VILLANUEVA vs THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY et al

OCR transcription for search; preserved printed pages are authoritative

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# NOT FOR PUBLICATION

# UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

GILBERTO VILLANUEVA,

Petitioner,
V.

THE ATTORNEY GENERAL OF THE
STATE OF NEW JERSEY, et al.,

Respondents.

Civil Action No. 25-13364 (MAS)

OPINION

SHIPP, District Judge

This matter comes before the Court on the amended petition for a writ of habeas corpus
brought pursuant to 28 U.S.C. § 2254 filed by Petitioner Gilberto Villanueva ("Petitioner"). (ECF
No. 2.) Following an order to answer, Respondents filed an answer to the amended petition. (ECF
No. 10.) Petitioner did not file a timely reply. For the following reasons, the amended petition
shall be denied and Petitioner shall be denied a certificate of appealability.

## I. BACKGROUND

In its opinion affirming Petitioner's conviction and sentence, the Superior Court of New
Jersey, Appellate Division, summarized the factual background of Petitioner's convictions as
follows:

In 2014, a grand jury charged [Petitioner] with ... first-degree
murder[,] first-degree felony murder[,] second-degree burglary[,]
first-degree criminal attempt[ed] murder[,] third-degree possession
of a weapon for [an] unlawful purpose[,] and . .. fourth-degree
unlawful possession of a weapon[.] During pretrial proceedings, the
trial court denied [Petitioner]'s motion to exclude statements he
made to police during interrogation. The court further granted the

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State's motion to admit text messages [Petitioner] sent to his
ex-girlfriend, K.D. (["Karen"]), ... and evidence of a domestic
violence incident involving the couple.

Following a six-day trial, a jury found [Petitioner] guilty on all
counts. The judge sentenced [Petitioner] to an aggregate [of] sixty
years in prison, subject to [a significant parole ineligibility term].

. . . On October 27, 2013, Karen and [Petitioner], her boyfriend at
the time, had an argument that ended with [Petitioner] hitting Karen
in the face. [Petitioner] told Karen "he was the devil," and
threatened he "would hurt [Karen] and [her] family." Karen called
the police, and the police charged [Petitioner] with simple assault,
criminal mischief, and obstructing justice. [Petitioner] pled guilty
to [the] simple assault charge [and may also have pled guilty to the
two remaining charges.]

The following day, [Petitioner] told Karen he had been drunk the
night before, and accidentally hit her. Karen ended the relationship,
but the two continued to exchange text messages. Eventually, the
text messages became threatening, and Karen feared for her family's
safety.

On November 13, 2013, [Petitioner] texted Karen, requesting to
sleep at her home. Karen repeatedly told [Petitioner] that she did
not wish to see him. [Petitioner] also called Karen four times, but
she did not respond.

Around 9:00 p.m. the same day, Karen and her mother [Sara] went
upstairs to put Karen's daughter and nephew to bed. Around 10:30
p.m., [Petitioner] entered Karen's bedroom with a screwdriver.
Karen ordered [Petitioner] to leave. [Petitioner] initially ignored her
command, but eventually dropped the screwdriver.

Sara entered Karen's bedroom, and also demanded [Petitioner]
leave. Sara then told Karen to remain upstairs while she escorted
[Petitioner] to the front door. Karen ran downstairs when she heard
her mother scream. She saw [Petitioner]'s hand thrusting towards
her mother and "[i]t appeared as if he was punching her." Karen
tried to intervene, but when [Petitioner] turned around, she saw he
had "a bloody knife in his hand." Karen further testified,

when I pushed him, he stabbed me twice in my hip.
I fell onto my knees. He stabbed me twice in my
back. And when I tried to get up, he went to stab me

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in my heart, but I put my arm up in defense and the
blade went into my forearm. And I tried to scramble
up to catch my balance and I looked over any my
mom was laid out on the floor completely
unconscious at this point.

Subsequently, [Petitioner] asked Karen for her car keys, and she
lied, telling him the keys were in the living room. When [Petitioner]
went to get the keys, Karen escaped and ran towards her neighbor's
house. [Petitioner] ran after Karen, but fled when she began
screaming. The neighbor then called the police.

