RULLAN v. STATE OF NEW JERSEY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ANTHONY RULLAN Civil Action No. 19-5303 (KMW)

Petitioner,

v. OPINION

STATE OF NEW JERSEY, et al., !

Respondents,

WILLIAMS, DISTRICT JUDGE

Petitioner Anthony Rullan (‘Petitioner’) is a state prisoner confined at South Woods State

Prison in Bridgeton, New Jersey. He is proceeding pro se with a petition for a writ of habeas

corpus (“Petition”) pursuant to 28 U.S.C, § 2254. (ECF No. 1, Petition). For the reasons expressed

below, the Court denies the Petition and also denies a certificate of appealability.

I, BACKGROUND!

Petitioner was convicted in state court of second-degree sexual assault, second degree

endangering the welfare of a child, and offensive touching. The New Jersey Superior Court,

Appellate Division provided the following factual summary of the proofs of trial:

[Petitioner] was indicted for abusing his two daughters, Ann, born in 1986,

and Alice, born in 1990.2

Ann, who was twenty-five years old when she testified, recalls that, between

the age of eight and ten, she was lying naked on a couch in the living room

when [Petitioner] got on the couch with his pants down and rubbed his penis

' The factual background is taken from the record submitted by the parties; the facts relevant to the individual claims

for relief are discussed in the analysis section of the Opinion.

2 The state court used fictitious names for the victims and their family members.

against her vagina. She also stated that at some point during the incident

she became aware that her brother, Tom, was looking through the window.

After this incident “everywhere and anywhere was the perfect chance for

sex [with Petitioner].” The sexual acts consisted of “the rubbing...

standing bottomless, you know; bending over; spreading my legs; him

either touching me, you know, or not touching me;” and sucking her breasts.

At times, [Petitioner] did not touch Ann but masturbated while looking at

her. At some point in time, [Petitioner] began to have anal sex with Ann as

well. [Petitioner] never had vaginal intercourse with her because her mother

regularly checked Ann to make sure she was still a virgin.

While Ann was in high school, [Petitioner] ran a janitorial business that

cleaned movie theaters after hours. Ann and Tom helped [Petitioner] clean

the theaters, and on multiple occasions [Petitioner] and Ann took breaks

from their chores to engage in sexual relations. Tom either continued

cleaning or acted as the lookout. In addition to having sex in their home

and in the theaters, Ann and [Petitioner] also had sex in cars, When they

had sex at home, it was Tom’s job to keep others away including Alice,

Ann’s younger sister, who reported anything that was amiss to their mother.

When she was ten years old Ann told her mother about the abuse, Her

mother “flipped out” and dragged [Petitioner] out of bed with a knife and

forced him to take her and Ann to the hospital. On the way to the hospital,

her mother jumped out of the car and walked around an empty parking lot.

[Petitioner] told Ann to recant and she complied.

‘Thereafter, Ann's mother asked her daily if [Petitioner] was abusing her, but

Ann always denied the abuse was still occurring. Ann also told

representatives from the Division of Youth and Family Services (DYFS)

that her father was not abusing her, although she did report that her mother

physically beat her and routinely examined her to determine if she were still

a virgin.

When Ann was twenty-three and Alice nineteen years of age, Alice told

Ann that [Petitioner] had sexually abused her, As a result of this disclosure

Ann resolved to reveal her own abuse by [Petitioner]. Both sisters reported

{Petitioner’s] sexual abuse to the police in June 2009,

Alice testified that [Petitioner] and Ann had a relationship that was more

like amatried couple. Alice observed them hold hands, kiss “like a making-

out kiss,” and disappear into the bedroom. When they went into a bedroom

Alice surmised they were on a bed because, when she looked under the door,

she could not see their feet on the floor,

Alice stated, that as a young child, her father ignored her but after she turned

twelve he began to sexually abuse her. ‘The first time her father

inappropriately touched her occurred when she was passing her father on

the stairs. [Petitioner] “took his hand and rubbed it up my skirt.”

Thereafter, [Petitioner] asked her to wear skirts or dresses and “used to feel

up on me.”

At another time [Petitioner] called Alice into a room and put her on top of

him. He pulled his penis out of his pants, pushed her underwear to the side,

and “started rubbing on me.” [Petitioner] pushed her away because Alice

exuded discomfort over his conduct. Alice did not tell anyone about her

father’s conduct until she was approximately eighteen years old. At that

time, she confided in Ann about the abuse and together they went to the

police.

Tom testified that he saw his father having sex with Ann and was the

“lookout” on countless occasions. The first time he saw them engaging in

sex was when he looked through a window and saw his father on top of

Ann, who was naked. His father saw Tom at the window and later asked

him if he had “see[n] anything” and that he was “going to get beat if [he]

did see something.” On occasion Tom protested being a lookout, but his

father responded by beating him.

State vy. ALR., No. A-3286-11T1, 2015 WL 5446690, at *1-2 (N.J. Super Ct. App. Div. Sept. 14,

2015.)

Petitioner was indicted and charged with first degree aggravated sexual assault, N.J.S.A. §

2C:14-2a(1) (count one); first degree aggravated sexual assault, N.J.S.A. § 2C:14-2a(2)(c) (count

two); second degree endangering the welfare of a child, N.J.S.A. § 2C:24-4a (counts three and

six); second degree sexual assault, N.J.S.A, § 2C:14-2b (counts four and five); and third degree

witness tampering, N.J.S.A, § 2C:28-5a(1) (count seven).? (See ECF No. 11-2, at 1-3.) A jury

convicted Petitioner of two counts of second degree endangering the welfare of a child and two

counsel of second-degree sexual assault (counts three through six), See A.R., 2015 WL 5446690,

at *1. The jury acquitted Petitioner of first degree aggravated sexual assault (counts one and two),

3 The state dismissed count seven before trial. See 4.R., 2015 WL 5446690, at *1.

“Pin cites to ECF No. 11-1 through | £-27 are to the pagination automatically generated by the CM/ECF.

however, it convicted Petitioner of the lesser included offense of offensive touching. See id The

court sentenced Petitioner to an aggregate term of twenty years imprisonment, subject to an eighty-

five percent parole ineligibility period under the No Early Release Act, N.J.S.A. 2C:43-7.2, and

three years of parole supervision. See id.

