Rountree v. Balicki

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 09-1189
_____________

MARSHALL ROUNTREE, a/k/a MARK HAWKINS,
Appellant

v.

KAREN BALICKI, Administrator of South Woods State
Prison; ATTORNEY GENERAL OF NEW JERSEY
__________

On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 0312-1 : 1-07-cv-05763)
District Judge: Honorable Renee M. Bumb
__________

Argued February 14, 2011

Before: SLOVITER, HARDIMAN and ALDISERT, Circuit
Judges.

(Filed: May 13, 2011)

Joshua C. Gillette, Esq. [ARGUED]
Gibbons P.C.

1
One Gateway Center
Newark, New Jersey 07102

Attorney for Appellant

Linda A. Shashoua, Esq. [ARGUED]
Warren W. Faulk, Esq.
Camden County Prosecutor‟s Office
25 North 5th Street
Camden, New Jersey 08102

Attorney for Appellees
__________

OPINION OF THE COURT
__________
ALDISERT, Circuit Judge.

This appeal by Marshall Rountree, from a judgment of

the United States District Court for the District of New Jersey

denying his 28 U.S.C. § 2254 habeas corpus petition, requires

us to decide if the New Jersey Superior Court, Appellate

Division, was unreasonable in concluding that alleged

violations of Rountree‟s Sixth Amendment right to counsel

did not undermine the reliability of the sentence he received

for an armed robbery he committed in Camden County, New

Jersey. Applying provisions of the Antiterrorism and

2
Effective Death Penalty Act (“AEDPA”), we conclude that

the New Jersey appellate court‟s decision in this case was not

contrary to and did not unreasonably apply federal law, nor

was it based on an unreasonable determination of the facts in

light of the evidence. 28 U.S.C. § 2254(d). We will therefore

affirm the District Court.

I.

A.
Within the span of two weeks in July of 1993 Marshall

Rountree, who also uses the name Mark Hawkins, perpetrated

two unrelated firearm incidents in New Jersey: an armed

robbery in Camden County, and a shooting in Essex County.

The Essex County shooting occurred on a street, after
Rountree and two companions encountered the boyfriend of

one of the men‟s sisters. The men exchanged words, then

blows. At some point, Rountree drew a revolver and shot the
boyfriend, rendering him paraplegic. The Camden County

robbery occurred two weeks later when Rountree covered his

face with a white towel, approached a woman from behind a

3
dumpster in her apartment building‟s parking lot and said, “I

have a gun. Give me your purse or I‟ll shoot you.” She

surrendered the purse, and called the police after he fled the

scene. Minutes later, Rountree, carrying a white towel, was

spotted near a shopping mall. Officers arrested him and

recovered various items that had been inside the woman‟s

purse, but did not recover a pistol. Rountree waived his

Miranda rights and provided a taped confession in which he

claimed he robbed the woman with a toy pistol and then

discarded it into a nearby wooded area. Later, during plea

bargaining, he swore under oath that the pistol was real.

Both crimes were subject to New Jersey‟s “Graves

Act,” which sets forth mandatory penalties if a person “used

or was in possession of a firearm” during or in flight from a
violent offense. See N.J. Stat. Ann. §§ 2C:43-6(c), (d), (g),

(h), 2C:44-3(d). Of particular importance to this appeal is a

Graves Act repeat-offender provision, which substantially

enhances sentences if a person who possesses or uses a

firearm during a crime “has been previously convicted of an

4
offense involving the use or possession of a firearm.”

§ 2C:43-6(c).

In 1993, a grand jury in Camden County indicted

Rountree for first-degree armed robbery and third-degree

hindering justice. The same year, he was also indicted in

Essex County for conspiracy to commit murder, first-degree

attempted murder, second-degree aggravated assault, third-

degree unlawful possession of a weapon, and second-degree

possession of a weapon for an unlawful purpose. Plea

negotiations occurred separately in each county. Soon after

they began, Rountree‟s Camden County attorney obtained

judicial and prosecutorial permission to consolidate the

Camden County and Essex County negotiations into one plea

bargaining session, pursuant to Rule 3:25A-1 of the New

Jersey Rules of Court, which provides in pertinent part:

[W]hen a defendant has charges pending in
more than one county at any stage prior to
sentencing, either the defendant, or the
prosecutor in any such county with the consent
of the defendant, may move before the
presiding judge of the criminal part in the

5
 county in which consolidation is sought, or
before any judge designated to hear such
motion, for consolidation for purposes of
entering a plea or for sentencing.

Although there was every indication that a Rule 3:25A-1

motion would have been granted, Rountree‟s Camden County

attorney failed to file one and, as a result, the negotiations

continued separately.

