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

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MELANIE MCGUIRE, :

: Civil Action No. 18-3411 (MAS)

Petitioner, :

v. : OPINION

THE ATTORNEY GENERAL OF :

THE STATE OF NEW JERSEY, etal., :

Respondents. :

SHIPP, District Judge

Petitioner, Melanie McGuire (“Petitioner”). filed an Amended Petition for Writ of Habeas

Corpus under 28 U.S.C. § 2254. (Am. Pet.. ECF No. 3.) Respondents, the Attorney General of

the State of New Jersey and Sarah Davis. filed an Answer. (Answer. ECF No. 7.) For the reasons

stated herein, the Amended Petition is DENIED and a certificate of appealability shall not issue.

1. BACKGROUND

A. The Underlying State Court Proceeding

The New Jersey Superior Court. Appellate Division, in its opinion on Petitioner's direct

appeal. succinctly set forth the facts underlying Petitioner's conviction as follows:

Defendant and William “Bill” McGuire were married in 1999. They

lived with their two boys in an apartment in Woodbridge. Bill

worked as a computer program analyst for a college in Newark.

Defendant worked as a nurse for a medical practice in Morristown.

On April 28, 2004, they closed on the purchase of the first home

they would own. They then returned to their Woodbridge

apartment, and Bill called the gas company at 5:37 p.m. to transfer

their account to the new house. At 5:44 p.m. and 5:59 p.m., he called

two good friends to tell them happily he had completed the purchase

of his new house.

Later that evening, Bill did not return a call from the seller of the

house, as he had done promptly on prior occasions. There is no

evidence that Bill ever spoke to anyone again after 6:10 p.m. on

April 28, 2004, other than perhaps defendant. Bill's silence was

unusual because he was normally very active on his telephones and

Blackberry, both socially and for work.

On three dates from May 5 to May 16, 2004, Bill’s body was found

in the waters near the Chesapeake Bay Bridge-Tunnel in Virginia.

The body had been cut into three sections, drained of blood, wrapped

in garbage bags, and packed into three matching suitcases. The

medical examiner in Virginia found two bullets in the torso, and

separate entrance and exit bullet wounds to the head and the chest.

Also found in one of the suitcases was a blanket with markings from

a hospital supply company.

Four weeks after Bill disappeared, the police notified defendant that

her husband’s body had been found and identified. In October 2004,

New Jersey authorities took over jurisdiction of the murder

investigation from Virginia. In June 2005, defendant was arrested

and charged with Bill's murder.

(App. Div. Direct Appeal Op. 2-3, ECF No. 9-8.)

In October 2005, a New Jersey grand jury indicted Petitioner on the following charges:

first-degree murder. in violation of N.J. Stat. Ann. § 2C:11-3: second-degree possession of a

weapon for an unlawful purpose. in violation of N.J. Stat. Ann. § 2C:39-4a; second-degree

desecration of human remains, in violation of N.J. Stat. Ann. § 2C:22-1: and third-degree perjury.

in violation of N.J. Stat. Ann. § 2C:28-1. (/d, at 4.) In October 2006. a second indictment was

issued which charged Petitioner with two counts of third-degree hindering prosecution, in violation

oF N.J. Stat. Ann. $§ 2C:29-3(b)(4), 2C:2-6: fourth-degree tampering with or fabricating physical

evidence, in violation of N.J. Stat. Ann. § 2C:28-6(2): fourth-degree making of a false report to

law enforcement, in violation of N.J. Stat. Ann. § 2C:28-4a: and four counts of third-degree

possession of a controlled dangerous substance, in violation of N.J, Stat. Ann. § 2C:35-10a(1).

he

(Indictment *6—13, ECF No. 9-2.)' The two indictments were consolidated for trial purposes.

(App. Div. Direct Appeal Op. 4.)

The case proceeded to a jury trial where the prosecution called 64 witnesses, Petitioner

called 16 witnesses, and the Court qualified a total of 21 expert witnesses. (/d.) After 23 days of

trial and three days of deliberation, the jury entered a guilty verdict on all four charges of the first

indictment and acquitted Petitioner of all the charges in the second indictment. (/d. at 4-5.) The

court sentenced Petitioner to life in prison on the murder charge, which was merged with the

weapons offense for sentencing purposes, subject to the provisions of New Jersey's No Early

Release Act, N.J. Stat. Ann. § 2€:43-7.2. (/d. at 5.) The court also sentenced Petitioner to a

concurrent ten-year prison term on the desecration of human remains charge and a consecutive

five-year prison term on the perjury charge. (/e.}

The Appellate Division affirmed Petitioner's convictions in a detailed 89-page decision.

(See generally id.) Petitioner thereafter filed a petition for certification to the New Jersey Supreme

Court, which was denied. (N.J. Sup. Ct. Order, Sept. 22, 2011, ECF No. 9-12.)

Following her direct appeal. Petitioner filed a petition for post-conviction relief (“PCR™)

in the Superior Court. (PCR Pet., ECF No. 9-13.) The PCR petition alleged that Petitioner

received ineffective assistance of counsel in violation of the Sixth Amendment. (See id. § 10(a).)

Ina written decision tssued following oral argument on the PCR petition. the Superior Court denied

relief. (Law Div. Op. 24, ECF No. 9-14.) The Appellate Division affirmed that decision, (App.

Div. PCR Op., Aug. 7, 2017, ECF No. 9-18). and the New Jersey Supreme Court denied

certification, (N.J. Sup. Ct. PCR Order. Jan. 29. 2018. ECF No. 9-22).

' Page numbers proceeded by an asterisk refer to the page number on the ECF header.

B. Petition for Writ of Habeas Corpus

Petitioner filed the instant action on March 9, 2018. (Pet. 2. ECF No. |.} She later filed an

Amended Petition on April 30, 2018. (Am. Pet. *I.) The Amended Petition raises five grounds

for relief. (/d. at *14—22.) In Ground One, Petitioner claims that jury taint deprived her of a fair

trial. (fd. at *14.) In Ground Two, Petitioner asserts various incidents of prosecutorial misconduct.

(/d. at *15.) In Ground Three, Petitioner challenges three evidentiary rulings made by the trial

court. (/d. at *17.) In Ground Four. Petitioner raises several ineffective assistance of counsel

claims related to her counsel's apparent failure to properly investigate certain issues. (/d. at *18—

19.) And, in Ground Five, Petitioner asserts that her right to effective assistance of counsel was

violated as a result of the retainer agreement with her attorney. “in which counsel agreed to pay

for any expert witnesses[.]" (/d. at *20.) Petitioner argues that this provision created a conflict

between her and her counsel because he “had a financial interest in saving money™ by not hiring

expert witnesses. (/¢/.)

Respondents filed an answer in which they argue that Petitioner has failed to state a claim

for habeas relief. (Answer 7-8.) Petitioner thereafter filed a reply. (Reply. ECF No. 8.) The

matter is now fully briefed and ripe for disposition.

If. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), “a district

court shall entertain an application for a writ of habeas corpus in behalf of a person in custody

pursuant to the judgment of a State court only on the ground that [sJhe is in custody in violation of

the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). When a claim has

been adjudicated on the merits in state court proceedings. a writ of habeas corpus shall not issue

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 facts in light of the evidence presented in the State

court proceeding.

28 U.S.C. § 2254(d); see also Parker vy. Matthews, 567 U.S. 37, 40 (2012) (citing § 2254(d));

Conover y. Main, 601 F. App’x 112, 114 (3d Cir. 2015) (citing § 2254(d)). With respect to

§ 2254(d)(1), “clearly established Federa! law . . . includes only the holdings, as opposed to the

dicta, of [the Supreme Court’s] decisions[,]” as of the time of the relevant state-court decision.

White v. Woodall, 572 U.S. 415, 419 (2014) (internal quotation marks omitted) (quoting Howes v.

Fields, 565 U.S. 499, 505 (2012)). As for § 2254(d)(2), a state court decision is based on an

unreasonable determination of the facts only if the state court's factual findings are objectively

unreasonable in light of the evidence presented in the state-court proceeding. Miller—El v.

Cockrell, 537 U.S. 322, 340 (2003). Furthermore. federal courts must follow a highly deferential

standard when evaluating. and thus give the benefit of the doubt to. state court decisions. See

Felkner v. Jackson, 562 U.S. 594, 598 (2011): Eley v. Erickson, 712 F.3d 837, 845 (3d Cir. 2013).

ill. DISCUSSION

A. Ground One — Jury Taint

In Ground One, Petitioner claims that “jury taint” deprived her of her right to a fair trial.

(Am. Pet. *14.) Specifically, Petitioner contends that

(1) the jurors were repeatedly exposed to highly inflammatory

media accounts; (2) the trial court did not voir dire the jurors

properly; (3) the trial court failed to investigate evidence that jurors

may have been posting to internet message boards during their

deliberations; and (4) the trial court applied the wrong standard and

burden of proof to the allegations of jury taint.

(/d. at *14.) Petitioner's claims appear to relate to two separate incidents involving jurors that

occurred at trial.

i. Media Accounts of Trial and Voir Dire

Petitioner's first two subclaims appear to relate to correspondence sent to the jury by an

excused juror. Shortly before the conclusion of trial, a juror (“Juror 14°) was excused due to the

flooding of her home. (App. Div. Direct Appeal Op. 74.) After the jury began deliberating. the

court clerk found in the jury room a letter from Juror 14, addressed to the other jurors, that read:

To all —

| cannot believe | am not there to see this through with all of you. |

feel a little disappointed, although | can‘t say I’m not relieved as

well. [had prayed on Sunday for help with the awesome task ahead

of me this week and he sent wind and rain and | was excused.

Careful what you pray for, right?

lam praying for all of you today. that you will have the wisdom to

do what is right.

I have to tell you I spent al! day yesterday reading blogs and

watching closing arguments. It was so tempting to blog back, but |

did not.

Linda — [ am the one w’ hard eves :) and I intrigue the bloggers.

They talk about us, but nothing terrible.

Deb & Rafik — you must feel some relieve [sic] today too. Deb. if

you get a moment (like you won't have all day) call me. [phone

number].

Good luck to you all. You are in my thoughts.

(dd. at 74-75 (alterations in original) (emphasis in original).) After the letter was found. the trial

judge spoke with Juror [4 on the telephone and questioned her about the letter on the record with

counsel present:

The excused juror said that she had left the note on the windshield

of Juror 5°s car. Her purpose was to express support for her fellow

jurors. Regarding the meaning she intended by her advice to “do

what is right,” Juror |4 said she was a religious person who prayed

for help in making the right decision, but she did not know what the

right decision was in this case, She also never discussed her views

about a verdict with the other jurors. Asked what she meant by the

comment about “hard eyes,” Juror 14 said one of the jurors had been

told about an internet blog referring to a juror with hard eyes, and

the jurors had attempted to guess who that Juror was. Juror 14 could

recall no other discussions of material from the internet or news

media.