Petitioner filed a counseled Notice of Appeal with the Appellate Division raising the

following claims:

1. THE TRIAL COURT ERRED IN DENYING A.R.’S SEVERANCE

MOTION BECAUSE THERE WAS NO VALID REASON FOR

JOINING THE COUNTS PERTAINING TO ANN WITH THE

COUNTS PERTAINING TO ALICE AND JOINDER SERVED

ONLY TO IMPERMISSIBLY SUGGEST THAT DEFENDANT HAD

A PROPENSITY TO COMMIT SEXUAL ASSAULT AND TO

IMPROPERLY BOLSTER THE TESTIMONY OF EACH VICTIM.

THE TRIAL COURT ALSO ERRED BY FAILING TO ISSUE AN

INSTRUCTION LIMITING THE JURY FROM USING THE JOINED

OFFENSES FOR THESE IMPERMISSBILE PURPOSES.

2, REVERSAL IS REQUIRED BECAUSE THE TRIAL COURT

ERRONEOUSLY PERMITTED THE STATE TO ELICIT

INADMISSIBLE HEARSAY IN VIOLATION OF A.R.’S RIGHTS

TO CONFRONTATION AND A FAIR TRIAL.

A. The Trial Court Erred In Permitting The State to Bolster Ann’s

Testimony With An Out-Of-Court Statement She Allegedly Made To

Her Mother When She Was Ten Years Oid.

B. Trial Court Committed Plain Error By Allowing The Prosecutor To

Introduce Damaging Inferential Hearsay In Violation Of A.R.’s Rights

to Confrontation And A Fair Trial.

C. The Trial Court Erred In Allowing The State To Bolster The

Credibility Of Tom’s Testimony By Eliciting From Tom That He

Reported The Abuse To A Bridgeton Detective In 2004 and 2005, And

To A Doctor.

D. The Trial Court Erred In Permitting Ann’s Testimony That It Was

“Common Knowledge” That “Everybody In The House” “Knew” That

“Something Was Going On” Between Her And A.R., And That It Was

Alice’s “Job” To “Report” Suspicious Activity To Their Mother.

3. THE TRIAL COURT’S FAILURE TO READ THE MODEL

CHARGE ON PRIOR CONTRADICTORY STATEMENTS AND

DELIVERY OF A DEFICIENT CHARGE ON LACK OF FRESH

COMPLAINT REQUIRES REVERSAL.

4. THE TRIAL WAS SO INFESTED WITH ERROR THAT EVEN IF

EACH INDIVIDUAL ERROR DOES NOT WARRANT REVERSAL,

THE AGGREGATE OF THE ERRORS REQUIRES A NEW TRIAL.

5. THIS CASE MUST BE REMANDED FOR RESENTENCING

BECAUSE THE IMPOSITION OF CONSECUTIVE MAXIMUM

SENTENCES WAS NOT SUPPORTED BY THE RECORD AND

THE COURT FAILED TO CONSIDER MITIGATING EVIDENCE

SUPPORTED IN THE RECORD WHEN RECONSIDERING A.R.’S

SENTENCE.

(ECF No. 11-4, at 2-4.) On September 14, 2015, the Superior Court of New Jersey, Appeliate

Division, dismissed Petitioner’s claims as meritless. See 4.R., 2015 WL 5446690. The New Jersey

Supreme Court subsequently denied Petitioner’s petition for certification. State v. A.R., 129 A.3d

329 (2016).

Petitioner filed a pro se post-conviction relief (“PCR”) petition raising a multitude of

claims. (ECF No. 11-9, at 9-12.) Petitioner reiterated his direct appeal claims. Petitioner also

raised the following nine claims of trial counsel ineffective assistance:°

1, Trial counsel was inexperienced in these cases;

2. Trial counsel failed to introduce into evidence statements from Ann,

Alice and Tom of his innocence and doctor’s reports;

3. Trial counsel failed to tell the jury there was a previous trial involving

Ann and Tom;

4. Trial counsel failed to tell the jury that Ann had testified on Petitioner’s

behalf in his previous trial;

5. Trial counsel failed to tell the jury Tom had testified against Petitioner

in his previous trial, but then came forward saying he lied and was under

his mother’s control;

* The Court has summarized these claims.

6. Trial counsel failed to tell the jury Alice had knowledge Petitioner was

on trial in 2007, and did not come report the abuse and gave statement

of Petitioner’s innocence in the past;

7, Trial counsel failed to ask Ann if she was on medication for her P.T.S,D,

in 2009 during the time of the complaint;

8, Trial counsel made comments during opening statements that “many of

you jurors, just as soon as they heard the charges they were out the door

because of the nature of the charges which he had no right [] saying

because the judge had already spoke to the jury that the missing jurors

had nothing to do with the case”;

9. Trial counsel during opening statements spoke of Petitioner as guilty and

ok for [the jury] to convict him.

(See id.) On July 30, 2016, petitioner filed a counseled PCR petition arguing only that trial counsel

was ineffective for failing to call witnesses Diana Harwed and Wilfreido Reyes. (ECF No. 11-10,

at 16-17.) Counsei also attached pro se documents that Petitioner had sent to counsel. (See ECF

Nos, 11-11 at 31 and 11-12.) In these pro se documents, Petitioner appears to argue that trial

counsel was ineffective for not telling the jury that Petitioner was investigated in 2002-2003

regarding “V.C.” and “all my five children” and the investigation was dismissed after his children

gave statements regarding his innocence. (See ECF No. i1-12.} However, the remainder of the

pro se allegations appear to be irrelevant to this matter. Most of the claims asserted in the pro se

documents appear to be claims regarding a 2007 trial referenced by Petitioner. These claims refer

to a “Judge Fisher”, defense attorney “Shapiro”, and victim “V.C.” and it does not appear that

those individuals were parties in this matter before the Court. (See ECF No. 11-12, at 12-24.)

On September 23, 2016, the PCR court denied his petition. (See ECF No. 11-15; see also

ECF No. 11-36, PCR Decision Transcript.) Petitioner appealed, and the Appellate Division

affirmed the denial. State v. A.R., No. A-2215-16T3, 2018 WL 1192699 (N.J. Super Ct. App. Div.

March 28, 2018.) The New Jersey Supreme Court then denied his petition for certification. State

v. AR, 194 A.3d 92 (2018).

