BLACK v. NOGAN, No. 2:2016cv08498 - Document 24 (D.N.J. 2019)

Court Description: OPINION. Signed by Judge Madeline Cox Arleo on 12/5/2019. (dam, )

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NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY JONATHAN BLACK, Civil Action No. 16—8498(MCA) Dockets.Justia.com Petitioner, OPINION V. PATRICK NOGAN and THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, et al., Respondents. MADELINE COX ARLEO, I. District Judge INTRODUCTION This matter has been Petition pursuant to 28 Jonathan Black opened U.S.C. (“Petitioner”) . to § 2254 the Court (ECF No. 1 by the pro se (“Petition”)) of Petitioner purports to present his habeas claims as nine grounds in the Petition. However, he in fact asserts fifteen claims, since Ground Five asserts eight claims. (ECF No. 12—33.) the Court will 1—2 deny at all For fifteen of the the reasons separate explained Petition’s below, claims prejudice and will deny a certificate of appealability. with II. FACTUAL BACKGROUND & PROCEDURAL HISTORY A. Factual Background Petitioner’s convictions arose from several armed robberies and related crimes in April 2004. This Court briefly reviews their facts as pertinent to this Opinion. 1. 7—Eleven Robbery: April 20, April Or. See 28 U.S.C. 20, 2004 at approximately 2004, 12:22 § 2254(e) (1) •‘ 12:22 a.m. a.m., twc masked black males armed with handguns robbed a 7—Eleven store in Union, New Jersey (“7—Eleven Robbery”) . One robber, the taller and skinnier of the two, wore a short-sleeve white t—shirt, long pants, work boots, and a mask. The shorter robber had “long black braids” and was wearing work boots, gloves. a black jacket, short blue jeans, and The men stole the money from two cash registers and left the store. The store security cameras recorded the 7—Eleven Robbery but provided no identifying information. 4981192, at *1 (N.J. Super. Ct. App. Div. State v. Dec. 24, Black, 2009 WL 2009) (“Black 2009 II”) 2. Quick Chek Robbery: April 20, At around 1:00 a.m. on April 20, 2004 —— 2004, 1:00 a.’u. approximately thirty “In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by olear and convincing evidence.” 28 U.S.C. § 2254(e) (1). 2 minutes males after the entered a 7-Eleven Quick Chek wore blue jean shorts, and a black counter, face The two -- mask. He armed, in Union. store a white t-shirt, The masked, skinnier Timberland boots, gloves, had her take all the money out of the cash register, and other robber the manager robber the took store’s black behind placed the cash in a bag *1. Robbery (“Quick Chek Robbery”) was light-skinned, . Black 2009 II at had shoulder—length dreadlocks, and was “more muscular” than the other. He wore a black hooded sweatshirt, black mask, register, blue jean shorts, brown Timberland boots, a and no gloves. While the manager attempted to open the the muscular robber stood on the other side of the threatening to kill her if she did not “hurry up.” He was counter, carrying a larger gun than the other robber. Ibid. During the robbery, customer Rodrigo Erazo entered the store. The muscular robber pointed his gun at Erazo and told him to get on the floor or he would be killed. Ibid. Police Sergeant Harry Capko responded to the scene and found a shell casing behind the counter. Black 2009 II at *2. 3. On April Chek Robberies in Union Foot Locker Robbery: 26, —- 2004 —— six days after the 2004 7—Eleven and Quick an armed robbery occurred at a Foot Locker store (“Foot Locker Robbery”). Following April 26, the Foot Locker Black 2009 at *1. Robbery, police DiGena took a report from the store’s manager 3 office Pietro (“the Manager”), who stated that a customer (“the Customer”) during was the 2009 at that, but ECF No. 8—17 at silver, away by 5-6.) fender and headlight” was partially (“the Galant”) camouflage (Black 2009 at *1; . ECF jacket” and the other wore “a both armed with handguns. 4. Roughly Officer (ECF No. that ECF No. 1—2 at 41— the perpetrators were 8-17 at 8.) The Vehicle Stop: April 28, 2004 four DiGena hours after Manager’s the and Officer Barry Cohen patrol in a marked car on April 28, a.m., *1; (Black 2009 at The Manager told Officer DiGena 42.) report to police, (“the Officers”) were on 2004. At approximately 12:23 they observed a silver 1995 Mitsubishi Galant with damage to front, right fender and a broken, damages matched Robbery perpetrators’ vehicle. The on Morris Avenue near the Foot *1. (Black 8—17 at 5—6.) Other witnesses reported that one robber wore an black hooded sweatshirt.” west suspects. and damage to the right [a broken right front] “olive green military the the The Customer told the Manager with gray tinted windows, blocking the store’s exit No. turned joon leaving the location, he had noticed “a 1995 Mitsubishi Calant, front *1; robbery tried to enter the store the Customer’s description 3ased on its broken headlight, stopped the silver Mitsubishi 17 at 7.) right damaged of headlight. the vehicle Locker store. was Locker driving Black 2009 at the officers foliowed and then (“The Stooped Vehicle”) The Officers immediately requested backup. 4 Foot These . (ECF No. (Ibid.) 8— They instructed the car’s driver and three passengers (“the Occupants”) to roll down their windows “to see better into the car.” 8—17 No. at 6—7; Black 2009 II at 8—17 at 7.) *2.) (ECF No. The Occupants complied. While waiting for backup to arrive, (ECF the Officers saw that “the front passengers were passing something back to the rear seat passengers,” which suggested “they were trying to conceal something.” Police instructed Occupants the to stop their movements, with which they complied only after several requests by police. (Black 2009 at £4arano soon Coleman. arrived (EC? No. *1; at the ECF No. scene 8—17 to at Sergeant 6—8.) assist Officers Frank DiGena and 8-17 at 28-29.) As Sergeant Marano and Officer OiGena apDroached The Stopped Vehicle, DiGena noticed that the matched the Manager’s description. 17 at 10 Vehicle, saw 32.) and 28j2 they used facerrtasks As the on its Upon DiGena’s questioning, to the other Occupants. to wore clothes (Black 2009 at *1; officers flashlights and gloves Occupants got closer illuminate floor. its (ECF No. to that ECF No. The Stopped interior. 8—17 at 8— They 10 and Petitioner denied passing anything (Black 2009 at *1; ECF No. 8—17 at 10—11.) The Officers ordered the Occupants to exit The Stopped Vehicle one-by—one and to sit on the curb. 2 (Black 2009 at *1; ECF No. 8- Sergeant )1arano had also been on the scene of the Foot Looker Robbery after it occurred on April 28, 2004. (ECF No. 8—17 at 29— 31. 5 17 at 13, 17—19.) The police patted down the Occupants for weapons. (Black 2009 at *1; Sergeant cushion was suggested cushion, 11 and to him saw away that 8—17 ECF No. 34—36.) with the As the weapon it 8—17 at 11.) that from the 12 at side so, hammer back Marano and discharge, To retrieve the Colt, trunk. There he side (ECE No. 8-17 at 36.) in a have its vehicle,” which been hidden.” (Black pulled ECF No. handle the safety removed. Marano went location second the 8—17 at 10— of Colt a Given the car to (ibjd.) semiautomatic handgun on the first gun. He also found: a knife with a six-inch blade and Petitioner’s high school identification card under the tire in the wheel well. police on around the identical to that of the in the pocket of the driver’s door; The seat the When he saw side] Marano had to move a “speaker box” in found a driver’s passenger of and 23.) retrieve the gun through the trunk. the [rear (Black 2009 at *2; did might “the “something may “it popped cut.” handgun risk Marano pulled xl; 2009 at ECF No. arrested a:: four separately to police headquarters. Occupants and (ibid.) took them (ECF No. 8—17 at 13.) The police determined that Petitioner was the driver and wore a black hooded sweatshirt. Drake, wore The a front—seat green passenger, military later jacket. The identified as driver’s side Kevin rear passenger was identified as Ernest Oliver. The passenger side rear passenger was identified as Tariq Yicamb. 6 (ECF No. —2 at 43.) ?4cLamb, Oliver, and Black gave statements to the police about the weapons in The Stopped Vehicle as well as information about various other robberies. (Black 2009 at *2; ECF No. and all their 24.) Police advised defendants before they provided their statements, those rights in writing. (ECF No. 8—17 at 12—13 Miranda rights and all defendants waived of 1—2 at 43.) Petitioner told the officers at the scene that he borrowed The Stopped Vehice from a friend’ s mother to go to the movies and to get “prom stuff.” Ibid. Sergeant Michael Sanford, who was in charge of Union’s police ballistics lab, testified at trial seized from The Stopped Vehicle 8—26 at 18 and 30—34.) seized guns 12, 2004. that he tested the (“the Weapons Evidence”) two . guns (ECE No. The weapons test revealed that one of the had been used in at a gas (Black 2009 at *2; ECE No. station shooting on April 8—17 at 37.) Sandford found En route from Newark on April 12, 2004, Robert Walker and Petitioner stopped for gas. After Walker opened the driver door to request fuel, Petitioner reached across him while holding a gun and stated to the station attendant: “Give me the damn money or I’ll kill you” (the “Gas Station Shooting”). State v. Black, No. a—3608—13T3, 2016 WL 2903612, at *1 (N.J. Super. Ct. App. Div. May 29, 2016) (“Black 2016”); State v. Black, 2009 WL 348548, at *2. (N.J. Super. Ct. App. Div. Feb. 13, 2009) (“Black 2009”) When the attendant retreated in panic, Petitioner shot him in the chest and ordered Walker to drive away. Black 2009 at *2. The attendant survived the attack. Both the bullet and casing were recovered. Ballistic tests connected the ammunition with one of the guns found in the vehicle that Petitioner was driving after he committed other crimes on April 28, 2004. Ibid. Petitioner, who was apprehended following an April 26, 2004 armed robbery of a Foot Locker store, as described above, confessed to the Gas Station Shooting but repudiated his confession at trial, saying that his confession had been manufactured by the police without any involvement on his . 7 (Black 2009 at *2; ECF No. weapons were fully 8-17 at 37.) operable. test—fired from the Colt (ECF No. Sandford found both seized 8—17 at 40-41.) A casing .380 automatic handgun matched the casing recovered from the scene of the Quick Chek robbery. .380 (Id. at 34—35.) 5. Petitioner’s Confession After Petitioner’s April 28 arrest, pOlice transported him to Union :ownship Jail. According to Rossi told him that “the first one II at *3 Petitioner, Approximately fifteen Petitioner, [who] Detective Gregory talks, walks.” Black 2009 hours after police they brought him into an interrogation room. arrested Officer In connection with the Gas Station Shooting, Indictment No. 04-10—1303 charged Petitioner with: second-degree aggravated assault causing serious bodily injury, N.J. Stat. Ann. § 2C:12— 1(b) (1); first—degree armed robbery, N.J. Stat. Ann. § 2C:15—l; second-degree possession of a weapon for an unlawful purpose, N.J. Stat. Ann. § 2C:39—4(a); and third—degree unlawful possession of a weapon, N.J. Stat. Ann. § 2C:39—5(b). Black, 2009 WL 348548, at *1. The jury found Petitioner guilty on all counts of the indictment against him. Black 2009 at *1. Petitioner was sentenced to an aggregate term of sixteen years in prison with an eighty— five percent parole disqualifier, pursuant to the No Early Release Act, N.J. Stat. Ann. § 2C:43—7.2 (“NERA”). Black 2009 at *1. Petitioner directly appealed. The Appellate Division affirmed, remanding only for resentencing. Black 2009 at *1. After the judge resentenced Petitioner to the original term following remand, Petitioner appealed the resentence. The Appellate Division affirmed. Black 2016 at *1. The New Jersey Supreme Court denied certification. State v. Black, 970 A.2d 1048 (N.J. 2009). On December 16, 2013, Petitioner’s application for post— conviction relief (“PCR”) as to the Gas Station Shooting was denied. Black 2016 at *1. On May 19, 2016, the Appellate Division affirmed. Ibid. On October 14, 2016, the New Jersey Supreme Court denied certification. State v. Black, 154 A.3d 684 (N.J. 2016) 8 Christopher Miranda Baird v. Arizona, verbally 384 u.s. read 436 Petitioner (1966) his rights and gave him a under standard Miranda waiver form. Petitioner signed the form and agreed to speak Black 2009 II at *3 to police. interrogation, interview. Confession, Robbery, Petitioner was calm and cooperative throughout the Petitioner (“Confession”) During the approximately two hour , read and signed his initialing each page at the bottom. statement Ibid. In his Petitioner admitted to participation in the 7—Eleven Quick Chek Robbery, Foot Locker Robbery, Gas Station Shooting, a Chinese restaurant armed robbery, and a Kids-R—Us armed robbery. He stated that, when pulled contemplating an additional robbery. 6. In June over, the Occupants Black 2009 at *3 n. were 1. Trial On Charges Related To The 7-Eleven And Quick Chek Robberies and July of 2006, Petitioner stood trial alone the 7—Eleven Robbery and the Quick Chek Robbery, jointly with no objection from Petitioner.4 for which were tried (Black 2009 II at *4); Indictment No. 04—10—1268 charged Petitioner with first—degree robbery, possession of a weapon for an unlawful purpose, and unlawful possession of a weapon in connection with the 7—Eleven Robbery. (ECF No. 8—19 at 2.) Indictment No. 04-10-1269 charged Petitioner with identical crimes as to the Quick Chek robbery. (Ibid.) On June 16, 2006, the Honorable Joseph P. Perfilio, J.S.C. granted the State’s motion to join the indictments for purposes of trial. (Id. at 4—5.) Petitioner does not assert claims in his § 2254 Petition presently before this Court as to the Foot Locker Robbery (see ECF Nos. 1 and 1-2), and state court records as to criminal prosecution of Petitioner in connection with that robbery are not in the habeas record before this Court. “ 9 The jury found him guilty of the following 8—29.) ECF Nos. 8—20 charges; two 2C:15—l; second purpose, N.J. - counts of degree Stat. degree first possession Ann. robbery, of 2C:39—4a; § a weapon and third for Judge Ann. unlawful degree unlawful (Black 2009 II 8—29 at 6—8.) Perfilio the merged for convictions degree first robbery and possession of a weapon for an unlawful purpose. 2009 II *1; at § an possession of a weapon, N.J. Stat. Ann. § 2C:39—5b. at *1 and *4. ECF No. Stat. N.J. ECF No. at 8—30 5—7.) The judge (Black imposed: two consecutive fourteen-year terms subject to an eighty—five percent disqualifier parole year terms for pursuant each unlawfu Black 2009 II at *1. twenty—eight disqualifier. On year Thus, to NERA5; and two concurrent five- possession of a weapon conviction. Petitioner’s aggregate sentence was a term with 24, 2009, an eighty—five percent NERA parole Ibid. December the Appellate Division affirmed Petitioner’s conviction and sentence as to the 7—Eleven and Quick Ohek Robberies. 