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Full Opinion
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
RAHEEM CLEVELAND, :
: Civil No. 23-23311 (JKS)
Petitioner, :
:
v. : OPINION
:
BRUCE DAVIS, et al., :
:
Respondents. :
:
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 Raheem Cleveland (“Petitioner”), a prisoner confined at
New Jersey State Prison (“NJSP”) in Trenton, New Jersey. (“Pet.” ECF No. 1.) Petitioner asserts
six grounds for relief challenging his trial and conviction, including claims of evidentiary error
and ineffective assistance of counsel. (Id. at 7–15.) Respondents filed an answer opposing habeas
relief. (“Opp’n” ECF No. 6.) Petitioner filed a traverse in reply. (“Reply” ECF No. 7.)
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 BACKGROUND1
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.
In the early morning hours of July 5, 2011, [M.R.] and his fiancée,
[A.N.], were sitting on the front porch of his mother’s house in
Newark. From her bedroom, [M.R.]’s mother heard gun shots.
When she opened her front door and looked outside, she saw [A.N.]
lying on the front porch and bleeding. [A.N.] told [M.R.]’s mother
she had been shot. The mother then saw that her son had also been
shot, and called 911. Newark Police Officer Kareem Yarborough
arrived at the scene at approximately 12:50 a.m., and found the two
victims lying on the front porch. Both [M.R.] and [A.N.] were taken
to the hospital, where [A.N.] underwent surgery to remove a bullet
from her abdomen and [M.R.] died at 3:36 a.m.
An autopsy revealed that [M.R.] sustained five gunshot wounds—
four to the torso and one to the left arm. Two bullets were recovered
from his body, near the spine and the right lower back. The autopsy
revealed no evidence of stippling, indicating the shots had been fired
from over two feet away. Of the two recovered bullets, one was a
.40 caliber; the other was not identifiable because it was too
damaged. Three .40 caliber shell casings found at the scene were
determined to have been fired from the same semiautomatic
handgun. The three casings were entered into the Integrated
Ballistics Information System (IBIS).
Several hours after the shooting, Homicide Detectives of the Essex
County Prosecutor’s Office (ECPO) went to the hospital to speak
with [A.N.], but she was still in surgery. On July 8, Detectives
Tyrone Crawley and Murod Mohammed went to the hospital and
the staff permitted them to speak with [A.N.]. When asked by
Detective Crawley who shot her, [A.N.] responded, “Raheem
Cleveland shot me and my boyfriend.” She further stated, “I have
known him for two years,” although she later testified at trial she
knew him her whole life, and defendant was “like a brother to [her].”
The detectives did not record their hospital interview with [A.N.]
1 Initials are used to protect the victims’ privacy.
2
but Detective Crawley did document her responses in his report;
defendant became a suspect in the case as a result of the interview.
Regarding the hospital interview, Detective Crawley testified that
no one threatened, coerced, or physically abused [A.N.]; rather,
“[s]he was sort of pleasant. She wasn’t upset or anything, [and
showed] a little relief.”
On July 12, 2011, a few days following her release from the hospital,
Detective Crawley and another officer picked up [A.N.] at her
friend’s house in Newark, after she agreed to give a formal
statement. Detective Crawley testified that the interview began ten
minutes after [A.N.] entered the interview room of the Homicide
Unit, and that he conducted no preliminary interview before turning
on the video camera. Detective Crawley explained that he showed
[A.N.] only one photograph because she knew defendant. A review
of the short video shows that [A.N.] does appear reluctant to sign
the photograph and a bit frightened, but no coercion is apparent. In
the video-recorded statement, [A.N.] gives the name “Raheem” and
proceeds to sign and date the back of the photograph.
A ballistics report issued on July 12, 2011, revealed that the
semiautomatic gun used to commit the shootings in the case under
review was also used on July 11, in another shooting in Newark. The
July 11 shooting occurred a few hours after [M.R.]’s funeral, during
which defendant and seven other individuals were shot. Specifically,
the three .40 caliber shell casings found at the July 5 shooting
matched eight .40 caliber casings found at the July 11 shooting. A
GSR test, performed on defendant’s hands hours after the July 11
shooting, proved negative. In addition, three .223 caliber shell
casings were also recovered at the scene of the July 11 shooting.
Detective Crawley opined before the grand jury, based on his
observations of the scene and the ballistics match, that someone in
the street shot .223 caliber bullets at defendant, who returned fire
from the driveway of a residence. Defendant was shot in the leg.
On July 12, following [A.N.]’s interview, Detective Crawley
obtained an arrest warrant for defendant and a search warrant for his
home. Later that day, Detective Crawley arrested defendant and
searched his home; however, the search failed to produce any
evidence linking defendant to either shooting.
Nine days after identifying defendant as the shooter, [A.N.]
telephoned Detective Crawley and recanted her identification.
3
[A.N.] said “[t]he person that shot me was Gerald Moore,” and
indicated that she did not want to participate in the investigation
anymore. She attempted to withdraw her prior statement, both in
letters to the ECPO and in her testimony before the grand jury. At
trial, [A.N.] testified that Moore walked up the steps of the porch,
gave her a hug, and spoke briefly with her and [M.R.]; as Moore
turned to leave, he displayed a gun and said, “It's a set up,” and
opened fire on them. [A.N.] said she saw Moore run back toward the
library and the hospital from where he first appeared.
Detective Crawley then interviewed Moore, who was incarcerated
at the time. Further investigation revealed no connection between
Moore and the shooting, and Moore was not charged. Nevertheless,
at trial, [A.N.] denied that defendant had any motive to kill [M.R.],
and disputed the State’s allegation that the two had been feuding
before the incident. Rather, she claimed she had mentioned Moore
several times to the police and also told the grand jury that Moore
was the shooter.
[A.N.] further testified she did not speak with any detectives on July
8, and claimed she did not want to give a statement to police on July
12, but was told she would “get locked up” if she refused to
cooperate. She testified that when the detectives picked her up that
day, she was “under the influence of medicine,” which the police
took from her and gave to her mother for safekeeping. [A.N.] also
claimed the detectives did not allow her to get dressed and took her
to the ECPO in her pajamas. She further testified that during the
interview, she was shown a photograph of “the wrong guy,” and that
she signed and dated the photograph and wrote “Raheem” on the
back of it because she had been held in the interview room for seven
hours and had been coerced by police. She also said she was
bleeding from her stomach wound, and was scared and wanted to
leave. Moreover, she claimed that the police made ten videotape
recordings of her, and that the video played for the jury was the final
recording. [A.N.] later contradicted her testimony about a seven-
hour interrogation, stating instead that the interview lasted from
about 12:00 p.m. to 3:30 p.m.