Petitioner filed his instant habeas petition on February 6, 2019. (ECF No. 1.) Petitioner

asserts eleven grounds for relief.° Respondents filed an answer. (ECF No. 11.) Petitioner filed a

reply. (ECF No. 15.)

Il. STANDARDS OF REVIEW

A, Legal Standard

Under the Antiterrorism and Effective Death Penalty Act of 1996 “AEDPA”), 28 U.S.C,

§ 2254 provides, the district court “shall entertain an application for writ of habeas corpus on

behalf of a person in custody pursuant to the judgment of a State court only on the ground that he

is in custody in violation of the Constitution or laws or treaties of the United States.” Habeas

petitioners bear the burden of establishing their entitlement to relief for each claim presented in a

petition based upon the record that was before the state court. See Eley v. Erickson, 712 F.3d 837,

846 (3d Cir. 2013). District courts are required to give great deference to the determinations of

the state trial and appellate courts. Renico v. Lett, 559 U.S. 766, 772-73 (2010).

Where a claim has been adjudicated on the merits by the state courts, the district court shall

not grant an application for writ of habeas corpus unless the state court adjudication:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States: or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

6 Petitioner lists all eleven grounds for relief under Ground One through Ground Four of the § 2254 Petition for Writ

of Habeas Corpus form, (See generally ECF No. 1.) The Court will address the eleven grounds for relief as separate

claims and will address the claims out of order for clarity purposes.

28 U.S.C. § 2254(d).

“Contrary to clearly established Federal law” means the state court applied a rule that

contradicted the governing law set forth in U.S. Supreme Court precedent or that the state court

confronted a set of facts that were materially indistinguishable from U.S. Supreme Court precedent

and atrived at a different result than the Supreme Court. Eley, 712 F.3d at 846 (citing Williams vy.

Te aylor, 529 U.S. 362, 405-06 (2000)). Federal law is clearly established for these purposes where

itis clearly expressed in “only the holdings, as opposed to the dicta” of the opinions of the United

States Supreme Court. See Woods v. Donald, 575 U.S. 312, 316 (2015), An “unreasonable

application” of clearly established federal law is an “objectively unreasonable” application of law,

not merely an erroneous application. Eley, 712 F.3d at 846 (quoting Renico, 559 U.S, at 773). As

to 28 U.S.C. § 2254(d)(1), a federal court must confine its examination to evidence in the record.

Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011),

“When reviewing state criminal convictions on collateral review, federal judges are

required to afford state courts due respect by overturning their decisions only when there could be

no reasonable dispute that they were wrong.” Woods, 574 U.S. at 316. Where a petitioner

challenges an allegedly erroneous factual determination of the state courts, “a determination of a

factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have

the burden of rebutting the presumption of correctness by clear and convincing evidence, 28

§ 2254(e)(1). Furthermore, “[wl]hen a state court arrives at a factual finding based on

credibility determinations, the habeas court must determine whether that credibility determination

was unreasonable.” See Keith v. Pennsylvania, 484 F, App’x 694, 697 (3d Cir. 2012) (citing Rice

Collins, 546 U.S. 333, 339 (2006).

Finally, to the extent that a petitioner’s constitutional claims are unexhausted and/or

procedurally defaulted, a court can nevertheless deny them on the merits under 28 U.S.C. §

2254(b)(2). See Taylor v. Horn, 504 F.3d 416, 427 (3d Cir, 2007) (“Here, because we will deny

all of [petitioner’s] claims on the merits, we need not address exhaustion”); Bronshtein v. Horn,

404 F.3d 700, 728 (3d Cir, 2005) (considering procedurally defaulted claim, and stating that

“Tulnder 28 U.S.C. § 2254(b)(2), we may reject claims on the merits even though they were not

properly exhausted, and we take that approach here’).

B. Ineffective Assistance of Counsel Standard

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated the two-

prong test for demonstrating when counsel is deemed ineffective. First, a petitioner must show

that considering all the circumstances, counsel’s performance fell below an objective standard of

reasonableness. See id. at 688; see also Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (noting

that it is necessary to analyze an ineffectiveness claim considering all circumstances) (citation

omitted). A petitioner must identify the acts or omissions that are alleged not to have been the

result of reasonable professional judgment. See Strickland, 466 U.S, at 690. Under this first prong

of the Strickland test, scrutiny of counsel’s conduct must be “highly deferential.” See id. at 689.

Indeed, “[c]ounsel is strongly presumed to have rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.” Jd at 690. The

reviewing court must make every effort to “eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” fd. at 689. If counsel makes “a thorough investigation of law

facts” about his plausible options, the strategic choices he makes accordingly are “virtually

unchallengeable,” Gov't of Virgin Islands v. Weatherwax, 77 F.3d 1425, 1432 (3d Cir. 2006)

(citing Strickland, 466 U.S. at 690-91). If, on the other hand, counsel pursues a certain strategy

after a less than complete investigation, his choices are considered reasonable “to the extent that

reasonable professional judgments support the limitations on investigation.” Rolan v. Vaughn,

445 F.3d 671, 682 (3d Cir. 2006) (citing Strickland, 466 U.S. at 690-91).

The second prong of the Strickland test requires the petitioner to affirmatively prove

prejudice, See 466 U.S at 693, Prejudice is found where “there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Id. at 694, A reasonable probability is “a probability sufficient to undermine confidence in the

outcome,” □□□ see also McBridge v. Superintendent, SCI Houtzdale, 687 F.3d 92, 102 n.11 □□□

Cir. 2012). “This does not require that counsel’s actions more likely than not altered the outcome,

but the difference between Strick/and’s prejudice standard and a more-probable-than-not standard

is slight and matters only in the rarest case. The likelihood of a different result must be substantial,

not just conceivable.” Harrington v. Richter, 562 U.S, 86, 111-12 (2011) (internal quotation

marks and citations omitted).

“With respect to the sequence of the two prongs, the Strickland Court held that ‘a court

need not determine whether counsel’s performance was deficient before examining the prejudice

suffered by the defendant as a result of the alleged deficiencies .., If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be

followed.’” Rainey v. Varner, 603 F.3d 189, 201 (3d Cir. 2010) (quoting Strickland, 466 U.S. at

697).

