NEVIUS v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

______________________________

:

THOMAS NEVIUS, :

:

Petitioner, : Civ. No. 17-4587 (NLH)

:

v. : OPINION

:

THE ATTORNEY GENERAL FOR THE :

STATE OF NEW JERSEY, and :

STEVEN JOHNSON, :

:

Respondents. :

______________________________:

APPEARANCES:

Thomas Nevius, No. 201449E

New Jersey State Prison

PO Box 861

Trenton, NJ 08625

Petitioner pro se

Stephen C. Sayer

Cumberland County Prosecutor’s Office

115 Vine Street

Bridgeton, NJ 08302

Counsel for Respondents

HILLMAN, District Judge

Petitioner Thomas Nevius (“Petitioner”), a prisoner presently

incarcerated at New Jersey State Prison in Trenton, New Jersey,

has filed a Petition for a Writ of Habeas Corpus pursuant to 28

U.S.C. § 2254 (the “Petition”). See ECF No. 1. Respondents the

Attorney General for the State of New Jersey and Steven Johnson

(“Respondents”) filed an Answer to the Petition (the “Answer”).

See ECF No. 8. For the following reasons, the Court will deny the

Petition and a certificate of appealability shall not issue.

I. BACKGROUND

In its opinion on direct appeal, the Superior Court of New

Jersey, Appellate Division provided the following summary of the

factual background of Petitioner’s case:

According to the State's proofs, Ruth Walker,

the homicide victim, was a fifty-two-year-old

woman living alone in a one-bedroom apartment

at the Chestnut Square Apartment complex in

Vineland. On Tuesday, July 30, 2002, her

daughter Janira Walker–Castro, who was

visiting from Florida, and her extended family

spent the day in Wildwood. Ruth, however,

stayed home because she was tired.

At 8:19 p.m., Janira called her mother on the

cell phone she left with her, letting her know

when the family would arrive for a dinner that

Ruth planned to cook. Surveillance video at

the Chestnut Square Apartment complex showed

Ruth pulling into her parking space at 8:22

p.m., and exiting the van. When Janira phoned

her mother again close to 10:00 p.m., there

was no answer.

Later, the family arrived at Ruth's apartment

and found it dark; the outside and inside

doors were locked. No one had a key so Anthony

Reyes, the victim's son, using a knife from

his nearby home, eventually opened the outside

door, and then easily gained entry to the

inner door.

Janira's husband went into the bedroom and

discovered the victim, who was clothed and

wearing necklaces, lying on her back on the

floor. She had no pulse. The bedroom was in

disarray; the folding closet doors were on the

floor, a table was broken, and the bedding was

disheveled.

There was a blood-stained white, Fruit of the

Loom T-shirt, size XXXL, on the bed, along

with a bracelet. According to Janira, who was

familiar with her mother's wardrobe, the

victim did not wear or even own white Fruit of

the Loom T-shirts. Police also found $391 in

cash on top of the kitchen table, along with

a cell phone and Ruth's keys. All of the

windows were found to be locked and the

sliding glass door secure; however, the rear

kitchen screen had a small incision in it, but

it was in a locked down position, and no entry

could have been gained from it. There was a

pot of water on the stove and meat defrosting

in the sink, which led Vineland police officer

Robert DeMarchi to surmise that as the victim

started to prepare dinner, she heard a noise

in the bedroom and took a knife with her to

investigate.

Dr. Elliott Gross, the Cumberland County

Medical Examiner at the time, performed an

autopsy the next day. He determined that the

victim, who was five-feet-six inches tall and

weighed 225 pounds, was stabbed three times in

the neck, with one of the stab wounds

transecting the jugular vein and going through

two of the vertebrae, which caused blood and

air to reach the heart causing death. Due to

the way the blood seeped down the victim's

breasts, Gross believed the neck wounds were

caused while she was standing.

Additionally, the victim's hyoid bone (in the

neck) was fractured. That fracture, combined

with petechiae in the victim's eyes, and

necklace imprints around her neck, led Gross

to conclude that the victim also had been

strangled. Gross could not say for sure

whether the strangulation had been done

manually or with a ligature, but said both

could have been used. Specifically, the T-

shirt found on the bed could have been used as

a ligature. Gross thought it likely that the

person who strangled the victim was standing

behind her because the marks did not extend

all the way around her neck.

The injuries—the stab wound and the

strangulation—occurred nearly concurrently,

and each was capable in and of itself of

causing her death. Gross believed that the

victim's death was caused by more than one

person because the two competing causes of

death occurred nearly simultaneously and it

would not have been likely that one person

could have strangled her from behind and

stabbed her from the front. In addition to the

two fatal wounds, the victim had abrasions,

bruises and cuts on her body that indicated

she struggled with her attacker or attackers

and tried to defend herself. Gross testified

that a wooden-handled knife with a serrated

edge, later recovered and identified as the

victim's, could have caused the fatal stab

wound.

Ian Hood, who was qualified as an expert in

forensic pathology, reviewed Gross's autopsy

report and photographs from the scene, and

examined the recovered knife. He concurred

with Gross's determination of the causes of

death, that the knife presented was consistent

with the stab wounds, that the T-shirt could

have been used as a ligature, and that the

victim was standing up and struggling when she

was strangled from behind and stabbed from the

front by two different people.

Police investigation quickly focused on

William Boston, who lived next door to the

victim. Their apartments shared a common outer

door. In July 2002, Damien Stratton lived with

Boston, Boston's mother, and Boston's step-

father. He was “trying to get [him]self

together” after having been in prison for

convictions on burglary and drug possession

charges. Stratton knew defendant, and said

that the day the victim was killed, defendant

and Boston were together all day, and in the

evening, they were “messing with” the screen

in the victim's kitchen window; defendant had

a knife and Boston had a box cutter. Stratton

told Boston's step-father that the men were

messing with the screen and at the step-

father's insistence, Boston went inside.

Boston went out again to rejoin defendant

before Stratton left for the evening. Stratton

admitted to having had “some drinks” that

night.

On the day of the homicide, from 1:15 p.m. to

4:30 p.m., Boston did “community service” in

one of the apartments (37A) at the Parktown

Apartments, helping the maintenance worker

Jose Lopez clean the vacant roach-infested

premises for re-renting. Earlier, on July 29,

Lopez had applied boric acid powder to all of

the surfaces in the apartment, including the

kitchen cabinets, and found nothing on top of

them. The next day, which was the day after

the homicide, Boston worked from 3:00 p.m.

until 5:00 p.m. No one had access to the

apartment besides Lopez and Boston, and Boston

did not have a key. A week later, Lopez

reentered the apartment and found a wooden-

handled knife with a six-to-eight-inch blade,

sitting on top of a kitchen cabinet; it had no

boric acid powder on it. Lopez turned the

knife over to police, which Janira said looked

“exactly like” the one used by her mother.

Boston was arrested on August 2, 2002, and

charged with the homicide. At that point,

Stratton, Beals, and Cesar Caban, a large

friend of Boston's who could have fit the XXXL

T-shirt, were suspects; defendant was not. At

some later time, Stratton was eliminated as a

suspect because his alibi was confirmed, and

forensic tests on DNA found on the bloody T-

shirt did not compare to Stratton's profile.

Subsequently, it was also determined that the

DNA on the T-shirt and a palm print did not

match Boston's, Beals' or Caban's profiles.

However, police believed that Boston did not

act alone due to his limited intelligence, and

the fact that he was not a big person and would

not fit an XXXL T-shirt.

On September 10, 2003, Vineland Police

Detectives Shane Harris and Negron asked

defendant to come to the station, and he

complied. When they asked him to provide

buccal swabs, defendant's body started to

shake and his eyes watered. Defendant then

said he felt like he was being set up, but he

would provide the swabs because if he did not,

it would seem like he was hiding something.

Several weeks later, under court order,

defendant provided a palm print impression.

When confronted with the court order for the

palm print, defendant got upset and said that

he had never been in the victim's apartment.

