ANDERSON v. RICCI et al, No. 2:2009cv01168 - Document 33 (D.N.J. 2014)

Court Description: OPINION. Signed by Judge Katharine S. Hayden on 11/24/2014. (nr, )

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ANDERSON v. RICCI et al 1 2 3 4 5 6 Doc. 33 NOT FOR PUBLICATION United States District Court for the District of New Jersey MAURICE ANDERSON, Civil No.: 09-1168 (KSH) Petitioner, v. OPINION ADMINISTRATOR Northern State Prison; ATTORNEY GENERAL for the State of New Jersey, Respondents. 7 8 9 10 Katharine S. Hayden, U.S.D.J. Proceeding pro se, Maurice Anderson has filed an all-inclusive amended petition for a 11 writ of habeas corpus [D.E. 16], pursuant to 28 U.S.C. § 2254. He challenges a 2001 Essex 12 County conviction on robbery, weapons, and drug charges arising out of two convenience-store 13 robberies. Having reviewed the submissions and applying the required legal standard, the Court 14 will deny the amended petition. 15 16 I. BACKGROUND 17 18 19 The following facts are drawn from the New Jersey Appellate Division’s decision on direct appeal, which is attached as Exhibit U to the state’s answer. [D.E. 21-25.] At about 8:00P.M. on October 24, 2000, Maurice Anderson, Dadje Dawara, and Hamadi 20 O. Aaron robbed Crosstown Food Market, in Newark, New Jersey, of about $550. During the 21 robbery, a gun was brandished and Anderson sprayed mace on the owner of the convenience 22 store, who called the police and gave them the color, make and license plate of the getaway car. Dockets.Justia.com 23 About ten minutes after the first robbery, Anderson and the others robbed the Central Avenue 24 Supermarket, also in Newark. Then they drove to Dawara’s girlfriend’s house, dropped off the 25 gun, and drove to Aaron’s house. As they were about to drive to Anderson’s house the police 26 apprehended them. 27 The three men were indicted on several counts of armed robbery, weapons, and drug 28 charges. Aaron entered into a plea agreement and testified against Anderson and Dawara at their 29 joint trial. 30 An Essex County jury found Anderson guilty of four counts of first-degree armed 31 robbery, unlawful possession of a handgun, possession of a handgun for an unlawful purpose, 32 possession of cocaine, possession of cocaine with the intent to distribute, unlawful possession of 33 mace, and possession of mace for an unlawful purpose. Anderson received an aggregate 34 sentence of 40 years. Under New Jersey sentencing law, he must serve 28 years of the sentence 35 before becoming eligible for parole.(See Judgment [D.E. 25-21].) The New Jersey Appellate 36 Division affirmed in an unpublished opinion (see generally Dir.App.Op. [D.E. 21-25]) and the 37 New Jersey Supreme Court denied certification on April 26, 2004. See State v. Anderson, 180 38 N.J. 152 (2004). 39 Anderson timely filed his first state petition for post-conviction relief (“PCR”), in which 40 he raised several ineffective assistance of counsel claims and other claims of trial error. Initially 41 filed pro se, Anderson’s petition was eventually supplemental by counsel. After a hearing, the 42 judge who had presided over the trial denied relief via an opinion from the bench. The Appellate 43 Division summarily affirmed. See generally State v. Anderson, No. A-2128-06T4, 2008 WL 2 44 695864 (App. Div. Mar. 17, 2008). Certification to the Supreme Court was denied. See State v. 45 Anderson, 195 N.J. 519 (2008) (table). 46 Anderson filed a second, pro se PCR petition on September 24, 2008. By order filed July 47 2, 2010, the same judge denied the petition, doing so at least partially on the merits. Anderson 48 does not appear to have appealed this disposition. 49 While the second PCR petition was pending, the Clerk of this Court accepted for filing 50 Anderson’s federal 28 U.S.C. § 2254 petition. [D.E. 1.] In response to a Mason order,1 51 Anderson represented that he wished to file an all-inclusive petition after state-court proceedings 52 had come to a close. [D.E. 3–4.] Via order, the initial habeas petition was dismissed without 53 prejudice as withdrawn, but because Anderson showed some confusion about what he was 54 requesting, he was given 30 days to reconsider his decision. [D.E. 5.] Anderson wrote again 55 within this period, saying that he would like to file an all-inclusive petition that would be stayed 56 until the second PCR petition was fully resolved. [D.E. 6.] In another order [D.E. 7], the Court 57 ordered the matter reopened, denied a stay, and warned Anderson that his original petition [D.E. 58 1] would be ruled upon unless he responded within 14 days. Anderson requested the Court 59 reconsider that decision. [D.E. 8.] Ultimately, while these procedural orders in federal court 60 were being issued, the state court ruled against Anderson on the second PCR petition and he filed 61 an amended habeas petition [D.E. 16]. The amended petition raises a mixture of claims arising out of Anderson’s direct and 62 63 collateral state challenges to his conviction and sentence. He claims that the prosecutor’s use of 64 peremptory challenges was racially motivated, and that the trial court should have granted a 1 See Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000). 3 65 requested mistrial after jury selection. Additional claims are that his sentence was disparate and 66 excessive; counsel was constitutionally ineffective in several ways; the admission of digital 67 photographs violated due process; and the failure to grant him a severance violated due process. 68 The state filed an answer, arguing among other things that certain grounds were unexhausted or 69 procedurally defaulted and that the petition was untimely. [D.E. 21.] Anderson filed a reply. 70 [D.E. 24.] 71 72 II. STANDARD OF REVIEW The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) sets limits on the 73 power of a federal court to grant a habeas petition to a state prisoner. 28 U.S.C. § 2254. If a 74 state court has adjudicated a petitioner’s federal claim on the merits, a federal court “has no 75 authority to issue the writ of habeas corpus unless the [state c]ourt’s decision ‘was contrary to, or 76 involved an unreasonable application of, clearly established Federal Law, as determined by the 77 Supreme Court of the United States’, or ‘was based on an unreasonable determination of the 78 facts in light of the evidence presented in the State court proceeding.’” 28 U.S.C. § 2254(d). 79 “‘[C]learly established Federal law’” for purposes of § 2254(d)(1) includes only “the 80 holdings, as opposed to the dicta, of this Court’s decisions.” Howes v. Fields, 132 S. Ct. 1181, 81 182 (2012) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). An “unreasonable 82 application of” those holdings must be “‘objectively unreasonable,’” not merely wrong; even 83 “clear error” will not suffice. White v. Woodall, 134 S. Ct. 1697, 1702 (2014). To obtain habeas 84 corpus relief from a federal court, a state prisoner must show that the challenged state-court 85 ruling rested on “an error well understood and comprehended in existing law beyond any 86 possibility for fairminded disagreement.” Metrish v. Lancaster, 133 S.Ct. 1781, 1786-87 (2013) 4 87 (citation omitted). III. PROCEDURAL DEFENSES 88 89 The state raises several procedural defenses, one of which—timeliness—applies to the 90 entire petition. (See Answer 51–55.) With exceptions not applicable here, federal habeas corpus 91 petitions must be filed within a year of the date that the conviction becomes “final.” 