When assessing an ineffective assistance of counsel claim in the federal habeas context,

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

10

Strickland’s standard.” Grant, 709 F.3d at 232 (quoting Harrington, 562 U.S. at 101). “A state

court must be granted a deference and latitude that are not in operation when the case involves

[direct] review under the Strickland standard itself.” Id. Federal habeas review of ineffective

assistance of counsel claims is thus “doubly deferential.” Jd. (quoting Pinholster, 563 U.S, at 190).

Federal habeas courts must “take a highly deferential look at counsel’s performance” under

Strickland, “through the deferential lens of § 2254(d),” fd. (internal quotation marks and citations

omitted),

IH. ANALYSIS

A. Ground Four: Failure to Call Witnesses’

Petitioner’s fourth ground for relief alleges that the PCR Court erred in denying his PCR

petition when the court “knew there were witnesses which were requested and were not called for

the 2011 trial”’ (ECF No. 1, at 8.) On collateral appeal, Petitioner argued to the PCR court that

trial counsel was ineffective for failing to call Diana Hardwed and Wilfreido Reyes. (ECF No. 11-

10, at 16-17.)

The PCR court denied Petitioner’s claim that trial counsel was ineffective for failing to call

witnesses Diana Hardwed, an Atlantic County DYFS caseworker, and Wilfreido Reyes, who

Petitioner claimed was a very close family friend, finding Petitioner failed to establish a prima

facie showing of ineffective assistance of counsel. (See ECF No, 11-39, PCR Hearing Transcript,

at 14:6-25.) The PCR court noted that Petitioner failed to present evidence showing what the

witnesses would have testified to and how their testimony would have changed the result of

Petitioner’s trial. id.)

7 As noted above, the Court will be addressing Petitioner’s claims out of order for clarity purposes.

1]

The Appellate Division affirmed the PCR court ruling. See A.R., 2018 WL 1192699, The

Appellate Division first explained that PCR counsel represented that Petitioner said Reyes would

have told the jury that Petitioner did not sexually assault his daughters, and Hardwed would have

testified that she would have taken the children away in 2002 if it had been reported Petitioner

committed any of the alleged acts. Id, at * 2. The Appellate Division reasoned as follows:

[Petitioner] claims his counsel was ineffective by failing to call

Hardwed and Reyes as witnesses at trial. Our Supreme Court has

observed that “[djetermining which witnesses” to call to testify “is

one of the most difficult strategic decisions that any trial attorney

must confront.” State v. Arthur, 184 N.J. 307, 320 (2005). “[A]

defense attorney’s decision concerning which witnesses to call to

the stand is ‘an art,’ and a court’s review of such a decision should

be ‘highly deferential[,|’” /d@ at 321 (quoting Strickland, 466 U.S.

at 689, 693).

[Petitioner] fails to demonstrate his trial counsel was ineffective by

failing to call Hardwed and Reyes as witnesses at trial. His claim is □

founded solely on the bald and conclusory assertion they would have

provided testimony that would have changed the outcome of his

trial. The assertion is unsupported by an affidavit or certification

based on personal knowledge establishing what would have been

revealed if they had testified. See [State v. Petrozelli, 351 N.J.

Super. 14, 23 (2002)]; see also State v. Bey, 161 N.J. 233, 262 (1999)

(finding claim based on defendant’s speculation is insufficient for

grant of post-conviction relief).

[Petitioner] also failed to present any facts supported by an affidavit

or certification establishing a reasonable probability that had the

witnesses testified at trial, the result would have been different. See

Strickland, 466 U.S. at 694; see, e.g, Bey, 161 NJ. at 262 (finding

trial counsel is not ineffective by failing to call witnesses whose

testimony would not have changed the outcome). Even accepting

[Petitioner’s] supported conclusory assertions, [Petitioner] failed to

demonstrate any probability the putative testimony of the witnesses

would have changed the trial outcome. [Petitioner] alleges Hardwed

would have established that DYFS’s involvement and investigations

between 1994 and 2003 revealed allegations against [Petitioner]

were unsubstantiated, and that Ann did not report [Petitioner’s]

sexual assaults during that time. Such testimony would not have

changed the result of [Petitioner’s]} trial, however, because Ann

testified she spoke with different DYFS representatives during the

12

years [Petitioner] sexually assaulted her, never disclosed

[Petitioner’s] actions, and told a DYFS caseworker that [Petitioner]

did not sexually assault her.

[Petitioner] argues that if Reyes testified, he would have established

the children’s mother was “abusive to Ann and was known to make

false sexual allegations against [Petitioner] involving Ann.” Ann

testified her mother was physically and mentally abusive toward her

during the years [Petitioner] sexually assaulted her, and therefore

any testimony from Reyes concerning the mother's abuse would

have added little to Ann’s testimony, which was based on Ann’s

personal knowledge. Also, [Petitioner] does not claim Reyes had

personal knowledge of the mother’s purported false allegations that

[Petitioner] was sexually assaulting Ann and, thus, Reyes would

have been unable to testify to such alleged facts at trial.

A defendant must establish both prongs of the Strickland standard

in order to obtain a reversal of the challenged conviction,

Strickland, 466 U.S. at 687; State v. Nash, 212 N.J. 518, 542 (2013);

[State v. Fritz, 105 N.J. 42, 52 (1987)]. As the PCR court aptly

determined here, [Petitioner] failed to sustain his burden of

establishing a prima facie claim of ineffective assistance of counsel

under both prongs of the Strickland standard. The court correctly

denied [Petitioner’s] PCR petition.

2018 WL 1192699, at * 4-5,

Under federal law, a failure to investigate potentially exculpatory evidence or witnesses may

form the basis of ineffective assistance of counsel. See Strickland, 466 U.S. at 690-91; see also

Brown vy. United States, No. 13-2552, 2016 WL 1732377, at *4-5 (D.N.J. May 2, 2016). To

successfully establish this claim, a petitioner “must make a comprehensive showing as to what the

investigation would have produced. The focus of the inquiry must be on what information would

have been obtained ... and whether such information, assuming admissibility in court, would have

produced a different result.” See Brown, 2016 WL 1732377, at *5 (quoting United States v. Askew,

88 F.3d 1065, 1073 (D.C. Cir. 1996) (internal quotation marks omitted)). The petitioner must also

still demonstrate he suffered prejudice. See Strickland, 466 U.S. at 690-91. But, where a petitioner

merely speculates as to what a witness might have said if interviewed by counsel and does not

13

present sworn testimony from that witness, a petitioner will not be able to establish the prejudice

prong of Strickland. See Duncan v. Morton, 256 F.3d 189, 201-02 (3d Cir. 2001) (citing United

States v, Gray, 878 F.2d 702, 712 (3d Cir. 1989)).

