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[[COURTLISTENER_SUBOPINION {"id":"11175901","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
MARK BROWNE, :
: Civil No. 23-23399 (JKS)
Petitioner, :
:
v. : OPINION
:
ROBERT CHETIRKIN, :
:
Respondent. :
:
SEMPER, District Judge
This matter comes before the Court on the petition for writ of habeas corpus filed pursuant
to
28 U.S.C. § 2254
by pro se Petitioner Mark Browne (“Petitioner”), a prisoner confined at East
Jersey State Prison (“EJSP”) in Rahway, New Jersey. (“Pet.” ECF No. 1.) Petitioner asserts two
grounds for relief challenging his trial and conviction, including claims of evidentiary error and
ineffective assistance of counsel. (Id. at 5–11.) Respondents filed an answer opposing habeas
relief. (“Opp’n” ECF No. 7.) Petitioner filed a reply. (“Reply” ECF No. 10.) Accordingly, the
matter is fully briefed and ready for disposition.
The Court has carefully considered the parties’ submissions and decides the matter without
oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1. For the
reasons discussed below, the Court will deny the petition and will not issue a certificate of
appealability.
I. FACTUAL BACKGROUND
The Court defers to the state courts’ factual determinations pursuant to
28 U.S.C. §
2254
(e)(1) and adopts the facts as set forth by the New Jersey Superior Court, Appellate Division
(“Appellate Division”), in its opinion on direct appeal.
Following up on a 911 call, the North Bergen police found the dead
body of a man near the intersection of a major highway, later
identified through his fingerprints as Darryl Williams. A detective
testified that the hands of the victim were bound by a belt, duct tape,
and cell phone charger cord. His head was encased in a bloody
pillowcase. A rope was around his neck and his mouth was taped
shut with duct tape. According to the detective, it appeared the
victim had crawled away from underneath a mattress that was
loaded on top with cinderblocks; the mattress had blood on it and
there was a trail of blood leading from the mattress to the body. A
U-Haul truck that also had blood on it was parked near the mattress.
An assistant medical examiner testified the victim died from
“asphyxia due to obstruction of [the] airway with multiple blunt and
sharp-force injuries.” The autopsy showed cuts and bruising to his
forehead, eyelids, ears, and lips; a hemorrhage in the white of his
left eye; chipped teeth; a hemorrhage of the tongue; and contusions
to his chest, sides and back. He had six broken ribs. One arm was
completely bruised from the shoulder to the elbow. He had injuries
to his hands consistent with defensive wounds. He had been cut or
stabbed twenty-three times in the head, back, shoulders, arms and
feet.
The victim lived in Newark with his girlfriend, Latoya Mozee.
Another detective testified that the police search of her apartment
showed bloodstains in the bedroom, stairs and landing. A metal leg
was missing from the kitchen table. Kitchen knives were missing.
Qudeera Adams testified at trial that she learned Latoya Mozee had
been beaten up by her boyfriend Darryl Williams. Latoya’s injuries
were visible. When defendant became aware of this, he said “he was
going to knock [Darryl] out and teach him a lesson not to hit girls.”
Adams testified that defendant drove her and Nydia Mozee
(Latoya’s sister) to buy duct tape. Defendant had a BB gun in the
back of his white Cadillac Escalade. They picked up Kathleen Jones
2
and then Daeshawn Jennings, known as “Certified.” Defendant paid
Certified twenty dollars to “knock out” Darryl.
Adams testified that defendant drove the group to Latoya’s
apartment; Darryl was there. Certified beat him with the metal table
leg; defendant tied up Darryl’s head, taped his mouth shut and put a
pillowcase over his head. They all beat him. When Darryl stopped
moving, Adams testified that defendant wrapped him in a blanket
and carried him out to the Escalade. Defendant drove them to the U-
Haul lot where defendant and Certified deposited Darryl. Adams
testified that defendant told the group not to mention any of this to
anyone. Defendant drove the group to purchase cleaning supplies.
Videotaped evidence showed defendant and Latoya Mozee at a
Pathmark store at 2:14 a.m.
Defendant gave a different version of the events. Defendant testified
that he was not driving the Escalade on the night of the assault. He
worked for a car dealer and earlier that day, he and another employee
(co-worker) went to South Jersey in the Escalade to pick up a car.
After they brought that back, defendant switched to driving a black
sedan while his co-worker kept the Escalade. Defendant was driving
the black sedan when—after stopping to pick up Adams and another
woman and purchasing some food at the Pathmark—he went to
Latoya’s apartment for a “gathering.” He acknowledged learning
that same day that Darryl had beaten up Latoya. Defendant testified
that after he used the bathroom at Latoya’s, he came out to
“madness” because a fight had broken out. He claimed that Darryl
had beaten Latoya for a second time that night. He saw Latoya, his
coworker and others beating Darryl and said he tried to stop it. He
testified that he did assist in holding down Darryl with “six other
people in the room” but this was to “get him calmed down and stop
everyone from hitting him.” Someone put Darryl in a blanket and
loaded him in the Escalade. There was blood coming from the
blanket and defendant assumed they were taking him to the hospital
because somebody mentioned that.