As early as March of 1994, prosecutors offered

Rountree a choice regarding his Camden County charges: he

could plead guilty to non-Graves Act offenses in return for a

12-year sentence, or he could plead guilty to a Graves Act

offense in return for a 9-year sentence. If accepted, either

offer would have resolved Rountree‟s Camden County

charges, but not his Essex County Charges. Rountree‟s

attorney wrote him a letter explaining the enhancement effect

that a Graves Act conviction would have on any sentence that

might be imposed for the shooting in Essex County, and

recommended the 12-year non-Graves Act offer. Nonetheless,

Rountree chose the 9-year offer. Under the plea agreement,

6
Rountree‟s sentence was to run concurrently with any

sentence imposed for the still-unresolved charges related to

the shooting he had committed in Essex County.

In the fall of 1994, after entering his plea in Camden

County but before the court accepted the plea and sentenced

him, Rountree was transferred to Essex County to address the

shooting-related charges there. Prosecutors and Rountree

were unable to reach a plea agreement, and the case went to

trial. In October of 1994, a jury convicted Rountree of first-

degree attempted murder, second-degree aggravated assault,

and two separate firearm crimes. He received a 20-year

Graves Act sentence. Soon after he was sentenced, however,

and under threat of appeal, prosecutors agreed that faulty jury

instructions required a new trial. Before retrial, and after
much negotiation, Rountree pleaded guilty to aggravated

assault and possession of a weapon for an unlawful purpose—

both of which are Graves Act offenses. The Essex County

Court accepted Rountree‟s plea and sentenced him to two

concurrent 10-year prison terms, during the first half of which

7
he would be ineligible for parole. At this time Rountree stood

convicted of his first Graves Act offense.

Rountree then returned to Camden County in July of

1995 to complete sentencing on his plea to the robbery-

related offenses still pending there. Somewhat unexpectedly,

the Camden County Court rejected the plea agreement. It

explained that the 9-year sentence Rountree had accepted

before his transfer to Essex County was either too lenient for

the crimes he had committed or, alternatively, was illegal.

The court reasoned thusly: even if Rountree had used a toy

pistol (as he initially claimed) the 9-year sentence the

government had offered was too lenient under New Jersey

law; alternatively, if the pistol was real, then the sentence was

illegal under the Graves Act (which requires extended prison
time for repeat firearm offenders) given Rountree‟s recent

Graves Act conviction in Essex County. Rountree responded

by withdrawing his guilty plea.

The Camden County case was set for trial in April of

1996, and plea negotiations continued. On the day of trial, the

8
Camden County prosecutor offered Rountree a 20-year

sentence with a 7-year term of parole ineligibility, to run

concurrently with the 10-year sentence he had received in

Essex County (hereinafter, the “April 1996 offer”). Rountree

rejected it. He explained to the court that he was not

interested in the prosecutor‟s offer because he believed that

the time he had already served in Essex County was “dead

time”—i.e., that it would not count toward either of his

sentences. The trial court explained that regardless of whether

he accepted the plea, his time served would indeed count

toward his Essex County sentence, but would not count

toward his Camden County sentence. Rountree reiterated his

rejection of the plea, the trial proceeded, and a jury convicted

him of first-degree armed robbery (a Graves Act crime) and
of hindering justice.

The Camden County sentencing judge determined that,

given Rountree‟s prior Essex County Graves Act conviction,

Rountree was a person who had “been previously convicted”

of a Graves Act crime. See N.J. Stat. Ann. § 2C:43-6(c). The

9
court then applied the Graves Act‟s repeat-offender provision

and imposed a 50-year sentence, with parole eligibility after

16 years and 8 months, to run consecutively with his 10-year

Essex County sentence.

B.
Rountree challenged his conviction and his sentence

on direct appeal, and the New Jersey Superior Court,

Appellate Division, affirmed. State v. Hawkins, 719 A.2d 689

(N.J. Super. Ct. App. Div. 1998). The Supreme Court of New

Jersey denied Rountree‟s petition for certiorari. State v.

Hawkins, 744 A.2d 1211 (N.J. 1999).

Rountree then sought post-conviction relief on several

grounds, including that his Camden County attorney‟s failure

to consolidate his Camden County and Essex County plea

bargaining into one, lump-sum negotiation violated his Sixth

Amendment right to counsel. See State v. Rountree, 906 A.2d

1124 (N.J. Super. Ct. App. Div. 2006). The state court agreed

that the Camden County attorney‟s failure to file a motion to
consolidate fell below what is expected of “counsel” within

10
the meaning of the Sixth Amendment, but held that the failure

to consolidate was not prejudicial to Rountree‟s case because

the record indicated that he would not have accepted any

offer likely to emerge from a consolidated negotiation. Id. at

1138. The Supreme Court of New Jersey denied review. State

v. Rountree, 926 A.2d 852 (N.J. 2007). This exhausted

Rountree‟s state court remedies.

Rountree then filed in the District Court an 18 U.S.C.

§ 2254 habeas corpus petition. See Rountree v. Balicki, No.

