SUSAN D. WIGENTON, Magistrate Judge.
Presently before the Court is the petition for a writ of habeas corpus of Norman Jackson ("Petitioner") brought pursuant to 28 U.S.C. § 2254 challenging Petitioner's state court conviction (ECF No. 1). Following this Court's Order to Answer, the State filed a response to the petition (ECF Nos. 5-7), to which Petitioner has replied (ECF No. 9). For the following reasons, this Court will deny the petition and deny Petitioner a certificate of appealability.
In its opinion affirming Petitioner's conviction and sentence, the New Jersey Supreme Court provided the following summary of the factual basis of this matter:
(Document 24 attached to ECF No. 5 at 5-13).
Petitioner thereafter petitioned for certification with the New Jersey Supreme Court, and the state cross-petitioned on the kidnapping issue. (Id. at 15). The New Jersey Supreme Court granted certification on two issues — whether Petitioner was properly convicted of kidnapping under New Jersey Law, and whether the trial court erred in denying Petitioner's motion for a mistrial based on alleged prosecutorial misconduct during summation. (Id.). On August 13, 2012, the New Jersey Supreme Court affirmed Petitioner's conviction in its entirety, and reinstated Petitioner's conviction for kidnapping as the record more than supported the conclusion that Petitioner had either subjected Chowdhury to "substantial confinement" and forced him to move Petitioner a "substantial distance" as required by the alternative prongs of the kidnapping statute. (Id.).
Petitioner thereafter filed a petition for post-conviction relief (PCR) in September 2012 asserting various claims of ineffective assistance of trial and appellate counsel. (See Document 26 attached to ECF No. 5). Following an evidentiary hearing solely addressing Petitioner's claim that counsel failed to convey his plea counteroffer to the State during plea negotiations, the PCR court denied that petition on March 14, 2014. (Document 22 attached to ECF No. 5). Petitioner appealed, and the Appellate Division affirmed the denial of post-conviction relief by way of a written opinion issued on June 6, 2016. (Document 25 attached to ECF No. 5). Petitioner petitioned for certification, but his petition was denied by the New Jersey Supreme Court on February 13, 2017. (Document 31 attached to ECF No. 5). Petitioner thereafter filed his current habeas petition. (ECF No. 1).
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 based upon the record that was before the state court. See Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013); see also Parker v. Matthews, ___ U.S. ___, ___,132 S.Ct. 2148, 2151 (2012). Under the statute, as amended by the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2244 ("AEDPA"), district courts are required to give great deference to the determinations of the state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 772-73 (2010).
Where a claim has been adjudicated on the merits by the state courts, the district court shall not grant an application for a writ of habeas corpus unless the state court adjudication
28 U.S.C. § 2254(d)(1)-(2). Federal law is clearly established for these purposes where it is clearly expressed in "only the holdings, as opposed to the dicta" of the opinions of the United States Supreme Court. See Woods v. Donald, ___ U.S. ___, ___, 125 S.Ct. 1372, 1376 (2015). "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. 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).
In his first claim, Petitioner argues that he was denied Due Process when the trial court denied his motion for a mistrial based on alleged prosecutorial misconduct during summation. The duty of a prosecutor in a criminal proceeding is to see that justice is done rather than to secure convictions, and as such prosecutors must "refrain from [the use of] improper methods calculated to produce a wrongful conviction." Berger v. United States, 295 U.S. 78, 88 (1935); see also United States v. Bailey, 840 F.3d 99, 124 (3d Cir. 2016). While a prosecutor "may strike hard blows [during his summation], he is not at liberty to strike foul ones." Berger, 295 U.S. at 88; Bailey, 840 F.3d at 124. A criminal conviction, however, "is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial." United States v. Harris, 471 F.3d 507, 512 (3d Cir. 2006) (quoting United States v. Young, 470 U.S. 1, 11 (1985). Thus, a prosecutor's improper comments during summation will only warrant habeas relief where those comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986); see also Copenhefer v. Horn, 696 F.3d 377, 392 n. 5 (3d Cir. 2012). Whether an adequate curative instruction addressing any improper comments was given will be relevant to that determination, as will the strength of the evidence against the accused. Darden, 477 U.S. at 182.
The New Jersey Supreme Court summarized the factual background for Petitioner's contention as follows:
(Document 24 attached to ECF No. 5 at 20-24).