Petitioner does not specify what these potential witnesses would have testified to. Instead,

Petitioner provides what appears to be a 2011 pro se brief where Petitioner indicated Hardwed®

would have testified to “state documents and doctor’s reports and statement’s given by [his]

accusers, which would [have] contradicted their 2011 trial testimony” and Reyes would have

testified that the victims’ mother “always made false sexual assault allegations between [Ann] and

[Petitioner]. (See ECF No. 1-1 at 5.) Petitioner has not provided any sworn testimony, affidavit,

or certification from either witness. (See ECF No, 1.) Petitioner’s mere speculation regarding the

potential witnesses’ testimony is insufficient to establish prejudice. See Duncan, 256 F.3d at 201-

02. Petitioner has also failed to show any potential information from these witnesses would have

produced a different result at Petitioner’s trial. See Brown, 2016 WL 1732377, at *5. Petitioner

cannot demonstrate the state court’s adjudication was an unreasonable application of clearly

established federal law. Thus, Petitioner’s claim is denied.’

§ Plaintiff spells the name as Howard. The Court understands this is the same individual.

° The Court notes that Petitioner did not indicate which witnesses he is referring to in his Petition. A review of his

2011 briefing, attached to his Petition, shows that in addition to Hardwed and Reyes, Petitioner named three additional

witnesses trial counsel allegedly failed to call, (See ECF No. l-1, at 53.) Petitioner names: 1) “medical doctor” who

would have testified Ann’s medication had the effect of confusing her thoughts; 2) Louis Charles Shapiro, Petitioner’s

2007 trial defense attorney, whose “testimony would have contradicted all fof his] three accusers”; and 3) Investigator

Bill Cassidy, who would have testified “that one of [the witnesses] had requested to be placed in the witness protection

program because of [Petitioner’s] wilfe’s] anger because [the witness] was to reveal [Petitioner’s wife] was forcing

him to testify against Petitioner.” (7d) It is unclear if Petitioner is attempting to include these three witnesses in his

claim here, however, any claim regarding those witnesses fails for similar reasons as witnesses Hardwed and Reyes.

Petitioner makes only conclusory arguments regarding what these alleged witnesses would have testified to and he

provides no sworn testimony or affidavit from any of the witnesses. Again, Petitioner’s conclusory assertion regarding

witness testimony is insufficient to establish prejudice. See Duncan, 256 F.3d at 201-02. As Petitioner fails to

establish prejudice as required by Srrick/land, any potential claim regarding these witnesses is denied. See Strickland,

466 U.S, at 690-91,

14

B. Ground Seven, Eight, Nine, and Ten: Trial Court Error, Evidentiary Rulings

In his seventh, eighth, ninth and tenth grounds for relief, Petitioner argues that the trial

court erred in admitting certain evidence at trial. (See ECF No. 1, at 9 & 11.) These claims will

be addressed in turn.

Generally, the admissibility of evidence is a question of state law which is not cognizable

on habeas review, See Estelle vy. McGuire, 502 U.S, 32, 67-68 (1991); see also Keller v. Larkins,

251 F.3d 408, 416 2.2 (3d Cir. 2001) (“A federal habeas court .. . cannot decide whether the

evidence in question was properly allowed under the state law of evidence.”) “[T]he Due Process

Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state

evidentiary rules.” Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983). If, however, a petitioner

can demonstrate that the admission of the evidence denied him Due Process by depriving him of

the “fundamental elements of fairness in [his] criminal trial,” then his claim may be cognizable on

habeas review. Glenn vy. Wynder, 743 F.3d 402, 407 Gd Cir. 2014) (quoting Riggins v. Nevada,

504 U.S. 127, 149 (1992) (Thomas, J. dissenting)). A petitioner’s trial “need not have been

perfect,” but it must have been fair. United States v. Hastin, 461 U.S. 499, 508 (1983). Thus, a

petitioner can only succeed in challenging a state court’s evidentiary ruling by showing that the

ruling was “so arbitrary or prejudicial that it rendered the trial fundamentally unfair.” Scoft v.

Bartkowski, No. 11-3365, 2013 WL 4537651, at *9 (D.N.J. Aug. 27, 2013) (citing Romano v.

Oklahoma, 512 U.S. 1, 12-13 (1994)). The category of infractions that violate fundamental

fairness has been defined by the Supreme Court “very narrowiy, based on the recognition that,

beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has

limited application.” Medina v. California, 505 U.S. 437, 443 (1992).

15

1, Hearsay-Common Knowledge

Petitioner’s seventh ground for relief alleges the trial court erred in finding “[Ann’s]

opinion as to what the non-testifying member[s] of her family ‘knew’ was admissible under

NJ.R.E 701.” (ECF No. 1, at 9.) Although Petitioner fails to elaborate on what testimony he is

claiming was inappropriately admitted at trial, it appears he is attempting raise an evidentiary claim

that was raised on direct appeal. On direct appeal to the Appellate Division, Petitioner argued “the

trial court erred in permitting Ann’s testimony that it was ‘common knowledge’ that ‘everybody

in the house’ ‘knew’ that ‘something was going on’ between her and A.R., and that it was Alice’s

‘job’ to ‘report’ suspicious activity to their mother.” (ECF No. 11-4, at 49.)

On direct examination, Ann testified as follows:

Q. Okay. And, who would be home or would there be anyone home when this

would occur at your house?

A. My sister and my brother were home. My brother’s job was to keep my

sister away, also lookout, watch driveway, make sure nobody’s coming.

Q, When you say your sister, who are you referring to?

AL [Alice. |

Q. Why would his job be to keep your sister away?

A. Because my sister was supposed to report what she sees. J mean it was

common knowledge that everybody in the house already knew that there

was something going on between my dad an[d] myself, and it was her job

to investigate, to find out, to report back to my mom.

(ECF No, 11-33, N.T, 9/20/11, at 63:24 to 64:12.)