(/d. at 75-76.) The trial judge then conducted a voir dire of each remaining juror about Juror 14°s

note and each juror “said that they did not interpret the note as urging them to reach a verdict either

way, and Juror 14 had not expressed her opinion of the outcome before being excused.” (/c/. at

76.) When pressed, each juror also stated that “the note had not and would not influence their

decision.” (/d.) Some jurors seemed generally aware of media coverage of the trial and a few

jurors were aware of a blogger “who sits in the benches and depicts who everyone is.” (/d. at 77

(internal quotation marks omitted).} All the jurors denied obtaining factual information about the

trial and case from any outside source. (/d.)

The Appellate Division, acknowledging Petitioner's right to an impartial jury under the

United States and New Jersey Constitutions, determined that the “[t]he evidence developed

through the court's careful voir dire of the jurors affirmatively established that exposure to

extrinsic blogger information had not and would not affect their decision.” (/d. at 78, 80.) Indeed.

the Appellate Division observed that:

There was also no evidence that any juror was personally active on

the internet regarding the case while serving as a juror. The judge

questioned the jurors thoroughly and determined that the

information concerning the internet postings was passed on to the

jury second-hand. Each of the jurors denied accessing the internet

personally; each denied reading any blogs or message boards. The

judge observed the jurors’ responses and demeanor. and he accepted

their credibility. Furthermore. the jurors” assurances were implicitly

confirmed by Juror [4's note.

(id. at 82-83.) The Appellate Division explained that Juror 14's letter was merely “an innocuous

expression of goodbye and good luck.” (/e, at 81.)

“The Due Process Clause of the Fourteenth Amendment guarantees state criminal

defendants the right to a trial by an impartial finder of fact.” Barry v. Bergen Cnty. Prob. Dep't.

128 F.3d 152. 163 (3d Cir. 1997) (citing Morgan v. Hlinois, 504 U.S. 719, 726 (1992) and Irvin v,

Dowd, 366 U.S. 717, 721-22 (1961)). Inherent within this constitutional protection is the right to

be tried by a jury that is free from outside influence. Sheppard v. Maxwell, 384 U.S. 333. 362-

363 (1966) (“Due process requires that the accused receive a trial by an impartial jury free from

outside influences.”). Indeed, the Supreme Court in Sheppard explained:

Given the pervasiveness of modern communications and the

difficulty of effacing prejudicial publicity from the minds of the

jurors, the trial courts must take strong measures to ensure that the

balance is never weighed against the accused. And appellate

tribunals have the duty to make an independent evaluation of the

circumstances. Of course, there is nothing that proscribes the press

from reporting events that transpire in the courtroom. .. . If publicity

during the proceedings threatens the fairness of the trial, a new trial

should be ordered. But we must remember that reversals are but

palliatives: the cure lies in those remedial measures that will prevent

the prejudice at its inception. The courts must take such steps by

rule and regulation that will protect their processes from prejudicial

outside interferences.

fel.

In Remmer v. United States, the Supreme Court held that “[i]n a criminal case. any private

communication. contact, or tampering directly or indirectly. with a juror during a trial about the

matter pending before the jury is. for obvious reasons, deemed presumptively prejudicial[.]” 347

U.S. 227, 229 (1954). The presumption of prejudice, however. may be rebutted by the

Government's showing. after notice to defendant and a hearing. “that such contact with the juror

was harmless to the defendant.” /d. Moreover. “the presumption of prejudice [may be] effectivels

rebutted by a juror’s credible profession of impartiality[.]” United States v. Smith, 319 F. Supp.

2d 527, 533 (E.D. Pa. 2004). Remmer’s presumption of prejudice applies only “in cases involving

a ‘direct communication [about the matter pending before the jury] between a juror and a third

party during deliberations.” Perez v. D‘Hlio, No. 16-4767, 2019 WL 3943012, at *11 (D.N.J. Aug.

20, 2019) (alteration in original) (quoting United States v. Lloyd, 269 F.3d 228, 238-39 (3d Cir.

2001)).

Assuming that Juror 14°s note constituted a direct communication between the jury and a

third party, the Appellate Division’s decision was neither contrary to. nor an unreasonable

application of this Supreme Court precedent. The trial court conducted, to the extent allowable, a

detailed voir dire of the jury to determine whether Juror 14°s note had any effect on their

deliberations. Each juror indicated that the letter would have no influence on their decision and

that they did not read the letter as urging them to reach a certain outcome. Moreover. Petitioner

has failed to allege any actual prejudice that occurred as a result of the jurors’ receipt of the note

from Juror 14. For these reasons, relief on this claim is denied.

ii. Failure to Investigate Juror Activity on Message Boards

Similarly related to Petitioner's right to a trial by an impartial jury. Petitioner alleges that

the trial court “failed to investigate evidence that jurors may have been posting to internet message

boards during their deliberations[.]” (Am. Pet. *14.) The Court discerns from the Appellate

Division's decision that this claim retates to an issue that arose after trial had concluded. (App.

Div, Direct Appeal Op. 83-84.) It appears that following trial. Petitioner's counsel “discovered

blog entries suggesting that a member of the jury had posted a message [on the Court TV message

boards] during the trial.” (4) The trial court determined that it was unnecessary to re-interview

the jurors about these postings. (/ at 84.) Thereafter, counsel contacted Court TV for assistance

in locating the post allegedly made by a jury member. (/c. at 85.) Court TV conducted a search

and found no record of any posting potentially made by a jury member. (J)

The Appellate Division determined that Petitioner had not presented evidence that there is

a “realistic possibility” that her right to a fair trial was prejudiced. (/d.) The Appellate Division

held:

[T]he blogger evidence amounted to double hearsay. The messages

we have quoted . . . suggest little likelihood that a member of the

jury wrote the message referenced by other bloggers but never

actually discovered. Weighed against that information were the

statements of jurors that they had no direct exposure to internet

blogs.

Our review of the record discloses neither legal error in the

procedures or standards applied by the trial court. nor abuse of

discretion in its decision that exposure of jurors to extraneous

information did not warrant a new trial.

(/d.)

Generally, “[a] criminal defendant is entitled to a determination of his or her guilt by an

unbiased jury based solely upon evidence properly admitted against him or her in court.” Gov't of

Hiv. Dowling, 814 F.2d 134, 138 (3d Cir. 1987) (citing drvin v. Dowd, 366 U.S, 717, 722-23

(1961)). Still. the Supreme Court has recognized that “it ts virtually impossible to shield jurors

from every contact or influence that might theoretically affect their vote.” Smiith v. Phillips. 435

U.S. 209, 257 (1982). Therefore, the Supreme Court has instructed that “[d]ue process means a

jury capable and willing to decide the case solely on the evidence before it. and a trial judge ever

watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when

they happen.” Such determinations are made at voir dire hearings. Aé Based on this Supreme

Court precedent, the Third Circuit has held that “[w]hen a party contends that members of the jury

have been prejudiced by exposure to publicity. courts must examine three prongs: (1) whether the

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publicity material is prejudicial; (2) whether jurors were exposed to it; and (3) whether the

impartiality of any exposed juror has been compromised.” Pierce v. Bartkowski, 11-5265, 2018

WL 4489679, at *10 (D.N.J. Sept. 19, 2018) (citing Barry, 128 F.3d at 163).

The Court finds that Petitioner has presented no reason to disturb the decision of the

Appellate Division. The trial court considered the evidence presented by counsel about the

message board postings and determined it was information that would be extraneous to the jury in

rendering their deciston. Having already conducted voir dire of the jurors regarding the letter from

Juror 14, the trial court was satisfied that the jury was not exposed to internet postings about the

trial. Petitioner has not specifically identified that the impartiality of any juror was compromised

by the alleged postings. Asa result, relief on this claim is denied.

B. Ground Two — Prosecutorial Misconduct

In Ground Two, Petitioner contends that her due process right to a fair trial was violated

by several instances of alleged prosecutorial misconduct. (Am. Pet. *15.) Petitioner specifically

alleges that the prosecutor engaged in misconduct by: (1) referring to hearsay testimony from

George Lowery that the trial court had excluded: (2) making an “unsupported inference” that

Petitioner's handgun, which was never recovered by law enforcement, was the murder weapon;

(3) eliciting “inflammatory” testimony about the condition of the victim's body when it was

recovered; and (4) eliciting allegedly prejudicial testimony from Dr. Miller about an affair he was

having with Petitioner. (/d.} Petitioner also generally alleges that the prosecutor wrongfully

speculated in her closing statement. (/d.) Each of these claims were raised on Petitioner's direct

appeal.

For a prosecutorial misconduct claim to warrant federal habeas relief, the prosecutor's

comments must have “so infected the trial with unfairness as to make the resulting conviction a

i]

denial of due process.” Darden v. Wainwright. 477 U.S. 168, 181 (1986) (internal quotation marks

omitted) (quoting Donnelly v. DeChristofore, 416 U.S. 637. 644 (1974)). [I]t is not enough that

the prosecutors’ remarks were undesirable or even universally condemned.” fd. (internal quotation

marks and citation omitted). When a prosecutor's comments raise appropriate considerations

relevant to the criminal case, there is no prosecutorial misconduct. Parker, 567 U.S. at 47-48. In

reviewing a claim of prosecutorial misconduct on a petition for habeas relief. “Supreme Court

precedent counsels that the reviewing court must examine the prosecutor's offensive actions in

context and in light of the entire trial, assessing the severity of the conduct. the effect of the curative

instructions, and the quantum of evidence against the defendant.” \foore v. Morton, 255 F.3d 95.

107 (3d Cir. 2001).

i. George Lowery Testimony

Petitioner's first prosecutorial misconduct claim relates to the prosecutor's use of hearsay

testimony from witness George Lowery in her closing statement. (Am. Pet. *15.) Mr. Lowery,

who worked with the victim before his death, testified that he had a discussion with the victim

about purchasing a firearm around three months before the victim disappeared. (Apr. 9, 2007

Trans. 168:16-169:3. ECF No. 9-71.) During closing arguments. defense counsel argued:

And lastly. you know, in April of 2004. Bill McGuire was talking

about the purchase ofa gun, undisputed. Well, the State will dispute

it, but a co-worker of his. George Lowery came in here and said he

told them, he told law enforcement October of 2005 that Bill

McGuire and he had a conversation about the purchase of a gun, and

they never reached out to him again. ... They wanted nothing to do

with this guy, because that also corroborates everything Melanie

McGuire has been saying on these tapes they have been listening to

about Bill wanted [sic] a gun and he couldn't get one because he was

a convicted felon and she had to buy one for him.

(Apr. 16. 2007 Trans. 81:12-25, ECF No. 9-77.)

In response. the State argued during closing arguments:

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You heard from Mr. Lowery on the defense case who told you, and

this is in the transcript, he had a conversation with Bill about

purchasing a gun, but there is no evidence before you or during this

trial that Bill wanted to purchase a gun.

Look at the question and look how it’s worded . . . | wouldn't put

much stance [sic] on what Mr. Lowery said; but even so, what he

said was there was a conversation with Bill McGuire about

purchasing a gun. Not, not that Bill McGuire wanted to purchase a

gun. and that’s a very. very distinct and important difference.

