MESSINO v. NEW JERSEY STATE PRISON

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

___________________________________

:

JAMES M. MESSINO, :

:

Petitioner, : Civ. No. 20-7443 (NLH)

:

v. : OPINION

:

NEW JERSEY STATE PRISON, et al., :

:

Respondents. :

___________________________________:

APPEARANCES:

Jill R. Cohen

210 Haddon Avenue

Westmont, NJ 08108

Counsel for Petitioner

Christine A. Hoffman, Gloucester County Prosecutor

Dana R. Anton, Special Deputy Attorney General

Gloucester County Prosecutor’s Office

P.O. Box 623

Woodbury, NJ 08096

Counsel for Respondents

HILLMAN, District Judge

Petitioner James M. Messino, a state prisoner at South

Woods State Prison in Bridgeton, New Jersey, petitions for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1.

He challenges his 2002 conviction for aggravated manslaughter

and endangering the welfare of a child on the grounds of

ineffective assistance of counsel and error by the post-

conviction relief (“PCR”) judge. ECF No. 1 at 9–27. For the

reasons below, the petition will be denied and a certificate of

appealability shall not issue.

I. BACKGROUND

A. Factual Background1 and Procedural History

On direct appeal, the Superior Court of New Jersey,

Appellate Division, summarized the evidence underlying Messino’s

conviction as follows:

This matter arises from the death of D.R. on May 31,

1998. D.R. was born on April 19, 1996. His

biological parents were Laurie Roberts and Mimi Mollo.

Roberts and Mollo ended their relationship before D.R.

was born. Roberts met defendant in October 1997.

They began dating and, in December 1997, they moved

together with D.R. to an apartment in the basement of

a home owned by Laurie’s aunt, Elaine Roberts.

From the time of his birth, D.R. suffered from an

enlarged scrotum resulting from “hydrocele” or fluid

around the testicles. D.R. also suffered from a

genetic disorder called Hunter’s Syndrome, a form of

mucopolysaccharidosis (MPS), which is a condition that

affects the joints and bones and makes movement of the

arms difficult. On May 29, 1998, two days before his

death, D.R. underwent surgery to reduce the size of

his scrotum. Dr. Michael Louis Nance, a pediatrician

at Children’s Hospital of Philadelphia [(“CHOP”)],

performed the operation. The doctor testified that at

the time of the surgery, D.R.’s scrotum was slightly

enlarged and bruised and the bruising extended to

D.R.’s lower abdomen. Nance stated that he observed

blood in the tissues surrounding D.R.’s scrotum, which

he had never seen when performing a hydrocele

reduction procedure. Nance said that D.R.’s platelet

count was normal. The child’s blood clotting ability

also was normal. Nance stated that the incision made

during the operation was not near D.R.’s mesentery,

the fibrous tissue that holds the small bowel in place

1 Pursuant to 28 U.S.C. § 2254(e)(1), this Court affords deference

to the factual determinations of the State court.

2

and supplies blood to the bowel. D.R. was discharged

from the hospital on May 30, 1998.

After D.R.’s release from the hospital, Roberts and

defendant left D.R. at the home of Jean Mangini,

Roberts’ aunt. Roberts and defendant went home and

went to sleep. D.R. was brought home around 9:30 in

the evening. Roberts testified that defendant put

D.R. to bed around 10:30 p.m. While D.R. slept,

Roberts and defendant watched rented movies.

Around 5:30 a.m., the phone rang and D.R. was

awakened. Roberts picked up D.R. to calm him and then

she handed the child to defendant, who said he would

put D.R. back to bed. Roberts went upstairs to the

bathroom and, while she was in the bathroom, Roberts

heard D.R. cry out. Roberts testified that she went

back downstairs and asked defendant why D.R. had cried

out. Defendant said that D.R. did not want to go to

sleep. Roberts and defendant went to bed, but shortly

thereafter Roberts heard D.R. making a gagging sound.

She went to the child and saw that his body was

“clenching and unclenching.” Roberts thought that

D.R. was having a seizure. Roberts and defendant

called 911.

One of the paramedics who responded to the call

testified that when he arrived at the apartment, D.R.

was tossing, turning and crying. The paramedic said

that D.R. looked pale and sickly. The initial

physical check indicated that D.R. was in shock and he

appeared to be bleeding internally. D.R.’s abdomen

was distended and, according to the paramedic, there

was a “very, very black and blue” bruise on the

child’s right flank. He stated that the bruise was

round, oval-like and about three to four inches in

diameter. D.R.’s testicles were “purplish,” like a

black color and “grossly swollen.”

D.R. was taken to Kennedy Memorial Hospital. Dr.

Frank J. DeMartino was the attending physician in the

emergency room. He stated that, when he was brought

in, D.R. was in a “very grave clinical state.” He

also observed the swollen testicles and a fair amount

of bruising to the child’s right flank. DeMartino

asserted that D.R. was losing blood and the blood was

collecting in the child’s testicles, the abdominal

area and the flanks.

3

Anita Brown, a registered nurse who attended to D.R.

in the emergency room, testified that D.R. was “still

and unresponsive” when he was first brought to the

hospital. She noticed that D.R. had a huge bruise on

the lower right abdomen, that was larger than a

grapefruit and round in shape. Brown also noticed

that D.R.’s scrotum was swollen and appeared to be

filled with blood. Brown approached defendant and she

asked him what happened but defendant did not reply.

Brown testified that defendant was “very pale and very

quiet.” The medical personnel worked for an hour-and-

a-half to resuscitate D.R. Their efforts failed and

D.R. died.

An autopsy was performed at [CHOP]. Dr. Paul Hoyer,

the assistant medical examiner for Gloucester County,

testified that the autopsy revealed that the surgical

incision that had been made in the hydrocele procedure

was open and gaping. The autopsy also revealed that

about a quart of blood had collected in D.R.’s

abdominal cavity. Hoyer observed a four-inch tear of

the child’s mesentery. He testified that in his

opinion the tear had been caused by a “large blunt

force,” such as from a forceful kick or punch, a car

accident or a fall from ten or fifteen feet. Hoyer

also observed the bruise on D.R.’s abdomen and

concluded that the child’s death might be the result

of child abuse and homicide. He asserted that D.R.’s

death was not a “metabolic death.” The cause of death

was “hypovolemic shock.”

Evidence also was presented at trial concerning

injuries that D.R. had sustained in the months

preceding his death. On February 2, 1998, D.R. was

brought to Dr. Jeffrey P. Kovacs, an orthopedic

surgeon, because he was having problems with a cast

placed by another doctor to treat a fracture in D.R.’s

left tibia. Kovacs examined D.R. and observed that

the child’s left upper thigh was “massively swollen.”

He found signs of a spiral fracture in D.R.’s left

femur. The femur fracture was about a week old. The

tibia fracture had been sustained about a month before

the office visit. Kovacs testified that Roberts’

vague account of the injuries made him suspect that

she was not telling him the full story. Kovacs stated

that it is uncommon to see two fractures in the same

leg within a one-month period. Such an occurrence, he

4

said, is “one of the hallmarks of child abuse.”

Kovacs opined that D.R.’s fractures were not

“pathologic fractures” related to the child’s MPS.

Dr. Paige Kaplan, head of the Biochemical Genetics

Unit at [CHOP], treated D.R. in February 1998. She

also concluded that D.R.’s fractures were not causally

related to MPS.

Dr. Cindy Christian testified that she saw D.R. when

he was admitted to [CHOP] in February 1998. She

consulted Kaplan who confirmed that there is no

association between MPS and bone fractures. Christian

stated that she became convinced, to a reasonable

degree of medical certainty, that D.R. was a victim of

child abuse. She asserted that, when D.R. was brought

to the hospital on May 31, 1998, his platelet count

was normal and he had no problem with blood clotting.

Christian stated that a clotting problem was not the

cause of the child’s death. She also stated that the

hemorrhaging in D.R.’s stomach was caused by the

tearing of the mesentery. She asserted that such a

tear could not have been caused by dropping a child of

D.R.’s size ten inches onto a bed railing.