The Appellate Division denied this claim on direct appeal, finding Petitioner’s claim was

“without sufficient merit to warrant discussion in a written opinion.” See A.R., 2015 WL 5446690,

at *8. As explained above, any argument that the state court erred in permitting Ann to provide

16

this testimony, is not proper for federal habeas review. See Wilson y, Vaughn, 533 F.3d 208, 213

(3d Cir. 2008) ([a]dmissibility of evidence is a state law issue.”) (citing Estelle, 502 U.S. at 72).

Petitioner can only show his due process rights were violated if the evidentiary decision was so

arbitrary and prejudicial that is rendered the trial fundamentally unfair, See Romano, 512 U.S. at

1213,

Petitioner fails to demonstrate that Ann’s testimony rendered the trial fundamentally unfair. There

was ample testimony that multiple family members in the household were aware of Petitioner’s

abuse of Ann. Ann testified that Petitioner sexually abused her. (See generally ECF No. 11-33,

N.T. 9/20/11, at 52:2 to 74:3.) Ann testified that Tom, her brother, saw her and Petitioner “having

sex” and was the “lookout” for them, (/d., at 52:4-5, 61:21-25.) Ann also testified that when she

was ten year's old, she told her mother about the abuse. (/d., at 67:9-14.) Tom testified that he was

aware of the sexual abuse and was often the lookout for them. (7d, at 179:4 to 181:7 & 184:16 to

185:18.) Alice testified that she witnessed Petitioner and Ann “making out.” (Ud., at 152:18 to

152:21.) The evidenced introduced at trial showed that household members did know about that

abuse. Based on all the evidence introduced at trial, the Court does not find that any possible

adverse effect from Ann’s testimony regarding what the household members “knew” rendered the

trial fundamentally unfair. Romano, 512 U.S. at 12-13. Because Petitioner fails to demonstrate

that his constitutional rights have been violated, this claim for habeas relief is denied,

2, Hearsay- Fresh Complaint

Petitioner argues in his eighth claim that the trial court erred in admitting fresh complaint

evidence without a limiting instruction. (See ECF No. 1, at 11.) Petitioner fails to elaborate on

which fresh complaint evidence he is referring to, however, it appears that Petitioner is attempting

to raise a claim that was asserted on direct appeal. On direct appeal, Petitioner argued the trial

17

court erred in permitting the state to bolster Ann’s credibility with an out-of-court statement she

allegedly made to her mother when she was ten years old. (See ECF No. 11-4, at 36-40.)

At Petitioner’s trial, during the direct examination of Ann, the prosecutor asked Ann if she

ever told her mother about what her father was doing to her. (See ECF No, 11-33, N.T, 9/20/11,

at 65:3-4,) Defense counsel objected, arguing the testimony was inadmissible as a fresh complaint

because Petitioner’s mother was not a witness in the trial. Ud., at 65:6-24.) The prosecution argued

that the testimony was not a fresh complaint because Ann’s testimony pertained to her own

knowledge of being brought to the hospital by her mother. Ud, at 66:4-8.) The prosecution further

argued that a fresh complaint would be if the state was attempting to admit the mother’s testimony

regarding what Ann told her, not Ann’s own testimony. Ud., at 66:11-13.) The trial court allowed

the testimony, finding it did not see how it was fresh complaint issue. (/d., at 66:9-10.)

Ann testified that when she was ten years old, she told her mother about the abuse. (/d., at

67:9-14.) She testified her mother “flipped out” and pulled a knife on Petitioner. (/d., at 67:23 to

68:8.) Ann also testified that her mother and Petitioner drove Ann to the hospital, where Ann

changed her story. (id, at 68:15 to 69:8.)

Under New Jersey state law, hearsay is an out-of-court statement admitted “to prove the

truth of the matter asserted.” N.JR.E. 801(c). Subject to limited exceptions, hearsay is

inadmissible. N.J.R.E, 802. Ordinarily, a third party’s testimony about a victim’s out-of-court

description of an alleged sexual assault is inadmissible hearsay evidence. /d. However, the fresh-

complaint doctrine is a common law exception to this rule that “allows witnesses in a criminal trial

to testify to a victim’s complaint of sexual assault.” State v. Hill, 578 A.2d 370, 371 (1990). The

purpose of the doctrine is to “allow | the admission of evidence of a victim’s complaint of sexual

abuse, otherwise inadmissible as hearsay, to negate the inference that the victim’s initial silence or

18

delay indicates that the charge is fabricated.” Stave v. R.K., 106 A.3d 1224, 1230-1231 (2015)

(citing Mill, 578 A.2d at 377).

The Appellate Division denied this claim, finding Petitioner’s “arguments are without

sufficient merit to warrant discussion in a written opinion.” See 4.R., 2015 WL 5446690, at *8.

The testimony that Ann told her mother about the abuse and her mother took her to the hospital

was not hearsay admitted by a third-party witness for the truth of the matter. Rather, Ann testified

herself as to what she told her mother and how her mother reacted to that information.

Additionally, Ann only testified that she witnessed her mother pull a knife on Petitioner and that

her mother took Ann to the hospital. Ann did not testify to any out-of-court statements made by

her mother. The state court overruled defense counsel’s objection to this testimony, finding the

testimony was not a “fresh complaint.” Accordingly, Petitioner is unable to demonstrate that the

admission of Ann’s testimony was so prejudicial as to render his trial fundamentally unfair. See

Scott, 2013 WL 4537651, at *9. Petitioner is not entitled to relief on this claim.

3. Inferential Hearsay

Petitioner argues in his ninth ground for relief that “the note the jury sent to the court during

[] deliberation renders untenable the state’s contention that the jury was not affected by the

improper[ly] admitted evidence regarding Sergeant O’Neill’s 2004 interview with [Ann] which

gave rise to the inescapable inference that O’Neill had knowledge from a non-testifying source

that [Petitioner] sexually abused Ann.” (ECF No. 1, at 11.) Based on a review of the state court

record, it appears Petitioner is attempting to assert his direct appeal claim that the trial court

committed plain error by allowing the prosecutor to introduce damaging inferential hearsay in

violation of Petitioner’s rights to confrontation and a fair trial. (See ECF No. 11-4, at 40-46.)

19

As explained above, Ann testified at Petitioner’s trial that she told her mother about the

abuse when she was ten, the prosecutor then asked the following:

Q. After that point did you ever attempt to tell anyone again?

A, No. Never.