28 U.S.C. 92 § 2244(d)(1). At issue here is when that one-year clock begins to run; whether the statutory 93 period was tolled by 28 U.S.C. § 2244(d)(2), which stops time during the pendency of a 94 “properly filed application for State post-conviction or other collateral review with respect to the 95 pertinent judgment or claim”; and whether Anderson is entitled to equitable tolling. The state 96 argues that more than a year of untolled time passed between the end of Anderson’s direct appeal 97 and the filing of his federal habeas petition and that it is thus untimely. 98 A. “Finality” Of Judgment 99 Under 28 U.S.C. § 2244(d)(1)(A), the one-year clock generally begins to run on “the date 100 on which the judgment became final by the conclusion of direct review or the expiration of the 101 time for seeking such review.” For prisoners who pursue a full round of direct appeal review, “a 102 state court criminal judgment is ‘final’ (for purposes of collateral attack) at the conclusion of 103 review in the United States Supreme Court or when the time for seeking certiorari review 104 expires.” Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999). For those who do not, the 105 judgment becomes final when the time for seeking additional state review has fully run. 106 Gonzalez v. Thaler, 132 S. Ct. 641, 653–54 (2012). 107 108 As mentioned above, the Appellate Division handed down its direct appeal opinion on November 20, 2003. Anderson’s counseled petition for certification was dated January 20, 2004, 5 109 61 days later, which is 41 days after it was due under the New Jersey Court Rules. See N.J. Ct. 110 R. 2:12-3(a) (2004) (setting out a 20 day period for petitioning).2 Anderson’s appellate counsel 111 represented that the filing was “delayed because the Office of the Public Defender did not 112 receive a copy of the written decision of the Superior Court of New Jersey, Appellate Division, 113 until the time limit had expired.” (Driscoll Cert. ¶ 2 [D.E. 21-26].) Counsel requested that the 114 New Jersey Supreme Court accept the tardy petition for certification nunc pro tunc. The New Jersey Supreme Court’s short order denying the petition for certification did not 115 116 say whether the denial was on the merits of the petition or was due to its untimeliness. If the 117 New Jersey Supreme Court accepted the petition for review out of time and reached its merits, 118 Anderson’s conviction would be “final” July 26th, 90 days after the April 26, 2004 denial.3 See 119 Jimenez v. Quarterman, 555 U.S. 113, 121 (2009) (holding that restoration of direct appeal out 120 of time resets the “finality” date). But if the Court intended to deny the petition because it was 121 untimely pursued, Anderson’s conviction would instead be “final” for AEDPA purposes on 122 December 10, 2003, when the time to petition for certification actually expired. 123 Although the record is ambiguous, the balance of equities favors the view that the New 124 Jersey Supreme Court accepted the out-of-time certification petition and denied it on the merits. 125 First, under the framework applicable in New Jersey at the time, nunc pro tunc relief would have 126 been afforded to an indigent criminal defendant like Anderson who requested that a petition for 127 certification be filed, but whose petition was not timely pursued through no fault of his own. See 2 This also falls after the time had run for seeking a 30-day extension. See N.J. Ct. R. 2:4-4(a) (2004). 3 The state repeatedly refers to the decision as being handed down on April 22, 2004, which would instead lead to a July 21, 2004 finality date (July 25 was a Sunday). (See, e.g., Answer 4, 53.) While it is true that the New Jersey Supreme Court decided to deny the certification petition on April 22, the record reflects that the decision was not filed until April 26. Under United States Supreme Court Rule 13(1), the date of entry, not the date of decision, controls. 6 128 State v. Altman, 181 N.J. Super. 539, 541 (App. Div. 1981) (“[T]he sole determinant on a motion 129 by an indigent criminal defendant for leave to file a notice of appeal nunc pro tunc is whether 130 that defendant asked either private counsel or a Public Defender, within time, to file such a 131 notice for him.”), modified in part as stated in State v. Molina, 187 N.J. 531, 542 (2006). 132 Second, orders of the New Jersey Supreme Court can reflect separate dispositions on requests for 133 extensions of time and rulings on the merits of a petition for certification or leave to appeal, 134 which demonstrates that the Court will distinguish between the merit-based and procedural 135 components of its summary decisions. Finally, the state is the party best positioned to show by 136 reference to the New Jersey Supreme Court’s docket if the circumstances are to the contrary, but 137 it has not done so. 138 Accordingly, the Court will deem July 26, 2004, to be the date that Anderson’s judgment 139 of conviction became “final” for the purposes of determining the timeliness of his federal habeas 140 petition. 141 B. Statutory Tolling 142 Anderson filed two New Jersey PCR petitions. Because a “properly filed” PCR petition 143 tolls the AEDPA one-year filing deadline, see 28 U.S.C. § 2244(d)(2), the Court must determine 144 whether both PCR petitions were properly filed and, if so, for how long they tolled the clock. The first PCR petition was filed on February 15, 2005.4 Because the parties agree that it 145 146 was properly filed, it tolled the AEDPA clock until May 6, 2008. 4 In both his amended federal habeas petition and accompanying brief, Anderson references a June 24, 2004 filing date. (See, e.g., Am. Pet. 2.) In his reply, Anderson says that he “originally” filed his first PCR petition on June 25, but “it went unnoticed.” (Reply 20 [D.E. 24].) A letter from attorney Brian Driscoll addressed to the Office of the Public Defender [D.E. 25-5] reflects that Anderson reported having “sent his forms via certified mail” on that date, but it is not apparent from the context whether the “forms” in question are those to obtain 7 147 The state disputes whether the second PCR petition, filed on September 24, 2008 and 148 decided after the federal habeas petition was filed, also tolled the limitations period. In fact, the 149 state omits the second PCR petition from its timeliness recitation entirely. (See Answer 53–55.) 