First responders transported Sara to Cooper Hospital, where she died
at 11:21 p.m. Karen went to the same hospital, where she received
treatment for stab wounds to her neck (near her carotid artery), collar
bone, both sides of her abdomen, and defensive wounds on her arms.

Merchantville police officer, Sergeant Greg Miller went to the crime
scene at 10:34 p.m. While there, he received a report that the
Camden City police had a suspect - later identified as [Petitioner] -
in custody at [Our] Lady of Lourdes Hospital. [Petitioner] had a
knife wound in his hand.

Sergeant Miller arrived at the hospital around midnight, November
14, 2013, and took custody of [Petitioner]. At that point, [Petitioner]
was sleeping and handcuffed to a gurney. Around 5:30-6:00 a.m.,
[Petitioner] woke up, and a doctor stitched his hand. At some point
during [Petitioner]'s stay at the hospital, staff gave him Ativan and
Haldol because he was "combative."

Around 6:00 a.m., Sergeant Miller transported [Petitioner] to the
Camden County Prosecutor's Office for processing. Upon leaving
the hospital, [Petitioner] could walk on his own, and neither
stumbled nor leaned on anyone for support. Sergeant Miler further
testified, based upon his experience with "hundreds" of intoxicated
individuals, that [Petitioner] appeared oriented, alert, and not
intoxicated.

Also on November 14, 2013, a neighbor of the victims found a knife
and believed it may have been involved in the homicide; the
neighbor called police who retrieved the knife. A lab technician
found both [Petitioner]'s and Karen's DNA on the knife.

That same day, a medical examiner performed an autopsy on Sara.
He noted she had "seven stab and incise wounds." One stab wound
was around four inches deep and struck Sara's lung and aorta. He
opined [that] this caused massive bleeding and rapid death. Sara

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also had a stab wound to her stomach, which he believed could also
have caused death, either from bleeding or infection. The medical
examiner further opined Sara died from the stab wound to her aorta,
and no other preexisting injuries or disease contributed to her death.

On November 14, 2013, at around 2:00 a.m., [Petitioner]'s sister
Nancy provided a statement to the police, which the judge permitted
the State to play for the jury. In her statement, Nancy told police
her brother called her on the night of the homicide. He stated "he
was hurt," "bleeding," "dying," and "wanted to die." When Nancy
found [Petitioner], he was bleeding, and told her that he "and
[Karen] got in a sword fight." He also said "something about
stabbing [Karen and her mom] in the lung." Nancy explained
[Petitioner] "was drunk" and he "drinks a lot, a lot." Nancy took
[Petitioner] to the hospital, where police ultimately apprehended
him.

Detective Peter Longo, who interrogated [Petitioner], testified at the
pretrial suppression hearing. He stated that at the interrogation,
[Petitioner] appeared "tired," "evasive," and "cautious." He further
testified he read [Petitioner] his [rights under Miranda v. Arizona,
384 U.S. 436 (1966),] and [Petitioner] signed the Miranda form.
The detective stated [Petitioner] did not appear intoxicated or under
the influence of drugs during the interrogation, and [Petitioner] was
able to maintain a coherent conversation. However, he also
acknowledged that during the interrogation, he had to ask
[Petitioner] to stay awake, sit up, and repeat himself.

....

. the [trial] judge thoroughly considered the totality of the
circumstances, including [Petitioner]'s prior history with law
enforcement, his ability to coherently converse with Detective
Longo, and Detective Longo's testimony that [Petitioner] did not
appear intoxicated. [The judge found that Petitioner] remained
capable of conversing and lacked indicia of intoxication despite
receiving two drugs before the interrogation and his alleged
hangover [and noted that] [Petitioner was] engaged, inquisitive, and
"animated" during the interrogation[, and found Petitioner had
knowingly and voluntarily waived his rights under Miranda, and
admitted his statement to the police into evidence at trial.]

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## II. LEGAL STANDARD

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, 846-47 (3d Cir. 2013). 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:

(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

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, 575 U.S. 312, 316 (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]

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applicant shall have the burden of rebutting the presumption of correctness by clear and convincing
evidence." 28 U.S.C. § 2254(e)(1).