Dr. John Gregg is a pediatric orthopedic surgeon at

[CHOP]. He treated D.R. in February 1998 for the

multiple fractures. Gregg testified that D.R. had

normal bone density and his bones were not especially

brittle. The child also did not have a problem with

blood clotting. Dr. Gregg testified that, based on

his observations, there was no doubt that D.R. had

been physically abused.

The police commenced an investigation shortly after

D.R.’s death. Roberts and defendant both agreed to

accompany the investigating officers to the

prosecutor’s office for interviews. Defendant rode

with Detective Sergeant Richard O’Brien. When he

arrived at the prosecutor’s office, defendant was

taken to an interview room. Defendant was given a

copy of the prosecutor’s rights form and he was asked

to read it aloud. Defendant did so and agreed to give

a statement.

O’Brien and Investigator Kenneth E. Crane interviewed

defendant and took a taped statement in which

defendant stated that when D.R. awoke on the morning

5

of May 31, 1998, Roberts attended to D.R. while he

went outside to smoke a cigarette. When defendant

came back into the apartment, Roberts handed him the

child and she went upstairs to the bathroom.

Defendant said that D.R. was screaming because he did

not want to part with his mother. He said that when

Roberts returned, D.R. quieted down. After defendant

went to bed, D.R. began making a heaving sound.

Roberts thought D.R. was having a seizure and called

911.

During a break, Sergeant Alex Illas informed defendant

that what he and Roberts told the police did not “add

up.” Defendant said that he wanted to smoke a

cigarette. Illas accompanied defendant outside, where

defendant asked Illas, “Do you think I need a lawyer?”

Illas told defendant that it was his responsibility to

tell defendant that he had a right to have a lawyer,

but “that was his call.” Defendant said, “What is

going to happen to me if I tell you what happened?”

Defendant became tearful and told Illas that he had

dropped D.R. and D.R. struck the side of the bed.

In a second taped interview, defendant said that when

Roberts went up to the bathroom, he attempted to put

D.R. on the bed by holding the child with both hands,

one on each side of the abdomen. According to

defendant, D.R. squirmed in his hands, slipped from

his right hand and fell. Defendant said that the

child fell about one or one-and-a-half feet.

Defendant asserted that D.R. hit the bed railing

against his upper chest. Defendant said that he

placed D.R. on his bed. According to defendant, D.R.

cried at first and then calmed down. When Roberts

returned, she and defendant went to sleep and shortly

thereafter the child began to heave. They called 911.

Defendant did not testify at trial. He called two

witnesses. Dr. Roger A. Berg testified as an expert

in the field of radiology. He opined that the x-rays

taken of D.R.’s tibia fracture indicated that it was a

“toddler’s fracture” which is common in children

learning to walk. Berg stated that the femur fracture

could have been caused by a fall.

Dr. John E. Adams, a forensic pathologist, also

testified. He stated that D.R.’s abdominal injury was

not consistent with a fist blow. He asserted that

6

D.R. had some sort of blood clotting problem but he

did not know its cause. He also stated that D.R.’s

abdominal bruise could have been the result of

striking the right flank against the rail of the bed

when he fell from defendant’s hands. Adams said that

the patterns in the bruise were not the sort of

patterns that could have resulted from a bare fist.

Adams also stated that that there were Hurley–Schleie

cell deposits in the child’s mesentery. The condition

made the mesentery tissue thicker and shorter and

therefore susceptible to injury from a lot less force

than would otherwise be required for a major injury.

Adams opined that, strictly speaking, the child had

not suffered from a mesentery tear but rather from a

rare bowel injury, where the bowel had been torn from

the mesentery.

State v. Messino, 378 N.J. Super. 559, 569–74 (App. Div. 2005)

(footnote omitted).

Messino was charged with first-degree murder and second-

degree endangering the welfare of a child. Id. at 568.

Following a jury trial, he was convicted of first-degree

aggravated manslaughter (a lesser-included offense of murder)

and second-degree endangering the welfare of a child. State v.

Messino, No. A-2888-16T4, 2019 WL 208098, at *1–2 (N.J. Super.

Ct. App. Div. Jan. 16, 2019). He was sentenced to an aggregate

29 years of imprisonment -- 22 years on the manslaughter

conviction and 7 years on the endangering conviction -- subject

to the No Early Release Act, N.J.S.A. 2C:43-7.2(d)(2) and (20).

Id. at *2. The Appellate Division affirmed on June 30, 2005,

Messino, 378 N.J. Super. 559, and certification was denied on

October 12, 2005, State v. Messino, 185 N.J. 297 (2005).

7

Messino filed a PCR petition in 2005. State v. Messino,

No. A-0535-08T4, 2010 WL 5288503, at *1 (N.J. Super. Ct. App.

Div. Dec. 27, 2010). He argued, among other things, that his

counsel was ineffective for: (1) failing to interview and retain

an MPS expert, as well as other experts, despite having been

provided with the necessary funds to do so; (2) failing to

properly investigate the results of an investigation by the

Division of Youth and Family Services (DYFS)2 into allegations of

abuse; and (3) failing to present character witnesses. Id. at

*2. The PCR court denied the petition without a hearing in

2008. Id. In 2010, the Appellate Division reversed and

remanded for a hearing. Id. at *1.

On remand, the PCR judge presided over an evidentiary

hearing on 17 dates between December 2014 and June 2016,

during which defendant testified and presented the

testimony of more than twenty witnesses: Dr. Phillip

Ginsberg, a urology expert; Dr. Robert Stratton, a

child abuse expert; Alexander Esposito, a private

investigator and Dr. Claus Speth, a forensic

consultant, who were retained by his trial counsel to

assist in preparation of defendant’s trial; a

registered nurse and a nursing consultant who assisted

DYFS in its evaluation of D.R.’s home prior to his

death; and fourteen of the more than thirty witnesses

defendant claimed in his PCR petition would have

testified as character witnesses at trial. Included

among those witnesses were defendant’s mother,

2 DYFS is now known as the Division of Child Protection and

Permanency. Messino, 2019 WL 208098, at *3 n.3.

8

brother, aunt, co-workers, and friends. Defendant’s

trial counsel, Jaime Kaigh, testified on behalf of the

State over the course of five days.

Messino, 2019 WL 208098, at *3.

The Appellate Division summarized the evidence presented at

the hearing as follows:

Notably, Kaigh explained that after obtaining

defendant’s file, he reviewed all discovery including

recorded statements, transcripts, diagrams, hospital

records, police reports, and lists of potential

witnesses. Kaigh obtained voluminous out-of-state

medical records detailing D.R.’s medical history.

Kaigh summarized the defense theory of the case as

follows:

[D.R.] suffered from MPS. There were

allegations of child abuse that had to be

addressed in conjunction with the allegation

of murder and homicide. The child was

reported to have scratched corneas. Cloudy

corneas are part of MPS.

The child was reported to have hair pulled

out, when in reality it was alopecia. A

disease causing the hair loss.

. . .

The child was reported to have had multiple

leg fractures, yet, they can be explained as

toddler fractures. The second fracture

coming when he was wearing a cast.

So, all the allegations of child abuse could

be explained medically, either through the

walking cast that he had, the toddler

fractures, the alopecia, the self-abusive

behavior of MPS.

So . . . my theory of the case was

consistent with [defendant’s] last statement

to the police, he accidentally dropped this

child. . . . he was in no way a child

9

abuser, all the abuse can be explained; and

that not every accident is reckless.

Certainly, the goal of this case was to get

away from knowing or purposeful conduct . .

. murder. So, when faced with a confession,

that, [defendant] accidentally dropped the

child, the only theory of this case . . .

borne out through cross-examination of all

the doctors, was that this was an accidental

death. And, the main contributor was the

MPS. Which also explained away many of the

allegations of child abuse.

[(Emphasis added)].

From the inception of his representation, Kaigh

endeavored to find medical experts, hiring Esposito to

assist him. They first hired Speth as a medical

consultant, who opined that D.R.’s death was related

to his MPS and “the bed that [D.R.] slept in could

have caused the injury if . . . defendant dropped the

child as he described in his second taped statement.”

