United States District Court, D. New Jersey
B. KUGLER UNITED STATES DISTRICT JUDGE
Richard Gardner, is a state prisoner proceeding pro se with a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner was convicted in 2008 and is
currently serving an eighteen-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 his habeas petition. For
the reasons set forth below, the petition will be denied and
a certificate of appealability shall not issue.
trial, Bruce Hanson testified that on May 3, 2006, he visited
the Eli family house in Franklin Township, New Jersey.
See State v. Gardner, No. A-3034-08T2, 2011 WL
4808257, at *1 (N.J.Super.Ct.App.Div. Oct. 12, 2011). Hanson
was visiting the home to retrieve a cell phone he had
previously given to Marcella Eli in exchange for drugs. See
Id. Hanson testified that he was present in the
house for a few hours, during which Petitioner was “in
and out” of the premises. See Id. Hanson
stated that he had met Petitioner once or twice before and
believed that Petitioner was a member of the Eli family. See
left the Eli residence between 2:30 and 3:00 pm that day and
began walking towards Route 47. See Id. As he was
walking, a vehicle pulled alongside him and the driver,
Cynthia Corsey, offered him a ride. See Id. Hanson
testified that Omar Rhodes, who Hanson did not know, was
seated in the front passenger seat and Petitioner was seated
in the rear passenger seat. See Id. After Hanson
entered the vehicle, Rhodes stated that he needed to urinate
and asked Corsey to pull over. See Id. Corsey turned
the vehicle into the parking lot of a local park which had a
restroom. See Id. When Rhodes exited the vehicle,
however, he went to the left rear passenger door and leaned
against it, preventing Hanson from exiting the vehicle. See
Id. Petitioner then stated to Hanson, “Do you
know what time it is?” and proceeded to punch Hanson in
the forehead, hold a knife against Hanson’s throat, and
demand Hanson’s money. See Id. Hanson
testified that Corsey also threatened him with a box cutter.
See Id. Hanson stated that after stealing $280 from
him, Petitioner and Corsey demanded he exit the vehicle. See
Id. Hanson testified that as the car drove away, he
memorized the license plate. See Id. Thereafter,
Hanson saw a group of men fishing nearby, asked to use their
cellphone, and called 9-1-1. See id.
also testified that before trial began, Petitioner’s
sister Marcella Eli had approached him and asked him to sign
a letter recanting his identification of Petitioner as one of
the individuals who had robbed him. See id. at *2.
Although the letter bore a notary stamp, Hanson testified
that he did not sign the letter in the presence of a notary.
See id. Hanson explained that he signed the letter
because he knew “what it’s like to have a drug
problem.” See id. This statement was not
objected to by defense counsel. See id. Hanson
further stated that he had been reluctant to testify at trial
because he had children that resided in “the same
town” and he feared that his testifying could
“create an issue for them.” See id. This
statement was also not objected to by defense counsel.
trial, the State called Cynthia Corsey as a witness. See
id. Corsey testified that she was still a defendant in
the case and was facing a separate trial arising from the
same incident. See id. Corsey denied that the State
had promised her anything in exchange for her testimony at
Petitioner’s trial. See id. Corsey stated that
she was “putting [herself] at risk of things out on the
street” by testifying, and that her main concern was
being labeled a “snitch.” See id. Corsey
stated that on the day of the crime, she, Rhodes, and
Petitioner went to Petitioner’s grandmother’s
house in Franklin Township. See id. Corsey saw
Hanson, who she did not know at the time, also at the home.
See id. When Corsey, Rhodes, and Petitioner left the
house about half an hour later, they saw Hanson walking on
the street. See id. At Petitioner’s
suggestion, Corsey offered Hanson a ride home. See
id. When Rhodes asked to use the bathroom, she pulled
into the local park, near the restroom. See id.
Corsey testified that after Rhodes exited the vehicle, she
heard a “tussle” in the backseat and Petitioner
say, “Do you know what time it is?” See
id. Corsey stated that she saw Petitioner holding
something to Hanson’s neck and demanding Hanson’s
money. See id. Corsey admitted she had a box cutter
in her vehicle, but she denied using it during the crime.
