                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 16-2658
                                      _____________

                                   JEROME BROOKS,
                                             Appellant

                                     v.
                  ADMINISTRATOR NEW JERSEY STATE PRISON;
                     ATTORNEY GENERAL OF NEW JERSEY
                              _______________

                     On Appeal from the United States District Court
                             for the District of New Jersey
                               (D.C. No. 2-13-cv-02545)
                        District Judge: Hon. Stanley R. Chesler
                                   _______________

                                  Argued January 8, 2018

       Before: JORDAN, ROTH, Circuit Judges and STEARNS*, District Judge

                                 (Filed: January 31, 2018)
                                     _______________

                                        OPINION
                                     _______________




       *
       Honorable Richard G. Stearns, United States District Court Judge for the District
of Massachusetts, sitting by designation.

       
         This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
Craig S. Leeds, Esq. (Argued)
Suite 2
1205 Anderson Avenue
Fort Lee NJ 07024

                     Counsel for Appellant

Annmarie Cozzi, Esq.
Catherine A. Foddai, Esq.
Elizabeth R. Rebein, Esq. (Argued)
Bergen County Office of Prosecutor
Room 202
2 Bergen County Plaza
Hackensack NJ 07601

                     Counsel for Appellees


STEARNS, District Judge

       In this habeas petition, Jerome Brooks argues that testimony elicited from a police

detective at his trial violated his rights under the Confrontation Clause of both the Sixth

Amendment and the New Jersey State Constitution, art. I, cl. 10, and that by failing to

raise the issue, his attorney in the state appellate proceedings provided ineffective

assistance.1 The testimony concerned a statement given to police by one Ronald

Wimbush, a non-testifying (and since deceased) co-conspirator, who, in a 1996 interview,

told police that Brooks was an accomplice in an unsolved 1983 homicide.

       Although the contents of the statement were not admitted in evidence at Brooks’s

trial, we agree with Brooks that the testimony, when combined with the prosecutor’s

repeated references to Wimbush’s statement in his closing argument, likely violated

       1
        We will refer generically to the Confrontation Clause, as the New Jersey
Supreme Court recognizes the state constitutional provision to be an analog of the
Federal Constitution. See State of New Jersey v. Wilson, 227 N.J. 534, 544-45 (2017).
                                              2
Brooks’s rights under the Confrontation Clause because it implied to the jury that

Wimbush had implicated him in the murder. We also agree that Brooks’s appellate

counsel was ineffective for failing to raise that issue in the state proceedings and that the

state court’s conclusion to the contrary amounted to an unreasonable application of

federal law.

       That said, in light of the overwhelming evidence of Brooks’s guilt – including his

trial testimony attempting to walk back an earlier taped confession – we agree with the

District Court that any Confrontation Clause violation was harmless, and moreover, that

any deficiency on the part of Brooks’s appellate counsel did not rise to the level of

prejudicial error as required under Strickland v. Washington, 466 U.S. 668 (1984). We

therefore affirm the District Court’s denial of habeas relief.

                                        I. Background

       Brooks was convicted of murder for his role in the robbery and slaying of Roberto

Arenas, a New Jersey drug dealer. The case remained cold for thirteen years when police

fortuitously arrested Wimbush on unrelated charges and secured an interview. In that

statement, Wimbush told them that Brooks and a co-conspirator, Albert Bolt, had

committed the murder. With Wimbush’s statement in hand, police interviewed Brooks,

who was then being held in a county jail on drug charges. After administering Miranda

warnings, the officers obtained a full confession, in which Brooks admitted to shooting

Arenas four times. Brooks was then charged with first degree murder and two counts of

felony murder (with robbery and kidnapping as the predicate crimes).



                                              3
       Wimbush was killed in an unrelated homicide in 1998, while Bolt remained a

fugitive at the time of Brooks’s 2006 trial. In light of Wimbush’s unavailability,

Brooks’s counsel sought to exclude any mention of his statement to the police. The trial

judge excluded testimony about the contents of Wimbush’s statement but, pursuant to the

“information received” rule, permitted Detective Mark Bendul to testify that the murder

investigation had been “reopened” based on what Wimbush had said, focusing on

“Jerome Brooks and Albert Bolt.”2 (A899).