Because he had a criminal conviction, Speth did not

testify at trial.

Kaigh also hired Dr. John Smialek, a forensic

pathologist. However, Dr. Smialek withdrew his

assistance because he disagreed with Speth’s theory of

the case. Dr. Smialek died sometime after withdrawing

from the case.

Thereafter, Kaigh attempted to retain Dr. Michael

Baden, whom Kaigh described as “probably the most

revered pathologist in the country.” However, Dr.

Baden was unable to author a report that was

beneficial to the defense because he believed

defendant dropped D.R. and that such conduct was

evidence of manslaughter or aggravated manslaughter.

After Dr. Baden withdrew from the defense team, Dr.

Adams, who had written a report on behalf of Roberts,

agreed with Speth’s theory and agreed to author a

report supporting that viewpoint. Apparently, Dr.

Adams’s report was not furnished to the State until

just prior to trial. Kaigh acknowledged that the

lateness of Adams’s report and the previous report he

had authored on behalf of Roberts opining that D.R.’s

10

injuries were not caused by accidental means, likely

were not viewed favorably by the jury. Nonetheless,

Kaigh thought Adams was a qualified forensic

pathologist, a good witness, and someone who could

convince a jury of his point of view.

Kaigh also addressed other aspects of his trial

strategy. For example, he discussed his exhaustive

search to locate an expert in Hurler-Scheie Syndrome,

the specific type of MPS that afflicted D.R., and his

decision to refrain from pursuing additional test

results, which had been sent to Australia concerning

D.R.’s corneal injuries, concluding they were not

pertinent to the specific type of MPS at issue in the

case. Further, Kaigh reviewed the DYFS records and

determined that they did not pertain to an

investigation of defendant, but rather to the

caretaking of D.R. Kaigh also determined it was

unnecessary for Esposito to conduct interviews of the

State’s witnesses. Specifically, Roberts had informed

Kaigh “repeatedly that all of her family members

didn’t like [defendant], and that [D.R.] . . . would

cry out when [defendant] came near [him].”

In discussing his reasons for refraining from calling

character witnesses, Kaigh emphasized that since

defendant previously lied to first responders and the

police, Kaigh believed it would be “extremely self-

defeating when a person has lied” to place before the

jury defendant’s character for honesty through his

family and friends. According to Kaigh, “[m]ost lay

people who make up [a] jury are going to say, [‘]a

mother would say anything for her child, whether it’s

true or not[.’]” During the evidentiary hearing,

defendant’s proposed character witnesses gave

contradictory or non-responsive answers to the State’s

question whether their opinion for truthfulness would

“change if [they] knew [d]efendant lied to the police

about what happened in this case[.]”

Among the other witnesses who testified at the

hearing, Dr. Ginsberg opined that he reviewed D.R.’s

hemoglobin tests, which indicated to him that the

child was bleeding before he arrived at the hospital

for his hydrocele surgery. However, Dr. Ginsberg

acknowledged that the swelling to D.R.’s testicle

could have been caused by trauma. He conceded that in

11

his twenty-five years of practice he had never treated

a patient with MPS.

Messino, 2019 WL 208098, at *3–5 (alterations in original).

The PCR judge denied the petition, finding Messino’s claims

without merit. Id. at *5. On appeal, the Appellate Division

summarized the PCR judge’s decision as follows:

On June 24, 2016, Judge Becker issued a comprehensive

written opinion concluding defendant’s claims lacked

merit. Notably, the judge found “Kaigh to be credible

in every respect during his testimony.” The judge

elaborated:

The [c]ourt finds that [d]efendant’s

assertion that trial counsel was

constitutionally ineffective for not calling

an expert witness specializing in MPS, as

well as other potential expert witnesses,

does not satisfy the Strickland/Fritz[3]

threshold. The [c]ourt finds that trial

counsel, Mr. Kaigh, is credible and

exhausted all possibilities with respect to

researching, contacting, and pursuing all

potential expert witnesses for trial. The

[c]ourt is satisfied that Mr. Kaigh’s

conduct [was] illustrative of zealous

advocacy, not ineffective representation

that would entitle [d]efendant to relief.

This is especially true when considering

that matters of strategy are given a level

of deference.

Judge Becker also found that trial counsel conducted a

reasonable investigation into the allegations of child

abuse. Similarly, he found Kaigh’s decision not to

present character witnesses to be a reasonable trial

strategy intended to avoid highlighting defendant’s

initial lies. Specifically:

3 Strickland v. Washington, 466 U.S. 668, 687-88 (1984)); State

v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-

part test in New Jersey).

12

Defendant basically acknowledged that some

form of mishap occurred which caused the

child to have the resultant injuries. This

admission came after initial denials of the

child having been subject[ed] to a mishap

such as dropping, throwing or striking. One

can say that . . . [d]efendant accepted the

victim with the conditions the child had on

the day of the incident or mishap. . . .

Defendant was not subsequently convicted of

[p]urpose[ful] or [k]nowing [m]urder, but of

a lesser[-]included offense of [a]ggravated

[m]anslaughter, along with a separate charge

of [e]ndangering the [w]elfare of a [c]hild.

This verdict points to the fact that Mr.

Kaigh’s representation was in fact

effective. It could be reasonably concluded

that the jury verdict was based upon . . .

[d]efendant’s actions with [a] child who was

in a precarious situation health[-]wise and

that the subsequent admission by . . .

[d]efendant regarding the mishap was enough

to constitute [aggravated m]anslaughter. If

. . . [d]efendant had acted to assist the

child immediately, the result may have been

different.

Finally, Judge Becker concluded defendant failed to

demonstrate a reasonable probability that trial

counsel’s deficiencies prejudiced defendant.

Conversely, Kaigh was successful in his representation

of defendant because the jury found defendant guilty

of the lesser-included aggravated manslaughter charge,

rather than knowing or purposeful murder.

Messino, 2019 WL 208098, at *5.

The Appellate Division affirmed in January 2019

“substantially for the sound reasons expressed in [the PCR

judge’s] post-hearing written decision.” Id. at *6. The court

added the following comments:

The judge discussed Kaigh’s decision to refrain from

presenting the testimony of Dr. Baden and defendant’s

13

family members, friends and co-workers against the

backdrop of the case law which recognizes that the

decision as to which witnesses to call is “one of the

most difficult strategic decisions that any trial

attorney must confront.” State v. Arthur, 184 N.J.

307, 320 (2005). The decision is generally informed

by the testimony expected to be elicited, the

possibility of impeachment, both by prior

inconsistencies or conflicting testimony by other

witnesses, and the witness’s general credibility. Id.

at 320-21. “Therefore, like other aspects of trial

representation, 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.’” Ibid. (citation omitted).

In sum, the evidentiary hearing that defendant sought

and received provides no basis to set aside his

conviction and sentence. . . . We accept Judge

Becker’s well-reasoned determination that defendant

failed to prove either prong of the Strickland

standard. We therefore see no reason to disturb the

judge’s factual and credibility findings. Those

findings are fully supported by the record and are

entitled to our deference. State v. Robinson, 200

N.J. 1, 15 (2009).

To the extent we have not addressed defendant’s

remaining claims, we conclude they lack sufficient

merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2).

Messino, 2019 WL 208098, at *5. Certification was denied in

June 2019. State v. Messino, 238 N.J. 468, 212 A.3d 441

(2019).