2010, Black, (Black 2009 II at *1; ECF No. 8—3.) On March 18, the New Jersey Supreme Court denied certification. 991 A.2d 232 (N.J. State v. 2010). ‘A court imposing a sentence of incarceration for a crime of the first or second degree enumerated in subsection d. of this section shall fix a minimum term of 85% of the sentence imposed, during which the defendant shall not be eligible for parole.” N.J. Stat. Ann. § 2C:43—7.2a. 10 On December 16, 2013, the Honorable William A. Daniels, J.S.C. PCR application as to the 7—Eleven and Quick denied Petitioner’s Chek Robberies. May 19, 2.) On 2016, certification. 3, State v. 7, November (ECF No. New the 8-15 at Petitioner (N.J. filed his from the violation warrantless of vehicle and the purportedly tainted search’s fruit weapons and his confession) of a mistrial; ; (2) by Court denied 2254 Petition (I) Fourth Petitioner’s seized (i.e., due process violation from denial the trial judge’s unconstitutional failure to (3) (4) constitutionally improper instruct the jury on identification; sumr.ation 8—15 at 2016) § search On 1—2.) (ECF No. Supreme Jersey 156 A.3d 167 Black, 2016, ECF No. setting forth the following claims: 1 at 15), Amendment 2016, 1-22; Division affirmed. the Appellate November On 8-10 at CEDE’ No. the denial (5) prosecutor; of fair communication due trial with a to trial sleeping jurors; witness; (7) the trial judge’s improper comment to jurors regarding jurcr improper (6) the weight of witness testimony and regarding juror sleeping; trial improper gesture (8) to a denial of fair juror; (9) constitutional rights deprivation from the trial judge due nodding off during trial; (“IAC”) due regarding failure to counsel’s to jury seek removal failure to the judge’s ineffective assistance of counsel (10) counsel’s alleged to failure to misconduct; of seek sleeping a seek (11) 11 IAC jurors; mistrial voir additional for due (12) to dire counsel’s IAC purported due to juror (13) misconduct; proceedings; (ECF Nos. (14) denial of due process due cumulative errors; and disjointed to (15) trial excessive sentence. 1 and 1—2.) STANDARD OF REVIEW III. Under 28 U.S.C. § 2254 (a), the district court “shall entertain an application for a writ of habeas corpus [o]n behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” A habeas petitioner has the burden of establishing his entitlement to relief for each claim presented in his petition. 98 (2011); Price v. See Harrington v. Richter, Vincent, 538 U.S. courts must afford great deference state and 766, trial 773 appellate courts. 634, to the See 641 562 U.S. (2003). District determinations Renico v. Lett, 86, of the 559 U.S. (2010) Where state courts the district court have adjudicated a claim on the merits, shall not grant an application for a writ of habeas corpus unless the state court adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application law, of, clearly established Federal 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 the State court proceeding. 12 u.s.c. 28 114 § 2254(d) (1)—(2) (3d dr. 2015) See Conover v. Main, . u.s.c. (citing 28 601 F. App’x 112, § 2254(d)). Federal law is “clearly established” for these purposes where it is clearly expressed in “only the holdings, dicta” of Woods v. the opinions Donald, of 135 5. the Ct. United 1372, supreme states 1376 as opposed to the court. See (2015) A decision is “contrary to” a supreme court holding within 28 u.s.c. § 2254(d) (1) law set forth in set a of decision facts of [different] th[e if the state court “contradicts the governing [the supreme court’s] that are supreme] result.” cases” or if it “confronts indistinguishable materially Court Williams nevertheless and v. Taylor, 529 from arrives U.S. 362, at a a 405—06 (2000) under the “‘unreasonable application’ clause of § 2254(d) (1), a federal identifies habeas court the correct may grant governing the writ legal if the principle state court 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. With regard to 28 U.s.C. § 2254(d) (1), a federal court must confine its examination Pinholster, to 563 U.S. evidence 170, in 180—81 the record. Cullen v. (2011). The petitioner carries the burden of proof, § 2254(d) See and review under is limited to the record that was before the state court that adjudicated the claim on the merits. 13 See Harrington, 562 U.S. at 100. “When reviewing state criminal convictions on collateral review, federal judges are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong.” Id. 102-03. at Where a petitioner challenges an allegedly erroneous factual determination of the state courts, “a determination of a factual issue made by a State court shall be presumed to be correct [and the] applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e) (1). Under these standards, the relevant state court decision that is appropriate for federal reasoned state court 289—90 (3d Cir. 2008) decision reasons on . . . the habeas decision. . See Bond v. Furthermore, merits . . . corpus does is review Beard, the last F.3d 256, 539 “when the relevant state—court not come accompanied with [w]e hold that the federal court should ‘look through’ the unexplained decision to the last related state—court decision that does provide a relevant rationale.” Wilson v. Ct. IV. 1188, 1192 Sellers, 138 5. (2018) ANALYSIS A. Ground One: Fourth iuendment Violation Ground One argues that the trial Petitioner’s motion to suppress6 “violated 6 court’s [his] denial of Fourth Amendment Prior to trial in June—July 2006, Petitioner filed a motion admissibility of his (“Suppression Motion”) challenging the 14 right of protection against illegal search and seizure.” 1—2 at 4.) Specifically, he argues that: Cl) (ECF No. the April 28, 2004 warrantless seizure of the Weapons Evidence was improper; and his illegal Confession following vehicle search. (Id. that at 4-7 Judge Wertheimer’s seizure was fruit of the (2) (“Fourth Amendment Claim”).) July 11, 2005 written opinion upheld the search of The Stopped Vehicle and its Occupants as: search pursuant to Terry v. Ohio, 392 u.s. 1 a protective (1968); and, in the alternative, a search justified under the automobile exception7 to the warrant requirement.8 This Court review; and In Supreme lacks merit, (1) is barred from habeas in any event. Stone v. Powell Bars Habeas Review Of Ground One Stone v. Court 1—2 at 44—46 and 50—51.) finds that Ground One: (2) 1. (ECF No. Powell, held that 428 u.s. “where 465 the (1976), the State has united States provided an Confession and the Weapons Evidence (collectively, “Seized Evidence”). (Black 2009 at *1; ECF No. 1—2 at 50.) The state court record indicates that Petitioner sought to suppress seized weapons evidence and the perpetrators’ statements in both the Gas Station Shooting trial as well as the trial on the 7—Eleven and Quick Chek Robberies. (See ECF No. 1-2 at 41 and 47; ECF No. 8-17 at 1.) On June 1, 2005, Judge Wertheimer held an evidentiary hearing on the Suppression Motion (“suppression Hearing”). (ECF No. 8—17.) Judge Wertheimer noted that both sides had agreed that police lawfully detained The stopped Vehicle as the result of a broken headlight. (Black 2009 at *2; ECF No. 1—2 at 42.) In March 2006, Judge Wertheimer denied the defense’s motion for reconsideration of Suppression Motion denial. (ECF No. 1-2 at 4951.) The Appellate Division affirmed. Black 2009 II at *45 and *8 15 for opportunity claim, and full fair of litigation Fourth Amendment a a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Stone, 495—96. As the Third Circuit explained in Hubbard v. 428 C.S. at Jeffes, 653 Stone stands for the proposition that “when F.2d 99 (3d Cir. 1981), a state prisoner raises a Fourth Amendment violation in a habeas petition, a federal court may not consider the merits of the claim ‘an opportunity if the state tribunal had afforded the petitioner of his claim.” Hubbard, for a full and fair litigation’ at 102—03 (citing 428 Stone, 82 Hendricks, 307 F.3d 36, U.S. at F.2d 653 v. see also Marshall 494); (“An erroneous or summary (3d Cir. 2002) resolution by a state court of a Fourth Amendment claim does not the overcome Attorney Gen. (D.N.J. bar”) [Stone] of New Jersey, July 30, 2018) . (citations No. 14-5486, omitted) ; v. Reininger 2018 WL 3617962, at *9 Petitioners can avoid the Stone bar only by demonstrating that the state system contains a structural defect that prevented claim. Marshall, Here, full ar.d fair litigation of Fourth Amendment the 307 F.3d at 82. Petitioner availed himself of the opportunity full and fair litigation of his Fourth Amendment Claim. to suppress the Seizure Evidence. (Black 2009 at *19; for a He moved ECF No. 1—2 The state court record on the Suppression Notion indicates that Petitioner sought to suppress seized weapons evidence and the 16 The trial court held an evidentiary hearing on the matter, at 50.) during which Officer No. 8—17.) as its DiGena testified. Sergeant Maranc and (ECF The trial court denied the Suppression Motion as well (ECF reconsideration. then Petitioner his presented appeal, which the Appellate and *3. Brown 2009 II at *4 Claim Fourth Amendment 49—51.) on direct *1 2009 at Brown rejected. Division and 41—46 at 1—2 No. Jersey courts provided Petitioner with an adequate forum to present his Fcurth Court This therefore that concludes the New Amendment Claim. He had a full and fair opportunity to litigate it in the He has state courts. defect in the state courts’ and 1-2.) failed to demonstrate any structural In accordance with Stone and its progeny, not consider the Fourth Amendment Claim. F.2d 51, 57 (3d Cir. 1986); (contention that F.2d at 799 Jones 42 and confession defendant’s 103; F.2d 40, 725 1 this Court may See Gilmore v. Marks, 653 Hubbard, Superintendent of Rahway State Prison, 1984) (See ECF Nos. review of that Claim. v. (3d Cir. all other evidence admitted at his trial should have been suppressed as fruit of illegal federal Johnson, arrest habeas was corpus 171 P.36. 270 not proper court (5th Cir. under for subject Stone) . consideration by Jones v. See also 1999). perpetrators’ statements in both the Gas Station Shooting trial as well as the trial on the 7—Eleven and Quick Chek Robberies. (See ECF No. 1—2 at 41 and 47; ECF No. 8—17 at 1.) 17 The Court will deny Ground One as barred by Stone. 2. Even if Ground One Lacks Merit Stone did not bar habeas review of Ground One, the Fourth Amendment Claim is without merit as well. The Constitution prohibits the government from conducting “unreasonable searches” of “persons, houses, papers, and effects.” U.S. Const. amend. IV. “The general rule in a criminal proceeding is that statements and other evidence obtained as a result of an unlawful, warrantless arrest are suppressible if the link between the evidence and the unlawful conduct is not too attenuated.” INS v. Lopez—Mendoza, v. United States, 468 U.S. 1040—41 (citing Wong Sun requirement usually determines whether a search is unreasonable. City of Los Gant, Patel, 556 U.s. Any 135 S.Ct. 332, evidence 338 471 (1984) The warrant Angeles v. 371 U.S. 1032, (1963)). 2443, 2452 (quoting Arizona v. (2015) (2009)) obtained in connection with an unauthorized search must be suppressed as “fruit of the poisonous tree.” v. Brown, U.S. 448 F.3d 239, 244 (3d Cir. 2006) U.S. (citing Wong Sun, 371 at 487—88) Relevant in Petitioner’s case are the “protective sweep” and “automobile” exceptions to the warrant requirement. First, exception, as to the protective sweep it is well established that police officers may, under certain circumstances, warrant requirement’s conduct a protective, 18 security sweep of a vehicle’s passenger compartment without a warrant during a lawful investigatory vehicle stop. Michigan v. Long, 463 u.s. 1032, (relying on as is subject searches protective valid and armed 1) U.5. 392 Terry, (1983) Warrantless sweeps are permitted . when there is to u.s. at 392 Terry, dangerous. reason believe 27. a This exception enables officers to ascertain whether a suspect is armed and to neutralize the threat of harm. articulable believing the suspect is justify and officer “the I I [ [ may immediate control of weapons.” Maryland v. Buie, 494 U.S. and (citations (1990) Michigan, 463 u.s. 164, (3d 167 at 1049; Cir. prudent officer believe the internal driver (citation omitted); or United States v. (courts 2002) would, quotation marks under the occupants v. U.S. consider present Edwards, 53 omitted) Robertson, a whether totality an F.3d of police specific cn based dangerous “the where applies belief reasonably which” facts that reasonable a possesses officer exception sweep protective The at 23. Id. 325, . and in gain 332 Accord 305 F.3d reasonably circumstances, immediate 616, 618 danger) (3d Cir. 1995) In Petitioner’s case, it was objectively reasonable for the state courts to determine that the protective sweep exception. to the warrant reauirement applied. Pclice had lawfully Petitioner’s vehicle based on its broken headlight. v. Prouse, 440 U.s. 648 (1979). stopped See Delaware The parties agreed on that issue. 19 Brown *2. at 2009 Petitioner’s After the vehicle, made police shows record lawful that that of stop reasonably police suspected the Occupants might be armed and dangerous because: (1) The Stopped Vehicle had been sighted near the Foot Locker Robbery location; matched victims; (2) the the two by provided descriptions that Robbery police sighted masks and gloves on the floor of the (3) Stopped Vehicle, the such as Locker perpetrators Foot had used; the police observed the front—seat passengers surreptitiously (4) passing something to the back the (5) seat; and Stopped Vehicle, car. The the stop coupled with other evidence linking the Occupants an armed robbery, the (6) The suspicious movement within The Ibid. occurred after midnight. denied Occupants engaging in the movements the police witnessed; to Locker Foot the clothing wore passengers front—seat justified a continued search of reasonably reasonable assumption was that weapons might be concealed within the automobile itself. A continued search of the vehicle was necessary to ensure the safety of the three officers, (See ECF No. 8—17 at search of The Stopped who were out-numbered by the four Occupants. 