       Brooks took the stand at trial and repudiated his confession. He told the jury that

Bolt had coerced him into participating in the robbery. He also denied firing the fatal

shots. Brooks claimed that Bolt had handed him a gun and ordered him to shoot Arenas,

and when he refused, Bolt attempted to grab back the gun. In the ensuing struggle, the

gun accidentally discharged, the bullet striking Arenas behind his right ear, causing a

non-fatal wound. As he walked back towards the getaway car, Brooks said that he heard

Bolt fire the lethal shots. Brooks testified that he confessed to shooting Arenas four times

only after police promised him that he would be charged with manslaughter and receive a

sentence to run concurrent with his pending drug charges.

       In his closing argument, the prosecutor reminded the jury that Detective Bendul

had “reviewed the file” and, as a result, “knew about Albert Bolt [and] Jerome Brooks.”


       2
         “It is well settled that the hearsay rule is not violated when a police officer
explains the reason he approached a suspect or went to the scene of the crime by stating
that he did so ‘upon information received.’ Such testimony has been held to be
admissible to show that the officer was not acting in an arbitrary manner or to explain his
subsequent conduct.” State v. Bankston, 63 N.J. 263, 268 (1973) (citing E. Cleary,
McCormick on Evidence § 248, p. 587 (2d ed. 1972)).
                                             4
(A1034; 1037). He also told the jury that based on a review of “the various reports in the

file,” Bendul had made “the effort, obviously, to go and find that Jerome Brooks.”

(A1037). The judge instructed the jury on the elements of murder and felony murder,

and at Brooks’s request, on accident as a defense. Brooks was convicted of first degree

murder and sentenced to life in prison.

       Brooks sought post-conviction relief in the New Jersey state court, arguing that the

testimony elicited from Detective Bendul about Wimbush’s statement, when combined

with the prosecutor’s closing remarks, violated his rights under the Confrontation Clause.

The New Jersey Appellate Division disagreed, holding that the references to the

statement at trial did not lead “inescapably” to the inference that Wimbush had

implicated Brooks in the murder. Moreover, the appellate court ruled that “even if the

detective’s statements at trial respecting his conversations with Wimbush” violated the

Confrontation Clause, “in view of defendant’s confession and his testimony at trial, the

error was harmless.” State v. Brooks, No. A-4247-10T1, 2012 WL 2369326, at *11 (N.J.

Super. Ct. App. Div. June 22, 2012).

       Brooks then filed this petition for a writ of habeas corpus in federal court, arguing

that his confrontation right had been violated, and that his state counsel had rendered

ineffective assistance by failing to raise the issue on appeal. The District Court denied the

petition, holding that the state court had “reasonably concluded that [the detective’s]

testimony fell short of a violation of the Confrontation Clause because his statement did

not create an inescapable inference that [Brooks] was guilty,” and observing that the

“jury might have inferred [from Bendul’s testimony] only that Petitioner had further

                                              5
information that might help the investigation.” Brooks v. Warren, No. 13-2545(SRC),

2016 WL 1704380, at *9 (D.N.J. Apr. 28, 2016). The District Court also noted that, even

assuming that the comments about the statement had run afoul of the Confrontation

Clause, any error was harmless in light of all the other evidence in the case.3




                                       II. Discussion

       This court granted a certificate of appealability “as to Brooks’s claim that

appellate counsel provided ineffective assistance of counsel by failing to challenge the

admissibility of the statement of Ronald Wimbush, a non-testifying co-conspirator, as a

violation of the Confrontation Clause.”4 We exercise jurisdiction pursuant to 28 U.S.C.

§§ 1291 and 2253. Under the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), to obtain habeas relief, Brooks must establish that “he is in custody in

violation of the Constitution or laws or treaties of the United States,” 28 U.S.C. §

2254(a), and that the state court decision in question was (1) “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” or (2) was “based on an unreasonable determination

       3
         The District Court brushed aside the claim of ineffective assistance in light of its
finding of an absence of a constitutional violation. See United States v. Sanders, 165 F.3d
248, 253 (3d Cir. 1999) (“There can be no Sixth Amendment deprivation of effective
counsel based on an attorney's failure to raise a meritless argument.”).
       4
         The Certificate of Appealability also noted that “[j]urists of reason would debate
whether the challenged testimony contained an implicit accusation of Brooks,” and
concluded that “Brooks has made a substantial showing, see 28 U.S.C. § 2253(c), that
Detective Bendul’s testimony and the prosecutor’s closing argument violated the
Confrontation Clause.”
                                              6
of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §

2254(d). A state court decision amounts to an unreasonable application of federal law “if

the court identifies the correct governing legal rule from the Supreme Court’s cases but

unreasonably applies it to the facts of the particular case.” Jacobs v. Horn, 395 F.3d 92,

100 (3d Cir. 2005); see also Rountree v. Balicki, 640 F.3d 530, 537 (3d Cir. 2011).

