MCGEE v. JOHNSON

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

:

DANA MCGEE, :

: Civil Action No. 17-2746(RMB)

Petitioner :

:

v. : OPINION

:

STEPHEN JOHNSON, et al., :

:

Respondents. :

:

BUMB, District Judge

This matter comes before the Court upon the Petition for a

Writ of Habeas Corpus under 28 U.S.C. § 2254 (Pet., ECF No. 1)

filed by Petitioner Dana McGee (“Petitioner”), an inmate confined

in New Jersey State Prison in Trenton, New Jersey. Respondents

filed an answer opposing habeas relief (Answer, ECF No. 17), and

Petitioner filed a traverse.(Traverse, ECF No. 26.) Pursuant to

Federal Rule of Civil Procedure 78, the Court will determine the

claims presented in the petition on the written submissions of the

parties.

I. BACKGROUND

The factual background in this matter was summarized by the

New Jersey Superior Court, Appellate Division upon Petitioner’s

direct appeal. See D.M., 2010 WL 2868503.

Between August 2001 and October 30, 2002, D.L.

was sexually abused by defendant, a live-in

boyfriend of her mother, C.W. During the

summer of 2001, when D.L. was eight years old

and about to start third grade, D.L. lived in

an apartment with her three-year-old sister,

C.W., and defendant. The sexual abuse usually

occurred in D.L.’s bedroom before she went to

school.

On the evening of October 30, 2002, when D.L.

was nine years old, she told her mother that

defendant touched her sexually that morning.

That night, C.W., D.L. and her sister left the

apartment and stayed in a hotel.

The next morning, C.W. took D.L. to a family

doctor. The doctor referred the matter to the

Division of Youth and Family Services (DYFS),

and a caseworker requested that D.L. be

examined by Dr. Martin A. Finkel, D.O. Dr.

Finkel is a pediatrician employed by the

University of Medicine and Dentistry of New

Jersey. He is a professor of pediatrics and

medical director of the Child Abuse Research

Education and Service (CARES) Institute. The

CARES Institute is a diagnostic and treatment

center for children who are suspected of

having experienced abuse. At trial, Dr. Finkel

was qualified as an expert in the field of

“pediatrics and in the diagnosis and treatment

of child sexual abuse.”

On October 31, 2002, Dr. Finkel examined D.L.

Before the examination, Dr. Finkel obtained a

separate medical history from C.W. and then

from D.L. to avoid one from influencing the

other.

Dr. Finkel explained that a diagnosis

involving child sexual abuse is made the same

way a doctor renders a diagnosis of any

medical disorder. The doctor takes a history

and then performs an examination. He said that

“when [physicians] evaluate children [when]

there's a concern for whether they've

experienced something of a sexually

inappropriate nature, the medical history is

really [a] key and paramount component....” In

taking a child's history, Dr. Finkel first

obtains information from an accompanying adult

then the child. A complete medical history

from birth to the present exam is obtained

from the adult. He testified:

When there has been a concern that

a child experiences something of a

sexually inappropriate nature,

[physicians] particularly focus on

the gastrointestinal and genital

urinary systems because those

are[,] in a sense [,] the target

organs[,] and so I ask a very

detailed series of questions about

[those systems. I]f I'm asking about

[the] genital urinary system, I'll

ask questions [such as: H]as the

child ever had a kidney or bladder

infection, a vaginal discharge,

vaginal odor, [or] vaginal

bleeding[? H]ave they ever had any

accidental injuries[? H]ave they

ever had discomfort with

urination[? H]ave they ever had

blood in their urine[? D]o they use

bubble baths, [and] if so[,] have

they ever complained of discomfort

with that[? H]ave they ever had

their private parts examined other

than routine health care?

He noted that a small percentage of children

require follow-up medical care for sexually

transmitted diseases. The follow-up care

includes re-culturing and blood tests.

During D.L.'s medical exam, C.W. was present.

On the physical examination, Dr. Finkel

reported:

Examination of genitalia was

completed in the lithotomy position

with use of gross macroscopic and

colposcopic visualization at [four,

six, and ten] magnification with

white and green light. The labia

majora and minora and clitoral hood

are well formed without findings of

trauma. With labial separation and

traction, it is possible to

visualize a slight estrogen affect

to the hymenal tissues. There was an

annular shaped configuration to the

orifice. There are no interruptions

in the integrity of the hymenal

membrane. There are no acute or

chronic signs of trauma.

Examination of the external anal

verge tissues revealed a symmetric

rugal pattern, normal response to

traction, normal symmetic tone[,]

and no acute or chronic signs of

trauma.

As part of the history, D.L. told Dr. Finkel

that the touching was “both like wiping and

inside” in the adult sense of the word. D.L.

described to Dr. Finkel that defendant “pulled

[her] over and put [her] on top of him.” She

said that this happened “in [her] room.” D.L.

told Dr. Finkel that this happened right

before school. D.L. stated that defendant

touched her private parts, which she referred

to as her “pee pee and butt,” with his finger.

D.L. said that she was wearing her pajamas at

the time that defendant touched her under her

clothing, and that “it was hurting [her]

inside.”

Using a plastic model of the female genitalia,

D.L. showed Dr. Finkel what defendant did.

D.L. told him that defendant rubbed her

vagina, and that it “hurt after when he

stopped and[, she] went to the bathroom.” She

told the doctor that she felt “stinging” when

she urinated. She told Dr. Finkel that

defendant touched her with his “private” which

was “long and nasty.” She said that defendant

would start “shaking it.” She told the doctor

that afterwards she had to clean her private

because it was “creamy and wet.” D.L. told the

doctor that defendant would watch “nasty

movies with two girls.”

Dr. Finkel examined her for sexually

transmitted diseases, but all cultures were

negative. He said that D.L.'s history was

“augmented by symptom[-]specific complaints

referable to specific events.” According to

the doctor, the touching “caused some local

irritation or trauma and [D.L.] then described

that after [defendant] stopped ... it hurt.”