150 In the petition, Anderson alleged both trial counsel’s ineffectiveness (on several grounds) and 151 judicial misconduct. The trial judge denied relief partly on non-timeliness procedural grounds— 152 such as the petition’s failure to comply with requirements for second and successive petitions 153 (N.J. Ct. R. 3:22-4(b)) and its invocation of grounds already adjudicated (N.J. Ct. R. 3:22-5)— 154 but also appeared to reach the merits of certain claims. Anderson did not appeal that decision. A state post-conviction application is “properly filed” when “its delivery and acceptance 155 156 are in compliance with the applicable laws and rules governing filings.” Artuz v. Bennett, 531 157 U.S. 4, 8 (2000). Further, “time limits, no matter their form, are ‘filing’ conditions,” Pace v. 158 DiGuglielmo, 544 U.S. 408, 417 (2005), even if they operate as affirmative defenses, Allen v. 159 Siebert, 552 U.S. 3, 6–7 (2007) (per curiam). If a state court fails “to rule clearly on the 160 timeliness of an application, a federal court ‘must . . . determine what the state courts would have 161 held in respect to timeliness.’” Jenkins, 705 F.3d at 86 (quoting Evans v. Chavis, 546 U.S. 189, 162 198 (2006)).5 representation from the public defender’s office or whether the “form” was the PCR petition itself. Because nothing else is provided to support Anderson’s contention that the PCR petition was “properly filed” with the court until February, the Court will use the later date. 5 Both Evans and its predecessor case, Carey v. Saffold, 536 U.S. 214 (2002), focused more precisely on whether untimely original writs in California’s unique post-conviction “appeal” structure rendered the time between original actions “pending” for tolling purposes. See Banjo v. Ayers, 614 F.3d 964, 968 (9th Cir. 2010) (discussing California’s “unusual system of independent collateral review”). The Court understands the language quoted above from Jenkins to permit applying the same analysis to whether, in more traditional venues like New Jersey, the collateral application was “properly filed” in the first place, although Jenkins itself dealt with an appeal and not an original filing. Other courts have similarly concluded. See, e.g., Walton v. 8 163 At the time Anderson filed his second PCR petition, N.J. Ct. R. 3:22-12(a) provided: 164 165 166 167 A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than five years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant’s excusable neglect. 168 The five-year time limit “commences upon the entry of the judgment at issue, not the conclusion 169 of direct appellate review.” Engel v. Hendricks, 153 F. App’x 111, 112 n.2 (3d Cir. 2005) 170 (nonprecedential) (citing State v. Mitchell, 126 N.J. 565, 574–77 (1992)). 171 Here, judgment was entered in December 2001; September 2008 is more than five years 172 later. Nothing about the second PCR petition suggested that it was being filed late due to 173 excusable neglect. Because it was untimely, it was not “properly filed” under 28 U.S.C. 174 § 2244(d)(2), and thus did not serve to toll the AEDPA limitations period. 175 176 Anderson would fare the same under the present version of the New Jersey rule, which sets an additional one-year limitations period running from the latest of: 177 178 179 180 181 182 183 184 185 186 187 188 189 190 (A) the date on which the constitutional right asserted was initially recognized by the United States Supreme Court or the Supreme Court of New Jersey, if that right has been newly recognized by either of those Courts and made retroactive by either of those Courts to cases on collateral review; or N.J. Ct. R. 3:22-12(a)(2) (2014). The second PCR petition does not fit into any of these 191 categories. (B) the date on which the factual predicate for the relief sought was discovered, if that factual predicate could not have been discovered earlier through the exercise of reasonable diligence; or (C) the date of the denial of the first or subsequent application for post-conviction relief where ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief is being alleged. Sec’y, Fla. Dep’t of Corr., 661 F.3d 1308, 1312 (11th Cir. 2011) (citing Walker v. Martin, 131 S. Ct. 1120, 1129 (2011), for the proposition that a state’s time bar should be respected even if a state court bypasses the timeliness assessment and denies on the merits), cert. denied, 133 S. Ct. 186 (2012). 9 192 The Court finds further support in Chisolm v. Ricci, No. 10-2900, 2013 WL 3786306 193 (D.N.J. July 18, 2013) (Pisano, J.), certificate of appealability denied, C.A. No. 13-3409 (3d Cir. 194 order entered Oct. 21, 2013).6 There the state argued that a second PCR petition did not toll the 195 limitations period. Id. at *2, 6. The state courts had not commented on the timeliness question, 196 and had in fact bypassed it. Id. at *6. The district court found that, under both the old and 197 current N.J. Ct. R. 3:22-12, the second PCR petition was untimely, and thus § 2244(d)(2) tolling 198 was unavailable. Id. at *7. This record compels the same conclusion. 199 C. Equitable Tolling 200 Equitable tolling is available if a petitioner shows that he has been pursuing his rights diligently 201 and that some extraordinary circumstance prevented his untimely filing. Holland v. Florida, 560 202 U.S. 631, 649 (2010). The obligation of showing “reasonable diligence” extends to the periods 203 during which the petitioner is exhausting state-court remedies. LaCava v. Kyler, 398 F.3d 271, 204 277 (3d Cir. 2005). Courts “should be sparing in their use of this doctrine . . . applying equitable 205 tolling only in the rare situation where it is demanded by sound legal principles as well as the 206 interests of justice.” Id. at 275 (internal quotation marks, citations, & alterations omitted). 207 Although Anderson does not request equitable tolling by name, the Court liberally 208 construes the opening pages of his reply brief as making the argument. Apparently, on August 209 20, 2009, the state trial judge issued an order finding “good cause” to assign the services of a 210 public defender to assist with Anderson’s second PCR petition. Although his order is not part of 211 the record, a letter from Stefan Van Jura, Assistant Deputy Public Defender of the Post- 212 Conviction Relief Unit, sets forth that the office had received a “good cause” appointment under 6 In its order denying a certificate of appealability, the Third Circuit panel determined that jurists of reason could debate part of the Chisolm decision that discussed equitable tolling. As discussed further infra, no tolling is warranted here. 10 213 N.J. Ct. 3:22-6(b), but that the order was unexplained. (See Aug. 26, 2009 Letter [D.E. 25-2].) 214 In December 2009, Van Jura sent another letter requesting clarification of the counsel- 215 assignment order “in light of Mr. Anderson’s previous PCR proceedings.” (Dec. 8, 2009 Letter 216 [D.E. 25-4].) In early January, Van Jura wrote to Anderson and said, in effect, that the trial 217 judge “ha[d] not decided the threshold matter of” good cause. (Jan. 29, 2010 Letter [D.E. 25-3].) 