On direct appeal, both the Appellate Division and New Jersey Supreme Court found the remarks of the prosecutor to be improper, but ultimately concluded that they did not deny Petitioner a fair trial given the limiting instruction provided by the trial court, the fact that the comments in question arose directly out of evidence admitted into the trial record without a non-withdrawn objection, and the strength of the evidence against Petitioner. (Id. at 24-26). Having reviewed the record, this Court agrees. While the comments in question were improper, in making them the prosecutor himself noted that the issue of those extraneous matters was not before the jury. Likewise, the curative instruction given by the judge directly informed the jury that their verdict was entirely separate and non-determinative of any outside civil matters. Given the strong eyewitness testimony presented at trial from both police officers and Mr. Chowdhury and the direct and responsive curative instruction, this Court can only conclude that the prosecutor's remarks did not deny Petitioner a fair trial, and that they did not deny Petitioner his right to Due Process. Darden, 477 U.S. at 181-82. As such, the decision of the New Jersey Supreme Court to deny Petitioner relief as to this claim was neither contrary to nor an unreasonable application of federal law, nor did it involve an unreasonable reading of the facts of Petitioner's trial. Petitioner is therefore not entitled to habeas relief on this basis.
In his next claim, Petitioner asserts that his kidnapping conviction must be vacated because the state failed to prove that he either moved the victim a substantial distance or subjected him to substantial confinement. Petitioner essentially raises a claim that the evidence presented at trial was insufficient to support his conviction for kidnapping. When a petitioner presents a claim challenging the sufficiency of the evidence against him, "a reviewing court must ask `whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Eley, 712 F.3d at 847 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). A reviewing court may therefore overturn a conviction for insufficiency of the evidence only "if it is found that upon the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Id. (quoting Jackson, 443 U.S. at 324). "Under Jackson, federal courts must look to state law for the substantive elements of the criminal offense, but the minimum amount of evidence that the Due Process Clause requires to prove he offense is purely a matter of federal law." Coleman v. Johnson, 566 U.S. 650, 655 (2012). Under this "deferential federal standard," juries have "broad discretion in deciding what inferences to draw from the evidence presented at trial" and federal courts must not "unduly impinge[] on the jury's role as factfinder" by engaging in "fine-grained factual parsing." Id. So long as a rational fact finder could, given the benefit of all reasonable inferences and viewing the facts in the light most favorable to the State, find all of the essential elements of the crime in question beyond a reasonable doubt, a habeas claim based on the sufficiency of the evidence must fail.
Petitioner asserts that there was insufficient evidence to support his conviction for kidnapping insomuch as the evidence did not establish that he had subjected Chowdhury to either substantial confinement or forced him to move a substantial distance. The New Jersey Supreme Court rejected that argument, explaining that the statute under which Petitioner was convicted required proof that Petitioner had either "removed the victim `from his place of residence or business, or a substantial distance from the vicinity where he is found,' or `unlawfully confine[d the victim] for a substantial period.' [N.J. Stat. Ann. §] 2C:13-1(b)." (Document 24 attached to ECF No. 24 at 28). The Court further explained that the "substantial distance" element requires only a showing that the victim was moved in such a way to isolate or expose him to an increased risk of harm, and is not dependent on the defendant moving the victim any particular minimum linear distance. (Id.). In essence, this element merely requires a showing that the victim, through movement, was exposed to risk over and above that of any underlying crime, such as the armed robbery involved in this matter. (Id. at 28-30). The New Jersey Supreme Court construed the substantial distance element similarly. That element requires confinement for a period of time "more than merely incidental to the underlying crime" which exposes the victim to an "enhanced risk of harm" resulting from the confinement and isolation imposed by the defendant. (Id. at 30-31).
Ultimately, the New Jersey Supreme Court found that the evidence produced at trial was more than sufficient to permit a rational fact finder to find either of the two alternative elements of a substantial distance or substantial confinement:
(Id. at 33-35).
