OPINION
ROBERT B. KUGLER, U.S.D.J.
Petitioner is a state prisoner and is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury on multiple counts including conspiracy to commit robbery, first-degree robbery, aggravated assault, and a number of weapons charges. He is currently serving twenty years with an eighty-five percent period of parole ineligibility for armed robbery and a consecutive ten year term of imprisonment with five years of parole ineligibility on a weapons offense. Petitioner raises several claims in his habeas petition. For the following reasons, the habeas petition will be denied.
II. FACTUAL AND PROCEDURAL BACKGROUND1
On the evening of August 5, 2005, Tair Jumaniyaazoe[Fn1] was working alone at a Citgo Gas Station in Pleasantville, New Jersey at 10:30 p.m. As he was pumping gas, two men approached him and asked to buy cigarettes. Tair stepped inside the booth while the two men waited outside. As Tair was retrieving the cigarettes, the men stepped inside the booth. When Tair turned around, he observed one of the men pointing a gun at his lower back while the other man emptied the drawers looking for money. Tair indicated that both men were black males and both were approximately six feet tall. The gunman was wearing a white shirt, bluejeans, boots and a black hat with the letter "P" on it. The gunman had a thick beard and neck-length braids. The other man was wearing a white t-shirt and stone-washed blue jeans. He had a "fresh haircut" with a "thin" beard. Tair described the gun as "brown stock," old fashioned with a "long barrel" and a "classic."
[Fn. 1] For ease of reference, we refer to this witness by his first name.
The gunman took the cash from Tair while the second man took rolled change from the drawers and put them inside a Designer Shoe Warehouse (DSW) bag that had previously contained Tair's dinner. Tair estimated that about $116 to $130 in cash was taken. The men then cut the fax line and walked away from the gas station. The whole incident lasted approximately three minutes. After the two men left, Tair used his cellular phone to call the police. Immediately thereafter, at about 10:30 p.m., Pleasantville police officers arrived at the scene. Tair told the officers that he had been robbed, described the robbers and told them how the robbery had occurred.
Approximately twenty-minutes later, at about 10:50 p.m., Atlantic City K-9 Patrolman Salvatore Rando observed a red vehicle traveling in the opposite direction from the gas station. Patrolman Rando radioed for back-up and followed the car. The car eventually pulled over to the side of the road, and two passengers exited the vehicle. Defendant exited out of the driver's side, and an individual named Blair Williams exited out of the passenger side. Patrolman Rando approached defendant and Williams and spoke to them while awaiting back-up. Within seconds several officers arrived and "secured" defendant and Williams.
Patrolman Rando inspected the vehicle with a flashlight and "immediately" saw "a long barreled handgun" underneath the seat cushion on the passenger's side. Patrolman Rando also found a DSW bag between the two front seats with rolls of coins inside. At a later time, Pleasantville police officer Richard Henderson observed a black hat embossed with a "P" and a scarf in the back seat of the vehicle.
The Pleasantville police received notification that the Atlantic City police had located some suspects. Tair and another witness, Mr. Ernesto Santos, were driven to Atlantic City to view the suspects; they did not speak to each other while traveling. Once the two witnesses arrived in Atlantic City, defendant and Williams were taken out of the police vehicle. They stood in the street in full frontal view with their hands cuffed behind their backs and spotlights used for illumination. While sitting in the back seat of the patrol car, Tair and the witness identifieddefendant and Williams as the robbers. At the time, neither defendant nor Williams had neck length braids. Defendant and Williams were initially processed in Atlantic City.
The next day the two men were transferred to the Pleasantville Police Department to be processed. Defendant had $125, a "pair of jean shorts, a pair of olive Timberland boots, black doo rag, shoelaces, black belt, black wrist band, [and a] Timberland leather key chain." Williams had $25.
Defendant was tried separately and during the trial, Christopher Hallett, an investigator for the Atlantic County Prosecutor's Office, discussed all of the efforts he made in procuring the second witness, Santos. Investigator Hallett testified that he was assigned to the case and interviewed Santos on January 31, 2007. However, when Investigator Hallet made several attempts to contact Santos in preparation for trial, he was unable to do so.
Defendant testified at trial. Defendant stated that Blair Williams was a childhood friend that he had not seen in a while. He met Williams in Camden; and Williams invited defendant to his apartment to "catch up on old times." Once they were in the apartment, Williams stated that he wanted to go to a liquor store and pick up some cigars so they can "get reacquainted." Defendant had no idea where the liquor store or the Citgo gas station was in relation to Williams' apartment. Five to ten minutes later, Williams returned with nothing in his hands. Williams told defendant that they were going to drive to Atlantic City to pick up his girlfriend at work. Williams stated that he was late picking up his girlfriend "Pinky" and that he wanted defendant to drive so that they could use defendant's unfamiliarity with the area as an excuse for the lateness. Williams directed defendant, telling him exactly where to drive. Once they arrived in Atlantic City, Williams told defendant to make a right turn and to pull over. Defendant then assumed that they had arrived at their destination and exited the vehicle. At this point, they were stopped by K-9 Patrolman Rando. Defendant denied that he was at the gas station at the time of the robbery and claimed that he never saw the gun that was found in the car.
(Dkt. No. 7-8 at p. 2-6.)
After petitioner was convicted and sentenced, he appealed to the Superior Court of New Jersey, Appellate Division. The Appellate Division affirmed. See State v. Harris, No. A-1652-07T4, 2009 WL 735757 (N.J. Super. Ct. App. Div. Mar. 23, 2009). The New Jersey Supreme Court denied certification on May 8, 2009. State v. Harris, 973 A.2d 384 (N.J. 2009).
Petitioner subsequently filed a petition for post-conviction relief ("PCR") in the Superior Court of New Jersey, Atlantic County, in March, 2010. That court denied the PCR petition on December 3, 2010. (See Dkt. No. 7-14.) The Appellate Division affirmed that denial on July 15, 2013. (See Dkt. No. 7-17.) The New Jersey Supreme Court denied certification on the PCR petition on February 21, 2014. (See Dkt. No. 7-18.)
Petitioner then initiated this federal proceeding by filing a petition for writ of habeas corpus in August, 2014. The respondent filed his response on October 28, 2014.
III. HABEAS CORPUS LEGAL STANDARD An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws or treaties of the United States. See Engle v. Isaac, 456 U.S. 107, 119 (1982); see also, Mason v. Myers, 208 F.3d at 415 n.1 (citing 28 U.S.C. § 2254). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. 104-132, 110 Stat. 1214 (Apr. 24, 1996), applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim: (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 state court. See 28 U.S.C. § 2254(d).
As a threshold matter, a court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law'under § 2254(d)(1) is the governing legal principle set forth by the Supreme Court at the time the state court renders its decision." Id. (citations omitted). A federal habeas court making an unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue a writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411.
The AEDPA standard under § 2254(d) is a "difficult" test to meet and is a "highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster, - U.S. -, 131 S. Ct. 1388, 1398 (2011). The petitioner carries the burden of proof and with respect to review under § 2254(d)(1), that review "is limited to the record that was before the state court that adjudicated the claim on the merits." Id.
In applying AEDPA's standards, the relevant state court decision that is appropriate for federal habeas corpus...