218 In the eventual opinion, issued in July 2010, the court found “no good cause entitling the 219 assignment of counsel.” 220 Regardless of the confusion this might have caused, equitable tolling is unavailable 221 because the back-and-forth about counsel appointment followed, rather than preceded 222 Anderson’s federal habeas petition. To the extent that equitable tolling could apply to the initial 223 confusion regarding the filing of Anderson’s first PCR petition, discussed in footnote 6 supra, 224 the Court finds that the record demonstrates neither the diligence nor the extraordinary 225 circumstances required for equitable tolling. Accordingly, no equitable tolling of the AEDPA 226 time limit applies. 227 D. Calculation of Time Before Federal Filing 228 Following from the above, the Court calculates as follows. Anderson’s conviction was 229 “final” for § 2244(d)(1) purposes on July 26, 2004. He filed his first PCR petition on February 230 15, 2005, stopping time after 204 days. The clock restarted on May 6, 2008, and ran until 231 (giving Anderson the benefit of the federal prisoner mailbox rule) the federal petition was filed 232 on March 11, 2009, 309 days later. Thus, a total of 513 days elapsed before Anderson filed his 233 federal habeas petition, rendering it untimely under the statute. 234 E. Remaining Procedural Defenses 11 235 A Court may under AEDPA deny a mixed petition on the merits, notwithstanding default 236 or failure to fully exhaust, pursuant to 28 U.S.C. § 2254(b)(2). See McLaughlin v. Shannon, 454 237 F. App’x 83, 86 (3d Cir. 2011) (nonprecedential per curiam); Turner v. Artuz, 262 F.3d 118, 122 238 (2d Cir. 2001). Given the complexity of the procedural issues, the Court addresses the 239 substantive claims in Anderson’s petition. 240 IV. MERITS 241 Initially, the Court notes that, in support of his petition to this Court, Anderson relies on 242 the brief his prior counsel filed on direct appeal of his conviction. This complicates this Court’s 243 habeas review, because the appellate brief is not written with the federal habeas standard of 244 review in mind. In light of his pro se status the Court liberally construes Anderson’s pleadings.. 245 A. Peremptory Challenges 246 Ground One of Anderson’s amended petition presents a claim under Batson v. Kentucky, 247 476 U.S. 79, 96 (1986), challenging “the state court’s ruling that the prosecutor properly 248 exercised his peremptory challenges when he excused twelve (12) jurors of the African 249 American race [, with] the thirteen (13) challenges he [exercised].” (Am. Pet. 12.) The Court 250 construes Anderson’s claim as contending that the Appellate Division’s decision on direct appeal 251 was contrary to Supreme Court precedent and an unreasonable determination of the facts. 252 The Equal Protection Clause of the Fourteenth Amendment “forbids the prosecutor to 253 challenge potential jurors solely on account of their race or on the assumption that black jurors as 254 a group will be unable impartially to consider the State’s case against a black defendant.” 255 Batson, 476 U.S. at 89 (1986). The Supreme Court has set forth a three-step analysis for a 256 Batson challenge: 12 257 258 259 260 261 262 263 264 265 266 267 268 First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question . . . . Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating “the persuasiveness of the justification” proffered by the prosecutor, but “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Rice v. Collins, 546 U.S. 333, 338 (2006) (citations omitted). Establishing a prima facie case at step one requires a defendant to show that “the totality 269 of the relevant facts gives rise to an inference of discriminatory purpose.” Johnson v. California, 270 545 U.S. 162, 168 (2005) (quoting Batson, 476 U.S. at 93–94). The defendant may proffer 271 evidence that the government exercised a “‘pattern’ of strikes against black jurors included in the 272 particular venire, [which] might [then] give rise to an inference of discrimination.” Williams v. 273 Beard, 637 F.3d 195, 214 (3d Cir. 2011) (quoting Batson, 476 U.S. at 97). In addition, “the 274 prosecutor’s questions and statements during voir dire examination and in exercising his 275 challenges may support or refute an inference of discriminatory purpose.” Id. 276 The government’s burden of production at step two is relatively low; “[u]nless a 277 discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be 278 deemed race neutral.” Williams, 637 F.3d at 215 (quoting Purkett v. Elm, 514 U.S. 765, 768 279 (1995) (per curiam)). Moreover, although the prosecutor must present a comprehensible reason, 280 “[t]he second step of this process does not demand an explanation that is persuasive, or even 281 plausible”; so long as the reason is not inherently discriminatory, it suffices. Purkett, 514 U.S. at 282 767-768. 13 283 At step three, the defendant must show that “it is more likely than not that the prosecutor 284 struck at least one juror because of race.” Hairston v. Hendricks, 2014 U.S. App. LEXIS 17054 285 (3d Cir. N.J. Sept. 3, 2014) (quoting Bond v. Beard, 539 F.3d 256, 264 (3d Cir. 2008)). Williams, 286 637 F.3d at 215 (citation omitted). “Step three of the Batson inquiry involves an evaluation of 287 the prosecutor’s credibility, and the best evidence [of discriminatory intent] often will be the 288 demeanor of the attorney who exercises the challenges.” Snyder v. Louisiana, 552 U.S. 472, 477 289 (2008) (alteration in original) (internal citations and quotation marks omitted). At this step, “all 290 of the circumstances that bear upon the issue of racial animosity must be consulted.” Id. at 478. 291 In this case, the prosecutor exercised 13 peremptory challenges, removing 12 African- 292 Americans and one Caucasian. The final jury included six African-American jurors, which 293 represented 40% of the 15 sitting jurors. (Dir.App.Op. 7–8.) The record shows that, at the close 294 of jury selection, all parties agreed that the jury was satisfactory. But before the jury was to be 295 sworn, the attorney representing Anderson’s co-defendant Dawara requested a mistrial on the 296 ground that the State’s exercise of its peremptory challenges was discriminatory because all but 297 one of its 13 challenged jurors were African-American. (Dir.App.Op. 7.) The trial judge found 298 that Dawara had established a prima facie case under step one, heard the reasons proffered by the 299 prosecutor,7 and ultimately determined that Dawara had failed to establish by a preponderance of The prosecutor’s explanations included factors such as “(1) juror’s difficulty in understanding the nature of the criminal charges in the case at bar; (2) a juror’s failure to report a serious crime committed against him; (3) a juror’s relationship with a boyfriend who had just been released from jail; (4) a juror’s intimate relationship with the father of her daughter who had been convicted and incarcerated in Union County; (5) inappropriate contact with defendant by a juror sitting in the box; and (6) other challenges relating to certain jurors who exhibited potential biases against the State, e.g., a sister charged with falsifying prescriptions who had been exonerated, and a recent conviction for DWI in Essex County.” (Dir.App.Op. 12.) 