B. The Habeas Petition

Messino filed his § 2254 petition in June 2020, ECF No. 1,

arguing that he is entitled to habeas relief on the following

grounds: (1) counsel was ineffective on the basis of his

cumulative errors (ECF No. 1 at 9–12 (Ground One)); (2) the PCR

14

court ignored Dr. Speth’s medical testimony (id. at 12–15

(Ground Two)); (3) counsel and the trial court failed to “mold

the jury verdict” in violation of Apprendi4 (id. at 15–16 (Ground

Three)); (4) counsel was ineffective for hiring Dr. Adams two

weeks before trial and for hiring him when he had previously

authored a report stating that the fatal injury could have been

caused by abuse (id. at 16–17 (Ground Four); (5) counsel was

ineffective for ignoring the character witnesses who would have

testified as to Messino’s exemplary character (id. at 18–19

(Ground Five)); (6) counsel was unethical in failing to disclose

to Messino (a) that he was discussing with his partners leaving

the firm, (b) that he had left the firm prior to sentencing, and

(c) his reason for leaving the firm (id. at 19 (Ground Six); (7)

counsel was ineffective for failing to consult with doctors in

Australia who had diagnosed D.R. with a severe form of MPS (id.

at 19–20 (Ground Seven)); (8) the PCR judge erred by “adopt[ing]

the bald, self-serving assertions of trial counsel and

ignor[ing] [Messino’s] evidence in the evidentiary hearing” (id.

at 21–22 (Ground Eight)); (9) counsel’s closing arguments

“demonstrated his lack of any credible or cohesive defense

theory for the case” (id. at 22–23 (Ground Nine)); (10) counsel

was ineffective for failing to request a charge on the lesser

4 Apprendi v. New Jersey, 530 U.S. 466 (2000).

15

included third-degree endangering the welfare of a child or ask

the jury to decide the lesser included offense on the verdict

sheet (id. at 24–25 (Ground Ten)); (11) counsel was ineffective

for failing to call Messino (id. at 25–26 (Ground Eleven)); and

(12) counsel was ineffective for failing to object to testimony

regarding child abuse by witnesses who were not qualified to

opine on child abuse (id. at 26–27 (Ground Twelve)). Petitioner

concedes that Grounds Three (id. at 16), Six (id. at 19), Nine

(id. at 23), Ten (id. at 24–25), Eleven (id. at 26), and Twelve

(id. at 27) are unexhausted.

The State answered in September 2020.5 ECF No. 7. In

November and December 2020, petitioner replied. ECF Nos. 11

(brief), 12 (exhibits). The matter is therefore fully submitted

and ready for decision.

II. LEGAL STANDARD

A. Standard of Review

The 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 he is

in custody in violation of the Constitution or laws or treaties

of the United States.” 28 U.S.C. § 2254(a). A habeas

5 The State failed to respond to Grounds Eleven and Twelve. ECF

No. 7 at 12–24 (State’s answer addressing Grounds One through

Ten).

16

petitioner must establish entitlement to relief for each claim

in his petition based upon the record that was before the state

court. See Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013);

Parker v. Matthews, 567 U.S. 37, 40–41 (2012). District courts

must be “highly deferential” to the determinations of state

trial and appellate courts. See Renico v. Lett, 559 U.S. 766,

773 (2010).

If the state courts have adjudicated a claim on the merits,

the district court shall not grant a writ of habeas corpus

unless that 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 if it is clearly expressed in

“the holdings, as opposed to the dicta” of the United States

Supreme Court. Woods v. Donald, 575 U.S. 312, 316 (2015)

(internal quotation marks and citation omitted). “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. If a petitioner challenges an

17

allegedly erroneous state court factual determination, that

determination “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).

The relevant state court decision for federal habeas corpus

review is the last reasoned state court decision. See Bond v.

Beard, 539 F.3d 256, 289–90 (3d Cir. 2008). These standards

apply “even where there has been a summary denial” by the state

court. Cullen v. Pinholster, 563 U.S. 170, 187 (2011).

B. Exhaustion

A federal court may not grant a writ under § 2254 unless

the petitioner has first “exhausted the remedies available in

the courts of the State.” 28 U.S.C. § 2254(b)(1)(A); see also

Rose v. Lundy, 455 U.S. 509, 515 (1982); Henderson v. Frank, 155

F.3d 159, 164 (3d Cir. 1998); Lambert v. Blackwell, 134 F.3d

506, 513 (3d Cir. 1997). The petitioner must afford the state

courts “the opportunity to resolve the federal constitutional

issues before he goes to the federal court for habeas relief.”

Id. (quoting Zicarelli v. Gray, 543 F.2d 466, 472 (3d Cir.

1976)). Exhaustion also permits development of a complete

factual record in state court, which aids federal court review.

See Lundy, 455 U.S. at 519.

18

To exhaust, a petitioner must “‘fairly present’ all federal

claims to the highest state court before bringing them in

federal court.” Leyva v. Williams, 504 F.3d 357, 365 (3d Cir.

2007) (citing Stevens v. Delaware Corr. Ctr., 295 F.3d 361, 369

(3d Cir. 2002)). “Fair presentation means that a petitioner

must present a federal claim’s factual and legal substance to

the state courts in a manner that puts them on notice that a

federal claim is being asserted.” Rainey v. Varner, 603 F.3d

189, 198 (3d Cir. 2010) (citations and internal quotation marks

omitted). “[T]he claims heard by the state courts must be the

‘substantial equivalent’ of claims asserted in the federal

habeas petition. Reliance on the same constitutional provision

is not sufficient; the legal theory and factual basis must also

be the same.” Massey v. Warren, No. CV 13-3439, 2018 WL

6649723, at *3–5 (D.N.J. Dec. 19, 2018) (citing Picard v.

Connor, 404 U.S. 270 275, 277 (1971)); see also McCandless v.

Vaughn, 172 F.3d 255, 261 (3d Cir. 1999) (“It is not sufficient

that a ‘somewhat similar state-law claim was made.’”) (quoting

Anderson v. Harless, 459 U.S. 4, 6 (1982)).

“The exhaustion doctrine therefore requires a petitioner

challenging a New Jersey conviction under § 2254 to have fairly

presented each federal ground that is raised in the petition to

all three levels of the New Jersey courts — that is, the Law

Division, the Appellate Division, and the New Jersey Supreme

19

Court.” Prall v. Att’y Gen. of the State of N.J., No. 3:18-CV-

2614, 2021 WL 733685, at *5 (D.N.J. Feb. 25, 2021) (citing

O’Sullivan v. Boerckel, 526 U.S. 838 (1999); Lundy, 455 U.S. at

509). “The burden is on the habeas petitioner to prove

exhaustion.” DeFoy v. McCullough, 393 F.3d 439, 442 (3d Cir.

2005).

Generally, district courts should dismiss petitions

containing unexhausted claims in the absence of a state court

decision clearly precluding further relief, even if it is not

likely that a state court would consider the claims on the

merits. See Lundy, 455 U.S. at 522; Banks v. Horn, 126 F.3d

206, 212–14 (3d Cir. 1997); see also Toulson v. Beyer, 987 F.2d

984, 989 (3d Cir. 1993) (“Because no [New Jersey] court has

concluded that petitioner is procedurally barred from raising

his unexhausted claims and state law does not clearly require a

finding of default, we hold that the district court should have

dismissed the petition without prejudice for failure to exhaust

state remedies.”).

C. Procedural Default

“The procedural default doctrine is an important corollary

to the exhaustion requirement.” Fowlkes v. Att’y Gen. of N.J.,

No. CV 21-7734, 2021 WL 4129489, at *2–3 (D.N.J. Sept. 10,

2021); see also Davila v. Davis, 137 S. Ct. 2058, 2064 (2017).

This doctrine “applies to bar federal habeas when a state court

20

declined to address a prisoner’s federal claims because the

prisoner had failed to meet a state procedural requirement.”

Coleman v. Thompson, 501 U.S. 722, 729–30 (1991). The

procedural default doctrine also applies to bar federal habeas

claims when a prisoner fails to exhaust available state remedies

and “the court to which the petitioner would be required to

present his claims in order to meet the exhaustion requirement

would now find the claims procedurally barred.” Id. at 735 n.1;

Caswell v. Ryan, 953 F.2d 853, 861 (3d Cir. 1992); see

O’Sullivan, 526 U.S. at 838 (failure to invoke one complete

round of a state’s established appellate review process resulted

in a procedural default). To overcome a procedural default of

federal claims in state court, a prisoner must demonstrate

“cause for the default and actual prejudice as a result of the

alleged violation of federal law, or demonstrate that failure to

consider the claims will result in a fundamental miscarriage of

justice.” Coleman, 501 U.S. at 750.

