrate that
specific purpose is for you to decide. You may decide the
evidence does not demonstrate that knowledge of the
defendants or the identity of the defendants and a ...