14 7 300 the evidence that the prosecutor had exercised a peremptory challenge in a racially 301 discriminatory manner. Id. at 8. 302 Anderson made a Batson claim on direct appeal, arguing that the trial court erred in 303 denying the mistrial where the prosecutor had offered non-discriminatory reasons as to only 304 seven out of the 12 African-American jurors. (App. Div. Br. 29–33 [D.E. 21-23].) The 305 Appellate Division applied the three-step Batson standard. (Dir.App.Op. 9–14.) It agreed with 306 the trial court that step one of the Batson analysis was satisfied.8 As for step two, although the 307 prosecutor was unable to recall his reasons for striking five of the African-American jurors, the 308 Appellate Division concluded that “this was due in part to the time gap between the selection of 309 the jury and the co-defendant’s request for a mistrial.” (Dir.App.Op. 8.) Specifically the 310 Appellate Division found that defense counsel “should have challenged each selection 311 immediately after the State’s decision during the empanelling and not at the conclusion of the 312 jury selection, which had taken a number of days, interrupted by a three-day weekend, and after 313 both sides had found the jury satisfactory.” (Dir.App.Op. 8.) The Appellate Division also 314 agreed with the trial judge’s step three finding that the defendant had not shown by a 315 preponderance of the evidence that the totality of the circumstances showed that the prosecutor 316 struck any juror on account of race. (Dir.App.Op. 8.) 8 In its analysis, the Appellate Division did not discuss how many members of the venire panel were African-American. While this factor is relevant to the step one analysis, see Miller-El v. Dretke 545 U.S. 231, 240–41 (2005), omission of this factor is not troubling here in light of the court’s conclusion that step one was satisfied. Further, the Appellate Division relied in part on State v. Gilmore, 103 N.J. 508 (1986), which has been expressly disfavored as establishing an overly severe “first prong” threshold, which was incompatible with Batson. See Clausell v. Sherrer, 594 F.3d 191, 194 (3d Cir. 2010) (citing State v. Osorio, 199 N.J. 486, 502–03 (2009)). This is of no moment for the same reason. 15 317 The contours of Anderson’s Batson challenge before this Court are not clear from his 318 amended petition and appellate brief. Presumably, he is contending that the Appellate Division 319 unreasonably applied Batson by (a) failing to find in his favor at step two when the prosecutor 320 was not able to recall why he struck five African-American jurors, and (b) by ruling against him 321 at step three. 322 323 324 325 (1) Was the failure to terminate the inquiry at step two contrary to, or an unreasonable application of, clearly established Supreme Court precedent? There does not appear to be a Supreme Court case precisely addressing whether a court 326 should proceed to step three when, at step two, the prosecutor is unable to recall the reason he or 327 she exercised a peremptory challenge against a particular juror. But several Supreme Court and 328 Third Circuit cases are relevant to the issue. For example, in Purkett v. Elem, 514 U.S. 765 329 (1995) (per curiam), the Supreme Court emphasized that the persuasiveness of the prosecutor’s 330 justification for a particular strike does not become relevant until step three: 331 332 333 334 335 336 337 338 339 340 At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step three is quite different from saying that a trial judge must terminate the inquiry at step two when the race-neutral reason is silly or superstitious. The latter violates the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. Id. at 768 (emphasis in original). In Johnson v. California, 545 U.S. 162 (2005), the Supreme Court reversed the California 341 Supreme Court’s determination that the defendant had not established a prima facie case under 342 Batson where California “require[d] at step one that the objector must show that it is more likely 343 than not the other party’s peremptory challenges, if unexplained, were based on impermissible 344 group bias.” Id. at 168 (citation and internal quotation marks omitted). The Court emphasized 16 345 that “a defendant satisfies the requirements of Batson’s first step by producing evidence 346 sufficient to permit the trial judge to draw an inference that discrimination has occurred.” Id. at 347 170. However, in rejecting California’s contention that a prosecutor’s failure to respond to a 348 prima facie case would entitle a defendant to judgment as a matter of law on the basis of nothing 349 more than an inference that discrimination may have occurred, the Supreme Court noted that a 350 case proceeds to step three even if the State produces at step two “only a frivolous or utterly 351 nonsensical justification” for its strike. Id. at 171. In a footnote, the Court added: 352 353 354 355 356 357 358 359 In the unlikely hypothetical in which the prosecutor declines to respond to a trial judge’s inquiry regarding his justification for making a strike, the evidence before the judge would consist not only of the original facts from which the prima facie case was established, but also the prosecutor’s refusal to justify his strike in light of the court’s request. Such a refusal would provide additional support for the inference of discrimination raised by a defendant’s prima facie case. Id. at 171 n.6. 360 In Lark v. Secretary Pennsylvania Department of Corrections, 645 F.3d 596 (3d Cir. 361 2011), the Third Circuit considered whether a court hearing a Batson challenge should terminate 362 the inquiry at step two, or proceed to step three, where the prosecutor is unable to recall why he 363 or she struck a juror.9 Lark filed a § 2254 petition in which he claimed that the Commonwealth 364 of Pennsylvania violated Batson where the prosecutor used 13 out of 15 peremptory strikes 365 against African-Americans and the jury was ultimately composed of four African-Americans and 366 eight Caucasians. The district court conducted an evidentiary hearing on the Batson claim 367 several years later, and the prosecutor could not remember why he struck three out of 13 368 African-American jurors. The district court granted a § 2254 writ on the Batson claim because 369 the state failed to meet its duty of production at step two. 9 Although this case was not governed by the AEDPA standard, its reading of Supreme Court precedent is instructive here. 17 370 The Third Circuit reversed and remanded. Citing footnote 6 in Johnson, the Lark panel 371 reasoned that the prosecutor’s failure to explain his reasons “is not, by itself, of such dispositive 372 force that it establishes that there was a Batson violation.” Id. at 625. Emphasizing that “the 373 Supreme Court in Johnson rejected the argument that a prosecutor’s failure to respond to a prima 374 facie case ‘would inexplicably entitle a defendant to judgment as a matter of law on the basis of 375 nothing more than an inference that discrimination may have occurred,’” id. at 626 (quoting 376 Johnson, 545 U.S. at 170), the court held that a prosecutor’s “inability to explain the reasons for 377 his use of three peremptory challenges at the second step of the Batson analysis was not a 378 sufficient ground to grant the conditional writ of habeas corpus because that inability along with 379 the other information available to the District Court did not enable [petitioner] to satisfy his 380 ultimate burden of proving intentional discrimination.” Id. at 621. 