D. Merits Review

When a petitioner’s constitutional claims are unexhausted

or procedurally defaulted, a court can nevertheless deny them on

the merits. See Carrascosa v. McGuire, 520 F.3d 249, 254–55 (3d

Cir. 2008) (“Section 2254(b)(2) provides that ‘[a]n application

for a writ of habeas corpus may be denied on the merits,

notwithstanding the failure of the applicant to exhaust the

21

remedies available in the courts of the State.’”) (quoting 28

U.S.C. § 2254(b)(2)); Taylor v. Horn, 504 F.3d 416, 427 (3d Cir.

2007) (“[B]ecause we will deny all . . . claims on the merits,

we need not address exhaustion.”); Bronshtein v. Horn, 404 F.3d

700, 728 (3d Cir. 2005) (“[W]e may reject claims on the merits

even though they were not properly exhausted, and we take that

approach here.”).

Where the state courts have not “reached the merits of a

claim thereafter presented to a federal habeas court,” however,

the federal court must “conduct a de novo review over pure legal

questions and mixed questions of law and facts . . . .” Taylor

v. Horn, 504 F.3d 416, 429 (3d Cir. 2007). Even on de novo

review, the state court’s factual determinations are presumed to

be correct, unless the petitioner rebuts that presumption by

clear and convincing evidence. Appel v. Horn, 250 F.3d 203, 210

(3d Cir. 2001) (citing 28 U.S.C. § 2254(e)(1)).

III. DISCUSSION6

A. Applicable Law

The Sixth Amendment guarantees the accused the “right . . .

to have the Assistance of Counsel for his defense.” U.S. Const.

amend. VI; see Strickland v. Washington, 466 U.S. 668, 686

6 The Court has reordered Messino’s grounds for relief in an

effort to address them in chronological order -- from pretrial

investigation to sentencing to alleged errors by the PCR court.

22

(1984). A claim of ineffective assistance has two necessary

components. Id. at 687. First, the defendant must “show that

counsel’s representation fell below an objective standard of

reasonableness,” id. at 687–88, meaning he “must identify the

acts or omissions of counsel that are alleged not to have been

the result of reasonable professional judgment.” Id. at 690.

Second, a petitioner must establish prejudice, i.e., a

reasonable probability that the result of the trial would have

been different absent the deficient act or omission. Id. at

687. Further, “[i]f it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient

prejudice . . . that course should be followed.” Strickland,

466 U.S. at 697.

On habeas review, it is not enough that a federal judge

would have found counsel ineffective. Rather, the judge must

find that the state court’s resolution of the issue was

unreasonable, a higher standard. Harrington v. Richter, 562

U.S. 86, 101 (2011). “And while judges may be tempted to second

guess defense counsel’s decisions, we must keep in mind that

‘advocacy is an art and not a science, and . . . strategic

choices must be respected in these circumstances if they are

based on professional judgment.’” Gaines v. Superintendent

Benner Twp. SCI, 33 F.4th 705, 712 (3d Cir. 2022) (quoting

Strickland, 466 U.S. at 681). In other words, “counsel’s

23

strategic choices will not be second-guessed by post-hoc

determinations that a different trial strategy would have fared

better.” Rolan v. Vaughn, 445 F.3d 671, 681–82 (3d Cir. 2006).

B. Analysis

At the outset, the Court notes that Messino is represented

in this proceeding by the same counsel who represented him at

the PCR hearing. In his reply brief, Messino asserts that he

“will rely on the allegations in the petition, exhibits thereto,

the transcripts of the trial, transcripts of the evidentiary

hearing in the petition for post-conviction relief and the

attached brief.” ECF No. 11 at 1–2 (emphasis added). He

“requests that this Court review the records presented,

including the notes of testimony at trial and the transcripts of

the evidentiary hearing in the trial court . . . .” Id. at 2

(emphasis added). Also in his reply brief, he lists 16 trial

transcripts, but advises that they are “not attached.” Id. at

3, n.3. If Messino’s intent was for the Court to review the

trial transcripts, he was required pursuant to 28 U.S.C.A. §

2254(f) to provide them or to seek an order directing the State

to provide them.7

7 28 U.S.C.A. § 2254 (f) provides, in pertinent part:

If the applicant challenges the sufficiency of the

evidence adduced in such State court proceeding to

support the State court’s determination of a factual

issue made therein, the applicant, if able, shall

produce that part of the record pertinent to a

24

Messino did not provide the trial transcripts, nor seek

an order requiring the State to provide them, and he does not

cite the trial transcripts in his petition or his reply;

determination of the sufficiency of the evidence to

support such determination. If the applicant, because

of indigency or other reason is unable to produce such

part of the record, then the State shall produce such

part of the record and the Federal court shall direct

the State to do so by order directed to an appropriate

State official.

Id., see also, e.g., Sergent v. Douma, No. 12-810, 2016 WL

323681, at *13 (W.D. Wis. Jan. 26, 2016) (“If a petitioner

challenges the sufficiency of the evidentiary record adduced in

the state court proceedings, then § 2254(f) puts the burden on

the petitioner to produce that part of the state court record

pertinent to a determination of the sufficiency of the evidence

to support the challenged determination.”); Martin v. Hatch, No.

10-746, 2011 WL 13279028, at *2 (D.N.M. Oct. 18, 2011) (“When a

petitioner challenges the sufficiency of the evidence, generally

the petitioner has the burden of producing the state court

record or asking the Court to order the state to produce it.”)

(citing § 2254(f)), report and recommendation adopted, 2011 WL

13279029 (D.N.M. Dec. 2, 2011); Colvin v. Medina, No. 10-00896,

2011 WL 4502028, at *1 (D. Colo. Sept. 29, 2011) (“In denying

Mr. Colvin’s Petition, this Court found that Mr. Colvin had not

come forward with the record from the Rule 35 hearing that would

corroborate his representations as to the content of Mr. Bell’s

counsel’s testimony, and thus, his contention that the trial

court’s factual finding was erroneous. This Court noted that 28

U.S.C. § 2254(f) places the burden on a habeas petitioner

challenging a state court’s factual finding to ‘produce that

part of the record pertinent to a determination’ of the disputed

factual issue, and that the burden only shifts to the respondent

to produce the record upon a showing by the petitioner that he

was unable to produce the record. The Court found that Mr.

Colvin was not proceeding in forma pauperis on his petition, and

had not otherwise shown that he could not produce the transcript

from the evidentiary hearing on the Rule 35 proceeding, and

thus, the Court found that Mr. Colvin had failed to support his

contention that the trial court erred in its assessment of Mr.

Bell’s counsel’s testimony.”).

25

instead, he appears to rely on the PCR hearing transcripts,

which are before the Court and which the Court has carefully

reviewed. Even if, however, Messino had filed the 16 trial

transcripts along with his petition or reply brief, the Court

would not have been obligated “to rummage through a ponderous

trial transcript in search of an excuse for a defense counsel’s

lapse.“ Lee v. Kemna, 534 U.S. 362, 385 n.15 (2002). Rather,

it is Messino’s obligation to direct the Court’s attention to

the portions of the transcripts that support his arguments.

See, e.g., United States ex rel. Green v. Greer, 667 F.2d 585,

586 (7th Cir. 1981) (an examination of a record is not required

if the petitioner fails to identify any incompleteness or

inaccuracies in the facts before the district court); Thomas v.

Sims, 80 F. App’x 475, 480–81 (7th Cir. 2003) (transcripts were

“not necessary to assess the reasonableness of the state

appellate court’s decision,” because court was “confident that

if the transcript contained any information helpful to his

client’s cause, [counsel] would have brought it to our

attention.”). Messino has not done that here, since his

petition does not cite the trial transcripts.

Accordingly, given that: (1) it was Messino’s burden to

supply the Court with the record support for his asserted

grounds for relief; (2) Messino has acknowledged in his

counseled brief that the trial transcripts have not been

26

provided; and (3) Messino does not cite the trial transcripts in

support of his grounds for relief, the Court will address

Messino’s claims without the benefit of those transcripts.