Specifically, it “stung” when D.L. went to the

bathroom. Dr. Finkel explained that this

discomfort when urinating is known as dysuria.

Dr. Finkel concluded that D.L. “had a symptom

related to a specific event that reflect[ed]

trauma to those tissues in the process of

rubbing.” He explained that “superficial

[irritation] could easily heal within [twenty-

four] hours.” Dr. Finkel opined, within a

reasonable medical certainty, that D.L.

experienced trauma to the structures of the

vaginal vestibule. His diagnosis was not only

based upon the history provided by D.L. but

also upon his particular knowledge of dysuria,

and the sexually explicit details that one

would not expect a nine-year-old to know.

Dr. Finkel's objective findings were

consistent with penetration into the vaginal

vestibule. Upon clinical examination he

determined that “the degree of inside was not

past the hymenal membrane, [and] that it was

limited to [the] structure known as the

vaginal vestibule.” He explained that the

touching was between the labia with a finger

and a penis and the penetration was “[w]ith a

finger and ... a penis into the structures of

the vaginal vestibule.”

Through the history obtained from C.W., Dr.

Finkle learned that D .L. had no past medical

history of dysuria or discomfort with

urination, no urinary tract infections, and no

genital complaints. He found that the

complaint of dysuria was “something that was

specifically related to this specific event.”

The doctor opined that D.L. experienced

inappropriate genital touching and genital

contact. He said,

In the context of that genital

touching she experienced trauma to

the tissues around the urethra that

result[ed] in a symptom of dysuria.

She also had the potential for

contracting a sexually transmitted

disease from a history that suggests

there was contact with potentially

infected genital secretions.

On November 1, 2002, D.L. was interviewed by

Detective Frank Troso, and she gave a

videotaped statement. This was her first

contact with law enforcement. D.L's

description to the detective of what defendant

did was similar to what she told Dr. Finkel.

She told Troso that defendant would enter the

bedroom, pull down her pajamas and “do stuff

to [her].” Defendant would “take off his

clothes[,] and he would take his private part

and put it inside [D.L .'s] private part.” She

described his private part as his penis and

how defendant “put it in [her] private part.”

She stated, “every time it happened, that's

mostly what he did.” She said that defendant

touched her private part with his hand, “but

that didn't happen as much as the other thing

happened.”

“He would take his penis and shove it into my

bottom,” she also said. He would go inside her

bottom and rub his penis on her bottom.

Defendant put D.L.'s hand on his penis. She

said that when these things happened, his

penis was hard. She said that “white[,] foamy”

stuff would come out of his penis, and it would

go on her hand, on her bottom, and on her

private part. She said that these things

happened more than once.

D.L. told Troso that defendant put his penis

in her vagina on at least three occasions,

placed his penis inside her buttocks at least

twice, and digitally penetrated her. Troso

testified that D.L. “described very, very

graphic and detailed accounts of what

happened” between her and defendant.

On April 24, 2003, defendant was indicted. On

May 4, 2004, the trial judge granted

defendant's motion to dismiss the indictment

based on the State's failure to present

exculpatory evidence. The judge found that the

State's failure was not an intentional

subversion, and permitted the State to re-

present the case to the grand jury.

On May 6, 2004, the State re-presented the

matter to the grand jury. This time, the State

offered additional evidence that there were no

acute or chronic signs of trauma to D.L.'s

vagina or anus. The State elicited the

following testimony from Detective Troso:

Q: Now did you ever receive a report from Dr.

Finkel?

A: Yes, I did.

Q: And Dr. Finkel, as you described him[,] is

essentially ... a pediatric gynecologist?

A: Yes.

Q: You reviewed that report after you received

it?

A: Yes, I did.

Q: And you've reviewed it in preparation for

... today's presentation?

A: Yes.

Q: Dr. Finkel had two areas which are of import

... to your case. The first area was whether

or not there were physical ... findings

concerning trauma or physical abuse to either

the vagina or anus of [D.L.]?

A: Correct.

The assistant prosecutor asked Troso to read

Dr. Finkel's diagnostic assessment. He read

the following:

The historical information that ...

has been provided clearly details

this young girl experiencing a

variety of age inappropriate sexual

interactions that she explained in

detail to [Dr. Finkel,] which

involved genital fondling with

penetration into the structures of

the vaginal vestibule and genital[-

]to [-]genital contact with

placement between the labia and

rubbing into the structures of the

vagina[l] vestibule. As a result of

the genital fondling, she

complained of discomfort following

the contact in the form of dysuria.

This reflects trauma to the

structures around the urethra. The

only way that she could know this

particular symptom [temporally]

related to this event is by having

experienced such. This confirms

with medical certainty that she

experienced trauma to the

structures of the vaginal

vestibule. Those injuries were

superficial and have since healed

without residual[s] as would be

anticipated.

After this presentation, defendant was

indicted on May 6, 2004, and charged with

three counts of first-degree aggravated sexual

assault, N.J.S.A. 2C:14-2a(1) (Counts One,

Three and Five); seven counts of second-degree

endangering the welfare of a child, N.J.S.A.

2C:24-4a (Counts Two, Four, Six, Eight, Ten,

Twelve, and Fourteen); and four counts of

second-degree sexual assault, N.J.S.A. 2C:14-

2b (Counts Seven, Nine, Eleven and Thirteen).

On April 7, 2005, the judge heard oral

argument on defendant's second motion to

dismiss the new indictment and defendant's

motion to bar the testimony of Dr. Finkel.

Defendant argued that the State failed to

present sections of Dr. Finkel's report

indicating that there was no finding of trauma

surrounding the victim's labia and clitoral

hood, that the hymen was intact, and that the

victim's anal tissue was normal.

At the conclusion of oral argument, the trial

judge denied defendant's second motion to

dismiss the indictment having found that the

State presented the pertinent, relevant parts

of the victim's history, physical examination,

and diagnostic assessment. The judge deferred

a ruling on defendant's motion to bar Dr.

Finkel's testimony until a Rule 104(a) hearing

was conducted.

On June 7, 2005, we denied defendant's motion

for leave to appeal the April 7, 2005 order.