Leslie Wanko, a supervisory forensic analyst

for the FBI, conducted tests on the latent

palm print found in the victim's bedroom, and

determined with “100% certainty” that it

matched defendant's palm print. Maureen Lo–

Beer, an expert in toxicology, biochemistry

and DNA analysis at the New Jersey State

Police forensic laboratory, conducted DNA

testing on the white XXXL T-shirt and found

that she “could not exclude” defendant as the

contributor of the DNA material found on the

white T-shirt. The profile she found could be

expected to be found in 1 of 480 million

African–Americans, one in 786 million

Caucasians, and 1 in 1.46 billion Hispanics.

Defendant was arrested on October 10, 2003. He

gave a taped statement to police in which he

denied ever being in the victim's apartment.

At the end of the statement, Detective John

Berry of the Cumberland County Prosecutor's

Office asked defendant how, if he was never in

her apartment, did his DNA get in her

apartment. Defendant went into a “tirade” and

said he was not there, he should not have

consented to the buccal swab sample and that

the police planted the evidence.

Under authority of a search warrant, Detective

Lieutenant James Parent of the Cumberland

County Prosecutor's Office conducted a search

of defendant's bedroom on October 10, 2003.

One of the items found was an XXXL Fruit–of–

the–Loom T-shirt, which Parent described as

“like a muscle shirt with the sleeves cut off”

and “sort of what was found at the crime

scene.” Other sizes and types of T-shirts were

also found, but only the XXXL shirt had cut-

off sleeves. Gina Mave, who knew defendant

through her position as the rental manager at

the Parktown Apartments where defendant had

resided, said defendant often wore shirts with

the sleeves cut off, as he was a weight lifter.

When shown the shirt recovered from his

apartment, Mave agreed that it was the type of

shirt defendant frequently wore. Parent

identified the shirt found in the victim's

apartment and the shirt found in defendant's

bedroom as both being white XXXL T-shirts with

the sleeves cut off.

Stephanie Beine of Genetics Technologies,

Inc., testified as an expert for the defense.

Her laboratory used the same processes as the

State Police laboratory to test DNA. Under

instruction from defendant's previous

attorney, Beine focused on three areas of the

T-shirt that had blood stains. She did not

perform any DNA analysis on the other

biological fluid or “epithetical cells” that

may have been present, despite seeing “areas

of fluorescence on the garment that would

indicate possible other biological fluids

being present.” Beine found bloodstains “A”

and “C” to contain a mixture of DNA from two

contributors, one male and one female, but the

genetic material detected from the male

contributor fell below the laboratory's

reporting threshold, and thus, she was not

able to “include or exclude” defendant as a

contributor.

Defendant, who represented himself at trial,

testified on his own behalf. He admitted to

being at Boston's apartment on July 30, 2002,

but denied having anything to do with the

victim's death. When asked how his DNA was

found in the victim's apartment, he stated,

“[m]y DNA is not nowhere in nobody's

apartment.” He also stated: “[m]y [palm] print

is nowhere inside nobody's apartment except

for my own.” Defendant maintained that he had

a job, as did his fiancée at the time, so he

did not need “to steal from nobody.” He

admitted wearing T-shirts with the sleeves cut

off as he was a weightlifter, but claimed that

some of the shirts in his bedroom belonged to

his step-son. He did not know how a bloody T-

shirt got into the victim's apartment. He

believed the prosecutor “put ... up” the

laboratory witnesses to lie. Defendant

declared his innocence and said he did not

know who killed the victim.

State v. Nevius, No. A-5438-07T4, 2012 WL 2361516, at *1–4 (N.J.

Super. Ct. App. Div. June 18, 2012) (internal footnotes omitted).

The jury convicted Petitioner of two counts of first-degree

murder, one count of second-degree burglary, and one count of

third-degree conspiracy to commit burglary. See ECF No. 8-9.

Petitioner was sentenced to an aggregate term of sixty-five years

in prison, subject to New Jersey’s No Early Release Act (“NERA”).

See id. Petitioner appealed his conviction and sentence. See ECF

Nos. 8-10, 8-11. On June 18, 2012, the Appellate Division affirmed

both Petitioner’s conviction and his sentence. See Nevius, 2012

WL 2361516, at *21. The New Jersey Supreme Court denied

Petitioner’s request for a writ of certiorari. State v. Nevius,

65 A.3d 835 (N.J. 2013).

Petitioner subsequently filed a petition for post-conviction

relief (“PCR”) in state court. See ECF Nos. 8-12, 8-13. The PCR

court denied the petition. See ECF No. 8-26. Petitioner’s motion

for reconsideration of his PCR was also denied. See ECF No. 8-

28. The Appellate Division affirmed the denial of Petitioner’s PCR

and his motion for reconsideration. See State v. Nevius, No. A-

3982-14T4, 2017 WL 588186, at *4 (N.J. Super. Ct. App. Div. Feb.

14, 2017). The New Jersey Supreme Court denied Petitioner’s

request for a writ of certiorari. See State v. Nevius, 167 A.3d

655 (N.J. 2017).

On June 8, 2017, Petitioner filed the instant habeas petition,

pro se. See ECF No. 1. On September 8, 2017, Respondents filed

an answer opposing the petition. See ECF No. 8. Petitioner

submitted two briefs in reply. See ECF Nos. 9, 10.

II. STANDARD OF REVIEW

A petition for writ of habeas corpus pursuant to 28 U.S.C. §

2254 is the proper mechanism for a state prisoner to challenge the

fact or duration of his confinement where the petitioner claims

his custody is in violation of the Constitution or the laws of the

United States. See 28 U.S.C. § 2254(a); Cullen v. Pinholster, 563

U.S. 170, 181 (2011); Preiser v. Rodriquez, 411 U.S. 475, 498-99

(1973). A habeas petitioner bears the burden of establishing his

entitlement to relief for each claim presented in the petition.

See Harrington v. Richter, 562 U.S. 86, 98 (2011).

The standard used in reviewing habeas claims under § 2254

depends on whether those claims have been adjudicated on the merits

by the state court. If they have not been adjudicated on the

merits, the Court reviews de novo both legal questions and mixed

factual and legal questions. See Appel v. Horn, 250 F.3d 203, 210

(3d Cir. 2001). If the state court adjudicated the claim on the

merits, then 2254(d) limits the review of the state court’s

decision as follows:

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 . . . .

28 U.S.C. § 2254(d).

If a claim has been adjudicated on the merits in state court,1

this Court has “no authority to issue the writ of habeas corpus

unless the [state court’s] decision ‘was contrary to, or involved

1 “[A] claim has been adjudicated on the merits in State court

proceedings when a state court has made a decision that finally

resolves the claim based on its substance, not on a procedural,

or other, ground.” Lewis v. Horn, 581 F.3d 92, 100 (3d Cir.

2009) (quoting Thomas v. Horn, 570 F.3d 105, 117 (3d Cir.

2009)). “Section 2254(d) applies even where there has been a

summary denial.” Pinholster, 563 U.S. at 187. “In these

circumstances, [petitioner] can satisfy the ‘unreasonable

application’ prong of § 2254(d)(1) only by showing that ‘there

was no reasonable basis’ for the [state court’s] decision.” Id.

(quoting Harrington v. Richter, 562 U.S. 86, 98 (2011); see also

Johnson v. Williams, 568 U.S. 289, 301 (2013) (“When a state

court rejects a federal claim without expressly addressing that

claim, a federal habeas court must presume that the federal

claim was adjudicated on the merits – but that presumption can

in some limited circumstances be rebutted.”).

an unreasonable application of, clearly established Federal Law,

as determined by the Supreme Court of the United States,’ or ‘was

based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.’” Parker v.

Matthews, 567 U.S. 37, 40 (2012) (quoting 28 U.S.C. § 2254(d)).

A court begins the analysis under § 2254(d)(1) by determining

the relevant law clearly established by the Supreme Court. See

Yarborough v. Alvarado, 541 U.S. 652, 660 (2004). Clearly

established law “refers to the holdings, as opposed to the dicta,

of [the Supreme Court’s] decisions as of the time of the relevant

state-court decision.” Williams v. Taylor, 529 U.S. 362, 412

(2000). A court must look for “the governing legal principle or

principles set forth by the Supreme Court at the time the state

court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-

72 (2003). “[C]ircuit precedent does not constitute ‘clearly

established Federal law, as determined by the Supreme Court,’ [and]

therefore cannot form the basis for habeas relief under AEDPA.”

