United States District Court, D. New Jersey
BRIAN R. MARTINOTTI UNITED STATES DISTRICT JUDGE
this Court is a petition for writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254 by Petitioner, Adrian
Miller, a state prisoner proceeding pro se. Petitioner was
convicted in 2008 by a jury of first-degree armed robbery,
second-degree possession of a weapon for an unlawful purpose,
fourth-degree aggravated assault, third-degree unlawful
possession of a weapon, and second-degree certain persons not
to have weapons. He is currently serving a thirty-year
sentence with an eighty-five percent period of parole
ineligibility pursuant to New Jersey's No. Early Release
Act (“NERA”). N.J. Stat. Ann. § 2C:43-7.2.
Petitioner raises several claims in the instant Petition.
Having reviewed the petition and the submissions filed in
connection therewith, for the reasons set forth below and for
good cause appearing, the Petition is denied and a
certificate of appealability shall not issue.
Court, affording the state court's factual determinations
the appropriate deference, see 28 U.S.C. §
2254(e)(1), will recount relevant portions of the New
Jersey Superior Court, Appellate Division's recitation of
Wonil Pak was the owner of the Super Discount Store located
at 700 Main Street in Asbury Park. He was working behind the
counter on the evening of August 15, 2006, when a man, later
identified as defendant, walked in at approximately 6:00 p.m.
Defendant picked up a hand phone and gave Pak a ten dollar
bill to pay for it. When Pak handed defendant his change,
defendant pulled a gun out of his pocket and pointed it at
Pak, demanding money. Pak handed some cash to defendant, who
demanded more. Defendant then jumped onto the cashier counter
and attempted to take money from the cash register. Pak hit
defendant's hand, causing defendant's gun to fall to
the floor. A struggle between Pak and defendant ensued.
During this struggle, defendant grabbed Pak's neck, and
Pak proceeded to bite defendant's hand. Both men fell to
the floor in front of the counter and the gun went off
“two or three times.” Following the discharge of
the weapon, defendant fled. Pak then pressed a panic alarm
button, alerting the police to the scene.
Officer Charles Grays of the Asbury Park Police Department
responded to the alert, arriving on the scene within two to
three minutes. Grays observed three shell casings on the
floor of the store as well as a black baseball cap, a pair of
sunglasses and a gray and white Nike sneaker. Pak indicated
that these items were not in his store before defendant's
A witness, Whitney Valentin, walked into the store while the
robbery was in progress. Although Valentin signed a statement
indicating that he was present during the robbery and
describing defendant, he later denied remembering any events
of that night or signing any statement to that effect.
Pak was subsequently escorted to police headquarters, where
he gave a videotaped statement. Pak described the man as
“a little bit taller [than him], and a little bit
skinny, as was black male.” In his statement, Pak
identified the assailant as wearing a dark colored
short-sleeved shirt. While testifying at trial, Pak
corroborated his earlier description but indicated that
defendant was wearing dark clothing and a cap.
While Pak was at police headquarters providing a formal
statement to officers, Wanda Lopez, residing a short distance
from Pak's store, heard a knocking at her door at 6:30
p.m. She called her husband, Raymond Lopez, who immediately
returned home. Upon arriving home, Mr. Lopez observed a black
male laying in his back yard, appearing hurt. He recognized
the man as defendant, a friend of his
son's. Mr. Lopez called 9-1-1.
Officer Tyrone McAllister of the Asbury Park Police
Department responded to Mr. Lopez's call and arrived at
the Lopez residence at approximately 6:51 p.m. Officer
McAllister observed defendant, whom he described as a black
male, in the back yard, wearing black sweatpants and white
socks but no shoes and no shirt. A gray and white Nike
sneaker was found on the ground five or six feet from
defendant, and a black t-shirt was found at the bottom of the
Lopez's pool. Officer McAllister observed defendant had a
gunshot wound to his abdomen and called the paramedics.
Defendant was transported to the Jersey Shore Medical Center
where he was treated for a gunshot wound and eventually
identified himself as Adrian Miller, after having originally
identified himself as Michael Smith.
The following day, August 16, 2006, Detective Arthur
Wisliceny of the Monmouth County Prosecutor's Office
reported to the Medical Center to take photographs of
defendant's injuries. Detective Wisliceny took several
photographs of defendant's body, including his left hand,
which he observed had sustained “an injury of some
At trial, the State proffered George Chin, a criminalistics
expert with the New Jersey State Police, who had examined the
sneaker retrieved from Pak's store and the sneaker found
near defendant at the Lopez residence. Chin concluded
“they basically comprised a pair.” Both shoes
were a size 12, white Nike Air Max sneakers. The sneaker
found at the store was a right shoe, while the sneaker found
next to defendant was for the left foot. Mr. Chin stated that
both sneakers displayed similar “wear and tear.”
Swabs of epithelial cells taken from the sweatband of the cap
found in the store and the sleeve of the t-shirt found in the
Lopez's pool yielded matching DNA, which was
defendant's DNA. The probability of a random match for
defendant's DNA profile among black males was estimated
to be one in 114 quadrillion. No. fingerprints were obtained
from the gun found at the store as the “type of surface
is not conducive to . . . fingerprints. It is very
textured.” Fingerprints from the sunglasses were also
unobtainable. Officer James Ryan, a ballistics expert, was
not able to conclusively show that that the fragmented
cartridges were fired from the gun found at the scene.