6—7; Black 2009 II at *2.) Furthermore, Vehicle was the reasonable scope of under the the police circumstances. Sergeant Marano initially limited his search to the area where he observed furtive movements and where he noticed the seat cushion was pulled away. (ECF No. 1-2 at 44.) Marano pulled 20 on the seat cushion, which revealed a Colt handgun, whose safety was off and whose hammer was pulled back. (Ibid.) Marano then went through the trunk to secure the weapon because of safety concerns. a leqitimate Florida v. concern Royer, 460 when assessing u.s. 491, 500 (Ibid.) the Officer safety is of scope a search. See (1983) For these reasons, it was objectively reasonable for the state court to determine that the police search of The stopped Vehicle met both prongs to the protective search exception: suspicion of danger and Second, (2) (I) reasonable justifiable scope of search. as to the warrant requirement’s automobile exception, police need not obtain a warrant before searching a vehicle when they probable cause to believe it contains contraband. Maryland v. Dyson, 527 separate of conceal 465, exigency automobile search u.s. 467 requirement. exception every part 527 Dyson, J.5. to the warrant requirement of the vehicle and at permits contents its 466. The “‘the that may the object of the search,’” provided that probable cause supports such search. (3d Cir. The automobile exception has no (1999). 2014) United States v. Donohue, (quoting Gant, 556 U.S. 332). 764 F.3d 293, 300 A search’s validity pursuant to the automobile exception depends on whether officers had probable cause to believe that the vehicle contained, time of the search, evidence of a crime. Donohue, In Petitioner’s case, state courts to determine at the 764 F.3d at 301. it was objectively reasonable for the that the 21 automobile exception to the warrant requirement applied. As described infra, police had reason to suspect that the Occupants might have possessed a deadly weapon. Black 2009 II at *2; Black 2009 at *1. Additionally, the Officers were involved in an ongoing investigation of events that occurred close in time. The Black 2009 II at *1. Stopped Vehicle, than the Occupants Black 2009 at *1; there was a possibility that could access ECF No. Despite the Occupants exiting the car. 8—17 at 6—7, to the warrant requirement Maryland, 527 U.S. at Donohue, 467; 17—19.) F.3d at *2; The automobile therefore 764 other II at (Black 2009 13, exception persons applies. Gant, 300; See 556 332. U.S. Under automobile these clearly exceptions to established the warrant protective requirement, sweep it was and not contrary to or an unreasonable application of United States Supreme Court precedent for state court to find obtained the Seized Evidence as to both and (2) (1) the Confession. As to the latter, Confession poisonous subsequent tree - to because that the search that police lawfully the Weapons Evidence; Petitioner’s arrest and were protective not sweep fruit and of the automobile exceptions applied to the search of The Stopped Vehicle. See Brown, 448 F.3d at 244 the Fourth (citing Wong Sun, 371 U.S. at 487—88). Accordingly, Amendment barred by Stone. Claim is also without merit, Ground One is denied habeas relief. 22 even if not B. Ground Two: Mistrial Claim Ground Two Fifth and argues that Fourteenth the Amendment Petitioner moved for mistrial the back of an exhibit court trial rights denied Petitioner’s denying by a mistrial. jury saw information on after the during deliberations that (“the Writing”) inferentially connected him to an unrelated robbery involving (ECF No. 1 at 7; ECF No. 1—2 at 7—10 shooting. a (“Mistrial Claim”).) Specifically, the Writing referenced an Exxon station robbery and 2009 shooting II but did *5• The at not mention jury sent the a Petitioner note to the by name. Black during judge deliberations, asking: “What is on the back of this board with the map? It references a .45 this case? like We would cal. the and .380 court to in Union. be aware Unconnected to of it.” Ibid. Defense counsel had previously noticed the Writing and requested the State turn the board so it was not exposed to the jury. However, neither side realized the Writing was being submitted to the jury as an exhibit. Ibid. In denying Petitioner’s motion for mistrial, found the Writing was potentially prejudicial, Judge Perfilio but he ruled there was no “overriding, absolute manifest necessity for [a] mistrial.” (Ibid.) Judge Perfilic instructed the jury as to the Writing; It is completely unconnected to this case. It case, this has nothing to do with this It went in there in error and defendant your perceptions are very, very good it seems. You are to completely disregard anything that . . . 23 was on that board. [A]s I said, you can only consider evidence. That wasn’t evidence. What is on the front was evidence, the map. You can’t consider [the Writing] in any way or have it enter into your deliberations in any manner in any way at all. :t shoud not prejudice either side in this case. It was a mistake that was not caught. x5 Black 2009 II at testimony. recuested then jury The (“Curative Instruction”) a of read—back Petitioner’s A small portion of this testimony was redacted, included a question and answer relating to the Writing. Appellate The Petitioner’s necessity Division rejected appeal because direct for declaration constitutional issues; Black 2009 II at *6 of a the Mistrial there mistrial; no Ibid. Claim no was: as it during manifest implication and no unjust result in Petitioner’s case. (internal citations omitted) The Mistrial Claim does not merit federal habeas relief. asserts that the (SCF No. permit 1—2 at the It state court erred as a matter of state law1° in in favor of 7—10.) Fowever, a mistrial denying of federal courts giving the Curative Instruction. “the Due Process Clause does not to engage in a finely—tuned review of the wisdom of state evidentiary rules.” Marshall v. Lonberger, 459 1C Under New Jersey law, a motion for a mistrial may be granted only in those situations where continuing the trial would result in manifest injustice. State v. DiRienzo, 251 A.2d 99 (N.J. 1969) The decision to deny a motion for mistrial is within the sound discretion of the trial judge. State v. Winter, 477 A.2d 323 (N.J. 1984) 24 U.S. 422, 438 n. 6 (1983). Habeas claims rely that exclusively upon state law in asserting error in a state court’s evidentiary ruling, like any other assertion of court state error in the application of state law, do not warrant habeas relief. See Estelle McGuire, 502 U.S. V. a 62, 67—68 (“it is not the province of (1991) federal habeas corpus to re—examine state—court determinations of 408, state—law questions”); 416 n. 2 For federal a (3d Cir. see also Keller Larkins, v. 251 F.3d 2001) due process claim, would Petitioner have to prove that he was deprived of fundamental elements of fairness in his criminal Cir. 2014) trial. See Glenn v. Wynder, 743 F.3d 127, (citing Riggins v. Nevada, 504 U.S. Lisenba v. California, inquiry is limited to 314 U.S. whether 219, the 236 state 149 (1941)) 407 (3d (1992) and 402, . Due ruling court’s process was so arbitrary or prejudicial that it rendered the trial fundamentally unfair. See Romano v. 251 F.3d at 413. category of narrowly Oklahoma, 512 U.S. 12—13 (1994); Keller, The United States Supreme Court has “defined the infractions that violate based 1, on the recognition ‘fundamental that fairness’ [b]eyond the very specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited application.” Medina v. (1992). “[Tb been fair; California, 505 U.S. 437, 443 [Petitioner’s] trial must have it need not have been perfect.” Glenn, 743 F.3d at 407 satisfy due process, (citing United States v. Hasting, 461 U.S. 25 499, 508 (1983)). Here, fail to reference Petitioner “would have regards in it” to to (ECF No. certain for order but the jury speculate with 67), at Writing the unreated to the language was 8—28 and conclusions :ndeed, at 67—68.) (Id. Petitioner. No. leap to only did the Writing Perfilio decided that not Judge be to prejudicial to the jury itself suggested the convenience store robberies. (ECF (“What is on the back of this board with the map? 8—28 at 56 Unconnected to this case”).) The Appellate Division found that Judge Perfilic’s “curative instruction underscored these points.” Black 2009 II at *6. As whether to this fairness, was ruling clearly established of Petitioner’s evidence substantial mistrial of court state of application denial fundamental violated not an There law. federal e.g., guilt: unreasonable was Petitioner’s incriminating statement; the bullet casing found at the Quick Chek matching the gun found in The Stopped Vehicle that Petitioner drove; and the masks and gloves on the floor of that car. See Black 2009 II at the *6. Appellate On this record, Division to find it was objectively reasonable for it unlikely the jury would have acquitted Petitioner but for its exposure to the Writing. In short, although the Writing had the potential to prejudice Petitioner, Writing the Curative Instruction only indirectly referenced Petitioner was not “deprived of —— coupled with the fact the Petitioner -— suggests fundamental elements of 26 that fairness in his criminal trial,” see Glenn, 743 F.3d at 407, mistrial denial. see Petitioner, in the prejudice 2009 Black jury’s overwhelming the Furthermore, II *6, at as a result of against evidence the underscored lack of Petitioner has exposure to the Writing. failed to establish any due process violation or undue prejudice that in resulted respect to a denial injustice manifest of his mistrial unfair an or Ground motion. trial Two does with not warrant habeas relief ar.d will be denied. C. Ground Three: Jury Instruction Claim Ground Three argues that the trial court deprived Petitioner of his due process rights under the Fifth and Fourteenth Amendments by to failing identification. Claim”).) :n instruct on jury the (ECF No. 1 at 8; ECF No. 1—2 at 10—11 claims Petitioner support, [as] . . . cf (“Instruction “since that from either [the 7—Eleven Cr Quic:< Chek] store issue the no one identified Ehim involved in either robbery,” the “jury should have been instructed that consideration they could take [as to] guilt.” the lack of (ECF No. identification into 1—2 at 10—Il.) Petitioner did not raise the Instruction Claim at trial. Black 2009 II at *6. During direct Instruction appeal, the reviewed the standard; and rejected the Claim because: never an issue at trial; and instruction, Claim; (2) applied (1) Appellate the Division: “plain error” identification was failure to give an identification particularly in the absence of any request for one, 27 was harmless since: (a) the State’s case did not rely on eyewitnesses placing Petitioner at either the 7—Eleven Robbery or Quick Chek Robbery scenes; and (b) there was evidence of his involvement in those crimes. other substantial at *6_7 Id. This Court will deny the Instruction Claim for three reasons: Ground Three Does Not Warrant Habeas Review: As noted (a) supra, federal convictions courts’ based on habeas a powers belief that applied a state evidentiary rule. 6. The only evidentiary question decision on or do a permit not trial See Marshall, habeas is instruction] judge of incorrectly 459 U.S. at 438 n. ‘whether the itself by reversal so [challenged infected the entire trial that the resulting conviction violates due process.” Estelle, 502 U.S. deference states procedure. v. Horn, cert. at 67—68 and 72. in See Crane v. 120 F.3d Here, regarding determinations Kentucky, 476 U.S. 400, denied, 522 U.S. Federal courts must afford the 414 1109 (3d Cir. 1997) 683, 690 evidence (1986); (citations and Smith omitted), (1998) to the extent Petitioner asserts that Judge Perfilio’s identification instruction determination violated state law, the See Estelle, 502 Instruction Claim is not reviewable in habeas. U.S. at 67—68; Romano, 512 U.S. at 12—13; Keller, 251 F.3d at 413. Not instructing the jury on the absence of any 7-Eleven Robbery and Quick Chek Robbery witness identification of Petitioner as a perpetrator was a matter of state evidence law. As such, it is not 28 reviewable by this Court. Kibbe, Henderson v. 923 F.2d 284, has Petitioner 431 U.s. 309 Isaac, 456 u.s. See Engle v. 145 (3d Cir.) denied, cert. , shown due process not Fulcomer, Zettlemoyer v. (1977); 502 902 U.s. or deprivation (1982); 107 (1991). fundamental unfairness to render the Instruction Claim reviewable on habeas. Harmless Error; (b) Even in cases where constitutional errors in evidence—related state court rulings have occurred, they are subject to “harmless error” analysis 527 U.s. Cir. , 2003); 8—li Horn, i20 failure—to—instruct (citing cases) demonstrate Lewis v. (1999); E’.3d orinciple This Lewis, e.g., See, Under the harmless error test, . constitutional that error United States, F.3d 355, 348 Pinchak, 416—17. at contexts. Neder v. . 