[A.N.] further testified that a close family friend, George Givens,
saw blood on her nightgown when he picked her up following the
interview. [A.N.] said she told Givens that the police had
interrogated her and made her sign a photograph of defendant, who
was not the shooter. The State called Givens as a rebuttal witness,
4
and he testified no blood was visible on [A.N.]’s clothing when he
picked her up at 3:30 p.m., she was not bleeding, and she did not
complain about police abuse or coercion.
State v. Cleveland, No. A-2422-13, 2016 WL 1122500, at *1–3 (N.J. Super. Ct. App. Div. March
23, 2016). The Appellate Division recounted that Petitioner was convicted on all counts: first-
degree murder, first-degree attempted murder, second-degree unlawful possession of a handgun,
and second-degree possession of a handgun for an unlawful purpose. Id. at *1.
II. PROCEDURAL HISTORY
After the jury returned a guilty verdict, the court sentenced Petitioner on August 6, 2013.
(ECF No. 6-3, at 34–36.) The sentence was: (1) forty years with an eighty-five percent parole
disqualifier on count one; (2) a consecutive fifteen years with an eighty-five percent parole
disqualifier on count two; (3) a concurrent five years with a three-year parole disqualifier on count
three; and (4) count four merged into count one. (Id. at 34.) The aggregate sentence was fifty-five
years, with forty-four years and nine months of parole ineligibility. (Id.) Petitioner filed a direct
appeal to the Appellate Division, raising the following arguments. (Id. at 37–38.)
Point I: THE COURT ERRED IN ADMITTING THE PRIOR
STATEMENTS OF [A.N.] INTO EVIDENCE AS THE STATE
FAILED TO SATISFY THE STANDARDS OF STATE v. GROSS,
216 N.J. Super. 98 (App. Div. 1987), aff’d 121 N.J. 1 (1990). U.S.
CONST., AMENDS. VI, XIV; N.J. CONST., ART. 1, PARA. 10.
Point II: THE TRIAL JUDGE ERRED IN PERMITTING DET.
CRAWLEY AND INV. SILVESTRI TO TESTIFY AS EXPERTS
IN GUNPOWDER RESIDUE. U.S. CONST., AMENDS. VI, XIV;
N.J. CONST, ART. I, PARA. 10. (Not Raised Below).
Point III: THE DEFENDANT’S SENTENCE IS EXCESSIVE.
(Id. at 11–25.)
5
Petitioner raised the following additional arguments in his pro se supplemental brief:
Point I: THE APPELLANT’S SIXTH AMENDMENT RIGHT TO
A FAIR TRIAL WAS VIOLATED IN VIOLATION OF ART. 1.,
PARA. 1, 8, 9, 10 OF THE NEW JERSEY STATE
CONSTITUTION AND AMENDMENTS V, VI, XIV TO THE
UNITED STATES CONSTITUTION RAISED UNDER THE
FOLLOWING SUBPOINTS.
A. When Detective Tyrone Crawley Refused To Answer
Questions Concerning Who Gave Him Information That The
Victim [A.N.] Came Face To Face And Eye To Eye With
The Gunmen It Violated The Appellant’s Right To
Confrontation And A Fair Trial And Compulsory Process By
Allowing The Introduction Of Hearsay Testimony.
B. The Appellant Submit[s] That The Trial Court Erred In
Allowing Into Evidence The July 8th, 2011 Hearsay
Statement Of Ms. [A.N.] In Violation Of His Due Process
Under Both The Fifth Amendment To The United States
Constitution And Fourteenth Amendment To The New
Jersey State Constitution.
Point II: THE APPELLANT WILL ARGUE PROSECUTOR
MISCONDUCT WHERE PROSECUTOR ROMESH
SUKHDEO’S ROLE IN THE INVESTIGATION OF THE
VICTIM [A.N.] AFTER THE SHOOTING ON JULY 12, 2011
VIOLATED THE DEFENDANT’S RIGHT TO DUE PROCESS
UNDER THE UNITED STATES CONSTITUTION[’S]
AMENDMENT V AND XIV AND N.J.S.A. 40A:9-22.5(D).
(ECF No. 6-5, at 2.)
The Appellate Division rejected these arguments and affirmed Petitioner’s conviction and
sentence on March 23, 2016. Cleveland, WL 1122500, at *1. Petitioner sought certification from
the Supreme Court of New Jersey, raising the same arguments. (ECF No. 6-7.) On June 14, 2016,
the Supreme Court summarily denied certification. State v. Cleveland, 141 A.3d 297 (N.J. 2016)
(unpublished table decision).
6
On September 23, 2016, Petitioner filed a pro se petition for post-conviction relief
(“PCR”), alleging ineffective assistance of trial and appellate counsel. (ECF No. 6-10, at 70.)
PCR counsel filed an amended petition on May 18, 2017. (Id. at 71–73.) The State consented to
an evidentiary hearing limited to the reliability of the gunshot residue (“GSR”) test. (14T:3–14 to
4–13.)2 The PCR judge held evidentiary hearings on May 1 and 9, 2017, and heard oral argument
on July 11, 2017. (ECF No. 6-11, at 5–6.) The court denied the PCR petition in a written opinion
dated December 1, 2017. (Id. at 3–41.) Petitioner filed a notice of appeal. (ECF No. 6-11, at 43–
45.) On appeal, Petitioner raised the following issues:
POINT I: THE PCR COURT ERRED BY DENYING
DEFENDANT’S PETITION FOR POST-CONVICTION RELIEF
REGARDING THE ADMISSION OF IMPROPER LAY
OPINION, AND BY DENYING DEFENDANT’S PETITION
WITH REGARD TO THE HEARSAY STATEMENTS OF [A.N.],
WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING.
A. The Prevailing Legal Principles Regarding Claims for
Ineffective Assistance of Counsel, Evidentiary Hearings and
Petitions for Post-Conviction Relief.