07-5763, 2008 WL 4950008 (D.N.J. Nov. 18, 2008). His

petition challenged the state court‟s post-conviction ruling as

to his Camden County (but not his Essex County) sentence,

alleging that deficient performance by his Camden County

counsel undermined the reliability of his Camden County
sentence. On November 18, 2008, the District Court applied

the Antiterrorism and Effective Death Penalty Act

(“AEDPA”) and denied Rountree‟s petition on the merits. Id.

at *1.

11
 Less than 30 days later, on December 15, 2008,

Rountree filed in the District Court a pro se motion for

extension of time to file for a certificate of appealability. On

February 24, 2009, he filed a motion for a certificate of

appealability with this Court. One year later, on February 24,

2010, we certified the appealability of three issues: (1)

whether his untimely notice of appeal deprived this Court of

jurisdiction; (2) whether his trial counsel was ineffective, and,

if so; (3) whether his trial counsel‟s conduct was prejudicial

to his case.

Five months later, on July 29, 2010, Rountree filed a

motion to expand his certificate of appealability to include

certification of: (1) whether the state court acted contrary to,

or unreasonably applied, clearly established federal law when
it held that the Supreme Court‟s decisions in Apprendi v.

New Jersey, 530 U.S. 466 (2000), and Blakely v.

Washington, 542 U.S. 296 (2004), did not retroactively

invalidate Rountree‟s Camden County sentence; (2) any

relevant sentencing implications from his not having been

12
indicted for possession of a firearm in Camden County; (3)

whether the Camden County trial judge made improper

responses to jury questions; and (4) whether “other crimes

evidence and unindicted juvenile acts” were improperly

admitted during his Camden County trial. We granted the

motion.

II.
The District Court had jurisdiction pursuant to 28

U.S.C. § 2254 because Rountree‟s habeas petition alleged that

he was incarcerated in violation of the United States

Constitution, see Rountree v. Balicki, No. 07-5763, 2008 WL

4950008, at *2 (D.N.J. Nov. 18, 2008), and because Rountree

exhausted his state court avenues for relief, see State v.

Rountree, 926 A.2d 852 (N.J. 2007). We have jurisdiction

under 28 U.S.C. § 2253(a) because Rountree met the

requirements for a timely pro se notice of appeal, and because

he obtained a certificate of appealability. See id. § 2253(c)(1).

The government contends that Rountree‟s notice of
appeal was untimely, thus depriving us of jurisdiction over

13
his appeal from the District Court. We disagree. This case

falls within Rule 4(a), Federal Rules of Appellate Procedure,

because this is a civil case to which the United States is not a

party. Rule 4(a)(1)(A) provides that a notice of appeal “must

be filed with the district clerk within 30 days after the

judgment or order appealed from is entered.” Our Local

Appellate Rules relax certain formalities for pro se habeas

petitioners, including Rountree:

The court will deem a document filed by a pro
se litigant after the decision of the district court
in a civil, criminal, or habeas corpus case to be
a notice of appeal despite informality in its form
or title, if it evidences an intention to appeal.

3d Cir. L.A.R. 3.4 (2010) (“Notice of Appeal in Pro Se

Cases”). “This rule is designed to emphasize that the
jurisdictional requirement of a notice of appeal is met in a pro

se case by the filing of an informal document.” L.A.R. 3.4

(Committee Comments).
In this case, the District Court entered its denial of

habeas corpus relief on November 18, 2008. Rountree, 2008

14
WL 4950008, at *2. Twenty-seven days later, on December

15, 2008, Rountree filed a pro se motion for extension of time

to file for a certificate of appealability. See Rountree v.

Balicki, No. 07-5763, 2009 WL 223421, at *1 (D.N.J. Jan.

27, 2009) (“Petitioner‟s motion for an extension of time is

dated December 12, 2008 and was docketed by the Clerk on

December 15, 2008.”). By indicating he would file for a

certificate of appealability, his pro se motion “evidence[d] an

intention to appeal,” which means it constituted a notice of

appeal pursuant to Local Appellate Rule 3.4. Because

Rountree filed that motion within the 30-day timeline

proscribed by Rule 4(a)(1)(A), his notice of appeal was

timely. And, because he obtained a certificate of

appealability, we have jurisdiction pursuant to 28 U.S.C.

§§ 1291 and 2253(a).

III.
The state court denied Rountree‟s Strickland v.

Washington claim on the merits, which means our review of
his 28 U.S.C. § 2254 petition is subject to AEDPA. See 28

15
U.S.C. §§ 2254(a), 2254(d). Under AEDPA, our task is to

determine only whether the state court‟s adjudication of

Rountree‟s Strickland 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 the State
court proceeding.
§ 2254(d). Consistent with Supreme Court precedent, we read

§ 2254(d) to require three distinct legal inquiries. See, e.g.,

Harrington v. Richter, --- U.S. ---, 131 S. Ct. 770, 785 (2011).

The first is whether the state court decision was “contrary to .

