TOWNSEND v. DAVIS

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

WALTER TOWNSEND,

Petiti

nee Civil Action No. 19-15157 (MAS)

Vv.

OPINION

BRUCE DAVIS, et al.,

Respondents.

SHIPP, District Judge

This matter comes before the Court on Petitioner Walter Townsend’s Petition for a writ of

habeas corpus brought pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Following an order to answer,

Respondents filed a response to the Petition (ECF No. 7), to which Petitioner replied. (ECF No.

20.) For the following reasons, this Court will deny the Petition, and will deny Petitioner a

certificate of appealability.

I. BACKGROUND

In its opinion affirming Petitioner’s conviction on direct appeal, the New Jersey Supreme

Court summarized the factual background of Petitioner’s convictions as follows:

The State presented evidence at trial to show that on December 11,

1981, [Petitioner] lived with his girlfriend, Norma Williams, and her

two sons, seven-year-old Jason and three-year-old Brian. That

evening, [Petitioner] entered the home and told the two boys to go

upstairs. The boys did so but stopped on the staircase and watched

as [Petitioner] repeatedly struck their mother with a two-by-four

with exposed nails until she was motionless. [Petitioner] then

picked her up and called the boys to accompany him to the hospital.

While leaving the driveway, [Petitioner] crashed his blue

pickup truck through the gate to the garage. On the way to the

hospital, [Petitioner] instructed Jason to tell the police that a red tow

truck struck his mother, after which three men jumped out of the

truck and beat her with sticks. [Petitioner] threatened to kill Jason

if he did not tell that story.

At the hospital, Williams was examined in the emergency

room by Dr. Abrid. Williams was drowsy but conscious, her blood

pressure was low, and she had alcohol on her breath. She had a cut

over her eye, multiple bone swelling, and internal injuries. Dr.

Abrid found no damage to the brain stem, and Williams’s eye

movements were normal. Dr. Abrid ordered oxygen and a blood

transfusion for Williams.

The police were called to investigate. Patrolman Joseph

Salvatore and his partner arrived at the hospital around 6:45 p.m.

and tried to speak to Williams. After telling Salvatore she was

struck by a car, Williams lost consciousness. Salvatore then located

[Petitioner] and the boys in the waiting room and questioned them.

[Petitioner] told Salvatore that when he arrived home and found

Williams bleeding and leaning against the gate to their home, he

immediately drove her to the hospital. Jason told Salvatore that a

red truck hit his mother and three men got out of the truck and beat

her with sticks before leaving. Salvatore did not question Brian

because of his youth.

Detective Theodore Pogorzelski arrived at the hospital

around 9:30 p.m. After the doctor informed him that Williams was

in critical condition and unable to talk, Detective Pogorzelski met

with [Petitioner] and the boys. Jason repeated his story about the

red truck, but when asked about the three men, he said he did not

see them beat his mother.

At some point, Detective Pogorzelski was informed that he

could try to speak to Williams. He told Williams the reason he was

there and that her prognosis did not look good. Williams’s only

response was to moan. When the detective asked if [Petitioner] had

hit her, Williams shook her head from side-to-side indicating “‘no.”

Then he asked her if a truck had hit her, and she replied by shaking

her head “no.” When the detective asked if a car struck her, she

moved her head up and down indicating “yes.” Williams did not

respond when asked the color of the car. She died at 12:10 a.m.,

shortly after the questioning.

Meanwhile, Detectives Taylor and Pascillo were looking for

evidence of a hit-and-run accident in front of Williams’s home.

They discovered that one of the chain-link gates to the driveway was

damaged and had blue paint on it but found no debris, broken glass,

or blood in the area. The police went door-to-door looking for

witnesses but were unsuccessful. Later, when Officer Thomas

Hoffman examined [Petitioner]’s blue truck parked near the

hospital, he observed recent damage to the left rear.

A few hours after Williams died, [Petitioner] and the boys

were taken to the police station. Officer Hoffman claimed he

overheard [Petitioner] tell Jason not to say anything to the police.

