MCBRIDE v. KUHN

NOT FOR PUBLICATION                                                       


                  UNITED STATES DISTRICT COURT                           
                      DISTRICT OF NEW JERSEY                             

KEITH MCBRIDE,                                                            
               Petitioner,                                               
                                      Civil Action No. 22-2016 (ZNQ)     

               v.                                                        
                                             OPINION                     

KUHN et. al.,                                                             
               D  efendant.                                              

QURAISHI, District Judge                                                  

 I.  INTRODUCTION                                                        
    Petitioner, Keith McBride (“Petitioner”), is a state prisoner proceeding pro se with a 
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.). For the following 
reasons, the petition is denied and a certificate of appealability shall not issue. 
 II. FACTUAL AND PROCEDURAL BACKGROUND                                   
    The background giving rise to Petitioner’s judgment of conviction was summarized by the 
New Jersey Superior Court, Appellate Division on Petitioner’s direct appeal as follows: 
         After work on October 19, 2006, the victim, Robert Funderberk,  
         went with friends to a restaurant in Rahway. He later drove his 
         friends home and then drove to Brother’s Bistro in Carteret, where 
         he  encountered  co-defendant,  Janean  Owens,  and  her  friend, 
         Timisha Sanford. Owens knew the victim and sat with him at the bar 
         and had a drink. The bar closed at 2:00 a.m., at which time Sanford 
         left the bar without Owens. As Sanford walked from the bar, the 
         victim pulled up in his truck with Owens, who was seated in the 
         front passenger seat. Owens told Sanford to get into the truck and 
         accompany  her  to  purchase  cigarettes  at  a  nearby  BP  gasoline 
         station. Sanford complied. Owens then told the victim she needed to 
         pick up defendant, Keith McBride, nicknamed “Special” or “SP,”  
         who Owens was dating at the time and who resided with her at an 
         apartment a short distance from Brother’s Bistro.               
The victim drove to Owens’ apartment. Owens exited the truck and 
went inside the building for a few minutes while the victim and 
Sanford waited in the truck. Eventually, Sanford heard Owens’   
voice at the back of the truck and got out to see what was going on. 
When she got to the back of the truck, she saw defendant and Owens. 
Defendant handed Sanford an object wrapped in a red rag and told 
her “to handle that.” Sanford took the package and got back into the 
truck. When she realized the rag concealed a firearm, she exited the 
truck and told both defendants she was not “doing that shit.” Owens 
snatched the gun from Sanford and declared she would “get the   
ni***r.” Defendant then told Sanford to “get in the fuckin’ truck.” 
Defendant got into the front passenger seat while Sanford got into 
the back seat behind him. Owens got into the backseat behind the 
victim.                                                         

As the victim drove the truck, Owens pointed the firearm close to 
the back of his head and pulled the trigger. After Owens shot the 
victim, defendant asked her “what the fuck did you do that for?” 
When the victim’s truck came to halt, defendant, with Owens’ help, 
moved the victim’s body into the front passenger seat. Owens tried 
but was unable to drive the truck, so defendant ordered Sanford to 
drive. Defendant and Owens got into the back seat. At defendant’s 
direction, Sanford drove the truck to Newark.                   

When they neared a building in an industrial zone, defendant told 
Sanford to pull into an area near a dumpster. Defendant and Owens 
exited the car and pulled the victim’s body out of the truck.   

After abandoning the body, defendant took over the wheel and drove 
around the city in an attempt to find a “chop shop.” The search was 
unsuccessful and all three eventually abandoned the truck. Before 
leaving, Owens used the red rag to wipe down the truck.         

A few hours after the victim’s body was abandoned, a security   
guard, who worked at one of the warehouses in the area, discovered 
the body and called the police. The victim was found lying on his 
back with the left pocket of his pants pulled out. An autopsy revealed 
the cause of death as a single gunshot wound to the head.       

The weekend following the murder, the victim’s girlfriend received 
information about his killing and relayed this information to the 
Newark Police Department. Acting on this information, the police 
located Sanford, who agreed to accompany them  to  the police   
station. Sanford confessed to what happened and was subsequently 
arrested.  Sanford  identified  Owens  and  defendant  from     
photographs.                                                    
         Owens was arrested on October 25, 2006, and consented to a search 
         of her apartment. The police seized a pair of sneakers. Owens’  
         mother also consented to have her home searched. During that    
         search, the police discovered a plastic bag containing clothes in a 
         garbage can. Defendant, the last to be arrested, was apprehended 
         eight months later in New York City.                            

         Police obtained the surveillance tape from the warehouse where the 
         victim’s body was abandoned. The tape showed defendant looking  
         over the area around the dumpster before motioning to Sanford to 
         drive the truck up to it. The tape then showed defendant dragging 
         the victim’s body out of the truck with Owens emerging from the 
         truck to help him.                                              

         The state submitted several items for forensic testing, among them, 
         the sneakers seized from Owens’ apartment. The sneakers were    
         subjected to DNA testing, and a stain on one shoe provided a DNA 
         profile matching the victim. The police never recovered the murder 
         weapon.                                                         

(ECF No. 11-13, at page 3-6).                                             
    For the incident summarized above, Petitioner was convicted, under Indictment 09-12-
02112, of conspiracy to commit robbery, N.J.S.A. § 2C:5-2 and 2C:15-a (Count 3); armed robbery, 
N.J.S.A. § 2C:15-l (Count 4); theft of an automobile, N.J.S.A. § 2C:20-3 (Count 6); felony murder, 
N.J.S.A. § 2C:11-3a(3) (Count 7); possession of a weapon for an unlawful purpose, N.J.S.A. § 
2C:39- 4a (Count 8); unlawful possession of a weapon, N.J.S.A. § 2C:39-5b (Count 9); two counts 
of hindering apprehension, N.J.S.A. § 2C:29-3 a(3) (Counts 10 and 11); and two counts of 
disturbing human remains, N.J.S.A. § 2C:22-la(l) and lb (Counts 12 and 13). (ECF No. 11-13, at 
page 2).  Under Indictment 07-01-00159, for which Petitioner was tried separately, he was 
convicted of certain persons not to have weapons, N.J.S.A. § 2C:39-7b. (ECF No. 11-13, at page 
2).                                                                       
    Petitioner was sentenced to an aggregate term of thirty years imprisonment, to be served 
without parole for the convictions arising from Indictment 09-12-02112. (ECF No. 11-13, at page 
2).  For the conviction arising under Indictment 07-01-00159, Petitioner was sentenced to twenty 
years imprisonment, with a ten-year period of parole ineligibility, to be served consecutive to the 
thirty-year term imposed on Indictment 09-12-02112. (ECF No. 11-13, at page 2).  
    Petitioner filed a direct appeal. On October 23, 2012, the Appellate Division affirmed 
Petitioner’s conviction but remanded for correction of the judgment of conviction (JOC) so that 

the conspiracy conviction could be merged with the robbery conviction, and for the trial court’s 
reconsideration of the imposition of consecutive sentences. (See ECF No. 11-13, at page 3). 
    Petitioner then sought review from the New Jersey Supreme Court. On May 13, 2013, the 
New Jersey Supreme Court denied certification of Petitioner’s direct appeal. (ECF No. 11-16). 
    On remand, the trial court imposed the same sentence as it had previously. (ECF No. 11-
17).  Petitioner appealed his re-sentence. On September 28, 2015, the Appellate Division affirmed 
the re-sentence. (ECF No. 11-18). Petitioner again sought review from the New Jersey Supreme 
Court. On January 18, 2017, the New Jersey Supreme Court denied certification. (ECF No. 11-
21).                                                                      