381 This year in Hairston v. Hendricks, the Third Circuit rejected petitioner’s argument that 382 the trial judge did not reach the necessary third step of the Batson analysis, finding that the trial 383 judge was “well equipped to make a finding about whether he believed the reasons given by the 384 prosecutor for exercising the state’s strikes were a pretext for discrimination.” Id. at 27. While 385 not directly on-point, Hairston supports the proposition that where the trial court has enough 386 information to determine the validity of the prosecutor’s reasons for dismissing a juror, it may 387 continue to the third step in the Batson analysis even if the prosecutor’s reasons are suboptimal. 388 In Anderson’s case, the Appellate Division’s decision not to terminate its analysis at step 389 two was not contrary to, or an unreasonable application of, Batson and its progeny. Consistent 390 with Batson, and the dicta in Johnson, the Appellate Division proceeded to step three, even 391 though the prosecutor could not recall why he struck five African-American jurors. In other 18 392 words, that the Appellate Division did not outright reject the prosecutor’s response did not 393 offend the Batson protocol. Because Purkett requires only that the proffered reason be 394 comprehensible, and because footnote 6 in Johnson suggests that even if a prosecutor’s refusal to 395 respond at step two is not conclusive, and because there is no Supreme Court holding requiring a 396 court to terminate the Batson analysis at step two under certain circumstances, this Court cannot 397 find that the Appellate Division’s failure to terminate the inquiry at step two was contrary to, or 398 an unreasonable application of, clearly established Supreme Court precedent. Thus, Anderson is 399 not entitled to habeas corpus relief under § 2254(d)(1) based upon the Appellate Division’s 400 failure to terminate its analysis at step two. (2) Did the Appellate Division’s step three inquiry satisfy the requirements of Section 2254(d)? 401 402 403 404 AEDPA outlines two grounds for consideration under § 2254(d). The first, § 2254(d)(1), 405 considers whether the court’s legal conclusions were contrary to clearly established Supreme 406 Court precedent; the second, § 2254(d)(2), considers whether the court made an unreasonable 407 determination of the facts given the evidence presented. The Court considers each section in 408 turn. 409 Once it found the prosecutor had satisfied his burden of production at step two of the 410 Batson analysis, the Appellate Division moved to step three, evaluating the strength of the 411 prosecutor’s explanations. The prosecutor gave six enumerated reasons, justifying excusing 412 seven jurors, described in footnote 7 supra. The Appellate Division then found that the 413 prosecutor excused “several young jurors who did not appear to understand the severity of the 414 case,” and that part of what motivated the prosecutor overall was “how the jurors sitting in the 415 box appeared as a whole.” (Dir.App.Op. 12-13.) The Appellate Division found that the 19 416 prosecutor was looking for “strong” jurors, and excused jurors who “seemed reticent and might 417 be a weak voice in the jury room.” (Dir.App.Op. 13.) Ultimately, the Appellate Division found 418 that the trial court’s reasoning was sufficient, and that the prosecutor’s reasons for excluding 419 individual jurors were “race-neutral, individualized to their particular circumstances and 420 experiences, and reasonably relevant to the case on trial.” Id. According to Supreme Court precedent, to discredit a prosecutor’s race-neutral reasons 421 422 proffered at step two of the Batson inquiry, and thereby establish purposeful discrimination at 423 step three, a petitioner must show that the race-neutral reasons are not credible. See Miller-El v. 424 Dretke, 545 U.S. 231, 247 (2005) (stating that a “prosecutor’s explanations cannot be reasonably 425 accepted” when they are not credible). Credibility can be measured by “how reasonable, or how 426 improbable, the explanations are.” Miller-El v. Cockrell, 537 U.S. 322, 339 (2003). The 427 Appellate Division’s step three analysis considered the reasons given by the prosecutor for 428 excluding potential jurors and considered the prosecutor’s conduct as a whole to determine the 429 credibility of his assertions pursuant to Snyder v. Louisiana, 552 U.S. at 477. Thus, the 430 Appellate Division decision was not contrary to, or an unreasonable application of, clearly 431 established Supreme Court precedent. See Felkner v. Jackson, 131 S. Ct. 1305, 1307 (2011) 432 (per curiam) (reversing the Ninth Circuit’s opinion granting relief on Batson claim where the 433 state trial court credited the prosecutor’s explanations at step three, and the appeals court 434 carefully reviewed the record and upheld the trial court’s determination). Anderson is not 435 entitled to habeas relief under § 2254(d)(1) based upon the Appellate Division’s findings at step 436 three. 20 437 To grant relief under § 2254(d)(2), this Court would have to find that the Appellate 438 Division’s conclusion that the prosecutor did not strike any African-American jurors based on 439 race was “an unreasonable determination of the facts in light of the evidence presented in the 440 State court proceeding.” 28 U.S.C. § 2254(d)(2). The very language of the statute goes on to 441 erect a significant hurdle that Anderson fails to overcome: “[A] determination of a factual issue 442 made by a state court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). The Appellate 443 Division’s finding (affirming the trial judge) that the prosecutor’s peremptory strikes were not 444 motivated by race is “a pure issue of fact accorded significant deference.” Hernandez v. New 445 York, 500 U.S. 352, 364 (1991) (plurality opinion). This finding must be presumed correct 446 unless Anderson shows by clear and convincing evidence that it is not. See 28 U.S.C. § 447 2254(e)(1). 