Parker, 567 U.S. at 48-49 (quoting 28 U.S.C. § 2254(d)(1)).

A decision is “contrary to” a Supreme Court holding within 28

U.S.C. § 2254(d)(1), if the state court 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 are materially

indistinguishable from a decision of [the Supreme Court] and

nevertheless arrives at a [different result.]” Williams, 529 U.S.

at 405–06. Under the “‘unreasonable application’ clause of §

2254(d)(1), a federal habeas court may grant the writ if the state

court identifies the correct governing legal principle from [the

Supreme Court’s] decisions but unreasonably applies that principle

to the facts of the prisoner’s case.” Williams, 529 U.S. at 413.

“[A]n unreasonable application of federal law,” however, “is

different from an incorrect application of federal law.”

Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Williams,

529 U.S. at 410).

III. DISCUSSION

A. Inadmissibility of Co-Defendant’s Statement

In Ground One, Petitioner argues that his due process right

to present a defense was violated when the trial court prohibited

him from introducing statements made by co-defendant Boston. See

ECF No. 1-1, at 4. Specifically, Petitioner sought to introduce

Boston’s statement to police that he and another individual, Tyrone

Beals, had committed the crime. See id. at 4-5.

When Boston was arrested, he initially told law enforcement

that it was Beals who had broken into the victim’s apartment and

stabbed the victim when she returned home. See State v. Nevius,

45 A.3d 360, 366 (N.J. Super. Ct. App. Div. 2012). Boston later

alter his statement to police, this time stating that he had

entered the victim’s apartment with Beals but had hidden inside a

bathroom while Beals stabbed the victim. See id. In another

subsequent statement to police, Boston again changed his story,

this time alleging that Beals had threatened Boston until Boston

agreed to break into the apartment. See id. Boston stated that

he had broken into the apartment with Beals but left once he saw

the victim had returned home. See id. Boston added that when he

heard screaming, he returned to the apartment in an attempt to

stop Beals from killing the victim but was unsuccessful. See id.

Boston stated that after Beals stabbed and strangled the victim,

Boston removed the t-shirt Beals used to strangle the victim and

used it to clean off the knife. See id.

While Boston was in prison awaiting his trial, he provided

yet another statement, this time to a fellow inmate, which stated

that it was actually Boston and Petitioner who had committed the

crime. See id. Boston confessed to the other inmate that Boston

had “intentionally changed the actors in his written narrative to

the police, and that whatever he said Beals had done, [Boston] had

actually done, and whatever [Boston] said that he had done,

[Petitioner] had actually done.” Id. Boston also wrote a letter

to the prosecutor in his case, alleging his statement to police

had been coerced and the version of events that he provided to

police the day he was arrested was inaccurate. See ECF No. 8-5,

at 6. Boston was tried separately from Petitioner and was

convicted on all counts, including first-degree murder and

conspiracy to commit murder. See State v. Boston, No. A-4129-

07T3, 2012 WL 3568290, at *1 (N.J. Super. Ct. App. Div. Aug. 21,

2012). Boston refused to testify at Petitioner’s trial. See ECF

No. 8-5, at 3-4.

At Petitioner’s trial, Petitioner attempted to introduce

Boston’s statement to police that Boston and Beals had been the

perpetrators of the crime. See id. During cross-examination of

State’s witness Detective Negron, Petitioner asked, “isn’t it true

that Mr. Boston told you that Tyrone Beals killed Ms. Walker?”

ECF No. 8-2, at 6. The State objected and the trial court ruled

that the question was inadmissible hearsay. See id. at 6-7.

During Petitioner’s case-in-chief, he again sought to introduce

Boston’s statement to police. See ECF No. 8-5, at 3. Petitioner

informed the court that Boston refused to testify at trial and

that, in lieu of Boston’s live testimony, Petitioner wanted to

introduce Boston’s statement to police as a statement against penal

interest. See id. at 4. The trial court ruled the statement was

inadmissible hearsay and that it could not be admitted as a

statement against penal interest because it “lacked a certain

reliability that would normally be associated with a statement

against penal interest.” See ECF No. 8-5, at 44. The trial court

found that Boston’s statement to police showed Boston as, at best,

“an unwilling and reluctant participant in a burglary, in which

Tyrone Beals committed a homicide, if one were to believe the

statement. This statement [was] made to exculpate [Boston] from

the greater of the offenses, that which was probably at one time,

a capital murder charge.” Id. The trial court determined that

the statement had “little, if any, probative value,” and that it

would be “absolutely unfair and inappropriate” to admit the

statement Boston made to police without also allowing into evidence

the statement Boston made to his fellow prison inmate, which the

court had held was also inadmissible. See id. at 46.

On appeal, the Appellate Division affirmed the trial court’s

ruling, determining that the trial court had properly barred the

statements under New Jersey Rule of Evidence 803(c)(25). See

Nevius, 2012 WL 2361516, at *10. The Appellate Division stated

that “[i]f anything, the accusatory shifting of blame to Beals

served to exculpate not only [Petitioner] but Boston as well and

it is for this very reason that Boston’s statements are inherently

untrustworthy and therefore inadmissible under N.J.R.E.

803(c)(25).” Id. at *9. The Appellate Division held that the

ruling did not deprive Petitioner of a fair trial. See id. at

*10.

Generally, the admissibility of evidence is a question of

state law which is not cognizable on federal habeas review. See

Estelle v. McGuire, 502 U.S. 62, 67-70 (1991) (observing that

“federal habeas corpus relief does not lie for errors of state

law” (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990))); see

also Marshall v. Lonberger, 459 U.S. 422, 438 (1983) (“[T]he Due

Process Clause does not permit the federal courts to engage in a

finely-tuned review of the wisdom of state evidentiary rules”).

If, however, a petitioner can demonstrate that the admission of

the challenged evidence deprived him of the “fundamental elements

of fairness in [his] criminal trial,” then he may establish a

Fourteenth Amendment due process violation. Glenn v. Wynder, 743

F.3d 402, 407 (3d Cir. 2014) (quoting Riggins v. Nevada, 504 U.S.

127, 149 (1992). A petitioner must show that state court’s

evidentiary ruling was “so arbitrary or prejudicial that it

rendered the trial fundamentally unfair.” Scott v. Bartkowski,

Civ. No. 11-3365, 2013 WL 4537651, at *9 (D.N.J. Aug. 27, 2013)

(citing Romano v. Oklahoma, 512 U.S. 1, 12-13 (1994)).

Significantly, the Supreme Court has “defined the category of

infractions that violate ‘fundamental fairness’ very narrowly.”

Dowling v. United States, 493 U.S. 342, 352 (1990).

Here, Petitioner has not demonstrated that the trial court’s

exclusion of Boston’s statements was “so arbitrary or prejudicial”

as to render his trial fundamentally unfair. The underpinning of

all hearsay exceptions is that the statements are made under

circumstances which provide an indicium of reliability. See

Williamson v. United States, 512 U.S. 594, 598 (1994); see also

Idaho v. Wright, 497 U.S. 805, 820-21 (1990). The Supreme Court

has held that “the arrest statements of a codefendant have

traditionally been viewed with special suspicion. Due to his strong

motivation to implicate the defendant and to exonerate himself, a

codefendant's statements about what the defendant said or did are

less credible than ordinary hearsay evidence.” Williamson, 512

U.S. at 601 (1994) (quoting Lee v. Illinois, 476 U.S. 530, 541

(1986)) (internal quotation marks omitted). Here, as the trial

court and Appellate Division found, the statements made by Boston

were self-serving and helped to exculpate Boston, making him look,

at worst, like an unwilling participant to a burglary gone wrong.

His statements did not bear the indicia of reliability to make

them admissible under a hearsay exception. Thus, the state courts’

determination that Boston’s statement to police were untrustworthy

and therefore inadmissible, was not contrary to, or an unreasonable

application of federal law. Petitioner is not entitled to relief

on this claim.