On July 26, 2005, the trial judge conducted

the Rule 104(a) hearing to determine the

admissibility of Dr. Finkel's testimony. The

judge concluded that Dr. Finkel's testimony

was admissible. He determined that Dr. Finkel

could testify as to what D.L. told him under

N.J.R.E. 803(c)(4), which permits the

introduction of hearsay statements offered for

the purposes of medical treatment or

diagnosis. The judge concluded that “the

medical treatment purpose of the examination

conducted by Dr. Finkle was evident.”

Jury selection began, and on May 23, 2006,

defendant requested to represent himself at

trial. The judge granted that request and his

further request for additional time,

discharged the jury, and rescheduled the

trial.

On January 9, 2007, the judge revisited

defendant's desire to proceed pro se and found

that defendant's waiver of counsel was knowing

and voluntary.

Defendant was tried from January 10, 2007,

through January 18, 2007. D.L. testified at

trial. By using her fingers, she described to

the jury what defendant did to her. She said:

If this is my private part[,] and my

private part has two like flaps on

it, he would take his middle

finger[,] and he'[d] go like this,

like that[,] and he'[d] stroke it up

and down like this.

She showed the jury how defendant moved his

finger from left to right, and how his finger

went inside the two “flaps.” She said that he

did the same thing with his penis that he did

with his hand. Defendant rubbed his penis on

the “flaps.”

(Id. at *1-5.)

II. PROCEDURAL HISTORY

Following a jury trial, on January 18, 2007, Petitioner was

convicted of three counts of aggravated sexual assault in violation

of N.J. Stat. Ann. § 2C:14-2a(1), six counts of second-degree

endangering the welfare of a child in violation N.J. Stat. Ann. §

2C:24-4a, and three counts of second-degree sexual assault in

violation of N.J. Stat. Ann. § 2C:14-2b in the Superior Court of

New Jersey, Law Division, Burlington County. State v. D.M.,

Indictment No. 04-05-0483, 2010 WL 2868503 *4-5 (N.J. Super. Ct.

July 21, 2010). Petitioner was sentenced to an aggregate sixty-

year sentence subject to the No Early Release Act (“NERA”). Id. at

1.

Petitioner appealed. (Answer, Ex. Ra5, ECF No. 17-8.) The

Appellate Division affirmed the conviction and sentence on July

21, 2010. See D.M., 2010 WL 2868503. Petitioner then filed a

petition for certification in the New Jersey Supreme Court.

(Answer, Ex. Ra9, ECF No. 17-12.) The New Jersey Supreme Court

denied the petition on October 21, 2010. State v. D.M., 6 A.3d 443

(N.J. 2010).

Petitioner filed a pro se post-conviction relief (“PCR”)

petition in January 2011. (Answer, Ex. Ra12, ECF No. 17-15.)

Petitioner’s attorney filed a letter brief in support of the

petition on his behalf in March 2012. (Id., Ex. Ra13, ECF No. 17-

16.) Oral argument was held before the Honorable Michael J. Haas

on June 21, 2012. (Id., Ex. Ra15, ECF No. 17-18.) On June 22, 2012,

the PCR court denied Petitioner’s request for relief without a

hearing. (Id.)

Petitioner appealed the PCR court’s decision. (Answer, Ex.

Ra18, ECF No. 17-21.) On May 5, 2015, the Appellate Division

affirmed the PCR Court. State v. D.L.M., A-0831-12T4, 2015 WL

1980045 (N.J. Super. Ct. App. Div. May 5, 2015). Petitioner filed

a petition for certification with the New Jersey Supreme Court,

which was denied on September 12, 2016. State v. D.L.M., 151 A.3d

81 (N.J. 2016).

Petitioner filed a second PCR petition on November 16, 2016,

seeking DNA testing pursuant to N.J. Stat. Ann. § 2A:84A-32a, and

arguing that “stand-by counsel should have subpoenaed Dr. Sheehan

to see i[f] she took vaginal cultures or swabs from the victim.”

(PCR Court Order Denying Petitioner’s Second Petition for Post-

Conviction Relief and Motion for DNA Testing, Ex. Ra24, ECF No.

11-27 at 1.) The PCR Court denied his second PCR petition on March

23, 2017, finding that McGee raised essentially the same arguments

as in his first PCR motion. (Id. at 2.) McGee then filed the

present habeas petition on April 13, 2017. (Pet., ECF No. 1.)

III. DISCUSSION

A. Standard of Review

28 U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

with respect to any claim that was adjudicated

on the merits in State court proceedings

unless the 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 the

State court proceeding.

“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 v. Erickson, 712

F.3d 837, 846 (3d Cir. 2013) (citing Williams v. Taylor, 529 U.S.

362, 405-06 (2000)). The phrase “clearly established Federal law”

“refers to the holdings, as opposed to the dicta” of the U.S.

Supreme Court’s decisions. Williams, 529 U.S. at 412. 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 v.

Lett, 130 S.Ct. 1855, 1862 (2010)).

B. Analysis

1. Ground One

a. The Parties’ Arguments

In Petitioner’s first ground for relief, he claims that he

was prohibited from exercising his right of self-representation in

violation of the Sixth Amendment. (Pet., ECF No. 1 at 5.)

Petitioner, who was assisted by standby counsel Timothy Reilly,

Esq., alleges that he was prohibited from presenting a defense

expert witness, Dr. Kathleen Brown. (Id. at 2.)