## III. DISCUSSION

### A. Petitioner's Miranda Claim

In his habeas petition, Petitioner first raises a claim in which he asserts that the admission
of his statement to police at trial violated his rights under Miranda and its progeny. He believes
his waiver of his rights was not knowing, intelligent, or voluntary, in light of his drinking and
being medicated prior to being taken into custody. The Appellate Division rejected this claim on
direct appeal. It found that, having considered the totality of the circumstances, Petitioner did not
appear to be intoxicated at the time of the interrogation and engaged in a pattern of actions during
questioning, indicating that he was adequately engaged and sufficiently aware that it was clear
from the record that Petitioner had made a knowing and voluntary decision in choosing to waive
his rights and speak to police.

Under the constitutional structure established in Miranda and its progeny, a statement made
by a defendant during a custodial interrogation is inadmissible at trial unless the defendant is
advised of his rights-that he has the right to remain silent, that anything he says can be used
against him, that he has the right to an attorney, and that an attorney will be appointed for him
prior to questioning if he so chooses-and "in fact knowingly and voluntarily waived [these]
rights." Berghuis v. Thompkins, 560 U.S. 370, 380-82 (2010). Under the Miranda rule, to preserve
the admissibility of a defendant's statements, police must cease questioning where one of these
rights is invoked, but only where that invocation is unambiguous. Id. at 381-82. So long as there
is no unambiguous invocation of the right to silence or the right to counsel, a statement will be
admissible as long as the record indicates that the defendant knew the nature of the right he was
choosing to waive and voluntarily chose to forgo that right. Id. at 381-83. Waiver need not be

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made expressly or in writing, but need only be implicitly clear from the defendant's actions. Id.
at 384.

The Appellate Division's rejection of Petitioner's Miranda claim was neither contrary to
nor an unreasonable application of applicable federal law. Although Petitioner had been drinking
the prior evening and was provided with medications that could have affected his mental state
several hours before he was intoxicated, the testimony in the record indicates that Petitioner was
awake, aware, and at times quite animated during his interrogation. Nothing in the record of the
interrogation or Petitioner's waiver of his Miranda rights during that process shows that
Petitioner's choice was anything other than knowing, intelligent and voluntary. As the totality of
the circumstances supports the Appellate Division's conclusions, the admission of Petitioner's
statement was in line with federal law and serves as no basis for habeas relief.

Putting aside the merits of Petitioner's claims, the Court notes that the admission of
Petitioner's statement was also likely harmless in this case. In a habeas proceeding, errors of even
a constitutional dimension will be considered harmless and provide no basis for relief unless they
had a substantial and injurious effect upon the outcome of the petitioner's trial. Fry v. Pliler, 551
U.S. 112, 115-16 (2007). Even without his statement to police, the trial record contains the
testimony of the surviving victim as well as DNA and physical evidence that directly tied Petitioner
to the knife used in the attack upon the surviving victim and her mother. The record also contains
evidence of prior threats, as well as Petitioner's statement to his sister that he had gotten into a
"sword fight" with the victim and stabbed both victims in the process. Given this considerable
evidence of Petitioner's guilt, it is doubtful that the admission of Petitioner's statement to police
had a substantial and injurious effect on the outcome of Petitioner's trial. Thus, it is doubtful that
this claim could serve as a basis for habeas relief even if it had amounted to a violation of the rules
set forth in Miranda and its progeny.

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### B. Petitioner's Prior Bad Acts Claim

Petitioner next argues that the state courts erred in admitting testimony regarding the prior
domestic violence incident between himself and Karen, and that that testimony amounted to
improper prior bad acts testimony. The Appellate Division rejected this claim on direct appeal
and found that the facts and circumstances of the prior incident and resulting assault conviction
were admissible as they were highly relevant to Petitioner's motive, intent, and lack of accident or
mistake in committing the attack upon the two victims. The Appellate Division also found that
any prejudice from the admission of the testimony was obviated by the limiting instruction
provided by the trial court.