At the station, [Petitioner] was separated from the boys. Initially,

Jason was reluctant to talk to the police. When he decided to talk,

he accused [Petitioner] of fighting with his mother and striking her

with a board. Jason stated that [Petitioner] told him to tell the story

about the red truck and the three men. He also said that

[Petitioner]’s truck hit the driveway gate on the way to the hospital.

Prior to interviewing [Petitioner], Detectives Pogorzelski

and Taylor informed him of his Miranda[] rights. After waiving his

rights, [Petitioner] denied instructing Jason to tell the police that a

red tow truck struck Williams and stated that he never threatened

Jason. He claimed he was at the corner bar when Jason ran inside

and exclaimed that a red car had smashed the gate to their driveway.

[Petitioner] said he immediately went home and discovered

Williams on the driveway, moaning that a red car smashed through

the gate.

That same day, Detective Pogorzelski re-interviewed Jason

in the presence of his two uncles. Jason again accused [Petitioner]

of killing his mother. Because Brian was only three years old, the

police did not question him.

[Petitioner] consented to a search of the house he shared with

the decedent. The police found blood on the couch but no weapons.

[Petitioner] explained that he had placed Williams on the couch

before taking her to the hospital. Pursuant to a search warrant, the

police searched [Petitioner]’s truck. They were unable to find any

evidence to support the theory that [Petitioner] had struck Williams

with his truck.

The police canvassed the neighborhood again but located no

witnesses. One neighbor, thirteen-year-old Annissa Gaines, was

prevented from speaking to the police by her mother. The police

completed the investigation without filing any charges against

[Petitioner]. The State recognized the weaknesses in its case: seven-

year-old Jason was the only witness who had implicated [Petitioner]

and Jason had relayed several different stories. Additionally,

Williams had indicated to Detective Pogorzelski that [Petitioner]

had not hit her, and that a car had struck her.

Thereafter, Jason and Brian lived with relatives and not

[Petitioner]. When Brian turned eighteen, he moved to Trenton.

[Petitioner] was also living in Trenton, and Brian visited him several

times. In May 2001, Brian read a newspaper article about unsolved

homicides that mentioned his mother. Brian contacted Jason and

discussed the article. Later, Jason called the Mercer County

Prosecutor’s Office and requested that the case be reopened.

On August 2, 2001, the prosecutor reopened the

investigation. Detective Albert DiNatale interviewed and obtained

statements from several people who had lived near Williams in

1981. One neighbor, Beulah Ball, whose home shared a common

wall with Williams’s house, recalled that on the evening of

December 11, 1981, she heard a female voice say, “Please, don’t hit

me anymore, please. Take me to the hospital.”

Another witness, Annissa Gaines, the thirteen-year-old

whose mother prevented her from speaking to police in 1981, said

she saw [Petitioner] tap the driveway gate with his truck, back up,

and then ram the gate. She remembered seeing a child in the

window of the house but did not see anyone near the gate or lying

on the ground. The next day she learned of Williams’s death.

Patricia Brevard, a childhood friend of Williams, stated that

[Petitioner] did not seem upset when he told her about Williams’s

death. Later, when [Petitioner] visited her, he admitted he had

injured Williams before taking her to the hospital. Brevard claimed

that she was afraid that if she reported the information to the police,

[Petitioner] would harm her.

On August 10, 2001, Brian gave a formal statement outlining

his version of the incident. He stated that while his mother was on

the couch, he observed [Petitioner] repeatedly strike her with a

board containing exposed nails.

A third son of Williams’s, Freddie Williams, also testified at

trial. He was fifteen years old when his mother died. He had lived

with his mother and [Petitioner] for about five years, but in 1978 or

1979 he moved in with his grandparents because he could not

tolerate [Petitioner]’s physical abuse of his mother.

Mercer County Medical Examiner Dr. Raafat Ahmad had

performed an autopsy on Williams’s body in December 1981. At

that time, she listed the manner of death as “undetermined.” When

Dr. Ahmad reviewed the autopsy results again in May 2002, she

concluded that Williams’s injuries were more consistent with having

been beaten to death.