Having reviewed the evidence provided at trial, this Court finds that the New Jersey Supreme Court involved neither an unreasonable application of federal law nor an unreasonable application of the facts. As explained, under New Jersey law, the central question as to either substantial distance or substantial confinement is the increased risk of harm imposed by the distance traveled or length of confinement. In this matter Petitioner confined Chowdhury for several minutes, forced him to drive nearly a mile through the city of Paterson, and did so under the threat of attack with a gun, imposing upon Chowdhury a greatly increased risk of harm over that imposed merely by the armed robbery Petitioner also inflicted upon Chowdhury. Given the distance traveled, the increased risk of harm, and the length of time Chowdhury was confined and placed in danger by Petitioner, the evidence in the record is more than sufficient to permit a reasonable fact finder to conclude beyond a reasonable doubt that Petitioner both forced Chowdhury to move a substantial distance, and confined him by way of the threat of being shot for a considerable period of time, and the evidence was thus more than sufficient to support Petitioner's conviction for kidnapping. Petitioner's sufficiency of the evidence claim therefore fails and he is not entitled to relief on this basis.
Petitioner next asserts that he was denied Due Process when the trial court refused to grant him a new trial based on his surprise when one of the police officers testified at trial that he recalled seeing Petitioner exit Chowdhury's cab on the day of the robbery shortly before Petitioner's arrest. Petitioner essentially seeks relief based on an alleged violation of state discovery rules. Absent certain specific circumstances such as Brady violation,
Following trial and before his sentencing, Petitioner moved before the trial court for a new trial, arguing that the State had failed to tell the defense that Officer Perales had seen Petitioner leave Chowdhury's cab moments before Chowdhury flagged him down and reported that Petitioner had robbed him. (See Document 19 attached to ECF No. 5 at 8-20). Petitioner's counsel argued that this amounted to a discovery violation warranting a new trial as Petitioner had not been informed that the officer could identify him as having left the cab before the robbery was reported to him. (Id.). Both during Perales's testimony and during argument on that issue, it was raised to the Court that Perales claimed to have filed a report containing his having seen Petitioner leave the cab, but that the report had been lost and had thus not been turned over to the Government. (Id.). Nothing in the record suggests that the loss of the report was anything other than inadvertent. (Id.). During argument, the State did present a copy of a detective's report that had been turned over to the Defense which clearly informed the Defense that Perales had told the detective that, while traveling East on Broadway, he had been stopped by Chowdhury, who immediately pointed out Petitioner as a man who had robbed him, at which point Petitioner fled and Perales gave chase, with the foot pursuit ending in Petitioner being captured by other officers who had heard Perales's request for help in apprehending Petitioner. (Id. at 14). The trial judge ultimately denied Petitioner's motion for a new trial, finding that the evidence against Petitioner was overwhelming, that the documents which had been turned over to Petitioner "very easily fit" with Perales's trial testimony that he had seen Petitioner, and that Petitioner was not prejudiced by the lack of Perales's report as he had been provided information about what Perales was to testify to and had cross examined Perales extensively on the missing report. (Id. at 14-20).
As to Petitioner's contention at that time that he might have pled guilty had he received the report, the trial judge made the following observations:
(Document 19 attached to ECF No. 5 at 18-19). The New Jersey appellate courts likewise rejected this claim without further comment.
As noted by the trial court, Petitioner and counsel were clearly aware that Officer Perales was behind Chowdhury's cab around the time Petitioner left the cab, and that Chowdhury then flagged down Perales and specifically pointed out Petitioner as a man who robbed him before Perales and Chowdhury chased Petitioner through the park until he was apprehended by officers assisting them in the chase. That Perales may have seen Petitioner leave the cab, then, was no great leap from the information which was known to Petitioner prior to trial. In any event, it is clear that Petitioner was not denied a fair trial simply because he was not aware that Perales had seen him leave the cab. As noted by the trial court, Petitioner was able to use the lack of a report to cross-examine Perales, and Petitioner was already aware that Perales had been there when Chowdhury initially pointed Petitioner out as the robber. In light of the considerable other evidence in the record, including the remaining testimony of Chowdhury and Perales as well as the fact that Petitioner was found not only with a gun but also with the exact amount of money Chowdhury had reported stolen, as well as the fact that Chowdhury and Perales essentially followed after Petitioner from the time Chowdhury reported the robbery to the time of his capture, it is clear that Petitioner was not prejudiced by his not knowing that Perales had seen him exit Chowdhury's cab as well, and that the lack of this information did not render Petitioner's trial unfair. Likewise, this Court finds the determination of the trial court that there was nothing in the record to support the assertion that Petitioner may have accepted the plea offer had he known Perales saw him leave the cab is neither an unreasonable application of federal law or the facts at hand. Petitioner is therefore not entitled to habeas relief as to his discovery violation claim.