There is no evidence before you except for what the defendant says

herself as an excuse that Bill McGuire wanted that gun.

(Apr. 17, 2007 Trans. 42:8-43:13, ECF No. 9-78 (emphasis added).) Defense counsel did not

object to the prosecutor's statement.

On direct appeal. Petitioner argued that the prosecutor's description of Mr. Lowery’s

testimony in her closing statement constituted prosecutorial misconduct: the Appellate Division

disagreed. The Appellate Division held that defense counsel's summation had “misrepresented

the time when Lowery’s conversation with Bill had occurred, and his remarks exaggerated that

Lowery’s testimony corroborated ‘everything’ defendant had said about a gun.” (App. Div. Direct

Appeal Op. 65.) The Appellate Division also found. however, that defense counsel did not

“misrepresent the actual content of Lowery’s testimony” and that the prosecutor's response,

therefore “exceeded the scope of inaccuracies in defense counsel's summation.” (dd. at 65-66.)

Nevertheless, the Appellate Division held that the prosecutor's remarks were “harmless” when

viewed in the context of the entire summation and all the evidence presented at trial, (/d. at 66-

67.) Thus. the Appellate Division found that the challenged remarks did not “raise “a reasonable

doubt as to whether the error led the jury to a result that it otherwise might not have reached."~

(id. at 67 (quoting State v. Daniels, 86 A.2d 808. 821 (N.J. 2004)).

13

Upon this Court's review of the prosecutor’s closing remarks, within the context of the

entire trial, the Court does not find that they denied Petitioner a fair trial. The prosecutor's remarks

responded to defense counsel's misrepresentations about Mr. Lowery’s testimony and aimed to

clarify the misstatements in defense counsel's summation. Even if the prosecutor's comments did

exceed “the scope of inaccuracies in defense counsel's summation,” when placed in context of the

entire trial, the prosecutor's comments did not “so infect[] the trial with unfairness as to make the

resulting conviction a denial of due process.” (App. Div. Direct Appeal Op. 66-67): Darden. 477

U.S. at 181 (internal quotation marks and citation omitted); see also Moore. 253 F.3d at 105, As

the Appellate Division stated, “the prosecutor's lengthy summation thoroughly and meticulously

covered the mass of circumstantial and forensic evidence” against Petitioner, (App. Div. Direct

Appeal Op. 66-67.) Furthermore, whether the victim wanted to purchase a firearm “did not refute

evidence that defendant had used the gun to kill him.” (/d. at 67.) Thus, this Court does not find

that the state courts” adjudication of this claim was contrary to, or an unreasonable application of,

clearly established federal law. Petitioner is not entitled to habeas relief on this claim.

ii. Inference Regarding Handgun

Petitioner next claims that the prosecutor engaged in misconduct by “infer[ing] that the

handgun purchased by petitioner was the murder weapon[,|” even though the firearm purchased

by Petitioner was never recovered. (Am. Pet. *15.) At trial, the State introduced testimony that

Petitioner had purchased a Taurus .38 Special handgun and a box of .38 Special wad cutter bullets

two days before her husband's disappearance. (Mar. 6. 2007 Trans, I44:13—146:18. ECF No. 9-

51.) The State also introduced the testimony of two ballistics experts who testified that the bullets

recovered from the victim's body were .38 Special wad cutter bullets. (Mar. 7. 2007 Trans. 94:2-

101:18. 178:24—-186:6. ECF No. 9-52.) The ballistics experts testified that the bullets had been

14

fired from a single gun with six lands and grooves with a right twist. (/d. at 95:14-97:13, [81:13-

14.) After using an F.B.I. computer database to compile a list of manufacturers that made guns

with those rifling characteristics, the ballistics experts discovered that Taurus — the manufacturer

of the gun Petitioner had purchased — was one of the possible manufacturers of the murder weapon.

(dd. at 98:4—-13, 183:4-19.)

In her opening statement, the prosecutor stated that “[t]he evidence will show that on April 26,

2004... the defendant purchased such a gun of a make and model absolutely consistent with what

killed her husband[.]” (Mar. 5, 2007 Trans. 14:9-13. ECF No. 9-30.) The prosecutor reiterated this

point again during her summation: “[t]he bullets that were removed from William McGuire's cut-up

remains are consistent with the gun and with the bullets that [Petitioner} purchased earlier” (Apr. 17,

2007 Trans. 10:1-3.) On direct appeal. the Appellate Division held in dicta that "[w]e reject without

discussion defendant's argument that the prosecutor's opening statement was prejudicial because

it incorrectly told the jury ballistics evidence would prove that the “make and model" of the murder

weapon was the same as the gun purchased by defendant.” (App. Div. Direct Appeal Op. 74 n.8.)

Here, the prosecutor's remarks during her opening and closing statements were fair comment

on the evidence. See United States v, Ellison, 804 F. App’x 153. 157 (3d Cir. 2020) (holding that

fair comment on the evidence adduced at trial"™ is not prosecutorial misconduct (quoting United

States v. Reilly, 33 F.3d 1396, 1421 (3d Cir. 1994))). The State’s ballistics experts testified that

the bullets recovered from the victim's body were .38 caliber wad-cutter bullets and that, based on

the rifling characteristics, the bullets could have been fired from guns produced by six

manufacturers, including Taurus. (Mar. 7. 2007 Trans. 94:25-98:13. 180:18-183:19.) Prior trial

testimony established that Petitioner had purchased .38 wad-cutter bullets and a Taurus .38

handgun two days before the victim’s disappearance. (Mar. 6, 2007 Trans. 144:13-146:18.) Thus,

the prosecutor's statement that the Taurus firearm Petitioner purchased was “consistent” with the

15

type of firearm that killed Petitioner's husband was congruent with the testimony adduced at trial.

The prosecutor's comments simply raised appropriate considerations relevant to the criminal case.

See Parker, 567 U.S, at 47-48. The state courts’ adjudication of this claim was, therefore, not

contrary to, or an unreasonable application of, clearly established federal law. Habeas relief on

this claim is denied.

iii. Condition of Victim’s Body

Petitioner also asserts that the prosecutor engaged in misconduct when she elicited

“inflammatory testimony as to the condition of the victim's body when it was recovered[.]” (Am.

Pet. *15.) When Petitioner raised this claim in her direct appeal. she more specifically argued that

the State improperly elicited testimony from a witness that the deceased victim's body was so

“bloated” as to be unrecognizable. (Pet'r’s Direct Appeal Br. 43. ECF No. 9-4.} Petitioner argued

that this statement was only used to inflame the jury and that the trial court failed to issue a curative

instruction, (/cd.)

Attrial, the prosecutor called the victim’s friend, John Rice, to testify. (Apr. 4, 2007 Trans.

14:2, ECF No. 9-68.) Mr. Rice stated that after the victim's body had been recovered. the police

released a sketch of the victim to the public. (/c/ at 20:22-21:3.) Mr. Rice then contacted the

police, believing the sketch resembled his friend Bill McGuire. (4d, at 2f:4-22:7.) The police

requested Mr. Rice visit headquarters to view photographs of the victim's body. (fed. at 22:1—7.)

The prosecutor then asked Mr. Rice the following:

[Prosecutor]: And did you look at the photos, sir?

[Mr. Rice]: Yes.

[Prosecutor]: And, sir, did you believe that the photos you looked at

was your friend, Bill?

(Mr. Rice]: They were bloated. No. | did not think.

16

[Prosecutor]: And was your wife with you at the time that you

looked at the photos?

[Mr. Rice]: Yes.

(id. at 22:25-23:7.)

Aside from this brief exchange, no other questioning about the photographs occurred and

defense counsel did not object to the prosecutor's questions. move to strike the witness’ answer,

or ask for a curative instruction. (See id. at 22:22—23:12.) The Appellate Division considered this

claim by Petitioner and rejected it “without further discussion in a written opinion.” (See App.

Div. Direct Appeal Op. 61.)

Here, the record does not support the allegation that the prosecutor intended to elicit

prejudicial testimony from Mr. Rice. Rather, the prosecutor asked only whether Mr. Rice viewed

the photos and thought they depicted his friend Bill McGuire. The prosecutor did not ask the

condition of the body; Mr. Rice offered that testimony spontaneously. In fact. in a later sidebar

with the trial judge, the prosecutor stated, “I didn’t know he was going to say that, Judge.” (Apr.

4. 2007 Trans, 25:2 1-22.)

Moreover, there was already substantial testimony presented to the jury about the condition

of the victim's body. Multiple police officers testified in graphic detail about discovering the

suitcases containing Bill McGuire's body parts. (See generally Mar. 5. 2007 Trans. 141:24-142:1,

170:1-10: Mar. 6, 2007 Trans. 5:8-12, 6:23-7:8, ECF No. 9-51.) Police officer Janine Hall

testified about the discovery of a suitcase on May 5, 2004 which contained two severed legs, “cut

approximately at the knee area.” (Mar. 5, 2007 Trans. 141:24—142:1.) She stated that. at the time,

the legs showed no signs of decomposition or discoloration. (/¢,) Police officer Elizabeth Dutton

testified that on May 2004 another suitcase was discovered. this time containing a man’s

17

severed torso “cut from the belly button up” inside black plastic trash bags. (/d. at 170:1-10.) And

Officer Dutton testified the plastic bags smelled “like decomposing flesh, rotten fish and the actual

sea or bay water.” (Mar. 6, 2007 Trans. 5:8-12.) Officer Dutton also testified that the torso was

severed from the waist down, in various stages of decomposition, with different degrees of

discoloration within the skin, and with body organs visible near the waistline where the torso had

been cut. (/d. at 6:23-7:8.) Given the gruesome nature of this murder and the graphic details

presented to the jury, Mr. Rice's testimony that the victim's body was “bloated” did not “so infect[]

the trial with unfairness as to make the resulting conviction a denial of due process.” Darden. 477

U.S. at 181 (internal quotation marks and citation omitted),

Furthermore. during the jury charge, the trial court instructed the jury to decide the case

based solely upon the evidence and to “weigh the evidence without passion. without prejudice or

sympathy. Simply use your common sense. Any influence caused by these emotions has the

potential to deprive both the State and the defendant of what you promised, a fair and impartial

trial by fair and impartial jurors.” (Apr. 17. 2007 Trans. 155:13-20.) ~[A]bsent extraordinary

circumstances, jurors are presumed to follow the instructions given them by the court.” Glen vy.

iFynder. 743 F.3d 402. 407 (3d Cir. 2014). Here. there are no extraordinary circumstances and no

evidence to suggest the jurors were unable to follow the trial court's instructions. Thus, given the

context of the entire trial, the prosecutor did not engage in prosecutorial misconduct. Habeas relief

on this ground is denied.

iv. Affair with Dr. Miller

Petitioner next alleges that the prosecutor's eliciting of “prejudicial testimony of the details

of petitioner's affair with prosecution witness Dr. Miller” constituted prosecutorial misconduct.