359 ir.cludes F.3d 348 at in 359 nust a petitioner resulted (3d “actual prejudice.” That analysis asks whether the error had a “substantial and injurious verdict.” (citing Eley v. v. Brecht also Fry v. 275—76; effect influence 7:2 Erickson, Abrahamson, Pliler, Adamson or v. 837, 847 U.s. 619, 637—38 551 U.s. 112, Cathel, 633 2013) (993)). See (2007); Bond, 539 F.3d at i21—22 248, F.3d jury’s Cir. (3d F.3d 507 the determining in 260 (3d Cir. 2011) (citations omitted) Judge Perfiiio’s identification was was overwhelming. evidence of decision harmless. (ECF No. The 8—10 instruct to not evidence at [Petitioner]’s guilt; 29 12 [his] of the jury Petitioner’s (°[T]here was incriminating on guilt substantial statement; the bullet casing found at the Quick Chek matching the gun found in the car he was driving, of the Consequently, car”) .) such evidence. See Henderson, instruction, of misstatement an Moreover, against (“An omission, or an at 155 likely to be prejudicial less law”) . the omitted than a instruction, likely to be orejudicial than a misstatement of notably, is less the law Henderson, . is u.s. 431 balanced when harmless, omitting an in any purported error was instruction identification incomplete and the masks and gloves on the floor 431 U.S. at 155. This means that “a petitioner seeking habeas relief based on a trial court’s failure to give a particular instruction that demonstrating prejudicial that 431 24 u.s. The will it Supp.3d 390, F. to give a state 404 court’s Del. (D. instruction the attack collateral a support burden heavy’ ‘especially failure validity of constitutional Pierce, the an has judgment.” of was on so the Kelium v. (citing Henderson, 2014) at 154—55) state court record compels this Court to conclude that Judge Perfilio’s failure to give an. identification instruction was not an error of dimension. constitutional It substantial and injurious effect on the verdict. See, 348 F.3d at 473 F. App’x 359-60; 123, Government 127 (3d Cir. of the 2012) Virgin not did e.g., Islands (failure to v. have a Lewis, Edict, instruct that jury could consider a prior inconsistent statement as substantive evidence was harmless where evidence of guilt “was overwhelming”) 30 State Court Rulings As To The Instruction Claim Were (c) Not Contrary To Any Federal Precedent: Petitioner has not cited, and this Court has not discovered, any United States Supreme Court decisions requiring a trial court to instruct the jury regarding the absence crime No. scene of eyewitness “[as to] identification guilt beyond a of a defendant reasonable doubt.” at the (See ECF on the 1—2 at 10—11.) For these Instruction reasons, were Claim the not court state contrary to, decisions or clearly established federal law. application of, an unreasonable Ground Three is denied on the merits. D. Ground Four: Summation Claim Ground Four argues that the prosecutor’s summation “exceeded the bounds rights. of (ECF and propriety” No. 1 at 10 violated Petitioner’s (“Summation Claim”).) due In process support, Petitioner argues that “while the prosecutor did not directly state that the police had no motive to lie, that message was actually conveyed to the jury by repeated attacks on that the testimony of fabricated.” At (EC? No. trial, occasions the the the [Confession] had been 1—2 at 11—12.) defense that and police [P]etitioner’s theory counsel’s summation testifying police suggested on officers” several lacked At trial, Union Township Police Sergeant Harry Capko, Officer Barry Cohen, Sergeant Frank Marano, Detective Michael O’Brien, “ 31 the Assistant credibility.’2 Following that summation, Prosecutor told the jury during the State’s closing: Now, [Detectiv& Miller testified today. He is Police Union the 28—year of a veteran [Detective] aside Now, from Department. Miller, the defendant also testified that there were other detectives present. Also veterans of the Union Police Department. I ask a fabricate to you why would they want fabricate were they going to statement? And if a statement or they were going to fabricate this case, wouldn’t they have made it a hundred percent? (ECF No. 8—27 at 153.) Neither side objected to these aspects of the other’s summation. The Appellate Division rejected the Summation Claim during direct appeal in the 7—Eleven and Quick Chek Robbery case. 2009 Ii at [Petitioner], *7 (“given the weight of the evidence Black against the prosecutor’s statement was not “clearly capable Detective Gregory Rossi, Detective Robert Miller, and Sergeant Michael Sandford testified for the prosecution. (ECE’ No. 8-23 at 91—92 and 132; ECF No. 8—24 at 49; ECF No. 8—25 at 4, 55, and 82; ECF No. 8—26 at 17—18.) 12 For example, defense counsel: (1) stated the jury could “take Detective Sandford’s testimony “with a grain of salt” since he “didn’t know “whether the ammunition used to test fire th[e] [robbery] gun was the same ammunition as the example that it was being compared to”; and (2) suggested that Officer Cohen was unreliable because he testified that the Occupants’ surreptitious passing of objects between the front and back seats “[went on] maybe a minute or two,” while defense counsel countered that “get[ting] something from the front to the back seat of a compact car doesn’t require a minute of wiggling around lie the officer testified to.” (ECF No. 8—27 at 128—31, 133—35, 137—38, and 140) (referring to “the questionable credibility of predominantly the police witnesses”).) 32 of producing an unjust result”) Ground Four wili be dented because the state court decision were it rejecting neither Prosecutorial misconduct conduct so was DeChristoffaro, reversal, egregious that a U.S. 168, U.S. 637 477 Wainwright, v. 416 for reversal unless 567 U.S. 181 :n . must substantialiy prejudice a a (2013); Darden 45 Donnelly (citing (1986) (1974)) 37, of defendant deprived a it statements prosecutor’s infraction and a basis is not See Parker v. Matthews, fair trial. unreasonable an United States Supreme Court precedent. application of, the nor to, contrary order warrant to constitute defendant’s v. a clear a fundamental right to have the jury fairly evaluate the merits of the defense. United States v. 680 A.2d 634 Young, 470 U.S. cert. (N.J.), 1, denied, 11—12 (1985); 519 U.S. 1021 State v. Roach, (1996). Federal review is limited to determining whether the prosecutor’s habeas conduct “so infected trial the unfairness with as to resulting conviction a denial of due process.” Donnelly, at make 416 u.s. Prosecutors are permitted to respond to arguments 643. the raised by defense counsel as long as they do not stray beyond the evidence at *9 156, (D.N.J. June 159 (3d Cir. In this D’Ilio, Evans v. adduced at trial. 2016) 6, No. (citing 15—2132, Reid v. 2016 WL 3219874, Beard, 420 F. App’x 2011) case, the Petitioner’s Confession. State’s theory turned Law enforcement witnesses 33 largely upon supoorted the Confession’s accuracy and lawfulness. 154—57 and fabricated (See ECE 166.) his No. witnesses’ Petitioner Confession 1—2 at knowledge about the and 11—12.) credibility, at (1) e.g., ECF No. 8-27 at that police contended how about do such as: Colt trial lied To (See, so, he they obtained the attacked it. State Detective Sandford’s lack of .380 weapon line (2) colors; Detective O’Brien’s purportedly implicit acknowledgment of “bad police work” when he “kind of chuckled” about “instruct[ing] to preserve evidence” —— which, in Petitioner’s case, the police “putting tape on the bullets [and] (3) passing “all resulted in [to] package[] as evidence Officer kinds of testimony Cohen’s things around in about the the Occupants [Stopped Vehicle],” despite the obstructed view from window tinting; and (4) Miller’s “extremely detectives shaky” waited “just walking by the on how the possibility of fingerprints lifted off those ruin[ing] bullets”; [officers] credibility until due [Petitioner] his to grabbed Detective claim one that of them cell and said I want to tell you all about these robberies because I am tired of sitting in here. You didn’t promise [Miller] is totally unbelievable.” me anything, but I want to talk. (ECF No. 8—27 at 128—31, Therefore, after State’s witnesses who prosecutor had to issue with the 133—35, the 137—38, defense’s and 140.) summation supported the Confession’s address those attacks. While attack on the lawfulness, the Petitioner choices made by the prosecutor during 34 takes summation, looking at the trial as a whole, none of the statements, rendered the resulting conviction a denial of due process. The State’s query to the jury — fabricate a(n] —— did not motive. State [officers] “why would the[] i.e., [incriminating: statement,” see ECF No. influence imprcpery it met Rather, the The Appellate to 8—27 at 153 State witnesses’ summation challenge defense’s credibility. witnesses’ jury about the want [would] Division to the reasonably found in these circumstances that “the prosecutor’ s corents were a proper response to defense counsel’s closing argument,]” given that “a respond may prosecutor to an argument made by defense counsel during closing.” Black 2009 at *3, Petitioner suggest, capable not has demonstrated, and the record not does that the prosecutor’s challenged statements were clearly of producing an unjust result. Review of the State’s summation as a whole convinces this Court that there was nothing so egregious as to deprive Petitioner of a fair trial. 132 S.Ct. 643. at 2153; Darden, 477 u.s. at 181; Donnelly, See Parker, 416 U.S. at None of the comments challenged by Petitioner “infected the trial with unfairness.” See Donnelly, 416 U.S. at 643. Furthermore, the weight conclusion. of the evidence against See Black 2009 Ii at *6 Petitioner this (referring to the Confession; the bullet casing found at the Quick Chek, in The Stopped Vehicle; underscores which matched the gun and the masks and gloves on the floor of that car) 35 Ground Four is denied in its entirety. Ineffective E. Ground Five: (1) Denial Of Fair Trial; and (2) Assistance Of Counsel types of claims: Ground Five asserts two genera of Trial (“Fair jury impartial Amendment Sixth Petitioner’s Claim”) 1 at 14; ECF No. 1—2 at 12—33.) and ; assistance of trial and appellate counsel fair a to right denial (1) trial an by ineffective (2) (“IAC Claim”) (ECF No. . Each of those two claims asserts distinct sub-claims. Petitioner’s Fair Trial Claim argues that: Specifically, (a) some of the jurors were sleeping during the trial (“Sleeping Jurors issue”) ; one of the jurors spoke with a police officer witness (b) (“Outside Influence Issue”) during a side—bar conference ; Cc) the trial judge improperly commented to jurors about testimony weight and (“Comment sleeping juror Issue”) (d) ; the judge trial improperly gestured to a juror during testimony (“Gesture Issue”) and (e) Issue”). the trial (ECF No. nodded judge off during (“Attention trial 1—2 at 12—31.) IAC Petitioner’s Claim argues that trial counsel was ineffective for: (a) failing to seek additional voir dire regarding jury misconduct (“Voir Dire of those jurors (“Removal mistrial resuiting Issue”). (Id. from Issue”) Issue”) purported at 25 and 32—33.) 36 ; (b) and, juror failing to seek removal (c) failing misconduct to seek a (“Mistrial Jurors Sleeping Claim; Six, And Eight 1. Fair Trial Jurors Two, Regarding Issue On the third day of trial, the prosecutor told the judge that the State’s either had Simmons’s whether “felt attorney her closed eyes (ECE testimony. Juror Eight juror had was or No. 8—23 actually eight [“Juror Eight”] sleeping” during Officer It uncThar number at :45—46.) fallen asleep. was The prosecutor requested that Judge Perfilio “do whatever you fee: appropriate” as a corrective measure. (Id. at 146.) Judge Perfilio stated that he had “also noticed” that Juror Eight speaking to another juror during testimony. both issues, (Ibid.) Judge Perfilio voir dired Juror Eight on as follows; COURT; Are you having trouble keeping awake? JUROR EIGHT: I’m tired. COURT: [D]o you think you would be capable of paying attention to the witnesses? I’m EIGHT: JUROR everything going on. I listening. do hear COURT: I’m just concerned about that. Also I noticed at one point while there was a witness on the stand you were talking to the one person next to you. JUROR EIGHT: (ECE’ No. 8—24 at 2—4.) I said I was cold. You saw me. Judge Perfilio instructed Juror Eight that if she was having trouble concentrating or keeping awake, she would “need to try to pay attention.” (Id. at 4.) :n conclusion, Judge Perfilio asked Juror Eight “Do you think you’ll have any trouble 37 with sides?” know, case this She or not? replied: “I I I feel don’t fairly deliberating mean, have any but trouble, (Id. it’s antsy sittir.g here so lcng.” after a while, both to as you at 6.) When questioned by Judge Perfilio about allegedly trying to Juror Eight responded that she had tried to say “hi to [a] friend.” (Id. at 3.) Judge Perfilio speak with someone courtroom, in the admonished her not to talk to anyone, as pure and clean of any possibl[e] in order to “keep the trial influence.” (Ibid.) (“Juror Judge Perfilio similarly voir dired juror numbers two Two”) and six closed. (“Juror Six”) , who had been observed with their eyes (Id. at 6—9.) Juror Two denied sleeping but said that “[i]t does get a little repetitious am nodding, but . . . I mean, I’m not going to say I’m trying to catoh myself.” (Id. at 7-8.) Six admitted: “You caught me and I have caught myself. you’re right, you’ve Judge seen me nod out reminded Jurors Perfilio where a juror could not little bit.” Two and Six of paying attention to the testimony. here a He stated: deliberate the Juror You know, (Id. at 9.) importance of “Once I had a case because they couldn’t remember some testimony because they fell asleep during the trial.” (Id. at 4.) The judge instructed jurors to raise their hands if (Id. at they could not hear or were having trouble concentrating. 7, 9—10, and 17.) 38 Following this first voir dire of Jurors Two, (“First Voir Dire”) Juror Eight. what she , and Eight’3 the prosecutor asked Judge Perfilio to excuse during testimony. (Id. caught, [Juror Eight] know what The State “[did not missed” Six, at Judge 11.) Perfilio again brought Jurors Two, Six, and Eight out for further voir dire (“Second Voir Dire”). (Id. at 14—17.’’) Each of these jurors stated that they heard all the testimony. (Id. at 15.) Juror Ultimately, Eight was designated as an alternate and did not contribute to any of the jury’s deliberations objected to how the 45; ECF No. appea. proceedings, findings. Defense court conducted voir dire. never counsel (ECF No. 8-28 did (See rot raise ECF No. the 1—2 Sleeping at 33.) Jurors Thus, Issue during during PCR the PCR court rejected the Sleeping Jurors :ssue as procedurally barred under New Jersey Rule of Court 3:224J5 No. at 8—10 at 15.) Petitioner direct or (ECF 8—10 at 10—12.) The PCR court nevertheless proceeded to address Judge Perfilio’s First Voir Dire of Jurors Two, Six, and Eight also included voir dire of juror number one for supposedly talking to a witness, as discussed in the next section of this Opinion, infra. (ECF No. 8—24 at 9-11.) 14 The Second Voir Dire also included Juror One, in addition to Jurors Two, Six, and Eight. (ECF No. 8—24 at 14—17.) 15 “Any around for relief not raised in the proceedings resulting in the convicticn, or in a post-conviction proceeding brought and decided prior to the adoption of this rule, or in any apeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds: that the ground for relief not previously asserted could not reasonably have been raised in any prior oroceeding.” New Jersey Rule of Court 3:22—4 (a) (1) ‘ 39 -- and reject The court did so under the Issue’s merits. the -- (Id. at 11—13; ECF Division affirmed, substantially rubric of IAC rather than the Sixth Amendment. No. 8—15 at 5—6.) The Appellate The Sleeping Jurors will Issue procedurally defaulted and is, 8-15 at 7.) (ECF No. for the reasons expressed by the PCR court. denied be it because is without merit. in any event, First, as to procedural default, a federal court may not grant habeas relief if the state court’s decision rests on a prisoner’s 392 F.3d violation of a state procedural rule. Johnson v. Pinohak, 551, 556 (3d Cir. 2004) . This procedural bar applies only when the state rule is “independent of the federal question [presented] and adequate to 357, 365—66 196, 199 (3d Cir. support (3d Cir. (3d Cir. 1999) as a v. 2007)); McCandless v. Frank, Vaughn, 488 in external to 187, 260 petitioner “cause” to excuse the default and actual “prejudice” unless: claims the alleged violation of failure that at 366 (citing Lines v. Larkins, “cause” F.3d 172 F.3d 255, to (1) federal law; or consider the claim result in a fundamental “miscarriage of justice.” Leyva, v. F.3d the demonstrates Coleman 504 Williams, v. Leyva (citing Nara 2007) defaulted result of prisoner judgment.” Federal courts may not consider the merits of such . procedurally establishes the Thompson, 501 208 F.3d 153, u.s. this context, the petitioner 722, 750 that 40 cannot 504 the will F.3d 166 (3d Cir. 2000)); (1991) circumstance the (2) . must fairly be To demonstrate be something attributed to him. Leyva, (internal citations omitted). 