In all of his remaining claims, Petitioner asserts that he suffered ineffective assistance of both trial and appellate counsel. The standard applicable to such claims is well established:
Judge v. United States, 119 F.Supp.3d 270, 280-81 (D.N.J. 2015).
In his first ineffective assistance of counsel claim, Petitioner asserts that his trial counsel did not convey a counteroffer he made to the prosecutor requesting an eight year sentence as opposed to the ten years offered in the state's final and best plea offer. As the Third Circuit has explained,
United States v. Bui, 795 F.3d 363, 366-67 (3d Cir. 2015).
The PCR court held a hearing as to Petitioner's plea hearing claim. At that hearing, Petitioner's trial counsel testified that he conveyed any and all plea offers to Petitioner, that he did not recall Petitioner ever suggesting he make a counteroffer, and would have conveyed a counteroffer had he been asked to do so. (See Document 20 attached to ECF No. 5 at 40-42). In contrast, Petitioner testified that counsel refused to convey that counteroffer and instead told Petitioner that they should prepare for trial as they would win Petitioner's case. (Id. at 19-37). Petitioner also testified that, had that counteroffer been declined, he would have been willing to accept the State's last plea agreement. (Id.). Although Petitioner could have questioned counsel as to what advice he gave regarding the offered plea deals, he did not pursue any questioning as to counsel's advice.
The PCR court rejected Petitioner's claim, making the following findings:
(Document 22 attached to ECF No. 5 at 11-13). The Appellate Division affirmed this ruling, finding that these credibility findings precluded Petitioner from receiving relief as Petitioner had not established ineffective assistance of counsel.
Giving proper deference to the PCR court's detailed credibility findings, and considering them in light of the trial court's observations during post-trial motions that the trial court and counsel had extensively discussed the offered deals with Petitioner, this Court concludes that Petitioner has failed to show that his counsel's performance was deficient. Per the PCR court's credibility findings, which this Court must presume to be correct as Petitioner has utterly failed to show by clear and convincing evidence that the PCR court was mistaken, see 28 U.S.C. § 2254(e)(1), Petitioner never requested a counteroffer be made, and counsel would have made such an offer had Petitioner asked. Instead, Petitioner rejected the State's plea offer and chose to proceed to trial. As the PCR court determined that Petitioner never made the counteroffer that forms the basis of this claim, and that counsel would have communicated a counter offer had it been made, the PCR court's rejection of Petitioner's first ineffective assistance claim was not contrary to or an unreasonable application of Strickland and Hill, and Petitioner is not entitled to habeas relief on that basis.
In his habeas petition, Petitioner also attempts to assert that his trial counsel was ineffective during plea negotiations as he did not explain to Petitioner the strengths and weaknesses of his case prior to Petitioner's rejection of the plea offer. As explained by the Appellate Division on appeal from the denial of Petitioner's PCR petition,
(Document 25 attached to ECF No. 5). It is thus clear from the record that Petitioner procedurally defaulted his strengths and weaknesses claim, and was barred from proceeding on that claim pursuant to a clearly established state court procedural rule by the Appellate Division. Id.
As the Third Circuit has explained,
Hubbard v. Pinchak, 378 F.3d 333, 338 (3d Cir. 2004). A showing of cause sufficient to escape the procedural default bar requires that the petitioner present "`some objective factor external to the defense impeded counsel's efforts' to raise the claim." Parkin v. United States, 565 F. App'x 149, 151-52 (3d Cir. 2014) (quoting United States v. Pelullo, 399 F.3d 197, 223 (3d Cir. 2005)). Even where a petitioner can show cause, he is still required to demonstrate that he suffered actual prejudice insomuch as the alleged errors "worked to his actual and substantial disadvantage infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982). Here, Petitioner has utterly failed to present cause for his procedural default of his claim, nor has he shown that he is actually innocent of the crime or will suffer a miscarriage of justice absent review of his claim. He is therefore barred from proceeding on his second plearelated ineffective assistance of counsel claim. Hubbard, 378 F.3d at 338.
Even were this not the case, however, Petitioner's claim would still fail as he has not shown that he received deficient performance. Petitioner bases this claim entirely on one answer counsel provided at the evidentiary hearing. Specifically, during cross-examination, Petitioner's trial counsel said that Petitioner told him that the "State's supposed to make me a reasonable plea offer" and counsel responded by asking Petitioner "what is a reasonable offer[?]" (Document No. 20 attached to ECF No. 5 at 13). From this one statement, taken out of context, Petitioner asserts that counsel never discussed the strengths or weaknesses of his case nor advised him as to what was reasonable under the circumstances. Despite having ample opportunity to do so, though, Petitioner did not develop that claim in the slightest at his hearing.