18

(Am, Pet. *15.} On direct appeal, the Appellate Division determined that the prosecutor's

questioning on this topic did not constitute misconduct, explaining:

The trial transcript shows . . . that the prosecutor asked a few

questions to establish the nature of the extra-marital relationship as

relevant to defendant's motive to kill her husband. .. . Defense

counsel did not object to the questions about the extra-marital affair,

and the defense itself later pursued cross-examination testimony

from Miller that he continued to be intimate with defendant after he

had cooperated with the police and agreed to record telephone

conversations with her.

(App. Div. Direct Appeal Op. 58.) The Appellate Division also highlighted that both the

prosecutor and the trial court had reminded the jury that any testimony about the affair had a

limited purpose and that it could be used only to determine Petitioner's motive. (/c. at 58-59.)

The Court will not disturb that decision. The testimony provided by Dr. Miller was relevant

evidence of Petitioner's motive to kill her husband. The eliciting of such testimony, therefore, did

not constitute prosecutorial misconduct because the testimony was relevant to the criminal case.

See Parker, 567 U.S. at 47-48 (holding that there is no prosecutorial misconduct where a

prosecutor's comments raise appropriate considerations relevant to the criminal case).

Accordingly. relief on this claim is denied.

v. Use of Speculation

Petitioner's last claim of prosecutorial misconduct alleges simply “witness speculation and

use Of speculation in closing arguments.” (Am. Pet. *15.) When Petitioner raised this claim on

direct appeal, she more specifically explained that the prosecutor “continually pressed questions

despite sustained objections and prior rulings.” (Pet'r’s Direct Appeal Br. 45.) Petitioner

referenced the prosecutor's repeated attempts to have one witness speculate about what another

witness was thinking, to elicit expert handwriting testimony from a lay witness, and to suggest the

State had facts not in evidence related to the victim's gambling. (//.) Petitioner also asserted that

19

the prosecutor's summation utilized speculation unsupported by the record, such as the Petitioner's

use of a sawesilencer, that Petitioner dismembered the victim in their master bathroom, that

Petitioner stored the victim's body in a refrigerator, and that Petitioner hacked into the victim's

various internet accounts. (/e, at 45-48.)

a. Witness Speculation

Petitioner points to three instances of witness speculation. First. Petitioner argues that the

prosecutor improperly requested a witness speculate about what another witness was thinking. (/d.

at 45.) This allegation appears to arise from the prosecutor's questioning of Detective Sergeant

William Scull about whether another police officer. Ryan Dougherty, agreed that the victim's car

had been found in a certain parking space outside the Flamingo Hotel in Atlantic City, New Jersey.

(/d.; see also Apr. 4, 2007 Trans. 48:4-49:5.) After the prosecutor asked Detective Sergeant Scull

this question, however, defense counsel immediately objected before Detective Sergeant Scull was

able to answer. (Apr. 4, 2007 Trans. 4+9:4—9.)

Second, Petitioner alleges that the prosecutor sought to elicit expert handwriting testimony

from a lay witness after the trial court had prohibited that line of questioning. (Petr’s Direct

Appeal Br. 45.) At trial, the prosecutor asked lay witness Tamar Joffee. ihe office manager at the

Franklin Lakes branch of Weichert Realters, whether she recognized the victim's sister, Cindy

Ligosh’s, handwriting on documents sent to the realty office. (Mar. 27. 2007 Trans. 9:4—5. 10:11-

16:4. ECF No. 9-62.) Before the prosecutor asked the question. the trial court had expressed to

counsel at a side bar its intention to let Ms. Joffee testify as to Ms. Ligosh’s handwriting. so long

as the prosecutor laid the proper foundation for the opinion. (/ at 7:6-24: 7:19-21.) But after

the prosecutor questioned Ms. Joffee about the handwriting. the trial court convened another

sidebar, where it informed the prosecutor they had not. in fact. laid the proper foundation to provide

20

a basis for Ms. Joffee’s testimony. (/d. at 16:6-17:6.) The trial court then instructed the jury to

“disregard the testimony of Ms. Joffee regarding her comparison of the handwriting” as Ms. Joflee

was not qualified to render an opinion as to whose handwriting was on the documents. (/ed. at

18:5—14.)

Finally, Petitioner argues that. despite admonishments from the trial court. the prosecutor

repeatedly asked a witness about facts not in evidence; specifically, whether someone other than

the victim had engaged in gambling which caused the victim to become “a mob murder target.”

(Pet'r’s Direct Appeal Br. 45.) The basis for this claim appears to arise from the prosecutor's

attempt to ascertain whether Jay Salpeter, a private investigator for the defense. knew that

Petitioner's father occasionally traveled to Atlantic City. (Apr. 11,2007 Trans. 31:3-33:18. ECF

No. 9-73.) The prosecutor repeatedly asked the questions in a leading manner, however, and

defense counsel objected each time. (See fd.) The trial court ordered the prosecutor to “ask the

questions in a form that the court deemed appropriate,” which the prosecutor then did. (App. Div.

Direct Appeal Op. 60; see also Apr. 11, 2007 Trans, 34:18-35:11.)

On direct appeal, the Appellate Division found that none of these three incidents rose to

the level of prosecutorial misconduct. (App. Div. Direct Appeal Op. 59-61.) The Appellate

Division held:

Next, defendant complains that the prosecutor improperly elicited

expert handwriting testimony from lay witness Tamar Joffee, the

office manager of the Weichert Realty office in Franklin Lakes.

Alter showing Joffee the handwritten label on the Federal Express

package, the prosecutor asked “is that Cindy Ligosh's handwriting?”

When Joffee said it was not, the court itself initiated a sidebar

conference and eventually ruled that Joffee was not qualified to

provide an opinion about the handwriting. The court struck Joffee's

answer and instructed the jury to disregard it because Joffee had

“freely admitted she's not a handwriting expert.” The court's ruling

and instruction corrected any prejudice from the brief. opinion

testimony. See State v, Manley, 54 NZ 259, 271 (1969) Gury is

21

assumed to have followed the court's limiting instruction).

Moreover, defendant was not convicted of the charges in the second

indictment related to the Federal Express package.

Defendant also complains about the prosecutor's cross-examination

of defense private investigator Jay Salpeter on the subject of

gambling and EZ pass records related to Atlantic City. We have

found no error in the manner or form of cross-examination. The

prosecutor did not seek to elicit evidence that had been ruled

tnadmissible. See State v. Rose, (12 Nu 454, 317(1 988).

Nor did she continue to ask questions after the court ordered the line

of questioning to stop. See State v. Hinds, 278 N.LSuper. 1, 17-18

(App. Div. 1994), reversed on other grounds, 143 N./ 540 (1996).

The trial court in effect ordered the prosecutor not to ask certain

leading questions on cross-examination of Salpeter. despite the

provisions of N.ARE. 611(c} to the contrary, even after the

prosecutor represented that she had a good faith basis for the facts

included in those questions. The prosecutor attempted to ask the

questions in a form that the court deemed appropriate. There was no

prosecutorial misconduct. In fact, the defense received a more

favorable ruling than the rules of evidence and the circumstances

warranted,

We have considered defendant's other claims of prosecutorial

misconduct in the questioning of witnesses and reject them without

further discussion in a written opinion. &. 2:11—3(e)(2).

(fel)

This Court agrees with the Appellate Division that each of Petitioner's allegations of

“witness speculation™ lacks merit. On none of these occasions did the prosecutor disregard the

trial court’s orders, or intentionally seek to solicit speculative testimony. Even if the prosecutor

had gone outside the bounds of proper conduct, the trial court issued a curative instruction after

each of the alleged instances of misconduct or sustained defense counsel's objections to any

improper questions, As stated previously. jurors are generally presumed to follow the instructions

given to them by the court and there is no indication that the jurors did not do so here. Glenn. 743

F.3d at 407. After reviewing the record in context. Petitioner's contention that the prosecutor

of

engaged in misconduct by eliciting speculation from witnesses and disregarding court orders is, as

the Appellate Division found, without merit. Petitioner's claim for relief on this ground is denied.

b, Closing Sunmmation Speculation

Petitioner also alleges the prosecutor relied on improper speculation during her closing

summation as well. (Am. Pet. *15.) On direct appeal. Petitioner argued these speculative

references included: “the absence of trace evidence in [Petitioner's] apartment” which the

prosecutor implied demonstrated Petitioner's “extraordinary efforts to conceal evidence of the

crimes, that drop cloths may have been used to prevent blood or other body tissue from spilling in

the apartment.” that Petitioner “or an accomplice could have used a towel to muffle the sound of

a reciprocating saw when cutting the [victim's] body,” that “ice or refrigeration may have been

used to preserve parts of the body” and that the victim was a “computer technician who would

have known how to erase” the suspicious internet searches discovered on his computer. (App.

Div. Direct Appeal Op. 67, 72.)

As for the prosecutor's remarks about the lack of trace evidence and the possible use of

drop cloths, the Appellate Division found both of these were “reasonable inferences drawn from

the evidence produced at trial.” (/d at 69.) In so ruling, the Appellate Division recounted the

following evidence from trial:

In tts closing argument. the defense had emphasized the absence in

the apartment of trace evidence of blood, tissue, or DNA, the

absence of bullet holes or saw marks, and the absence of testimony

from neighbors about gunshots or the sounds of a power saw. The

defense argued the lack of such evidence showed that the murder

and desecration of the body could not have occurred in the

Woodbridge apartment.

In response, the prosecutor argued the State did not have to prove

specifically where the crimes were committed, but the cutting of the

body and the draining of blood may have occurred in the shower

stall of the master bathroom. Based on testimony by an expert

23

anthropologist about the cuts in the body, the prosecutor argued that

defendant or her accomplice could have positioned the body to avoid

leaving saw marks in the shower stall. The prosecutor also argued

that drop cloths may have been used to avoid spilling blood or tissue

and that the bathroom and the rest of the apartment had been

scrubbed unusually clean and freshly painted by defendant and

helpers, not by the landlord, before the first police search was

conducted in June 2004.

Lesniak had testified he found no trace evidence providing anyone's

DNA in the apartment despite several thorough searches. Another

witness had testified of an unusual smell of bleach and cleanser in

the master bathroom. The prosecutor also made use of testimony by

defense witnesses and others that defendant was an efficient, hard-

working nurse at her place of employment. The prosecutor argued

that the absence of even the McGuire family’s own DNA in the

apartment demonstrated unusual efforts to clean the apartment and

eliminate evidence. . . . Furthermore, the reference to drop cloths

was tied to expert testimony that chips of paint and PVC pipe

material had been found in the suitcases along with Bill's body.

(id. at 68-69.)