1. Hiring Dr. Adams, Ignoring Dr. Speth’s Testimony

at the PCR Hearing, and Failing to Consult with

Doctors in Australia (Grounds Two, Four, and

Seven)

Messino argues that counsel was ineffective for (a) hiring

Dr. Adams two weeks before trial and (b) hiring him despite him

previously having written a report stating that the fatal injury

could have been caused by abuse. ECF No. 1 at 16–17; ECF No. 11

at 27–28. The State responds that counsel must deal with the

facts presented by the case, and that despite his best efforts,

Kaigh had a difficult time procuring an expert to support his

defense. ECF No. 7 at 16. Under these circumstances, the State

argues, making “every effort to procure an expert willing to

issue an opinion on a very rare disease,” and finding one “at

the last minute who unfortunately did not testify as defendant

wished” does not equate to ineffective assistance of counsel.

ECF No. 7 at 16.

Messino also asserts that the PCR judge “completely

ignored” Dr. Speth’s medical testimony. ECF No. 1 at 12–15.

The State responds that Dr. Speth could not testify at trial

because he had surrendered his medical license after a criminal

27

conviction, and Messino is using this claim “to get a second

shot with his first choice of experts.” ECF No. 7 at 14.

Messino further argues that counsel was ineffective for

failing to consult with doctors in Australia who had diagnosed

D.R. with the severe form of MPS. ECF No. 1 at 19–20; ECF No.

11 at 23–25. Messino asserts that counsel should have followed

up on a report in D.R.’s CHOP records that was available at the

time of trial. Id. at 20. The report was from an Australian

lab where tissue samples had been sent for testing, and it

indicated that further testing may determine whether D.R.

suffered from a mild or severe form of MPS. Id. In preparation

for the PCR hearing, samples were sent to Australia and further

testing was conducted. Id. Messino argues that the results

confirmed, “scientifically, that the child suffered from the

more severe form of MPS-1.” Id.

The State responds that trial counsel was not ineffective

for failing to consult with the Australian doctors because: (1)

the follow-up test results did not exist at the time of trial;

(2) even if the results had existed, the additional testing did

not return a definitive diagnosis, rather the lab report stated

only that the results “may be consistent with” the more severe

form; and (3) there was testimony that no form of the disease

would have caused the fatal injuries. ECF No. 7 at 20–21.

28

The PCR court reviewed the hearing testimony related to

trial counsel’s efforts to secure expert witnesses as follows:

i) Forensic Pathologist - Dr. John Smialek

On direct examination, trial counsel Jaime Kaigh

indicated that the defense theory of the case was that

the death of [D.R.] was the result of MPS. This was a

theory developed and promulgated by Dr. Klaus Peter

Speth, M. D., a former medical examiner, who Mr. Kaigh

retained as a consultant in this case. However, for

reasons to be discussed below, Dr. Speth at all

relevant times in this case did not have a medical

license and was unable to testify at trial. He

therefore, assumed a strictly consulting role in

preparing for trial.

Consequently, Attorney Kaigh attempted to find a

forensic pathology expert who would adopt Dr. Speth’s

theory of the case, and could properly testify at

trial. He contacted and met with Dr. John Smialek, a

certified forensic pathologist. Regarding his

interactions with Dr. Smialek, Mr. Kaigh testified as

follows:

Prosecutor: Did you have any conversations

or dealings with Dr. Smialek regarding the

evidence or regarding any opinion he might

have?

Jaime Kaigh: Yes. I recall sitting down

with Dr. Smialek and talking about the facts

of this case, of what help he could be

Smialek, my recollection is, is one of the

few pathologists like Speth that’s certified

anatomic, clinical, and pathologic. So, he

had all three certifications, he seemed like

a good person for this job despite the sort

of fractured feelings we may have had toward

one another, because of the brutal cross

we’d had in Burlington County, he seemed

eager to help . . .” (T: 2/20/2015, 13:24 -

14:10).

However, Mr. Kaigh testified that he subsequently

learned that Dr. Smialek was fatally ill and would die

soon thereafter. Thus, Dr. Smialek was unable to

29

testify because of his death. [T:2/20/2015, 14:3-9).

Further, Dr. Speth was unable to testify, as evidenced

by the following colloquy:

Judge Becker: And then, you said you sat

down with [Smialek] and went over the case,

and said you were trying to get him to adopt

a particular theory?

Jaime Kaigh: Yes, Speth had advanced

certain theories about the case that hadn’t

been heard before because Speth was

unavailable as a witness, I was searching

for a medical examiner who would put forth

his theory.

Judge Becker: And, why wasn’t Speth

available?

Jaime Kaigh: Because he [Speth] had

suffered a criminal conviction. (T:

2/20/2015, 16:4 - 16:14).

Dr. Speth testified that he had voluntarily given up

his medical license. As Attorney Kaigh testified, he

was unable to call Dr. Speth, and was faced with the

challenge of finding a medical expert who would adopt

a theory that revolved around an extremely rare

genetic disorder. Nevertheless, Mr. Kaigh continued to

pursue other potential expert witnesses. The Court

notes that it is apparent that the theories of Dr.

Speth have continued to evolve up to and through the

submission of his initial report in support of this

PCR.

ii) Forensic Pathologist - Dr. Baden

One of Defendant’s main assertions is that the Messino

family was informed that trial counsel would retain

Dr. Michael Baden as an expert in forensic pathology,

and that funds were provided for this purpose, but he

was not retained. This topic was explored by the

prosecutor on the cross examination of Attorney Kaigh.

Prosecutor: Going back to hiring of

experts. After Dr. Smialek basically said

he was unavailable, returned the retainer,

30

and could not testify, did you then attempt

to hire another expert?

Jaime Kaigh: Yes.

Prosecutor: And can you tell the court how

that occurred and what happened?

Jaime Kaigh: Alex [Esposito] and I had

worked together on many cases through the

years, including some larger pieces of

litigations, so that we were friends,

besides having a professional relationship

of investigator and attorney. And, Alex

told me that he had a way to communicate

with Dr. Baden, who, at the time, was

probably the most revered pathologist in the

country. And, I had Alex contact Dr. Baden

in reference to this case. (T: 2/20/2015,

22:13 - 23:21).

Attorney Kaigh told the Court how he spoke with Dr.

Baden in reference to this case, over a conference

call with investigator Alex Esposito, as well as

through an individual call. Kaigh also reported that

throughout trial preparations, he was anticipating a

report from Dr. Baden. The prosecutor questioned:

Prosecutor: During your preparation for

trial, did you anticipate getting a report

from Dr. Baden?

Jaime Kaigh: Yes.

Prosecutor: Did you ever get a report from

Dr. Baden?

Jaime Kaigh: I did not.

Prosecutor: And, do you recall why that

never occurred?

Jaime Kaigh: I never talked with Baden

about that issue; but, Alex relayed to me

that Dr. Baden said he could not write a

report that would be beneficial to us. (T:

2/20/2015, 23:13 - 23:21).

31

Intuitively, it is not good trial strategy to call an

expert witness whose opinion is not favorable to the

Defendant. Given the fact that Attorney Kaigh worked

closely with Investigator Alex Esposito on this case

to flesh out all possible defense theories, the Court

finds that logical and sound strategy existed for

Attorney Kaigh not to call Dr. Baden after receiving

this information. This Court found Attorney Kaigh to

be credible in every respect during his testimony.

iii) MPS Specialist

Finally, central to Defendant’s argument is the

allegation that trial counsel was constitutionally

ineffective for failing to retain an expert in the

field of MPS, a condition from which [D.R.] was

suspected to suffer. In light of the record, it does

not appear that either party disputes the fact that

the entire spectrum of MPS encompasses extremely rare

conditions. On direct examination, Defense’s own

expert, Dr. Robert Stratton, M. D., admitted that he

had only treated one child with MPS in his

approximately twenty years of practicing medicine. (T:

12/17/2014, 89:21-24).