The State also presented the testimony of Dr. Judith Kabus,

a licensed professional counselor. Dr. Kabus was a clinical

supervisor who worked with abused women, incest victims, and

rape victims at the Women’s Center of Monmouth County from

1984 to 1998. She had counseled “hundreds” of battered women.

The trial court found Dr. Kabus qualified to testify as an expert on

battered women in general and battered women’s syndrome.

Dr. Kabus testified that to be diagnosed with battered

women’s syndrome, a woman had to exhibit five of eight

characteristics. She discussed the common behavioral

characteristics that battered women and women with the syndrome

exhibit. She claimed that although there is a slight difference

between them, both groups often lie about abuse or the origin of

their injuries to protect the batterer, as well as to protect themselves

from more abuse.

[Petitioner] presented the expert testimony of Dr. Ronald J.

Coughlin, who was qualified as an expert in psychological trauma.

Dr. Coughlin agreed that there are common behaviors between

women with battered women’s syndrome and battered women who

do not have the syndrome. Although he testified that in his

experience lying to protect their batterers is a common behavioral

characteristic of both groups of women, he was not aware of any

research to support that finding.

[Petitioner] did not testify. The jury found [Petitioner] guilty

of murder.

State v. Townsend, 186 N.J. 473, 480-84 (2006).

On direct appeal, Petitioner argued that the admission of the battered women’s syndrome

testimony constituted error, and that the failure to give a limiting instruction as to that testimony

was also erroneous. Jd. at 479. The Appellate Division agreed and reversed Petitioner’s

conviction. The New Jersey Supreme Court, however, disagreed, affirmed Petitioner’s conviction,

and remanded the case for resentencing. Jd. at 479-80. In addressing the battered women’s

syndrome related testimony, the New Jersey Supreme Court found that the subject was properly

the subject of expert testimony, that such testimony was proper in a criminal proceeding even in

the absence of a formal diagnosis of the victim where relevant to the question of why a victim

would lie to protect her abuser, and that the admission of Dr. Kabus’s testimony in this matter was

therefore entirely proper. Id. at 490-98. The state supreme court likewise found that the failure to

provide a limiting instruction as to the proper use of that testimony was harmless in light of the

limited testimony of Dr. Kabus — which did not attempt to diagnose the victim but instead was

limited to the psychological effects of frequent abuse including the inclination of victims to lie

about the source of their injuries — and the considerable testimony confirming that Williams had

suffered frequent beatings at the hands of Petitioner. Jd. at 499-500.

Following his direct appeal, Petitioner pursued a petition for post-conviction relief (“PCR”)

in which he raised a number of claims. Only one of those claims is relevant to this petition — a

claim in which Petitioner asserted that his initial PCR counsel proved ineffective in failing to file

a motion for a new trial based on alleged newly discovered evidence in the form of a letter written

to Petitioner by Brian Williams in 2003. (See ECF No. 10-1 at 4.) This “alleged recantation letter

....[1]n pertinent part... states: ‘I did not see you kill my mother, I told Jason. He said he already

knew.’” (Ud. at 3.). Although Brian Williams did admit to writing the letter to Petitioner, he

“denie[d] he made this statement, asserting [that Petitioner] altered the letter by inserting those

two sentences.” (/d.). The PCR trial level and appellate courts both rejected this claim. (/d. at

6-7.) As the Appellate Division explained,

The PCR court accepted the supposed recantation letter as “newly

discovered,” in light of a showing from [Petitioner] that he reached

out to several attorneys, as early as 2003, to look at the letter.

However, the court found the recantation letter failed [as a basis for

a new trial based on newly discovered evidence] because significant

and credible other evidence demonstrated [Petitioner]’s guilt. The

PCR judge noted the following, overwhelming evidence of

[Petitioner]’s guilt:

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Jason was the primary eyewitness and testified to