This Court agrees with the Appellate Division's adjudication of this claim. The

prosecutor's remarks raised appropriate considerations relevant to Petitioner's criminal case. See

Parker, 567 U.S, at 47-48 (holding that there is no prosecutorial misconduct where a prosecutor's

comments raise appropriate considerations relevant to the criminal case). Defense counsel argued

that no DNA evidence was discovered at the victim and Petitioner's shared apartment. In response.

the prosecution suggested that the apartment may have been scrubbed clean before the police

searched it or that Petitioner used drop cloths when committing the crime. These statements

reflected witness testimony that the apartment smelled like bleach and cleanser. and the testimony

of the State's forensic scientist who stated that chips of paint and PVC pipe material had been

found in the suitcases containing the victim's body. Placing the prosecutor's comments within

proper context, the Court does not find that they “so infected the trial with unfairness as to make

24

the resulting conviction a denial of due process.” Darden, 477 U.S. at 181 (internal quotation

marks and citation omitted).

As for the prosecutor's remark that the sound of a saw may have been muffled by a towel.

the Appellate Division held that this "may have treaded close to the line of permissible inferences”

because there was “no evidential support for that argument[.]” (App. Div. Direct Appeal Op. 69.)

The Appellate Division emphasized, however, that the comment was made just after the prosecutor

recalled that “the polyester fiber evidence found on one of the bullets recovered from [the victim's]

body suggested the killer had used a pillow to muffle the sound of gunfire.” (ée.) The Appellate

Division ultimately held that, when considered in context. the comment about muffling of the

sound of the firearm was “not so egregious that it deprived defendant of a fair trial.” (/d. at 70.)

This Court again agrees with the Appellate Division that. based upon the evidence adduced

at trial, the prosecutor's comments were fair comment on that evidence and were not egregious

enough to deny Petitioner a fair trial. See Darden, 477 U.S. at 181 (the prosecutor's comments

must have “so infected the trial with unfairness as to make the resulting conviction a denial of due

process” (internal quotation marks and citation omitted)). The state courts’ adjudication of this

claim was not contrary to or an unreasonable application of clearly established federal law.

As to the prosecutor's comments about the potential refrigeration of the victim's body and

the suspicious internet searches, the Appellate Division found these comments were indeed

improper speculation. (App. Div. Direct Appeal Op. 70-71.) As the Appellate Division pointed

out, there was no evidence presented at trial that Petitioner “procured quantities of ice near the

time of [the victim's] disappearance” and the medical examiner never testified that the victim's

legs had been “refrigerated or exposed to ice.” (/d. at 70.) Nor was there any evidence presented

that the victim had the “knowledge. skills. or motivation” to delete his internet search history.

25

thereby inferring that he could not have been the individual who conducted the suspicious internet

searches. (/d. at 72.)

In her closing summation, the prosecutor sought to explain why the victim's severed legs

appeared fresh to rebut the defense’s theory that the victim had been dead only one day before his

legs were discovered. (Apr. 17. 2007 Trans. 81:18-82:17.) She stated:

So, the big question is when did the Mesh get in the car. and that's a

good question, and 1 would submit to you that it's not necessarily

true that the victim was cut up all at once, You heard that he was

significantly bled out. Yes, there was blood recovered from his chest

cavity, but what Doctor Gunther testified to what she found and

what you heard about the lack of blood in the suitcases and the bags

supports that it’s very possible, if not likely. that when his legs were

removed he could have been allowed to bleed out until most of the

blood had finished running from him and then the rest of the cutting

could have been done. and | submit to you that wouldn't necessarily

mean it would all have to be done on the same day.

could have cooled the body with ice. There could have been

some refrigeration used, 1 am not going to invite vou to speculate.

We don't know. [. . .] And. again, it’s not a contest where if we don't

know every conceivable answer that the State loses. The burden is

to firmly convince you that she participated in this murder; and in

this case with the mountain of evidence against her and the vers

complex plan executed by a very smart and meticulous woman, |

submit to you, it’s amazing we know as much as we do.

(emphasis added))

The prosecutor also referenced in her closing statement the suspicious internet searches

recovered from Petitioner and the victim's home computer. (/c. at 98:25-99;11.) At trial, State

Police computer expert Jennifer Seymour testified that between April 1. 2004 and April 26. 2004.

there were internet searches on the computer for topics including. but not limited to: “*undetectable

poisons.” ‘state gun laws.” “instant poison.” ‘gun laws in Pennsylvania.” “toxic insulin levels.” ‘fatal

insulin doses.” ‘fatal digoxin doses.” ‘instant undetectable poisons.” “how to commit suicide.” “how

to commit murder. "how to purchase hunting rifles in NJ “pesticide as poison.” [and] ‘insulin as

26

a poison[.]"” (App. Div. Direct Appeal Op. 12; see also Mar. 13, 2007 Trans. 100:3-8, 102:1—

108:8, ECF No. 9-54.) The defense brought in their own computer expert who testified that some

of these suspicious internet searches were conducted around times that websites of interest to the

victim, such as work-related websites, were visited. (Apr. | 1. 2007 Trans. 72:16-92:24.) Thus,

the defense argued that it had been the victim who engaged in the suspicious internet searches.

(Apr. 16, 2007 Trans. 88:16-92:16.) In disputing this theory. the prosecutor during summation

stated, in pertinent part:

The searches were there. How to commit a murder, and it was [the

victim] that was murdered. Common sense tells you it was

defendant that did those searches.

Please, also consider Bill was a computer guy. He was a computer

tech. That’s what he did fora living. and if he was contacting his ex-

wife or doing anything else that was untoward at the computer one

thing to be certain of [the victim] would have known how to erase

it. That's what he did for a living. He would know that things were

cached, not like the rest of us that had no idea, most of us wouldn't

know when you do an internet search that things are saved.

(Apr. 17, 2007 Trans. 98:25-99:11.)

The Appellate Division held that although the prosecutor had overstepped the bounds of

reasonable inference with her remarks about potential refrigeration and suspicious internet

searches. the “brief and isolated” comments. “[v]iewed in the context of the State's entire closing

argument and all the evidence reviewed with the jury. [the comments] did not have the capacity to

influence the jury's verdict.” (App. Div. Direct Appeal Op. 73.) As a result. the Appellate

Division determined Petitioner had not been deprived of a fair trial. This Court agrees. As

stated previously, federal law regarding prosecutorial misconduct requires reviewing courts to

examine the prosecutor's offensive actions in the context of the entire trial to determine whether

those remarks “so infected the trial with unfairness as to make the resulting conviction a denial of

a7

due process.” Darden, 477 U.S. at 18! (internal quotation marks and citation omitted); see also

Moore, 255 F.3d at 105.

Here, the prosecutor's comments did not so infect the proceedings as to render Petitioner's

trial unconstitutionally unfair. In discussing the potential refrigeration of the victim's body. the

prosecutor was responding to defense counsel's argument that the victim's severed legs were not

consistent with someone who had been deceased for several days. (Apr. 16. 2007 Trans. 42:1 □□

43:12.) She fleeting!y remarked that Petitioner could have put the body parts on ice, but quickly

emphasized to the jury that they were not to speculate and that the State simply did not know

whether ice or refrigeration had been used. (Apr. 17, 2007 Trans. 81:18-82:17.) The prosecutor

made another brief and fleeting comment about the victim's ability to clear his search history in

order to rebut defense counsel's theory that the victim had conducted the suspicious internet

searches and not Petitioner. (/e. at 98:25-99:11.) The victim's knowledge or ability to clear his

search history was unknown and did invite speculation. Yet. at no point did defense counsel object

to these comments or request a curative instruction. (App. Div. Direct Appeal Op. 72.)

Nevertheless. the trial court, as part of the jury charge, instructed the jurors that they could only

decide the case based upon the evidence produced at trial and that “[s]peculation. conjecture and

other forms of guessing play no role in the performance of [their] duty.” (Apr. 17. 2007 Trans.

155:13-20.) Accordingly, in light of the entire trial, and upon assessment the severity of the

prosecutor's conduct, the effect of the curative instructions. and the quantum of evidence against

Petitioner, this Court does not find that the state courts’ adjudication of this claim was contrary to

or an unreasonable application of clearly established federal law.

28

C, Ground Three ~ Evidentiary Errors

Petitioner asserts that certain evidentiary errors made by the trial court deprived her of her

due process right to a fair trial. (Am. Pet. *17.) Petitioner maintains that: “(1) the court erred in

admitting expert testimony regarding tool marks on the garbage bags . . . because the technique is

not scientifically proven and reliable: (2) the trial court erroncously excluded relevant.

admissible{.] and exculpatory evidence supporting the defense ([P]etitioner’s motive for

purchasing the handgun)”; and (3) that the trial court erroneously excluded “testimony from [the

victim’s] first wife that [he] had abandoned their marriage in 1992 and disappeared[.]” (/d.)

It is well-established that the violation of a right created by state law is not a cognizable

basis for federal habeas relief. Estelle v. WeGuire, 302 U.S. 62, 67-68 (1991) ("We have stated

many times that ‘federal habeas corpus relief does not lie for errors of state law.” (citation

omitted)). Thus. Petitioner is not entitled to habeas relief for alleged errors in state law evidentiary

hearings, unless those errors rise to the level of a deprivation of due process. See id. at 70 (“[T]he

Due Process Clause guarantees the fundamental elements of fairness in a criminal trial.” (quoting

Spencer v. Texas, 385 U.S, 554, 563-64 (1967))): see also Keller v. Larkins, 231 F.3d 408, 419

(3d Cir. 2001) (observing that the petitioner “was tried in state court, and the admission of expert

testimony in a state trial presents a question of state law—unless. of course, the evidence violates

due process or some other federal constitutional right”).

i. Expert Witnesses

First, with respect to the admission of expert testimony about tool marks on the garbage

bags, the State introduced the testimony of Frank Ruiz and Thomas Lesniak. (App Div. Direct

Appeal Op. 25-26.) Mr. Ruiz was “qualified by the trial court as an expert witness in plastic bag

technology and manufacturing by virtue of his twenty-seven years of experience in the plastic bag

29

industry and his degree in chemistry.” (/c.) Mr. Ruiz testified that the garbage bags found in the

suitcases with the victim's body and the garbave bags recovered from Petitioner's apartment were

“produced on the same production fine and within hours of each other.” (//.) State police forensic

scientist Thomas Lesniak was qualified by the trial court as a tool mark expert based upon. among

other qualifications, his twenty-seven years of experience as a forensic scientist. his multiple

certifications from the Bureau of Alcohol. Tobacco, Firearms. and Explosives ("ATF”) in toot

mark analysis. and his performance of hundreds of tool mark examinations. (/d. at 38-39.) Mr.

lLesniak testified that both the garbage bags found with the victim's body and the ones discovered

at Petitioner's apartment were “produced with the same tools and therefore on the same extrusion

line.” (/e, at 25-26.) The State used the testimony of these experts and their findings regarding

the matching garbage bags to argue Petitioner's involvement in the victim's murder. (fed. at 33.)

In addressing this claim on direct appeal. the Appellate Division thoroughly analyzed the

qualifications of Mr. Ruiz and Mr. Lesniak and the decision by the trial court to admit them as

expert witnesses under the standard set forth by Frve v. United States, 293 F. 1013 (D.C. Cir.

