NOT FOR PUBLICATION

OPINION

PETER G. SHERIDAN, District Judge.

Petitioner Leonard Robinson (`Petitioner"), a prisoner currently confined at East Jersey State Prison in Rahway, New Jersey, has submitted a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) For the reasons stated below, the Petition will be denied.

I. BACKGROUND

This Court, affording the state courts factual determinations the appropriate deference, see 28 U.S.C. § 2254(e)(1)1, will recount salient portions of the recitation of facts as set forth by New Jersey Superior Court, Appellate Division:

State v. Robinson, No. A-6232-06T4, 2009 WL 102979, at *1 (N.J. Super. Ct. App. Div. Jan. 16, 2009).

Following a three-day jury trial in January 2007, Petitioner was convicted. Id. The State successfully moved for an extended sentence pursuant to N.J.S.A. 2C:43-6(f) and the trial court sentenced Petitioner to twenty-two years, with ten years of parole ineligibility, for count II, and a concurrent ten-year sentence, with five years of parole ineligibility, for count III. Id. Petitioner's appeal was denied by the Appellate Division, id., and the New Jersey Supreme Court denied his petition for certification, State v. Robinson, 970 A.2d 1046 (N.J. 2009). Petitioner subsequently filed a petition for post-conviction relief ("PCR") which was denied by the trial court. State v. Robinson, No. A-0919-10T3, 2012 WL 5273854, at *1 (N.J. Super. Ct. App. Div. Oct. 26, 2012). The Appellate Division denied the appeal, id., and the New Jersey Supreme Court denied the petition for certification, State v. Robinson, 65 A.3d 264 (N.J. 2013).

On July 16, 2013, Petitioner filed the instant habeas Petition. (ECF No. 1.) In his Petition, he raises the following grounds for relief: (1) violation of his Sixth Amendment right to confrontation when Detective Rue testified about Petitioner's prior criminal conduct; (2) violation of his Fourth Amendment right against illegal search and seizure when he was "coerced" into signing a consent to search the apartment; (3) violation of his Fifth Amendment right when he was coerced into confessing to the crime after they threatened to charge his girlfriend; and (4) violation of his Sixth Amendment right because the jury in his case did not contain any minorities. Respondent filed an Answer (ECF No. 9) and Petitioner did not file a reply.

II. DISCUSSION

A. Legal Standard

As amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254 provides, in pertinent part:

28 U.S.C. § 2254.

"§ 2254 sets several limits on the power of a federal court to grant an application for a writ of habeas corpus on behalf of a state prisoner." Cullen v. Pinholster, 563 U.S. 170 (2011); Glenn v. Wynder, 743 F.3d 402, 406 (3d Cir. 2014). Section 2254(a) permits a court to entertain only claims alleging that a person is in state custody "in violation of the Constitution or laws or treaties of the United States." Id.

A federal court's authority to grant habeas relief is further limited when a state court has adjudicated petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d).2 If a claim has been adjudicated on the merits in state court proceedings, this Court "has no authority to issue the writ of habeas corpus unless the [state court's] decision `was contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States,' or `was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Parker v. Matthews, 132 S.Ct. 2148, 2151 (2012) (quoting 28 U.S.C. § 2254(d)). However, when "the state court has not reached the merits of a claim thereafter presented to a federal habeas court, the deferential standards provided by AEDPA . . . do not apply." Lewis, 581 F.3d at 100 (quoting Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001)).

A court begins the analysis under § 2254(d)(1) by determining the relevant law clearly established by the Supreme Court. See Yarborough v. Alvarado, 541 U.S. 652, 660 (2004). Clearly established law "refers to the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000). A court must look for "the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). "[C]ircuit precedent does not constitute `clearly established Federal law, as determined by the Supreme Court,' [and] therefore cannot form the basis for habeas relief under AEDPA." Parker, 132 S.Ct. at 2155 (quoting 28 U.S.C. § 2254(d)(1)).

A decision is "contrary to" a Supreme Court holding within 28 U.S.C. § 2254(d)(1), if the state court applies a rule that "contradicts the governing law set forth in [the Supreme Court's] cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a [different result.]" Williams, 529 U.S. at 405-06. Under the "`unreasonable application' clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. However, under § 2254(d)(1), "an unreasonable application of federal law is different from an incorrect application of federal law." Harrington v. Richter, 131 S.Ct. 770, 785 (2011) (quoting Williams, 529 U.S. at 410). "If this standard is difficult to meet—and it is—that is because it was meant to be." Burt v. Titlow, 134 S.Ct. 10, 16 (2013) (citations and internal quotation marks omitted). The petitioner carries the burden of proof, and review under § 2254(d) is limited to the record that was before the state court that adjudicated the claim on the merits. Pinholster, 563 U.S. at 181.