In the early morning, defendant went over to Sharo Willis’ house in
the black sedan, not the Escalade. Shortly after, Nydia called him
because she did not have money to buy cleaning supplies. He met
her and others at a Pathmark. He left there for another friend’s house
and then took a cab to visit another friend.
3
Later that day, defendant was driving the Escalade when he was
stopped by the police for a traffic violation. The car was impounded
for ten days. He retrieved it and then sold it in Virginia.
State v. Browne, No. A-2874-16,
2019 WL 3315600
, at *1–2 (N.J. Super. Ct. App. Div. July 24,
2019). The Appellate Division recounted that Petitioner was indicted for first-degree murder
(count one); and third-degree endangering an injured victim (count two).
Id. at *2
. A jury
convicted him of the lesser included offense of manslaughter.
Id.
The State dismissed the second
count of the indictment.
Id.
II. PROCEDURAL HISTORY
Prior to imposing sentence, the trial court granted the State’s motion under N.J. Stat. §
2C:44-3(a) for a discretionary extended term based on Petitioner’s status as a persistent offender.
Browne,
2019 WL 3315600
, at *2. Petitioner was sentenced on December 22, 2016.
Id.
The
sentence was an eighteen-year term of incarceration with an eighty-five percent period of parole
ineligibility under the No Early Release Act (“NERA”).
Id.
Petitioner filed a direct appeal to the
Appellate Division, raising the following arguments.
Id. at 2
.
POINT ONE: THE TRIAL COURT ERRED BY PRESENTING
THE FLIGHT CHARGE TO THE JURY OVER THE OBJECTION
OF DEFENSE COUNSEL.
POINT TWO: THE TRIAL COURT ERRED IN REFUSING TO
PERMIT A DEFENSE (ALIBI) WITNESS TO TESTIFY.
POINT THREE: THE COURT ERRED IN REFUSING TO
ALLOW TESTIMONY ABOUT THE 911 CALL ON
DECEMBER 30, 2012 REGARDING THE DOMESTIC
VIOLENCE.
POINT FOUR: THE TRIAL COURT ERRED BY IGNORING
STRONG MITIGATING FACTORS IN DEFENDANT'S FAVOR
AT SENTENCING.
4
POINT FIVE: THE COURT ERRED IN IMPOSING A
DISCRETIONARY EXTENDED SENTENCE UNDER THE
FACTS OF THIS CASE.
POINT SIX: THE SENTENCE WAS EXCESSIVE AND THE
COURT ERRED BY IMPOSING A DISCRETIONARY
EXTENDED SENTENCE BECAUSE THE STATUTORY
REQUIREMENTS WERE NOT MET.
Petitioner raised the following additional argument in his supplemental brief.
POINT ONE: EVEN IF ANY ONE OF THE COMPLAINED-OF-
ERRORS WOULD BE INSUFFICIENT TO WARRANT
REVERSAL OF THE CONVICTION THE CUMULATIVE
EFFECT OF THOSE ERRORS WAS TO DENY DEFENDANT
DUE PROCESS AND A FAIR TRIAL.
Browne,
2019 WL 3315600
, at *2.
The Appellate Division rejected these arguments and affirmed Petitioner’s conviction and
sentence on July 24, 2019. Browne,
2019 WL 3315600
, at *1. Petitioner sought certification from
the Supreme Court of New Jersey . (ECF No. 7-2, at 85–86.) On January 17, 2020, the Supreme
Court summarily denied certification. State v. Browne,
222 A.3d 1093
(N.J. 2020) (unpublished
table decision).
Petitioner filed a pro se petition for post-conviction relief (“PCR”) on May 6, 2020,
alleging ineffective assistance of trial and appellate counsel. (ECF No. 7-3, at 75–81.) Appointed
counsel filed a supplemental petition on December 20, 2020. (Id. at 1–14.) The court heard oral
argument on January 27, 2021, and denied the PCR petition in a written opinion on June 29, 2021.
(Id. at 83–93.) Petitioner thereafter filed a notice of appeal. (Id. at 94–97.) On appeal, Petitioner
raised the following issues:
5
POINT ONE: DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE OF TRIAL COUNSEL FOR FAILURE TO
COMPLY WITH THE COURT RULES REGARDING NOTICE
OF AN ALIBI WITNESS, AND FOR FAILING TO PRESENT
AVAILABLE PROOF OF MITIGATION AT TIME OF
SENTENCE.