. . clearly established Federal law, as determined by the

Supreme Court of the United States.” § 2254(d)(1). The

second is whether the state court decision “involved an

unreasonable application of” such law. § 2254(d)(1). And the

third is whether the state court decision “was based on an

16
unreasonable determination of the facts in light of the

evidence presented” to the state court. § 2254(d)(2).

The test for § 2254(d)(1)‟s “unreasonable application

of” clause is as follows: “[a]n „unreasonable application‟

occurs when a state court „identifies the correct governing

legal principle from [the Supreme] Court‟s decisions but

unreasonably applies that principle to the facts‟ of petitioner‟s

case.” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (quoting

Wiggins v. Smith, 539 U.S. 519, 520 (2003)). For purposes of

§ 2254(d)(1), “[i]t is not enough that a federal habeas court, in

its independent review of the legal question, is left with a firm

conviction that the state court was erroneous.” Lockyer v.

Andrade, 538 U.S. 63, 75 (2003) (internal quotations

omitted). “Under § 2254(d)(1)‟s „unreasonable application‟
clause . . . a federal habeas court may not issue the writ

simply because that court concludes in its independent

judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly.” Id. at 75-

76 (quoting Williams v. Taylor, 529 U.S. 362, 411 (2000)).

17
Rather, “[t]he state court‟s application of clearly established

law must be objectively unreasonable” before a federal court

may grant the writ. Andrade, 538 U.S. at 75.

The test for § 2254(d)(1)‟s “contrary to” clause is

whether the state court decision “applies a rule that

contradicts the governing law set forth in [the Supreme

Court‟s] cases, or if it confronts a set of facts that is

materially indistinguishable from a decision of [the Supreme]

Court but reaches a different result.” Brown v. Payton, 544

U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405, and

Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002)). Of course,

a state court‟s resolution of a question that the Supreme Court

has not resolved can be neither contrary to, nor an

unreasonable application of, the Court‟s precedent. See Kane
v. Garcia Espitia, 546 U.S. 9 (2005).

The test for § 2254(d)(2)‟s “unreasonable

determination of facts” clause is whether the petitioner has

demonstrated by “clear and convincing evidence,”

§ 2254(e)(1), that the state court‟s determination of the facts

18
was unreasonable in light of the record. See Rice v. Collins,

546 U.S. 333, 338-339 (2006) (“State-court factual findings,

moreover, are presumed correct; the petitioner has the burden

of rebutting the presumption by „clear and convincing

evidence.‟”) (quoting § 2254(e)(1)) (citing Miller-El v.

Dretke, 545 U.S. 231, 240 (2005))); see also Simmons v.

Beard, 590 F.3d 223, 231 (3d Cir. 2009) (“Under the § 2254

standard, a district court is bound to presume that the state

court‟s factual findings are correct, with the burden on the

petitioner to rebut those findings by clear and convincing

evidence.”). Importantly, the evidence against which a federal

court measures the reasonableness of the state court‟s factual

findings is the record evidence at the time of the state court‟s

adjudication. Cullen v. Pinholster, --- U.S. ---, 2011 WL
1225705, at *11 (Apr. 4, 2011).

We will grant relief only if Rountree shows that the

New Jersey state court‟s decision satisfied one of the three

tests set forth above.

19
 IV.
Rountree petitioned the New Jersey courts for post-

conviction relief on the basis of an alleged violation of

Strickland v. Washington, 466 U.S. 668 (1984), during the

proceedings that led to his Camden County sentence. A

Strickland violation occurs when (1) defense counsel‟s

conduct falls below an objective standard of reasonableness,

and (2) there is a reasonable probability (which is more than a

mere possibility) that but for the counsel‟s failure, the

proceeding would have come out differently. Id. at 687. The

New Jersey court rejected that claim, determining that

although Rountree‟s counsel‟s performance fell below an

objective standard of reasonableness, that failing did not

cause prejudice to Rountree. See State v. Rountree, 906 A.2d

1124, 1138 (N.J. Super. Ct. App. Div. 2006).

In this habeas petition, Rountree contends that the New

Jersey court‟s rejection of his Strickland claim was
unreasonable. We recognize that AEDPA “precludes federal

habeas relief so long as „fairminded jurists could disagree‟ on

20
the correctness of the state court‟s decision.” Richter, 131 S.

Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652,

664 (2004)). Accordingly, we will not surmise whether the

state court reached the best or even the correct result in

Rountree‟s case; rather the question we must answer is

“whether the state court‟s application of the Strickland

standard was unreasonable”—a standard that is at once

objective and deferential. Id. at 785.

Applying AEDPA, we conclude that the New Jersey

court‟s decision in this case survives review under § 2254.