B. Brady Violations

In Ground Two, Petitioner alleges that the State withheld

multiple pieces of evidence in violation of Brady v. Maryland, 373

U.S. 83 (1963). See ECF No. 1-1, at 6-16. Specifically,

Petitioner asserts that the State withheld: Dr. Gross’ personnel

file; a trace evidence report; the lab notes of FBI forensic

analyst Laura Hutchins; and a “biochemical analysis and

questionnaire report.” See id. at 6. Petitioner argues that these

documents were material and favorable to his defense and, if

disclosed to the Petitioner, would have had the ability to change

the outcome of his proceeding. See id. at 6-16.

The government has a duty to provide a defendant with all

relevant, exculpatory materials. See Kyles v. Whitley, 514 U.S.

419, 432 (1995) (citing Brady, 373 U.S. 83). The government’s

suppression of material evidence favorable to the defense

constitutes a violation of a defendant’s due process rights. See

Brady, 373 U.S. at 87. Evidence is considered material, “only if

there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have

been different.” United States v. Bagley, 473 U.S. 667, 682

(1985). To establish a Brady violation, a petitioner must show

that: (1) the evidence at issue was favorable to the defense; (2)

the evidence was suppressed by the government; and (3) petitioner

was prejudiced as a result. See Moore v. Illinois, 408 U.S. 786,

794-95 (1972).

i. State Pathologist’s Personnel File

Petitioner contends that the State committed a Brady

violation by withholding the State pathologist, Dr. Gross’,

personnel file. See ECF No. 1-1, at 6-10. Petitioner argues that

the State was aware Dr. Gross had disciplinary infractions in his

past and the failure of the State to provide Petitioner with Dr.

Gross’ personnel file constituted a Brady violation. See ECF No.

8-12, at 26. Petitioner submits that, without the personnel file,

he “never had the opportunity to impeach” Dr. Gross. See ECF No.

1-1, at 7.

The record is unclear as to when and if Petitioner received

the Dr. Gross’ personnel file. It appears that on January 28,

2008, one day prior to Dr. Gross’ testimony, Petitioner requested

a court order to obtain the file from the Human Resources

Department of Cape May County. See ECF No. 8-19, at 25. The trial

court signed the order that same day. See id. at 28. It is

unclear however whether Petitioner actually received a copy of the

personnel file that day as well.

Petitioner did, however, discuss Dr. Gross’ disciplinary

infractions during his opening statement on January 18, 2008 –

before the trial court’s order. See ECF No. 8-1, at 10-11.

Petitioner also subsequently cross-examined Dr. Gross about his

disciplinary infractions and again utilized the information during

closing arguments to attack Dr. Gross’ credibility. See ECF Nos.

8-4, at 26-27; and 8-6, at 83-84. Petitioner appears to contend

that the arguments he made throughout trial about Dr. Gross’

disciplinary infractions were based solely upon information he

discovered through the media and not derived from the personnel

file. See ECF No. 1-1, at 7.

When Petitioner raised this claim during his PCR proceedings,

the PCR court held, in pertinent part:

However, the State did not suppress any of the

evidence related to Dr. Gross. The personnel

file obtained by counsel was not in the

State’s possession and the defense could

obtain it without the aid of prosecution — as

evidenced by the fact that defense did obtain

the file without the prosecution’s help.

Additionally, Dr. Gross’s disciplinary

history could have easily been found as new

outlets covered the stories of an apparent

“botched autopsy” Dr. Gross performed.

Additionally, Petitioner did mention Dr.

Gross’s history during his opening, closing

and cross examination of Dr. Gross.

Petitioner does not aver what would have

changed if the material were obtained sooner.

In short, Petitioner knew the specifics of the

history of Dr. Gross and argued that

throughout the course of the trial. He was

fully aware of his history and had the

opportunity to present those arguments in

order to sully the reputation and credibility

of Dr. Gross.

ECF No. 8-27, at 19-20.

The Appellate Division affirmed the PCR court’s holding and

found that Petitioner’s argument lacked sufficient merit to

warrant discussion in a written opinion. See ECF No. 8-29, at 9-

10.

Here, Petitioner has not demonstrated that he suffered

prejudice as the result of the allegedly suppressed personnel file

of Dr. Gross. Although Petitioner may not have had Dr. Gross’

personnel file from Cape May County before the start of trial,

Petitioner was still able to impeach Dr. Gross regarding his past

disciplinary infractions. During Petitioner’s opening statement,

he argued in pertinent part:

[. . .] In addition, the Chief Medical

Examiner, Dr. Elliott Gross, acknowledges that

many homicide autopsies were performed in the

presence of only one doctor, but ordered his

medical staff to continue in direct violation

of city law.

This causes autopsies to be misdiagnosed.

Evidence was lost. Shortcuts were taken, and

(indiscernible) reports were inaccurate. So

as a result, Dr. Gross was fired from the

(indiscernible) Office in 1987 but then-Mayor

Everett I. Coach (phonetic), (indiscernible)

office.

In March of 2001, instead of getting

terminated, Dr. Gross gave up his $142,500 a

year job after he (indiscernible) autopsy

(indiscernible) promoting a murder charge

against an innocent man. (indiscernible)

prosecuted the charge of an Atlantic City

police office, Mr. James Andross (phonetic) of

murder of his own wife. Ms. Eileen Andross

lost -- Mr. Andross lost (indiscernible)

suspended from his job, who would be

vindicated a month before he was to stand

trial.

After two (indiscernible) pathologists

reviewed Dr. Gross’ work and determined that

Mrs. Andross died from a coronary artery

dissection, a condition that causes a person

to hemorrhage, a (indiscernible) of Dr. Gross’

findings as asphyxiation. As part of this

(indiscernible), Dr. Gross was banned from

performing unsupervised autopsies, and was

order to perform 20 autopsies under the

supervision of State-designated

(indiscernible) pathologists, as well as to

observe 20 others.

At that time, after the State medical exam,

Mr. John Crowpowski (phonetic), refused to

reinstate Dr. Gross’ privileges because of his

(indiscernible) remedial tests.

ECF No. 8-1, at 10-11.

Upon cross-examination of Dr. Gross, Petitioner again

attacked Dr. Gross’ credibility, eliciting, in pertinent part:

PETITIONER: Doctor, isn’t is also true you

testified here today that you used to work in

the New York Medical Examiner’s Office; is

that correct?

DR. GROSS: That’s correct.

[. . .]

PETITIONER: Now, Doctor, when you say you left

the office, did you voluntarily leave, or were

you fired sir?

DR. GROSS: I was dismissed, as the mayor had

the right to do.

PETITIONER: And, could you explain to the jury

why, sir?

DR. GROSS: Yes. As he announced, he wished to

make a change in the administrative management

of the office.

PETITIONER: Sir, did your dismissal have

anything to do with the deterioration of the

medical examiner’s office in New York?

DR. GROSS: I can only refer you to what the

mayor said, which had to do -- that he wished

to make a change in the administrative

management of the office.

PETITIONER: And, I believe you also testified

to a Mrs. Eileen Andros; is that correct, sir?

DR. GROSS: I testified about a Ms. Ellen

Andros, yes.

PETITIONER: And, you did perform her autopsy;

is that correct, sir?

DR. GROSS: That’s correct.

PETITIONER: And, in doing that autopsy, you

mistakenly missed a finding; is that correct?

DR. GROSS: That’s not correct. What I said

was, that the body exhibited certain findings

and at a later date, the microscopic change in

the coronary artery was noted, which I had not

seen, and I admitted to that error, and have

regretted it, as I publicly stated, and will

regret it for the rest of my career.

PETITIONER: Sir, are you aware of the

consequences behind --

PROSECUTOR: Judge, I’m going to object as to

the relevance of that.

THE COURT: What relevance does that have to

this case, sir?

PETITIONER: This has all relevance to do with

his credibility, Your Honor.

THE COURT: No, it doesn’t. Sustained.

ECF No. 8-4, at 26-27.

Petitioner yet again attacked Dr. Gross’ credibility during

his closing statement, arguing:

The facts are undisputed. Lies kept trying to

cover themselves up one after another. Which

brings me to the State’s next witness, Dr.

Elliott Gross.

Now, as I told you and that Dr. Gross admitted,

he was indeed fired from the New York Medical

Examiner’s Office.

Dr. Gross also admitted that he made

tremendous errors in the autopsy of Ms. Eileen

Henry (Phonetic), that led to murder charges

against an innocent man.

[. . .]

Take into consideration Dr. Gross’ background.