(a) APPLICABLE LAW.
(b) DEFENDANT WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL FOR FAILURE TO
COMPLY WITH COURT RULES GOVERNING THE
NOTICE OF AN ALIBI WITNESS.
(c) DEFENDANT WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL FOR COUNSEL’S
FAILURE TO PRESENT EVIDENCE OF DEFENDANT’S
COOPERATION WITH LAW ENFORCEMENT AS
MITIGATION AT THE TIME OF SENTENCE.
State v. Browne, No. A-0212-21,
2022 WL 16732377
, at *2 (N.J. Super. Ct. App. Div. Nov. 7,
2022).
On November 7, 2022, the Appellate Division affirmed substantially for the reasons
expressed in the PCR court’s opinion. Browne,
2022 WL 16732377
, at *3. The Supreme Court
of New Jersey denied certification on January 27, 2023. State v. Browne,
288 A.3d 451
(N.J. 2023)
(unpublished table decision).
On December 28, 2023, Petitioner filed the instant pro se habeas petition. (Pet., at 1–16.)
Respondents filed an answer opposing relief on May 9, 2024. (Opp’n, at 1–25.) On July 12, 2024,
Petitioner filed a reply. (Reply, at 4–26.)
III. LEGAL STANDARD
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
Pub. L. No.
104-132, 110
Stat. 1214 (1996), which amended
28 U.S.C. § 2254
, a district court “shall entertain
6
an application for writ of habeas corpus [on] 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.”
28 U.S.C. § 2254
. Habeas petitioners bear the burden of establishing
their entitlement to relief for each claim presented in a petition based upon the record that was
before the state court. See Harrington v. Richter,
562 U.S. 86, 103
(2011); Eley v. Erickson,
712
F.3d 837, 846
(3d Cir. 2013).
Moreover, district courts are required to give great deference to the determinations of the
state trial and appellate courts. Renico v. Lett,
559 U.S. 766
, 772–73 (2010). Specifically, district
courts must defer to the “‘last reasoned’ decision of the state courts on the petitioner’s claims.”
Simmons v. Beard,
590 F.3d 223
, 231–32 (3d Cir. 2009). Where a claim has been adjudicated on
the merits by the state courts, the district court shall not grant an application for 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).
“Contrary to clearly established Federal law” means the state court applied a rule that
contradicted the governing law set forth in United States Supreme Court precedent or that the state
court confronted a set of facts that were materially indistinguishable from United States Supreme
Court precedent and arrived at a different result than the Supreme Court. Eley,
712 F.3d at 846
(citing Williams v. Taylor,
529 U.S. 362
, 405–06 (2000)). “Clearly established federal law for
7
purposes of [section 2254(d)(1)] includes only the holdings, as opposed to the dicta of the United
States Supreme Court’s decisions.” See Woods v. Donald,
575 U.S. 312
, 316 (2015). Even a
summary adjudication without explanation by the state court on the merits of a claim is entitled
to section 2254(d) deference. Chadwick v. Janecka,
312 F.3d 597, 606
(3d Cir. 2002). The state
court is not required to cite or even have an awareness of governing Supreme Court precedent “so
long as neither the reasoning nor the result of [its] decision contradicts them.” Early v. Packer,
537 U.S. 3, 8
(2002); Jamison v. Klem,
544 F.3d 266
, 274–75 (3d Cir. 2008).
The Third Circuit has held that the “unreasonable application” of clearly established
Supreme Court precedent encompasses three distinct scenarios: “(1) the state court extends
Supreme Court precedent to cover a new factual context in which application of the precedent is
unreasonable; (2) the state court unreasonably fails to apply a precedent in a factual context that
warrants its application; or (3) the state court applies the correct precedent, but unreasonably in
light of the facts of the case before it.” Jamison,
544 F.3d at 274
-75 (quoting Matteo v.
Superintendent,
171 F.3d 877, 887
(3d Cir. 1999).
Under the “unreasonable application” clause, 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. Duncan v. Morton,
256
F.3d 189, 196
(3d Cir. 2001) (citing Taylor, 529 U.S. at 412–13)). An “unreasonable application”
of clearly established federal law is an “objectively unreasonable” application of law, not merely
an erroneous application. Eley,
712 F.3d at 846
(quoting Renico, 559 U.S. at 773). “When
reviewing state criminal convictions on collateral review, federal judges are required to afford state
8
courts due respect by overturning their decisions only when there could be no reasonable dispute
that they were wrong.” Woods, 575 U.S. at 316.
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 t]he applicant shall have the burden of rebutting the presumption of correctness by clear and
convincing evidence.”
28 U.S.C. § 2254
(e)(1). Furthermore, “[w]hen a state court arrives at a
factual finding based on credibility determinations, the habeas court must determine whether that
credibility determination was unreasonable.” See Keith v. Pennsylvania,
484 F. App’x 694, 697
(3d Cir. 2012) (citing Rice v. Collins,
546 U.S. 333, 339
(2006)).