Brian witnessing the beating as well; a neighbor

testified to hearing the victim scream for her life

inside the house and another neighbor saw

[Petitioner] ram his truck into his fence, suggesting

an attempt to stage the scene; one of the victim’s

childhood friends testified [Petitioner] himself

confessed his guilt to her a month and a half after

[the] victim’s death; after the victim had died, an

officer overheard [Petitioner] telling Jason not to say

anything to the police; and finally, [Petitioner] has

given at least three different accounts of how Norma

Williams died. First, when interviewed by police

immediately after Norma’s death in 1981,

[Petitioner] told police a red truck hit her. Second,

as mentioned above, [Petitioner] told a childhood

friend of Norma’s that he was responsible. Third, in

1996 [Petitioner] told Norma’s son Freddie that

Brian, who was three at the time of Norma’s death,

ran over her with a truck. Furthermore, [Petitioner]’s

first story that a red truck hit Norma was neither

supported by the state of the crime scene nor

Norma’s injuries. In light of this myriad other

evidence, the [c]ourt cannot find that the newly-

discovered evidence would likely change the jury’s

verdict if a new trial were granted.

Additionally, the PCR judge found the letter could not be

viewed as reliable recantation evidence because the declarant, Brian

Williams, adamantly denied making the recantation and consistently

reaffirmed his trial testimony that he witnessed [Petitioner] kill his

mother throughout [a] lengthy deposition. During his deposition in

2006, Brian testified in response to a question regarding the alleged

recantation letter: “[t]his is a letter which was altered. This was the

letter the prosecutors presented to me when [Petitioner] slipped in a

sentence and changed my handwriting. This is not the original

letter.” As the PCR judge noted: “everything in [Brian’s] deposition

indicates he truly holds [Petitioner] responsible for the death of his

mother, and nothing suggests he was motived by financial gain.”

Finally, the PCR judge explained:

[W here there are two different versions of the same

letter, it stands to reason at least one of them must

have been altered. This [clourt notes it is

significantly easier to add to a handwritten document

than it is to take something out without leaving clear

signs of tampering. There does not appear to be any

such indications of tampering on the letter Brian

claims to have written, which lacks the exculpatory

line .... [T]he newly discovered evidence [thus]

lacks credibility and would be unlikely to change the

outcome of the trial.

The record amply supports the PCR judge’s conclusion that

the purported recantation is not the sort of evidence which would

probably alter the outcome of a new trial, because it is inherently

suspect, the declarant denies he recanted his trial testimony, and

there is overwhelming evidence of [Petitioner]’s guilt which is

unaddressed by the letter.

[Petitioner] did not demonstrate ineffective assistance of

PCR counsel or establish a prima facie case for PCR based on the

purported newly discovered recantation evidence. Accordingly, he

was not entitled to an evidentiary hearing . . . and his petition was

properly denied by the PCR court.

_ Ud.)

Il. LEGAL STANDARD

Under 28 U.S.C. § 2254(a), the district court “shall entertain an application for a writ of

habeas corpus [o]n 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.” A habeas petitioner has the burden of establishing his entitlement to relief for each claim

presented in his petition based upon the record that was before the state court. See Eley v. Erickson,

712 F.3d 837, 846-47 (3d Cir. 2013). Under the statute, as amended by the Anti-Terrorism and

Effective Death Penalty Act, 28 U.S.C. § 2244 (““AEDPA”), district courts are required to give

great deference to the determinations of the state trial and appellate courts. See 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 a 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.

28 U.S.C. § 2254(d)(1)-(2). Federal law is clearly established for these purposes where it is 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). “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.”

Id. 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 the]

applicant shall have the burden of rebutting the presumption of correctness by clear and convincing

evidence.” 28 U.S.C. § 2254(e)(1).

Ill. DISCUSSION

A. Petitioner’s Battered Women’s Syndrome Claims

In his first two claims, Petitioner argues that the state courts erred in permitting the state to

present expert testimony as to battered women’s syndrome and its relevance to the victim’s choice

not to identify Petitioner as the source of her injuries when questioned shortly before her death,

and in failing to provide a limiting instruction as to that evidence as part of jury instructions.