1923). (Ud. at 33-48.) As for Mr. Ruiz. Petitioner challenged none of the criteria for his admission

as expert witness but rather, argued that Mr. Ruiz “failed to follow proper testing protocols[.]* (ded

at 36-37.) The Appellate Division ultimately held that Petitioner's arguments about Mr. Ruiz’s

methodology and conclusions “might have affected the credibility and weight of his testimony.

but not its admissibility” and that the trial court “committed no error in admitting [Mlr.] Ruiz’s

expert testimony about the two sets of garbage bags.” (/e. at 37.) With regard to Mr. Lesniak, the

Appellate Division found “no error in [the] admission of tool mark analysis as a field appropriate

for expert testimony.” (/d. at 47.) The Appellate Division also added that even if Mr. Lesniak’s

tool mark analysis “should have been excluded. its admission was at most harmless error” because

30

the substance of his testimony about the garbage bags was “duplicative” of Mr. Ruiz’s and Mr.

Ruiz “persuasively provided the same expert opinions on the basis of thorough and complete visual

and chemical examination of the two set of bags.” (/d. at 48.)

Here. the state court's adjudication of this claim is not contrary to or an unreasonable

application of clearly established federal law. Evidentiary errors “are not considered to be of

constitutional proportion, cognizable in federal habeas corpus proceedings, unless the error

deprives a defendant of fundamental fairness in his criminal trial.” Bisaccia v. Att'y Gen. of □□□

623 F.2d 307, 312 (3d Cir. 1980). Both the trial court and the Appellate Division carefully

examined the qualifications of Mr. Ruiz and Mr. Lesniak. (Jan. 25, 2007 Mot. Trans., ECF No. 9-

42; Jan. 31, 2007 Mot. Trans., ECF Nos. 9-43, 9-44: App. Div. Direct Appeal Op. 33-48.) Upon

review of both the trial court's #rve hearing and the Appellate Division’s 15-page opinion on the

issue, this Court discerns no error in the trial court’s admission of expert testimony from either

Mr. Ruiz or Mr, Lesniak that would rise to the level of a deprivation of due process. Both Mr.

Ruiz and Mr. Lesniak had substantial experience in their respective fields and significant expert

testifying as expert witnesses in those fields. Accordingly. Petitioner is not entitled to relief on

this claim.

ii. Limiting of Mr. Lowery’s Testimony

Petitioner also maintains the trial court erred in excluding testimony about her motive for

purchasing a firearm. (Am. Pet. *17.) Part of the defense’s theory of the case was that the victim

asked Petitioner to purchase a firearm for him because his felony record prohibited from

purchasing one on his own, (Pet'r’s Direct Appeal App. Div. Br. 57-58.) At trial. the defense

sought to present the testimony of the George Lowery. the victim's co-worker, who would testify

“regarding conversations with [the victim] where [the victim] talked about wanting to purchase or

3)

possess a gun because his headlights kept getting stolen out of his car in late 2003.” (App. Div.

Direct Appeal Op. 51 (internal quotation marks omitted).) Mr. Lowery would also testify that the

victim did plan to ask Petitioner to purchase the firearm for him. (/d.) Defense counsel argued

these statements to Mr. Lowery fell under two hearsay exceptions: state of mind under New Jersey

Rule of Evidence 803(c)(3), and statement against penal interest under New Jersey Rule of

Evidence 803(c)(25). (ff. at 52.) The prosecution disagreed that these statements were admissible.

(See id.) After hearing oral argument from the parties. the trial court limited Mr. Lowery’s

testimony to only the fact that he fad a discussion with the victim about the purchase of a firearm.

(id. at 51.) Mr. Lowery was prohibited from discussing any specifics of the victim's statements.

(id.) In arriving at this decision. the trial court held that the victim's “state of mind prior to the

time of the murder is not really that significant” and his statements were “inadmissible hearsay”

because they could not be “verified at this point or determined to be reliable.” (4. (internal

quotation marks omitted).)

Here, this Court does not find that the trial court’s evidentiary rulings about Mr. Lowery’s

testimony rise to the level of a deprivation of due process. See Estelle, 502 U.S. at 70. New Jersey

Rule of Evidence 803(c)(3). which applies to state of mind statements. provides that a hearsay

statement may be admitted if-

[the] statement [was] made in good faith of the declarant's then-

existing state of mind. emotion. sensation or physical condition

(such as intent. plan. motive, design. mental feeling. pain. or bodily

health), but not including a statement of memory or belief to prove

the fact remembered or believed unless it relates to the execution.

revocation. identification, or terms of declarant's will,

And New Jersey Rule of Evidence 803(c)(25). which applies to statements against penal

interests, provides that a hearsay statement may be admitted if:

statement which was at the time of its making so far contrary to the

declarant's pecuniary. proprietary. or social! interest. or so far tended

on

to subject declarant to civil or criminal liability, or to render invalid

declarant's claim against another, that a reasonable person in

declarant's position would not have made the statement unless the

person believed it to be true. Such a statement is admissible against

a defendant in a criminal proceeding only if the defendant was the

declarant.

Upon review of both rules, this Court agrees with the trial court and the Appellate Division.

which both held that the victim's statements to Mr. Lowery did not fall under either hearsay

exception. (App. Div. Direct Appeal Op. 54.)? As the Appellate Division explained, the victim's

statements did not fall under New Rule 803(c}(3) because “they were not a clear expression of a

present intention or plan to have his wife buy a gun.” they “lacked specificity,” and “there was

insufficient evidence that [the victim] had made them to Lowery in good faith.” (/d. (internal

quotations marks and citations omitted).) The statements likewise did not fall under Rule

803(c)(25) because there was simply no evidence the victim “believed his wife's purchasing a gun

might subject him to criminal prosecution or penalties” and was thus “not necessarily contrary to

his penal interest.” (/c/. at 55 (interna! quotation marks omitted).)

Moreover, any perceived error from the trial court’s limitation of Mr. Lowery’s testimony

did not deprive Petitioner of fundamental fairness in her trial. The trial court did permit Mr.

Lowery to testify that he and the victim had spoken about purchasing a firearm a few months

before the victim’s disappearance. And the jury heard testimony from two other witnesses that

Petitioner said she purchased the firearm because the victim asked her to. (Mar. 20, 2007 Trans.

38:3-16. ECF No. 9-58: Mar. 21. 2007 Trans. 51;18-52:12. ECF No. 9-59.) Thus. the jury

The New Jersey Rules of Evidence are modeled after the Federal Rules of Evidence. Travelers

Prop, Cas. Co. of Am. v. Hallam Eng’g & Constr. Corp.. No, 08-0444, 2013 WL 30174, at *7 nl

(D.N.J. Jan. 2, 2013). New Jersey Rule of Evidence 803{c)(3) mirrors Federal Rule of Evidence

803(3) and New Jersey Rule of Evidence 803(c)(25) mirrors Federal Rule of Evidence 804(b)(3).

33

ultimately heard the same information Petitioner wanted elicited from Mr. Lowery. Accordingly.

Petitioner is not entitled to habeas relief on this claim.

iii. Testimony from Victim's First Wife

Petitioner argues that the trial court improperly excluded the defense from introducing

testimony from the victim’s first wife, Marcie Paulk. that the victim had abandoned their marriage

in 1992, maxed out their credit cards, and disappeared. (Am. Pet. *17: Pet'r’s Direct Appeal Br.

60.) Attrial, the State argued that Petitioner exhibited a lack of concern or “callousness” following

her husband's disappearance. (Pet'r’s Direct Appeal Br. 61.) To combat this, the defense wanted

io introduce Ms. Paulk’s testimony to establish why Petitioner was unconcerned about her

husband's disappearance — because that was “precisely how [the victim] had left [Ms. Paulk].”

But the trial court ruled that Ms. Paulk’s testimony was “inappropriate and inflammatory in

that it really amounts to a character attack and an appeal to the sympathy of the jury.” (App. Div.

Direct Op. 49 (interna! quotation marks omitted).) The trial court further explained that the

testimony “from so many years earlier did not constitute admissible habit or custom evidence. and

the remote time made it irrelevant to issues in this case and ultimately prejudicial.” (/d.)

When Petitioner raised this claim on direct appeal, the Appellate Division held:

A trial court has broad discretion under N./.R.E. 403 to exclude

evidence that may be prejudicial or that may divert the jury's focus

from the relevant issues in the case. See State v. Sands, 76 Nf, 127,

144(1978). Under that rule of evidence, potentially relevant

evidence may be excluded if its probative value is substantially

outweighed by the risk of undue prejudice, confusion of issues. or

undue delay. The trial court's balancing of factors under

403 “is subject to the abuse of discretion standard. which sustains

the trial court's ruling ‘unless it can be shown that the trial court

palpably abused its discretion, that is, that its finding was so wide

[of] the mark that a manifest denial of justice resulted.” State v.

Lykes, 192 519, 534(2007) (quoting Green NUL Mfrs. ins.

Co., 160 NZ 480, 492 (1999)). There was no denial of justice in

excluding Paulk's proposed testimony.

34

The testimony was clearly not admissible under NV./R.E. 406 as

evidence of Bill's habit or routine of leaving wives. It was

potentially relevant to explain defendant's behavior following Bill's

disappearance, but it was also highly inflammatory and prejudicial.

It would have injected into the trial collateral and complex issues

about Bill's first marriage. It had the potential of diverting the focus

of the jury and confusing issues by raising matters that occurred

twelve years earlier and that could not be adequately addressed in

this case. Balanced against the potential prejudice and confusion of

issues, the probative value of Paulk's proposed testimony was slight.

We conclude the trial court did not abuse its discretion in excluding

it.

at 49-51 (alteration in original).)

This Court agrees with the Appellate Division’s adjudication of the claim. Ms. Paulk’s

testimony that the victim had previously “disappeared” on her and abandoned their marriage may

have had slight probative value regarding Petitioner's own conduct when the victim disappeared

in May 2004. Yet Ms. Paulk’s testimony was also an inflammatory attack on the victim's

character, Further, the testimony had no tendency in reason to prove that Petitioner thought the

victim had lefi Aer and abandoned their marriage. Thus, the trial court’s exclusion of this evidence

did not rise to the level of deprivation of due process. See Estelle, 502 U.S. at 70. Petitioner is

not entitled to habeas relief on this claim.

D. Ground Four — Ineffective Assistance of Counsel

In Ground Four, Petitioner raises four claims of ineffective assistance of counsel. The

Sixth Amendment guarantees the accused the “right . . . to have the Assistance of Counsel for his

defense.” U.S. Const. amend. VI. The Sixth Amendment's guarantee of the right to counsel “is

the right to the effective assistance of counsel.” MfeMann v. Richardson, 397 U.S, 759. 771 n.14

(1970). Counsel can deprive a defendant of the right by “fatling to render “adequate legal

assistance[.]"" Strickland v. Washington. 466 U.S. 668. 686 (1984) (quoting Curler v. Sullivan.

35

446 U.S. 335, 345 (1980)). The Supreme Court's well-established two-prong test governing

claims of ineffective assistance of counsel is set forth in Stricklertd.