504 F.3d at 366 “[T]he existence of cause for a procedural default must ordinarily turn on whether external to the prisoner the defense can impeded rule.” . . . objective some that show to efforts comply with the U.S. 478, 488 477 State’s procedural (1986). To demonstrate fundanental miscarriage of justice in this context, a New of No. 16—5705, (citing Cabrera Egipciaco v. Feb. 25, (D.N.J. 30, 4451440, No. David 2017) “actual innocence.” 175 v. See, at *11 F.3d 307, 12—4718, an is adequate and It is clearly established and rule. New Jersey. Barbo, v. Warren, 2015)); Nov, WL 2019 3:22_45 Court independent state procedural regularly followed in show (internal citation omitted) Rule Jersey v. typically must petitioner 504 1. 3d at 366 Leyva, Murray Carrier, factor e.g., Hamilton (D.N.J. 313 (3d Cir. 2015 tC 790108, D’Ilio, No. (citing Cabrera, 2017 Sept. WL v. 17, Nogan, 2019) 1999) at *3_4 5951702, and (D.N.J. at *9 175 F.3d 307). “Any ground for relief not raised in the proceedings resulting in the conviction, or in a post-conviction proceeding brought and decided prior to the adoption of this rule, or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds: (1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (2) that enforcement of the bar to precude claims, including one for ir.effective assistance of counsel, would result in fundamental injustice; or (3) that denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey.” N.J. Ct. R. 3:22—4. 16 41 Petitioner raised having not the Jurors Sleeping on Issue and the PCR court having rejected it on that basis, direct appeal, therefore, procedurally defaulted. The state court’s the :ssue is, decision plainly states that an independent and adequate state law ground bars that 562 U.s. Martin, See Coleman, Issue. 307, (2011). 316 at 50: U.S. 737; Walker v. Petitioner has not In addition, shown cause and prejudice, or a fundamental miscarriage of justice, to excuse his procedural default. his traverse, Petition, See Coleman, 501 U.S. at 737. and supporting materials, In Petitioner has not demonstrated: that his violation of N.J. Ct. R. 3:22-4 resulted from factors beyond his with efforts respect control; to claim; his (ECE Nos. innocence of the crimes. external an actual impeded his factor or prejudice; 1 and 1—2.) See Leyva, actual 504 F.3d at 366. Sleeping The Issue Jurors denied is as procedurally defaulted. This Court’s discussion of that Issue will, the consider fact that the Division Appellate however, affirmed further PCR the court’s alternative bases for the Sleeping Jurors Issue ruling i.e., (1) EC? No. state procedural default; 8—10 at court’s analysis, 10—11.) alternate however, This and (2) failure on the merits. Court will, merits—based therefore, rationale. address The (See the further does not alter the result for Petitioner. 42 —— With deprived was Petitioner whether to respect a of constitutional right as a result of purportedly sleeping jurors, States United “[t]he review court’s into . . cririnal a . decidedly limited enterprise, disrupt the finality of the No. 2009 WL 3271370, 07—370, Tanner United States, ti. that juror the and trial that at *4 MacFarland, 2005) . No. at *7 States (D.N.J. Oct. Del. Oct. . 9, seriously . Phelps, (quoting 2009) (1987)) 120 107, ignored prej udiced . “Sleeping is 2005), aff’d, 2005 WI 1828660, at by 304 F’. see omitted); *7 of portion the juror’s the 2005 WL App’x 135 (3d Gaston v. 05-cr-67, No. Sheika, v. 7, essential an was citations 04—1168, [a] llegations of process.’” Durham v. CD. a and a defendant must demonstrate both defendant the (internal 2008) Cir. question United misconduct.” 2562969, in [trial] 483 U.S. a form of jury misconduct, ‘ or inattentiveness incompetency, juror misconduct, is deliberations jury’s primarily because ‘ federal ‘a that opined has Court Supreme also (D.N.J. July 29, A sleeping juror should be recved if the sleep has made it “‘i.possible or that juror to perform his or her duties or would otherwise 1828660, deny at *7 the defendant (citation a fair omitted). trial.’” However, Gaston, “[a] 2005 WL defendant’s ‘general assertion that jurors slept through parts of the critical presentation of the defendant’s evidence and cross examination are too vague to establish urejudice.’” Id. 43 (citation omitted) . Under these well—established principles, the Sleeping Jurors Issue fails on the merits for two reasons. First, Six either of the and counsel, judge, that in fact, case. party’s unconfirmed and inconsistent the among elements or Two, Eight, Jurors showr. that substantive through Slept Given Petitioner has not asleep, [the juror] was, as opposed to daydreaming or concentrating with eyes shut, would have significantly strengthened the argument that a hearing was warranted.” See Ciaprazi v. 62, (2d Cir. 64 Eight were 2005) . sleecing, 151 F. App’x Senkowski, Six, or that it Even if one or more of Jurors Two, Petitioner has not demonstrated occurred during a portion of trial essential to constitutionally adequate deliberations. revolves Issue around three day all, if not Much, of the of the Sleeping Jurors trial. following The (1) LaRenda Pridgen—Parrish, a Quick witnesses testified that day: Chek employee who had been working the night of the robbery No. 8—23 at 76—91) ; Quick Chek Robbery (2) Sergeant Harry Capko, who responded to the scene (id. at 91—112) ; (3) Officer Paulette Simmons, who also responded to the Quick Chek Robbery (id. 31; (4) Officer Barry Cohen, Marano, who Stopped Vehicle. assisted (Id. at 2; at 112— who had been on patrol on April 28 and sighted The StopDed Vehicle Frank (ECF (Id. Officers ECF No. 44 at 132—45); and DiGena 8—17 at and (5) Sergeant Coleman 28—29.) The at The record suggests each witness examination of that did encompass certain lines of questioning that were not dispositive as to guilt. a if Even (Officer Sinunons’ s law enforcement history) .) id. at 112 history) ; (establishing Sergeant Capko’s employment 9—23 at 92 SC? No. e.g., juror (See, sleeping been had times, those at he she or ultimately received relevant and dispositive robbery evidence for Petitioner has not demonstrated otherwise. deliberations. This situation is not so significant as to deprive Petitioner at *7; Morfiah v. 2016); Burns v. Cir. 26 (D.N.J. 667 F. City of Philadelphia, Mar. 22, Warren, No. 13—1929, App’x 782, 2016 WL 1117946, this Underscoring 2016). 2005 Wi 1828660, Gaston, See, e.g., of his right to a fair trial. 784 (3d at *25_ the is conclusion fact that Judge Perfilio tcok extra care as to the three subject at *3 2196669, v. Smith, (N.J. Super. Ct. App. Div. June 18, 2012). 8—24 ECE No. 2—3; United States v. Pa. Aug. cases) 5, See State 1993 Wi 303286, 92—0592, 27 aff’d, . . . E’.3d 560 evidence portions (SC? No. eyes” Appellate Division’s Court No. Ortiz, 1993) and 17.) 2—10 at (3d Cir. 1:994) 8—15 at 2012 WL See also at *2 (E.D. (collecting The generalized claim of jurors “nodding off a little bit” . with “closed direct SC? No. 8—10 at 13; (SC? No. as described above. jurors, that as does not undermine the factual determination about the of the trial.” presumes, 1—2 at 16) it juror actually See Smith, must, that 45 slept “the absence of through 2012 WL 2196669, the state court at critical *4 This determined jurors that correctly at sleep not did trial. U.S.C. 28 § 2254 (e) (1) the Second, state court’s decision how on address to the Sleeping Jurors :ssue was not contrary to any federal precedent. Petitioner has not cited, and this Court has not found, supreme States court decision that either: into every instance of juror misconduct; judge must inquire or extent; further determines about that an mandates inquiry delineates when a trial juror misconduct, an any United allegedly and sleeping what to juror’s deliberation is per se unconstitutionally violative of the right to fair trial. Rather, trial courts enjoy “considerable discretion in deciding how to handle a sleeping juror.” See Freitag, 230 F.3d at 1023. Ground Five is denied to the extent it relies on the Sleeping Jurors Issue. 2. Fair Trial Claim: Outside Influence Issue Judge Perfilio received infornaticn on the third day of trial juror number one that (“Juror One”) “may have been speaking to [and laughing with] the witness, the police officer [Simmons,] was doing a sidebar conference.” while [the court] at 2; see also ECF No. 8—23 at 117—18; ECF No. (ECF No. 1—2 at 24.) . 8-24 Judge Perfilio voir dired Juror One “to make sure we know what is going on” (ECF No. 8—24 at 2): 46 [D]uring the course of one of ours COURT: sidebar conferences, it was noted by one of the court staff that it looked like you were speaking to the police officer witness. JUROR ONE: No. any under You Okay. COURT: cannot circumstances communicate with the witnesses, even a nod cr a hi or any of that. JUROR ONE: I did nod to one of them. I can tell you, forget who it was. I know I did nod to someone like a smile to the person. COURT: The only thing is we’re trying to keep the integrity of the trial on that basis, that you’re net a buddy to anyone. You’re here to listen to the witnesses, make a judgment about what you think about them, and that’s all I want to bring to your attention. JUROR ONE: I’m a reflexive smiler. That’s why I’ll be aware of it in the future. Sure. COURT: Just try to keep that in control. You seem like a very gregarious person and that’s the with that can’t but you fine, do witnesses, okay? JUROR ONE: (ECF’ No. Okay. 8—24 at 9—ll.)’ To the extent Petitioner’s § 2254 Petition seeks to allege that Juror One was among the allegedly sleeping jurors (see EC No. 1—2 at 16—18 and 25), this Court notes that Judge Perfilio also took corrective action as to Juror One on the issue of purported juror sleeping. During the court’s Second Voir Dire (see £CE’ No. 8—24 at 14—17), Juror One stated: “I have to admit I didn’t see everything when the pictures were up here, but I’m assuring that we’ll have an opportunity to look at those later?” (Id. at 15.) Juror One asked whether he would be able to look at the photographic evidence. (Ed. at 17.) Judge Perfilio assured him that he would. (Ibid.) 17 47 rejected the Outside The 8CR court “rests it that (ECE discreticn.” on squarely 8—10 No. one.” number juror to trial judge’s POR Petitioner’s issue was “The addressed by and a proper instruction was the trial judge and handled properly, given the of (construing 14 8CR judge explained; The ) . finding argument as ineffective assistance of petition as “framing th[e] counsel) Issue, issue the at Influence Appellate The (Ibid.) Division substantially on the basis of the 8CR court’s “thorough” affirmed, written opinion. (ECF No. 8-15 at 2 and 7.) The Outside Influence Issue does not merit habeas relief. The Sixth Amendment guarantees every criminal defendant “the right to a v:. . . . Complementing this right jury if a whether the impartial to is indifferent Amendment.” Morgan v. v. Maxwell, 459 A.2d 641 384 U.S. (N.J. :n a criminal during trial about (1954) . the it, extent the 362 (1966) . jury commanded 727 of must stand the Sixth by (1992); Sheppard See also state v. Williams, 1983). case, any private communication with a juror the matter pending before presumptively prejudicial. 229 to requires regardless defendant, the Illinois, 504 U.S. 719, 333, Due Fourteenth Amendment’s the provided Amendment Sixth and be are amend. Those safeguards have “long demanded Process Clause protections. that, Cor.st. by an impartial jury.” U.S. trial[ Remmer v. the jury is deemed United States, 347 U.S. 227, The burden rests on the government to establish after 48 hearing U.S. that an ex parte juror situaticn . from every communication . . Remmer, the Court (1983), a with 347 may juror be a in comprcmising potentially [because] it is virtually impossible to shield jurors 217 influence or contact 209, placed been has their vote.” Rushen, 455 U.S. 114 U.S. 464 Spain, harmless. was contact “[T]he constitution does not require a new trial every harmless. a such that In Rushen v. 229. at recognized time notice and that might affect Phillips, (quoting Smith v. 118 at 464 U.S. theoretically (1982)). In Petitioner’s case, the trial court conducted a voir dire counsel. in the presence of both parties’ Juror One flatly denied having any conversation at all with Officer Simmons, much less a conversation regarding any “matter pending before the jury.” See 347 U.S. Rammer, (ECE No. at 229. 8—24 at 9—li (Juror One stated that he only “nodded” to the witness merely because Juror One was instinctively a “reflexive smiler”) .) Federal appellate apply courts the of abuse discretion standard when reviewing decisions as to how to proceed in response to allegations of juror misconduct. 147 F.3d 112, is in a (3d Cir. 2019). superior position to observe Voir Dire 690 the mood Fattah, 914 ‘the trial court “This is so because predilections of the jury.’” Ibid. 3 F.3d 684, United States v. at trial and the (citing United States v.Resko, (3d Cir. 1993)). Juror One’s response at the Second satisfied the trial court 49 that the juror had not conversed with Officer Simmons about a matter pending before the jury in a manner that; him an court’s impartial rejection unfairly prejudiced Petitioner; jury. of (See the XE’ No. Outside 8—24 at Influence 9—11.) or denied an not was Issue state The unreasonable application of clearly established federal law. Of further note is the fact that Judge Perfilio found Juror One could fairly deliberate, and he admonished Juror One against visual or verbal interaction with witnesses as trial went forward. Juror One readily agreed to refraining from innocuous “nodding” to witnesses for the remainder of the trial. (ECF No. The Appellate Division found that “a proper 8—24 at 9—11.) instruction was given to [J]uror [O]ne.” (ECF No. 8—10 at 14.) Nothing in the record suggests that Juror One transgressed Judge Perfillo’s directive. This Court Appellate finds that Division Issue ruling. to it was objectively reasonable fcr the affirm Judge Perfilio’s Outside Petitioner has not demonstrated that: Influence Juror One was unable to render an impartial verdict based only on the evidence and the court’s instructions; or the supposed interaction between Juror One and Officer “matter pending before Simmons during the the jury.” sidebar related to any see Remmer, 347 U.S. at 229. This Court sees no evidence in the record suggesting that it did. Ground Five is denied to the extent it relies on the Outside Influence Issue. 