Because “[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,” see Marshall v. Lonberger, 459 U.S. 422, 438

n.6 (1983), claims challenging the admissibility of testimony or other evidence are normally

considered questions of state law which are not cognizable in habeas corpus. See Keller v. Larkins,

251 F.3d 408, 416 n.2 (3d Cir. 2001) (“A federal habeas court... cannot decide whether the

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evidence in question was properly allowed under the state law of evidence”); see also Estelle □□

McGuire, 502 U.S. 62, 67-70 (1991); Wilson v. Vaughn, 533 F.3d 208, 213-14 (3d Cir. 2008), cert.

denied, 556 U.S. 1170 (2009). A habeas petitioner may therefore raise a habeas claim based on a

state law evidentiary decision only where he can show that the admission of the evidence in

question denied him Due Process under the Fourteenth Amendment by depriving him of the

“fundamental elements of fairness in [his] criminal trial.” Glenn v. Wynder, 743 F.3d 402, 407 (3d

Cir. 2014) (quoting Riggins v. Nevada, 504 U.S. 127, 149 (1992) (Thomas, J. dissenting)). “The

Supreme Court has “defined the category of infractions that violate ‘fundamental fairness’ very

narrowly, based on the recognition that, beyond the specific guarantees enumerated in the Bill of

Rights, the Due Process Clause has limited operation.’” Jd. (quoting Medina v. California, 505

U.S. 437, 443 (1992)). “In order to satisfy due process, [Petitioner’s] trial must have been fair; it

need not have been perfect.” Jd. (citing United States v. Hasting, 461 U.S. 499, 508 (1983)). Thus,

a Due Process violation will only occur in the context of a state court evidentiary ruling when that

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

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

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

In this matter, the highest state court — the New Jersey Supreme Court — carefully

considered the admissibility of the battered women’s syndrome evidence and ultimately

determined that the expert testimony was admissible under state law as it was relevant to the issue

of the credibility of the victim’s indication to police that she was hit by a vehicle, was based on

the expert witness’s training and experience and a wealth of scientific information regarding the

syndrome, and was reliable. Based on these conclusions, the state supreme court found the expert

testimony admissible as it provided context to the victim’s final conversations with police and

could aid the jury in determining whether the victim’s story was credible in light of the testimony

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of her children. Nothing Petitioner has submitted in any way indicates that this conclusion was

unreasonable or involved an unreasonable evaluation of the facts of Petitioner’s trial, and the New

Jersey Supreme Court’s decision was neither arbitrary nor unduly prejudicial. Although the expert

testimony in question — which essentially established that there is a tendency of women who have

been subjected to physical abuse to lie about the source of their injuries whether officially

diagnosed with battered women’s syndrome or not — certainly was not helpful to Petitioner, it did

not have the capacity to render his trial fundamentally unfair, especially in light of the eyewitness

testimony of the victim’s sons, the lack of any evidence to support the contention that the victim

was struck by a car, and the testimony of other witnesses which led support to the boys’

accusations. As the admission of this evidence did not render Petitioner’s trial fundamentally

unfair, and Petitioner has not shown that the admission of such evidence is contrary to or an

unreasonable application of any relevant Supreme Court caselaw,' he has failed to show an

entitlement to habeas relief on this basis.

Petitioner next contends that the state supreme court erred in finding that the failure to give

a limiting instruction as to the battered women’s syndrome testimony was harmless. That a jury

“instruction was allegedly incorrect under state law is not a basis for habeas relief.” Duncan v.

Morton, 256 F.3d 189, 203 (3d Cir. 2001) (quoting Estelle v. McGuire, 502 U.S. 62, 71-72 (1991)),

cert. denied, 534 U.S. 919 (2001). A petitioner can therefore only show an entitlement to habeas

relief based upon allegedly inadequate jury instructions where the petitioner proves that “the ailing

’ While there is not a significant body of federal caselaw directly on point, those few relevant cases

which have been decided by the Courts of Appeals suggest that such testimony is properly

admissible under federal law. See, e.g., United States v. Lopez, 913 F.3d 807, 823-26 (9th Cir.

2019); Arcoren vy. United States, 929 F.2d 1235, 1239-41 (8th Cir.), cert. denied, 502 U.S. 913

(1991). In any event, there is no relevant Supreme Court ruling of which this Court is aware to

which the decision of the New Jersey Supreme Court was contrary or which that court

unreasonably applied.

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instruction by itself so infected the entire trial that the resulting conviction violates due process.”