Q. And, at some point in time, were you interviewed back in 2004 by a

detective from Vineland?

A. Yes.

Q. And, did he confront you with whether or not your father has ever

touched you?

A. Yes.

Q. Okay. And, what happened during that interview?

A, I wouldn’t tell him. I couldn’t.

Q. Did you - - did you become emotional?

A. Very.

Q. And, do you remember anything else you said to the detective that

day in regards to - -

A. Asked me if I was being completely honest, and I said I was being

as honest as I could be. And I] asked him to leave.

Q, And he let you leave.

A. Yeah.

(ECF No. 11-33, N.T. 9/20/11, at 69:19 to 70:14.) Sergeant Steven O’Neill subsequently testified

as follows:

Q. And, do you recall if you were working back in - - back on February

17, 2004?

A. Yes,

20

Q, And, on that occasion, did you have an opportunity to meet with an

individual by the name of [Ann] Rullan?

A, Yes, I did.

Q, And, did you interview Ms. Rullan?

A, Yes, I did.

Q. Now, I’m not going to ask you what she stated to you during that

interview, but do you recall when speaking to her what her

demeanor was like?

A. She was very emotionally upset, to the point [ would say

uncontrollable at times.

Q. Did you need to take breaks during the interview?

A. Yes, I did. She took a break, and I had to provide her with tissues,

and also I gave her some water.

Q. Okay, and, the individual you were speaking to her about, was that

her father?

A. That is correct,

Q. And, how was she with answering your questions?

A. She - - in between her being very emotional, she had a very difficult

time talking about it,

Q. Okay. And, how did the interview end?

A. She - - she had asked, after one of her breaks, she asked if she can

go home, and she didn’t want to discuss it any further.

Ud., at 137:6 to 138:10.) The jury asked the court during deliberations: “What year was [Ann]

interviewed by O’Neill and for what reason?” (ECF No. 11-35, Tr. 9/22/11, at 14:23-24.) The

court informed the jury that the interview took place in 2004 and there was no testimony in the

record as to the reason for that interview. Ud., at 22:12-19.)

21

Petitioner argued on direct appeal that the testimony of Ann and Sergeant O’Neill “gave

tise to the inescapable inference that a non-testifying witness had provided O’Neill with

information, which prompted him to suspect [Petitioner] had sexually abused Ann” in violation of

State vy. Branch, 182 N.J. 338 (2005), Gee ECF No. 11-4, at 42-46.) The Appellate Division

denied this claim, finding Petitioner’s “remaining arguments are without sufficient merit to warrant

discussion in a written opinion.” See 4.R., 2015 WL 5446690, at *8.

Under New Jersey state law, “the Confrontation Clause and the hearsay rule are violated

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

declarant to incriminate the defendants in the crime charged.” Branch, 182 N.J, at 359 (citing

State v. Bankston, 63 NI. 263, 268-60 (1973)). Accordingly, “[w]ben the logical implication to

be drawn from the testimony leads the jury to believe that a non-testifying witness has given the

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

63 N.J. at 271. The New Jersey Supreme Court noted that a police officer can explain “the reason

he approached a suspect or went to the scene of the crime by stating that he did so ‘upon

information received[ ]’ . . . to show that the officer was not acting in an arbitrary manner or to

explain his subsequent conduct.” /d at 268. However, “when the officer becomes more specific

by repeating what some other person told him concerning a crime by the accused|,| the testimony

violates the hearsay rule ... [and his] Sixth Amendment right to be confronted by witnesses against

him.” Jd. at 268-69,

The record shows that Sergeant O’Neill did not provide any testimony as to why he was

interviewing Ann in 2004, Additionally, defense counsel asked Sergeant O’Neill on cross-

examination if he was interviewing Ann in relation to some other crime, and the prosecution object

and defense counsel withdrew the question. (ECF No. 11-33, N.T. 9/20/11, 141:18-24.) Sergeant

22

O’Neill did not offer any testimony that would indicate a non-testifying witness gave him any

evidence of Petitioner’s guilt. See Bankston, 63 N.J. at 271. Additionally, Tom testified that he

reported the relationship between Ann and Petitioner to a Vineland Detective Lynn Wheling in

2004. (See ECF No. 11-33, N.T. 9/20/11, 187:9 to 188:21.) Sergeant O’Neill’s testimony did not

convey “directly or by inference” that non-testifying declarant incriminated defendant. See

Branch, 182 at 350.

Even if the Sergeant O’Neill’s testimony was impermissible hearsay, it was harmless error

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

influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).

Factors that a federal court is to consider in determining whether a Confrontation Clause error was

harmless “include the importance of the witness’ testimony in the prosecution’s case, whether the

testimony was cumulative, the presence or absence of evidence corroborating or contradicting the

testimony of the witness on material points, the extent of cross-examination otherwise permitted,

and, of course, the overall strength of the prosecution’s case.” Delaware vy, Van Arsdall, 475 U.S.

673, 684 (1986).

Sergeant O’Neill’s testimony was cumulative, as Ann had already testified that she was

interviewed by O’Neil! and was very emotional and unwilling to tell him anything. Additionally,

defense counsel had the opportunity to cross-examine Sergeant O'Neill. Most importantly, there

was ample evidence introduced at trial against Petitioner, including Ann and Alice’s testimony

that Petitioner sexually abused them and Tom’s testimony that he witnessed the sexual abuse. Any

inference that could have been made from Sergeant O’Neill’s testimony was harmless,

23

The Appellate Court found this claim was without sufficient merit to warrant discussion

and denied the claim. Petitioner has not shown that the states evidentiary ruling violated his

constitutional right. Thus, Petitioner’s claim is denied.

4. Hearsay- Bolstering Credibility .

Petitioner’s tenth ground for relief alleges that the “judge intentionally and deliberately set

up [Petitioner] for failure by permitting the state to bolster the credibility of Tom’s testimony.

(ECF No. 1, at 11.) On direct appeal Petitioner argued “the trial court erred in allowing the state

to bolster the credibility of Tom’s testimony by eliciting from Tom that he reported the abuse he

witnessed to a Bridgeton Detective in 2004 and 2005, and to a doctor.” (ECF No. 11-4, at 46-49.)

The Appellate Division denied this claim, finding it was without arguable merit to warrant

discussion in a written opinion, See A.R., 2015 WL 5446690, at *8.