50 3. Fair Trial Claim: Comment Issue Petitioner argues improper comments: (1) witnesses are critical” that Judge Perfilio made the following telling Juror Eight that “only some of the (ECF No. 1—2 at 18); and (2) telling the jury that the judge himself “had been nodding off during the course of this trial,” which Petitioner contends “condoned] the court.” sleeping in (ibid.) At trial, Judge Perfilio told Juror Eight during voir dire: :f you’ re having trouble concentrating or if something is boring, keeping awake, sometimes it is, don’t get me wrong, I nod off occasionally in these cases, but we need to try to pay attention because some of the witnesses are critical. Once I had a case where a juror could not deliberate because they couldn’t remember some of the testimony because they fell asleep during the trial. So, that’s all I’m trying to protect [——] the validity of the trial . (ECF N . 8—24 at 4 . (“Juror Eight Comment”) Judge Perfilio similarly told Juror Two: If you’re having trouble concentrating, raise your hand so I can try to move it along. The problem is if people fall asleep, that’s what I was saying before, we once had a case here where one of the jurors did nod off probably more other than others, and as a consequence that juror when it came time to deliberatEd couldn’t remember half of the testimony. So that’s what’s important for us, to make sure, [I]f guarantee the integrity of the trial. you’re having trouble, let me know. I oan give you a break or give everyone a break, get some coffee, or something like that. (ECF No. 8-24 at 7 (“Juror Two Comment”).) 51 Judge Perfilio analogously told Juror Six during voir dire; I’m bringing people out I seem to notice who are having a little problem concentrating or staying awake, and we had a situation like this once before in a jury trial where one of the jurors apparently had nodded more than the others and went in to deliberate and couldn’t deliberate because they couldn’t remember the trouble having [I]f you’re testimony concentrating, raise your hand and I’ll give you a break. . (Id. . . (“Juror Six Comment”).) at 8—9 ruling: “This Court The PCR court rejected the Comment Issue, does not find these comments made to the jurors individually were improper served as a reminder for each of th[e] to stay awake and pay attention without embarrassing any [jurorsj of [The comments] ... them.” 8—10 No. (ECF at 16.) Petitioner Comment Issue during appeal of PCR denial. Jurors Six, Two, raise not the See Black 2016 at *2; (on appeal of PCR denial, Petitioner challenged ECF No. 8—15 at 6—7 the did and Eight Comments as IAC, fair trial, not claims) This Court finds Comment the that state prisoner applying for federal court must first “exhaust[] courts of the State,” unless a writ of 28 “there U.S.C. 52 only corpus habeas in the remedies available in the is an absence State corrective process or circumstances exist process ineffective not is in any event. unexhausted but also without merit, A Issue § 2254(b) (1). that of available render such See also Rose v. Lundy, 506, 455 513 u.s. 515 509, (1982); Blackwell, Lambert v. cart. denied, 532 u.s. (3d Cir. 1997), 919 (2001) 134 F.3d (finding that “Supreme Court precedent and the AEDEA mandate that prior to determining the whether merits [cetiticner] unexhausted claims [a] is required the to [a petition, of courtj present to courts”). Lstate’sj must or [his The consider her] exhaustion requirement is intended to allow state courts the first opportunity to pass upon federal constitutional claims, policies u.s. 129 of comity and (1987); Rose, federalism. 455 U.S. in furtherance of the Cranberry See v. Greer, at 516—18. Exhaustion also has the practical effect of permitting development of a complete record in state court, See Rose, 455 U.S. 481 factual to aid the federal courts in their review. at 519. A petitioner exhausts state remedies by presenting his federal constitutional claims to each level of the state courts empowered to hear those claims, either on direct appeal or in collateral post-conviction proceedings. Boerckel, 526 u.s. 838, 847 (1999) See, e.g., O’sullivan v. (“requiring state prisoners [in order to fully exhaust their claims] to file petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State”) 134 E.3d 506, 513 (3d Cir. 997); ; 28 U.S.C. L•ambert v. § 2254(c) Biackweli, (“An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, 53 within the meaning of this if he has the right under the law of the State to section, raise, by any available procedure, the question presented”) Once a petitioner’s federal claims have been fairly presented to exhaustion is satisfied. the state’s highest court, v. 489 U.S. Peoples, 270, 275 (1971). (1989); 350 346, Picard v. the Comment trial judge (FCF No. 404 U.S. Issue See Toulson v. Bayer, 1993) (3d Cir. 987 The Conncr, The petitioner generally bears the burden to prove all facts establishing exhaustion. 987 F.2d 984, See Castille in Ground remarks argument Five’s he Claim Fair Trial raised in his 1—2 at 18; Black 2016 at *2; ECF No. raises PCR petition. 8—10 at 16.) However, Petitioner did not appeal the Comment Issue as a fair trial claim and he did not seek certification from to the Appellate Division, the New Jersey Supreme Court. (See ECF No. 8—15 at 6—7.) Therefore, the Cornnent Issue appear- -jn exhausted. To the extent that the Comment in Ground Issue Five’s Fair Trial Claim was not fairly presented to all levels of state court and is thus unexhausted, this Court the merits under 28 U.S.C. F.3d 728 416, 427 (3d Cir. (3d Cir. 20C5) on the merits, can nevertheless deny it on § 2254(b) (2). 2007); Bronshtein This Court is See Taylor v. V. Horn, 404 Horn, 504 F.3d 700, free to der.y the Comment :ssue and the Court does so for the following reasons. Petitioner challenges the Jurors Two, Six, and as “improper instruct[ions]” to the jurors. 54 Eight Comments (ECF No. 1—2 at 18.) how matter No of allegations frames Petitioner reviewable not are and thus violated a petitioner’s due process rights. See also Pulley v. at 72—73. U.S. habeas fundamentally unfair proceeding; the error resulted in a unless: however, matter, improprieties trial state the 37, 465 U.S. Harris, 502 Estelle, 41 (1984). Petitioner has not made the requisite constitutional showing fundamental of Six, Two, Eight and here. unfairness Comments charges to the entire jury. 4—9.) a The Jurors Two, reminder for each Six, of awake and pay attention, No. 16.) 8—10 at before (ECF No. made Perfilio the the final court’s ECF No. 8—10 at 16; and Eight Comments “served , that 8—24 at as stay without embarrassing any of them.” (ECF jury charges as a [three particular Perfilio’s jurors] (see ECF reveals that he did not, as Petitioner alleges, condone juror sleeping. jurors detailed to the[] A review of Judge No. 8—28 at 1—49) Jurors [merely] including his preliminary and final instructions whole, the Judge Rather, they were instructed all of Judge Perfilio: to pay all attention to the evidence because they were the triers of the facts; and deemed critical the testimony of all witnesses. (See, e.g., 8-20 at 5 and 8; ECF No. the most important function [of the “A lot of judges say really is listening to the evidence, and I think you jury] paid very strict attention to the evidence, which we all appreciate [L]et me express my thanks and appreciation for you attention You and you alone are the sole and exclusive judges in the case of the evidence, of the credibility of the witnesses, and the You are judges weight to be attached to the testimony of each of the facts” (ECF’ No. 8—28 at 3—4, 9, and 42.) 18 ... . . . . . . . 55 . . must you facts, 3—4, at 8—21 ECF No. 10 (“Since attention close pay sole the you’re testimony. the to the of judges It’s important that you carry with you into the jury room not only a recollection clear was testimony the what of also but It will be your recollection of the manner in which it was given. duty to pay careful attention to all of the testimony”), ECF No. a and 14; (“[I]t really is your recollection of the facts 8—28 at 10 that really counts in the case”) evident the that record this Reviewing Jurors a as whole Six, Two, and prejudicially impact the trial’s overall served as The Conents Comments construe the jurors’ attention; as: and it Eight Comments is to Jurors and pay attention. It is acknowledging the trying simultaneously underscoring the to put not did fairness to Petitioner. reminders individual stay awake to and Eight abundantly then, Six, reasonable demands at jurors wo, to placed upon while ease their attention. significance of It is absurd to claim that those comments prejudiced Petitioner or changed outcome the indispensability Perfilio’s challenges of passing of at trial. jurors’ references uninterrupted They attention to himself attention during having during acknowledged the human side of jury service. to think, as Petitioner suggests, that emphasized simply trial. the Judge experienced the trial merely It strains credulity Judge Perfilio condoned sleeping. ?urrhermore, viewed in an objectively reasonable manner, 56 Judge Perfilio’s use of “some” with respect to witness significance was conversational, not literal. No. 8—21 at 3—4, 10, and 14; (See FOP No. ECF No. 8-20 at 5 and 8; FOP 8—28 at 10.) Ground Five is denied to the extent it relies on the Comment Issue. 4. Fair Trial Claim: Gesture Issue Petitioner argues that the made “some sort of a gesture to [J]uror trial judge [J]uror [E]ight when he noticed [E]ight talking with another juror.” During Judge Perfilio’s voir unconstitutionally dire of (FOP No. Juror 1—2 at 18.) Eight, following exchange occurred on the record: COURT: I’m just concerned about [you hearing everything that is going on] Also I noticed at one point while there was a witness on the stand you were talking to the one person next to you. . JUROR EIGHT: You saw me. I said I was cold. COURT: Okay. Because you looked at me, like that, with a smile. It was cold. (ECF No. I went 8—24 at 3.) The POR judge, “[i]n looking at the [trial] transcript,” rejected the Gesture Issue: [T]here is no evidence of impropriety. The trial judge simply acknowledged that a juror was cold in the courtroom [T]he trial judge acknowledging the temperature of the courtroom and smiling is not outside the normal bounds of behavior and does not in any way violate [the] impartiality mandate [of] State v. Ray, 43 N.J. 19, 25 (1964). . . . . 57 . . the 8—10 No. (ECF at Petitioner’s 16—17.) the trial judge’s but does not specifically describe, challenges, and even made some sort (“it appears that the trial judge smiled, of a gesture, N]umber [J]uror to 1—2 at 36 (ECE No. alleged gesture during Juror Eight’s voir dire. again Petition 2254 § [E]ight”) .) This Court finds the state court’s ruling on the Gesture Issue to reasonable. objectively be in anything that record the has Petitioner demonstrates not identified Judge Perfilio’s purported gesture was so prejudicial that it violated due process. There gesture was temperature. the in nothing is anything (See iCE record 8—24 No. at cannot It 3.) challenged the acknowledgment than more that suggesting of courtrocm reasonably be construed as conveying to the jury that the judge was partial to the case. State’s the Although impression jury’s not and the judge’s actual motivation is what matters for this Court’s inquiry, the Court is that, confident considered when in context, the alleged gesture was superficial and meaningless in terms of trial constitutionality. record indicating gesture: indicating (1) could bias in Petitioner the that be of See identify anything not non—verbal construed favor overstepped propriety. does the Glenn, 58 by and State’s 743 temperature—related jury the case, F.3d in the at as or 407; a statement (2) otherwise Rornano, 512 U.S. 12—13. at The Appellate Division’s ruling as to the Gesture Issue was not inconsistent with any Supreme Court precedent. Ground ?ive is denied to the extent it relies on the Cc ent Issue. 5. Fair Trial Claim: Attention Issue Petitioner argues that Judge Perfilio “admitted on the record he that had [Petitioner’s] been also nodding (ECF No. trial.” 1—2 course of Petitioner does not the during off at 18.) identify any portion of the trial transcript at which he alleges the trial judge in fact dosed off. (Ibid.) Judge Perfilio told her: During voir dire of Juror Eight, COURT: If you’re having trouble concentrating [let me if :<eeping awake, you could or [I]f Know] .] :‘ll try and keep an eye[.] we’re bothering you, if something is boring, sometimes it is, don’t get me wrong, I nod off occasionally in these cases, but we need to try to pay attention because sone of the witnesses are critical . (ECF No. 8—24 at 4.) In a colloquy with defense counsel and the prosecutor outside the jury’s presence regarding jury attentiveness, stated: “[I]t session the seven. I (ECF No. was did only too, seem one so to who I the was can’t court nodding tell. 8—24 at 91.) 