However, he stated that in his opinion three shell casings
were fired from that gun.
State v. Miller, Docket No. A-0543-08T4, 2010 WL
114387, at *1-2 ( N.J.Super.Ct.App.Div. Jan. 14, 2010).
second day of trial, February 27, 2008, the State called
Raymond Lopez to testify. After his testimony, Mr. Lopez
informed defense counsel, for the first time, that on the
night of the crime Petitioner had told Mr. Lopez, “they
shot me, ” and “they was fighting and they shot
me.” (ECF No. 10-6 at 58.) When defense counsel relayed
this newly obtained information to the court, the trial judge
determined that a hearing would need to be held out of the
presence of the jury, to determine the admissibility of the
alleged statements. (See ECF No. 10-6 at 59.)
However, after a brief recess defense counsel ultimately
declined to pursue an admissibility hearing and Mr. Lopez was
never asked about the alleged statements by Petitioner.
(See ECF No. 10-6 at 60.)
March 5, 2008, following the five-day trial, Petitioner was
found guilty of first-degree armed robbery, N.J. Stat. Ann.
§ 2C:15-1; second-degree possession of a weapon for an
unlawful purpose, N.J. Stat. Ann. § 2c:39-4a;
fourth-degree aggravated assault N.J. Stat. Ann. §
2C:12-1b(4); and third-degree unlawful possession of a
weapon, N.J. Stat. Ann. § 2C:39-5b. (See ECF
No. 10-7 at 102-07.) The same jury found also found
Petitioner guilty of the certain persons not to have a weapon
charge, N.J. Stat. Ann. § 2C:39-7b(1) at a bifurcated
trial held later that same day. (See Id. at 134-36.)
16, 2008, the trial court granted the State's motion for
a mandatory extended term sentence on the count of the
first-degree armed robbery. (See ECF No. 10-8 at
3-7.) Petitioner was sentenced to an aggregate custodial term
of thirty years with a mandatory period of parole
ineligibility equal to eighty-five percent of the maximum
term imposed, pursuant to New Jersey's No. Early Release
Act (“NERA”). N.J. Stat. Ann. § 2C:43-7.2.
September 24, 2008, Petitioner appealed to the Superior Court
of New Jersey, Appellate Division. (See ECF No. 10-9
at 26.) The Appellate Division affirmed both his conviction
and sentence in an unpublished opinion issued on January 14,
2010. (See State v. Miller, Docket No. A-0543-08T4,
2010 WL 114387 ( N.J.Super.Ct.App.Div. Jan. 14, 2010)).
Petitioner appealed to the New Jersey Supreme Court but was
denied certification. See State v. Miller, 12 A.3d
211 (N.J. 2011).
2011, Petitioner filed a timely petition for Post-Conviction
Relief (“PCR”) in the Superior Court of New
Jersey, Law Division (Criminal), Monmouth County.
(See ECF No. 10-20 at 18-21.) On January 27, 2012,
Petitioner appeared before the Honorable Anthony J. Mellaci,
Jr., J.S.C., and requested that his PCR petition be withdrawn
without prejudice, as Petitioner felt that he was not
prepared to go forward at that time. (See id.) Judge
Mellaci granted Petitioner's motion to withdraw his
petition for PCR without prejudice. (See ECF No.
March 28, 2012, Petitioner filed a second petition for
post-conviction relief in the Superior Court of New Jersey,
Law Division (Criminal), Monmouth County, (See ECF
No. 10-17), and an amended PCR petition on November 29, 2012.
(See ECF No. 10-18.) The Superior Court denied the
PCR petition on August 30, 2012. (See ECF No. 10-23;
ECF No. 10-24.) Petitioner appealed, and on July 8, 2015, the
Appellate Division affirmed the denial of the PCR petition.
See State v. Miller, Docket No. A-3048-13T2, 2015 WL
4094448 ( N.J.Super.Ct.App.Div. July 8, 2015). Petitioner
appealed to the New Jersey Supreme Court, but on October 29,
2015, the court denied his petition for certification.
See State v. Miller, 124 A.3d 240 (N.J. 2015).
Petitioner subsequently filed the instant habeas petition
with this Court, which was signed on November 23, 2015.
(See ECF No. 1 at 17.)
petition raises six claims:
1. The prosecutor violated Petitioner's Fifth Amendment
right to remain silent when the prosecutor, during closing
arguments, alluded to Petitioner's failure to take the
stand at trial;
2. Appellate counsel was ineffective for failing to raise the
claim on direct appeal that the State prosecutor, during
summation, repeatedly violated Petitioner's Fifth
Amendment right not to testify;
3. PCR counsel was ineffective for telling the PCR judge that
Petitioner was not arguing an issue Petitioner had listed in
his pro se petition;
4. PCR appellate counsel was ineffective for failing to raise
on appeal the ineffectiveness of PCR trial counsel;
5. Trial counsel was ineffective for failing to elicit
exculpatory testimony from ...