Everything he testified to must be looked at

under a microscope. When I tried to dig

further into Dr. Gross’ background, I was

stopped by the Judge.

When I tried to put Dr. Gross’ credibility on

the table, I was stopped for some reason. No

matter if I was stopped or not. Dr. Gross

admitted himself to his shoddy background.

ECF No. 8-6, at 83-84.

The record demonstrates that, even if Petitioner did not have

Dr. Gross’ personnel file, Petitioner still used Dr. Gross’ past

disciplinary infractions to impeach his credibility on multiple

occasions. Thus, Petitioner’s argument that he “never had the

opportunity” to impeach Dr. Gross is belied by the trial

transcripts. Petitioner does not allege what additional

information Dr. Gross’ personnel file contained that would have

added to the impeachment of Dr. Gross’ credibility.

Moreover, Petitioner is also unable to demonstrate that Dr.

Gross’ personnel file was material evidence. Knowing that Dr.

Gross had made a mistake in the performance of an autopsy for

another case, the State chose to also present the testimony of Dr.

Ian Hood, a Deputy Chief Medical Examiner in Philadelphia. See

ECF No. 8-19, at 16. Dr. Hood testified at trial that, based upon

his own review of the autopsy report and other evidence in the

case, he agreed with Dr. Gross’ finding as to the victim’s manner

of death. See ECF No. 8-4, at 35-36. Thus, even if Dr. Gross’

credibility had been impeached, Dr. Hood testified as to the same

findings. See id. at 36. Therefore, Petitioner has not

demonstrated that Dr. Gross’ personnel file was “material”

evidence that was suppressed by the State. Accordingly, the state

courts’ adjudication of this claim was not contrary to, or an

unreasonable application of, clearly established federal law.

Petitioner is not entitled to relief on this claim.

ii. Other Documents

Petitioner also contends that the State committed Brady

violations by withholding a trace evidence report, the lab notes

of FBI forensic analyst Hutchins, and a “biochemical analysis and

questionnaire report.” See ECF No. 1-1, at 6-10. When Petitioner

raised these claims during his PCR proceedings, the PCR Court held,

in pertinent part:

There are a host of documents, enumerated

across several briefs (most notably in the

appendix of his pro se supplemental brief),

which the Petitioner claims he never received.

However, he has not gone into detail about how

the remaining missing documents could have

altered the outcome of trial. If the alleged

suppression of evidence is a violation of due

process, it must be material, favorable to the

accused and actually suppressed. See, Nelson,

supra, 155 N.J. at 497. Here, the Petitioner

has not asserted how those remained documents

would have been favorable or material. [FN 4].

Thus the petitioner does not make a prima

facie case of a Brady violation. [FN 4:

Further, several of the items which are

alleged missing, the State argues were

included in the discovery file and that some

of those “missing” items were even utilized by

the defense at trial. However, this inquiry

as to the remaining documents is moot because

the Petitioner has not alleged the materiality

or favorability of those items.]

ECF No. 8-27, at 20-21.

Addressing the alleged withholding of Ms. Hutchins’ report

and lab notes later in its opinion, the PCR court also stated:

The Petitioner takes an additional issue with

[Ms. Wanko’s] testimony – that he did not

receive the curriculum vitae of Ms. Hutchins

and case notes prior to trial. This claim is

meritless, as the Petitioner actually cross

examined [Ms. Wanko] based on the case notes,

showing that he had received those items.

Additionally, the State, through their first

brief and attached exhibits, have shown that

Ms. Hutchins’ curriculum vitae was provided in

the Discovery file, thus this claim is

meritless.

Id. at 22.

The Appellate Division affirmed the PCR court’s holding,

stating that Petitioner’s claim lacked sufficient merit to warrant

discussion in a written opinion. See ECF No. 8-29, at 9-10.

Here, Petitioner has not demonstrated that the trace evidence

report, Ms. Hutchins lab notes, or the biochemical analysis and

questionnaire were suppressed. “A petitioner has the burden of

demonstrating the State withheld or suppressed evidence.” Neals

v. Warren, No. 13-4398, 2017 WL 751427, at *8 (D.N.J. Feb. 27,

2017) (citing Maynard v. Gov’t of Virgin Islands, 392 F. App’x

105, 119 (3d Cir. 2010)). Despite Petitioner’s assertions, the

record provided by the State indicates that these documents were,

in fact, turned over to Petitioner during discovery. See ECF No.

8-19, at 20-21, 31-52. However, even if these documents had not

been provided to him during discovery, Petitioner has still not

demonstrated that the documents would have, with a reasonable

probability, changed the result of his proceeding. See Kyles, 514

U.S. at 441.

Petitioner asserts that the trace evidence report, which

analyzed hair taken from the crime scene, would have demonstrated

to the jury that none of the hair found at the scene belonged to

him. See ECF No. 1-1, at 11 (“[The report] also showed that the

petitioner was ‘excluded’ to the remaining hair that did not belong

to the victim.”). However, a review of the report indicates that

a majority of the hair taken from the crime scene was “similar” to

that of the victim’s hair. See ECF No. 8-19, at 31-32. The report

states that there were numerous hairs collected that did not match

the victim’s hair or any of the submitted suspect hairs, and that

there were a few hairs that had insufficient characteristics or no

comparative value to be able to draw a conclusion. See id. The

report does not state, as Petitioner alleges, that he was

“excluded” from being a contributor to any of the trace evidence.

Petitioner has not demonstrated how this report would have made a

different result reasonably probable.

Petitioner also alleges that he should have been provided

with Ms. Hutchins’ lab notes in order to impeach Ms. Wanko. See

ECF No. 1-1, at 14-15. Petitioner contends that Ms. Hutchins’ lab

notes contained the “only” true examination of Petitioner’s prints

as compared to the handprints from the crime scene and that he

should have been able to cross-examine Ms. Wanko with Ms. Hutchins’

lab notes. Upon review of the record, it is clear that Ms. Wanko

conducted her own independent examination and comparison of

Petitioner’s palm print to the print found at the scene of the

crime. See ECF No. 8-3, at 4-28. It is also clear that Ms.

Hutchins’ lab notes rendered the same conclusion that Ms. Wanko

did – that the palm print found from the crime scene matched

Petitioner’s. See ECF No. 8-20, at 37-38. Thus, even if

Petitioner did not have access to Ms. Hutchins’ lab notes to cross

examine Ms. Wanko – which he clearly did – the notes would not

have, with a reasonable probability, changed the result of

Petitioner’s proceeding.

Finally, Petitioner argues that the biochemical analysis

questionnaire would have demonstrated to the jury that a shoelace

was used to strangle the victim, not a t-shirt. See id. at 11-

12. The questionnaire states, “If a weapon was used, indicate the

weapon and injuries it may have caused and to whom.” See ECF No.

8-19, at 42. Whoever authored the unsigned document wrote, “Knife

& shoe lace.” See id. Petitioner alleges that if he had been

provided with this questionnaire, it would have demonstrated that

“the State was aware that the t-shirt was not the weapon used” and

that he would have been able to use this information to impeach

Dr. Gross’ testimony. See id. at 11-13. However, Petitioner is

unable to demonstrate that he suffered prejudice from this

allegedly withheld evidence because he had access to the same

information about the shoelace prior to trial. See ECF No. 12, at

88; see also ECF No. 1-1, at 11-12. Indeed, Petitioner attempted

to introduce the information about the shoelace as a possible

murder weapon at trial, although his attempt was ultimately denied.

See id. (“[P]etitioner tried to show the jury that page three had

stated, ‘The medical examination revealed the shoelace (item 13)

was submitted as being the weapon used to strangle victim.’”).

During cross-examination of one of the crime scene detectives,

Petitioner tried to introduce the State’s “request for examination

of blood and other bodily fluids” – a document which accompanies

the biochemical analysis questionnaire. See ECF No. 12, at 88;

see also ECF No. 8-19, at 42. This request form indicated that a

shoelace had been submitted for testing at the State’s crime lab,

and that the shoelace had been submitted as a possible murder

weapon. See ECF No. 12, at 86 (“The medical examination revealed

a shoelace, submitted as being item 13, being the item used to

strangle the victim. The shoelace could not be matched as

belonging to anything in the apartment.”) Thus, Petitioner clearly

had access to the information that the shoelace may have, at one

time, been considered a possible murder weapon. Accordingly,

Petitioner’s argument that if he had the questionnaire, he would

have been able to present evidence that the murder weapon was

actually a shoelace and cross examine Dr. Gross with that

information, is without merit.