Id. (quoting Henderson v. Kibbe, 431 U.S. 145, 154 (1977)). That a challenged instruction was

“undesirable, erroneous, or even universally condemned,” is insufficient to warrant habeas relief:

a petitioner can only prevail on such a claim by showing that the instruction rendered his trial

fundamentally unfair. Id.

In this matter, the New Jersey Supreme Court determined that a limiting instruction should

have been given directing the jury to consider the battered women’s syndrome evidence only as it

related to the credibility of the victim’s denial that Petitioner had been the cause of her injuries.

That court found, however, that the failure to give such a curative instruction — which was not

requested by Petitioner’s counsel — was ultimately harmless because neither testifying expert

suggested that the victim actually had battered women’s syndrome, the prosecution argued only

that the jury should consider this testimony in aiding it to understand why the victim told police

she had been hit by a car rather than beaten by Petitioner, and because the record was otherwise

replete with testimony establishing the history of domestic violence committed by Petitioner

against the victim — which itself was subject to a limiting instruction that it should not be used for

propensity purposes — and the direct eyewitness testimony of the victim’s two sons as to

Petitioner’s severe beating of the victim just prior to taking her to the hospital. In a habeas

proceeding, an error of even constitutional dimension will be considered harmless and serve as no

basis for relief unless the alleged error had a substantial and injurious effect upon the outcome of

the trial. Fry y. Pliler, 551 U.S. 112, 115-16 (2007). In light of this eyewitness testimony, as well

as the testimony of the victim’s neighbors and the medical examiner which support the boys’

version of events, and in light of the limited purpose for which the prosecution argued the jury

should consider the expert testimony, this Court finds that the New Jersey Supreme Court’s finding

was neither unreasonable nor involved a misapplication of relevant federal law. The lack of a

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curative instruction — especially in light of the general curative instruction given that the jury

should not consider the testimony regarding his history of abusing the victim for propensity

purposes — was not so grave an error that it had the capability of producing a substantial and

injurious result, and the alleged failing in any event was not so severe as to amount to a denial of

Due Process. The alleged failure to give the curative instruction was therefore harmless, and serves

as no basis for habeas relief.

B. Petitioner’s Ineffective Assistance Claim

In his final claim, Petitioner contends that he received ineffective assistance of counsel in

relation to his claim that he was entitled to a new trial based on newly discovered evidence during

PCR proceedings. The standard applicable to claims of ineffective assistance of counsel is well

established:

[c]laims of ineffective assistance are governed by the two-prong test

set forth in the Supreme Court’s opinion in Strickland vy.

Washington, 466 U.S. 668 (1984). To make out such a claim under

Strickland, a petitioner must first 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). To

succeed on an ineffective assistance claim, a 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 asserting ineffective assistance must therefore show that

counsel’s representation “fell below an objective standard of

reasonableness” under the circumstances. Jd. The reasonableness

of counsel’s representation must be determined based on the

particular facts of a petitioner’s case, viewed as of the time of the

challenged conduct of counsel. Jd. In scrutinizing counsel’s

performance, courts “must be highly deferential . . . a court must

indulge a strong presumption that counsel’s conduct falls within the

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wide range of reasonable professional assistance.” Strickland, 466

US. at 689.

Even where a petitioner is able to show that counsel’s

representation was deficient, he must still affirmatively demonstrate

that counsel’s deficient performance prejudiced the petitioner’s

defense. Id. at 692-93. “It is not enough for the defendant to show

that the errors had some conceivable effect on the outcome of the

proceeding.” Jd. at 693. The petitioner must demonstrate that “there

is a reasonable probability, 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.” Id. at 694; see also Shedrick, 493 F.3d at 299. Where a

“petition contains no factual matter regarding Strickland’s prejudice

prong, and [only provides] . . . unadorned legal conclusion{s] . . .

without supporting factual allegations,” that petition is insufficient

to warrant an evidentiary hearing, and the petitioner has not shown

his entitlement to habeas relief. See Palmer v. Hendricks, 592 F.3d

386, 395 (3d Cir. 2010). “Because failure to satisfy either prong

defeats an ineffective assistance claim, and because it is preferable

to avoid passing judgment on counsel’s performance when possible,

[Strickland, 466 U.S. at 697-98],” 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 (3d Cir. 2002).