Although certain portions of the record can be argued to

support Rountree‟s petition, it is precisely because

“fairminded jurists could disagree” with each other that we

must affirm the state court‟s holding. Alvarado, 541 U.S. at

664. We will therefore affirm the District Court.

A.
We begin with the New Jersey state court‟s

interpretation and application of Strickland v. Washington‟s
“ineffectiveness” prong. See 466 U.S. at 687-688. Under

21
Strickland, Rountree‟s first burden in the state court was to

demonstrate that his trial counsel‟s conduct “fell below an

objective standard of reasonableness.” Id. at 688. The test,

which is “whether, in light of all the circumstances, the

identified acts or omissions were outside the wide range of

professionally competent assistance,” is applied to “the facts

of the particular case, viewed as of the time of counsel‟s

conduct.” Id. at 690.

To evaluate properly the decisions the state court made

when faced with Rountree‟s Strickland claim, we must first

examine the contentions Rountree made there. Rountree

contended in the state court that his Camden County trial

counsel failed to render professionally competent assistance,

because the counsel did not file a motion under Rule 3:25A-1
of the New Jersey Rules of Court to consolidate into one

negotiation the plea bargaining over all charges pending in

both Camden and Essex Counties. He pointed out that his

counsel and the Camden County judge had on-the-record

discussions about the possibility of such consolidation, and

22
that the transcript of his (later-withdrawn) guilty plea from

Camden County gave every indication that the judge would

have agreed to consolidate, if a motion had been filed. Noting

that consolidation generally redounds to the benefit of

criminal defendants, Rountree contended that his counsel‟s

failure to file the motion—notwithstanding the strong

indication that it would have been granted—amounted to

conduct that “fell below an objective standard of

reasonableness.” 466 U.S. at 688.

The state court agreed with Rountree. Rountree, 906

A.2d at 1137. It applied the New Jersey Supreme Court‟s

decision in State v. Pillot, 560 A.2d 634, 643 (N.J. 1989)

(construing Rule 3:25A-1 to “enable a defendant to request

consolidation of charges pending in multiple counties for
purposes of offering pleas and for sentencing”), and

concluded that consolidation was legally permissible in

Rountree‟s case. Because consolidation was legally

permissible, and given the record‟s strong indication that it

would have occurred had a motion been filed, the state court

23
held that Rountree‟s counsel had a professional obligation to

file a Rule 3:25A-1 motion.

The District Court, which was bound to accept the

state court‟s conclusions of state law in applying New

Jersey‟s Rule 3:25A-1, affirmed the state court. See

Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have

repeatedly held that a state court‟s interpretation of state law,

including one announced on direct appeal of the challenged

conviction, binds a federal court sitting in habeas corpus.”)

(citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), and

Mullaney v. Wilbur, 421 U.S. 684, 691 (1975)). After

accepting that consolidation was possible in Rountree‟s case,

the District Court concluded that the state court did not apply

Strickland in an unreasonable fashion when it held that any
competent New Jersey attorney would have filed a Rule

3:25A-1 motion in these circumstances.

We will affirm the District Court for substantially the

same reasons: we too are bound to accept the state court‟s

announcement that the Pillot decision obliges New Jersey

24
defense attorneys to move to consolidate plea negotiations

when the facts indicate the motion will be granted, see

Richey, 546 U.S. at 76, and we agree that the state court‟s

interpretation of the facts in this case (i.e., its conclusion that

a Rule 3:25A-1 motion to consolidate would have been

granted) was not objectively unreasonable. We also agree

that, in holding that Rountree‟s counsel‟s conduct fell short of

what an objectively reasonable New Jersey attorney would

do, the New Jersey court correctly applied federal law as

stated by the Supreme Court of the United States. We will

therefore affirm the state court‟s conclusion that Rountree

carried his first burden under Strickland v. Washington.

B.
We turn now to the “prejudice” prong of Rountree‟s

Strickland claim. Rountree‟s second Strickland burden in the

state court was to show that his counsel‟s unprofessional

conduct prejudiced his case. 466 U.S. at 688. But his burden

before us is greater: under AEDPA, the question is “„not
whether a federal court believes the state court‟s

25
determination‟ under the Strickland standard „was incorrect,

but whether that determination was unreasonable—a

substantially higher threshold.‟” Knowles v. Mirzayance, ---

U.S. ---, 129 S. Ct. 1411, 1420 (2009) (quoting Schriro v.

Landrigan, 550 U.S. 465, 473 (2007)). Our task is to

determine only whether the state court adjudication of

Rountree‟s claim warrants relief under § 2254(d)(1) or

§ 2254(d)(2). To prevail under those subsections, he must

persuade us that the New Jersey court‟s holding suffered from

one of the following failings: (1) it “was contrary to” or

“involved an unreasonable application of” federal law then

clearly established in the holdings of the Supreme Court of

the United States; or (2) it “was based on an unreasonable

determination of the facts” in light of the record before the
state court. Richter, 131 S. Ct. at 785 (quoting § 2254(d) and

Williams, 529 U.S. at 412). For the reasons that follow, we

conclude that the state court‟s determination of the prejudice

prong of Rountree‟s Strickland claim was not unreasonable

26
within the meaning of § 2254(d), and therefore we will

affirm.