448 Anderson argues that the reasons the prosecutor gave for striking seven African- 449 American jurors were “bogus” and, “[s]ince all TWELVE (12) of the prosecutor’s peremptory 450 challenges w[ere] the focus . . . , the prosecutor should have advanced reasons for excusing all 451 (12) and not just for seven (7) which all but one of his reasons had any merit.” (Reply 13.) 452 Under the exacting legal burden imposed on him, Anderson would need far more than he 453 has shown. “Reasonable minds reviewing the record might disagree about the prosecutor’s 454 credibility, but on habeas review that does not suffice to supersede the trial court’s credibility 455 determination.” Rice v. Collins, 546 U.S. 333, 341–42 (2006). 456 This Court has already found that the Appellate Division’s finding that the failure to give 457 reasons was not a Batson violation suffices under the applicable standard (and it also suffices 458 based on common sense, inasmuch as defense counsel pronounced themselves satisfied at the 21 459 close of the jury voir dire). Anderson’s bald, conclusory attack on the reasons given does not 460 amount to clear and convincing evidence that would disturb the presumption of correctness. In 461 light of the evidence presented, thus this Court finds that Anderson is not entitled to habeas relief 462 on his Batson claim under § 2254(d)(2). 463 B. Excessive Sentence 464 Anderson contends in Ground Two that “the State court’s ruling that defendant’s 465 sentence wasn’t disparate and excessive was error.” (Am. Pet. 12.) Anderson raised this ground 466 in his brief to the Appellate Division on direct appeal. He compared his sentence of three 467 consecutive terms of 15, 18, and seven years, for a total of 40 years, to the sentence of his 468 codefendant, Hamadi Aaron, who received a total of 15 years for all three separate indictments in 469 exchange for testifying against him. (App. Div. Br. 34–38.) Anderson argued on direct appeal 470 that the sentences were disparate, his sentence was excessive compared to Aaron’s, and the 471 consecutive nature of his sentence violated state law. The Appellate Division rejected these 472 arguments and found that the consecutive sentences fell within the appropriate sentencing 473 guidelines. (Dir.App.Op. 14–15.) 474 Absent a claim that a sentence constitutes cruel and unusual punishment prohibited by the 475 eighth amendment, or that it is arbitrary or otherwise in violation of due process, the legality and 476 length of a sentence are questions of state law over which this Court has no jurisdiction under § 477 2254. See Chapman v. United States, 500 U.S. 453, 465 (1991) (holding that under federal law, 478 “the court may impose . . . whatever punishment is authorized by statute for [an] offense, so long 479 as that penalty is not cruel and unusual, and so long as the penalty is not based on an arbitrary 480 distinction that would violate the Due Process Clause of the Fifth Amendment”). Anderson’s 22 481 claim that his sentence is disproportionate to that of his co-defendant is resolved by Lockyer v. 482 Andrade, 538 U.S. 63 (2003), where the Supreme Court observed that the eighth amendment’s 483 gross disproportionality principle “reserves a constitutional violation for only the extraordinary 484 case.” Id. at 77. This is not such a case, particularly where Aaron pleaded guilty, accepting 485 responsibility for his crimes. Habeas relief is denied on the sentencing claims. 486 C. Ineffective Assistance of Counsel 487 In Grounds Three, Five, Six, Seven, Eight and Nine, Anderson claims that counsel was 488 constitutionally ineffective for failing to present an alibi witness (Latesha Anderson (“Latesha”)), 489 failing to establish that the evidence from the robberies was found on his co-defendant (instead 490 of the car’s center console), failing to request a Wade hearing on the show-up identification, 491 failing to conduct a background check on the witnesses and victims, failing to establish that 492 Anderson had not met Hamadi Aaron until the day of his arrest, and failing to cross examine 493 Aaron about the alleged motive they had for committing the robberies.10 (Am. Pet. 13–18.) 494 The Sixth Amendment, applicable to states through the due process clause of the 495 fourteenth amendment, guarantees the accused the “right . . . to have the Assistance of Counsel 496 for his defense.” U.S. Const. amend. VI. A claim that counsel’s assistance was so defective as 497 to require reversal of a conviction has two components, both of which must be satisfied. See 498 Strickland v. Washington, 466 U.S. 668, 687 (1984). The defendant must “show that counsel’s 499 representation fell below an objective standard of reasonableness” and that the specified errors 500 resulted in prejudice. Id. at 687–88. To establish prejudice, the defendant must “show that there 501 is a reasonable probability that, but for counsel’s unprofessional errors, the result of the 10 Anderson raises additional grounds in his reply brief. This Court will not consider those new grounds, as they were not included in Anderson’s all-inclusive amended petition. 23 502 proceeding would have been different.” Id. at 694 (citations omitted). The reasonable 503 probability standard is less demanding than the preponderance of the evidence standard. See Nix 504 v. Whiteside, 475 U.S. 157, 175 (1986); Baker v. Barbo, 177 F.3d 149, 154 (3d Cir. 1999). 505 Habeas review of a state court’s adjudication of an ineffective assistance claim is “doubly 506 deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). To obtain habeas relief, a state 507 petitioner “must demonstrate that it was necessarily unreasonable for the [state c]ourt to 508 conclude: (1) that [petitioner] had not overcome the strong presumption of competence; and (2) 509 that he failed to undermine confidence in the [outcome].” Cullen, 131 S. Ct. at 1403. 510 Anderson presented his ineffective assistance of counsel claims to the Appellate Division 511 in his appeal from the order denying his PCR petition. The Appellate Division rejected the 512 claims substantially for the reasons articulated in trial judge’s 33-page oral opinion denying the 513 PCR petition. See Anderson, 2008 WL 695864, at *1. The court found that counsel was not 514 deficient for failing to call Latesha because Anderson had not submitted an affidavit (or anything 515 else) setting forth what she would have said. In addition, even if Latesha had testified, the trial 516 court determined the outcome would not have changed, given Hamadi Aaron’s testimony. 517 (PCR.Tr. 6–9 [D.E. 21-19].) The trial judge further found that Anderson failed to show 518 prejudice resulting from claimed errors about (1) counsel’s failure to establish that the evidence 519 (from the robberies) was on the person of co-defendant Aaron, (2) counsel’s failure to conduct 520 background checks, (3) counsel’s failure to show that Anderson did not know Aaron until the 521 day of their arrest, and (4) failure to cross-examine Aaron on his motive for the robberies. . 522 (PCR.Tr. 23–30.) 