Given the foregoing, the allegedly withheld documents did not

render the verdict in Petitioner’s trial unworthy of confidence.

See Kyles, 514 U.S. at 434. Petitioner’s case involved “strong,

compelling scientific evidence showing beyond a reasonable doubt

that [he] committed the charged offenses.” Nevius, 2012 WL

2361516, at *13. The evidence against Petitioner was, as the

Appellate Division stated, “overwhelming.” See id. at *15.

Petitioner has not demonstrated that any Brady violations occurred

or that the state courts’ adjudication of his Brady claims was

contrary to, or an unreasonable application of, clearly

established federal law. Accordingly, Petitioner is not entitled

to relief on this ground.

C. State’s Use of Perjured Testimony

In Ground Three, Petitioner argues that the State elicited

perjured testimony from witnesses Maureen Lo-Beer and David Vai.

See ECF No. 1-1, at 16. The United States Supreme Court has long

held that the State may not knowingly use perjured testimony to

obtain a conviction. See Giglio v. United States, 405 U.S. 150,

153 (1972). A petitioner’s due process rights under the Fourteenth

Amendment are violated where the State either solicits, or fails

to correct, false testimony. See Napue v. People of State of Ill.,

360 U.S. 264, 269 (1959). “[I]f there is any reasonable likelihood

that the false testimony could have affected the judgment of the

jury,” then a petitioner’s conviction must be set aside. United

States v. Agurs, 427 U.S. 97, 103 (1976). To establish a due

process violation resulting from perjured testimony, a petitioner

must show that: (1) the witness provided false testimony; (2) the

government knew or should have known that the testimony was false;

(3) the false testimony went uncorrected; and (4) there is any

reasonable likelihood that the false testimony could have affected

the verdict. See Lambert v. Blackwell, 387 F.3d 210, 242 (3d Cir.

2004).

i. Lo-Beer Testimony

Petitioner contends that the State knowingly used perjured

testimony from witness Maureen Lo-Beer, a forensic scientist at

the State Police Laboratory’s DNA unit. See ECF No. 1-1, at 19.

Petitioner alleges, in part:

On direct examination, Low-Beer when asked by

the State how she came about determining in

fact there was a mixture [of DNA]; Low-Beer

testifies because she had found four alleles

in five loci, she knew she had a mixture or

combination. She testifies she subtracted in

all areas where there were four alleles. Low-

Beer explains she took out the victims profile

and got a single source. Low-Beer explains

she had “Nevius’s” alleles from the mixture

when asked by the State. (19T 150-4 to 152-

16). This was the petitioner’s claims to the

P.C.R. Court that the State had knowingly used

perjured testimony concerning Ms. Low-Beer’s

mixture results and conclusions. While having

direct knowledge that Mr. Klama “NEVER”

swabbed any of the blood stained areas on

specimen 10 (t-shirt). Klama only sent Low-

Beer a swabbing from the shirt of possible

skin cells labeled (#10A) (19T 68-2 to 69-12;

19T 70-2 to 71-9). This was petitioner’s

proof that the D.N.A. evidence against him was

false.

Id. at 19.

Although Petitioner’s argument is unclear, it appears he is

alleging that Ms. Lo-Beer provided false testimony when she stated

that she received a mixed DNA result. This claim appears premised

upon the argument that since Ms. Lo-Beer never tested a blood stain

from the t-shirt, that she could not have eliminated the victim as

a contributor to the mixed DNA result.

At trial, Raymond Klama, a forensic scientist in the State

Police Laboratory’s Criminalistics Unit who is responsible for

preparing evidence for DNA testing, testified that he did not send

blood stain samples from the t-shirt found at the crime scene to

the DNA Unit. See ECF No. 8-3, at 35-36. Mr. Klama testified

that he only sent swabs he had taken from the collar and armpit of

the t-shirt in an effort to find possible epithelial cells. See

id. When Ms. Lo-Beer testified, she stated that she had tested

the swabs from the t-shirt looking for skin cells. See id. at 78-

79. Ms. Lo-Beer stated that when she tested the swabs, she

discovered a mixed DNA result, which included a DNA profile from

the victim and another individual. See id. at 75. Ms. Lo-Beer

explained that she was able to identify the victim’s DNA as a

partial contributor to the mixed result because she had been

provided with a control blood sample from the victim. See id.

Ms. Lo-Beer testified that the mixed DNA results were likely due

to the fact that the t-shirt was covered in blood spatter and “when

you swab for epithelial cells, you’ll also pick up some DNA from

the blood spatters that were present also.” Id. at 87. Ms. Lo-

Beer expressly stated, however, that she did not test any blood

stains from the t-shirt – only the swabs for skin cells. See id.

at 78-79, 86-87.

PETITIONER: . . . But, before I get to that,

you just said that you didn’t test the stain;

did you not?

MS. LO-BEER: No, I said a blood stain was not

tested.

[. . .]

PETITIONER: So, when the neck of the t-shirt

and the underarms supposedly were swabbed you

weren’t looking for ownership of the t-shirt

or what were you looking for?

MS. LO-BEER: We were looking for epithelial

cells from that t-shirt that would indicate

who might have worn that garment at one time.

Id.

When Petitioner raised this claim about Ms. Lo-Beer’s

allegedly perjured testimony during his PCR proceedings, the PCR

court rejected it, stating in pertinent part:

The Petitioner also claims that the testimony

of Maureen Low-Beer was perjured and or false.

There is no basis for this assertion.

Further, Petitioner presented his own expert

at trial who rebutted Low-Beer’s testimony.

Though the Petitioner sees inconsistencies and

other problems with Ms. Low-Beers testimony he

had the opportunity, and took advantage of the

opportunity to rebut her testimony.

ECF No. 8-27, at 23.

Here, it appears that Petitioner misunderstood Ms. Lo-Beer’s

trial testimony. Ms. Lo-Beer testified that the DNA from the swab

for skin cells on the t-shirt contained a mixture of DNA from the

victim and from another individual. The import of Ms. Lo-Beer’s

testimony was that although she only tested the swabs from the t-

shirt for skin cell DNA, some of the victim’s DNA from the blood

splatters on the t-shirt was also present. Ms. Lo-Beer explained

that she was able to determine the victim was a partial contributor

to the DNA mixture based upon a control sample of the victim’s

blood she had been given – not based upon the fact that she had

tested the t-shirt for blood stains. Indeed, Ms. Lo-Beer

specifically clarified that she did not test blood stains from the

t-shirt. Thus, Ms. Lo-Beer did not falsely testify about testing

blood from the t-shirt because she did not, as she stated, test

any blood stains from the t-shirt. Accordingly, Petitioner has

not shown that State elicited perjured testimony from Ms. Lo-Beer.

The state courts’ adjudication of this claim was not contrary to,

or an unreasonable application of, clearly established federal

law.

ii. Vai Testimony

Petitioner argues that the State also permitted Officer David

Vai to falsely testify that he lifted two handprints from the crime

scene, despite his previous testimony that he had only lifted one.

See ECF No. 1-1, at 21-22. In support of his claim, Petitioner

points to Officer Vai’s testimony from the trial of Petitioner’s

co-defendant, Boston, where Officer Vai stated that the only print

he lifted from the crime scene was from the victim’s nightstand.

See id. Petitioner states that at his own trial, Officer Vai

testified that he had lifted two handprints, one from the victim’s

nightstand and one from victim’s closet door. See id. Petitioner

asserts, therefore, that Officer Vai knowingly provided false

testimony at Petitioner’s trial when he testified that he found

two handprints. See id.

At Petitioner’s trial, Officer Vai did testify that he lifted

two handprints from the scene of the crime – one from the victim’s

nightstand and one from a closet door. See ECF No. 12, at 21-22.

Officer Vai testified that fingerprint taken from the closet door

“was of no evidential value,” but the print taken from the

nightstand was ultimately able to be sent for identification at

the Federal Bureau of Investigations (“FBI”) Laboratory in

Quantico, Virginia. See id. at 24-25.