B. Failure to Object to Improper Lay Opinion.
C. Failure to Object to [A.N.]’s Hearsay Statement.
State v. Cleveland, No. A-3259-17, 2019 WL 2185097, at *5–6 (N.J. Super. Ct. App. Div. May
21, 2019).
On May 21, 2019, the Appellate Division vacated and remanded, holding that “the PCR
judge failed to make adequate findings of fact and conclusions of law and also mistakenly
exercised his discretion by granting only a limited evidentiary hearing.” Cleveland, 2019 WL
2 14T = Transcript of Post-Conviction Relief Hearing, dated May 1, 2017; ECF No. 6-35.
7
2185097, at *1. On remand, the PCR court held evidentiary hearings on September 24, October
22, and November 12, 2020, and February 4, 2021. (ECF No. 6-15, at 50–51.)
On November 5, 2021, the PCR court issued a written opinion denying relief, finding that
Petitioner had not satisfied the standard under Strickland v. Washington, 466 U.S. 668 (1984).
(ECF No. 6-15, at 46–81.) Petitioner appealed. (Id. at 83–86.) On July 24, 2023, the Appellate
Division affirmed. State v. Cleveland, No. A-1547-21, 2023 WL 4696818, at *8 (N.J. Super. Ct.
App. Div. July 24, 2023). The Supreme Court of New Jersey denied certification on September
25, 2023. State v. Cleveland, 301 A.3d 1286 (N.J. 2023).
On December 21, 2023, Petitioner filed the instant pro se habeas petition. (Pet., at 1–18.)
Respondents filed an answer opposing relief on February 20, 2024. (Opp’n, at 1–82.) On March
19, 2024, Petitioner filed a traverse. (Reply, at 1–51.)
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
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
8
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
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).
9
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
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
10
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
231–32. Accordingly, this Court applies AEDPA deference to the Appellate Division’s decisions.
See id.
A. Grounds One, Two, & Three: State Law Claims
Petitioner raises several grounds for relief based on alleged evidentiary errors at trial. In
Ground One, Petitioner argues that the trial court erred by admitting prior statements of A.N. into
evidence. (Pet., at 7–8.) In Ground Two, Petitioner contends that the trial court improperly
permitted Detective Crawley (“Crawley”) and Investigator Silvestri (“Silvestri”) to testify as
11
experts in gunpowder residue. (Id. at 8–10.) In Ground Three, Petitioner asserts that Detective
Crawley refused to answer questions regarding the source of information that A.N. was face-to-
face with the gunman. (Id. at 10–11.)
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
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,
12
[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)).
Finally, a federal habeas court does not have authority to review alleged violations of a
state constitution. Reinert v. Larkins, 379 F.3d 76, 94 n.4 (3d Cir. 2004). To the extent Petitioner
relies on the New Jersey Constitution, those claims fail to present cognizable grounds for habeas
relief and will be denied. With these principles established, the Court turns to Petitioner’s
evidentiary claims.
1. Ground One: Admission of A.N.’s Prior Statements
In Ground One of the habeas petition, Petitioner argues that he was deprived of a fair trial
when the trial court permitted A.N.’s unrecorded statement from July 8, 2011, and her audio/video
recorded statement from July 12, 2011, to be admitted as substantive evidence against him at trial.
(Pet., at 7; Reply, at 13–15.) Petitioner maintains that A.N.’s statements were unreliable, citing
her physical and mental condition, the lack of corroborating evidence, and her later recantation
identifying another individual as the shooter. (Reply, at 14.) Respondents counter that the trial
court properly admitted A.N.’s prior statements, that the Confrontation Clause was not implicated
because A.N. testified and was subject to cross-examination, and that Petitioner raises no
cognizable federal claim because the issue turns on state evidence law. (Opp’n, at 55, 58.)
The Appellate Division rejected Petitioner’s claim, holding that A.N.’s July 12 recorded
statement was admissible under New Jersey Rule of Evidence 803(a)(1)(A) and State v. Gross.
13
The state court analyzed the claim as follows:
A.
N.J.R.E. 803(a)(1) provides the following statements are not
excluded by the hearsay rule: (a) Prior statements of witnesses. A
statement previously made by a person who is a witness at a trial or
hearing, provided it would have been admissible if made by the
declarant while testifying and the statement: (1) is inconsistent with
the witness’ testimony at the trial or hearing and is offered in
compliance with Rule 613. However, when the statement is offered
by the party calling the witness, it is admissible only if, in addition
to the foregoing requirements, it (A) is contained in a sound
recording or in a writing made or signed by the witness in
circumstances establishing its reliability....
Thus, prior inconsistent statements may be admissible as substantive
evidence if they are inconsistent with a witness’s testimony and, if
offered by the party calling the witness, are contained in a sound
recording or in a writing made or signed by the witness. State v.
Mancine, 124 N.J. 232, 247 (1991); Gross, supra, 121 N.J. at 7–9.
[A.N.]’s July 12 statement was recorded on a DVD.
When in dispute, a prior inconsistent statement sought to be
admitted for substantive purposes under N.J.R.E. 803(a)(1)(A) must
be the subject of a preliminary hearing to establish its reliability as
a pre-condition to its admissibility. Gross, supra, 121 N.J. at 16;
State v. Spruell, 121 N.J. 32, 41–42, 46–47 (1990). In determining
the reliability of pre-trial statements, the Supreme Court in Gross
enumerated fifteen factors to be taken into account:
(1) the declarant’s connection to and interest in the
matter reported in the out-of-court statement, (2) the
person or persons to whom the statement was given,
(3) the place and occasion for giving the statement,
(4) whether the declarant was then in custody or
otherwise the target of investigation, (5) the physical
and mental condition of the declarant at the time, (6)
the presence or absence of other persons, (7) whether
the declarant incriminated himself or sought to
exculpate himself by his statement, (8) the extent to
which the writing is in the declarant’s hand, (9) the
presence or absence, and the nature of, any
14
interrogation, (10) whether the offered sound
recording or writing contains the entirety, or only a
portion of the summary, of the communication, (11)
the presence or absence of any motive to fabricate,
(12) the presence or absence of any express or
implicit pressures, inducement or coercion for
making the statement, (13) whether the anticipated
use of the statement was apparent or made known to
the declarant, (14) the inherent believability or lack
of believability of the statement, and (15) the
presence or absence of corroborating evidence.