On direct examination, Attorney Kaigh proffered the

reasons he failed to retain an expert in the field of

MPS:

Jaime Kaigh: I attempted throughout this

process to get, besides looking for a

qualified forensic pathologist, I was also

looking for an expert in the Hurler-Scheie

syndrome. I did exhaustive search on what

there was on the internet at that time. I

had paralegals available to me at

Hockfield’s firm, two of which I recall

helping me to look. I went to a medical law

library in Philadelphia in an attempt to

find information that might not be available

on the internet, I consulted with Dr. Edward

Fleishman, as a favor to me. A doctor of 30

years who was a general practitioner.

Looking for, not information for Hurler-

Scheie, but who might be an expert in this

area. Eventually my client’s co-defendant

was removed from this case. Knowing that

Dr. Adams had written a report for her, and

32

was intimately familiar with the details, I

contacted Dr. Adams, presented Speth’s

theory to him, and Adams was willing to

write an addendum, an additional report,

supporting Speth’s point of view.

. . .

Prosecutor: And would it be fair to say his

report came weeks before the trial started?

Jaime Kaigh: My recollection is it came

about six weeks before the trial started,

maybe closer. And, I believe, in retrospect,

that the date of that report, being

presented to this jury was not a strong

thing for us. In other words, I think it

hurt us in the eyes of the jury. Of course,

the jury acquitted of murder, but

nonetheless, my recollection is that Mr.

Gangloff, the prosecutor, emphasized that.

That this report was recently written and

that Adams had, in fact, written a different

report in the past for a different

defendant.

Prosecutor: Okay. Is it fair to say that at

least as early on in 1999, there were

attempts by you or someone on your behalf to

find an expert?

Jaime Kaigh: Yes. (T:2/20/2015, 24:1 -

25:22).

Further, on cross examination, Defendant’s attorney,

Jill Cohen, asked the following questions:

Jill Cohen: Okay. So, [Baden] was on board,

and you understood that he needed an MPS

specialist in order to give an opinion

right?

Jaime Kaigh: I think 1 asked Speth to find

an MPS specialist, and he couldn’t.

Jill Cohen: Okay. You said you went to the

library and you personally tried to get an

MPS expert.

33

Jaime Kaigh: I did.

Jill Cohen: Okay. And, you’re telling me

that in this country you couldn’t find an

MPS expert?

Jaime Kaigh: I don’t think it was an MPS

expert. I think that’s the lack of a

sharper definition. What we needed was an

expert in Hurler-Scheie, which is a very --

kind of a narrow field. There was no such

person available. And, I can’t help but

tell you that I don’t see an expert report

today about it.

Jill Cohen: Okay. But, the question is,

did you make efforts to get one, that’s the

question?

Jaime Kaigh: Absolutely. Absolutely, I

made efforts. I consulted with Speth. I

had paralegals trying to find it. I looked

myself, as I mentioned earlier. I went to a

medical library. I looked through my own --

my father having been a physician, had a

medical library; I looked through that. I

went on the internet, as it was, back in

2002, or 1999 in the time frame that we’re

talking about. And, funny as it seems, in

retrospect, Speth seemed to be the best

reference there was.

Jill Cohen: What do you mean the best

reference; I don’t understand what you mean?

Jaime Kaigh: I think that Speth’s analysis,

that it was protein being stored there, and

not healing mesentery. That was the first

time anyone gave that opinion. And, to me,

it was remarkable that Dr. Adams would

effectively change his opinion and agree to

that. (T:2/20/2015, 47:11 - 48:19).

ECF No. 1-2 at 16-22.

The PCR court found that trial counsel was “credible and

exhausted all possibilities with respect to researching,

34

contacting, and pursuing all potential expert witnesses for

trial.” Id. at 22–23. The court was “satisfied that Mr.

Kaigh’s conduct is illustrative of zealous advocacy, not

ineffective representation that would entitle Defendant to

relief,” which “is especially true when considering that matters

of strategy are given a level of deference.” Id. at 23.

The PCR court then reviewed Dr. Speth’s testimony at the

PCR hearing and the relevance of a determination regarding the

exact form of MPS from which D.R. suffered:

The Court is mindful that during the Defendant’s

presentation of various witnesses, including Mr.

Esposito and Dr. Speth, that a new, if not somewhat

related, theory of the child’s condition was put forth

by the Defendant. Dr. Speth put forth a theory that

the child had MPSI with Hydrocele (IgG4), which would

cause liver and spleen enlargement and ongoing

Sclerosing Messenteritis. This should not be confused

with Hunter’s Syndrome which is another form of MPS

discussed during Dr. Speth’s testimony. The theory

posited was that this new IgG4 condition, if the child

victim did have that condition, with the resultant

tenderness due to a recent operation to reduce the

size of the scrotum, would have made the child mere

susceptible to serious injury from someone throwing,

dropping or striking the child. The Defendant

basically acknowledged that some form of mishap

occurred which caused the child to have the resultant

injuries. This admission came after initial denials

of the child having been subject to a mishap such as

dropping, throwing or striking. One can say that the

Defendant accepted the victim with the conditions the

child had on the day of the incident or mishap. The

Defendant was not subsequently convicted of Purpose or

Knowing Murder, but of a lesser included offense of

Aggravated Manslaughter, along with a separate charge

of Endangering the Welfare of a Child. This verdict

points to the fact that Mr. Kaigh’s representation was

in fact effective. It could be reasonably concluded

35

that the jury verdict was based upon the Defendant’s

actions with child who was in a precarious situation

health wise and that the subsequent admission by the

Defendant regarding the mishap was enough to

constitute Negligent Manslaughter. If the Defendant

had acted to assist the child immediately, the result

may have been different.

Dr. Speth acknowledges that there was no readily

available expert in the area of MSP, MSPI (Hurler-

Scheie), or MPSI with Hydrocele (TgG4). Therefore,

Jamie Kaigh acted in a professionally acceptable

manner in preparation and presentation of this case.

The Court finds that a reasonable jury, viewing the

same evidence and reports as submitted by Dr. Speth,

could have still found the Defendant guilty of

Aggravated Manslaughter based upon the Defendant’s

subsequent admissions which were a change from the

initial report given by the Defendant at the time of

the child being in distress. There was unrefuted

testimony that when the Defendant put the child to bed

on that fateful evening, the child’s mother heard the

child cry out and the Defendant denied any mishap or

issue with the child other than that the child did not

want to go to bed. He later admitted that the child

was “dropped” and hit the bar on the crib. Shortly

thereafter, the child went into a seizure. The

bruising on the child’s abdomen and the large amount

of blood in the swollen scrotum confirmed this

“mishap.” The autopsy revealed that the surgical

incision from the operation on the Hydrocele was

opened and gaping. In reality, the exact diagnosis of

any form of MPSI would not have changed this fact.

ECF No. 1-2 at 23–24.

The PCR court found “by a clear and convincing standard

that the [Messino did not show] that Mr. Kaigh’s performance

failed to meet the objective standard of reasonableness.” Id.

at 25. The court explained:

Mr. Kaigh’s performance leading up to and during the

trial was reasonable and competent. Therefore, the

Court cannot find that Mr. Kaigh’s actions in regards

36

to the representation of Mr. Messina fell outside the

wide range of professional competent assistance when

considered in light of all the circumstances of the

case. An attorney’s performance is measured by

reasonableness under prevailing professional norms in

consideration of the totality of the circumstances.

Mr. Kaigh’s actions in preparation for this case

comports with sound trial strategy based upon the

record. Mr. Kaigh’s overall performance as

demonstrated by this record indicates capable advocacy

on behalf of Mr. Messino. Based upon these findings

the Court finds that the first prong of the Strickland

Test has not been met by the defendant.

ECF No. 1-2 at 25.

The court also found that Messino failed to

demonstrate prejudice:

Regarding the second prong the Court finds that the

Defendant has failed to show a reasonable probability

that, but for counsel’s unprofessional errors, the

result of the proceedings would have been different.

In fact, as previously noted, it is evident that Mr.

Kaigh’s representation of the Defendant was successful

in that the jury found the Defendant guilty of a

lesser included charge than Purposeful and/or Knowing

Murder and found the Defendant guilty of Aggravated

Manslaughter. This Court finds that the second prong

of the Strickland Test has not been satisfied.

ECF No. 1-2 at 16–25.