Finally, a pro se pleading is held to less stringent standards than more formal pleadings
drafted by lawyers. Estelle v. Gamble,
429 U.S. 97, 106
(1976); Haines v. Kerner,
404 U.S. 519,
520
(1972). A pro se habeas petition and any supporting submissions must be construed liberally
and with a measure of tolerance. See Royce v. Hahn,
151 F.3d 116, 118
(3d Cir.1998); Lewis v.
Attorney General,
878 F.2d 714
, 721–22 (3d Cir.1989); United States v. Brierley,
414 F.2d 552,
555
(3d Cir.1969), cert. denied,
399 U.S. 912
(1970). Thus, because Petitioner is proceeding as
a pro se litigant in this matter, the Court will accord his petition the liberal construction intended
for pro se petitioners.
IV. DISCUSSION
Petitioner presented his claims to the Appellate Division and to the Supreme Court of New
Jersey on both direct appeal and post-conviction review. As the Supreme Court of New Jersey
summarily denied each petition for certification, the Appellate Division’s opinions constitute the
“last reasoned” decision of the state courts addressing these claims. See Simmons,
590 F.3d at
9
231–32. Accordingly, this Court applies AEDPA deference to the Appellate Division’s decisions.
See
id.
A. Ground One: Exclusion of Alibi Witness
In Ground One, Petitioner argues that the trial court’s exclusion of Sharo Willis’s
(“Willis”) testimony, offered as a partial alibi witness, violated his Sixth Amendment right to
compulsory process. (Pet., at 5.) Respondents counter that Willis’s belated willingness to
cooperate—four weeks into trial—justified the trial court’s refusal to permit her testimony, that
the state courts correctly applied the governing standard, and that Petitioner raises no cognizable
federal claim. (Opp’n, at 16, 24.)
A federal court may entertain a habeas petition only if the petitioner is “in custody in
violation of the Constitution or laws or treaties of the United States.” Swarthout v. Cooke,
562
U.S. 216
, 219 (2011) (citing Wilson v. Corcoran,
562 U.S. 1, 5
(2010)); see also
28 U.S.C. §
2254
(a). Claims challenging the admissibility of evidence generally raise questions of state law,
which are not cognizable on federal habeas review. Keller v. Larkins,
251 F.3d 408
, 416 n.6 (3d
Cir. 2001); see also Estelle v. McGuire,
502 U.S. 62
, 67–68 (1991) (“It is not the province of a
federal habeas court to reexamine state-court determinations on state-law questions.”). Thus,
habeas relief is unavailable for state law evidentiary rulings unless those rulings rise to the level
of a due process violation. Estelle,
502 U.S. at 70
(“the Due Process Clause guarantees
fundamental elements of fairness in a criminal trial”) (quoting Spencer v. Texas,
385 U.S. 554
,
563–64 (1967)).
Because “[t]he Due Process Clause does not permit the federal courts to engage in a finely-
tuned review of the wisdom of state evidentiary rules,” Marshall v. Lonberger,
459 U.S. 422
, 438
10
n.6 (1983), a petitioner must show that an evidentiary error was so pervasive as to deny him a
fundamentally fair trial. See Keller,
251 F.3d at 413
. The Supreme Court has “defined the category
of infractions that violate ‘fundamental fairness’ very narrowly, based on the recognition that,
beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has
limited operation.” Glenn v. Wynder,
743 F.3d 402, 407
(3d Cir. 2014) (quoting Medina v.
California,
505 U.S. 437, 443
(1992)). In other words, “[i]n order to satisfy due process,
[Petitioner’s] trial must have been fair; it need not have been perfect.” Glenn,
743 F.3d at 407
(citing United States v. Hasting,
461 U.S. 499, 508
(1983)). A due process violation arises from
an evidentiary ruling only if that ruling was “so arbitrary or prejudicial that it rendered the trial
fundamentally unfair.” Scott v. Bartkowski, No. 11-3365,
2013 WL 4537651
, at *9 (D.N.J. Aug.
27, 2013) (citing Romano v. Oklahoma,
512 U.S. 1
, 12–13 (1994)).
On direct appeal, the Appellate Division held that the trial court acted within its discretion
in precluding Willis’s testimony. Browne,
2019 WL 3315600
, at *3. The court analyzed the claim
as follows:
Defendant argues the trial court erred by not permitting him to call
Sharo Willis as a witness. Defendant claims her testimony would
have provided him with an alibi for the time period when the victim
was being abandoned near the U-Haul. She was expected to testify
defendant was at her house during that time.
We review a trial court’s evidential rulings for abuse of discretion.