[Gross, supra, 121 N.J. at 10 (quoting State v. Gross,
216 N.J. Super. 98, 109–10 (App. Div. 1987)).
The trial court should make the determination of the reliability of
the statement, based upon all of the relevant factors, outside the
presence of the jury. Gross, supra, 216 N.J. Super. at 110. The
proponent of the statement, the State, had the burden of proving its
reliability by a preponderance of the evidence. Gross, supra, 121
N.J. at 15. Here, the judge conducted a pre-trial Rule 104 hearing in
order to determine if the State could meet its burden.
The record supports the trial judge’s findings that on the video
recording [A.N.] was “[lucid]” and “oriented to place and time.”
There were no signs of police pressure or intimidation. She
unequivocally identified the shooter as “Raheem,” whom she had
known “for a couple years,” as the person who “shot us.” She wrote
his name on the back of the photograph, signed and dated it, and was
“positive” about her identification and that her statement was “the
truth.” Accordingly, we discern no indication that the trial judge
abused his discretion in admitting the recording. See State v. Merritt,
247 N.J. Super. 425, 434 (App. Div.) (applying abuse of discretion
standard to admission of prior inconsistent statements), certif.
denied, 126 N.J. 336 (1991).
Defendant points out there was no corroborating evidence produced,
per Gross factor fifteen. However, the absence of corroborating
evidence does not preclude admission: “[T]he substantive elements
of a criminal charge may be proven through a prior inconsistent
statement alone, provided that the statement was made under
circumstances supporting its reliability and the defendant has the
opportunity to cross-examine the declarant.” Mancine, supra, 124
N.J. at 256; see also State v. Bryant, 217 N.J. Super. 72 (App. Div.)
15
(applying a similar rationale where a prior inconsistent statement,
rather than a confession, was sole evidence linking defendant to the
crime), certif. denied, 108 N.J. 202, cert. denied, 484 U.S. 978, 108
S.Ct. 490, 98 L. Ed.2d 488 (1987). Contrary to defendant’s
assertions, there is no “per se rule barring a conviction based solely
on evidence obtained from a prior inconsistent statement.” Mancine,
supra, 124 N.J. at 251.
B.
Defendant contends that the initial unrecorded statement in the
hospital lacks any indicia of reliability and should have been
excluded, especially in light of [A.N.]’s testimony that the
interaction never occurred.
Ordinarily, “witnesses may testify that they took certain
investigative steps based ‘upon information received.’ “State v.
Luna, 193 N.J. 202, 217 (2007) (quoting State v. Bankston, 63 N.J.
263, 268–69 (1973)). However, “they cannot repeat specific details
about a crime relayed to them by ... another person without running
afoul of the hearsay rule.” Ibid.; see also State v. Vandeweaghe, 177
N.J. 229, 240–41 (2003) (quoting State v. Vandeweaghe, 351 N.J.
Super. 467, 484 (App. Div. 2002)) (“[A] police officer may, without
violating either the hearsay rule or defendant’s right to
confrontation, explain the reasons he apprehended a suspect or went
to the scene of a crime by stating he did so ‘upon information
received.’”). The limited exception occurs where a defendant “opens
the door by flagrantly and falsely suggesting that a police officer
acted arbitrarily or with ill motive [.] ... [In that case] the officer
might be permitted to dispel that false impression, despite the
invited prejudice the defendant would suffer.” State v. Branch, 182
N.J. 338, 352 (2005).
Given [A.N.]’s serious accusation that the Prosecutor’s Office
forced her into identifying defendant at the July 12 interview, we
find no error in the State’s rebuttal testimony that the July 12
interview focused on defendant, not because of coercion, but
because [A.N.] had previously given them defendant’s name on July
8, at the hospital. Moreover, defendant’s right to confront and cross-
examine [A.N.] was not violated because she testified at trial,
avoiding the fears associated with a “faceless accuser.” See Branch,
supra, 182 N.J. at 348 (“Both the hearsay rule and the right of
confrontation protect a defendant from the incriminating statements
16
of a faceless accuser who remains in the shadows and avoids the
light of court.”). Further, the record reveals that the trial judge’s jury
instructions were clear that the jury should carefully evaluate
[A.N.]’s prior statements before convicting defendant solely based
on her recanted out-of-court statements.
Cleveland, 2016 WL 1122500, at *4–6.
As stated above, federal habeas relief is unavailable for state law evidentiary rulings unless
those rulings rise to the level of a due process violation. See Estelle, 502 U.S. at 70. 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,” Lonberger, 459 U.S. at 438 n.6, 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. A habeas petitioner may therefore raise a habeas claim based on a state law
evidentiary ruling only where he can show that the admission of the evidence at issue denied him
Due Process under the Fourteenth Amendment by depriving him of the “fundamental elements of
fairness in [his] criminal trial.” Glenn, 743 F.3d at 407 (3d Cir. 2014) (quoting Riggins v. Nevada,
504 U.S. 127, 149 (1992) (Thomas, J. dissenting)).
The Sixth Amendment, applicable to the States via the Fourteenth Amendment, guarantees
the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.”
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009) (citing Pointer v. Texas, 380 U.S. 400,
403 (1965)); Davis v. Alaska, 415 U.S. 308, 315 (1974). “The Confrontation Clause provides two
types of protections for a criminal defendant: the right physically to face those who testify against
him, and the right to conduct cross-examination.” Preston v. Superintendent Graterford SCI, 902
F.3d 365, 380 (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987)). The Supreme Court has
held that the Confrontation Clause is not violated by admitting a declarant’s out-of-court
17
statements, as long as the declarant is testifying as a witness and subject to full and effective cross-
examination. California v. Green, 399 U.S. 149, 158 (1970); see also Giles v. California, 554
U.S. 353, 358 (2008) (“The [Sixth] Amendment contemplates that a witness who makes
testimonial statements admitted against a defendant will ordinarily be present at trial for cross-
examination, and that if the witness is unavailable, his prior testimony will be introduced only if
the defendant had a prior opportunity to cross-examine him.”).