    Petitioner filed a post-conviction relief (“PCR”) petition. On January 18, 2018, the PCR 
court denied his petition without an evidentiary hearing. (ECF No. 11-28). Petitioner appealed, 
and the Appellate Division affirmed the denial on October 1, 2020. (ECF No. 11-32). On May 11, 
2021, the New Jersey Supreme Court denied Petitioner’s petition for certification. (ECF No. 11-
35).                                                                      
    On April 7, 2022, Petitioner filed the instant habeas petition. (ECF No. 1). Respondents 
filed an answer on July 11, 2023. (ECF No. 11), and Petitioner filed a reply on December 28, 2023. 
(ECF No. 19).  The matter is now fully briefed.                           
 III.  LEGAL STANDARD                                                    
    Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. 
§ 2254 provides, the district court “shall entertain 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.” 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 Eley v. Erickson, 712 F.3d 837, 
846 (3d Cir. 2013). 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). 
    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 U.S. Supreme Court precedent or that the state court 
confronted a set of facts that were materially indistinguishable from U.S. 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)). 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). 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). As 
to 28 U.S.C. § 2254(d)(1), a federal court must confine its examination to evidence in the record. 
Cullen v. Pinholster, 563 U.S. 170, 180–81 (2011).                        
    “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.” Woods, 574 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, to the extent that a petitioner’s constitutional claims are unexhausted and/or procedurally 
defaulted, a court can nevertheless deny them on the merits under 28 U.S.C. § 2254(b)(2). See 
Taylor v. Horn, 504 F.3d 416, 427 (3d Cir. 2007) (“Here, because we will deny all of [petitioner’s] 
claims on the merits, we need not address exhaustion”); Bronshtein v. Horn, 404 F.3d 700, 728 
(3d Cir. 2005) (considering procedurally defaulted claim, and stating that “[u]nder 28 U.S.C. 
§ 2254(b)(2), we may reject claims on the merits even though they were not properly exhausted, 
and we take that approach here”).                                         
 IV.  DISCUSSION                                                         
 A. Ground One                                                           
  In ground one, Petitioner raises various claims of ineffective assistance of trial counsel. (ECF 
No. 1, at page 9-10). Specifically, Petitioner alleges the following grounds for relief: 
         1)  Trial Counsel failed to argue for a judgment of Acquittal on Counts 
           4 and 7 (Robbery and Felony Murder), depriving Petitioner of the 
           effective assistance of counsel. Such a motion would have been 
           meritorious,  based  on  the  lack  of  any  evidence  supporting  the 
           inference that Petitioner had a purpose to commit a theft or robbery 
           of the victim.                                                

         2)  Trial Counsel failed to object to the numerous deficiencies in the 
           jury charge and verdict sheet, or to argue that they constituted plain 
           error, depriving Petitioner of the effective assistance of counsel. The 
           verdict sheet was presented to the jury missing the crucial element 
           of Robbery, the purpose to commit a theft. Although that error was 
           later corrected after deliberations began, the error was not harmless.  

         3)  Trial Counsel failed to request a special verdict regarding the object 
           of the alleged theft that predicated the robbery charge, depriving 
           Petitioner of the effective assistance of counsel. The State argued 
           that Petitioner sought to steal the victim’s vehicle, or alternatively 
           his personal property. But the jury was not asked which one, and 
           their  verdicts  on  the  individual  theft  counts  indicate  a  lack  of 
           unanimity.                                                    

         4)  Trial counsel’s failure to object to Dolores Coniglio’s testimony 
           about the hearsay report of Julie Weldon, which violated Petitioner’s 
           right to Confrontation under the Sixth Amendment to the United 
           States Constitution, was ineffective assistance of counsel. The State 
           introduced  DNA  analysis  through  the  testimony  of  Dolores 
           Coniglio,  who  was  reporting  the  hearsay  conclusions  of  Julie 
           Weldon, who did not testify. This violated Petitioner’s rights as 
           determined by Bullcoming v. New Mexico, 564 U.S. 647 (2011),  
           where the Court ruled that where certificates of analysis are admitted 
           into evidence, the Sixth Amendment is violated by introducing them 
           through the testimony of a “surrogate” who had no connection to the 
           analysis.                                                     

(Id.)                                                                     
    The  Sixth  Amendment,  applicable  to  states  through  the  Due  Process  Clause  of  the 
Fourteenth Amendment, guarantees the accused the “right . . . to have the Assistance of Counsel 
for his defense.”  U.S. Const. amend. VI.  The right to counsel is the right to the effective assistance 
of counsel, and counsel can deprive a defendant of the right by failing to render adequate legal 
assistance.  See Strickland v. Washington, 466 U.S. 668, 686 (1984).      

    A claim that counsel’s assistance was so defective as to require reversal of a conviction has 
two components, both of which must be satisfied.  See Strickland, 466 U.S. at 687.  To establish 
an ineffective assistance of counsel claim, a petitioner must first prove “counsel’s representation 
fell  below  an  objective  standard  of  reasonableness.”   Id.  at  688.    In  analyzing  counsel’s 
performance, the court must be “highly deferential.”  Id. at 689.  The Supreme Court explained: 
         A fair assessment of attorney performance requires that every effort 
         be  made  to  eliminate  the  distorting  effects  of  hindsight,  to 
         reconstruct the circumstance of counsel’s challenged conduct, and 
         to  evaluate  the  conduct  from  counsel’s  perspective  at  the 
         time.  Because of the difficulties inherent in making the evaluation, 
         a court must indulge a strong presumption that counsel’s conduct 
         falls within the wide range of reasonable professional assistance; 
         that is, the defendant must overcome the presumption that, under the 
         circumstances, the challenged action ‘might be considered sound 
         trial strategy.’                                                

Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).               
    A convicted defendant asserting ineffective assistance must therefore identify the acts or 
omissions  that  are  alleged  not  to  have  been  the  result  of  reasoned  professional  judgment. 
Strickland, 466 U.S. at 690. The reviewing court then must determine whether, in light of all the 
circumstances, the identified acts or omissions were outside “the wide range of professionally 
competent assistance.” Id. It follows that counsel cannot be ineffective for declining to raise a 
meritless issue.  See Premo v. Moore, 562 U.S. 115, 124 (2011).           
    The second part of the Strickland test requires a petitioner to demonstrate that counsel’s 
performance “prejudiced the defense” by depriving petitioner of “a fair trial, a trial whose result is 
reliable.”  466 U.S. at 687.  To establish prejudice, a petitioner must show “there is a reasonable 
probability that, but for counsel’s unprofessional error, the result of the proceeding would have 
been different.”  Id. at 694.                                             

    If a petitioner fails to satisfy either prong of the Strickland test, it is unnecessary to evaluate 
the other prong, as a petitioner must prove both prongs to establish an ineffectiveness claim.  Id. 
at 697.  Moreover, “if it is easier to dispose of an ineffectiveness claim on the ground of lack of 
sufficient prejudice…that course should be followed.”  Id.                
    Because Petitioner’s ineffective assistance of counsel claim is raised through a § 2254 
petition, federal “review must be ‘doubly deferential’ in order to afford ‘both the state court and 
the defense attorney the benefit of the doubt.’”  See Woods, 575 U.S. at 316 (quoting Burt v. Titlow, 
571 U.S. 12, 15 (2013)); see also Pinholster, 563 U.S. at 190 (“[R]eview of the [State] Supreme 
Court’s decision is thus doubly deferential.”); see also Knowles v. Mirzayance, 556 U.S. 111, 123 

(2009) (“[D]oubly deferential judicial review applies to a Strickland claim evaluated under the § 
2254(d)(1) standard . . . .”); see also Yarborough v. Genrty, 541 U.S. at 1, 6 (2003) (“Judicial 
review of a defense attorney . . . is therefore highly deferential--and doubly deferential when it is 
conducted through the lens of federal habeas.”).  Indeed, “[w]hen § 2254(d) applies, the question 
is not whether counsel’s actions were reasonable. The question is whether there is any reasonable 
argument that counsel satisfied Strickland’s deferential standard.”  See Harrington v. Richter, 562 
U.S.86, 105 (2011).                                                       
    The relevant state court decision for federal habeas corpus review is the last reasoned state 
court decision. See Bond v. Beard, 539 F.3d 256, 289–90 (3d Cir. 2008). These deferential 
standards apply “even where there has been a summary denial” by the state court. Cullen v. 
Pinholster, 563 U.S. 170, 187 (2011).                                     
         1.  Ground One, Subclaim one                                    
    In ground one, subclaim one, Petitioner argues that trial counsel was ineffective for failing 
to move for judgment of acquittal on Petitioner’s robbery and felony murder charges (Counts Four 

and Seven). (ECF No. 1, at page 9).  Petitioner argues that there was insufficient evidence at trial 
to support the inference that Petitioner had a “purpose to commit a theft or robbery of the victim.” 
(Id.)                                                                     
    Here, Petitioner raised this ineffective assistance of trial counsel claim on collateral appeal 
before the Appellate Division. The Appellate Division – the last reasoned state court decision – 
affirmed the PCR court’s decision and denied this claim, stating, in relevant part:  
         We  turn  first  to  McBride’s  contention  that  his  trial  counsel  was 
         ineffective for failing to argue for a judgment of acquittal on the robbery 
         and felony murder counts . . .                                  

         We are unpersuaded. While defendant asserts that defense counsel never 
         argued for a judgment of acquittal on the robbery and felony murder 
         counts, this assertion is belied by the record. At the close of the State’s 
         case, counsel stated, “I do have the normal motion for judgment of 
         acquittal on all counts,” but then focused on the disturbing-human-
         remains counts, and briefly discussed the murder charge. Noting the 
         motion presented a “very close call,” the court granted the motion in 
         part, and dismissed one of the disturbing-human-remains counts. The 
         issue was not raised on direct appeal.                          

         However, neither trial counsel nor appellate counsel were ineffective. 
         “It is not ineffective assistance of counsel for defense counsel not to file 
         a meritless motion.” State v. O’Neal, 190 N.J. 601, 619 (2007). Had trial 
         counsel presented a fulsome argument regarding the robbery and felony 
         murder counts, or had appellate counsel raised the issue on direct appeal, 
         the result would have been the same.                            

         An appellate court reviews a sufficiency of the evidence claim de novo. 
         See State v. Williams, 218 N.J. 576, 593-94 (2014). When a defendant 
         moves for a judgment of acquittal under Rule 3:18-1, a court “must 
determine whether, based on the entirety of the evidence and after 
giving the State the benefit of all its favorable testimony and all the 
favorable inferences drawn from that testimony, a reasonable jury could 
find guilt beyond a reasonable doubt.” Id. at 594 (citing State v. Reyes, 
50 N.J. 454, 458–59 (1967)).                                    

“When ‘each of the interconnected inferences [necessary to support a 
finding  of  guilt  beyond  a  reasonable  doubt]  is  reasonable  on  the 
evidence as a whole,’ judgment of acquittal is not warranted.” State v. 
Samuels, 189 N.J. 236, 246 (2007) (alteration in original) (quoting 
United States v. Brodie, 403 F.3d 123, 158 (3d Cir. 2005)). Moreover, 
if there is no direct evidence of a tacit plan or agreement, a jury may 
infer  one  from  the  “interconnected  favorable  inferences”  the  State 
presents. Id. at 249; see also State v. Stull, 403 N.J. Super. 501, 506 
(App. Div. 2008) (noting that “[w]hen there is no direct testimony, the 
factfinder may rely solely on inferences available from the proofs”). 

Although evidence of McBride’s intent was certainly circumstantial, 
Sanford’s general narrative indicated McBride and Owens had a plan. 
McBride  and  Owens  spoke  behind  the  car,  out  of  earshot  from 
Funderberk. The jury could infer they were planning something at 
Funderberk’s expense. Although McBride initially gave the gun to 
Sanford, he may have misunderstood that Sanford was in league with 
Owens;  or  Sanford  may  have,  at  trial,  tried  to  minimize  her  own 
involvement. In any event, when Sanford refused to “handle it,” and 
Owens “snatched” it from her, McBride did not intervene. Owens stated 
she was going to “get” Funderberk, referring to him by a racial epithet. 
McBride ordered Sanford to get in the truck, demonstrating his shared 
intent with Owens. Nor did McBride dissuade Owens when she pointed 
the gun at Funderberk’s head. Rather, he confirmed to her that if she 
pulled the trigger, the gun would fire. Although McBride yelled at 
Owens immediately after she fired the shot, that did not necessarily 
mean McBride had no plan to rob, as McBride argues. Rather, the jury 
may have inferred that Owens had deviated from the plan by shooting 
Funderberk, whether they she did so intentionally or accidentally. 