B. Analysis

1. Confrontation Clause (Ground One)

Petitioner alleges that his Sixth Amendment right to confront witnesses against him was violated when Detective Rue "gratuitously volunteered testimony constituting inadmissible hearsay which connected the defendant with prior criminal conduct of the same nature as the charges for which he was on trial." (Pet. ¶ 12(A).) Petitioner raised this claim on direct appeal, where it was rejected by the Appellate Division:

Robinson, 2009 WL 102979, at *2.

Even if this Court were to assume that this claim is not procedurally defaulted,1 Petitioner is still not entitled to relief. As properly determined by the state court, Petitioner's counsel elicited the complained-about testimony from the officer during cross-examination, presumably in an attempt make him appear untrustworthy. Under the invited error doctrine, "[a] defendant cannot complain on appeal of alleged errors invited or induced by himself." Burns v. Warren, No. 13-1929, 2016 WL 1117946, at *28 (D.N.J. Mar. 22, 2016) (citing United States v. Console, 13 F.3d 641, 660 (3d Cir. 1993)); United States v. Murphy, 464 F. App'x 60, 63 (3d Cir. 2012); United States v. Vazquez, 449 F. App'x 96, 104 (3d Cir. 2011). This doctrine applies to habeas review as well. See, e.g., Druery v. Thaler, 647 F.3d 535, 545-46 (5th Cir. 2011) (collecting cases). More importantly, the Third Circuit has explicitly held that there is no Confrontation Clause violation where defense counsel elicits hearsay statement from government witness. See United States v. Magloire, 235 F. App'x 847, 851, n.1 (3d Cir. 2007) (citing United States v. Parikh, 858 F.2d 688, 695 (11th Cir. 1988)). Since the officer's testimony clearly occurred as a result of the specific and pointed questions by Petitioner's counsel, Petitioner cannot not seek to benefit from said action.

The state court's decision on this issue was not contrary to, and did not involve an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States. Accordingly, habeas relief is denied.

2. Search and Seizure (Ground Two)

Petitioner alleges that his Fourth Amendment rights were violated because he was "coerced" into signing a consent to search an apartment after the officers threatened to lock up the girl who's [sic] apartment it was and [Petitioner] didn't reside there." (Pet. ¶12(B).) Petitioner raised this issue in a suppression hearing before the trial court, where it was denied. (Resp't's Br., Ex. Ra 15, Suppression Hr'g Tr. 82: 17-95:18, ECF No. 9-11.) He did not raise it on direct appeal or in his PCR petition, however the Appellate Division nevertheless addressed the issue on the PCR appeal, in the context of appellate counsel's performance:

Robinson, 2012 WL 5273854, at *1.

A federal court cannot provide habeas review of a Fourth Amendment claim if the petitioner had a full and fair opportunity to litigate the claim in the state courts. See Stone v. Powell, 428 U.S. 465, 494 (1976); see also Wright v. West, 505 U.S. 277, 293 (1992); Marshall v. Hendricks, 307 F.3d 36 (3d Cir. 2002); Deputy v. Taylor, 19 F.3d 1485 (3d Cir. 1994). "A petitioner has had a full and fair opportunity to litigate such claims if the state has an available mechanism for suppressing evidence seized in or tainted by an illegal search or seizure, irrespective of whether the petitioner actually availed himself of that mechanism." Wright v. Pierce, No. 12-175, 2015 WL 1137987, at *7 (D. Del. Mar. 12, 2015) (citations omitted).

Here, it is evident that Petitioner had a full and fair opportunity to litigate his Fourth Amendment claim. The trial court conducted a suppression hearing, at the conclusion of which the court denied Petitioner's request to suppress the evidence found during the search. Petitioner was explicitly advised by appellate counsel that he did not view this issue as one worthy of raising on appeal, but informed Petitioner that if he wished to raise it, he should do so in the form of a pro-se appellate brief. (Resp't's Br., Ex. Ra 5, Mar. 18, 2008 Ltr, ECF No. 9-7.) Petitioner declined to do so. Despite Petitioner's failure to bring this issue before the Appellate Division, the court nevertheless addressed it on its merits, finding that even if Petitioner or his counsel had appealed the denial of the suppression motion, it would have upheld the trial court's decision. Robinson, 2012 WL 5273854, at *1.

Because Petitioner received a full and fair opportunity to litigate this claim in the state courts, he is barred from habeas review of this issue. See Stone, 428 U.S. 465; see also Marshall, 307 F.3d 36; Deputy, 19 F.3d 1485. Accordingly, this claim will be denied.

3. Confession (Ground Three)

In Ground Three of his Petition, Petitioner argues that his Fifth Amendment rights were violated when he gave a written confession as a result of the officers' threats to "lock up" the "girl who's [sic] apartment it was." (Pet. ¶ 12(C).) Petitioner raised this issue in the form of a Miranda hearing before the trial court, where his request to suppress the confession was denied. (Resp't's Br., Ex. Ra 10, Miranda Hr'g Tr., ECF No. 9-12.)