Hisenaj v. Kuehner,
194 N.J. 6, 12
(2008). We give “[c]onsiderable
latitude” to the trial court “in determining whether to admit evidence
and that determination will be reversed only if it constitutes an abuse
of discretion.” State v. Feaster,
156 N.J. 1, 82
(1998). Under this
standard, we will not substitute our own judgment for that of the trial
court, unless “the trial court’s ruling ‘was so wide of the mark that
a manifest denial of justice resulted.’” State v. Marrero,
148 N.J.
469, 484
(1997) (quoting State v. Kelly,
97 N.J. 178, 216
(1984)).
11
The State rested its case on September 22, 2016, subject to rebuttal.
Defendant raised this alibi issue for the first time on September 28,
2016. Willis’ name had not been given to the State as a witness. The
defense previously advised the State that it would not be calling alibi
witnesses. Defense counsel explained to the court that he recently
gained Willis’ cooperation for an interview, and now was requesting
to call her as a witness. The State opposed the request.
The trial court denied the application because “in week four of the
trial, there’s now a partial alibi witness whose name was not on the
witness list, no information regarding the woman has been furnished
to the State ....” The court found that there was prejudice to
defendant but “greater prejudice” to the State because it was
deprived of the opportunity to interview the witness, speak with her
or present its case knowing there was an alibi witness. Defendant
had the opportunity to provide notice of the alibi consistent with the
Rules. The court would not impose a less severe sanction because
the jury had been empaneled for four weeks, there were issues about
losing two jurors and only two alternates remained. The court found
the failure to comply with the Rules was willful and intended by the
defense to gain an advantage. The defense had two opportunities to
name alibi witnesses and had not done so.
Under Rule 3:12-2(a), defendant was to provide notice to the State
if he “intend[ed] to rely in any way on an alibi ....” Defendant
contends that Willis is a fact witness, but it was clear he intended to
offer her as an alibi witness to explain that defendant was not present
when the victim was abandoned at the U-Haul lot. The Rule
expressly applies to any potential alibi testimony.
Where part “a” of the Rule is violated, part “b” permits the trial court
to “refuse to allow the party in default to present witnesses at trial
as to defendant’s absence from or presence at the scene of the
alleged offense” or the court can adjourn or delay the trial “as the
interest of justice requires.” R. 3:12-2(b). In applying part “b,” a trial
court is to consider:
(1) the prejudice to the State;
(2) the prejudice to the defendant;
(3) whether other less severe sanctions are available to preserve
the policy of the rule, such as a continuance or a mistrial to permit
12
the State to investigate the alibi; and
(4) whether the defendant’s failure to give notice was willful and
intended to gain a tactical advantage.
[State v. Bradshaw,
195 N.J. 493, 507-08
(2008).]
Although defendant argues that Bradshaw should not apply because
the alibi did not relate to the time period when the victim was being
assaulted, this is wrong because the Rule applies where defendant
“intend[ed] to rely in any way on an alibi ....” R. 3:12-2(a). The trial
court considered all of the Bradshaw factors. It did not abuse its
discretion by denying the defendant’s request.
Browne,
2019 WL 3315600
, at *2–3. The Appellate Division also noted in a footnote that although
Petitioner invoked the Sixth Amendment in his reply brief, it declined to address that argument
separately because it was not previously raised in the formal brief. See Browne,
2019 WL
3315600
, at *3, n.3 (citing N.J. Ct. R. 2:6-5).
“Federal habeas courts reviewing convictions from state courts will not consider claims
that a state court refused to hear based on an adequate and independent state procedural
ground.” Davila v. Davis,
582 U.S. 521, 524
(2017). New Jersey Court Rule 2:6-5, which
precludes the use of a reply brief to add issues not previously raised, constitutes an independent
and adequate state procedural ground that bars federal habeas review. See Coleman v. Thompson,
501 U.S. 722
, 729–30 (1991) (Federal habeas relief is barred where the state court denies a claim
on an independent and adequate state procedural ground). Petitioner contends that his Compulsory
Process claim was properly raised in his merits brief, and expounded upon in his reply brief.
(Reply, at 11.)
Assuming arguendo that the Sixth Amendment argument was included in the opening brief,
the Appellate Division expressly declined to consider it when reasserted in reply. See Browne,
13
2019 WL 3315600
, at *3, n.3 (citing N.J. Ct. R. 2:6-5). The state court’s enforcement of Rule 2:6-
5 constitutes an independent and adequate state procedural ground that bars federal habeas review.
See Harris v. Reed,
489 U.S. 255
, 264 n.10 (1989) (The “plain statement” rule requires that a
federal habeas court will not treat a claim as procedurally defaulted unless the last state court to
issue judgment clearly and expressly indicates that its decision rests on a state procedural bar).