Also,  although  testimony  was  not  clear  whether  Funderberk  was 
wearing his  large gold  chain  with  a medallion  that night, Sanford 
testified that McBride wore a large gold necklace with a medallion. 
Moreover, Sanford testified McBride did not have it before he removed 
Funderberk’s body from the truck. She indicated at trial the necklace 
McBride wore “look[ed] like” the one Funderberk was known to wear. 
Furthermore, Funderberk was found without a driver’s license, credit 
cards or cash, with his pants pocket inside out, although he had just 
come from a bar where he presumably had money to spend.         
         In sum, the State presented sufficient evidence for the jury to convict 
         defendant of robbery and felony murder. Therefore, McBride did not 
         receive ineffective assistance of counsel as a result of trial counsel’s 
         failure  to  argue  more  vigorously  for  a  judgment  of  acquittal,  and 
         appellate counsel’s failure to raise the issue on appeal.       

(ECF No. 11-32, at page 9-13).                                            

    The Due Process Clause “protects the accused against conviction except upon proof 
beyond a reasonable doubt of every fact necessary to constitute the crime with which he is 
charged.” In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a 
conviction if, “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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Travillion v. Superintendent 
Rockview SCI, 982 F.3d 896, 902 (3d Cir. 2020) (“[T]he clearly established federal law governing 
the insufficient evidence claim is the standard set out by the Supreme Court in Jackson . . . .”).  
    The dispositive question under Jackson is “whether the record evidence could reasonably 
support a finding of guilt beyond a reasonable doubt.” Id. at 318. Put another way, “a reviewing 
court may set aside the jury’s verdict on the ground of insufficient evidence only if no rational trier 
of fact could have agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, 2 (2011). The analysis 
under Jackson requires courts to analyze the “substantive elements of the criminal offense as 
defined by state law.” Jackson, 443 U.S. at 324 n.16. In conducting this review, “all of the evidence 
is to be considered in the light most favorable to the prosecution.” Id.; see also Orban v. Vaughn, 
123 F.3d 727, 731 (3d Cir. 1997). Thus, where the evidence could support conflicting inferences, 
the habeas court “must presume — even if it does not affirmatively appear in the record — that 
the trier of fact resolved any such conflicts in favor of the prosecution.” Jackson, 443 U.S. at 326; 
see also Cavazos v. Smith, 565 U.S. 1, 7 (2011). A jury’s verdict may be based entirely on 
circumstantial evidence, so long as the Jackson standard is satisfied, and the jury is convinced of 
the defendant’s guilt beyond a reasonable doubt. See Desert Palace Inc. v. Costa, 539 U.S. 90, 100 
(2003); Holland v. United States, 348 U.S. 121, 140 (1954); see also Lum v. State, 101 A.3d 970, 
971 (Del. 2014) (noting that, when determining if there was sufficient evidence, the Delaware 
Supreme Court does not distinguish between direct and circumstantial evidence). “What is more, 

a federal court may not overturn a state court decision rejecting a sufficiency of the evidence 
challenge simply because the federal court disagrees with the state court. The federal court instead 
may do so only if the state court decision was “objectively unreasonable.” Renico v. Lett, 559 U.S. 
766, 773 (2010) (internal quotation marks omitted).                       
    “When assessing such claims on a petition for habeas relief from a state conviction, the 
sufficiency of the evidence standard ‘must be applied with explicit reference to the substantive 
elements of the criminal offense as defined by state law.’” Robertson v. Klem, 580 F.3d 159, 165 
(3d Cir.2009) (quoting Jackson, 443 U.S. at 324 n.16). Count Four of the indictment charged 
armed robbery pursuant to N.J.S.A. § 2C:15-1. The statute reads that a “person is guilty of robbery 

if, in the course of committing a theft, he:                              
    (1) Inflicts bodily injury or uses force upon another; or            
    (2) Threatens another with or purposely puts him in fear of immediate bodily injury; or 
    (3) Commits or threatens immediately to commit any crime of the first or second degree.” 
    An act shall be deemed to be included in the phrase “in the course of committing a theft” 
if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission. 
N.J.S.A. § 2C:15-1. In Count Seven, Petitioner was charged with felony murder pursuant to 
N.J.S.A § 2C:11-3a(3). A person is guilty of felony murder if a homicide “is committed when the 
actor, acting either alone or with one or more other persons, is engaged in the commission of, or 
an attempt to commit, or flight after committing or attempting to commit robbery . . .” N.J.S.A. 
§  2C:11–3a(3).                                                           
    Here, the Appellate Division explained that there is sufficient evidence to support a 
conviction if a “reasonable jury could find guilt beyond a reasonable doubt.” (ECF No. 11-32, at 
page 12).  The Appellate Division explained that there was circumstantial evidence presented at 

trial in support of the robbery and felony murder charges. Specifically, Petitioner and co-defendant 
Owens had a private conversation prior to the shooting of the victim, Petitioner ordered Sanford 
into the car, and Petitioner did not dissuade Owens from shooting the victim. (ECF No. 11-32, at 
page 12-13).  There was also testimony at trial that Petitioner was wearing a necklace like one that 
the victim wore, and the victim was found without his driver’s license, credit cards or cash, and 
with his pant pockets inside out.1 (ECF No. 11-32, at page 13).  The Appellate Division found that 
there was sufficient evidence for the jury to convict Petitioner of robbery and felony murder. 
    Based on the evidence summarized by the Appellate Division “the record evidence could 
reasonably support . . . beyond a reasonable doubt” a finding of guilty of robbery and felony 

murder.  Jackson,  443  U.S.  at  318.  This  Court  finds  that  the  Appellate  Division  did  not 
unreasonably apply clearly established federal law or deny this claim based on an unreasonable 
determination of the facts.                                               
    After considering the underlying sufficiency of the evidence claim, the Appellate Division 
–  having found sufficient evidence to support Petitioner’s convictions – held that trial counsel was 
not ineffective for failing to argue more vigorously for a judgment of acquittal. Indeed, an 
attorney’s failure to present a meritless argument does not amount to constitutionally ineffective 