The Supreme Court has never held that evidence of prior bad acts-even when they amount
to other crimes-must be excluded from criminal trials, nor that a curative instruction or other
restriction is per se required for a criminal conviction to survive constitutional scrutiny where such
evidence is admitted. See generally Estelle, 502 U.S. 62; Greer v. Miller, 483 U.S. 756 (1987);
Spencer v. Texas, 385 U.S. 554 (1967); see also Minett v. Hendricks, 135 F. App'x 547, 553
(2005). As with most state court evidentiary decisions, the admission of such evidence will only
warrant habeas relief where the admission of the evidence was so unduly prejudicial that it
rendered the petitioner's trial fundamentally unfair. Glenn, 743 F.3d at 407; Minett, 135 F. App'x
at 553.

The state courts' admission of the prior domestic violence incident at Petitioner's trial did
not have the capacity to render Petitioner's trial fundamentally unfair, especially in light of the
considerable evidence of Petitioner's guilt produced at trial and the trial court's provision of a
limiting instruction to the jury that it could only consider the prior incident for appropriate
purposes. The prior incident-and especially the threat Petitioner made during the prior incident-
was highly relevant to Petitioner's guilt of the attack on Karen and her mother, and was especially

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relevant to showing Petitioner's intentions, and that his entry into Karen's home and attack upon
Karen and her mother were not a mistake or accident. Given the clear relevance of the evidence,
the trial court's limiting instruction prohibiting the consideration of the prior incident for
propensity purposes, and the overwhelming evidence of Petitioner's guilt presented at his trial, the
decision of the state courts to admit that evidence was neither contrary to nor an unreasonable
application of federal law. Petitioner's prior bad acts claim thus serves as no basis for habeas
relief.

### C. Petitioner's Ineffective Assistance of Counsel Claims

In his final series of claims, Petitioner asserts that he suffered ineffective assistance of
counsel at trial and on direct appeal. The standard applicable to claims of ineffective assistance of
counsel is well established:

[c]laims of ineffective assistance are governed by the two-prong test
set forth in the Supreme Court's opinion in Strickland v.
Washington, 466 U.S. 668 (1984). To make out such a claim under
Strickland, a petitioner must first show that "counsel's performance
was deficient. This requires [the petitioner to show] that counsel
made errors so serious that counsel was not functioning as the
'counsel' guaranteed by the Sixth Amendment." Id. at 687; see also
United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007). To
succeed on an ineffective assistance claim, a petitioner must also
show that counsel's allegedly deficient performance prejudiced his
defense such that the petitioner was "deprive[d] of a fair trial . . .
whose result is reliable." Strickland, 466 U.S. at 687; Shedrick, 493
F.3d at 299.

In evaluating whether counsel was deficient, the "proper standard
for attorney performance is that of 'reasonably effective
assistance."" Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). A
petitioner asserting ineffective assistance must therefore show that
counsel's representation "fell below an objective standard of
reasonableness" under the circumstances. Id. The reasonableness
of counsel's representation must be determined based on the
particular facts of a petitioner's case, viewed as of the time of the
challenged conduct of counsel. Id. In scrutinizing counsel's
performance, courts "must be highly deferential . .. a court must
indulge a strong presumption that counsel's conduct falls within the

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wide range of reasonable professional assistance." Strickland, 466
U.S. at 689.

Even where a petitioner is able to show that counsel's representation
was deficient, he must still affirmatively demonstrate that counsel's
deficient performance prejudiced the petitioner's defense. Id. at
692-93. "It is not enough for the defendant to show that the errors
had some conceivable effect on the outcome of the proceeding." Id.
at 693. The petitioner must demonstrate that "there is a reasonable
probability, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome."
Id. at 694; see also Shedrick, 493 F.3d at 299. Where a "petition
contains no factual matter regarding Strickland's prejudice prong,
and [only provides] . . . unadorned legal conclusion[s] ... without
supporting factual allegations," that petition is insufficient to
warrant an evidentiary hearing, and the petitioner has not shown his
entitlement to habeas relief. See Palmer v. Hendricks, 592 F.3d 386,
395 (3d Cir. 2010). "Because failure to satisfy either prong defeats
an ineffective assistance claim, and because it is preferable to avoid
passing judgment on counsel's performance when possible,
[Strickland, 466 U.S. at 697-98]," courts should address the
prejudice prong first where it is dispositive of a petitioner's claims.
United States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002).