Petitioner has shown neither cause for the default nor prejudice. The claim is therefore
procedurally barred.
Even if the Court were to reach the merits, Petitioner would not be entitled to relief. Under
28 U.S.C. § 2254
(d), district courts must defer to the state court’s adjudication on the merits unless
it was contrary to, or an unreasonable application of, clearly established federal law, or based on
an unreasonable determination of the facts in light of the evidence presented.
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to have compulsory process for obtaining witnesses in his favor.” U.S. Const. amend.
VI. The Supreme Court has interpreted the Compulsory Process clause to encompass a criminal
defendant’s right to present witnesses and evidence in his defense, “even though [such a right] is
not expressly described in so many words.” Gov’t of Virgin Islands v. Mills,
956 F.2d 443, 445
(3d Cir. 1992) (quoting Taylor v. Illinois,
484 U.S. 400, 409
(1988)). The exclusion of evidence
implicates the Sixth Amendment only where the defendant demonstrates that the testimony was
both material and favorable to his defense.
Id.
at 446 (citing United States v. Valenzuela-Bernal,
458 U.S. 858, 867
(1982)). Even where testimony is material and favorable to the defense, clearly
established federal law recognizes that the right to present witnesses is subject to reasonable
restrictions, including compliance with rules governing discovery and trial management. See
14
Taylor, 484
U.S. at 410–16 (holding that a trial judge’s refusal to permit an undisclosed witness
to testify, as a sanction for nondisclosure, does not violate the Compulsory Process clause).
Here, the record reveals that Petitioner proffered Willis’s testimony during the fourth week
of trial after counsel met with her the previous evening. (13T:3–19 to 4–16, 13–3 to 14–9.)1 Three
weeks prior, defense counsel submitted, and later withdrew, Willis as a witness on the basis that
there would be no alibi. (Id.) The trial court applied the state rule requiring disclosure of alibi
witnesses and determined that failure to comply with the New Jersey Court Rule 3:12-2 was willful
and intended by the defense to gain an advantage. (13T:27–1 to 28–5.) As a sanction for
noncompliance, the court excluded Willis’s testimony. (Id.) That finding parallels the
circumstances in Taylor and supports exclusion under clearly established federal law. See Taylor,
484 U.S. at 410–16. The Appellate Division’s affirmance was therefore not contrary to or an
unreasonable application of Taylor.
Moreover, Petitioner has not demonstrated that Willis’s testimony was material and
favorable. See Valenzuela-Bernal,
458 U.S. at 867
. Willis’s proffered testimony would have
accounted for Petitioner’s whereabouts during a limited period when the victim was abandoned at
the U-Haul lot. It would not have addressed other critical aspects of the State’s case, including
eyewitness accounts of Petitioner’s participation in the beating and subsequent disposal of the
body. Excluding such partial alibi evidence did not deprive Petitioner of a fundamentally fair trial.
See Bisaccia v. Att’y Gen. of N.J.,
623 F.2d 307, 312
(3d Cir. 1980) (holding that on habeas review,
1 13T = Transcript of Trial, dated September 28, 2016; ECF No. 7-16.
15
evidentiary errors of state courts are not of constitutional dimension unless they deprived the
defendant of fundamental fairness at trial).
Accordingly, Ground One is procedurally barred. In the alternative, the Appellate
Division’s decision was neither contrary to, nor an unreasonable application of, clearly established
federal law. The exclusion of Willis’s testimony did not violate Petitioner’s rights under the Sixth
Amendment or the Due Process clause. Habeas relief on Ground One is denied.
B. Ground Two: Ineffective Assistance of Counsel
In Ground Two, Petitioner asserts a Sixth Amendment violation based on trial counsel’s
failure to comply with the New Jersey Court Rule regarding notice of an alibi witness. (Pet., at 9.)
Petitioner contends that counsel’s ineffectiveness resulted in the trial court excluding the testimony
of Sharo Willis. (Id.) Respondents counter that Petitioner has not shown that the state court’s
ruling was contrary to, or an unreasonable application of, the standard established in Strickland.
(Opp’n, at 19.)
The United States Constitution guarantees the right of assistance of counsel to every person
accused of a crime. U.S. Const. amend. VI. “[T]he Sixth Amendment right to counsel exists, and
is needed, in order to protect the fundamental right to a fair trial.” Strickland, 466 U.S. at 684.
“The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic
elements of a fair trial largely through the several provisions of the Sixth Amendment, including
the Counsel Clause:
‘In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall have
been previously ascertained by law, and to be informed of the nature
and cause of the accusation; to be confronted with the witnesses against
16
him; to have compulsory process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his defence.’”