Petitioner first raised this claim about Officer Vai’s

allegedly perjured testimony during his PCR proceedings. See ECF

No. 8-13, at 5. Petitioner relief upon Officer Vai’s testimony

from co-defendant Boston’s trial as evidence. See ECF No. 8-20,

at 81. The PCR court denied the claim stating, in pertinent part:

This claim is without merit. Though there

were differences in Vai’s testimony between

the trial of William Boston and the

Petitioner’s trial, there is nothing to

suggest that his subsequent testimony was

perjured. In petitioner’s trial Vai did

reference two latent prints, while he only

spoke of one in the trial of William Boston.

When prompted, Vai, testified that he only

found the one print “at that time.” Whereas

petitioner suggests that Vai only found one

print in general. Petitioner also asserts

that this print was unusable by Vai’s own

admission, but then Vai used it to identify

the Petitioner. In fact, Vai did testify that

he originally could not use the print, but

later, found it useable when compared to that

of the Petitioner; this is not perjury.

However, at co-defendant’s trial, the

Prosecutor did not elicit testimony about the

recovery of the palm print from Officer Vai on

direct. This was not perjury. Clearly, there

were different levels of proof as against each

defendant, and the State would have elicited

such proofs at each trial.

ECF No. 8-27, at 22.

Here, Petitioner has not shown that even if Officer Vai

provided false testimony about discovering a second print from the

victim’s closet door, that there is a reasonable likelihood that

the false testimony could have affected the judgment of the jury.

See United States v. Agurs, 427 U.S. 97, 103 (1976). Officer Vai

expressly stated during Petitioner’s trial that the handprint on

the closet door had no evidential value. See ECF No. 12, at 21-

22. Moreover, the prosecutor never argued, and no witnesses

testified, that the handprint from the closet door matched

Petitioner or that it was indicative of Petitioner’s guilt in any

way. See generally ECF Nos. 1-7, 12. Thus, there is no indication

that the reference to this second handprint could reasonably have

affected the judgment of the jury, as it had no evidential value.

Accordingly, the state courts’ adjudication of this claim was not

contrary to, or an unreasonable application of, clearly

established federal law. Petitioner is not entitled to relief on

this claim.

D. Sixth Amendment Confrontation Clause

In his fourth ground for relief, Petitioner asserts that

Officer Vai’s testimony about the Automated Fingerprint

Identification System (“AFIS”) and Ms. Wanko’s testimony about

another forensic analyst, Laura Hutchin’s, work violated

Petitioner’s rights under the Confrontation Clause. See ECF No.

1-1, at 25-33. Specifically, Petitioner alleges that he should

have been able to confront someone from AFIS about the handprint

results the system generated and that he should have been able to

confront Ms. Hutchins, who initially conducted the examination of

his palm print at the FBI laboratory, about the work that she

conducted.

The Confrontation Clause under the Sixth Amendment provides

that, “[i]n all criminal prosecutions, the accused shall enjoy the

right ... to be confronted with the witnesses against him.” U.S.

Const. amend. VI; see also Crawford v. Washington, 541 U.S. 36, 42

(2004). This clause enables defendants to bar out-of-court

“testimonial” statements made by witnesses who do not appear at

trial. See Crawford, 541 U.S. at 53-54. Generally, a petitioner

establishes a violation under the Conference Clause “by showing

that he was prohibited from engaging in otherwise appropriate

cross-examination designed to show a prototypical form of bias on

the part of the witness.’” See Delaware v. Van Arsdall, 475 U.S.

673, 680 (1986) (quoting Davis v. Alaska, 415 U.S. 308, 318 (1974).

However, alleged violations of the Confrontation Clause are still

subject to harmless error review. See Boyd v. Johnson, No. 18-

965, 2019 WL 316025, at *9 (D.N.J. Jan. 24, 2019) (citing Fry v.

Pliler, 551 U.S. 112, 116 (2007)). Therefore, for a habeas

petitioner to prevail on a Confrontation Clause violation claim,

he must show that not only was he prohibited from engaging in an

otherwise appropriate cross-examination, but also that this

limitation had a “substantial and injurious effect or influence in

determining the jury’s verdict.” See Fry, 551 U.S. at 116.

i. AFIS

Petitioner argues that his Sixth Amendment confrontation

rights were violated when the state used “hearsay testimony” about

AFIS and how the system classified the fingerprints collected from

the crime scene as not sufficient.2 See ECF No. 1-1, at 25-27.

Here, Petitioner cannot demonstrate that the state court’s

adjudication of this claim was contrary to, or an unreasonable

application of, clearly established federal law because the

Supreme Court has never held that, “in the context of the

confrontation clause, it was necessary to introduce testimony

concerning the method of using AFIS.” Marshall v. Hedgepeth, No.

10-565, 2012 WL 1292493, at *13 (E.D. Cal. Apr. 16, 2012); see

also Rabaia v. New Jersey, No. 15-4809 2019 WL 699954, at *5

(D.N.J. Feb. 20, 2019) (holding that a petitioner could not

demonstrate the state court’s adjudication of his claim was

contrary to or an unreasonable application of federal precedent

where the United States Supreme Court had never ruled on the

issue); Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

However, even if Officer Vai’s testimony regarding AFIS could

2 It appears this claim raised by Petitioner is unexhausted

because it was not presented on direct appeal or during

Petitioner’s PCR proceedings. See generally ECF Nos. 10-17. To

properly exhaust a claim for habeas review, a petitioner is

required to invoke “a complete round of the State’s established

appellate review process.” O’Sullivan v. Boerckel, 526 U.S.

838, 845 (1999). However, to the extent that a petitioner’s

constitutional claims are unexhausted or procedurally defaulted,

a court can nevertheless deny them on the merits under 28 U.S.C.

§ 2254(b)(2). See Taylor v. Horn, 504 F.3d 416, 427 (3d Cir.

2007); see also Bronshtein v. Horn, 404 F.3d 7000, 728 (3d Cir.

2005).

be construed as violating Petitioner’s rights under the

Confrontation Clause, this alleged violation is still subject to

harmless error analysis. See Fry, 551 U.S. at 116. Here,

Petitioner has not demonstrated how his inability to confront

“whoever had supplied” Officer Vai with the information from AFIS

had a substantial and injurious effect or influence in determining

the jury’s verdict. Officer Vai’s testimony was that he sent

Petitioner’s fingerprints “to AFIS” and the results “came back not

sufficient.” See ECF No. 12, at 22. This information was not

detrimental or unfavorable to Petitioner’s case. The information

only indicated that the fingerprints located at the crime scene

were insufficient for comparison.

Moreover, as the Appellate Division stated in their decision

on direct appeal, “the critical evidence directly implicating

defendant in the victim’s murder was the testimony from the other

experts who personally conducted the analysis of defendant's DNA

and palm prints and who individually testified at trial.” Nevius,

2012 WL 2361516, at *13. It was this combination of expert proofs

which “placed defendant in the victim's apartment though he denied

ever being there, and placed defendant in possession of one of the

murder ‘weapons’—the T-shirt.” Nevius, 2012 WL 2361516, at *13.

Thus, Petitioner has not demonstrated that his inability to

confront “whoever had supplied” Officer Vai with the information

from AFIS had a substantial and injurious effect or influence in

determining the jury’s verdict. Petitioner is not entitled to

relief on this claim.

ii. FBI Laboratory Report

Petitioner argues that his rights under the Confrontation

Clause were also violated when the State did not present the

testimony of Ms. Hutchins, but only the testimony of her

supervisor, Ms. Wanko. See ECF No. 1-1, at 28-33. The gravamen

of Petitioner’s argument is that he should have been provided the

opportunity to question Ms. Hutchins who initially worked on the

fingerprint report because “Wanko admits she did not physically

prepare the report admitted against petitioner but only signed it

after Hutchins prepared it.” See id. at 31 (emphasis in original).