Judge v. United States, 119 F. Supp. 3d 270, 280-81 (D.N.J. 2015).

Initially, the Court notes that Petitioner raised his claim to the state courts in the form of a

claim of ineffective assistance of post-conviction relief counsel. Indeed, even in his petition here,

the attorneys he charges with failing to fully investigate and pursue his claim of newly discovered

evidence are two attorneys who represented him during PCR proceedings only. (See ECF No. 1

at 14, 17-18; ECF No. 20 at 55-56.) Petitioner’s claim is thus best characterized as a claim of

ineffective assistance of counsel related to his collateral PCR proceedings, and not a claim of

ineffective assistance of trial or appellate counsel. Pursuant to 28 U.S.C. § 2254(i), however, the

“ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction

proceedings shall not be a ground for relief in a proceeding arising under section 2254.” A

petitioner therefore cannot obtain habeas relief through a claim of ineffective assistance of PCR

1A

counsel such as the one Petitioner raises here. See, e.g., Coleman v. Thompson, 501 U.S. 722, 752

(1991).

Even were this Court to accept, as did the PCR court, that Petitioner attempted to raise the

letter to the attention of some other attorneys as early as 2003 and reconstrue his claim as one for

ineffective assistance of trial or appellate counsel,’ however, this claim would still fail for all of

the reasons set forth by the state courts: the evidence against Petitioner — including two

eyewitnesses, a confession to a third party, the testimony of witnesses indicating they overheard

the fatal beating or saw Petitioner attempt to stage the scene, and wounds more consistent with a

beating than a vehicular accident — is considerable and strongly supports the jury’s conclusion that

he was, in fact, the victim’s killer; the alleged recantation is inherently suspect as it was apparently

absent from the copy of the letter that the author possessed and the author of the letter vehemently

denied ever having written the alleged recantation and instead claimed Petitioner added that line

to the letter; and the alleged recanting eyewitness continually reaffirmed his trial testimony and

asserted that he saw Petitioner kill his mother even after the alleged recantation was written. The

letter, had it been presented under these circumstances, would not have had the capacity to change

the outcome of Petitioner’s trial, and Petitioner was therefore not prejudiced as a result of counsel’s

alleged failure to raise the issue. To the extent Petitioner contends that a handwriting expert should

have been obtained to determine authorship, he has presented no expert testimony or reports which

suggest an expert would have concluded that the lines in question were written by the alleged

recanting witness rather than Petitioner himself, and Petitioner therefore cannot show any

* It is not clear from the record that Petitioner ever presented the letter or his new evidence claim

to trial or appellate counsel following his conviction, and the record does not clearly identify to

whom he showed the letter as early as 2003. This Court addresses the possibility that Petitioner

may have shown the letter to trial or appellate counsel solely for the sake of completeness as the

claim is in any event meritless and the claim, as raised in the current petition, is otherwise barred

by § 2254(4).

prejudice stemming from a failure to obtain such an expert. Petitioner’s ineffective assistance

claim is thus barred as currently raised, and is in any event without merit even if it could be

reconstrued as a claim for ineffective assistance of trial or appellate counsel. As all of Petitioner’s

claims are either barred or clearly without merit, Petitioner’s habeas petition (ECF No. 1) is denied.

IV. CERTIFICATE OF APPEALABILITY

Pursuant to 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 [that] the issues presented here are

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

(2003). Because Petitioner’s habeas claims are all clearly either barred or without merit for the

reasons set forth above, he has failed to make a substantial showing of a denial of a constitutional

□□□ his petition is not adequate to receive encouragement to proceed further. This Court

therefore denies Petitioner a certificate of appealability.

V. CONCLUSION

In conclusion, Petitioner’s habeas petition (ECF No. 1) is DENIED, and Petitioner is

DENIED a certificate of appealability. An appropriate order follows.

s/ Michael A. Shipp

MICHAEL A, SHIPP

UNITED STATES DISTRICT JUDGE