1 Circumstantial evidence was presented to demonstrate that the victim had a driver’s license and money in his 
possession, as he was driving earlier in the evening and had purchased food and drinks at a restaurant. (ECF 11-10, at 
page 6).                                                                  
assistance. See United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999) (“There can be no Sixth 
Amendment deprivation of effective counsel based on an attorney’s failure to raise a meritless 
argument.”). Thus, this Court concludes that the Appellate Division reasonably applied Strickland 
in holding that trial counsel’s failure to more vigorously present a meritless challenge to the 
sufficiency of the evidence supporting Petitioner’s convictions, did not amount to constitutionally 

ineffective assistance. Therefore, ground one, subclaim one, will be denied.   
         2.  Ground One, Subclaim Two                                    
    In ground one, subclaim two, Petitioner argues that trial counsel was ineffective for failing 
to object to the deficiencies in the jury charge and the verdict sheet. (ECF No. 1, at page 9).  
Petitioner argues that the verdict sheet presented to the jury was missing the crucial element of 
robbery, and, although the error was corrected, the error was not harmless. (Id.)  
    Here, Petitioner raised this ineffective assistance of trial counsel claim on collateral appeal 
before the Appellate Division. The Appellate Division – the last reasoned state court decision – 
affirmed the PCR court’s decision and denied this claim, stating, in relevant part:  

         Defendant next contends trial counsel was constitutionally ineffective 
         for failing to object to the jury charges on armed robbery, and appellate 
         counsel was ineffective for not arguing the final jury charge constituted 
         plain error.                                                    

         In its initial charge to the jury on robbery, the trial court inconsistently 
         stated on one hand, that the intent to commit theft must precede or be 
         coterminous with the use of force, and, on the other hand, the intent to 
         commit theft may occur after the use of force. …                

         Without question, this jury charge was erroneous. The final sentence did 
         not follow from the previous two, and it incorrectly stated the law. Trial 
         counsel did not object to this charge.                          

         Not surprisingly, the jury requested clarification the next day. The jury 
         asked for the trial judge to “fully explain count 4, armed robbery.” The 
         court re-charged the jury on robbery, correcting the misstatement. The 
         court explained, “To find the defendant guilty of robbery the intent to 
commit the theft, the intent, the state of mind to commit the theft must 
precede or be coterminous with the use of force.”               

Without question, this jury charge was erroneous. The final sentence did 
not follow from the previous two, and it incorrectly stated the law. Trial 
counsel did not object to this charge.                          

Not surprisingly, the jury requested clarification the next day. The jury 
asked for the trial judge to “fully explain count 4, armed robbery.” The 
court re-charged the jury on robbery, correcting the misstatement. The 
court explained, “To find the defendant guilty of robbery the intent to 
commit the theft, the intent, the state of mind to commit the theft must 
precede or be coterminous with the use of force.” The court then 
repeated,  for  emphasis,  “In  other  words,  the  defendant  must  have 
formed the intent to commit a theft before or during his use of force. 
Before  or  during  the  use  of  force.”  Then,  correcting  its  previous 
statement, the court explained, “If you find defendant formed the 

intent to commit a theft after the use of force then he cannot be found 
guilty of a robbery.” The court then added, to distinguish robbery from 
armed robbery, “If the defendant is armed with or uses or threatens the 
use of a deadly weapon the crime becomes armed robbery.” Defense 
counsel did not object to the new charge.                       

In addition to re-charging the jury, the court noted that the verdict sheet 
for the armed robbery count had omitted the phrase “in the course of 
committing a theft did use force.” Thus, the original verdict sheet asked 
whether “McBride did use force upon Robert Funderberk and/or inflict 
bodily injury upon Robert Funderberk, and/or commit the crime of 
murder upon Robert Funderberk while armed with and/or by use of a 
deadly weapon.” The judge supplied the jury a corrected verdict sheet 
that added the missing phrase.                                  

Even assuming defense counsel was ineffective in failing to object to 
the erroneous charge and verdict sheet, counsel’s failure did not cause 
prejudice - because the court corrected both errors before the jury 
reached a verdict. We also reject McBride’s argument that the sentence 
distinguishing between robbery and armed robbery was deficient, and 
counsel was ineffective by failing to object to it. . . .       

The final charge accurately and clearly stated the law. The trial court’s 
correction resolved any confusion the jury may have had. We reject 
McBride’s argument that he suffered prejudice, because the jury was 
permitted to deliberate for an hour between when the court noticed the 
error and when it corrected it. The jury requested clarification on the 
jury charge and then took a lunch break. Upon returning, the jury 
         deliberated for less than an hour, and presumably was awaiting the 
         court’s response when it returned. In any event, the court corrected the 
         error in time for the jury to apply the accurate statement of law before 
         reaching a verdict. We presume the jury followed the court’s instruction. 
         See State v. Loftin, 146 N.J. 295, 390 (1996)….                 
         Therefore,  defendant’s  trial  and  appellate  counsel  were  not 
         constitutionally deficient in failing to raise this claim at trail and on 
         direct review.                                                  

    (ECF No. 11-32, at page 13-17).                                      
    Petitioner, admitting that the trial court corrected the error in the jury instructions and 
verdict sheet, argues that that his attorney was ineffective for failing to object to the court’s error. 
(ECF No. 1, at page 9).                                                   
    That a jury “instruction was allegedly incorrect under state law is not a basis for habeas 
relief.” Duncan v. Morton, 256 F.3d 189, 203 (3d Cir.) (quoting Estelle v. McGuire, 502 U.S. 62, 
71-72 (1991)), cert. denied, 534 U.S. 919 (2001). A petitioner can therefore only show an 
entitlement to habeas relief based upon allegedly inadequate jury instructions where the petitioner 
proves that “the ailing instruction by itself so infected the entire trial that the resulting conviction 
violates due process.” Id. (quoting Henderson v. Kibbe, 431 U.S. 145, 154 (1977)). That a 
challenged  instruction  was  “undesirable,  erroneous,  or  even  universally  condemned,”  is 
insufficient to warrant habeas relief; a petitioner can only prevail on such a claim by showing that 
the instruction rendered his trial fundamentally unfair. Id. Additionally, courts may not judge the 
instruction in isolation but must consider the instruction “in the context of the instructions as a 
whole and the trial record.” Estelle, 502 U.S. at 72.                     
    Here, the Appellate Division did not unreasonably apply clearly established federal law 
when it found that trial and appellate counsel were not ineffective for their failure to object to the 
jury charges. (ECF No. 11-32, at page 13-14).  The Appellate Division noted that while the trial 
court made a mistake during the initial charge on the elements of robbery, the mistake was 
corrected the following day when the trial court recharged the jury on robbery pursuant to the 
jury’s request for a recharge. (Id.). The Appellate Division also noted that the error on the verdict 
sheet delineating the elements of robbery was corrected with an amended verdict sheet. (ECF No. 
11-32, at page 15). Accordingly, the Appellate Division held that even if trial counsel’s failure to 
object to the initial erroneous charge and the initial verdict sheet was ineffective, it was not 