59 I [during] a little think she Judge Perfilio this more was afternoon’s was number listening.” The PCR court found “no evidence of the trial judge actually proceedings.” sleeping during the 8—10 (ECF No. at 17.) Rather, Judge Perfilio’s “own comment about perhaps nodding off in cases’ when speaking with ability to [counsel] attention pay judge the by PCR judge. points no to ‘I [that 8—15 (nodding) was only that other (Ibid.) (ECF No. indication that at (“This 6—7 not does too’] the with The Appellate judge was the losing her conversation a during without the jury being present.” indicate that he was asleep, Defendant again and Division agreed with the statement was said as part of his [Eight] said juror who may have been voir dire of additional :J]uror ‘these ‘nodding.” judge was not alert or was not in control of the proceedings at all times”).) This Court’s careful review of the record indicates that Petitioner’s Attention Issue is at odds with the trial transcripts. Nothing in the record suggests, much less demonstrates, that Judge Perfilio was actually dozing or otherwise inattentive during any portion of Petitioner’s raised at sidebars 63—68; ECF No. (see, trial. e.g., Rather, ECF No. 8—25 at 33 and 50—52; ruled on objections made by counsel 52—53; ECF No. No. 8—25 at 8—23 at 30, 73—74, 113—14, and 117); 76, (3) 80, 55, 59, ruled on 8—22 at 47; ECF No. ECF No. (see, 108—09, and 108; (1) he: 8-23 at 8—25 at 109—12); e.g., 117—18, ECF No. issues 8—27 ECF No. (2) 8-22 at and 121—22; ECE at 58—59, 103, interjected to clarify issues that the Judge himself identified in counsel’s questioning or witnesses’ 60 answers (see, 72, 8—23 at ECF No. e.g., 17, 8—25 at 14, 193—94 and 230—31; ECF No. and 75—76, on counsel’s requests for clarifications evidence, into documents move 8—27 at 47—48) ECE No. at 53—55; publish properly identify them for the record 44, ECF No. 239; 27 (see, testimony and ruled on the e.g., ECE’ No. directed witnesses (7) hear 8—25 at 26—28 and 43; (6) 22); at (see, 25 at 5, 9, ECF No. e.g., 13, 18, Collectively 20, EC? No. admission (4) ruled ECF No. of the 8—25 177, 218—19, 187, each expert ECF No. and 8— witness’s 8—26 at 29); for and 211; jurors to ECF No. 8— 8—26 at 18) occurrences these 8-23 at 8—26 at 42; ECE NO. 182, ECF No. and jury, ECF No. speak loudly enough and 47; considered, e.g., e.g., 8—25 at 15—16; to and 48); for them (see, 8—24 at 168—69, 22, (see, 8—24 at 169—73, and 103; ECE’ No. 98, 54, 24, 8—24 at responded to all requests to (5) ; ECF No. 124; in the trial record convince this Court that Petitioner’s Attention :ssue is a frivolous and superfluous claim not warranting further discussion. Perfilio was not only present and engaged at trial, Judge also actively and aprcriate1y guided the proceedings jurors could hear Appellate Division and see evidence reasonably as it determined, was to ensure presented. Petitioner but he As the “has not shown any actions or inaction by the trial judge deprived him of a fair trial.” :fl short, (ECF No. 8—10 at 17.) Petitioner has not demonstrated that the state court judge’s level of attentiveness at trial “deprived 61 [Petitioner] of fundamental elements of fairness in his criminal trial, 743 F.3d at 407, see Glenn, or “was so prejudicial that it rendered the trial see Rornano, fundamentally unfair, 512 U.S. at 12—13. Ground Five is denied to the extent it relies on the patently frivolous Attention Issue. 6. IAC Claim: Voir Dire Issue And Removal Issue (1) not after the 19, 25, Petitioner argues that trial counsel rendered IAC by: additional seeking voir dire of Jurors First Voir Dire and Second Voir Dire and 32’s) (“Voir Dire Issue”); and (2) and One (ECF No. Eight 1—2 at 16, failing to seek the removal of Juror One for purportedly speaking with a trial witness. No. 1—2 at 19, 25, and 32 related underlying facts, (“Removal Issue”) . ) (ECF Given their inter the Court considers the merits of these two issues together. incorporates here its detailed descriptions supra The Court of the record trial regarding 8—24 at 1—17; (See ECF No. the ECF No. First and Second Voir Dires. 8—10 at 14—15.) “[Jiuror [D]ne was speaking and laughing with police officer [trial witness) Paulette Simmons during one of the sidebar [C]ounsel was ineffective for not requesting that conferences the trial court further voir dire [J]uror [One], and possibly the entire jury panel, to determine whether the jurors were tainted [A:t a minimum, [Juror Eight’s] eyes were closed during some [T]rial counsel was totally ineffective for of the testimony not see:<ing additional voir dire.” (ECF No. 1—2 at 16, 25, and 32.) . . . ... 62 The found court PCR the Voir Dire and Removal Issue Issue were precluded by N.J. Ct. R. 3:22-4 (a) but nonetheless considered their merits. (ECF No. rejected Issues both deficient 8—10 at 11—12, prong performance federal precedent. (Id. at an for failed had Petitioner because The PCR judge and 19.) 15, claim :AO to under the show governing The Appellate Division affirmed, :2.) (ECF No. for the reasons expressed by the 9CR judge. 8-15 at 7.) finds that the Voir Dire :ssue and Removal Issue This Court fail on the merits. To set forth a claim under Strickland, a petitioner must first show that “counsel’s performance was deficient. This requires petitioner counsel to was show] on an IAC as Strickland, 493 F.3d 292, Shedrick, a claim, 466 U.S. 299 (3d Cir. 2007). show also must petitioner also see 687; at serious guaranteed ‘counsel’ the so errors made counsel functioning not Sixth Amendment.” States v. that [the that that by the United To succeed counsel’s allegedly deficient performance prejudiced his defense such that the petitioner was “deprive[d] of a fair trial reliable.” Strickland, attorney performance assistance.’” Jacobs v. Even where representation a was . 466 U.S. at 687; Shedrick, in evaluating whether counsel was deficient, for . is Horn, petitioner that cf deficient, 63 able a 493 F.3d at 299. the “proper standard ‘reasonably 395 F.3d 92, is whose result is . to 102 (3d Cir. show petitioner that effective 2005). counsel’s must still prejudiced the defense. performance “It is not enough for the 692—93. at Id. deficient counsel’s that demonstrate affirmatively defendant to show that the errors had some conceivable effect on the of outcome that demonstrate probability Id. been have at 694; a is “there unprofessional counsel’s would proceeding.” the sufficient to probability, A probability reasonable undermine in confidence to satisfy either prong defeats an [lAO] for a is outcome.” the “Because failure 493 F.3d at 299. see also Shedrick, but proceeding the cf result the must petitioner A 693. at reasonable errors, different. Id. and because it is claim, preferable to avoid passing judgment on counsel’s performance when [Strickland, possible, 466 U.S. at 697—98],” courts should address the prejudice prcng first where it is dispositive of a petitioner’s caims. United States v. United States, Judge v. 308 F.3d 308, Cross, 119 F. (3d Cir. 315 (D.N.J. 280—81 Sup. 3d 270, 2002); 2015) Finally, when a federal habeas petition under § 2254 is based upon an assistance ineffective of claim, counsel “[t]he pivotal question is whether the state court’s application of the Strickland was standard whether unreasonable,” defense Grant standard.” (quoting 2254 (d) (1) different counsel’s v. , “an from 562 U.S. unreasonable an 709 incorrect F.3d at different “is performance Lockett, Harrington, which fell 224, of aplication 64 232 For 101). application below of from asking Strickland’s (3d Cir. purposes federal federal 2013) of law law.” § is Id. (internal quotation marks omitted) (emphases in original) . “A state court must be granted a deference and latitude that are not in operation Strickland when the standard case involves itself.” Id. Federal claims is thus “doubly deferential.” Id. S. Ct. 1403) at deferential “through . look the Federal at counsel’s deferential habeas (quoting Pinholster, 131 must of “take under 2254 (d) § review the IAC performance” lens under of courts habeas review [direct] .“ a highly Strickland, Id. (internal quotation marks and citations omitted) In Petitioner’s Division first case, correctly standard for IAC claims. v. 336 Washington, (N.J. 466 U.S. 1987); ECF No. PCR court both the set forth (ECF No. 668 governing the 8-10 at 8-10 (1984) and the Appellate (citing Strickland and State v. 8—15 at 3—4 (same).) constitutional Fritz, 519 A.2d The PCR judge then rejected the Voir Dire Issue’s contention that “counsel was per se ineffective for failing to seek additional voir dire regarding alleged jury misconduct.” The PCR court explained as follows: request [T]rial counsel did not need to additional voir dire of the jurors because it was requested by the prosecutor and performed by the court. The court twice voir dired the and jurors who allegedly were sleeping otherwise misbehaved. [N]one indicated an inability to fairly deliberate. Additionally, the judge took corrective measures to remedy any concerns. (EC? No. establish 8—10 a at prima 8—10, facie 12—14, case” 16, of 65 and lAO) 19 . ) (Petitioner The Appellate “fails to Division agreed that Petitioner had “failed to carry his burden” of showing Strickland’s first prong of counsel’s deficient performance. (Id. at 7.) PCR ccurt similarly rejected the Removal The Issue based or. Petitioner’ s failure to show the defective performance nrorg of an :AC claim. (ECF No. 8-10 at 15 and 19.) The PCR judge explained: The prosecutor wanted [J]uror [E]ight removed, but Petitioner’s trial counsel wanted her to curative the court’s citing to stay on, instructions to this juror and her perceived attentiveness to the issues. Therefore, not only was this issue addressed by the court, but trial counsel made a reasonable strategic decision to argue against [J]uror [E]ight’s removal. (là. at 15.) This Court 8—15 at 7.) (ECF No. The Appellate Division affirmed. finds that the state courts did not unreasonably apply clearly established law as determined by the United States Supreme Court. demonstrate PCR During Strickland’s prong did as not to the Petitioner has not done so on habeas either. Judge First performance deficient Voir Dire and Removal Issues. review, Petitioner proceedings, and Perfilio Second questioned each Voir evidence presentation Dires. or None juror separately during to admitted to talking with trial sleeping witnesses. the during Judge Perfilio determined that nothing improper had taken place, and he 13—14 (“None found no evidence of juror bias (Ed No. indicated an inability to fairly deliberate”) 66 8—10 . at ) Juror sleeping and juror removal are issues that rest “squarely in the trial judge’s discretion” (id. accordingly. In Judge misconduct juror alleged fact, not Perfilic did but thoroughly so Voir Petitioner’s Dire to demand that counsel essence, and Issue to the two e.g., -- (See ECF No. Issue Removal should have respond acted as only thorough voir dires and follow—up directives. 13.) to judge took measures and the 14), at 8—10 at in seek, a third voir sought dire. Nothing in the trial record suggests that such was warranted. it was objectively reasonable for trial Given these circumstances, counsel seek a third voir dire or to not seek removal of to not failure argument that juror[s] f[e]ll not seeking questioning further for performance expected “no the of reasonable of 8—10 at 14.) it cannot be said that counsel’s conduct For these reasons, in the outside (ECF No. counsel.” argue to was there Accordingly, jurors. suspect purportedly the a third voir dire or “an was removal error so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment.” See Strickland, 466 u.s. 687. at Petitioner has not shown that trial counsel’s representation “fell below an objective standard circumstances.” Jacobs v. Furthermore, Horn, deference reasonableness” 395 F.3d 92, 102 under (3d Cir. the 2005). counsel’s decision not to seek removal of Juror Eight was a strategic decision, great of on review, U.S. which: v. 67 (1) Dretke, is generally afforded 540 u.s. 668, 700—01 Strickland, (2005); 745, 750—54 perspective added) —— and at time,” as the PCR court did in this case. (“tria counsel against {J]uror In short, (emphasis 689 8-10 at 15 (ECF No. strategic reasonable a made from counsel’s at 466 U.S. Strickland, 463 u.s. Barnes, (2) must be “[elvaluat[ed] (1983); the Jones v. at 690—91; 466 U.S. argue to decision E]ight’s removal”).) Petitioner has not shown Strickland’s first prong. rulings on the Voir Dire Issue and Removal Issue The state courts’ or an unreasonable application of, were not contrary to, clearly established federal law, as determined by the Supreme Court of the United States. U.S.C. 28 See 2254(d)(l)—(2). § These issues in c-round Five’s Fair Trial Claim will be denied on the merits. 7. IAC Claim: Mistrial Issue Petitioner argues seeking a Outside Influence jurors.” mistrial” trial that based Issue; 1—2 at 37, (ECF No. the on: and counsel Sleeping “improper 41, 43, rendered IAC Jurors discussions “for not Issue; the between the and 50.) Petitioner based the Mistrial Issue during direct appeal upon “counsel[’s] not seeking a mistrial after an unanticipated break of several days in the trial due to a government shutdown following a scheduled holiday hiatus.” Division rejected his (ECF Nc. argument resulting demonstrable prejudice [shutdown occurrence.” (Id. at 7.) 68 7.) 8—15 at because flowing he The Appellate “point[ed from this to no state—wide During PCR proceedings, Petitioner raised the shutdown issue both as a claim of denial of fair trial by the trial judge and as (ECF No. 8—10 at 12 and 17—18.) The 9CR court rejected an IAC claim. perhaps three, his argument because “the interruptions added two, with (“Even ... delay[] government shutdown, for a few days 8—10 at 18 (ECE’ NO. days to the original projected trial length.” to due holiday the and it was well within the judge’s discretion to grant continuances and determine how trial should proceed”).) on claims process, Mistrial the juror trial, fair conflate Issue IAC, of: concepts misconduct, and habeas 9CR, Petitioner’s direct appeal, In other words, trial disjointed and due The Mistrial Issue is patently without habeas merit, proceedings. whether Petitioner frames it as an IAC or fair trial claim. First, an to the extent Petitioner raises the Mistrial Issue as lAO concept, fell below F.3d at he cannot an objective Judge 102. show that standard of Perfilio trial counsel’s performance reasonableness. acted promptly and Jacobs, 395 curative issued instructions as to the SleeDing Jurors Issue and Outside Influence Issue. As the Appellate Division noted, “a mistrial[,] within the sound discretion of the have been proper.” Juror No. Eight served as 8—10 at 15.) conclude (Ibid. that a [trial] court[,] . . . would not (internal citations omitted).) Moreover, an alternate and did not On these facts, mistrial a matter ... it argument 69 deliberate. (ECF is objectively reasonable to “would not have been proper” and stood little, 8—10 at 15) (ECF No. decision Counsel’s not that to make chance of success. if any, a was argument “reasonable strategic decision,” much :ike counsel’s decision on Juror Eight’s (See ECF No. removal. 8—10 at 15.) This “strategic decision” logic is equally determinative as to Petitioner’s criticism of appellate (See ECF No. counsel for not arguing mistrial. none issues these of are meritorious, 8-15 at 7 (“Because counsel was appellate not ineffective in choosing not to raise them on appeal”) to the extent Petitioner intends the Mistrial Issue Second, due a assert to fair or process claim trial arising from the government shutdown’s impact on trial, this Court will address his contention in the next section of this Opinion. See inifra regarding Ground Six. Petitioner has not shown that trial counsel’s conduct In sum, in falls shutdown-based mistrial a seeking not outside the wide range of reasonable professional assistance.” See Strickland, 466 reasonable for U.S. trial at 689. counsel calendar It would not to delay. been objectively simply a mistrial based pursue It have was not contrary to or on two an days of unreasonable application of Strickland and its progeny for the state courts to rule that Petitioner did not satisfy Strickland’s performance prong. Ground Five is denied in its entirety. 