Finally, 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 trial court admitted A.N.’s July 12 statement after conducting a Gross hearing to
evaluate its reliability.3 (2T:3–23 to 6–8.) The court reviewed the video recording and made
findings that A.N. was lucid, oriented to place and time, and unambiguous in identifying Petitioner
as the shooter. (Id. at 4–16 to 21; 5–19 to 6–1.) The court also noted that this was not a stranger-
to-stranger crime, as A.N. stated she had known Petitioner “for a couple years,” and was familiar
with him. (Id. at 5–19 to 23.) The trial judge determined that there was no police pressure or
intimidation and A.N. was not antagonistic in any way. (Id. at 5–3 to 13.)
The AEDPA requires federal courts collaterally reviewing state proceedings to afford
considerable deference to state courts’ legal and factual determinations. Lambert v. Blackwell,
387 F.3d 210, 234 (3d Cir. 2004). “[A] determination of a factual issue made by a State court shall
3 2T = Transcript of Trial, dated April 16, 2013; ECF No. 6-23.
18
be presumed to be correct” unless the petitioner rebuts “the presumption of correctness by clear
and convincing evidence.” Id. (quoting 28 U.S.C. § 2254(e)(1)). In the habeas context, the
Supreme Court has interpreted section 2254(d)(2) to mean that “a decision adjudicated on the
merits in a state court and based on a factual determination will not be overturned on factual
grounds unless objectively unreasonable in light of the evidence presented in the state-court
proceeding.” Lambert, 387 F.3d at 234.
Here, the Appellate Division concluded that the trial judge did not abuse his discretion in
admitting the recording, which reflected that A.N. was lucid and “oriented to place and time.”
Cleveland, 2016 WL 1122500, at *5. The court also noted no signs of police pressure or
intimidation. Id. This Court independently reviewed the recording. (See Ex. 36.) The interview
lasted less than five minutes. A.N. was lucid and oriented to time and place. Although she may
have been experiencing slight discomfort, she did not appear to be in distress or physical pain.
Two beverages were on the table before her. A.N. confirmed she was not under the influence of
drugs or alcohol. She responded clearly to all questions and unequivocally identified Petitioner as
the shooter. The statement was not the product of pressure, intimidation, or coercion. A.N.
affirmed that her statement was truthful.
The Appellate Division’s determination was not “based on an unreasonable determination
of the facts in light of the evidence presented,” 28 U.S.C. § 2254(d)(2), because the video itself
corroborated the trial court’s finding that A.N. was lucid and unequivocal. Petitioner’s later
arguments—pointing to A.N.’s recantation or the absence of corroborating evidence—do not
undermine the admissibility of the statement under federal law. Under clearly established federal
law, a prior inconsistent statement may be admitted not only for impeachment but also as
19
substantive evidence, provided the declarant testifies at trial and is subject to cross-examination.
Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004) (“[W]hen the declarant appears for cross-
examination at trial, the Confrontation Clause places no constraints at all on the use of his prior
testimonial statements.”) (citing Green, 399 U.S. at 162); see also United States v. Gerard, 507
F. App’x 218, 221 (3d Cir. 2012) (the admissibility of a witness’s prior testimony as substantive
evidence depends on whether it is inconsistent with the witness’s trial testimony, as provided in
Fed. R. Evid. 801(d)(1)(A)); United States ex rel. Thomas v. Cuyler, 548 F.2d 460, 463 (3d Cir.
1977) (“[A] witness whose prior statement is to be used must not only be produced but must also
be sworn and made available for cross-examination.”); Fed. R. Evid. 801(d)(1)(A) (a witness’s
prior statement is not considered hearsay and is admissible as substantive evidence where the
declarant testifies and is subject to cross-examination about a prior statement, and the statement is
inconsistent with the declarant’s testimony and was given under the penalty of perjury at a trial,
hearing, or other proceeding or in a deposition). Indeed, because A.N. testified at trial and was
subject to cross-examination, there was no Confrontation Clause violation. See Green, 399 U.S.
at 162.
Accordingly, the trial court’s ruling on the admissibility of A.N.’s statements under Gross
was not an “unreasonable determination” of the facts. 28 U.S.C. § 2254(d)(2). The admission of
A.N.’s prior statements did not render Petitioner’s trial fundamentally unfair. The Appellate
Division’s decision upholding the admission of A.N.’s statements was neither contrary to, nor an
unreasonable application of, clearly established federal law, and it was not based on an
unreasonable determination of the facts. Habeas relief on Ground One is therefore denied.
20
2. Ground Two: Detective Crawley and Investigator Silvestri’s Gunpowder
Residue Testimony
In Ground Two Petitioner argues that the trial judge erred by permitting Detective Crawley
and Investigator Silvestri to testify as experts in gunpowder residue. (Pet., at 8–10.) Respondents
contend that the claim is procedurally barred because the Appellate Division disposed of it under
the state-law invited error doctrine. (Opp’n, at 62.) Respondents further argue that Petitioner
cannot establish that the alleged error had a substantial and injurious effect on the verdict. (Id. at
63.)
The Appellate Division considered and ultimately rejected Petitioner’s claims in light of
controlling law. See Cleveland, 2016 WL 1122500, at *6–7. The court concluded that defendant
invited any potential error, and analyzed the claim as follows:
Defense counsel first raised the subject of the July 11 shooting, and
the results of the GSR test of defendant’s hands, on cross-
examination of Detective Crawley to support his theory that
someone else had shot [M.R.] and [A.N.]. Detective Crawley
testified that the ECPO had administered the GSR test to defendant
at the hospital, and it yielded negative results. On redirect, Detective
Crawley opined that the test was unreliable, but on re-cross he
admitted that the ECPO routinely used the test. Defense counsel did
not object to the question about reliability. Moreover, defense
counsel called Investigator Silvestri to testify about the ballistics
recovered from the July 11 shooting. On cross-examination, the
prosecutor elicited Investigator Silvestri’s personal belief that the
test was unreliable, and that he did not personally use it. Defense
counsel again did not object to the question about reliability.
“[A] defendant cannot beseech and request the trial court to take a
certain course of action, and upon adoption by the court, take his
chance on the outcome of the trial, and if unfavorable, then condemn
the very procedure he sought ... claiming it to be error and
prejudicial.” N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J.