Respondents contend that while Petitioner’s waiver of his

right to counsel served as a bar to future claims of ineffective

assistance, he has nonetheless failed to demonstrate that standby

counsel was ineffective. (Answer, ECF No. 17 at 41-49.) Respondents

further contend that any claims of purported trial court errors

while attempting to locate and learn of what Dr. Brown’s testimony

would entail, are meritless. (Id. at 48-49.)

b. State Court’s opinion

The Court notes that while Petitioner raised this claim within

the context of his right of self-representation in his counseled

PCR brief, he did not appeal the PCR court’s denial of this

particular claim. Petitioner unsuccessfully raised this claim as

an ineffective assistance of appellate counsel claim on appeal of

the PCR decision. D.L.M., 2015 WL 1980045 at *3. While this claim

is unexhausted, it can nonetheless be denied on the merits. See

Granberry v. Greer, 481 U.S. 129, 131, 135 (1987) (noting that the

exhaustion requirement is not a jurisdictional requirement to the

exercise of habeas corpus jurisdiction over the merits of a state

prisoner’s claims and a district court may deny a claim on its

merits despite non-exhaustion “if it is perfectly clear that the

applicant does not raise even a colorable federal claim.”).

To the extent that the PCR Court ruled on this particular

claim, it held that Petitioner “was free to argue any abuse of

discretion on Judge Almeida’s part to the Appellate Division on

direct appeal.” (Answer, Ex. Ra15, ECF No. 17-18 at 30.)

c. Analysis

The right to self-representation is guaranteed by the Sixth

Amendment to the United States Constitution as well as the New

Jersey Constitution. U.S. Const. amend. VI; N.J. Const. art. 1, ¶

10. The clearly established federal law for claims alleging denial

of the right to self-representation was articulated by the United

States Supreme Court in Faretta v. California, 422 U.S. 806 (1975).

This right is afforded to a defendant who voluntarily, knowingly,

and intelligently chooses to do so, and the state may not

constitutionally force a lawyer upon him. Id. at 834-35. Faretta

and its progeny of cases provide that a defendant must

unequivocally assert his right to self-representation in a timely

manner and the trial court must then conduct a colloquy with the

defendant to determine that the waiver of counsel is knowing and

voluntary. Buhl v. Cooksey, 233 F.3d 783, 791 (3d Cir. 2000).

At the start of the defense’s case-in-chief, the court twice

permitted Petitioner and his standby counsel to use court

facilities to call Kathleen Brown, PhD., a nurse who reviewed the

medical examiner’s report. (Answer, Rta Nos. 12-13, ECF Nos. 17-

40 at 4.) Dr. Brown, who previously advised Mr. Reilly that she

would not serve as a witness and further that her testimony would

not be favorable to the defense’s case, did not respond to both

attempts to reach her that day. (Id.) The Court subsequently held

a lengthy discussion with the parties about the issue and

Petitioner insisted that he needed to speak with Dr. Brown. (Id.

at 5.) The court arranged for Petitioner to be able to receive

calls at the jail where he was detained in the event that Dr. Brown

returned his calls that evening. (Id. at 6.) The court dismissed

the jury with the hopes that the case could resume the following

day. (Id. at 9.)

The next morning, the court learned that the defense had an

approximately fifteen to eighteen-minute telephone conversation

with Dr. Brown. (Id., ECF No. 17-41 at 3.) Mr. Reilly proffered to

the court that Dr. Brown’s testimony would not be helpful to the

defense and that Dr. Brown indicated she would not be able to

testify that day. (Id. at 4.) Petitioner urged the court to speak

with Dr. Brown about the issue of her arranging her travel to court

and also explained at length, what he expected Dr. Brown’s

testimony to entail. (Id. at 4-8.) The trial court then gave

Petitioner an additional opportunity to attempt to reach Dr. Brown

by telephone. (Id. at 9.) Petitioner re-appeared before the court

and indicated that Dr. Brown would not be able to testify that

day. (Id.) However, he repeatedly evaded the judge’s question when

asked whether Dr. Brown’s testimony would be helpful to his case.

(Id.)

The trial court then swiftly ordered the parties into chambers

for an on-the-record telephone call to Dr. Brown. (Id. at 10.) The

trial judge and Dr. Brown had a brief discussion about her

favorable opinion of the medical examiner’s report as well as the

fact that she previously relayed this information to Petitioner

and his standby counsel. (Id. at 10-11.) Near the end of the

judge’s conversation with Dr. Brown, Petitioner attempted to ask

her a follow-up question which the judge quickly prohibited. (Id.)

Petitioner nonetheless argues that he “was forced to end

presenting his defense at this point.” (Pet., ECF No. 1 at 6.)

Here, while Petitioner appears to disagree with Dr. Brown’s

professional opinion and her subsequent decision to not serve as

a defense witness, he has not demonstrated how the trial court

impinged on his right to represent himself. The record is clear

that Petitioner represented himself and had the assistance of

standby counsel throughout the course of the trial. Further, the

record reflects that the trial court gave Petitioner and standby

counsel numerous opportunities to contact Dr. Brown after the trial

had commenced; many of those times providing them with exclusive

use of court facilities. The principles set forth in Faretta,

namely that his waiver of counsel was knowing, intelligent and

voluntary, do not bear on Petitioner’s instant claim. Therefore,

Petitioner has not established a valid Faretta violation. Ground

One of the petition is denied.

2. Ground Two

a. The Parties’ Arguments

In Ground Two of his petition, Petitioner contends his “pre-

trial” counsel provided ineffective assistance in violation of the

Sixth Amendment by failing to thoroughly investigate the case

“and/or” communicate the status of the case to Petitioner. (Pet.,

ECF No. 1 at 7.) More specifically, Petitioner argues that counsel

failed to request deoxyribonucleic acid (“DNA”) testing on swabs

taken from the victim and failed to request the report that

concluded Petitioner’s DNA was on cigarette butts retrieved from

law enforcement during Petitioner’s post-arrest interview. (Id.)

Petitioner submits that DNA testing of the cultures taken from the

victim would have resulted in his acquittal. (Id.) He further

contends that counsel’s pre-trial dereliction prompted him to

represent himself for the balance of his case including the

entirety of the trial. (Id.)

Respondents contend the Appellate Division reasonably applied

Strickland by finding counsel was not ineffective for failing to

pursue this information. (Answer, ECF No. 17 at 51-55.) Respondents

submit that the record is silent about any physical evidence being

taken from Petitioner either at his residence or anywhere else.

