United States District Court, D. New Jersey
MADELINE COX ARLEO, DISTRICT JUDGE UNITED STATES DISTRICT
matter has been opened to the Court by Petitioner's
filing of a habeas petition pursuant to 28 U.S.C. §
2254, raising nine separate grounds for relief. As explained
in this Opinion, the Court deems Ground Six withdrawn and
will deny the petition as to Grounds One, Two, Three, Four,
Five, and Eight. The Court will direct the parties to submit
supplemental briefing on Grounds Seven and Nine, which assert
a claim pursuant to Lafler v. Cooper, 566 U.S. 156
(2012) ("the Lafler Claim"), and will
reserve judgment on the Lafler Claim and the
issuance of a certificate of appealability until the briefing
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
October 6, 2002, at approximately 1:00 a.m., Sergeant Stanley
Rodriguez and Officer Felix Arroyo of the Paterson Police
Department were on routine patrol on River Street driving in
an unmarked police vehicle. A red bubble light on the
dashboard was the only feature that could possibly identify
it as a police vehicle. While driving, Rodriguez observed
what he believed to be a narcotics transaction. He observed
an unidentified male hand paper that Rodriguez believed was
paper currency to another man, whom Rodriguez identified at
trial as defendant. Rodriguez then saw defendant hand the man
a small object.
observing that exchange, Rodriguez and Arroyo stopped their
vehicle and exited. Rodriguez, dressed in plain clothes but
wearing a police badge around his neck, ordered both men to
stop. Neither obeyed. Defendant dropped a small plastic bag
on the ground, and began walking down River Street toward
Fifth Avenue; the other man began walking up Sixth Avenue.
Rodriguez retrieved the plastic bag and found inside it what
he believed was crack cocaine. After Rodriguez advised Arroyo
that he had recovered drugs, Arroyo immediately ordered
defendant to stop. Defendant fled.
the ensuing foot chase, Rodriguez saw defendant reach into
his waistband and pull out a handgun. Rodriguez drew his
service revolver, and while pointing it at defendant, he
repeatedly told defendant to drop his weapon. Rodriguez was
able to apprehend defendant and tackle him to the ground.
Rodriguez testified that defendant struggled to avoid arrest
by flailing his arms and legs.
that struggle, defendant's gun slid under a white van
parked near by. Arroyo located and retrieved the gun, which
was a .380 caliber semi-automatic weapon with one round in
the chamber. The serial number had been scratched off the
weapon. The State produced evidence demonstrating that at the
time of arrest, defendant was within 1000 feet of a school.
testified on his own behalf and denied all of the allegations
against him, including having a gun or narcotics in his
possession, threatening police officers with a gun, engaging
in a hand-to-hand drug sale, and struggling with Rodriguez at
the time of arrest. Defendant admitted that he fled upon
seeing the police vehicle, but explained he did so only
because he feared he would be arrested for warrants for
unpaid parking tickets. Defendant testified that he was not
tackled by police, but instead tripped onto the ground.
his testimony, defendant acknowledged that he had been
convicted of a first-degree crime in 1995, for which he was
sentenced to a fifteen-year term of imprisonment, with five
years before parole eligibility. He also acknowledged that in
1995, he was also convicted of a third-degree crime for which
he received a five-year sentence, with eighteen months of
cousin, Michael Brown, testified that he and defendant were
walking on River Street when they saw a police car rapidly
approach them and park. After one officer jumped out of the
unmarked car, Brown saw his cousin run up the street. Brown
testified he did not know why defendant ran, but believed it
was because he was on parole. Brown watched as the officer
chased defendant across the street, and he saw defendant turn
around and run back toward Brown and Miguel Chappell. Brown
did not see anything in defendant's hand and testified
that defendant was not carrying a gun while running.
According to Brown, the officer did not tackle defendant.
Instead, defendant tripped and fell to the ground about seven
feet from where Brown was standing. Before he hit the ground,
defendant did not have a gun or any silver object in his
also testified that at no time while he was with defendant in
the two hours before the police vehicle approached, did
defendant sell drugs. Brown stated that he, defendant and
Chappell were merely standing in the general area of River
Street near Sixth Avenue in the minutes before police
approached. Brown testified that defendant did not drop a bag
of cocaine. Chappell's testimony corroborated that of
was convicted of third-degree possession of a controlled
dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count
one); third-degree possession of CDS with the intent to
distribute, N.J.S.A. 2C;35-5(a)(1) and 2C;35-5(b)(3) (count
two); third-degree possession of CDS with the intent to
distribute within 1, 000 feet of a school, N.J.S.A. 2C:35-7
(count three); third-degree resisting arrest, N.J.S.A.