Judge v. United States, 119 F. Supp. 3d 270, 280-81 (D.N.J. 2015).

Petitioner first argues that his counsel proved ineffective in failing to provide an expert
witness as to intoxication at his Miranda hearing. The Appellate Division rejected this claim in
deciding Petitioner's appeal from the denial of his PCR petition. The Appellate Division noted
that the PCR trial judge had found that the expert witness Petitioner provided was willing to opine
only that Petitioner may have had "minimal impairment" during the interrogation, and that such
testimony would not be sufficient to warrant the suppression of Petitioner's statement. That
decision was neither contrary to nor an unreasonable application of federal law. As noted by the
state courts, Petitioner's proffered expert was at most willing to assert that Petitioner may have
been minimally impaired at the time of his interrogation, an assertion that would not be sufficient
to overcome the remaining evidence that showed that Petitioner was aware, and sufficiently alert

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and engaged such that his waiver of his rights was knowing and voluntary. As the expert's
testimony would not have affected the outcome of the Miranda hearing, Petitioner was not
prejudiced by the failure to call such an expert, and Petitioner's first ineffective assistance of
counsel claim serves as no basis for habeas relief.

Petitioner next asserts that trial counsel proved ineffective in failing to request a jury
instruction as to intoxication. The Appellate Division rejected this claim, finding, as did the trial
level PCR judge, that the facts in Petitioner's case did not sufficiently support the entry of an
intoxication instruction at trial as there was insufficient evidence at trial sufficient to indicate that
Petitioner was so intoxicated that it could have prevented him from having the necessary mental
state to support a conviction for murder. Thus, there was no basis in state law for providing such
a charge in this case. As there was no basis for such an instruction under state law given the facts
of Petitioner's case, any request for such a charge at trial would have been meritless. Because
counsel cannot be ineffective for failing to press a meritless claim or argument, see United States
v. Aldea, 450 F. App'x 151, 152 (3d Cir. 2011) (counsel cannot be ineffective in failing to raise a
meritless objection); Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000) (same), Petitioner's
intoxication instruction claim serves as no basis for habeas relief.

Petitioner next contends that counsel proved ineffective in failing to sufficiently argue that
law enforcement failed to adequately inform Petitioner of the serious charges he faced prior to his
interrogation, resulting in his waiver of his rights being less than knowing or voluntary. The state
courts rejected Petitioner's claims challenging counsel's alleged failings related to his statement
to the police by finding that Petitioner could not show prejudice as Petitioner's statement to the
police was far less incriminating than the other overwhelming evidence of Petitioner's guilt
produced at trial. Petitioner therefore would have been convicted even had his statement been
suppressed. This decision was neither contrary to nor an unreasonable application of Strickland.

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The evidence against Petitioner at trial-including the testimony of the surviving victim,
Petitioner's statements to his sister, and the DNA evidence tying Petitioner to the knife he used in
the attack-was significant. Had Petitioner's statement to the police been suppressed, there is no
reasonable likelihood that the outcome of his trial would have been different. Petitioner therefore
cannot show prejudice and his ineffective assistance claims related to the admission of his
statement thus serve as no basis for habeas relief.

Petitioner next argues that counsel failed to adequately inform him of his sentencing
exposure should he proceed to trial, resulting in him rejecting a plea offer. The state courts rejected
this claim, finding that Petitioner had received multiple pre-trial hearings during which the
possibility of a plea agreement had been discussed and explained, and during which Petitioner had
been provided clear information as to the state's plea offers. The PCR trial court also noted that
Petitioner had not given counsel authority to resolve the plea negotiations through a counter-offer,
and that counsel had acted reasonably in regards to plea negotiations.