1.
Intelligent evaluation of the state court‟s application of

federal law to Rountree‟s case requires at least some

evaluation of the facts to which the state court applied that

law. We therefore pause to set forth the legal rules that

applied in, and the arguments Rountree made before, the New

Jersey state court.

Rountree‟s Strickland burden in the state court

required him to demonstrate that the unprofessional errors of

his counsel caused him prejudice. 466 U.S. at 688. This is

because “[a]n error by counsel, even if professionally

unreasonable, does not warrant setting aside the judgment of

a criminal proceeding if the error had no effect on the

judgment.” Id. at 691 (citing United States v. Morrison, 449

U.S. 361, 364-365 (1981)). “It is not enough for the defendant

to show that the errors had some conceivable effect on the
outcome of the proceeding.” Id. at 693. Rather, to meet this

27
standard, a “defendant must show that there is a reasonable

probability that, but for counsel‟s unprofessional errors, the

result of the proceeding would have been different.” Id. at

694 (emphasis added).

To meet this standard in the New Jersey court,

Rountree contended that his Camden County counsel‟s failure

to file a Rule 3:25A-1 consolidation motion increased his

sentence. Cf. Glover v. United States, 531 U.S. 198, 202-203

(2001). In his view, the failure to consolidate the Camden

County and Essex County charges into one proceeding caused

him to be convicted of Graves Act crimes on two separate

occasions, rather than all at once as might have happened

after a single, lump-sum plea. That is, he argued that because

he was first convicted of a Graves Act offense in Essex
County, he arrived at sentencing in Camden County as a

“previously convicted” Graves Act offender. Because the

Graves Act imposes heightened penalties for persons

previously convicted of Graves Act offenses, see N.J. Stat.

Ann. § 2C:43-6(c), Rountree‟s position in the New Jersey

28
court was that the sentencing enhancement applied to him

was caused by his counsel‟s ineffective failure to consolidate.

Essential to Rountree‟s position was the implied premise that,

if offered a single lump-sum plea at a consolidated

negotiation, he would have accepted it.

The state court rejected Rountree‟s arguments after

concluding that Rountree would not have accepted a

consolidated plea even had he been offered one. Rountree,

906 A.2d at 1138. The state court based this conclusion on the

following facts: Rountree went to trial in Camden County

after his Graves Act conviction for attempted murder in Essex

County, for which he received a 10-year sentence. Ten years

is at the low end of the possible punishment under New

Jersey law for the crimes he faced (i.e., conspiracy to commit
murder, first-degree attempted murder, second-degree

aggravated assault, third-degree unlawful possession of a

weapon, and second-degree possession of a weapon for an

unlawful purpose). In April of 1996, shortly before

Rountree‟s Camden County trial, the Camden County

29
prosecutor offered Rountree 20 years, during the first 7 of

which he would be ineligible for parole. The entire Camden

County sentence would run concurrently with his 10-year

Essex County sentence. (The prosecutor further stated that if

Rountree‟s Essex County conviction were overturned on

appeal, he would agree to reduce Rountree‟s Camden County

sentence to nine years, with three years of parole ineligibility.

This represented the bare minimum sentence that the Graves

Act would allow.) This April 1996 offer would have settled

all of Rountree‟s charges, in both counties, for conspiracy to

commit murder, first-degree attempted murder, first-degree

armed robbery, aggravated assault, unlawful possession of a

firearm, possession of a firearm for an unlawful purpose, and

hindering justice, with a 20-year sentence—and substantially
less, if Rountree were paroled. In the state court‟s view, this

offer was “as good as he reasonably could have expected if

the cases had been consolidated for plea negotiation or

sentencing.” 906 A.2d at 1138. Nonetheless, and against the

advice of his counsel, Rountree rejected it.

30
 Because Rountree rejected an offer that was as good as

what he could have hoped to have received after

consolidation, the state court saw no reason to conclude that

the failure to consolidate caused him any harm. Id. (“There is

no reason to conclude that he would have accepted the same

offer if it had been made after an order of consolidation.”).

On this basis, the state court concluded that his counsel‟s

ineffective failure to move for consolidation had no “effect on

the outcome of the proceeding”—i.e., the sentence Rountree

received after the Camden County jury found him guilty. Id.

2.
We turn first to Rountree‟s claim under § 2254(d)(2).

When reviewing a state court decision for “an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding,” § 2254(d)(2), we are “bound to

presume that the state court‟s factual findings are correct,

with the burden on the petitioner to rebut those findings by

clear and convincing evidence.” Simmons v. Beard, 590 F.3d
223, 231 (3d Cir. 2009); see also § 2254(e)(1) (“In a

31
proceeding instituted by an application for a writ of habeas

corpus by a person in custody pursuant to the judgment of a

State court, a determination of a factual issue made by a State

court shall be presumed to be correct. The applicant shall

have the burden of rebutting the presumption of correctness

by clear and convincing evidence.”).