(Id. at 52.) Respondents further submit that the record is also

void of any evidence that DNA was taken from the victim. (Id. at

52-53.) Moreover, Respondents point out that the victim’s

allegations involved conduct that spanned over a significant

period of time, specifically one year and two-months. (Id. at 53.)

b. The State Court’s Decision

On habeas review, the district court must review the last

reasoned state court decision on each claim. Ylst v. Nunnemaker,

501 U.S. 797, 803 (1991).

The highest state court decision on Ground Two is the

Appellate Division’s review of the PCR Court’s decision. The

Appellate Division addressed this claim in part as follows:

Here, there is no evidence showing

that any DNA samples were taken from

defendant’s cigarette butts, or any

report was generated concerning

defendant’s DNA. Moreover, the

record indicates that no DNA

evidence was ever recovered from the

victim. Indeed, Dr. Finkel

testified at trial that he took

vaginal cultures from the victim but

he never said he swabbed the victim

for DNA evidence. Thus, counsel was

not ineffective for failing to

obtain discovery regarding evidence

that did not exist, and appellate

counsel was not deficient in failing

to raise this issue on appeal.

D.L.M., 2015 WL 1980045 at *4.

c. Analysis

The Supreme Court set forth the standard by which courts must

evaluate claims of ineffective assistance of counsel in Strickland

v. Washington, 466 U.S. 668 (1984). First, the defendant must show

that counsel’s performance was deficient. This requirement

involves demonstrating that counsel made errors so serious that he

was not functioning as the “counsel” guaranteed by the Sixth

Amendment. Id. at 687. Second, the defendant must show that he was

prejudiced by the deficient performance. Id. This requires showing

that counsel’s errors deprived the defendant of a fair trial. Id.

Counsel’s performance is deficient if his representation falls

“below an objective standard of reasonableness” or outside of the

“wide range of professionally competent assistance.” Id. at 690.

In examining the question of deficiency, “[j]udicial scrutiny of

counsel’s performance must be highly deferential.” Id. at 689.

In addition, judges must consider the facts of the case at the

time of counsel’s conduct, and must make every effort to escape

what the Strickland court referred to as the “distorting effects

of hindsight.” Id.

The petitioner bears the burden of showing that counsel’s

challenged action was not sound strategy. Kimmelman v. Morrison,

477 U.S. 365, 381 (1986). Furthermore, a defendant must show a

reasonable probability that, but for counsel’s errors, the result

of the proceeding would have been different. Id. at 694.

When assessing an ineffective assistance of counsel claim in the

federal habeas context, “[t]he pivotal question is whether the

state court’s application of the Strickland standard was

unreasonable,” which “is different from asking whether defense

counsel’s performance fell below Strickland’s standard.” Grant v.

Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (quoting Harrington v.

Richter, 562 U.S. 86, 101 (2011)).

A state court must be granted a deference and latitude that

are not in operation when the case involves [direct] review under

the Strickland standard itself.” Id. Federal habeas review of

ineffective assistance of counsel claims is thus “doubly

deferential.” Id. (quoting Cullen v. Pinholster, 131 S.Ct. at

1403). Federal habeas courts must “take a highly deferential look

at counsel’s performance” under Strickland, “through the

deferential lens of § 2254(d).” Id. (internal quotation marks and

citations omitted). “With respect to the sequence of the two

prongs, the Strickland Court held that ‘a court need not determine

whether counsel’s performance was deficient before examining the

prejudice suffered by the defendant as a result of the alleged

deficiencies . . . If it is easier to dispose of an ineffectiveness

claim on the ground of lack of sufficient prejudice, which we

expect will often be so, that course should be followed.’” Rainey

v. Varner, 603 F.3d 189, 201 (3d. Cir. 2010) (quoting Strickland,

466 U.S. at 697)).

At Petitioner’s trial, Dr. Finkel testified about the

examination he conducted on the victim the day after she reported

the offense.1 (Answer, Ex. Rta10, ECF No. 17-38.) He testified that

1 The victim testified that she reported the abuse by Petitioner

to her mother at an earlier date, but the mother did not take any

after conducting an interview with the victim, he “evaluated her

for sexually transmitted diseases using cultures.” (Id. at 24.)

Further, the victim testified that although it was her October 30,

2002 report of the abuse that prompted her mother to notify

authorities, Petitioner’s conduct spanned over a prolonged period

of time. (Answer, Ex. Rta9, ECF No. 17-37 at 17-21.)

While the Court is aware that the victim alleged that

Petitioner’s sexual abuse occurred up until the day before she was

seen by Dr. Finkel, the Respondents argue that the charging

documents alleged that the conduct occurred over a fourteen-month

timespan. (Answer, ECF No. 17-53.) Further, the victim’s own trial

testimony and statements to Dr. Finkel reflect that Petitioner did

not exclusively penetrate her with his penis, but also digitally

penetrated her. (Answer, Ex. Rta9, ECF No. 17-37 at 18-19, Ex.

Rta10, ECF No. 17-37 at 27.) In context, it makes sense that

counsel did not pursue the issue of requesting any DNA analysis of

vaginal cultures taken from the victim because the state’s case

did not rely on the exclusive theory that Petitioner penetrated

the victim with his penis on October 31, 2002.

The record does not reflect that any of the biological matter

taken from the victim was ever submitted for DNA analysis because

that did not appear to be the doctor’s reason for taking the

subsequent action involving reporting it to authorities. (Answer,

Ex. Rta9, ECF No. 17-31 at 17.)

cultures from the victim. Nor for that matter, did the state’s

medical witness testify that the cultures taken from the victim

could be subjected to DNA testing. See Marshall v. Hendricks, 307

F.3d 36, 85 (3d Cir. 2009) (“The deference accorded to counsel's

reasonable strategic decisions can be seen in numerous United

States Supreme Court rulings following on the heels of

Strickland.”) Moreover, the record is silent about law enforcement

procuring any cigarette butts or any other items purportedly having

Petitioner’s DNA.

Therefore, Petitioner has not established that the state

court’s denial of this claim was not an unreasonable application

of clearly established federal law. Ground Two of the petition is

denied.