prejudicial under Strickland because the errors were corrected before the jury reached its verdict. 
(ECF No. 11-31, at page 15-16).                                           
    In the ineffective assistance of counsel context, failing to object to an erroneous jury charge 
is not presumed ineffective assistance. Undeniably, not all errors involving the actions of counsel 
trigger a presumption of prejudice under Strickland. This is because to establish prejudice, a 
Petitioner “must demonstrate 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. For that 
reason, when counsel “makes an isolated error during the trial, such as failing to object to a jury 
instruction, the defendant must show actual prejudice to prevail on a claim of ineffective assistance 

of counsel.” Baxter v. Superintendent Coal Township SCI, 998 F.3d 542, 548 n.7 (3rd Cir. 2021).  
    Given the trial court corrected the errors in the jury instructions prior to the jury rendering 
a verdict, and the overwhelming evidence against Petitioner summarized above, Petitioner is 
unable to show how counsel’s failure to object to the erroneous charge – especially when that 
charge was corrected by the trial court – resulted in actual prejudice that rendered his “trial 
fundamentally unfair” and “so infected the entire trial that the resulting conviction violate[d] due 
process.” Duncan, 256 F.3d 189 at 203 (3d Cir.); See e.g., Johnson v. Superintendent Coal 
Township SCI, 2023 WL 7412950 (3rd Cir. August 31, 2023) (“Given the evidence of guilt 
presented at trial, jurists of reason would agree without debate that [petitioner] cannot show 
prejudice.”); Nam v. Superintendent Huntington SCI, 2023 WL 11869066 (3rd Cir. June 5, 2023) 
(same).2                                                                  
    The overwhelming evidence – not least of which is the surveillance video depicting 
Petitioner’s actions –  the corrected jury instruction, and the jury instructions taken as a whole, 
Petitioner cannot show a “reasonable probability” that, absent trial counsel’s failure to object to 

the erroneous jury instruction, the verdict would have been different. See Baxter v. Superintendent 
Coal Township SCI, 998 F.3d 542 (3rd Cir. 2021)(petitioner not entitled to habeas relief when state 
court corrects an error in jury instructions because Petitioner unable to demonstrate prejudice 
prong of Strickland).                                                     
    Accordingly, this Court finds the Appellate Division reasonably applied Strickland in 
finding that trial counsel was not ineffective for failing to raise this meritless claim.  




2 In his reply brief, Petitioner contends the jury’s finding of guilt on theft of an automobile, the jury’s 
acquittal on conspiracy to commit theft of an automobile, and the jury’s acquittal on theft of personal 
property establish the jury was confused about the robbery instruction, even after the instruction was 
corrected.  (ECF No. 19, at 35-38).  Petitioner’s theory is that if he did not have a plan with Owens to steal 
the car, and he did not steal the personal property, how did he have the requisite intent to commit armed 
robbery?  (Id. at 37-38).  Petitioner’s theory, however, is mistaken.     

First, the jury did not acquit Petitioner on conspiracy to commit theft of an automobile. Rather, the jury 
found Petitioner guilty of conspiracy to commit armed robbery, and they did not consider conspiracy to 
commit theft of an automobile, as that charge was the lesser included offense that the jury needed to reach 
only if they had acquitted Petitioner of the armed robbery conspiracy. Thus, Petitioner’s theory is not 
supported. Indeed, the fact that the jury acquitted Petitioner of certain charges showed that the jury was not 
confused. Second, the state court’s determination that the erroneous jury instruction was not prejudicial is 
not unreasonable. Even if Petitioner did not conspire with Owens and Sanford to steal the victim’s vehicle, 
the record supports a finding by the  jury that  Petitioner intended to commit theft of the victim’s vehicle 
by directing Sanford to take the gun, hidden in a cloth, and get into the vehicle.  While the robbery may not 
have gone as Petitioner planned when Owens shot the victim,  Petitioner’s intent to commit theft of the 
vehicle is further supported by evidence that after disposing of the victim’s body, Petitioner drove around 
Newark attempting to find a chop shop to sell the parts of the vehicle before giving up and abandoning the 
vehicle.                                                                  
         3.  Ground One, Subclaim Three                                  
    Petitioner contends that trial counsel rendered ineffective assistance by failing to request a 
special verdict form requiring the jury to specify the object of the alleged theft underlying the 
robbery charge—whether it was the victim’s vehicle or other personal property. (ECF No. 1 at 10.) 
Petitioner argues that the jury’s general verdict, without clarification of the object of theft, allowed 

for a non-unanimous theory of guilt and therefore violated the Sixth Amendment right to a 
unanimous jury verdict.  (Id.) Clearly established federal law governing this issue at the time of 
the Appellate Division’s affirmance of the PCR court’s decision is Ramos v. Louisiana, 590 U.S. 
83 (2020).                                                                
    The Appellate Division affirmed the PCR Court’s denial of this claim without a written 
opinion because it lacked sufficient merit to warrant discussion pursuant to N.J. Ct. R. 2:11-
3(e)(1)(E). (ECF No. 11-32 at 20.)  Under Wilson v. Sellers, 584 U.S. 122, 128 (2018), habeas 
courts should “look through” the unexplained affirmance to the PCR court’s decision, which 
constitutes the last reasoned state-court judgment.                       

The PCR court denied the claim, stating:                                  

         Defense argues the jury should have been asked to return a special 
         verdict on the theft that supported the armed robbery. However, this 
         claim is raised for the first time in this PCR petition. This claim of 
         error is procedurally barred and none of the exception applies here. 
         Trial court instructed jury that the verdict must be unanimous. The 
         jury was polled after it read its verdict in open court to ensure it was 
         a unanimous verdict. And again, it should be noted that the first three 
         charges in the indictment this defendant was found not guilty of 
         those charges.                                                  

(ECF No. 13-3 at 21).                                                    

    In Ramos, the Supreme Court held that the Sixth Amendment requires a unanimous jury 
verdict to convict a defendant of a serious offense, and that this requirement applies equally to 
both state and federal trials. Id. at 93. However, Ramos did not hold that juries must return special 
verdicts identifying the specific factual theory on which their verdict is based. Rather, the Court 
reaffirmed that the requirement is for unanimity as to each element of the offense—not unanimity 
as to the means of committing a particular element.  Id. at 92.           
    Under New Jersey law, robbery is defined in N.J. Stat. Ann. § 2C:15-1(a), which provides: 

         “A person is guilty of robbery if, in the course of committing a theft, 
         he:                                                             

         (1)  Inflicts  bodily  injury  or  uses  force  upon  another;  
         (2)  Threatens  another  with  or  purposely  puts  him  in  fear  of 
         immediate       bodily        injury;      or                   
         (3) Commits or threatens immediately to commit any crime of the 
         first or second degree.”                                        