70 deficient F. Ground Six: Denial Of Due Process Based On Disjointed Trial Proceedings Ground contends Six Fourteenth Amendment right to due process denied was “Petitioner that of because his disjointed trial proceedings.” (ECF No. 1—2 at 33 (“Disjointed Trial Claim”).) Disjointed Trial Claim is a mirror Ground Six’s Five’s Mistrial Mistria Issue, to the Issue to assert a due process claim. 27, Trial occurred on June 26, on Monday, June 29, intends Petitioner extent the cf Ground image July 10, 2006. 28, (ECF Nos. and 29, 8-20 - 2006. 8-26.) It resumed On Thursday, Judge Perfilio stated that a possible government shutdown might necessitate a trial continuance. After the shutdown occurred, 8—26.) No. 8—29 at 6—8.) 8—25 at 116—18.) trial resumed on July 10, 2006. (ECF July 13, 2006. (ECF jury rendered its verdict on No. The (ECF No. This Court finds that Ground Six’s argument, both as asserted in the Mistrial Issue and the Disjointed Trial Claim, is without merit. The United States Supreme Court has held that a trial court has broad discretion as to continuances Ungar v. Slappy, Sarafite, 461 U.S. 1, 376 U.S. 11 589 575, (1983). in a (1964); criminal See see also Morris v. “The matter of traditionally within the discretion of the tria case. a continuance is judge who must be given wide latitude in arranging the court’s schedule.” Government 71 of the Virgin Islands v. 1997) in Charlesweii, (citation omitted) setting Berry, the 732 F. Accord Moore (D.N.J. App’x v. May 26, principles. and 127, format 132 No. 2006) Jersey (ECF No. New of (3d Cir. Hendricks, . 174 (3d Cir. “Trial courts possess broad discretion . schedule 115 F.3d 171, trial.” 2018) 04-2337, 8—10 at 18 law v. (citation omitted). 2006 is United States WL 1469987, . *9 with these consistent (citations omitted) at ) Trial court decisions as to continuances are an abuse of discretion “only when so arbitrary as to violate due process.” United States [they are] v. Khorozian, 333 F.3d 498, 507 (3d Cir. 2003). In this case, though, trial’s continuance was necessitated by It was not invoked as an exercise of the the government shutdown. trial judge’s discretion. Therefore, continuation of trial on July 10 was not Perfilio. an unconstitutional abuse of by Judge It was an unavoidable reality of government. If not for the summer of 2006 government shutdown, the trial 2006. July 4 is presumably would have continued on Monday, a discretion federal holiday, Furthermore, July 3, so trial would not have taken place that day. Judge Perfilio stated at trial’s June 26 outset that it would continue from its first week into July 5—6, following week. added two, [schedule] (ECF No. perhaps .“ 8—21 at 8.) three, (ECF No. Therefore, the shutdown “only additional days 8—10 at 18.) 2006 of the to the original trial To contend, as Petitioner does, that this purportedly “disjointed” trial schedule denied him due 72 process is uttery frivolous. He has not, for example, demonstrated how the shutdown’s impact precluded him from questioning witnesses or oresenting defenses. some jurors (id. at (See ECF No. “expressed a 35), but hardship 1—2 at 35—36.) He states that with the in continuing he does not demonstrate that trial” any juror was, in fact, unable or unavailable to fairly deliberate. He has not shown that the calendar shutdown’s “deprived addition [him] of two of to three fundamental to the days elements of trial fairness in his criminal trial.” See Glenn, 743 F.3d at 407. The patently frivolous Disjointed Trial Claim will be denied on the merits. G. Ground Seven: Cumulative Errors Ground Seven argues errors alleged constitutional in the rights. that § that the cumulative effect Petition 2254 (ECF No. rejected the 1—2 at denied 36 of the Petitioner his (“Cumulative Error Claim”) The PCR judge Cumulative Error only procedurally barred under New Jersey Rule but also without merit. identified by (ECF No. Petitioner showed 8—10 at “an 19 Claim as: of Court (none of the egregious not 3:22-4; errors injustice”) .) Petitioner did not raise the Cumulative Error Claim in his appeal of PCR denial or in Jersey Supreme Court. his petition (See ECF No. for certification to the New 8-15.) Petitioner thus failed to exhaust the Cumulative Error Claim. 73 See O’Sullivan, 984. subject Collins A cumulative to v. 533, 541 deny this at 838, 155 F.3d at 164; Lambert, Henderson, F.2d u.s. 526 the error exhaustion and 2014) unexhausted claim 2254(b) (2). See Taylor, 728 3d Cir. 2005) 504 on a Dep’t the u.s. 455 distinct procedural Nevertheless, . Rose, 134 F.3d at 513; claim is Sec’y of Pennsylvania (3d Cir. 845); Toulson, 742 F.3d at 427; under F.3d 528, and will, 28 Bronshtein, is doctrines. this Court may, merits 987 claim that default of Corr., 509; u.s.c. 404 § F.3d at “The cumulative error doctrine allows a petitioner to present a stand—alone claim asserting the cumulative effect of errors at trial so undermined the verdict as to constitute a denial constitutional right to due process.” 742 Collins, of his F.3d at 542. “Individual errors that do not entitle a petitioner to relief may do so when combined, if cumulatively the prejudice resulting from them undermined the fundamental fairness of his trial and denied him his constitutional right to due process.” Id. Horn, 516 F.3d 169, 205 (3d Cir. 2008)) . (quoting Fahy v. The test for a “cumulative error” claim is whether the overall deficiencies “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Muniz v. Powell, *15 (D.N.J. (citing Hem 917 (9th Cir. 2010) u.s. 637, 643 (1974)); Feb. 6, 2015) (relying on No. 13—178, v. 2015 WL 511618, Sullivan, Donnelly v. 74 601 F.3d 897, DeChristoforo, see also Fahy, 516 F.3d at 205 at 416 (“Cumulative errors are not harmless substantial and if they had a effect or influence in determining the jury’s verdict, that a habeas petitioner is not entitled cumulative errors unless he can establish injurious which means relief to based on ‘actual prejudice’”). Ground Seven’s Cumulative Error Claim is a mere redundancy of Grounds One through Six, merit habeas relief. as fully explained supra, which, Given that there is nc merit to the Petiticn’s claims for individual errors, is no basis for accumulation of errcrs Powell, No. Stewart v. (D.N.J. 13—178, United July 21, habeas relief that does 2015 WL 511618, States, No. premised exist. not at *15 12—346, 2254 § Grounds One through Six cannot yield a cumulative error claim in Ground Seven. there do not upon (D.N.J. WL an alleged Muniz v. e.g., See, 2Q14 In short, Feb. 6, 3573395, 2015); at *12 2014). Ground Seven will be denied in its entirety. H. Ground Eight: Fair Trial Claims, IAC Claims, Trial Claim, And Cumulative Error Claim Ground Eight is a mere re—statement of: Dire Issue, Removal Issue, and Mistrial Disjointed the IAC Claim’s Voir Issue (Ground Five) ; the Fair Trial Claim’s Sleeping Jurors Issue, Comment Issue, Attention Issue, and Gesture Issue (Ground Six) No. ; (Ground Five) ; the Disjointed Trial Claim and Cumulative Error Claim 1—2 at 37.) 75 (Ground Seven) . (See ECF As fully explained supra, warrant habeas relief. Grounds Therefore, Five through Seven do not Ground Eight does not yield a meritorious claim for habeas relief and will be denied. I. Ground Nine: Excessive Sentence Ground Nine argues that Petitioner’s sentence excessive. contends (ECF that No. Judge 1—2 at Perfilio Specifically, 37-40.) abused is manifestly Petitioner disoretion by: his imposing fourteen year terms on each robbery conviction; reauiring the tents to run consecutively to each other, term Petitioner was aggravating factors; At first sentencing, degree already as well as to the sixteen year serving; finding two and ignoring mitigating factors. Judge Perfilio merged the robbery and possession of a weapon purpose on each indictment. of three (ibid.) convictions for for an unlawful He imposed two consecutive fourteen- year terms subject to an eighty-five cercent parole discualifier pursuant to NERA. “aggravating and Black 2009 II at *1. factors substantially (3), (6), outweigh and Judge (9) clearly, nonexistent found multiple, persuasive similar the fact robberies within a convincingly,] mitigating there is a need to protect the public.” ibid. judge Perfilio found that that: short factors and In particular, the Petitioner committed period of time using the same methods against multiple victims; the Exxon robbery turned into a shooting that was particularly egregious. imposed two concurrent five-year 76 terms for Ibid. The judge each unlawful possession of a weapon conviction. Therefore, Petitioner was sentenced to an aggregate twenty-eight year term with an eightyfive percent NERA parole disqualifier. Ibid. The Appellate Division rejected the Excessive Sentence Claim during direct appeal, explaining as follows: From our careful review of the record, we conclude factors that the sentencing identified by the judge are supported by the evidence. factors The aggravating preponderate and justify imposition of a term closer to the top of the range. The sentence is in accord with the sentencing guidelines and of the based •on a proper weighing factors. The sentence does not shock our judicia conscience. . Black 2009 II at *7 Short of a claim that a sentence constitutes cruel and unusual punishment prohibited by the Eighth Amendment, or arbitrary or otherwise in violation of due process, that it is the legality and length of a sentence present questions of state law over which this Court has no jurisdiction under § 2254. Petitioner’s challenge to sentencing “for failure to properly weigh the aggravating and mitigating factors Bartkowski, No. 2014) . sentence 10—4972, Petitioner is is “has not reviewable 2014 WL 2602177, presented unconstitutional no in this See here.” at *21 cogent regard, Jenkins (D.N.J. June 11, argument other v. why than his general allegations that the sentencing court did not properly weigh the aggravating and mitigating factors.” 77 See id.; ECF No. 1 at 14. Moreover, “Petitioner’s is not sentence grossly disprooortionate to the crime he committed.” Id. Therefore, “ever if the Court were to read an Eighth Amendment argument into [Ground Nine], it would not state a violation of federal constitutional limitations.” Id. See also Chapman v. United States, v. 11—1137, Bart]cowski, 30, 2018), 29, 2018) No. reconsideration Petitioner’s aggregate 500 U.s. 2018 WL twenty—eight (1991) ; Gibbs *15 (EJ.N.J. Apr. 3201782 (D.N.J. June 2018 WL 2002786, denied, 465 453, at year sentence is not Rather, it was unconstitutional under the governing standards. First, supported terrible this sentence Judge by risk, was Perfilio’s after having not arbitrary. determinations committed three that: “there robberies, that would commit another one”; “shooting the Exxon station guy a particularly convincingly, conduct from and you heinous offense, substantially and other a and need people”; and there to deter is ... a you was clearly, this therefore is type of “aggravating factors clearly, convincingly, and substantially outweigh the non— existing mitigating factors as to both charges here.” 30 at 5.) (ECF No. 8— Judge Perfilio explained that Petitioner’s commission of multiple, independent consecutive, offenses rather than concurrent, qualified Petitioner sentences: There were separate separate locations, criminal acts, separate acts of robbery, and separate victims. The crimes involved separate 78 for acts of violence [E]ach of these two robberies for which you were convicted each carry with them ten to twenty year sentences as first degree robberies. . (ECF No. 8—30 recommendation 5—6.) at and . . Judge sentenced Perfilio Petitioner fourteen years for both robberies. Second, the sentence took below the mid-range § 2C:15_120; N.J. is within New Jersey’s The state court’s neither contrary to Stat. Ann. (DRD), at robbery statute See N.J. Stat. § 2C:44—3a.2’ adjudication of this nor an unreasonable established Supreme Court precedent. 0430 -- at 6.) (Id. and NERA’s permissible range on the robbery charge. Ann. prosecutor’s 2015 WI 2344674 at x12 issue was application See Veiez v. (D.N.J. Vay 14, therefore of, Lagana, 2015) clearly No. 12- (“Absent a claim that a sentence constitutes cruel and unusual punishment prohibited by the Eighth Amendment, otherwise in violation of due process, 20 or that it is arbitrary or the legality and length of “Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon.” N.J. Stat. Ann. § 20:15—lb. 21 “The court may, upon application of the prosecuting attorney, sentence a person who has been convicted of a crime of the first, second or third degree to an extended term of imprisonment if it finds one or more of the grounds specified in subsection a., b., c., or f. of this section (a) The defendant has been convicted of a crime of the first, second or third degree and is a persistent offender N.J. Stat. Ann. § 2C:44—3a. . . . . . .“ 79 a sentence are questions of state law over which this Court has no jurisdiction under § 2254”) (internal citations omitted) Petitioner cites to no constitutional provision or federal law to support his Excessive Sentence Claim. For these reasons, V. the Court denies Ground Nine. CERTIFICATE OF APPEALABILITY Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of appealability (“COA”) an appeal may , not be taken from a final order in a proceeding under 28 U.S.C. 2254. A certificate applicant has of made appealability substantial a showing constitutional right.” satisfies standard by demonstrating could this disagree constitutional presented with claims are grounds constitutional shows, whether at that right a jurists states and should of reason would a that valid jurists claim of of of of to his issues proceed petition when the the on underlying find it reason a reason the prisoner’ s issue of (2003). habeas a the 327 the petitioner resolution 322, denies COA “A encouragement 537 U.S. reaching denial could conclude deserve court the jurists that court’s jurists to without petition constitutional that Cockrell, claim[s], least, the or of if “only 2253(c)(2). § district district the procedural U.S.C. the adequate further.” Miller—El v. “when 28 issue may § prisoner debatable denial would of find a it debatable whether the district court was correct in its procedural 80 __ ruling.” Didianc v. Balicki, Civil Action No. WL 1752191, at *6_7 (Apr. 29, 2010) U.S. 473, 484 (2000e.g) the Court’s habeas ) . 09—2315 (FLW), (citing Slack v. McDaniel, 2010 529 Here, reasonable jurists would not find ruling debatable. Accordingly, no certificate of appealability shall issue. VI. CONCLUSION For all of the foregoing reasons, prejudice and no certificate of the Petition is denied with appealability shall issue. appropriate Order follows. Dated: , 2019 Madeline Cox Arleo United States District Judge 81 An

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