3. Ground Three

a. The Parties’ Arguments

In Ground Three, Petitioner contends he was denied his right

to effective assistance of standby counsel because of his failure

to subpoena Dr. Kathleen Brown and Dr. Sheenan to testify for the

defense. (Pet., ECF No. 1 at 8-9.) Petitioner alleges that Dr.

Sheenan was the first physician to examine the victim after she

reported the assault. (Id.) He also provides, “[a]s part of the

examination, Dr. Sheenan would have conducted a vaginal

examination and taken vaginal swabs. These swabs would have

contained bodily fluids, which would have contained important DNA

evidence.” (Id.) Petitioner argues that this DNA evidence would

have proven to be exculpatory evidence. (Id.) Further, in his

traverse Petitioner provides that his basis for knowing about Dr.

Sheenan’s examination of the victim is from handwritten notes of

an examination of the victim which Petitioner provides are Dr.

Sheenan’s notes.2 (Traverse, ECF No. 26 at 40.)

Respondents assert that the Appellate Division properly

resolved Petitioner’s claim as Petitioner has not demonstrated

that standby counsel was ineffective for not compelling Dr. Brown’s

testimony, as she was not able to provide testimony that was

helpful to his case. (Answer, ECF No. 17 at 50-51.) Further,

Respondents submit that Petitioner has failed to demonstrate how

he was prejudiced by counsel’s failure to subpoena Dr. Sheenan.

(Id. at 50.)

b. The State Court Decision

On appeal of the PCR denial, the Appellate Division addressed

this claim as follows:

2 Petitioner also provides that despite Respondents’ argument that

they are not aware of Dr. Sheenan’s role in the matter, she was

listed as a state’s witness on the trial witness list. He provides

that although the witness list was not provided to the state court,

he can provide it to this Court upon request. (Traverse, ECF No.

26 at 40.) In a subsequent filing, Petitioner provides a purported

“Prosecutor’s Office Witness List” that lists a “Dr. C. Sheenan.”

(ECF No. 27 at 5.) See Cullen v. Pinholster, 563 U.S. 170, 181

(2011)(held that “review under § 2254(d)(1) is limited to the

record that was before the state court that adjudicated the claim

on the merits.”)

Defendant also argues that standby counsel

erred by failing to subpoena certain witnesses

for trial, specifically Dr. Brown and a “Dr.

Sheenan.” The PCR court correctly found that

this claim was without merit. The court wrote:

Dr. Brown was unable to testify in

a way that was beneficial to

defendant, and both Dr. Brown and

standby counsel agreed that her

testimony could be detrimental to

defendant’s case. Because defendant

disagreed with standby counsel

about this issue, [the trial court]

took the extra step of finding out

exactly what Dr. Brown’s potential

testimony would be. After [the

court] was satisfied that defendant

had misstated Dr. Brown’s position

regarding testifying at his trial,

[the court] determined that [it] was

not going to order Dr. Brown to

testify. Given these circumstances,

standby counsel’s failure to

subpoena Dr. Brown to give testimony

damaging to defendant was not below

an objectively reasonable standard

of representation, nor has

defendant argued that he was

prejudiced in any way by Dr. Brown’s

absence at trial. As to “Dr.

Sheenan,” it is unclear from the

record who “Dr. Sheenan” is, and

defendant has failed to articulate

any reason standby counsel should

have subpoenaed [this witness] and

he has failed to demonstrate that he

was prejudiced by standby counsel’s

failure to do so.

The record fully supports the PCR court’s

determination regarding this claim.

D.L.M., 2015 WL 1980045 at *4.

c. Analysis

The Court need not reiterate the ineffective assistance of

counsel standard applied in such claims. See supra, Section 3, B

2 c. In addition to the standard set by Strickland and its progeny,

the United States Court of Appeals for the Third Circuit has

provided that counsel is not ineffective just because he does not

act in accordance with the defendant’s wishes. See Diggs v. Owens,

833 F.2d 439, 445-46 (3d. Cir. 1987). Moreover, the petitioner

must demonstrate how a witness’s testimony would have been

favorable to his defense. See United States v. Gray, 878 F.2d 702,

712 (3d Cir. 1989).

First, with respect to Dr. Kathleen Brown, this Court

considered the factual context within which Dr. Brown was not

called to serve as a defense witness, in its disposition of Ground

One of the instant petition. See supra, Section 3, B 1 c. Notably,

in addition to standby counsel’s multiple proffers to the trial

court about Dr. Brown’s potentially harmful testimony if she were

called to testify, the record reflects that the trial court made

an on-the-record inquiry of Dr. Brown via telephone. (Answer, Ex.

Rta No. 13, ECF No. 17-41 at 10-11.) Dr. Brown explained to the

trial court that her testimony would potentially work against

Petitioner’s defense because she concurred with Dr. Finkel’s

report.

Next, with respect to Dr. Cindy Sheenan, the Court has

reviewed an exhibit which Petitioner submits are Dr. Sheenan’s

handwritten notes.3 (Answer, Ex. Ra17, ECF. No 17-20 at 40.) Dr.

Sheenan’s name does not appear to be anywhere on the document.

While the document does indicate that the victim was interviewed

and examined by a professional on October 31, 2002, after reporting

recent sexual abuse, the document’s author is unknown. (Id.)

The Appellate Division reasonably concluded that trial

standby counsel was not ineffective. Other than Petitioner’s

uncorroborated assertion of Dr. Sheenan’s existence, the record

does not reflect what role she played in the case. Even if this

Court were to accept that she did in fact meet with and examine

the victim shortly after the offense was reported, Petitioner has

not demonstrated how her testimony would have been helpful. He

assumes, without any factual basis, that she “would have conducted

a vaginal examination and taken vaginal swabs. These swabs would

have contained bodily fluids, which would have contained important

DNA evidence.” (ECF No. 1 at 9.) Nonetheless, he has not

established how the results of the examination would have

undermined the state’s case against him; particularly in light of

3 These notes were attached as an exhibit to Petitioner’s pro se

appeal of the PCR denial. (Answer, Ex. Ra17, ECF. No 17-20 at 40.)