    The statute does not require the jury to specify the object of the theft so long as they 
unanimously find that the defendant committed a theft through force or threat.   
    Here, the PCR court found the trial court properly instructed the jury that its verdict must 
be unanimous, and the jury was polled in open court after returning its verdict to confirm 
unanimity. Petitioner’s argument is that, because the State offered two alternative factual theories 
for what was stolen—the victim’s vehicle or personal property—the jury may have been divided 
on what object supported the robbery conviction. However, New Jersey’s robbery statute does not 
distinguish between vehicle theft and other property theft as a matter of statutory elements. 
Moreover, the jury here unanimously found Petitioner guilty of theft of an automobile, N.J.S.A. § 
2C:20-3 and acquitted him on theft of personal property, N.J.S.A. § 2C:20-3.(ECF No. 11-32 at 5-
6.)                                                                       
    Because the jury unanimously agreed that Petitioner committed robbery and theft of an 
automobile,  and  because  the  trial  court  properly  instructed  the  jury  on  the  requirement  of 
unanimity, the absence of a special verdict form does not constitute a violation of Ramos. Further, 
Ramos itself does not require that a jury indicate on the record which factual theory they relied 
upon, unless required by the underlying substantive law—which is not the case here. 
    Thus, the PCR court’s decision was not contrary to, nor did it involve an unreasonable 
application of, clearly established federal law as determined by Ramos or any other Supreme Court 

precedent. Nor was it based on an unreasonable determination of the facts.  Habeas relief on this 
claim is therefore denied.                                                
         4.  Ground One, Subclaim Four                                   

    In ground one, subclaim four, Petitioner argues that trial counsel was ineffective for failing 
to object to hearsay presented by State witness Dolores Coniglio regarding the DNA analysis 
report of Julie Weldon. (ECF No. 1 at 10). Petitioner submits that State witness Dolores Coniglio 
testified regarding the DNA analysis conclusions of Julie Weldon, who did not testify at trial. (Id.) 
Petitioner claims that this hearsay testimony violated his “right to Confrontation under the Sixth 
Amendment to the United States Constitution.” (Id.)                       
    Petitioner raised this claim on collateral appeal and the Appellate Division denied the claim 
reasoning as follows:                                                     
         McBride contends that his trial counsel was ineffective by failing to 
         object  when  State  Police  scientist  Coniglio  presented  her  former 
         colleague’s conclusion that Funderberk’s DNA profile was found in a 
         DNA sample taken from McBride’s pants. McBride argues that such 
         testimony violated his right of confrontation, as explained in Melendez-
         Diaz v. Massachusetts, 557 U.S. 305 (2009), which the Supreme Court 
         issued six months before McBride’s trial.  In Melendez-Diaz, the Court 
         held that affidavits reporting the results of positive drug tests were 
         testimonial;  the  affiants  were  witnesses;  and  a  defendant  was 
         constitutionally entitled to cross-examine the affiants at trial. Id. at 311. 

         We are unpersuaded that an objection would have ultimately succeeded 
         in barring the DNA evidence linking McBride to the crime; nor is there 
         a reasonable probability that exclusion would have produced a different 
         result, given the surveillance video depicting McBride disposing of 
         Funderberk’s body.                                              

         Applying United States Supreme Court jurisprudence in this area, our 
         State Supreme Court declined to “hold that the testimony of the original 
         person to have performed forensic testing is required in all instances, 
         regardless of the type of testing and the knowledge and independence 
         of review and judgment of the testifying witness.” State v. Roach, 219 
         N.J.  58,  60-61  (2014).  Rather,  “a  truly  independent  reviewer  or 
         supervisor of testing results can testify to those results and to his or her 
         conclusions  about  those  results,  without  violating  a  defendant’s 
         confrontation rights, if” the independent reviewer or supervisor meets 
         three requirements. State v. Michaels, 219 N.J. 1, 45-46 (2014). The 
         testifying  reviewer  must  (1)  be  “knowledgeable  about  the  testing 
         process”; (2) “independently verif[y] the correctness of the machine-
         tested  processes  and  results”;  and  (3)  “form[  ]  an  independent 
         conclusion about the results.” Ibid. In Roach, the Court found that a 
         State DNA scientist, utilizing DNA profiles a predecessor prepared, met 
         those requirements. 219 N.J. at 80-81.                          

         Even assuming trial counsel failed to object to Congilio’s testimony 
         because he was unaware of the right to do so on Confrontation Clause 
         grounds, McBride has not demonstrated that the objection would have 
         succeeded in barring Coniglio’s testimony about Weldon’s analyses. 
         Rather, it would have likely triggered the sort of discussion that the 
         testifying scientist in Roach provided. Notably, Congilio testified that 
         she  reviewed  Weldon’s  notes,  as  well  as  her  report.  She  utilized 
         Weldon’s profile of Funderberk’s DNA, drawn from a sample of his 
         blood, in preparing her own report of samples she tested after Weldon 
         had left. Coniglio matched Funderberk’s profile Weldon prepared, to a 
         DNA profile that Congilio personally prepared from a sample taken 
         from Owens’s sneakers. Thus, Coniglio was intimately familiar with 
         Funderberk’s DNA profile.                                       

         Furthermore, . . . we discern no prejudice under Strickland’s second 
         prong. That is because the DNA evidence was not the only proof of 
         McBride’s presence. Sanford testified that McBride was present, and 
         the video surveillance of McBride removing Funderberk’s body from 
         the truck, and disposing of it, proved exactly the same thing. In sum, 
         McBride has not established a right to PCR based on the failure to object 
         to Coniglio’s testimony.                                        

(ECF No. 11-32, page 17-20).                                              
    The state court’s decision was not an unreasonable application of clearly established 
federal law. Petitioner argues that counsel’s deficient performance violated his rights under the 
Confrontation Clause of the Sixth Amendment, which is applicable to the States through the 
Fourteenth Amendment. Tennessee v. Lane, 541 U.S. 509, 523 (2004). The Confrontation Clause 
guarantees a criminal defendant the right to confront “the witnesses against him.” U.S. Const. 

