Judge Bibas Grants Pro Se Federal Habeas Petition Because Trial Counsel Failed to Object to Prejudicial Character Evidence

Federal Rule of Evidence 404(b)(1) & (2) provide as follows:

(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

Courts across the country have held that Rule 404(b)(1) is a “rule of inclusion,” meaning that character evidence is almost always admitted when offered for a permissible purpose.

Moreover,

-courts almost never grant claims of ineffective of counsel, finding that defendants either failed to prove prejudice or deficient performance;

-federal habeas petitions based on ineffective assistance of counsel are even less successful; and

–pro se habeas petitions based on ineffective assistance of counsel are even less successful are even less successful

All of which means that the recent opinion of the Third Circuit in Rosa v. Attorney General of New Jersey, 2025 WL 1790264 (3rd Cir. 2025), was a bit of a unicorn.

In Rosa, 

About two decades ago, New Jersey prosecuted Kelvin Rosa for burglarizing a check-cashing store and shooting a police officer who responded to the burglary. Nearly four months after the burglary, police tried to pull over a driver who had aroused their suspicions. The driver took off, and police followed in a high-speed chase. As they followed the fleeing car, officers watched as its passengers tossed crowbars, screw-drivers, and two-way radios out the window. The fleeing suspects eventually crashed, abandoned the car, and fled on foot into a nearby swamp, where they were captured. One of the passengers whom police captured was Rosa. A few days later, in bushes near the car-chase scene, police recovered a stolen Sig Sauer 9 mm pistol. The car’s driver, Mariano Nunez, told police that he and Rosa had burglarized multiple stores together, and that during one of them, Rosa had shot and injured an officer.

New Jersey charged Rosa with several types of burglary, theft, armed robbery, aggravated assault, and attempted murder—all from the burglary of a check-cashing store. At trial, to place Rosa at the check-cashing store with the attempted-murder weapon, the state put on evidence that Rosa had (1) stolen the gun the night before, while burglarizing a beef distributor, and (2) carried that gun during the police chase and tossed it out the window.

In an opinion authored by Judge Bibas, the Third Circuit found that trial counsel was ineffective for failing to object to this character evidence. Specifically, he held that

By failing to dam the flood, counsel fell below constitutional norms. Because prejudicial evidence flooded the state’s case against Rosa, his counsel fell below constitutional norms by not taking enough remedial action.

First, counsel failed to object when the state put on detailed evidence about the beef-distribution burglary that went beyond proving the identity of the gun. The 404(b) order provided that the evidence could be used only to link Rosa to the weapon and thus the charged crimes….It specifically noted that it was not admitting the evidence to prove that the other alleged burglaries were “similar” to the burglary for which Rosa stood trial.

But the prosecution blew past those clear bounds. To prove the identity of the gun, it needed to present testimony only that Rosa had (1) stolen the gun at the first burglary and (2) possessed it at the attempted third one, “without the details involving the actual” heist plans….But from the start, the prosecution slipped extraneous, prejudicial details into the trial. In his opening statement, the prosecutor detailed how the beef-distributor burglary was executed and likened it to the check-cashing-store burglary. A cop testified vividly about what the scene of the beef-distribution burglary looked like and the unique procedures that the burglars used. And Nunez explained to the jury how each burglary was “planned and executed” like the others. Id. Such detailed testimony was not needed to prove identity, and it was severely prejudicial. It blurred the crimes charged with the alleged other crimes and primed the jury to conclude that Rosa had a propensity to commit burglaries—a forbidden inference.

Any effective defense lawyer should have known to object as soon as this evidence went beyond the 404(b) order. Counsel did so later on during the state’s presentation, when Nunez began to testify about the details of the attempted cellphone-store burglary. But his failure to do so throughout this extensive earlier testimony is inexplicable.

Second, and more importantly, defense counsel never once asked for a limiting instruction for any of the 404(b) evidence. Even if the state had presented all the 404(b) evidence within the bounds of the 404(b) order, it still would have risked severely prejudicing Rosa absent timely and specific limiting instructions. Any reasonable defense counsel should have known this. And there was no downside to asking for them. As in Albrecht, objecting or instructing the jury would not have inadvertently underscored “fleeting[ ]” evidence that the jury might otherwise have missed; the state had spent substantial time dragging the jury through it….

Given these facts, we cannot imagine any valid reason not to object or to seek prompt, focused limiting instructions—especially when counsel knew the evidence was objectionable. There was zero reason not to.

-CM