328, 340 (2010) (citation omitted). “The doctrine of invited error
does not permit a defendant to pursue a strategy ... and then when
21
the strategy does not work out as planned, cry foul and win a new
trial.” State v. Williams, 219 N.J. 89, 101 (2014), cert. denied, –––
U.S. ––––, 135 S.Ct. 1537, 191 L. Ed.2d 565 (2015). “Under that
settled principle of law, trial errors that were induced, encouraged
or acquiesced in or consented to by defense counsel ordinarily are
not a basis for reversal on appeal[.]” State v. A.R., 213 N.J. 542, 561
(2013) (internal quotation marks omitted).
Here, the record reveals that defense counsel introduced the topic of
the July 11 shooting and the negative test results of defendant’s GSR
test because it was the cornerstone of defendant’s theory of that case.
That is, defense counsel wanted the jury to know about the negative
results of the test because it supported the defense theory that
defendant never possessed the handgun and that someone else shot
[M.R.] and [A.N.]. This is presumably why defense counsel did not
object to the officers’ qualifications to render the opinions, or to
their testimony about the test’s reliability. If, as defendant contends,
“[t]he real issue in this matter is the lack of objection from the trial
attorney,” this issue is better suited for a PCR petition. See State v.
Taccetta, 200 N.J. 183, 192–93 (2009).
Cleveland, 2016 WL 1122500, at *6–7.
Federal habeas review does not extend to a state court’s application of its own evidence
rules unless the ruling violated clearly established federal law or rendered the trial fundamentally
unfair. See Estelle, 502 U.S. 62, 67–68 (1991). Federal habeas relief is barred where the state
court denies a claim on an independent and adequate state procedural ground. Coleman v.
Thompson, 501 U.S. 722, 729–30 (1991).
Even when a constitutional error is established, habeas relief is unavailable unless the error
had a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993).
Here, the Appellate Division denied Petitioner’s claim based on New Jersey’s invited error
doctrine. See Cleveland, 2016 WL 1122500, at *7. “Federal habeas courts reviewing convictions
22
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). The invited
error doctrine constitutes an independent and adequate state procedural ground that bars federal
habeas review. See Coleman, 501 U.S. at 729–30. Petitioner has not attempted to show cause and
prejudice to excuse the default, nor has he asserted that failure to consider his claim will result in
a fundamental miscarriage of justice. Accordingly, the claim is procedurally barred.
Even if the Court were to reach the merits, Petitioner would not be entitled to relief. The
defense deliberately elicited testimony about the GSR test to support the theory that Petitioner was
not the shooter. See Cleveland, 2016 WL 1122500, at *7. The state court reasonably concluded
that counsel’s decision not to object was strategic and integral to that theory. Id. at *6–7.
Moreover, the admission of testimony questioning the reliability of the GSR test did not render the
trial fundamentally unfair, particularly where the testimony underscored that Petitioner’s test
results were negative.
Finally, Petitioner cannot demonstrate prejudice. The jury heard that Petitioner’s GSR test
results were negative and that both officers considered the test unreliable. In these circumstances,
any alleged error in permitting them to testify as experts had no substantial and injurious effect on
the verdict.
Ground Two is procedurally barred by the invited error doctrine. In any event, Petitioner
has not shown that the Appellate Division’s determination resulted in a violation of clearly
established federal law or had a substantial and injurious effect on the verdict. Relief on Ground
Two is therefore denied.
23
3. Ground Three: Detective Crawley’s Testimony
In Ground Three Petitioner alleges a violation of his right to a fair trial, confrontation, and
compulsory process based on Detective Crawley’s “refusal” to answer questions about who gave
him information that A.N. came face-to-face and eye-to-eye with the gunman. (Pet., at 10–11;
Reply, at 17–19.) Respondents counter that Petitioner mischaracterizes the testimony. They argue
that Crawley did not testify that an unknown person provided him with substantive information
about the shooter. (Opp’n, at 64.) Instead, Respondents maintain, the testimony was admitted for
the limited purpose of explaining why Crawley went to the hospital to interview A.N. (Id. at 66.)
Respondents also note that even if the statement were offered for its truth, Detective Handcock
testified at trial and was available for cross-examination about his conversations with Crawley.
(Id.)
The Appellate Division summarily rejected Petitioner’s claim, concluding that his
arguments lacked sufficient merit to warrant discussion in a written opinion. Cleveland, 2016 WL
1122500, at *8. Section 2254(d) does not require a state court to give reasons before its decision
can be deemed to have been adjudicated on the merits. See Harrington, 562 U.S. at 98–100.
Where a state court’s decision is unaccompanied by an explanation, the Petitioner still bears the
burden of showing there was no reasonable basis for the state court to deny relief. Id. at 102.
As previously stated, the Confrontation Clause bars the admission of testimonial hearsay
unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination.
Crawford, 541 U.S. at 68. However, the Confrontation Clause is not implicated where a statement
is not offered for the truth of the matter asserted. Tennessee v. Street, 471 U.S. 409, 414 (1985).
Nor does the Clause apply where the declarant testifies at trial and is subject to cross-examination.
24
Green, 399 U.S. at 162.
The record supports the state courts’ rejection of this claim. On cross-examination,
Detective Crawley testified to explain the course of his investigation.4
Q: It’s Det. Handcock that gave you the impression to talk to
[A.N.] regarding this investigation; Is that correct?
A: No.
Q: Somebody else gave you that impression that [A.N.] may have
had a face to face with this person that shot him?
A: Handcock gave me a brief synopsis of what had occured.
Q: What was that brief scenario that Handcock gave you?
A: He told me what occurred.
Q: What is it specifically Det. Handcock told you had occured?
A: That a guy walked up on the steps, according to whoever he
spoke to.
Q: Do you know who he spoke to?
A: No, I do not.
Q: Did you inquire of him as to where he got that information
from?
A: Yes, but he wasn’t able to provide me with that information.
Q: Did you say, “Det. Handcock, what happened? What are we doing
here?” You’re investigating a murder and did you say, “Someone
gave you information that a guy walked up and shot these two
individuals and you didn’t record that down anywhere?”
A: No.
Q: Did you write it down?
4 3T = Transcript of Trial, dated April 17, 2013; ECF No. 6-24.
25
A: No.
(3T:137–6 to 138–10.)
Police officers are permitted to explain the background context of their investigation
without running afoul of the Confrontation Clause and may relate limited details of information
received when necessary to place their actions in context. United States v. Price, 458 F.3d 202,
210 (3d Cir. 2006); see also Street, 471 U.S. at 414 (Confrontation Clause not implicated when
out-of-court statement admitted for non-hearsay purpose).