2C;29-2(a) (count seven); second-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count
eight); third-degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b) (count nine); second-degree possession of
a weapon while committing a narcotics offense, N.J.S.A.
2C:39-4.1 (count ten); fourth-degree possession of a defaced
firearm, N.J.S.A. 2C:39-3(d) (count eleven); and
second-degree certain persons not to possess weapons,
N.J.S.A. 2C:39-7 (count twelve). The jury acquitted defendant
on counts four, five and six, which charged fourth-degree
aggravated assault by pointing a firearm, and two counts of
third-degree assault on a police officer.
sentencing, the judge granted the State's motion to
sentence defendant to a mandatory extended term as a prior
Graves Act offender pursuant to N.J.S.A. 2C:43-6(c), and as a
prior drug distribution offender pursuant to N.J.S.A.
2C:43-6(f), and the trial court orally imposed an aggregate
sentence of 40 years with a 20-year parole
appealed his convictions and sentence, and the Appellate
Division affirmed the convictions and mandatory consecutive
term imposed on Count ten, but remanded for resentencing in
light of State v. Natale (II), 878 A.2d 724 (N.J.
2005), and for the trial judge to explain his reasons for
imposing a consecutive sentence on Count twelve. State v.
Smith, 2007 WL 3005342, at *10 ( N.J.Super. App. Div.
Oct. 17, 2007).
filed a petition for certification, and the New Jersey
Supreme Court granted defendant's petition for
certification in part, "limited solely to reviewing
defendant's claim that, to convict under N.J.S.A.
2C:39-3(d), the State must prove a defendant's knowledge
of possession of the weapon and knowledge of the weapon's
defacement." State v. Smith, 197 N.J. 325, 330
(2009) (citing State v. Smith, 193 N.J. 584 (2008)).
On January 27, 2009, the Supreme Court affirmed
defendant's conviction. Id. at 339.
meantime, pursuant to the Appellate Division's remand,
Petitioner was resentenced on October 3, 2008, and the judge
re-imposed the sentence from the previous judgment of
conviction. (ECF No. 10-37, Exhibit 37) Petitioner appealed
the October 3, 2008 resentencing, and while the appeal was
pending, on April 2, 2009, the New Jersey State Parole Board
sent a letter to the presiding judge of Passaic County
requesting clarification of Petitioner's sentence, noting
that it appeared that the sentence imposed was thirty years
with a 10-year parole ineligibility term. (See ECF
No. 17, at 141 (PA 41-42).) On May 14, 2010, the trial judge
conducted a hearing and determined that the original judgment
of conviction contained clerical errors, and that he had
imposed a total aggregate sentence of 40 years with a 20-year
parole ineligibility term. (ECF No. 10-38, Exhibit 38.) The
trial judge amended the JOC to reflect the sentence he
actually imposed. (ECF No. 17, PA 53-55, Amended JOC dated
May 14, 2010).
amended notice of appeal was filed, and the Appellate
Division affirmed the sentence in a per curiam opinion on
July 28, 2011. (ECF No. 17 at PA56-69). The New Jersey
Supreme Court denied certification on January 19, 2012. (ECF
No. 17, PA 70.)
filed a pro se PCR petition on or about March 17, 2010. (ECF
No. 17, PA 120-125.) The PCR court denied the petition
without a hearing as procedurally barred and without merit on
July 24, 2014. (ECF No. 17, PA 79-98.) On February 23, 2016,
the Appellate Division affirmed, State v. Smith,
2016 WL 698565, at *1 ( N.J.Super. App. Div. Feb. 23, 2016),
and the Supreme Court denied certification on May 6, 2016.
State v. Smith, 225 N.J. 340 (2016).
instant Petition was docketed on June 22, 2016, and is dated
June 14, 2016. The Petition raises nine grounds for relief.
(See ECF No. 1.) Respondents' answer was filed
on September 28, 2018 (See ECF No. 8; see also ECF No. 10),
and Petitioner, proceeding pro se, sought several extensions
of time within which to file a traverse, which were granted
by the Court. (ECF Nos. 9, 11-13.) On April 9, 2019, John
Vincent Saykanic, Esquire, entered a notice of appearance on
behalf of Petitioner, and, on May 29, 2019, he filed a
traverse on Petitioner's behalf.