First, a petitioner must show that “counsel's performance was deficient. This requires [the

petitioner to show] that counsel made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed by the Sixth Amendment. /d. at 687: see also United States v. Shedrick, 493

F.3d 292, 299 (3d Cir. 2007). The petitioner must also show that counsel's allegedly deficient

performance prejudiced his defense such that the petitioner was “deprive[d] ... of a fair trial... □

whose result is reliable.” Strickland. 466 U.S. at 687; Shedrick, 493 F.3d at 299. In evaluating

whether counsel was deficient. the “proper standard for attorney performance is that of ‘reasonably

effective assistance[.]” Jacobs v. Horn, 395 F.3d 92. 102 (3d Cir. 2005), A petitioner must

therefore show that counsel's representation “fell below an objective standard of reasonableness”

under the circumstances. fd, The reasonableness of counsel's representation is evaluated under

each case’s particular facts, viewed as of the time of the challenged conduct of counsel. Ad So.

to meet the deficient performance prong. a defendant “must identify the acts or omissions of

counsel that are alleged not to have been the result of reasonable professional judgment.”

Strickland, 466 U.S. at 690. In scrutinizing counsel’s performance. courts must be highly

deferential and “indulge a strong presumption that counsel's conduct falls within the wide range

of reasonable professional assistance[.}” at 689.

Second. even where a petitioner can show that counsel's representation was deficient, the

petitioner must still affirmatively demonstrate that counsel's deficient performance prejudiced the

defense. /d. at 692-93. To satisfy this prejudice prong. “a defendant need not show that counsel's

deficient conduct more likely than not altered the outcome in the case.” □□□ at 693. Rather, a

petitioner must establish that “there is a reasonable probability that the result of the [case] would

36

have been different absent the deficient act or omission.” Hinton v. Alabama, 134 S. Ct. 1081,

1083 (2014) (per curiam); see also Strickland, 466 U.S. at 699 (A petitioner must demonstrate

“that there is a reasonable probability that. but for counsel's unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.”). “It is not enough for the defendant to show that the errors

had some conceivable effect on the outcome of the proceeding.” Strickland, 466 U.S. at 693.

The well-established two-prong Strickland test requires satisfaction of both components

for a claim that counsel's assistance was so defective as to require reversal ofa conviction. Given

that “failure to satisfy either prong defeats an ineffective assistance claim” and “it is preferable to

avoid passing judgment on counsel's performance when possible,” courts should address the

prejudice prong first where it is dispositive of a petitioner's claims. United States v. Cross, 308

F.3d 308. 315 Gd Cir. 2002); Judge v. United States, 119 F. Supp. 3d 270, 280-81 (D.N.J. 2015).

When a federal habeas petition under § 2254 is based upon an ineffective assistance of

counsel claim, “[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 standard.” Harrington v. Richter. 562 U.S. 86, LOE (2011)).

For purposes of § 2254(d)(1), “an unreasonable application of federal law is different from an

incorrect application of federal law.” fc, (emphasis omitted). “A state court must be granted

deference and latitude that are not in operation when the case involves [direct] review under the

Strickland standard itself.” Habeas review of ineffective assistance of counsel claims are,

therefore. “doubly deferential.” Cullen vy, Pinholster, 563 U.S. 170, 190 (2011)). Federal habeas

courts must “take a highly deferential look at counsel's performance” under Strickland, “through

the deferential lens of § 2254(d).~ /d. (internal citations omitted).

37

For the following reasons. Petitioner has not shown that she is entitled to federal habeas

relief based upon alleged ineffective assistance of counsel.

i. Failure to Obtain Forensic Evidence from Garbage Bags and Victim's

Computer

Petitioner first asserts that her counsel was constitutionally deficient for failing to “have

the garbage bags and computer of the victim examined and tested for forensic evidence to support

the defense case.” (Am. Pet. *18.) Petitioner alleges, without support, that “[t]he forensic

evidence uncovered after tria! included searches for information on how to ‘poison your wife’ and

a website titled □□□□□□□□□□□□□□□□□□□□□□□□□ This suggests it was [the victim}. and not petitioner,

who made those searches. This rebuts the State’s evidence at trial ... that it was petitioner who

conducted all the internet searches.” (/d.)

Petitioner raised this claim in her PCR petition. The PCR court dismissed the claim,

explaining:

Petitioner argues that her counsel was ineffective for failing to

authorize their computer expert to review the entire internet history

of the Pavillion computer taken from the McGuire apartment. She

contends that if her trial attorneys had authorized a search of the

entire internet history, rather than a limited search confined to the

six-day period reviewed by the State's expert. they would have

discovered that on January 21, 2004. someone performed searches

for “poison your wife” and “poison.” and someone accessed

websites with the following titles: “www.unfaithfulwife.net"; and

“WWW. □□□□□□□□□□□□□□□□□□□□□□ and “www.poison.org”.

However, this argument also fails to establish a prima facie case of

ineffective assistance of counsel. First. the existence of those

searches on the computer in no way proves that William McGuire

conducted them. or that the Petitioner did not. As the State's

computer experts testified, “one of the most difficult parts of

computer forensics is trying to put someone at the keyboard,” and

that there is “no way of knowing whether someone else in the

household jumped on the computer for a few minutes to do a search

and then let the prior person return to what they were doing.”

Moreover, the searches Petitioner relies on were conducted months

38

prior to the murder and therefore not necessarily related to the

searches that were conducted closer in time to the victim's

disappearance.

Lastly, and most significantly, Petitioner fails to appreciate that the

decision to limit the search to the six-day timeframe prior to the

murder was most likely a strategic one. At trial. Petitioner's counsel

was able to challenge the State’s contentions regarding the

incriminating searches found on the computer by presenting an

expert of their own, This defense witness testified that some of these

incriminating searches were made within minutes of other searches,

thus supporting defense counsel's argument that the searches were

more likely to have been conducted by William McGuire.

Authorizing a search of the entire intemet history on the McGuire

computer could have undercut this defense insofar as it could have

revealed other incriminating evidence linking Petitioner to the

crime. This was a risk trial counsel most likely did not wish to take,

and accordingly the decision to limit the search constituted sound

trial strategy pursuant to State v. Arthur. Petitioner is unable to show

that her trial counsel's performance was ineffective.

(Law Div, PCR Op. [8-9 (emphasis in original).) The Appellate Division affirmed this decision

for substantially the same reasons. (See App. Div. PCR Op. 20.)

The state court’s decision on this claim was neither unreasonable nor contrary to

Strickland. Petitioner has not established that her trial counsel was deficient for not expanding the

forensic analysis of the computer searches or that she was prejudiced by this decision. As the

Superior Court aptly stated. trial counsel's decision was most likely strategical and prevented the

reveal of any other incriminating searches that may have been made by Petitioner. or anyone else

using the computer. Moreover, Petitioner makes no showing that had this evidence been presented

at trial there is a reasonable probability that the outcome of trial would have been different.

Accordingly. relief on this claim is denied,

ii. Failure to Consult a Gun Expert

Petitioner next argues that counsel “failed to consult an expert to determine if the gun

purchased by petitioner matched the bullets recovered from the body of the victim.” (Am. Pet.

39

*18.) At trial, the State's ballistics experts testified that the bullets recovered from the victim's

bedy had been fired from a gun that had “six lands and grooves[.]” a rifling pattern consistent with

the handgun purchased by Petitioner. (/d.) Yet Petitioner alleges that after trial her appellate

attorney “discovered on a Taurus website that the make and model” of the firearm she purchased

only had “five lands and grooves.” (/d.) Thus, Petitioner submits that if this evidence had been

presented at trial. it would have refuted the prosecution’s inference that Petitioner's handgun was

the murder weapon. (/d.)

Petitioner raised this argument in her PCR petition. (Law Div. PCR Op. 13.) She alleged

that in preparation for her PCR proceedings, she consulted a ballistics expert, Dr. Peter De Forest,

who informed her that the Taurus handgun she had purchased would have fired bullets with only

five, and not six. lands and grooves on them. (/d.) In response, the State produced an affidavit

from Robert Morrison, the President and Chief Executive Office of Taurus International

Manufacturing. Inc., the company that manufactured the firearm Petitioner purchased. (/e. at 14.)

Mr. Morrison attested that the Taurus firearm Petitioner purchased could produce either five or six

lands and grooves on bullets that it fired and that “tere fiwas} no wav of knowing whether the

revolver at issue fhad] five lands and grooves or six lands and grooves” without examining the

weapon itself. (/d. (emphasis in original).) Given Mr. Morrison's sworn statements. the PCR

court determined Petitioner did not establish her trial counsel had been ineffective. at 15.)

The PCR court held that since the firearm Petitioner purchased had never been found. there was

no way to inspect the gun and determine its rifling characteristics. (/c) Thus, Mr. De Forest's

testimony would not have established “that Petitioner's gun ‘most likely lad five lands and

grooves’ as opposed to the six that were found on the bullets extracted from the victim's body [.]”

4()

(id.) The Appeilate Division summarily affirmed the PCR court's determination on appeal. (See

generally App. Div. PCR Op.)

Here, this Court agrees with the PCR court's determination that Petitioner's trial counsel

was not ineffective. Even if Petitioner's trial counset had consulted with a ballistics expert such

as Mr. De Forest, the gun Petitioner purchased was never located. Asa result, it would have been

impossible to determine whether the firearm produced five or six lands and grooves. Contrary to

Petitioner's assertion, a ballistics expert could not have disproven that Petitioner's gun was

consistent with the murder weapon. Petitioner is therefore not entitled to relief on this claim.

iii. Failure to Investigate Chloral Hydrate

Petitioner also contends her trial counsel was ineffective for failing to retain an expert

witness, a forensic pharmacologist. to present an alternative explanation for the presence of chloral

hydrate in the victim's car. (Am. Pet. *18-19.) At trial. the State inferred that Petitioner had

administered chloral hydrate to her husband to sedate him before ustimately murdering him. (Apr.

17, 2007 Trans. 22:7-18, 60:9-61:4.) Petitioner claims. however, that the victim may have been

using steroids or “GHB™ because in a police interview with the victim’s sister, she expressed

concern that the victim “had been showing signs of what she believed might be steroid abuse.”

(Law Div. PCR Op. 15 (internal quotation marks omitted).) Thus. Petitioner argues that if the

victim were using steroids or GHB. he could have been taking chloral hydrate to counteract the

side effects. (Am. Pet. *18—19.)

When Petitioner raised this claim during her PCR proceedings. the PCR court found that

Petitioner's claim “flies in the face of the evidence in the record.” (Law Div. PCR Op. 15.) The

PCR court explained:

[T]here was no evidence presented from which a jury could infer

that the victim was using steroids or GHB. Moreover. the victim's

41

sister testified that she “had no knowledge of any drug use by

William,” that he “was not in too good of shape anymore,” and

although he had purchased a “weight set” the year before, she did

not know if he ever “used it.” Accordingly, there was nothing in

{the victim's sister's] statement indicating that she believed the

victim was bodybuilding or showing signs of using steroids to do

so. To the contrary, [the victim's sister] indicated that her brother

was out of shape and that he had gotten heavier and started balding

over the years, all genera! information provided to the police in an

elfort to assist their investigation. [heretore. it is unlikely that an

expert witness would have been permitted to testify to a wild

speculation that has no support in the record. Moreover. assuming

that an expert witness was permitted to testify to the fact that chloral

hydrate can be used to counteract the symptoms of GHB

withdrawal, such testimony would not constitute proof that the

victim was in fact using steroids or GHB and suffering from

withdrawals, {t is highly improbable that such testimony would

have resulted in a different verdict by the jury. and accordingly.