Even assuming the testimony carried hearsay value, Petitioner’s claim still fails. The
declarant, Detective Handcock, testified at trial and was available for cross-examination. See
Green, 399 U.S. at 162. Petitioner therefore cannot establish a violation of his confrontation rights.
Nor has Petitioner shown that the testimony deprived him of a fair trial or compulsory process.
The Appellate Division’s determination is not contrary to clearly established federal law.
No Confrontation Clause violation occurred, and the testimony did not render the trial
fundamentally unfair. Relief on Ground Three is therefore denied.
B. Grounds Four, Five, & Six: Ineffective Assistance of Counsel
In Grounds Four through Six, Petitioner alleges violations of the Sixth Amendment right
to effective assistance of trial counsel. (Pet., at 11–18.) In Ground Four (a), Petitioner claims that
counsel was ineffective for failing to object when A.N. referenced a non-testifying eyewitness who
had identified Petitioner as the shooter before A.N.’s own (later recanted) identification. (Id. at
11.) Petitioner further argues that counsel failed to move to strike or request a curative instruction
when those hearsay references were included in the readback of A.N.’s testimony during jury
deliberations. (Id.) In Ground Four (b), Petitioner asserts that counsel mishandled the GSR
26
evidence after two State witnesses testified that the test was unreliable. (Id.) In Ground Five,
Petitioner contends that counsel was ineffective for permitting A.N. to testify that a non-testifying
witness identified Petitioner as the shooter. (Id. at 12–14.) Finally, in Ground Six, Petitioner
argues that counsel was ineffective for failing to object, move to strike, seek a curative instruction,
or call a defense expert regarding the reliability of the GSR test. (Id. at 14–16.) The Court
addresses each claim in turn.
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
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
27
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
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
28
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.
1. Grounds Four (a) & Five: Testimony Regarding Non-Testifying Witness
In Ground Four (a), Petitioner argues that trial counsel rendered ineffective assistance by
failing to object to A.N.’s testimony referencing a non-testifying eyewitnesses who allegedly
identified Petitioner as the shooter. (Pet., at 11; Reply, at 19–27.) Petitioner further contends that
counsel should have moved to strike or requested a curative instruction to prevent those statements
from being included in the readback of A.N.’s testimony during jury deliberations. (Pet., at 11.)
Relatedly, in Ground Five, Petitioner asserts that trial counsel was ineffective for failing to prevent
A.N. from testifying that a non-testifying witness identified Petitioner as the shooter. (Pet., at 12–
14.) 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 74.)
At trial, A.N. testified on direct examination that another witness had already identified
Petitioner before she did, despite efforts to redirect her testimony. Defense counsel objected to
the form of the testimony but did not move to strike or seek a curative instruction. (2T:75–12 to
29
76–25.) For example, A.N. stated:
Q: Now you know that you have identified the defendant here as the
shooter in the case, correct?
A: Yeah, because someone else -- when I came, when you brung me
down to the statement he already had his picture. You also had
someone else questioned before me because if you going to ask me
you supposed to have a line up of people, not just one picture. So the
person that you all took down there to question picked him out first
so when I --
MR. KINSALE: Objection.
Q: There’s an objection.
MR. KINSALE: I ask the Prosecutor ask a specific question and the
Court direct the witness to give a specific answer instead of this stream of
consciousness.
MR. SUKHDEO: I didn’t tell her to say all that.
A: I am saying.
THE COURT: It came out of her mouth on her own volition.
Q: Just try to--I am going ask you specific questions. I am going
to ask you to try to answer them in short responses so we won’t get
any objections from any of the lawyers. Okay?
You know Raheem Cleveland your whole life?
A: Yes.
Q: It wouldn’t be a problem for you to identify him, right? He’s
someone you know?
A: Yeah, absolutely right.
Q: So if you saw six photographs as opposed to one, you --
A: But someone -- you already had someone there. When the
officer came and got me he said I want you to keep it real with me.
You absolutely right. When we got into the table room he flipped
the picture over. He had Raheem over there and I told him that it
30
wasn’t him numerous times. How many tapes you have of me
besides
(2T:75–12 to 76–25.)
. . .
Q: There’s supposed to be a line up of people? You know what the
police procedure is in photographic identifications?
A: It’s supposed to be a line up.
Q: Who told you that?
A: So if you had this picture
Q: Who told you?
A: Who else told you it was him besides me? Also there was one
photo.
MR. SUKHDEO: I am going to object.
(2T:82–22 to 83–1.)
Petitioner raised these claims in his application for post-conviction relief. (ECF No. 6-11,
at 24–28.) After the first PCR hearing, the Appellate Division determined that the PCR judge
mistakenly exercised his discretion by granting defendant only a limited evidentiary hearing.
Cleveland, 2019 WL 2185097, at *6. The court reversed and remanded for the PCR judge to
conduct a full evidentiary hearing, review all of Petitioner’s claims and render a new decision. Id.
at *8.
On remand, the PCR court conducted a full hearing and denied relief. (ECF No. 6-11, at
3–42.) Petitioner appealed. (Id. at 43–45.) The Appellate Division affirmed the denial of relief,
concluding that counsel’s performance reflected a reasonable trial strategy. Cleveland, 2023 WL
4696818, at *7. While affirming for substantially the same reasons expressed by the PCR court,
31
the Appellate Division added the following comments for amplification:
Here, we are satisfied the PCR judge’s detailed findings with respect
to defense counsel’s trial strategy were all supported by the record.
First, the record supports the judge’s determination trial counsel was
not deficient for failing to object to, move to strike, or seek a curative
instruction with respect to A.N.’s testimony that a third party
identified defendant prior to her own identification. As detailed
above, the State’s case relied primarily on A.N.’s initial statement
in which she identified defendant as the shooter, and the prosecutor
stressed in closing that A.N.’s initial statement was credible.
Contrariwise, trial counsel pursued a strategy that relied upon the
jury accepting A.N.’s recanted testimony at trial and that the police
coerced her initial identification. Pursuant to that strategy, trial
counsel chose not to undermine A.N.’s trial testimony, by moving
to strike portions of it, or highlight for the jury the unfavorable
portion of that testimony. Based on the trial and record before the
PCR court, we are satisfied defendant has not shown counsel’s trial
strategy was unsound.