STANDARD OF REVIEW
2254(a) permits a court to entertain only claims alleging
that a person is in state custody "in violation of the
Constitution or laws or treaties of the United States."
28 U.S.C. § 2254(a). Petitioner has the burden of
establishing each claim in the petition. See Eley v.
Erickson, 712 F.3d 837, 846 (3d Cir. 2013). Under 28
U.S.C. § 2254, as amended by AEDPA (28 U.S.C. §
2244), federal courts in habeas corpus cases must give
considerable deference to determinations of state trial and
appellate courts. See Renico v. Lett, 599 U.S. 766,
2254(d) sets the standard for granting or denying a writ of
(d) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the 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;
(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).
state court adjudicated a petitioner's federal claim on
the merits,  a federal court "has no authority
to issue the writ of habeas corpus unless the [state
c]ourt's decision 'was contrary to, or involved an
unreasonable application of, clearly established Federal Law,
as determined by the Supreme Court of the United States,'
or 'was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.'" Parker v. Matthews, 567 U.S.
37, 40-41 (2012) (quoting 28 U.S.C. § 2254(d)).
established law for purposes of § 2254(d)(1) includes
only the holdings, as opposed to the dicta, of t[he Supreme
Court's] decisions," as of the time of the relevant
state-court decision. White v. Woodall, 134 S.Ct.
1697, 1702 (2014) (quoting Williams v. Taylor, 529
U.S. 362, 412 (2000)). A decision is "contrary to"
a Supreme Court holding within 28 U.S.C. § 2254(d) (1)
if the state court "contradicts the governing law set
forth in [the Supreme Court's] cases" or if it
"confronts a set of facts that are materially
indistinguishable from a decision of th[e Supreme] Court and
nevertheless arrives at a [different] result."
Williams, 529 U.S. at 405-06. Under the
'"unreasonable application' clause of §
2254(d)(1), a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle
from th[e] [Supreme] Court's decisions but unreasonably
applies that principle to the facts of the prisoner's
case." Williams, 529 U.S. at 413. As to 28
U.S.C. § 2254(d)(1), a federal court must confine its
examination to evidence in the record. Cullen v.
Pinholster, 563 U.S. 170, 180-81 (2011).
petitioner seeks habeas relief, pursuant to §
2254(d)(2), on the basis of an erroneous factual
determination of the state court, two provisions of the AEDPA
necessarily apply. First, the AEDPA provides that "a
determination of a factual issue made by a State court shall
be presumed to be correct [and] [t]he applicant shall have
the burden of rebutting the presumption of correctness by
clear and convincing evidence." 29 U.S.C. §
2254(e)(1); see Miller-El v. Dretke, 545 U.S. 231,
240 (2005). Second, the AEDPA precludes habeas relief unless
the adjudication of the claim "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)(2).
addition to the above requirements, a federal court may not
grant a writ of habeas corpus under § 2254 unless the
petitioner has "exhausted the remedies available in the
courts of the State." 28 U.S.C. § 2254(b)(1)(A). To
do so, a petitioner must '"fairly present' all
federal claims to the highest state court before bringing
them in federal court." Leyva v. Williams, 504
F.3d 357, 365 (3d Cir. 2007) (citing Stevens v. Delaware
Corr. Ctr., 295 F.3d 361, 369 (3d Cir. 2002)). This
requirement ensures that state courts "have 'an
initial opportunity to pass upon and correct alleged
violations of prisoners' federal rights.'"
Id. (citing United States v. Bendolph, 409
F.3d 155, 173 (3d Cir. 2005) (quoting Duckworth v.
Serrano, 454 U.S. 1, 3 (1981)).
when a petitioner properly exhausts a claim, a federal court
may not grant habeas relief if the state court's decision
rests on a violation of a state procedural rule. Johnson
v. Pinchak, 392 F.3d 551, 556 (3d Cir. 2004). This
procedural bar applies only when the state rule is
"independent of the federal question [presented] and
adequate to support the judgment." Leyva, 504
F.3d at 365-66 (citing Nara v. Frank, 488 F.3d 187,
196, 199 (3d Cir. 2007); see also Gray v.
Netherland, 518 U.S. 152 (1996), and Coleman v.