Applying those rules, we will defer to two critical facts

found by the state court, because we conclude that Rountree

has not rebutted them by “clear and convincing evidence.”

§ 2254(e)(1); Simmons, 590 F.3d at 231. The first is the state

court‟s finding of what might have been offered during a

consolidated plea negotiation. We will defer to the state

court‟s conclusion that the April 1996 plea offer Rountree

received in Camden County (for a 20-year sentence with 7
years of parole ineligibility, to run concurrently with his

Essex County sentence) was “as good as he reasonably could

have expected if the cases had been consolidated for plea

negotiations or sentencing.” Rountree, 906 A.2d at 1138. We

accept this conclusion because Rountree has not offered

32
“clear and convincing evidence,” § 2254(e)(1), that there was

a “reasonable probability,” Strickland, 466 U.S. at 695, that

he could have settled his charges for conspiracy to commit

murder, first-degree attempted murder, first-degree armed

robbery, aggravated assault, two distinct firearm offenses, and

hindering justice, for less than the terms of the April 1996

offer. We will therefore accept the New Jersey court‟s

conclusion that the offer Rountree rejected in April 1996 was

as good as he could have expected to receive at a consolidated

plea negotiation.

The second finding of fact to which we will defer is

the state court‟s finding of how Rountree would have reacted

to a consolidated offer. We will defer to its conclusion that,

had consolidation occurred, Rountree would not have
accepted any offer likely to emerge from it. 906 A.2d at 1138.

The state court based this finding on its conclusion that any

offer from a consolidated plea would not have been better

than the one he rejected in April 1996. See id. (“There is no

reason to conclude that he would have accepted the same

33
offer if it had been made after an order of consolidation.”). To

persuade us to reverse, Rountree must offer “clear and

convincing evidence,” § 2254(e)(1), that there was a

“reasonable probability,” Strickland, 466 U.S. at 695, that if

consolidation had occurred, he would have accepted an offer

extending from that agreement. To make this showing,

Rountree calls our attention to the transcript leading to his

rejection of the April 1996 offer:

[Rountree]: I would just like to add that I was
trying to respond to him that it‟s a thing—it‟s
not just that I don‟t want to take the deal and
such, but they tell me that the last six, the last—
since December of 1994 till now . . . all that
time is not counting [toward my sentence]. The
time I‟ve been in prison is basically dead time.
This has a lot to do with me—do you
understand what I‟m saying?

The Court: It‟s not dead time. It counts toward
the sentence you are serving [in Essex County],
sir. It just doesn‟t count on the sentence you
might get in this case if you‟re convicted. Now,
the other thing is that‟s the offer. It‟s been made
to you. It is [your attorney‟s] representation that
you have no interest in accepting the offer.
Correct?

34
 ....

[Rountree]: . . . correct, your honor.

App. 35. Rountree contends that (1) “the only logical reading

of the transcript” is that, in saying “they tell me,” Rountree

was referring to his counsel, and that (2) but for his counsel‟s

advice he would indeed have accepted the April 1996 offer.

The state court rejected both of these interpretations. It

concluded that Rountree‟s contention that he turned down the

April 1996 offer because he believed that he was not going to

receive credit for the time he had been serving on his Essex

County sentence was a “bald assertion,” 906 A.2d at 1133,

not sufficient to satisfy the “reasonable probability” standard

Strickland imposes. See 466 U.S. at 694.

Under AEDPA, the question we must answer is

whether Rountree has presented clear and convincing

evidence that the state court‟s conclusion was wrong.

Simmons v. Beard, 581 F.3d 158 165 (3d. Cir. 2009). At

bottom, the question of how to read this transcript (i.e.,

35
whether or not it indicates that Rountree would have accepted

the offer but for his counsel‟s advice) is a question of fact that

can be argued either way. That the transcript can be read in

more than one way does not—by itself—rise to the level of

“clear and convincing evidence,” § 2254(e)(1), that the state

court must be deemed unreasonable in choosing one reading

over another. § 2254(d)(2). In this case, Rountree has offered

only his assertion, backed by inferences, that when he said

“they tell me” he referred to his counsel. He has not explained

why we should ignore the Camden County judge‟s correction

of his misstatement (“It‟s not dead time”), or how his self-

serving assertion—standing alone—trumps the New Jersey

court‟s factual finding to the contrary. Simply put, the record

in this case does not contain the “clear and convincing”
evidence, § 2254(e)(1), required to meet § 2254(d)(2)‟s high

standard.

In sum, we conclude that Rountree has not

demonstrated that the New Jersey court‟s conclusions were

based on an unreasonable determination of the facts in light

36
of the evidence, because he has not rebutted “by clear and

convincing evidence,” § 2254(e)(1), the state court‟s

conclusions that (1) the April 1996 offer he rejected was as

good as he would have received at a consolidated negotiation,

and (2) he would have rejected the same offer had it occurred

after an order of consolidation. In light of these facts, which

we accept, it was not unreasonable for the state court to

conclude that consolidation would not have made any

difference in Rountree‟s case. We will therefore affirm the

District Court‟s denial of relief under § 2254(d)(2).