The record does not reflect that this exhibit was provided to the

PCR Court. See Cullen, 563 U.S. 170, 181 (2011).

the fact that the victim alleged that the abuse occurred over a

prolonged period of time. See Strickland, 466 U.S. at 694.

Therefore, the Appellate Division’s determination was not

contrary to or an unreasonable application of clearly established

Supreme Court precedent. Ground Three of the petition is denied.

4. Ground Four

a. The Parties’ Arguments

Petitioner’s fourth ground for relief is that his appellate

counsel was ineffective for failing to raise the following issues

on direct appeal: first, that the trial court abused its discretion

by impinging on his right to self-representation; second that pre-

trial counsel was ineffective for failing to subpoena an expert

witness. (Pet., ECF No. 1 at 10.) Petitioner does not provide any

supporting facts but it appears that he is alleging ineffective

assistance of appellate counsel for failing to raise Grounds One

and Three of the instant habeas petition.

Respondents assert the Appellate Division reasonably denied

this claim because neither counsel’s supposed failure to call a

witness or the trial court’s decision to inquire directly about

the favorability of Dr. Brown’s testimony, violated Petitioner’s

constitutional rights.(Answer, ECF No. 17 at 62.)

b. The State Court Decision

On PCR appeal, the Appellate Division addressed this claim as

follows:

Defendant further argues that his appellate

counsel rendered ineffective assistance in his

direct appeal. Defendant asserts that

appellate counsel should have raised the

following issues: (1) the trial court

improperly held a “telephonic voir dire” of

Dr. Brown; (2) the trial court erred by

refusing to allow defendant to question Dr.

Brown during the “telephonic voir dire”, (3)

the trial court erroneously refused to grant

defendant a continuance to allow him time to

secure Dr. Brown’s appearance; and (4) trial

counsel rendered ineffective assistance.

Defendant maintains that “his chances of

succeeding on appeal would have increased” if

the aforementioned issues had been raised.

The PCR court rejected these arguments. The

court noted that at trial, defendant had not

been denied the opportunity to present any

testimony that would have been favorable to

him. The court pointed out that defendant had

not demonstrated that he was prejudiced by the

trial court’s “careful consideration of

[defendant’s] attempt to call and expert

witness [who was] sympathetic to his position

in this case.”

Moreover, defendant was not prejudiced by

appellate counsel’s failure to raise claims of

ineffective assistance of counsel on appeal.

Those claims were raised and resolved in the

PCR proceeding. We therefore conclude that the

record fully supports the PCR court’s

determination that defendant was not denied

the effective assistance of appellate counsel.

D.L.M., 2015 WL 1980045 at *4-5.

c. Analysis

Ineffective assistance of appellate counsel is analyzed under

the Strickland standard as well. See Albrecht v. Horn, 485 F.3d

103, 137 (3d Cir. 2007) (quoting United States v. Mannino, 212

F.3d 835, 840 n.4 (3d Cir. 2000)).

The Appellate Division’s Opinion is consistent with Supreme

Court precedent.d As this Court previously opined when denying

Ground One of the instant petition, the record reflects that the

trial court made multiple efforts to ensure that Petitioner was

able to communicate with his desired witness, Dr. Brown, before

eventually determining that her presence would not be beneficial

to Petitioner’s defense. See supra, Section 3, B 1 c. Further,

this Court already observed that pre-trial counsel was not

ineffective for failing to subpoena Dr. Brown and Dr. Sheenan.

See supra, Section 3, B 3 c. Therefore, appellate counsel cannot

be deemed ineffective for failing to raise an issue that would not

have resulted in the reversal of his client’s conviction. See Buehl

v. Vaughn, 166 F.3d 163, 174 (3d Cir. 1999).

Therefore, Ground Four of the petition is denied.

5. Ground Five

a. The Parties’ Arguments

In Ground Five, Petitioner contends he was deprived of his

constitutional due process right to a fair trial when the trial

court permitted the victim to leave the witness stand to “consult

with her father and a member of the prosecutor’s office.” (Pet.,

ECF No. 1 at 11.)

Respondents assert that Petitioner has not made a valid due

process claim as he has not established that the victim conferred

with her father about the case or her testimony during the recess.

(Answer, ECF No. 17 at 61.)

b. The State Court Decision

Petitioner raised the instant claim for the first time at

oral argument in support of his PCR. (Answer, Ex. Ra 15, ECF No.

17-18 at 32.) The PCR court dismissed the claim as follows-

Likewise, at the time of oral argument on June

21, 2012, defendant, through counsel, argued

that Judge Almeida should not have permitted

the child victim to step off the stand while

a question defendant raised was addressed.

Defendant did not provide a transcript of this

occurrence. Nor has he specified why it was

improper for the witness to leave the stand

during what appears to have been a break.

Defendant alleged, without any proof, that the

witness was “coached” by the prosecutor’s

office during the break. His argument fails

because it is not substantiated and because he

has not demonstrated that Judge Almeida abused

his discretion by permitting the witness to

take a break. It also fails, however, because

it is the type of argument that should have

been raised on appeal.

(Id. at 32-33.)

On appeal of the PCR denial, the Appellate Division summarily

dismissed this claim as meritless pursuant to R. 2:11-3(e)(2).4

D.L.M., 2015 WL 1980045 at *5.

4 This rule authorizes an affirmance when in an appeal of a

criminal, quasi-criminal or juvenile matter, the Appellate

Division determines that some or all of the arguments made are

c. Analysis

While being cross-examined, the victim appeared to be

confused by a question and asked for clarification. (Answer, Ex.

Rta 9, ECF No. 17-37 at 23.) Before she could answer the question,

she abruptly asked the court to take a break so she could speak to

her father. (Id.) The trial court implored her to respond to the

question first, but she insisted that she did not understand the

question. The court took a recess and the following colloquy

occurred at sidebar:

THE COURT: What do you, Mr. Morgan, think your

obligation now is under the sequestration

order in view of the witness saying that she

wanted to speak to her father?