The state court plea cut-off hearing indicates that the state initially offered Petitioner a plea
deal of thirty years for the murder charge and a consecutive eighteen year sentence for attempted
murder. (ECF No. 10-49 at 3.) Petitioner rejected that offer and instead sought a twenty-five-year
sentence, which the state rejected. (Id.) During that hearing, Petitioner was directly informed that
he faced a sentence of up to life on the murder charge, as well as a further consecutive sentence of
ten to twenty years on the attempted murder charge. (Id. at 4.) Petitioner was thereafter given an
extension of time to consider the state's offer. (Id.) At the next hearing, Petitioner was again
directly informed by the trial court that he faced a total sentence of up to life plus a consecutive
twenty-year sentence, but Petitioner was still not interested in the state's offer. Petitioner,
however, was given a final opportunity to decide whether he wished to accept a plea. (ECF No.
10-50 at 4.) At a follow-up hearing, Petitioner was still not interested in the state's offer, and was

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only interested in a plea of twenty or twenty five years. (ECF No. 10-51 at 4.) Petitioner was once
again informed of his maximum exposure, but was still not willing to accept a plea deal of greater
than twenty five years' imprisonment. (Id. at 4-5.) Petitioner did not accept the state's offer or
make a counter-offer acceptable to the state, and no plea deal was ever reached.

As the state courts noted, the record clearly establishes that Petitioner was explicitly told
that he faced the possibility of a life and a consecutive twenty-year sentence, and that it was made
abundantly clear to Petitioner that consecutive sentences were a very real possibility if he lost at
trial. The record thus refutes Petitioner's assertions that he was not properly provided with his
sentencing exposure and shows that a plea deal did not happen because Petitioner was unwilling
to accept a deal for over twenty-five years, a number to which the state would not agree. Because
Petitioner was provided with the information he alleges he lacked, and it is clear that the failure to
reach a plea deal was the result of Petitioner's unwillingness to accept a sentence to which the state
would agree, he cannot show that he was prejudiced by any failing on counsel's part. In any event,
Petitioner has failed to show that counsel proved ineffective in not providing him information
which was made clear to him during several plea cut-off hearings. This claim is therefore without
merit, and serves as no basis for habeas relief.

In his next claim, Petitioner asserts that counsel proved ineffective in agreeing to a
stipulation regarding the witness who discovered the knife following Petitioner's flight. This
stipulation essentially stated that the witness in question had found the knife and turned it into
police and had "do[ne] his citizen's duty" in doing so. (See ECF No. 10-36 at 12.) The parties
agreed to this stipulation at trial as the witness was no longer present in New Jersey, and had he
been called his testimony would have been brief and would have covered the same points.
Petitioner now believes that this stipulation prevented him from confronting the witness through

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cross examination, including as to his criminal history.1 The Appellate Division rejected this
claim, as the stipulated statement was unbiased, and Petitioner could not show that he was
prejudiced by counsel agreeing to the stipulation rather than forcing the witness to return for trial.
Given the strong evidence of Petitioner's guilt, and the fact that DNA evidence established the
knife in question to be the one Petitioner used to stab his former girlfriend and by which he was
cut, there was essentially no value regarding cross examination of this witness, who did no more
than find the knife. Challenging his credibility would not have had any likelihood of affecting the
outcome of Petitioner's trial, and Petitioner therefore cannot show that he was prejudiced by
counsel agreeing to the stipulation. This ground thus serves as no basis for habeas relief.

Petitioner also asserts that his appellate attorneys proved ineffective in failing to raise all
of the claims he wished to present. The Appellate Division rejected this claim on the merits,
finding that counsel's choice of which claims to raise on appeal was a "reasonable litigation
strategy" focusing on presenting "appropriate and meritorious" arguments. (ECF No. 10-36 at 13,
16-17.)

While appellate counsel's decisions are subject review under the Strickland standard, 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) (citing
Jones v. Barnes, 463 U.S. 745, 751-52 (1983)), and appellate counsel need not raise every
nonfrivolous claim a defendant wishes to pursue. Barnes, 463 U.S. at 751. As the chief component

1 Petitioner also asserts that trial counsel was ineffective in fully investigating the absent witness
who was the subject of the stipulation and in failing to fully appreciate the witness's criminal
history. As discussed above, however, the witness's testimony was limited to the discovery of the
knife, and, in light of the overwhelming evidence of Petitioner's guilt presented at trial, there is no
reasonable likelihood of a different outcome had counsel more thoroughly investigated, called, or
sought to question the credibility of this witness. Petitioner's investigation claim therefore also
fails to establish any prejudice and fails to state a basis for habeas relief.