Thompson, 501 U.S. 722 (1991)). If a federal court
determines that a claim has been defaulted, it may excuse the
default only upon a showing of "cause and
prejudice" or a "fundamental miscarriage of
justice." Leyva, 504 F.3d at 366 (citing
Lines v. Larkins, 208 F.3d 153, 166 (3d Cir. 2000)).
extent that a petitioner's constitutional claims are
unexhausted and/or procedurally defaulted, a court can
nevertheless deny them as meritless under 28 U.S.C. §
2254(b)(2). See Taylor v. Horn, 504 F.3d 416, 427
(3d Cir. 2007) ("Here, because we will deny all of
[petitioner's] claims on the merits, we need not address
exhaustion"); Bronshtein v. Horn, 404 F.3d 700,
728 (3d Cir. 2005) (considering procedurally defaulted claim,
and stating that "[u]nder 28 U.S.C. § 2254(b)(2),
we may reject claims on the merits even though they were not
properly exhausted, and we take that approach here").
instant Petition raises nine grounds for relief. In his
traverse, Petitioner's counsel acknowledges that Ground
Six of the Petition (lack of fingerprint testing on the gun)
is unexhausted (See ECF No. 17, Traverse at 88), and
elects to withdraw Ground Six in order to prevent the
dismissal of the entire Petition as a mixed petition.
(See id.) As such, the Court deems Ground Six
withdrawn, and the Court addresses the remaining claims for
Prosecutor's Use of Post-Arrest Silence on Cross
Examination (Ground One)
Ground One, Petitioner asserts that the prosecutor structured
his cross-examination of defendant to tell the jury that
defendant did not make a statement to police at the time of
his arrest, and tiiat this line of questioning violated his
due process rights to a fair trial. The following exchange
took place at trial during the State's cross-examination
Q: What were you being charged with? You're being charged
with drugs, possessing them with the intent to sell them and
possession of a handgun?
Q: Did you at any time say to them, hey, man, what are you
[DEFENSE COUNSEL]: Objection.
THE COURT: I'll sustain the objection. Ladies and
gentlemen, you'll disregard that question. Please step
into the jury room....
the jury stepped into the jury room, there was a discussion
on the matter. (ECF No. 10-32, 4T194-25 to 200-22). The
prosecutor explained that he had only intended to ask
defendant why he ran, since he had not done anything, and if
he knew what he would be charged with. (Id. at
4T197-20 to 198-12). The judge then noted that nothing in the
case indicated that defendant had been questioned or
Mirandized, and that no questioning in the area of
defendant's pre-arrest silence would be permitted.
(Id. at 4T198-13 to 25). Defense counsel asked,
"What about some type of limited instruction to the jury
to try to ameliorate the damage that I think the
question's already done?" (Id. at 4T199-1
to 3). The judge pointed out that he had given an immediate
instruction to disregard the question, and that the answer to
the question had not been actually elicited. (Id. at
4T199-4 to 7). The judge also ordered that the audiotape of
the pertinent part of the proceedings be played back.
(Id. at 4T199-4 to 23). After hearing the tape, the
judge determined that there was no need for further
instruction. (Id. at 4T199-24 to 200-22).
raised Ground One on direct appeal, and the Appellate
Division rejected the claim as follows:
We need not decide whether the prosecutor's
cross-examination ran afoul of State v. Muhammad,
182 N.J. 551, 567 (2005), in which the Court held that the
State may not cross-examine a defendant about his failure to
have made an exculpatory statement to police. Here, we are
satisfied that the Court promptly instructed the jury to
disregard the question. If a trial judge orders the jury to
disregard a question, we assume that the jury followed the
judge's instruction and that any prejudice that may have
been caused by the comment has been eliminated. State v.
Farrell, 61 N.J. 99, 107 (1972).
In addition to instructing the jury to disregard the
question, the judge also explained in his final charge that
"[a]ny testimony that I may have had the occasion to
strike is not evidence and should not enter into your
deliberations. It must be disregarded by you." Under
these circumstances, we are confident that the judge's
immediate and forceful response negated any prejudice that
might otherwise have arisen. For these reasons, we reject
defendant's contentions in Point I.
State v. Smith, 2007 WL 3005342, at *3-4 (
N.J.Super. App. Div. 2007).
well-established that a state prosecutor may not seek to
impeach a defendant's exculpatory story, told for the
first time at trial, by cross-examining the defendant about
his failure to have told the story after receiving
Miranda warnings at the time of his arrest. The
Supreme Court has held that "the use for impeachment
purposes of petitioners' silence, at the time of arrest
and after receiving Miranda warnings, violated the
Due Process Clause of the Fourteenth Amendment."