Petitioner first raised this claim to the PCR court. See ECF

No. 9-1, at 121-123 (Jan 24, 2015). In support of his argument

that Ms. Wanko did not physically prepare the report but merely

signed it, Petitioner relied on Ms. Wanko’s testimony at the trial

of his co-defendant. See id. at 122. In denying Petitioner’s

claim, the PCR court found that Petitioner’s Sixth Amendment rights

had not been violated because Ms. Wanko had indeed participated in

the fingerprint analysis and had testified at trial based upon her

own conclusions. See id. Moreover, the PCR court noted that it

was Ms. Wanko’s report that was admitted at trial and that Ms.

Wanko had a “real and direct involvement” with the findings. See

id. The PCR court stated that Ms. Wanko did not engage in the

kind of “surrogate testimony” that the United States Supreme Court

had cautioned against. See id.

Here, the state court’s adjudication of this claim was not

contrary to, or an unreasonable application of clearly established

federal law. The United States Supreme Court has held that “the

Confrontation Clause requires the authentication of testimonial

evidence by a person who certified the evidence, personally

performed the work to produce the evidence, or observed the

performance of such work.” Stevens v. Warren, No. CV 13-2831,

2017 WL 5889811, at *7 (D.N.J. Nov. 28, 2017) (citing Bullcoming

v. New Mexico, 564 U.S. 647, 657 (2011)). Ms. Wanko testified

that she conducted her own independent analysis of the prints

submitted to the FBI laboratory and arrived at her own opinion as

to whether the prints matched. See ECF No. 8-3, at 9-13. The

following portion of Ms. Wanko’s testimony at co-defendant

Boston’s trial, which Petitioner referenced, highlights this

point:

PROSECUTOR: Ms. Wanko, do you remember the

name of the analyst who initially worked on

this comparison?

MS. WANKO: Yes, I do.

PROSECUTOR: What was her name?

MS. WANKO: Her name was Laura Hutchens.

PROSECUTOR: Now, when Ms. Hutchens made her

findings, did you merely accept her findings,

and put your name on the report?

MS. WANKO: No. I thoroughly check all of her

work.

PROSECUTOR: Okay. And, how do you do that?

MS. WANKO: I go step by step behind her with

-- through a separate analysis, and

comparison, and --

PROSECUTOR: So, do you actually do the same

comparison that she would have done?

MS. WANKO: Yes, I do.

PROSECUTOR: And, is that called verification?

MS. WANKO: Actually, verification comes as a

last step.

PROSECUTOR: I’ll show you what’s been marked

S67 for identification, and ask you if you can

identify that copy?

MS. WANKO: Yes. This is a copy of the --

PROSECUTOR: Well, you can’t show it to the

jury.

MS. WANKO: Right. This is a copy of the case

notes, which were prepared by Laura Hutchens.

PROSECUTOR: And, does it indicate whether

there was any verification of her work done,

and by whom?

MS. WANKO: Yes.

PROSECUTOR: What does it say?

MS. WANKO: She, in her case notes, she

identified the palm print, which we had

labeled Q1, with the left palm print of Tom

Nevius. I again compared it, and identified

it, and then we had a third specialist look at

it, and do a separate comparison, and separate

analysis, and to verify the identification.

PROSECUTOR: Okay. So, not only did [Ms.

Hutchins] compare it favorably, but you

reviewed it and compared the latent with Mr.

Nevius’ palm print, and a third analyst

confirmed what your opinion was, and Laura

Hutchen’s opinion; is that correct?

MS. WANKO: Yes.

ECF No. 8-20, at 37-38.

As the record demonstrates and the PCR court determined, Ms.

Wanko’s testimony does not fall within the type of testimony

cautioned against by the Supreme Court where an analyst merely

presents the report of another. See Bullcoming, 564 U.S. at 662.

Here, there is no question that Ms. Wanko’s expert opinion was

informed by her own independent analysis. Accordingly, the state

courts’ determination that Petitioner’s rights under the

Confrontation Clause were not violated was not contrary to, or an

unreasonable application of clearly established federal law.

Petitioner is not entitled to relief on this claim.

E. Ineffective Assistance of Appellate Counsel

In his fifth ground for relief, Petitioner argues that his

appellate counsel was ineffective for failing to adequately

investigate his case and for failing to litigate issues concerning

withheld evidence, perjured testimony, and confrontation

violations. See ECF No. 1-1, at 33. Petitioner states that as a

result of appellate counsel’s “many failures,” Petitioner was

deprived of a fair direct review. See id. at 37.

Petitioner raised this argument of ineffective assistance of

appellate counsel during his PCR proceedings. See ECF Nos. 12-

16. The PCR court denied each of these claims, finding that

Petitioner had not demonstrated the prejudice prong of Strickland.

See ECF No. 8-27. The Appellate Division affirmed the PCR court’s

decision. See Nevius, 2017 WL 588186, at *2-4.

The Sixth Amendment of the United States Constitution

provides: “[i]n all criminal prosecutions, the accused shall enjoy

the right ... to have the Assistance of Counsel for his defense.”

U.S. Const. amend. VI. The Supreme Court has recognized that “the

right to counsel is the right to the effective assistance of

counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984)

(quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). A

showing of ineffective assistance of counsel requires two

components to succeed. Id. at 687. The two requisite proofs are as

follows: (1) a defendant must show that counsel’s performance was

deficient; and (2) the defendant must show prejudice. Id.

When a convicted defendant complains of deficient

performance, the defendant’s burden of proof is to show that the

conduct of counsel fell below an objective standard of

reasonableness. Id. at 688. Hence, “[j]udicial scrutiny of

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

combat the natural tendency for a reviewing court to speculate

whether a different strategy at trial may have been more effective,

the Supreme Court has “adopted the rule of contemporary assessment

of counsel’s conduct.” Maryland v. Kulbicki, 136 S. Ct. 2, 4 (2015)

(quoting Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)). As to

proving prejudice under Strickland, “actual ineffectiveness claims

alleging a deficiency in attorney performance are subject to a

general requirement that the defendant affirmatively prove

prejudice.” 466 U.S. at 693. To succeed on this proof, a defendant

must show “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.” Hinton v. Alabama, 134 S. Ct. 1081, 1088 (2014)

(quoting Padilla v. Kentucky, 559 U.S. 356, 366 (2010)). A

reasonable probability is a probability which sufficiently

undermines confidence in the outcome of the trial. Strickland, 466

U.S. at 694.

Generally, appellate counsel has no obligation to raise every

claim on direct appeal. See Smith v. Robbins, 528 U.S. 259, 288

(2000); United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999).

The decision of which issues to raise on appeal is a strategic

choice. See Smith, 528 U.S. at 288 (citing Jones v. Barnes, 463

U.S. 745 (1983)). The chief component of effective appellate

advocacy is the winnowing out of weaker claims in favor of those

with a greater chance of success. See Jones, 463 U.S. at 753.

“Declining to raise a claim on appeal, therefore, is not deficient

performance unless that claim was plainly stronger than those

actually presented to the appellate court.” Davila v. Davis, 137

S. Ct. 2058, 2067 (2017).

Here, the state courts’ adjudication of Petitioner’s

ineffective assistance of appellate counsel claims was not

contrary to, or an unreasonable application of, clearly

established federal law. Petitioner has not demonstrated that he

was prejudiced by appellate counsel’s failure to raise the claims

of Brady violations, perjured testimony, or Confrontation Clause

infringements. Nor has Petitioner demonstrated that these claims

were plainly stronger than those that were raised on appeal. As

discussed more fully above, Petitioner has not shown that any Brady

violations occurred, that any of the witnesses perjured

themselves, or that his rights under the Confrontation Clause were

violated. Given the insufficient merit of these claims, it cannot

be said that these issues were plainly stronger than the ones

appellate counsel did raise on appeal. See Davila, 137 S. Ct. at

2067. Accordingly, Petitioner is not entitled to relief on these

claims.

IV. CERTIFICATE OF APPEALABILITY

The AEDPA provides that an appeal may not be taken to the

court of appeals from a final order in a § 2254 proceeding unless

a judge issues a certificate of appealability on the ground that

“the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). This Court will

deny a certificate of appealability because jurists of reason would

not find it debatable that dismissal of the Petition is correct.

V. CONCLUSION

For the above reasons, the § 2254 habeas petition is denied,

and a certificate of appealability shall not issue. An appropriate

Order follows.

Dated: December 11, 2019 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.