On direct examination, ‘Tom testified that he reported Petitioner’s sexual abuse of Ann to

police in 2004 and 2005. (ECF No. 11-33, N.T. 9/20/11, at 187:9 to 189:11.) Tom also testified

that he told a doctor at the New Jersey Cares Institute about the abuse. (/d., at 189:15 to 190:2.)

Under New Jersey law, hearsay is defined as “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” N.LR.E. 801(c). Tom was not testifying to a statement made by someone other than

himself. Tom testified only to reports that he made. Moreover, Tom testified only that these

reports were made, not to the specifics of the reports. This evidence does not qualify as hearsay.

Assuming arguendo, that this evidence was hearsay, Petitioner again fails to show the

admission of the evidence was so arbitrary and prejudicial that is rendered the trial fundamentally

unfair, See Romano, 512 U.S. at 12-13. As explained repeatedly throughout this Opinion, there

was significant evidence offered against Petitioner, including eyewitness testimony. Petitioner has

24

failed to show that Tom’s testimony that he reported the abuse in 2004 and 2005 rendered the trial

fundamentally unfair. As such, this claim for habeas relief is denied.

C. GROUNDS ONE, TWO, THREE, FIVE, SIX AND ELEVEN

Petitioner’s remaining grounds for relief fail to specify which constitutional challenges he

is making to his conviction. Petitioner also fails to assert any supporting facts for his remaining

grounds for relief.

In his first ground for relief, Petitioner argues the “trial court judge negotiate|d|

[Petitioner’s} constitutional rights by not making sure the witnesses requested for the 2011 trial

appearance [] attend[ed]. Witnesses were requested by [Petitioner] and was ignored.” (ECF No.

i, at 6.) Petitioner fails to specify which witnesses he is referring to, how the trial court was made

aware of said witnesses, and any ruling by the trial regarding these alleged witnesses.

Petitioner’s second ground for relief submits the “trial court judge violated [Petitioner’s]

constitutional right by deliberately not allowing the trial jury to hear any information which was

the [Petitioner’s| defense. But instead limited the [Petitioner’s] defense for the purpose of the

judge and state’s satisfaction to gain conviction.” Ud.) Petitioner provides no facts regarding what

information the trial court precluded Petitioner from presenting to the jury or what defense

Petitioner was prevented from asserting.

The third ground for relief alleges the “N.J. Appellate Court has {] violated [Petitioner’s]

constitutional right’s by [] having knowledge that [Petitioner] has presented evidence to Superior

Court which would exonerate [Petitioner] but instead affirm,” (/d.} In his fifth ground for relief,

Petitioner appears to argue the PCR court erred in denying Petitioner an evidentiary hearing when

“there was a briefing stating there [was] information which was not provided and allowed to be

heard by the trial jury, which may ha[ve] in fact exonerate[d] [Petitioner].” (Ud, at 8.) The third

25

and fifth grounds for relief fail to provide the Court with any of the alleged facts that would

“exonerate” Petitioner.

Petitioner alleges in his sixth ground for relief that the prosecutor “fin]appropriately

[misled] defense counsel by providing false facts and was allowed by trial court judge to do so.

[|Trial court judge knew prosecutor was lying[,] which in our law that is [obstruction] of justice.”

at 9.) Petitioner fails to support this claim with any facts to support his allegation that the

prosecutor provided “false facts” or that the trial court was aware of such false information.

Finally, Petitioner’s eleventh ground for relief argues “the trial court intentionally and

deliberately set up [Petitioner] for failure by permitting the state to boister the credibility of Alice’s

testimony.” CUd., at 11.) There is no information provided in the Petition regarding what evidence

was offered by the state to bolster the credibility of Alice.

Federal habeas petitioners must satisfy heightened pleading standards, which include

specifying all grounds for relief. See 28 U.S.C § 2254 Rule 2(c}; McFarland vy. Scott, 512 U.S,

849, 856 (1994), It is the burden of a habeas petitioner to articulate his allegations by setting forth

facts to support them. See Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir.1991), A court has

a duty to liberally construe a petitioner’s pro se filings. Estelle, 429 U.S. at 106. However, “bald

assertions and conclusory allegations” do not provide a court with sufficient information to permit

a proper assessment of habeas claims. Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir, 1987); see

Zettlemoyer, 923 F.2d at 298 (A petitioner “cannot meet his burden to show that counsel made

errors so serious that his representation fell below an objective standard of reasonableness based

on vague and conclusory allegations ... [r]ather, he must set forth facts to support his contention.””);

U.S. v. Thomas, 221 F.3d 430, 437-38 Gd Cir. 2000) (“[Vlague and conclusory allegations

26

contained in a [habeas petition] may be disposed of without further investigation by the District

Court.”).

The Court has attempted to construe Petitioner’s remaining grounds for relief by

thoroughly reviewing the numerous documents that were submitted pro se and through counsel to

the state courts on appeal. While Petitioner repeatedly alleged on appeal in state court that

information from a 2004 investigation and a 2007 trial should have been admitted at his 2011 trial,

the Court is unable to specifically apply these numerous unclear state court arguments to any of

his remaining habeas grounds for relief. Plaintiff’s remaining claims submit nothing more than

bald assertions and conclusory arguments, Therefore, Petitioner’s grounds one, two, three, five,

six and eleven are unreviewable and are dismissed. See Zettlemoyer, 923 F.2d at 301 (“bald

assertions and conclusory allegations do not provide sufficient ground” for further inquiry on

habeas review).

Il. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken from a final order in a proceeding under 28 U.S.C. §

2254, A certificate of appealability may issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C, § 2253(c)(2). “A petitioner satisfies

this standard by demonstrating that jurists of reason could disagree with the district court’s

resolution of his constitutionai claims or that jurists could conclude the issues presented are

adequate to deserve encouragement to proceed further.” Miller-El », Cockrell, 537 U.S. 322, 327

(2003).

Here, Petitioner has failed to make a substantial showing of the denial of a constitutional

right. Thus, no certificate of appealability shall issue.

27

IV. CONCLUSION

For the above reasons, the § 2254 habeas petition is denied, and a certificate of

appealability will not issue. An appropriate Order follows.

Dated: January 26, 2022 ee

ae BS ee oA,

‘

SE ——

Hon. Karen M. Williams,

United States District Judge

28