24 523 In his long opinion, the trial judge inadvertently failed to discuss Anderson’s claim that 524 counsel ineffectively failed to request a hearing under United States v. Wade,, 388 U.S. 218 525 (1967).11 Anderson’s brief to the Appellate Division raised the claim, and provided no analysis 526 of the prejudice prong. (App. Div. PCR Br. 17 [D.E. 21-31].) This case did not hinge on 527 identity, since the police arrested Anderson and his co-defendants with the vehicle that was used 528 in the robberies shortly after the second robbery. In light of Aaron’s testimony and the 529 undisputed fact that three males committed the robberies by using a specific car and the police 530 thereafter arrested the three defendants with that car, Anderson has failed to establish that there is 531 a reasonable probability that the outcome would have been different if counsel had requested a 532 Wade hearing. The trial court’s rejection of these claims as deficient because Anderson failed to show 533 534 prejudice was proper under Strickland and even inevitable, given Hamadi Aaron’s testimony and 535 the first victim’s identification of the car driven by the three men who robbed his store. 536 Anderson has not shown that the New Jersey courts’ rejection of his ineffective assistance of 537 counsel claims, essentially for failure to establish prejudice, was contrary to, or an unreasonable 538 application of Strickland or other Supreme Court precedent. As held in Strickland, 466 U.S. at 539 697, “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient 540 prejudice, which we expect will often be so, that course should be followed.” Accordingly, 541 Anderson is not entitled to habeas relief. 542 D. Admission of Digital Photos “A Wade hearing is conducted when a question arises concerning an identification procedure that has possibly violated a constitutional right. The hearing is made outside the presence of a jury, and concerns not the in-court identification, but only the pre-trial identification.” United States v. Stevens, 935 F.2d 1380, 1386 n.3 (3d Cir. 1991) (citation omitted). 25 11 543 In Ground Four, Anderson argues that “the trial court erred in allowing digital 544 photographs as evidence at defendant’s trial after the police officer had them stored on his home 545 computer for an entire year.” (Am. Pet. 14.) The digital photographs were of the center console 546 of the vehicle in which Anderson and his co-defendants were apprehended, and of the 547 intersection at which police stopped the vehicle. In the console photos, the stolen property is 548 seen in the vehicle console. As factual support for his claim, Anderson states that “the digital 549 images . . . can be easily altered by using a computer and therefore, not admissible,” and that 550 their admission was “inappropriate” because the police officer used his own camera and he failed 551 to produce negatives for purposes of authentication. Id. at 14–15. 552 Anderson raised this ground as part of an ineffective assistance of counsel claim on 553 appeal from the denial of his PCR petition. The Appellate Division did not discuss the issue in 554 its review, noting that Anderson’s “contention his PCR counsel was ineffective is without 555 sufficient merit to warrant discussion in a written opinion,” while agreeing with the trial court 556 that Anderson failed to demonstrate prejudice. Anderson, 2008 WL 695864, at *2. Anderson’s 557 co-defendant Dawara raised this same issue on direct appeal. Because the Appellate Division 558 discussed the merits of the digital photo challenge in Dawara’s appeal, this Court will consider 559 the claim as if Anderson had exhausted it himself. 560 The question of the admission of evidence is essentially a state law evidence claim, and 561 “the Due Process Clause does not permit the federal courts to engage in a finely tuned review of 562 the wisdom of state evidentiary rules.” Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983). 563 Here, the Appellate Division determined that the digital photos were properly admitted and 564 authenticated under state law. State v. Dawara, No. A-3903-03T4, 2006 WL 3782964, at *4–6 26 565 (App. Div. Feb. 10, 2006). This Court finds that the New Jersey courts’ adjudication of his 566 admission of digital photos claim was not contrary to, or an unreasonable application of, clearly 567 established Supreme Court precedent. 568 E. Denial of Severance 569 In ground ten, Anderson asserts that he “was denied his right to a separate trial from so- 570 called codefendant Dawara.” (Am. Pet. 18.) According to the Supreme Court, “[i]mproper 571 joinder does not, in itself, violate the Constitution.” United States v. Lane, 474 U.S. 438, 446 n. 572 8 (1986). Denial of a motion to sever violates due process “only if there is a serious risk that a 573 joint trial would compromise a specific right of . . . the defendant[ ], or prevent a jury from 574 making a reliable judgment about guilt or innocence. Such a risk might occur when evidence 575 that the jury should not consider against a defendant and that would not be admissible if a 576 defendant were tried alone is admitted against a codefendant.” Zafiro v. United States, 506 U.S. 577 534, 539 (1993). Moreover, “a fair trial does not include the right to exclude relevant and 578 competent evidence.” Id. at 540 (citation & internal quotation marks omitted). 579 The first time that Anderson raised this issue was in his PCR petition to the trial court as 580 part of his ineffective assistance of counsel claim. The Appellate Division affirmed without 581 discussion the trial court’s ruling rejecting severance, and so this Court addresses that holding as 582 the last reasoned opinion by the state courts. The point is worth making here that throughout 583 Anderson’s prosecution, the same judge with familiarity and experience with all facets of the 584 case made all the trial level rulings. Faced with the severance argument arising after the 585 conviction, the trial judge rejected it, holding that even if Anderson had been tried separately, the 586 proofs against him would not have been different and the result would have been the same. 27 587 (PCR Tr. 30–32.) Anderson points to no evidence admitted at the joint trial that would not have 588 been admissible if he had been tried alone, and he has not shown that the joinder compromised 589 any specific right or prevented the jury from reliably judging his guilt or innocence. Thus, 590 joinder of charges did not deny him a fair trial and the trial court’s adjudication of the claim was 591 not contrary to, or an unreasonable application of, Supreme Court precedent. 592 593 V. CONCLUSION Accordingly, because this petition is untimely and without merit, and because jurists of 594 reason would not debate this, the Court will deny it and will not issue a certificate of 595 appealability. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000). An 596 appropriate order follows. 597 598 599 600 601 602 November 24, 2014 /s/ Katharine S. Hayden Katharine S. Hayden, U.S.D.J. 28

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