Id. at 684–85. To support an ineffective assistance of counsel claim under Strickland, a petitioner
must first show counsel’s performance was deficient. Id. at 687. “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.; see also United States v. Shedrick,
493 F.3d 292, 299
(3d Cir. 2007). 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 show 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 wide range of reasonable professional assistance.” Strickland,
466 U.S. at 689.
A petitioner also must affirmatively demonstrate 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, 692–93; Shedrick,
493 F.3d at 299
. “It is not
enough for the defendant to show that the errors had some conceivable effect on the outcome of
the proceeding.” Strickland, 466 U.S. at 693. The petitioner must demonstrate “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
17
in the outcome.” Id. at 694; see also Shedrick,
493 F.3d at 299
. “Because failure to satisfy either
[Strickland] prong defeats an ineffective assistance claim, and because it is preferable to avoid
passing judgment on counsel’s performance when possible,” 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) (quoting Strickland, 466 U.S. at 697–98).
Errors that undermine confidence in the fundamental fairness of the state adjudication,
including deprivation of the right to the effective assistance of counsel, justify the issuance of the
federal writ of habeas corpus. Taylor,
529 U.S. at 375
. Federal habeas courts must guard against
the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d).
Harrington,
562 U.S. at 105
. When Section 2254(d) applies, “the question is not whether
counsel’s actions were reasonable” rather the question is “whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.”
Id.
More specifically, “[t]he
pivotal question is whether the state court’s application of the Strickland standard was
unreasonable.”
Id. at 101
. “This is different from asking whether defense counsel’s performance
fell below Strickland’s standard.”
Id.
“Were that the inquiry, the analysis would be no different
than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal
conviction in a United States district court.”
Id.
During the fourth week of trial, defense counsel proffered Willis as a witness to testify that
Petitioner went to her home while the co-defendants transported the body. (13T:13–3 to 23.) The
trial court rejected this request on the following basis:
THE COURT: All right. All right. I’ve heard enough. All right. I
find there would be prejudice to the defendant, however, I find there
would be far greater prejudice to the State to allow the witness to
18
testify. Certainly, the Court has done everything to accommodate a
late alibi. I addressed the alibi notice that was submitted on or about
September the 5th or 6th. I afforded opportunity for the defendant
to provide a notice, a written statement of alibi mid jury selection.
That was not complied with. In fact, the Court, as well as the State,
was advised they were withdrawing the alibi notice.
In terms of less severe sanctions, the only possibility that I could see
that would be reasonable with some type of continuance –- however,
I don’t see that time permits that. We have a jury that has been
empaneled. They have been empaneled now going on to their fourth
week. Some of these jurors at least for four weeks. Others are into
the third week of jury service. They were told the trial would be
concluding this week. I’m already advised I have issues with at least
two jurors. There’s only two alternates. In all likelihood, unless
things have changed, we’re going to be down to one alternate by the
end of the day. And we’re going to interview that juror before we go
any further.
Certainly, in terms of the fourth factor, whether defendant’s failure
(indiscernible) was willful and intended. The withdrawal of the alibi
speaks volumes as to what Mr. Browne’s intentions were here. He
put it out there when he was held to the mandates of the rule. He
pulled it back, let the State proceed with their case and now drops it
on them in the second day of his case as it’s about to conclude.
There’s no other interpretation that it was done willful, it was
intended to gain an advantage. Knowing now that some three or four
years ago there may have been cameras that could have been
obtained, video recordings that could have been obtained, all of this
could have been turned over in the inception of this case when there
was a demand made for an alibi, a bill of particulars, as is customary
in every discovery packet that is provided. And it continues to be
customary.
And I have given Mr. Browne the benefit of multiple attorneys,
multiple substitutions, everything to allow the opportunity to have
an effective defense. There has been more than ample opportunity
to provide the State, at minimum, the name of the alibi witness. Not
required to prior to the time period within the rule, but we’re now
on the last day of the trial. Two days. There’s no time for a
continuance. The jury has been sworn. I’m not going to declare a
mistrial and restart this case. Not going to happen. Based on
19
weighing all the factors, I’m going to preclude the witness from
testifying.
(13T:25–25 to 28–5.)
Petitioner raised this claim on post-conviction review (“PCR”). (ECF No. 7-3, at 1–14.)
The petition was denied by way of written opinion, and order, dated June 29, 2021. (Id. at 82–93.)
Petitioner appealed. (Id. at 94–97.) The Appellate Division affirmed for substantially the same
reasons expressed by the PCR court, adding the following comments for amplification:
Having considered the arguments raised on this appeal pursuant to
these principles, we affirm substantially for the reasons expressed in
Judge Young’s thorough and well-written opinion. We add the
following comments. Notwithstanding the late notice of alibi, we are
unconvinced trial counsel was ineffective because even if the alibi
notice was timely made, it would not have affected the outcome
considering the witness would not cooperate and her testimony
would not have exculpated defendant. Counsel was not ineffective
at sentencing, because defendant described his cooperation with law
enforcement in unrelated matters at the sentencing hearing, which
did not convince the judge to apply the mitigating factor considering
he found “the aggravating factors substantially and completely
outweigh the lack of any mitigating factors in this case.” Having
previously affirmed the sentence, we are likewise unconvinced
defendant’s cooperation would have led to a different outcome
sentence-wise. Finally, appellate counsel was not ineffective for not
raising these arguments on appeal because we are unpersuaded we
would have decided the case differently given the gravity of
defendant’s offense and the substantial evidence supporting his
conviction.