amend. VI. The Confrontation Clause bars the “admission of testimonial statements of a witness 
who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior 
opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53–54 (2004). The 
Confrontation Clause often arises “when a witness refers to specific information from a non-
testifying third party.” Turner v. Warden, No. 18-17384, 2022 WL 951309, at *8 (D.N.J. Mar. 30, 
2022). The right to confrontation, however, may “be waived, including by [a] failure to object to 
the offending evidence.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 314 n.3 (2009). 
         The United States Supreme Court has held that “the Confrontation Clause requires the 
authentication  of  testimonial  evidence  by  a  person  who  certified  the  evidence,  personally 

performed the work to produce the evidence, or observed the performance of such work.” Stevens 
v. Warren, No. 13-2831, 2017 WL 5889811, at *7 (D.N.J. Nov. 28, 2017) (citing Bullcoming v. 
New Mexico, 564 U.S. 647, 657 (2011)). The Appellate Division explained that Coniglio used 
Weldon’s profile of Funderberk’s DNA in “preparing her own report of samples she tested.” (ECF 
No. 11-32 at 19, emphasis added.) Coniglio matched that DNA profile prepared by Weldon to a 
DNA  profile  that  Coniglio  personally  prepared.  State  witness  Coniglio  performed  her  own 
independent DNA profile.                                                  
    The Appellate Division found Conigilo’s testimony does not fall within the type of 
testimony cautioned against by the Supreme Court where an analyst merely presents the report of 
another. See Bullcoming, 564 U.S. at 662. Here, Conigilo’s expert opinion was informed by her 
own independent analysis. Accordingly, the state court’s determination that Petitioner’s rights 
under the Confrontation Clause were not  violated was not  contrary to,  or an unreasonable 
application of clearly established federal law.                           
    Additionally, the Appellate Division found that even if trial counsel was deficient in failing 

to object to Coniglio’s testimony, Petitioner failed to show prejudice necessary under the second 
prong of Strickland. The Appellate Division noted that the DNA was only one piece of the 
evidence against Petitioner. Sanford testified that Petitioner was present and there was video 
showing Petitioner removing the victim’s body from the truck and disposing of it. Based on this 
evidence, Petitioner cannot show that but for trial counsel’s failure to object Coniglio’s testimony, 
the outcome of his  trial  would have been different.  The state  court’s decision was not  an 
unreasonable application of the Strickland standard. Therefore, this ground for habeas relief is 
denied.                                                                   
 B. Ground Two                                                           

     In ground two, Petitioner argues that his conviction was obtained using evidence – State 
witness Dolores Coniglio’s testimony regarding the DNA analysis report of Julie Weldon – that 
violated his Confrontation Clause rights. (ECF No. 1 at page 10-11).3 But this claim is meritless 
and does not warrant relief.                                              
    As noted above, the Appellate Division explained that Coniglio used Weldon’s profile of 
Funderberk’s DNA in “preparing her own report of sample she tested.” (ECF No. 11-32 at 19, 


3 The Court notes that in his petition, Petitioner appears to have mistakenly referenced the wrong subsection 
when arguing this Ground for relief. (ECF No. 1, at page 10).  Rather than referencing Ground One, 
subsection D – the Confrontation Clause argument – Petitioner references Ground One, subsection A, the 
sufficiency of the evidence argument. In his reply brief, Petitioner correctly labels and references the 
appropriate argument. (ECF No. 19, at page 47).                           
emphasis added).  Coniglio matched that DNA profile prepared by Weldon to a DNA profile that 
Coniglio personally prepared. Thus, she performed her own independent DNA profile as required 
by the Confrontation Clause.                                              
    Moreover,  the  Appellate  Division  found  Conigilo’s  testimony  did  not  violate  the 
Confrontation Clause because she was not an analyst merely presenting the report of another. See 

Bullcoming, 564 U.S. at 662. Rather, her expert opinion was informed by her own independent 
analysis. Thus, the state court’s determination that Petitioner’s rights under the Confrontation 
Clause were not violated was not contrary to, or an unreasonable application of clearly established 
federal law.                                                              
    Accordingly, and for the reasons stated above, this Ground for relief must be denied. 
 C. Ground Three                                                         
     In ground three, Petitioner vaguely argues that he was denied due process of law under the 
Fourteenth Amendment. (ECF No. 1 at page 11).  But Petitioner makes no argument as to how his 
Due Process rights were violated. Petitioner merely points this Court to the arguments he made in 
Ground one, Subsection one—that there was insufficient evidence supporting his conviction.4 But 

Petitioner is mistaken, and this Ground for relief must be denied.        
    The question in a collateral proceeding, such as a habeas matter, is whether a trial error “so 
infected the entire trial that the resulting conviction violates due process.” Cupp v. Naughten, 414 
U.S. 141, 147 (1973); United States ex rel. Cannon v. Maroney, 373 F.2d 908, 910-911 (3d Cir. 
1967). There is sufficient evidence to support a conviction, and thus the conviction does not violate 


4 The Court notes that in his petition, Petitioner appears to have mistakenly referenced the wrong subsection 
when arguing this Ground for relief. (ECF No. 1, at page 11).  Rather than referencing Ground One, 
subsection A – the sufficiency of the evidence argument – Petitioner references Ground One, subsection D, 
the Confrontation Clause argument. In his reply brief, Petitioner correctly labels and references the 
appropriate argument. (ECF No. 19, at page 47).                           
Due Process, if, “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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).                    
    Here, Petitioner has identified no trial error that resulted in a violation of his due process 
rights, and, as aforementioned, his conviction was supported by legally sufficient evidence. For 

instance, Petitioner and co-defendant Owens had a private conversation prior to the shooting of 
the victim, Petitioner ordered Sanford into the car, and Petitioner did not dissuade Owens from 
shooting the victim. (ECF No. 11-32, at page 12-13).  There was also testimony at trial that 
Petitioner was wearing a necklace like one that the victim wore, and that the victim was found 
without his driver’s license, credit cards or cash – along with circumstantial evidence that he would 
be in possession of such items because he was driving and earlier paid for food and drinks (See 
ECF 11-10, at page 6) – and with his pant pockets inside out. (ECF No. 11-32, at page 13).  Thus, 
as the Appellate Division found, there was sufficient evidence for the jury to convict Petitioner of 
robbery and felony murder, and Petitioner makes no cognizable claim for habeas corpus relief in 

this ground for relief.                                                   
    Having reviewed the extensive record in this case, this Court is satisfied that Petitioner’s 
conviction  was  supported  by  legally  sufficient  evidence  and  did  not  violate  Due  Process. 
Accordingly, and for the reasons stated above, this Ground is denied.     
 V.  CERTIFICATE OF APPEALABILITY                                        
    Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of 
appealability, an appeal may not be taken from a final order in a proceeding under 28 U.S.C. § 
2254. A certificate of appealability may issue “only if the applicant has made a substantial showing 
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard 
by demonstrating that jurists of reason could disagree with the district court’s resolution of his 
constitutional claims or that jurists could conclude the issues presented are adequate to deserve 
encouragement to proceed further.”  Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). 
    Here, Petitioner has failed to make a substantial showing of the denial of a constitutional 
right.  Thus, no certificate of appealability shall issue.                

 VI.  CONCLUSION                                                         
    For  the  above  reasons,  the  §  2254  habeas  petition  is  denied,  and  a  certificate  of 
appealability will not issue.  An appropriate Order follows.              
Dated: April 11, 2025                                                     

                             s/ Zahid N. Quraishi                        
                             ZAHID N. QURAISHI                           
                             UNITED STATES DISTRICT JUDGE