United States District Court, D. New Jersey
BRIAN R. MARTINOTTI UNITED STATES DISTRICT JUDGE.
this Court is a writ of habeas corpus filed by Petitioner
Tyshaun Pope (“Petitioner”), a state prisoner
proceeding pro se with a petition filed pursuant to
28 U.S.C. § 2254. For the reasons set forth below, the
petition is DENIED and a certificate of
appealability shall not issue.
September 14, 2009, Petitioner conspired with Terrell Majette
(“Majette”) to steal cocaine from another
individual named Herman Neely. See ECF No. 8-5 at
13-14. During his plea colloquy, Petitioner stated he had
been armed with a gun and that he intended to use it to place
the victim in fear during the commission of the crime.
See id. at 16-17. Although the robbery never
occurred, Petitioner was ultimately still apprehended by law
enforcement and he provided a statement indicating his role
in conspiracy. See Id. at 18. Petitioner and Majette
were subsequently indicted, under Indictment Number
10-05-0894, for: conspiracy, in violation of N.J. Stat. Ann.
§ 2C:5-2 and § 2C:15-1; unlawful possession of a
weapon, in violation of N.J. Stat. Ann. § 2C:39-5b;
possession of a weapon for an unlawful purpose, in violation
of N.J. Stat. Ann. § 2C:39-4a; attempted armed robbery,
in violation of N.J. Stat. Ann. § 2C:15-1 and §
2C:5-1; attempted possession of a controlled dangerous
substance, in violation of N.J. Stat. Ann. § 2C:5-1 and
§ 2C:23-10a(1); obstructing the administration of law or
other governmental function, in violation of N.J. Stat. Ann.
§ 2C:29-1; and certain persons not to have weapons, in
violation of N.J. Stat. Ann. § 2C:39-7b(1). See
ECF No. 8-3.
months later, on December 12, 2009, Petitioner was in Neptune
Township, New Jersey, when two police officers observed
Petitioner making a hand-to-hand drug transaction with
another individual. See ECF No. 8-24 at 9. When the
officers approached Petitioner and indicated they believed he
may have an outstanding warrant, Petitioner admitted,
“I know I do.” See id. One of the
officers, Officer Byham, then told Petitioner that if the
warrant was confirmed, “[Petitioner] better not have
any drugs on him.” See id. Petitioner
immediately confessed to having a “package”
between his buttocks. See id. Petitioner was
arrested and transported to police headquarters where he was
strip searched. See id. During the strip search,
when Petitioner was asked to remove his pants, a plastic bag
containing eighteen (18) bags of cocaine fell to the ground.
See id. Petitioner was subsequently indicted, under
Indictment Number 10-03-0437, for: possession of a controlled
dangerous substance, in violation of N.J. Stat. Ann. §
2C:35-10a(1); possession of a controlled dangerous substance
with intent to distribute, in violation of N.J. Stat. Ann.
§ 2C:35-5b(3); and possession of a controlled dangerous
substance on or within 1, 000 feet of school property with
intent to distribute, in violation of N.J. Stat. Ann. §
2C:35-7. See ECF No. 8-2.
19, 2010, Petitioner entered into a plea agreement with the
State. See ECF Nos. 8-4, 8-5. Under Indictment
Number 10-03-0437, Petitioner pleaded guilty to possession of
cocaine with intent to distribute within 1, 000 feet of
school property, and under Indictment Number 10-03-0894,
Petitioner pleaded guilty to conspiracy to commit armed
robbery and certain persons not to have firearms.
See ECF No. 8-4 at 1. The State agreed to dismiss
the remaining counts charged in the indictments and to
recommend an aggregate term of ten (10) years imprisonment,
subject to an eight-and-one-half (8 ½) year period of
parole ineligibility. See id. at 3. Petitioner's
sentencing recommendation was contingent upon his truthful
testimony at the trial of his co-conspirator, Majette.
Petitioner testified at the trial of Majette, he failed to
provide truthful testimony. See ECF No. 8-9 at 6-7,
26-27. Majette's trial ended in a hung jury. See
ECF No. 8 at 10. Petitioner thereafter filed a motion to
withdraw his guilty plea, based upon the fact that the
prosecutor believed he had provided untruthful testimony at
Majette's trial and based upon Petitioner's belief
that he had provided an inadequate factual basis for his
crimes during his plea colloquy. See ECF Nos. 8-6,
8-7. The sentencing court ultimately denied Petitioner's
motion to withdraw his guilty plea and sentenced him to an
aggregate term of ten (10) years in prison, subject to an
eight-and-one-half (8 ½) year period of parole
ineligibility, as well as various fines and penalties.
See ECF No. 8-9 at 26, 33-35.
appeal to the New Jersey Appellate Division, Petitioner
challenged only his ten (10) year sentence. See ECF
No. 8-23 at 45. On August 1, 2012, the Appellate Division
denied Petitioner's appeal, and held that the sentence
was not “manifestly excessive or unduly punitive and
does not constitute an abuse of discretion.” See
id. Petitioner thereafter filed a petition for
certification to the New Jersey Supreme Court. See
id. at 46. Petitioner's certification was denied.
29, 2013, Petitioner filed a pro se petition for
Post-Conviction Relief (“PCR”) with the Superior
Court of New Jersey, Law Division. See ECF No. 8-18.
In his application, Petitioner raised numerous claims,
including several ineffective assistance of counsel claims.
See ECF No. 8-21. Following oral argument from both
defense counsel and the State, the PCR court denied
Petitioner's application. See ECF Nos. 24, 25.
Petitioner appealed the denial to the New Jersey Appellate
Division. See ECF No. 8-26. On March 29, 2016, the
Appellate Division denied Petitioner's appeal, and
affirmed the PCR court's decision. See State v.
Pope, A-1429-14T2, 2016 WL 1192616 (
N.J.Super.Ct.App.Div. Mar. 29, 2016). Petitioner subsequently
appealed to the New Jersey Supreme Court. See ECF
No. 8-32. His petition for certification was denied on June
24, 2016. See State v. Pope, 141 A.3d 229 (2016).
November 2016, Petitioner filed the instant Petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
See ECF No. 1. Subsequent to this Court's order
directing Petitioner to provide sufficient factual and
contextual support for the claims he raised in his first
petition, Petitioner filed an amended Petition in April 2017.
See ECF No. 5. On July 24, 2017, Respondent filed an
answer in opposition. See ECF No. 8. Petitioner
thereafter filed a brief in reply. See ECF No. 12.
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, and therefore, 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). Therefore, “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 ...