See id. She also denied that Rhodes was blocking
Hanson from leaving the vehicle, stating that Rhodes had just
been leaning against the door as he urinated. See
Petitioner’s case-in-chief, he called Detective Kenneth
Cresitelli as a defense witness. See id. Detective
Cresitelli was an investigator on the case and had taken a
recorded statement from Hanson the day of the crime. See
id. Since the defense had failed to confront Hanson with
the recorded statement during his testimony, the trial court
prohibited defense counsel from directly questioning
Detective Cresitelli about any inconsistencies between the
tape and Hanson’s trial testimony. See id. The
prosecutor was also not permitted to question Detective
Cresitelli about any statements made on the tape. See
id. The prosecutor was, however, allowed to question
Detective Cresitelli regarding other aspects of his
investigation. See id. at *3. On cross-examination,
the prosecutor elicited testimony from Detective Cresitelli
that demonstrated what Hanson had told police on May 3, 2006
was consistent with the findings of the investigation.
See id. Part of this testimony included Detective
Cresitelli’s statement that the tire tracks found at
the scene of the crime appeared to match the tire treads on
Corsey’s vehicle. See id.
closing remarks, the prosecutor clarified that Detective
Cresitelli was not an expert in tire treads and had only been
testifying as to his personal observations. See id.
The prosecutor also commented during summation that “it
was reasonable for Hanson to be afraid to come to court to
confront the people who attacked him and to be afraid because
his children live near the Eli house.” Id.
the jury returned their guilty verdict as to the robbery and
related charges, the trial court immediately commenced with
Petitioner’s trial for the certain persons offense.
See id. The State introduced evidence of
Petitioner’s prior felony conviction and then rested.
See id. The trial court then instructed the jury as
to the certain persons charge. See id. After
deliberations, the jury returned with a guilty verdict.
See id. Petitioner was sentenced to eighteen years
imprisonment subject to NERA. See id. at *1.
appealed his conviction and sentence to the New Jersey
Superior Court, Appellate Division. (ECF No. 8-3 at 28.) On
October 12, 2011, the Appellate Division affirmed
Petitioner’s conviction and affirmed the sentence he
received for the robbery and certain persons charges. See
Gardner, 2011 WL 4808257, at *6-7. The Appellate
Division remanded the matter back to the trial court,
however, to reflect a merger of the remainder of
Petitioner’s offenses into his sentence for the robbery
conviction. See id. at *7. On May 3, 2012, the New
Jersey Supreme Court granted Petitioner’s request for a
writ of certiorari. See State v. Gardner, 42 A.3d
889 (N.J. 2012). However, on April 17, 2013, the court issued
an order stating that it had “improvidently
granted” Petitioner’s application and dismissed
the appeal. See State v. Gardner, 64 A.3d 514 (N.J.
April 30, 2013, Petitioner submitted a petition for
Post-Conviction Relief (“PCR”) to the New Jersey
Superior Court, Law Division. See State v. Gardner,
No. A-1375-14T1, 2016 WL 2596394, at *1
(N.J.Super.Ct.App.Div. May 6, 2016). Following oral argument,
the court denied the Petitioner’s request for PCR. (ECF
No. 8-7 at 99.) The Appellate Division affirmed the PCR
court’s decision. See Gardner, 2016 WL
2596394, at *3. The New Jersey Supreme Court denied
Petitioner’s writ of certiorari. See State v.
Gardner, 156 A.3d 166 (N.J. 2016).
2017, Petitioner filed the instant § 2254 Petition. (ECF
No. 1.) On July 14, 2017, Respondents filed an Answer in
opposition. (ECF No. 8.) Petitioner filed a reply brief
shortly thereafter. (ECF No. 9.)
HABEAS CORPUS LEGAL STANDARD
application for writ of habeas corpus by a person in custody
under judgment of a state court can only be granted for
violations of the Constitution or 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 the relevant state court decision
applied clearly established federal law erroneously or
incorrectly. Rather, that application must also be
unreasonable.” Id. at 411. “[Federal
courts] may not characterize  state-court factual
determinations as unreasonable ‘merely because [they]
would have reached a different conclusion in the first
instance.’ [. . .] If ‘[r]easonable minds
reviewing the record might disagree’ about the finding
in question, ‘on habeas review that does not suffice to
supersede the trial court’s …
determination.’” Brumfeld v. Cain, 135
S.Ct. 2269, 2277 (2015) (alterations in original) (quoting
Wood v. Allen, 558 U.S. 290, 301 (2010)).
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 carries the burden of proof
and with respect to review under § 2254(d)(1), that