       Brooks’s Confrontation Clause argument, and the ineffective-assistance-of-

counsel claim arising out of it, rests on a line cases anchored on State v. Bankston, 63 N.J.

263 (1973), which held that “[w]hen the logical implication to be drawn from the

testimony leads the jury to believe that a non-testifying witness has given the police

evidence of the accused’s guilt, the testimony should be disallowed as hearsay.” Id. at

271. See also State v. Branch, 182 N.J. 338, 350 (2005) (noting that “Bankston . . .

makes clear that both the Confrontation Clause and the hearsay rule are violated when, at

trial, a police officer conveys, directly or by inference, information from a non-testifying

declarant to incriminate the defendant in the crime charged.”). Although the contents of

Wimbush’s statement were not admitted at trial, Brooks argues that the ineluctable

inference to be drawn from Detective Bendul’s testimony and the prosecutor’s

summation was that Wimbush had identified Brooks as the murderer. Because his

Confrontation Clause rights were violated, in turn, Brooks argues that his appellate

counsel was ineffective in failing to raise that claim.

       We agree that Bendul’s testimony, when coupled with the prosecutor’s contention

that because the police were familiar with Wimbush’s statement, they “knew about”

Brooks (A1037), likely violated the Confrontation Clause, and that Brooks’ counsel was

                                              7
ineffective for failing to raise the issue on appeal. However, we also agree with the

District Court that any violation of the Confrontation Clause amounted to harmless error.

       Constitutional error is harmless unless it “had substantial and injurious effect or

influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623

(1993). Factors that a federal court is to consider in determining whether a Confrontation

Clause error was harmless “include the importance of the witness’ testimony in the

prosecution’s case, whether the testimony was cumulative, the presence or absence of

evidence corroborating or contradicting the testimony of the witness on material points,

the extent of cross-examination otherwise permitted, and, of course, the overall strength

of the prosecution’s case.” Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). There is

an additional hurdle to surmount – because the New Jersey Appellate Division found that

any Confrontation Clause error was harmless, we may not grant habeas relief “unless

[that] harmlessness determination itself was unreasonable.” Fry v. Piller, 551 U.S. 112,

119 (2007) (emphasis in original).

       Here, insofar as Detective Bendul’s testimony suggested that authorities knew

from Wimbush’s statement that Brooks had been involved in the murder of Arenas, there

was strong “evidence corroborating . . . [that] testimony,” Van Arsdall, 475 U.S. at 684,

namely Brooks’s confession and his trial testimony, in which despite the recantation of

his confession, Brooks admitted that he was at the scene of the crime holding a gun. The

jury also heard Brooks’s taped confession, in which he admitted to shooting Arenas four

times. In sum, in light of “the overall strength of the prosecution’s case,” id., we are not



                                              8
convinced that the New Jersey Appellate Division’s “harmlessness determination . . . was

unreasonable.” Fry, 551 U.S. at 119.

       Because any error in the admission of Detective Bendul’s testimony was harmless,

Brooks’s ineffective assistance claim necessarily fails under the two-prong standard set

out in Strickland.5 See Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 850 (3d

Cir. 2017). Under Strickland, a defendant must show that his counsel’s performance was

deficient, and that the deficient performance was prejudicial. Strickland, 466 U.S. at 687.

An attorney’s deficient performance is prejudicial only if “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different[.]” Id. at 694. For the same reasons articulated above – most

notably “the overall strength of the prosecution’s case,” Van Arsdall, 475 U.S. at 684 –

we cannot say that the New Jersey Appellate Division was unreasonable in concluding

that Brooks suffered no prejudice because “[t]he likelihood of a different result [is not]

substantial[.]” Harrington v. Richter, 562 U.S. 86, 112 (2011).

                                       III. Conclusion

       For the foregoing reasons, we affirm the District Court’s denial of Brooks’s

habeas petition.


       5
         The District Court elected to analyze Brooks’s petition for habeas relief by
focusing on whether the Confrontation Clause violation, if any, was harmless under
Brecht, rather than whether any ineffective assistance rendered by counsel was
prejudicial under Strickland. However, we note that the two standards, for all practical
purposes, are more or less identical and lead to the same result. See Breakiron v. Horn,
642 F.3d 126, 147 n.18 (3d Cir. 2011) (noting that “Strickland prejudice and Brecht
harmless error are essentially the same standard”) (citations omitted).

                                              9