Browne,
2022 WL 16732377
, at *3.
The state court’s determination was not contrary to, nor an unreasonable application of,
Strickland. To prevail, Petitioner must demonstrate both that counsel’s performance was deficient,
and he was prejudiced as a result. Strickland, 466 U.S. at 694. Courts apply a “highly deferential”
review of counsel’s performance, presuming that counsel acted within the range of reasonable
20
professional assistance. Id. at 689.
As previously noted, every person accused of a crime has a fundamental right to present
witnesses in his own defense. Taylor,
484 U.S. at 408
(citing Chambers v. Mississippi,
410 U.S.
284, 302
(1973). That right, however, is not unlimited and remains subject to reasonable
restrictions.
Id.
at 410–16. The state has a strong interest in the orderly presentation of evidence
that will assist a trier of fact to ascertain the truth, including “protecting itself against an eleventh-
hour defense.”
Id. at 411
. Consistent with that interest, New Jersey Court Rule 3:12-2 requires a
defendant who intends to rely on an alibi to provide a signed statement, within 10 days of a written
demand by the prosecutor, identifying the place or places where defendant claims to have been at
the time of the alleged offense and the names and addresses of alibi witnesses. N.J. Ct. R. 3:12-
2(a). Upon noncompliance, the Rule authorizes the court to preclude the party in default from
presenting witnesses at trial. N.J. Ct. R. 3:12-2(b).
The Supreme Court has upheld the constitutionality of such notice-of-alibi rules, holding
that their application does not deprive a defendant of due process, a fair trial, or the privilege
against self-incrimination. Williams v. Florida,
399 U.S. 78, 82
(1970). The Supreme Court
explained that Due Process permits a state evidentiary rule that promotes the truth-seeking function
of trial by ensuring both parties an adequate opportunity to investigate facts essential to
determining guilt or innocence.
Id.
To establish prejudice, Petitioner is required to show a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland,
466 U.S. at 694. He has not made that showing.
As the Appellate Division observed, even a timely alibi notice would not have altered the
21
outcome. See Browne,
2022 WL 16732377
, at *3. First, the witness was unwilling to cooperate
until the fourth week of trial, where she provided defense with new information on the eve of her
proposed testimony. (13T:6–24 to 7–13.) Second, her limited testimony would not have
exculpated Petitioner. At most, it would have accounted for Petitioner’s whereabouts during a
limited period when the victim’s body was being transported, but it would not have exculpated
him from the underlying charges. (13T:13–3 to 23.)
Under the AEDPA, “the question is not whether counsel’s actions were reasonable.”
Harrington,
562 U.S. at 105
. Rather, it is whether “there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.”
Id.
Here, the Appellate Division’s holding was a
reasonable application of Strickland.
Assuming arguendo that counsel’s handling of the alibi notice fell below professional
norms, Petitioner cannot establish prejudice. See Cross,
308 F.3d at 315
(failure to satisfy either
Strickland prong defeats an ineffective assistance claim). Accordingly, Ground Two fails to
establish ineffective assistance under Strickland. The Appellate Division’s decision was not
contrary to, nor an unreasonable application of, clearly established federal law. Habeas relief on
Ground Two will therefore be denied.
III. CERTIFICATE OF APPEALABILITY
This Court must next determine whether a certificate of appealability should issue. See
Third Circuit Local Appellate Rule 22.2. 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
22
conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-
El v. Cockrell,
537 U.S. 322, 327
(2003). 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
.
28 U.S.C. § 2253
(c).
For the reasons discussed above, this Court’s review of the claims advanced by Petitioner
demonstrates that he has failed to make a substantial showing of the denial of a constitutional right
necessary for a certificate of appealability to issue. Therefore, the Court declines to issue a
certificate of appealability.
28 U.S.C. § 2254
(b)(1)(A).
IV. CONCLUSION
For the reasons discussed above, the Court will deny habeas relief and will not issue a
certificate of appealability. An appropriate Order follows.
Date: October 22, 2025
__/s/ Jamel K. Semper_________________
HON. JAMEL K. SEMPER
UNITED STATES DISTRICT JUDGE
23Case Information
- Court
- D.N.J.
- Decision Date
- October 22, 2025
- Status
- Precedential