Doyle v. Ohio, 426 U.S. 610, 619 (1976). In
Brecht v. Abrahamson, 507 U.S. 619, 638 (1993), the
Supreme Court specifically addressed a Doyle error
and held that the Kotteakos harmless-error
standard applies in determining whether habeas relief must be
granted because of constitutional error of the trial type.
as relevant here, the Supreme Court has held that there can
be no Doyle violation where the reference to
post-arrest silence occurs in a single question and the trial
court sustains an objection to the improper question and
provides a curative instruction to the jury, thereby barring
the prosecutor from using the silence for impeachment.
See Greer v. Miller, 483 U.S. 756, 764-66 (1987)
(finding that "[t]he sequence of events in this case-a
single question, an immediate objection, and two curative
instructions-clearly indicates that the prosecutor's
improper question did not violate [petitioner's] due
Greer v. Miller, Respondent Miller took the stand on
direct examination he testified that he had taken no part in
the crime, but that the other two alleged participants,
Armstrong and Williams, had come to the trailer home after
the murder was committed seeking Miller's advice. Miller
testified that Armstrong confessed that he and Williams had
beaten and robbed Gorsuch, and that they had killed him to
avoid being identified as the perpetrators.
prosecutor began his cross-examination of Miller as follows
"Q: Mr. Miller, how old are you?
"Q: Why didn't you tell this story to anybody when
you got arrested?"
counsel immediately objected. Out of the hearing of the jury,
Miller's lawyer requested a mistrial on the ground that
the prosecutor's question violated Miller's right to
remain silent after arrest. The trial judge denied the
motion, but immediately sustained the objection and
instructed the jury to "ignore [the] question, for the
time being." The prosecutor did not pursue the issue
further, nor did he mention it during his closing argument.
At the conclusion of the presentation of evidence, defense
counsel did not renew his objection or request an instruction
concerning the prosecutor's question. Moreover, the judge
specifically instructed the jury to "disregard questions
... to which objections were sustained." Miller was
convicted of murder, aggravated kidnapping, and robbery, and
sentenced to 80 years in prison. See Greer, 483 U.S.
finding no Doyle violation under these facts, the
Supreme Court stated as follows:
.. .the trial court in this case did not permit the inquiry
that Doyle forbids. Instead, the court explicitly
sustained an objection to the only question that touched upon
Miller's postarrest silence. No. further questioning or
argument with respect to Miller's silence occurred, and
the court specifically advised the jury that it should
disregard any questions to which an objection was sustained.
Unlike the prosecutor in Doyle, the prosecutor in
this case was not "allowed to undertake impeachment
on," or "permitted]... to call attention to,"
Miller's silence. 426 U.S., at 619, and n. 10, 96 S.Ct.,
at 2245, and n. 10. The fact of Miller's postarrest
silence was not submitted to the jury as evidence from which
it was allowed to draw any permissible inference, and thus no
Doyle violation occurred in this case.
Greer, 483 U.S. at 764-65.
facts of this case are similar to what occurred in
Greer. Petitioner's counsel objected to the
prosecutor's single question regarding his post-arrest
silence, the objection was sustained, and the judge later
instructed the jury to disregard any evidence where he had
sustained an objection. Although Petitioner's counsel
sought a more detailed limiting instruction at the time the
objection was sustained and the trial court declined to give
it, this fact alone does not warrant departure from the
Supreme Court's analysis in Greer. As noted by
the Appellate Division, the judge gave a general instruction
that the jury should disregard evidence if the judge had
sustained an objection. For these reasons, the Appellate
Division did not unreasonably apply clearly established
federal law when it denied Petitioner's claim regarding
cross-examination about his post-arrest silence, and habeas
relief is not warranted on Ground One.
Failure to Grant Mistrial after Other Crimes Evidence Heard
Ground Two, Petitioner argues that the trial court erred when
it denied his motion for a mistrial after a defense witness
commented during cross-examination that defendant was on
parole at the time of the instant offense. The following
testimony was elicited during cross-examination of defense
witness Michael Brown:
Q: But either way when the police officers came up on the
scene your first cousin took off running; correct, that's
what you told us?
A: Yes, sir, that's what I told you.
Q: Yes, okay. And you told us that you don't ...