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of effective appellate advocacy is the winnowing out of weaker claims in favor of those with a
greater chance of success, id. at 751-52; 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)). Because
Petitioner has failed to show that any of the claims he now wishes to raise had been raised on
appeal were stronger than those counsel chose to pursue, and the issues counsel chose to pursue
were reasonable under the circumstances, Petitioner fails to show that he was prejudiced by
appellate counsel's choices. The state courts' decisions were thus neither contrary to nor an
unreasonable application of federal law, and this claim serves as no basis for habeas relief.

Finally, Petitioner asserts that he also wishes to "submit his other ineffective assistance of
counsel claims" presented in his PCR petition and on appeal from the denial of the PCR petition.
Those claims include the following: (1) counsel failed to investigate and call a number of witnesses
who could have testified that Petitioner had been intoxicated earlier during the night of the attack;
(2) counsel proved ineffective in failing to reschedule a February 2015 pretrial conference;
(3) counsel failed to argue against consecutive sentences on the ground that the attacks on the two
victims were really a single event; (4) trial counsel and appellate counsel failed to argue that the
prosecutor had a duty to correct alleged false testimony; (5) trial counsel failed to provide
testimony indicating that the victim had dropped a restraining order prior to the attack; (6) counsel
failed to appropriately challenge the initial criminal complaint; and (7) the cumulative failures of
counsel constitute a basis for relief. (See ECF No. 10-32.) The Appellate Division rejected all of
these claims as meritless.

In his habeas petition, Petitioner provides no arguments in support of these claims. He
submits no certifications or other proof of what the alleged witnesses would have testified to had

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they been called at trial and provides no basis for finding that he was in any way prejudiced by the
missed pretrial conference. Petitioner fails to show that the prosecutor in any way knowingly
suborned perjury or even that the statements of the victim during trial were false rather than merely
different from Petitioner's version of events. Petitioner fails to show that the prosecutor at trial
committed improper vouching, fails to show that the information regarding the dropped restraining
order would have in any way undermined the strong evidence of his guilt at trial, and fails to show
that further argument would have likely resulted in concurrent rather than consecutive sentences.2
Petitioner also fails to show that any deficiency in the criminal complaint against him was
sufficient to have affected the outcome of his case. Petitioner has thus not provided any clear
evidence of prejudice in relation to the claims he now seeks to incorporate by reference.

In light of the considerable evidence of Petitioner's guilt presented at trial, and the lack of
any clear evidence of prejudice provided by Petitioner, the Court cannot find that the state courts'
rejection of these claims as meritless was contrary to or an unreasonable application of Strickland
and its progeny. Likewise, Petitioner's claims of cumulative prejudice similarly must fail. Even
considering the claims cumulatively, Petitioner cannot show that he was prejudiced in light of the
strong evidence of his guilt provided at trial. Petitioner's incorporated claims, therefore, serve as
no basis for habeas relief. Because Petitioner has failed to show any basis for relief, his amended
habeas petition is denied.

## IV. CERTIFICATE OF APPEALABILITY

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

2 The Court notes that the PCR judge and Appellate Division both noted that consecutive sentences
were supported by the record and were thus proper under state law, and that counsel had, in fact,
argued against consecutive sentences during sentencing. (ECF No. 10-36 at 13-14.)

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"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 Petitioner's habeas claims are all without merit for the reasons set forth above,
he has failed to make a substantial showing of a denial of a constitutional right, and his petition is
not adequate to receive encouragement to proceed further. The Court therefore denies Petitioner
a certificate of appealability.

## V. CONCLUSION

Petitioner's amended habeas petition (ECF No. 2) is DENIED, and Petitioner is DENIED
a certificate of appealability. An appropriate order follows.

Mathupp
MICHAEL A. SHIPP
UNITED STATES DISTRICT JUDGE

Dated:
October 13, 2026