This single out of context comment on which Petitioner bases his defaulted claim does not support Petitioner's assertion. Although counsel testified that he asked Petitioner what he thought was a reasonable plea offer, counsel did not testify that he did not advise Petitioner as to the plea, nor that he did not discuss with Petitioner his case. Instead, counsel's testimony was intended to show that Petitioner felt ten years was unreasonable. Counsel's testimony, which the PCR court found truthful and credible, further included a fact devastating to Petitioner's claim — that Petitioner insisted he was innocent and was not willing to plead guilty to the ten year offer. A further problem for Petitioner arises out of the fact that the record also includes a finding by the trial judge that Petitioner, his counsel, and the Court discussed how Petitioner was taking a big "gamble" by proceeding to trial and not pleading guilty in light of the evidence against him. (Document 19 attached to ECF No. 5 at 18-19). Thus, the only facts in the record on the claim Petitioner raises suggests that, contrary to Petitioner's unsupported assertions, that at least some discussion of the strengths and weaknesses of the case and the risk Petitioner was taking by not pleading guilty. Ultimately, because of Petitioner's failure to develop this claim at his PCR hearing, Petitioner has failed in any way to show that he suffered either deficient performance or prejudice from counsel's advice as to the plea. Thus, Petitioner's second plea-related claim is both procedurally barred and is without merit and provides no basis for habeas relief.
In his next claim, Petitioner asserts that his trial attorney erred in failing to request a hearing pursuant to United States v. Wade, 388 U.S. 218 (1967), so that Petitioner could challenge Chowdhury's identification of Petitioner at the park following his arrest. In order to show that he was prejudiced by counsel's failure to seek a Wade hearing, Petitioner "must show that he would likely have prevailed on [his] suppression motion and that, having prevailed, there is a reasonable likelihood that he would not have been convicted." Thomas v. Varner, 428 F.3d 491, 502 (3d Cir. 2005). The standard governing the admissibility of an out of court identification was established by the Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 116 (1977). Under Manson, an identification procedure violates due process and the resulting identification is therefore inadmissible where the procedure used by the state was "unnecessarily suggestive and . . . create[d] a substantial risk of misidentification." United States v. Brownlee, 454 F.3d 131, 137 (3d Cir. 2006); see also United States v. Anthony, 458 F. App'x 215, 218 (3d Cir. 2012). Although reliability is "the linchpin in determining the admissibility of identification testimony," Manson, 432 U.S. at 114, the question of whether an identification is reliable need only be addressed where the procedures used to procure that identification were themselves suggestive. Id. at 107-14; see also State v. Henderson, 208 N.J. 208, 219-220 (2011) (Under New Jersey law a Wade hearing need only be held where a criminal defendant "can show some evidence of suggestiveness").
Although Petitioner takes issue with the fact that Chowdhury was asked to identify him in the park at the time of his arrest, rather than via a formal lineup sometime thereafter, he provides little information which suggests that this identification procedure was in any way suggestive. The facts evinced at trial suggest instead that this impromptu identification procedure was merely the result of the facts of this case — Chowdhury hurried to flag down an officer shortly after the robbery, one of the officers involved had actually seen Petitioner leave the cab following the robbery, and both Chowdhury and the police followed Petitioner into the park, where he was detained and arrested. That Chowdhury then identified him was the result of the short time between the robbery and the arrest, and Chowdhury's presence at the scene of the arrest. Under the circumstances, this Court finds that Petitioner has failed to show that the procedures used were in any way suggestive, and as such Petitioner would not have been entitled to a Wade hearing even had he requested one.