3.
We turn next to Rountree‟s claim under § 2254(d)(1),

and examine whether the state court‟s decision was either

“contrary to” or “involved an unreasonable application of”

clearly established federal law as determined by the Supreme

Court of the United States. In making that evaluation, our

“review under § 2254(d)(1) is limited to the record that was

before the state court that adjudicated the claim on the

37
merits.” Cullen v. Pinholster, --- U.S. ---, 2011 WL 1225705,

at *8 (Apr. 4, 2011).

The state court‟s decision was not “contrary to” clearly

established federal law. § 2254(d)(1). The state court

correctly articulated the federal standard for ineffective

assistance of counsel as set forth by the Supreme Court of the

United States in Strickland. See Rountree, 906 A.2d at 1133-

1134 (articulating the Strickland standard). And, it correctly

applied that standard when it inquired into whether Rountree

had satisfied “both prongs,” and then weighed Rountree‟s

arguments against the “reasonable probability” test that

Strickland imposes. Id. at 1138 (applying Strickland‟s

prejudice prong).

Nor did it “involve[] an unreasonable application of”
federal law. § 2254(d)(1). As we have already discussed,

Rountree has not “rebut[ted] the presumption of correctness”

of the New Jersey court‟s fact-finding “by clear and

convincing evidence.” § 2254(e)(1). Under AEDPA, we will

accept the state court‟s conclusion that Rountree would have

38
rejected any likely consolidated plea offer. That means his

counsel‟s failure to move to consolidate his plea bargaining

did not affect the outcome of his Camden County plea

negotiations. These facts were, under clearly established

Supreme Court case law, a reasonable and sufficient basis

upon which to deny his claim. Strickland, 466 U.S. at 691

(“An error by counsel, even if professionally unreasonable,

does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment.”).

Because the New Jersey court applied Strickland

reasonably, it follows necessarily that it did not reach “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.” § 2254(d)(1). We
will therefore affirm the District Court‟s denial of relief.

In sum, we conclude that Rountree‟s petition does not

warrant relief under AEDPA. In light of the facts before the

state court—particularly Rountree‟s rejection of a plea offer

that was as good as anything that might have come after a

39
motion to consolidate—it was not unreasonable for the state

court to conclude that Rountree‟s attorney‟s failure to file a

Rule 3:25A-1 motion had no effect on the sentence he

received for his Camden County crimes. Although

“fairminded jurists could disagree” with the way the state

court weighed the evidence in this case, Alvarado, 541 U.S. at

664, it was not objectively unreasonable of the state court to

conclude that, had consolidation occurred, Rountree would

have rejected any offer it produced, gone to trial, been

convicted separately for the separate Graves Act crimes he

did commit, and been sentenced as the repeat-offender that—

at the end of the day—he actually was.

We will therefore affirm the District Court.

V.
On July, 29, 2010, Rountree filed a motion to expand

the certificate of appealability to include four additional

issues. We granted the motion, but upon review we conclude

that the issues raised in the expanded certificate of
appealability lack merit. First, Rountree complains that his

40
sentence was enhanced based on a judge-made finding that

his Camden robbery involved a real gun, in violation of

Apprendi v. New Jersey, 530 U.S. 466 (2000). We have held

that Apprendi does not apply retroactively to convictions that,

like Rountree‟s, were made final before Apprendi was

announced. See United States v. Swinton, 333 F.3d 481, 491

(3d Cir. 2003). Accordingly, this claim lacks merit.

Second, Rountree claims that because he was never

indicted for possession of a firearm, he cannot be sentenced to

an extended Graves Act sentence. This claim fails because it

was not exhausted in state court. Further, the Graves Act‟s

applicability is not limited to those who are indicted and

convicted for illegally possessing a firearm. It applies equally

to those who use weapons in the course of another crime. See
N.J. Stat. Ann. § 43-6(c).

Third, Rountree contends that the Camden trial judge‟s

responses to jury questions were improper. However, as the

District Court held, the state appellate court reasonably

41
concluded that the judge‟s answers did not have a prejudicial

effect on the jury.

Finally, Rountree claims that his Camden trial counsel

was ineffective for failing to move to exclude other crimes

evidence. The record demonstrates that trial counsel objected

to the evidence and moved for a mistrial, but the Judge denied

the motion and directed the jury to disregard the other crimes

evidence. We agree with the state appellate court that the

judge‟s limiting instruction forestalled any unjust result.

Accordingly, we will summarily affirm the state court on

each of the issues raised in Rountree‟s motion for an

expanded certificate of appealability.

*****

The judgment of the District Court will be affirmed.

42