Petitioner's trial counsel was not ineffective for strategically

choosing not to retain or consult with such an expert. More

importantly. itis highly unlikely that the Court would have admitted

such speculative testimony—testimony that in fact was contrary to all

the evidence presented at trial.

(/d. at 15-16.)

Here, as the PCR court found. there was no evidence presented from which the jury could

infer that the victim was using steroids or GHB. The victim's sister never testified at trial that she

suspected her brother was using steroids or GHB or that he may have been using chloral hydrate

to counteract symptoms of such drugs. Thus. “it is unfikely that an expert witness would have

been permitted to testify to a wild speculation that [had] no support in the record.” (/d. at 16).

Even if the trial court had admitted such expert testimony, however, the testimony would still not

have proven that the victim was using chloral hydrate. GIIB, or steroids. By Petitioner's own

admission. an expert witness would have only established that chloral hydrate was a drug used to

counteract withdrawal from GHB or steroids. (Am. Pet. *19.) As a result. this Court finds that

Petitioner has not established that her counsel was ineffective. The state courts’ adjudication of

4?

this claim was not contrary to, or an unreasonable application of, clearly established federal law.

Petitioner is not entitled to relief on this claim.

iv. Failure to Consult an Expert Regarding Bloodstain Evidence

Finally, Petitioner asserts that her trial counsel was ineffective for failing “to call an expert

witness to rebut the prosecution's contention that the petitioner could have cleaned up bloodstains

resulting from the murder and dismemberment of William McGuire in her apartment.” (Am. Pet.

*19.) Petitioner submits that:

To explain the complete absence of bloodstains or tissue residue in

petitioner's apartment, the prosecution presented testimony from

two forensic scientists who stated that blood and tissue stains can be

cleaned up with a 10% bleach solution. The inference was that

petitioner had cleaned up her apartment after murdering and cutting

up the body of William McGuire. However, petitioner's post-

conviction relief lawyer consulted with an expert who wrote a report

stating that Juminol test was extremely sensitive and that it was

highly unlikely that any attempt to completely clean a blood-stained

area would succeed. This evidence, if presented at trial. would have

rebutted the prosecution's inference that the apartment was the

murder scene and was carefully cleaned up afterward.

(id.)3

When Petitioner raised this claim during her PCR proceedings. the PCR court found that

her trial counsel had engaged in “extensive cross-examination™ of the State’s forensic scientist,

Thomas Lesniak, “for the purpose of convincing the jury that the murder and dismemberment of

[the victim] could not have occurred inside the McGuire apartment, since multiple searches,

utilizing the most technologically advanced tools available to a forensic scientist, yielded no DNA

evidence.” (Law Div. PCR Op. 17.) Review of the record reveals this thorough cross-

examination:

Petitioner did not attach to her Petition any report from an expert about the sensitivity of luminol

test. (See generally Am. Pet.)

43

[Defense Counsel]: And you certainly did a thorough job as far as

trying to recover as much valuable trace evidence as you could?

[Mr. Lesniak]: That's my job.

[Defense Counselj: Of course. And you did, correct?

{[Mr. Lesniak]: Yes.

[Defense Counsel]: You said something to this jury yesterday about

with today’s technology you can detect DNA or trace evidence very

easily, correct?

[Mr. Lesniak]: Very easily. It depends on how much material is

there. very easily.

[Defense Counsel]: Sure.

[Mr. Lesniak]: Let’s say technology has improved over the years.

yes.

[Defense Counsel]: And you can pick up DNA or blood even if you

can’t see it, right. in your analysis?

{Mr. Lesniak]: If | can‘t see it. Usually if Fim looking --

[Defense Counsel]: Let me withdraw that and rephrase the question.

| understand | confused you with that. You can pick up. you. the

scientist. looking with forensic testing can pick up DNA or blood

evidence that a lay person couldn’t see?

[Mr. Lesniak]: Correct.

[Defense Counsel]: Okay. That a lay person couldn't feel. right?

[Mr. Lesniak]: Correct.

[Defense Counsel]: That a lay person couldn't smell. for instance.

yes?

[Mr. Lesniak]: Yes.

[Defense Counsel]; Okay. And that’s why you went to that

Woodbridge apartment yourself four times, correct?

44

[Mr. Lesniak]: Yes.

[Defense Counsel]: And you looked thoroughly as you described to

this jury, yes?

(Mr. Lesniak]: Yes.

[Defense Counsel]: And you came up with no evidence.

[Mr. Lesniak]: That's correct.

(Mar. 29, 2007 Trans. 109:15-111:11, ECF No. 9-64.)

Defense counsel then emphasized Mr. Lesniak’s testimony and the lack of DNA evidence

found at the apartment during his closing:

[W]e know he luminoled the apartment and there was absolutely no

evidence of blood found in that apartment. Luminol. as you know

now, is that test that detects any blood or any left-on blood. even

blood that’s not visible to the naked eye. Not one drop of blood

came up in that apartment.

We also know that he actually went as far as to remove drain, some

of the drain pipe in the bathtub to search. not only for blood. but for

DNA. You see, their theory. their theory is that he was also

dismembered in that house with the kids there. We'll talk about that

in a second, but that's their theory. that he was dismembered in that

house, in the tub or in the shower or wherever. So they. being good

investigators, decided hey, let's go. let's go take that pipe because if

you dismember someone you may get some blood in that drain in

the low part of the drain but one thing you are going to get. for

certain, is some tissue. None found at all, none found at all.

16, 2007 Trans. 18:14—19:6.)

Moreover, as the PCR court held. even if defense counsel had calied an expert witness to

testify about luminol testing, it “would have been unnecessary and perhaps even redundant.” (Law

Div. PCR Op. 17-18.) Petitioner’s counsel. therefore, likely had multiple “strategic reasons for

not introducing an expert on luminol at trial.” □□□ at 18.) “*[A] court must indulge a strong

presumption that counsel's conduct ... might be considered sound trial strategy.” Davis v.

45

Superintendent Graterford SCI, No. 16-3436, 2021 WL 56985, at *2 (3d Cir. Jan. 7, 2021)

(alterations in original) (quoting Siricklamd, 466 U.S. at 689). For these reasons. this Court does

not find that Petitioner has demonstrated that her counsel was ineffective for failing to call an

expert witness on this matter. The state courts” adjudication of this claim was not contrary to, or

an unreasonable application of. clearly established federal law and Petitioner is not entitled to relief

on this claim.

E. Ground Five — Violation of Retainer Agreement

In Ground Five, Petitioner asserts that her right to the effective assistance of counsel under

the Sixth Amendment was violated by a provision in her retainer agreement with her trial counsel

that provided that counsel agreed to pay for any expert witnesses.? (Am. Pet. *20.) Petitioner

contends that this provision gave counsel a “financial interest in saving money by not spending

money for expert witnesses.” (/e.} Petitioner raised this claim in her PCR Petition. (See generally

PCR Pet.) The PCR court rejected this claim. as “there is no legal authority that supports

Petitioner's argument that a retainer agreement of this sort creates a conflict of interest and rises

to the level of constitutional ineffective assistance of counsel.” (Law Div. PCR Op. 19.) The PCR

court further found Petitioner's claim to be too speculative to warrant relief because she presented

no evidence that suggested her trial counsel was “concerned that hiring additional expert witnesses

could reduce the pool of money from which they would be paid. or that they actually failed to

retain additional experts because of insufficient funds.” (éd. at 20.) The Appellate Division

affirmed this decision without discussion. (App. Div. PCR Op. 20.)

* The Court's review of the retainer agreement in question shows that counsel. in fact. agreed only

to “advance on behalf of [Petittoner]” fees and costs “associated with investigators. experts,

paralegals, accommodations in New Jersey. service of subpoenas. and preparation of exhibits.”

(Supp. Retainer Agreement *73-—74. ECF No. 9-16.)

46

The decision of the state courts on this claim was neither contrary to established federal

precedent, nor an unreasonable application of any such precedent. Petitioner has failed to cite to

any legal authority that would show that her retainer agreement with counsel was legally deficient.

Most notably, however, Petitioner has failed to establish that she suffered any prejudice. Petitioner

makes no allegation that counsel refused to hire certain experts due to cost, nor does she allege

any specific type of expert that counsel should have obtained and what that expert's testimony at

trial would have been. Accordingly. because Petitioner has not met her burden under Stricklanc,

relief on this claim is denied.

IV. MOTION FOR A STAY

Over a year and a half after briefing was completed on Petitioner's habeas petition,

Petitioner filed a Motion for a Stay. (Mot. to Stay, ECF No. 14.) In her Motion, Petition requests

a “temporary stay” of her petition until such time as she as ab!e to obtain private counsel. (/c/. at

1.) Petitioner filed this Motion on February 25, 2020 and to date, over one year later, she has still

not retained private counsel. (See fd.)

The Court will deny the Motion because Petitioner is not eligible for a stay, See Rhines □□□

Weber, 544 U.S. 269, 277-78 (2005). The Petition does not contain any unexhausted claims and

AEDPA’s one-year statute of limitations period is not an issue in this case. See Rhines. 544

at 277-78. Additionally. a habeas petitioner has no constitutional or statutory right to

representation by counsel. Reese v. Fulcomer, 946 F.2d 247, 263 (3d Cir. 1991), superseded by

statute on other grounds, 28 U.S.C. § 2254(d). Here, it is unclear what benefit counsel would

provide Petitioner. The habeas petition has been fully briefed. Petitioner presented a thorough

and cogent Petition and traverse, and the matter can be decided on the record already before the

Court. Accordingly, Petitioner's Motion fora Stay is denied.

47

Vv. CERTIFICATE OF APPEALABIL.ITY

Under 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a habeas

proceeding where that petitioner's detention arises out of his state court conviction unless he has

“made a substantial showing of the denial of a constitutional right.” “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 here are adequate to

deserve encouragement to proceed further.” Miller-Ef. 537 U.S. at 327; see also Slack vy.

McDaniel, 529 U.S. 473, 484 (2000). Because jurists of reason would not disagree with this

Court’s conclusion that Petitioner has failed to make a substantial showing of the denial of a

constitutional right, Petitioner's habeas petition is inadequate to deserve encouragement to proceed

further. Accordingly. a certificate of appealability shall not issue.

VI. CONCLUSION

For the reasons stated above. the Petition for habeas relief is DENIED and a certificate of

appealability shall not issue. An appropriate order follows.

_Mibdheag

MUCHAEL A. sie

UNITED STATES DISTRICT JUDGE

Dated: 5 13 i

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