Assuming Petitioner could show suggestive procedure, Chowdhury's testimony and the testimony of the officers at trial clearly established that the identifications in this case were reliable. Chowdhury was directly faced with Petitioner and his weapon during the dispute prior to the robbery regarding whether he would take Petitioner to Broadway and throughout the travel to Broadway as well as during the actual robbery. He had ample opportunity to view Petitioner, and the identification occurred shortly after Petitioner left the cab. Indeed, one of the officers himself testified to seeing Petitioner leave the cab and being able to identify Petitioner by the clothing he had been wearing at the time. Additionally, Petitioner was found to possess the exact amount of money Chowdhury had reported was stolen from him. Thus, both the testimony about the robbery and arrest as well as the surrounding facts strongly suggest that Chowdhury's identification of Petitioner was reliable. As such, the identifications were admissible regardless of any suggestive procedure. As a result, Petitioner has failed to show prejudice as any request for a Wade hearing would not have resulted in the identifications being suppressed, and counsel was therefore not ineffective in failing to seek the suppression of the identifications under Wade. Thomas, 428 F.3d at 502.
Petitioner also asserts that trial counsel's alleged failures, both at the plea hearing and in not requesting a Wade hearing cumulatively denied him the effective assistance of counsel. As Petitioner has failed to show that counsel's performance was deficient or that he was prejudiced in any way by counsel's actions, and as such his claims fail cumulatively for the same reason that they fail individually — Petitioner has utterly failed to establish ineffective assistance of counsel sufficient to warrant habeas relief. He is therefore not entitled to habeas relief based upon the alleged ineffective assistance of trial counsel. Strickland, 466 U.S. at 687-94.
In his final claim, Petitioner asserts that he also received ineffective assistance from his appellate counsel insomuch as counsel did not raise on appeal the Wade issue discussed above, the trial court's denial of Petitioner's motion to suppress the slide found in his jacket at the police station, or the denial of his motion to dismiss the second indictment based on Officer Bizzaro's lying during his first grand jury proceeding. While the Strickland ineffective assistance standard applies to appellate counsel just as it does to trial counsel, see Smith v. Robbins, 528 U.S. 259, 285 (2000), "it is a well established principle . . . that counsel decides which issues to pursue on appeal," Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996), and appellate counsel need not raise every nonfrivolous claim a defendant desires to pursue. Jones v. Barnes, 463 U.S. 745, 751 (1983). Because the heart of effective appellate advocacy is counsel's winnowing out weaker claims in favor of those with a greater chance of success, id. at 753; Smith v. Murray, 477 U.S. 527, 536 (1986), the Supreme Court has held that "[g]enerally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of [appellate] counsel be overcome." See Robbins, 528 U.S. at 288 (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)).
Petitioner has made no such showing. While Petitioner asserts that counsel should have raised the suppression of the gun slide, Petitioner provides little in the way of argument as to why the gun slide, found in a search after the gun-related scuffle with Officer Bizzaro, should have been suppressed. Petitioner likewise fails to fully explain why Bizzaro's deceptions, which were corrected before the second grand jury, required the dismissal of the second indictment against him. As explained above, the Wade claim Petitioner wishes counsel had raised was also without merit. In contrast to these vague and poorly defined claims, the claims counsel raised on Petitioner's behalf not only resulted in the Appellate Division finding in Petitioner's favor as to the kidnapping issue, but also resulted in the New Jersey Supreme Court taking Petitioner's case on both the kidnapping and prosecutorial misconduct claims. Thus, although Petitioner was ultimately unsuccessful before the New Jersey Supreme Court, it is clear that the claims counsel chose to raise were serious claims of sufficient merit to warrant a written opinion from the New Jersey Supreme Court, as well as a temporary grant of relief by the Appellate Division. Given the weak nature of the claims Petitioner asserts should have been raised and the clear (albeit not ultimately successful) strength of the claims counsel did raise on appeal, Petitioner has failed to show that counsel ignored claims stronger than those he did choose to raise, and Petitioner has thus failed to show that appellate counsel's performance was in any way deficient. Robbins, 528 U.S. at 288. Petitioner is therefore not entitled to relief on this claim, and the Appellate Division's rejection of this claim was neither an unreasonable application of federal law nor the facts at hand.
Pursuant to 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a habeas proceeding where that petitioner's detention arises out of his state court conviction unless he has "made a substantial showing of the denial of a constitutional right." "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 that the issues presented here are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Because all of Petitioner's habeas claims are either without merit or are procedurally defaulted for the reasons set forth above, he has failed to make a substantial showing of a denial of a constitutional right, and the petition is not adequate to receive encouragement to proceed further. This Court therefore denies Petitioner a certificate of appealability.
For the reasons stated above, Petitioner's petition for a writ of habeas corpus is DENIED and Petitioner is DENIED a certificate of appealability. An appropriate order follows.