MR. MORGAN: I don’t think it’s a violation of

the sequestration order. She didn’t say she

wanted to talk about her testimony. Her dad

just walked in the courtroom.

THE COURT: I know that I saw a gentleman came

in and that unnerved her as soon as that person

came in. There’s been a lot of activity. Did

you hear what I just said? There’s been a

tremendous amount of activity, people walking

in while this witness is testifying from the

State’s – from the State. And the man who just

walked in, you could tell, I could see

palpably it changed her demeanor on the stand.

My question to you is and it’s in the backdrop

of that I suppose but that’s of no material

moment, the sequestration order would prohibit

a witness from talking to anyone about her

testimony while she’s testifying.

MR. MORGAN: I agree.

without sufficient merit to warrant discussion in a written

opinion.

THE COURT: Okay. Do you think you have an

obligation to tell the gentleman who just

walked in who apparently is her father that

he’s not allowed to talk to her about the

testimony or about the case?

MR. MORGAN: I will and I think I can clarify

some of this Judge, Before D.L.5 took the

stand, when you asked me to bring her into the

courtroom, she said I want my dad, my dad’s

not here. He’s supposed to be here. Obviously,

it was on her mind before she took the stand.

He came into the courtroom in the middle of

the testimony.

THE COURT: He came into the courtroom

literally three minutes ago, 10 after two.

MR. MORGAN: That’s when she—

THE COURT: Couldn’t he have waited?

MR. MORGAN: No, sir. I didn’t even ask the

Court for an adjournment at that point. I’m

suggesting it was his arrival that probably

unnerved her so it could be as benign as I

want to go and hug my dad but I will clearly

communicate to her and her father.

THE COURT: Do you understand what’s going on?

MR. MCGEE: I understand what’s going on but,

see, the only thing I’m more concerned about

Your Honor, is I asked her a question, did

somebody prepare you for this.

THE COURT: She said she doesn’t understand the

question.

MR. MCGEE: I understand that’s why you called

a recess.

THE COURT: I wasn’t going to call a recess if

she said I understand the question but I want

5 The Court will refer to the minor victim by her initials.

to talk to my dad, I’m not going to call a

recess. I don’t care who the witness is.

MR. MCGEE: I’m not trying to be smart.

THE COURT: I’m not suggesting anything in that

regard. I just don’t want any violation of the

sequestration order.

MR. MCGEE: Can I finish?

THE COURT: Go ahead.

MR. MCGEE: The problem is now she goes over,

somebody prepared her for this, whoever

prepared her, it didn’t come out.

THE COURT: I can’t tell her to understand the

question if she doesn’t understand.

MR. MCGEE: That’s why I rephrased it.

THE COURT: You can rephrase it.

MR. MCGEE: Are you going to let her talk to

her father?

THE COURT: Yes. That’s not a violation of

sequestration order. What’s a violation of the

order if she talks to her father and says to

her father, Dad, did I talk to anybody, what

did I say, how should I answer the question,

that’s a violation of the order.

MR. MCGEE: You’re going to let them go outside

the courtroom?

THE COURT: Yes. They can go wherever they

want. Yes. That’s not a violation.

MR. MCGEE: I have no control.

MR. REILLY: The fact the father is in the

courtroom you would want somebody to monitor

the conversation because they might talk about

her testimony.

THE COURT: I think that Mr. Morgan needs to

instruct the father and the witness not to

talk about it, I know the witness is with-

isn’t the witness with a member of your unit?

MR. MORGAN: Yeah, a member of the Child

Advocacy Center.

THE COURT: Can a member of the Child Advocacy

Center be with her at the time she has the

discussion with the father?

MR. MORGAN: We’ll have someone there, Judge.

It seems to be there’s a nefarious motive that

seems to be being indicated.

THE COURT: No. There’s not a nefarious motive.

Record will bear this out I suspect. The

question was asked on three occasion, there

was delay, the delay’s not a problem at all,

when the father entered probably three

questions before this question was asked, the

witness’s demeanor changed and she had

difficulty answering the question and in her

answer to the second to last time Mr. McGee

asked the question, she said I want a break.

You said ask the Judge. I want a break to talk

to my father. There’s nothing nefarious in

that. It’s simply the logical conclusion one

might reach is I want to talk to my father to

deal with this question that I don’t know how

to answer.

MR. MORGAN: One might reach it.

THE COURT: That’s not nefarious. It’s a

possible scenario by reminding what I think

you need to do under sequestration.

MR. MORGAN: I’m more than happy to do it.

THE COURT: Good. Have the child advocacy

person there. Okay. See you after the recess.

(Id. at 24-26.)

The court allowed the witness to leave the witness stand

during a brief recess.6 (Id. at 26.) Shortly thereafter the victim

returned to the witness stand and resumed her testimony without

incident. (Id. at 26-55.)

Generally, a trial court may exclude testimony of witnesses

who violate a sequestration order if the defendant is prejudiced

by the violation. See United States v. McClain, 469 F.2d 68, 69

(3d Cir. 1972) (citations omitted). Here, the record does not

support that the victim discussed her testimony or any facts about

the case with her father during the recess. The court’s decision

to order a representative from the Child Advocacy Center to

accompany the victim as she spoke to her father most likely also

served to deter any possible violation of the sequestration order.

Petitioner has not demonstrated how the state court’s ruling was

an unreasonable application of clearly established federal law.

Therefore, Ground Five of the petition is denied.

IV. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), 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.

A certificate of appealability may issue “only if the applicant

has made a substantial showing of the denial of a constitutional

6 The record is silent about whether the witness actually spoke

to her father during the recess.

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).

For the reasons discussed above, Petitioner has not made a

substantial showing of the denial of a constitutional right.

Therefore, the Court will deny a certificate of appealability.

V. CONCLUSION

In the accompanying Order filed herewith, the Petition for

habeas relief under 28 U.S.C. § 2254 is denied.

Dated: October 31, 2019

s/Renée Marie Bumb

RENÉE MARIE BUMB

United States District Judge