(Id. at 33:16-35:24.) Petitioner did not raise this claim on direct appeal, however, as with the consent to search issue, the court still addressed it:

Robinson, 2012 WL 5273854, at *1.

Under Miranda, a criminal defendant may only waive his Fifth Amendment right to have an attorney present during custodial interrogation if "the waiver is made voluntarily, knowingly and intelligently." 384 U.S. at 444. A valid Miranda waiver has two distinct dimensions:

Moran v. Burbine, 475 U.S. 412, 421 (1986) (internal quotations omitted).

"Federal habeas courts have an "independent obligation" to determine whether a confession was voluntary." Sweet v. Tennis, 386 F. App'x 342, 345 (3d Cir. 2010) (citing Miller v. Fenton, 474 U.S. 104, 110 (1985)). Although this Court defers to state court fact-finding on "subsidiary factual questions" under 28 U.S.C. § 2254(e)(1), the "ultimate question whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution is a matter for independent federal determination." Id. (citing Miller, 474 U.S. at 112). The Supreme Court has stated that "the length and circumstances of the interrogation, the defendant's prior experience with the legal process, and familiarity with the Miranda warnings," are examples of such "subsidiary questions." Miller, 474 U.S. at 117.

The state court's finding that Petitioner was not coerced into waiving his Miranda rights and providing the officers with a written confession is supported by the record. The court found Detective Rue's testimony that he read Petitioner his Miranda rights to be credible and there was no evidence to suggest Petitioner's confession was anything other than voluntary. Petitioner's counsel specifically asked the detective whether he had coerced Petitioner into confessing by suggesting if he failed to do so, his girlfriend would be charged. (Resp't's Br., Ex. Ra 10, Miranda Hr'g Tr. 18:4-6; 21:16-18, ECF No. 9-12.) Detective Rue answered that he did not make such a threat and the trial court credited that testimony. (Id. at 18:7; 21:19-20.) Petitioner has not rebutted that factual finding by clear and convincing evidence and pursuant to 28 U.S.C. § 2254(e)(1), the Court gives deference to that determination. Because the record establishes that Petitioner was not in any way coerced into giving a confession and he was read his Miranda rights prior to the confession, this ground for habeas relief must fail.

4. Jury (Ground Four)

In Ground Four of his Petition, Petitioner argues that his Sixth Amendment rights were violated because the jury pool for his case did not contain any minorities. (Pet. 12(D).) Petitioner raised this issue on PCR, where it was denied by the state court. The Appellate Division found that it was without sufficient merit to warrant discussion in a written opinion. Robinson, 2012 WL 5273854, at *1.

The Equal Protection Clause of the Fourteenth Amendment requires the eradication of "racial discrimination in the procedures used to select the venire from which individual jurors are drawn." Batson v. Kentucky, 476 U.S. 79, 86 (1986). The Sixth Amendment requires that jurors be drawn from pools that represent a "fair cross-section" of the community. "[J]ury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof" Ramseur v. Beyer, 983 F.2d 1215, 1230 (3d Cir. 1992) (quoting Duren v. Missouri, 439 U.S. 357, 363-64 (1979)).

In order to establish a prima facie violation of the fair cross section requirement, a petitioner must demonstrate: (1) the group alleged to be excluded is a "distinctive" group in the community; (2) the representation of this group in jury venires is not "fair and reasonable" in relation to the number of such persons in the community; and (3) the underrepresentation is caused by the "systematic exclusion of the group in the jury selection process." Duren, 439 U.S. at 364.

Here, Petitioner has made only a bare allegation that "minorities" were underrepresented on his jury. He does not identify with which racial groups he includes in that description; nor does he even attempt to address the other two prongs of the Duren test, including identifying the jury selection process used by Monmouth County. Id.; see also United States v. Weaver, 267 F.3d 231, 240 (3d Cir. 2001) ("the second prong of Duren asks whether the representation of the group in the jury venires is fair and reasonable in relation to the number of such persons in the community. This is, at least in part, a mathematical exercise, and must be supported by statistical evidence") (internal citations omitted)); Ramseur, 983 F.2d at 1235 (no Sixth Amendment violation where the jury selection process was neutral on its face and was being monitored, and modified, to try to enhance its representative character). Given his spare allegations and factual support, Petitioner has failed to meet his burden and habeas relief is denied on this ground.

III. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken from a final order in a proceeding under 28 U.S.C. § 2254. A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

Here, Petitioner has failed to make a substantial showing of the denial of a constitutional right. Thus, no certificate of appealability shall issue.

IV. CONCLUSION

For the above reasons, the § 2254 habeas petition is denied, and a certificate of appealability will not issue. An appropriate Order follows.