Similarly, we discern no reason to disagree with the PCR judge’s
conclusion trial counsel’s asserted failures with respect to A.N.’s
testimony did not materially impact the trial result in light of the fact
the jury clearly chose not to believe A.N.’s trial testimony. As
observed by the PCR judge, A.N.’s fleeting remarks were part of her
narrative that the police coerced her initial identification, which the
jury clearly did not accept.
Cleveland, 2023 WL 4696818, at *7–8.
This 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 professional
assistance. Id. at 689. The Supreme Court has emphasized that “[s]trategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.”
Id. at 690. See also Dunn v. Reeves, 594 U.S. 731, 739 (2021) (Strategic decisions are entitled to
32
a “strong presumption” of reasonableness.); Burt v. Titlow, 571 U.S. 12, 15 (2013) (federal courts
must apply a “doubly deferential” standard of review that gives the state court and the defense
attorney the benefit of the doubt in ineffective assistance of counsel cases). “Counsel is presumed
to be competent and the defendant has the burden of proving otherwise.” Werts v. Vaughn, 228
F.3d 178, 205 (3d Cir. 2000).
Petitioner has not overcome that presumption. The deficient performance prong of
Strickland requires a showing “that counsel’s representation fell below an objective standard of
reasonableness.” Thomas v. Varner, 428 F.3d 491, 499 (3d Cir. 2005) (quoting Strickland, 466
U.S. at 688)). The record supports the Appellate Division’s conclusion that counsel pursued a
coherent trial strategy of not undermining A.N.’s trial testimony, which depended on the jury
crediting A.N.’s recantation of the initial statement in which she identified Petitioner as the
shooter. See Cleveland, 2023 WL 4696818, at *7. Nor can Petitioner establish prejudice.
Strickland prejudice requires a showing that there would be 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. As the Appellate Division noted, the jury plainly rejected A.N.’s recantation, and
there is no reasonable probability that further objections or instructions regarding her fleeting
remarks would have altered the verdict.
Accordingly, Grounds Four (a) and Five fail 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 these claims will therefore be denied.
33
2. Grounds Four (b) & Six: Testimony Regarding the GSR
In Grounds Four (b) and Six, Petitioner challenges trial counsel’s handling of the GSR
evidence. (Pet., at 11, 14–15.) He argues that counsel rendered ineffective assistance by failing
to object to the introduction of the GSR evidence, move to strike it, or seek a curative instruction,
despite two of the State’s own witnesses opining that the test was unreliable. (Id.) Petitioner further
argues that counsel compounded this error by declining to retain a defense expert on the reliability
of the GSR test, thereby prejudicing the defense. (Reply, at 22.)
At trial, Detective Crawley testified on cross-examination that, during his Grand Jury
appearance, he advanced the theory that Petitioner returned fire after being shot on July 11.
Cleveland, 2019 WL 2185097, at *3. In support of this theory, Crawley referenced ballistic
evidence linking .40 caliber shell cases recovered from the July 11 shooting with those recovered
at the July 5 homicide of M.R., emphasizing “it was a match to the same gun that was used to kill
[M.R.].” Id. Defense counsel did not object when Crawley stated that the GSR is “just an
unreliable test,” but elicited on cross-examination that the prosecutor’s office nonetheless
continued to use it. Id. Later, Investigator Silvestri testified for the defense regarding the July 11
crime scene and, on cross-examination, and without objection, agreed that the GSR test is “highly”
inaccurate and stated that he does not use it personally. Id. After deliberating for approximately
ninety minutes, the jury requested to review the testimony of A.N. and Detective Crawley, and the
trial judge directed the court reporter to read their testimony in full. Id.
Petitioner raised the GSR claims in his application for post-conviction relief. (ECF No. 6-
11, at 17–24.) Following remand, the Appellate Division affirmed the denial of relief, concluding
that the PCR judge’s findings were supported by the record. Cleveland, 2023 WL 4696818, at *8.
34
The Appellate Division analyzed the claim as follows:
The PCR judge’s findings as to counsel’s decision-making with
respect to the GSR test evidence are similarly supported by the
record. On this point, the PCR court found defendant’s trial
counsel’s failure to object to the detectives’ reliability testimony
was a reasonable strategic decision because counsel “essentially felt
he did not need to object as the State was making itself look bad, as
it defie[d] common sense that someone would administer a test they
felt unreliable.” As noted, Detective Crawley’s testimony the Essex
County Prosecutor’s Office regularly used the Blue View test
undermined the detectives’ opinions the GSR test was unreliable.
Counsel’s decision not to retain an expert similarly did not run afoul
of Strickland, as counsel was reasonably concerned about
testimonial risks related to cross-examination of any expert given
the test results were favorable to defendant and the State likely
would have cross-examined any expert about the test’s deficiencies.
Cleveland, 2023 WL 4696818, at *8.
The Appellate Division’s determination was not contrary to, nor an unreasonable
application of, Strickland. As stated above, Petitioner must demonstrate both deficient
performance and prejudice. Strickland, 466 U.S. at 687. Moreover, strategic decisions, even if
unsuccessful, are “virtually unchallengeable.” Id. at 690.
Here, the record supports the Appellate Division’s finding that counsel deliberately chose
not to object, reasoning that the State’s reliance on a supposedly “unreliable” test undermined its
own case, and that hiring an expert posed unnecessary risks given that the test results themselves
favored Petitioner. See Cleveland, 2023 WL 4696818, at *8. Nor can Petitioner establish
prejudice. He has not shown a reasonable probability that additional objections, curative
instructions, or expert testimony would have altered the outcome. The jury heard testimony from
multiple witnesses acknowledging the test’s weaknesses, and the results themselves did not
incriminate Petitioner. In these circumstances, the Appellate Division reasonably concluded that
35
counsel’s handling of the GSR evidence neither fell below constitutional standards nor affected
the outcome of the trial.
Accordingly, Petitioner fails to demonstrate that the state court’s adjudication of Grounds
Four (b) and Six was contrary to, or involved an unreasonable application of, clearly established
federal law. Habeas relief on those grounds 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
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).
36
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
37 Case Information
- Court
- D.N.J.
- Decision Date
- October 22, 2025
- Status
- Precedential