On this record, Messino has failed to demonstrate that the

state courts’ findings were contrary to or an unreasonable

application of Strickland and its progeny, or based on an

unreasonable determination of the facts in light of the

evidence.

Deferring to the PCR court’s detailed credibility findings,

see 28 U.S.C. § 2254(e)(1), the Court finds that the state

37

courts’ determination that counsel did not render deficient

performance was not unreasonable. The record well supports the

state courts’ findings that counsel (a) made extensive efforts

to locate expert witnesses willing to testify favorably on

behalf of the defense and (b) made a strategic decision to hire

Dr. Adams to provide an opinion supporting the defense theory of

the case. Strickland, 466 U.S. at 689 (strong presumption that

counsel is effective and the courts must be “highly deferential”

to counsel’s reasonable strategic decisions); Duncan v.

Morton, 256 F.3d 189, 198 (3d Cir. 2001) (factual determinations

that are “well-supported and subject to the presumption of

correctness” are not “unreasonable”).

The record further demonstrates that counsel’s performance

was reasonable given the facts of the case and the options

available to him. See ECF No. 7-3 at 42 (Kaigh: “almost from

the start my concern was with finding a qualified medical expert

in this case, because of the complexity of the injuries to the

child, and the rare syndrome that he suffered from”); id. at 104

(Kaigh: “Dr. Speth’s actual theory was that this was MPS

related. That the concentration of iron in the abdomen of this

child was the protein storage disease. And, Dr. Adams was the

only doctor willing to adopt that point of view. And, it was

proven when the slides showed that there was, in fact, a high

concentration of these . . . Hurler-Scheie in this child’s

38

abdomen.”); ECF No. 7-1 at 135–36 (Messino acknowledged that he

was present in court when counsel cross examined the State’s

witnesses and answered “yes” to the question, “[W]ould you

acknowledge that even Jaime Kaigh got the State’s experts to

admit that the defense’s theory was possible?”); see also, e.g.,

Hardy v. Lamas, No. 13- 02539, 2016 WL 8609571, at *6 (M.D. Pa.

Nov. 7, 2016) (“Hardy maintains that Attorney Remy ‘should have

sought out a forensic pathologist or an expert in shaken baby

syndrome, and such experts abound, to review Mr. Hardy’s case.’

Nonetheless, Hardy remains unable to identify a single medical

expert that would have been willing to testify at trial that the

baby’s injuries were most likely accidental, despite over a

decade elapsing since his conviction and sentence.”) (citation

omitted), report and recommendation adopted, 2017 WL 1134401

(M.D. Pa. Mar. 27, 2017).

Counsel’s performance does not become deficient simply

because his decision to hire Dr. Adams may not have worked in

favor of the defense. See Strickland, 466 U.S. at 689 (“A fair

assessment of attorney performance requires that every effort be

made 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.”); Marshall v. Hendricks, 307 F.3d 36, 85 (3d Cir. 2002)

(the existence of alternative, even more preferable or more

39

effective, strategies does not satisfy the first element of

the Strickland test); Lewis v. Mazurkiewicz, 915 F.2d 106, 115

(3d Cir. 1990) (“[W]hether or not some other strategy would have

ultimately proved more successful, counsel’s advice was

reasonable and must therefore be sustained.”); United States v.

Gray, 878 F.2d 702, 711 (3d Cir. 1989) (“the range of reasonable

professional judgments is wide and courts must take care to

avoid illegitimate second-guessing of counsel’s strategic

decisions from the superior vantage point of hindsight”). Thus,

Messino has not established a basis for habeas relief on his

claim that counsel was ineffective in hiring Dr. Adams.

The state courts also reasonably found that a determination

as to the exact form of MPS from which D.R. suffered would not

have changed the outcome because it was Messino’s conduct,

including his silence during the rendering of life-saving

efforts, that led to D.R.’s death. Thus, Messino’s argument

that counsel was ineffective for failing to obtain follow-up

testing or consultation with the Australian doctors also does

not provide a basis for habeas relief.

Finally, Messino’s allegation that the PCR court “ignored”

Dr. Speth’s testimony is without merit. The record is clear

that the PCR judge heard, considered, and analyzed the relevance

of Dr. Speth’s testimony, including his sclerosing messenteritis

theory, to Messino’s ineffective assistance of counsel claim.

40

Moreover, there is no evidence that presenting this alternate

diagnosis to the jury would have changed the outcome, as it

would not have negated Messino’s conduct on the day of D.R.’s

death, his statements to the police, or the State’s theory of

the case that D.R.’s death was caused by blunt force trauma to

his abdomen. See, e.g., Nesto v. Horton, No. 21-225, 2023 WL

21436, at *8 (W.D. Mich. Jan. 3, 2023) (“[E]ven if an expert had

testified that the injuries [to Petitioner’s daughter] were

likely caused by an accident, neither Dr. Lishawa’s testimony

for the prosecution nor Petitioner’s admissions to police would

have been entirely negated.”); Hardy, at *7 (M.D. Pa. Nov. 7,

2016) (“There is no reason to believe that the jury would have

credited the plastic football explanation for the baby’s brain

injury after rejecting Hardy’s explanation that the baby fell

from the couch, particularly given that the testimony from the

Commonwealth’s two expert witnesses that the baby’s death was

caused by non-accidental trauma is equally damning of both

theories”). Accordingly, Messino’s allegation that the PCR

court ignored Dr. Speth’s testimony does not provide a basis for

habeas relief.

For these reasons, the state courts’ rejection of these

claims was not contrary to or an unreasonable application of

Strickland and its progeny, or based on an unreasonable

41

determination of the facts in light of the evidence. Habeas

relief on Grounds Two, Four, and Seven will be denied.

2. Failing to Call Character Witnesses (Ground Five)

Messino argues that counsel was ineffective for “ignor[ing]

the [338] character witnesses who would have testified at trial

as to [Messino’s] exemplary character.” ECF No. 1 at 18–19; ECF

No. 11 at 29. Messino asserts that the State “presented Messino

as a cold, calculating, child abuser,” and “the fact that he did

not have the type of character to cause a toddler injury and

death could have raised reasonable doubt.” ECF No. 1 at 18.

The State responds that counsel’s decision to forgo

character witnesses was strategic. The State asserts that,

given “defendant had already admitted lying about how the victim

got his injuries,” (a) “it is entirely reasonable that an

attorney would have concern that a jury would disregard anything

a character witness says because it appears disingenuous after

the known falsehood,” and (b) “the strong possibility existed

that highlighting that lie (through cross examination of

character witnesses) could cause a jury to believe that the

delay in learning what actually happened to the baby very easily

could have contributed to the death of the victim.” ECF No. 7

at 18–19.

8 Messino cites this number as 35 in his reply brief. ECF No. 11

at 29.

42

The PCR court summarized the relevant hearing testimony on

this issue as follows:

[T]rial counsel made it quite clear on the record that

he did not call character witnesses as to Mr.

Messino’s relationship with [D.R.], because most of

the witnesses he was aware of had nothing favorable to

say on his behalf.

Prosecutor: Did you receive transcripts, or

summaries of the State’s witnesses, of what

you expected them to testify to?

Jaime Kaigh: Yes.

Prosecutor: Did you feel a need to then

have Alex (Esposito] go and interview them

again?

Jaime Kaigh: I did not.

Prosecutor: And, why not?

Jaime Kaigh: I think to really answer that

question accurately, I have to give you just

a bit of the fabric of this case from my

perspective. When Mr. Messina -- when the

first responders come, Mr. Messina’s not

honest with the first responders about what

happened to this child. He gives a taped

statement that is not honest; he gives a

second taped statement where he begins to

describe accidently dropping this child.

The facts of the case are that Hockfield

then calls the police department and the

taped statement is aborted because an

attorney called and said, “I don’t want my

client to speak.” Laurie, the child’s

mother, and his co-defendant for a while,

had told me repeatedly that all of her”

family members didn’t like Mr. Messino, and

that the baby -- the child in question here

would cry out when Mr. Messina came near it.

And, the discovery reflected that, as well.

Statements taken by family members said

that. When I said all of her family

members, I specifically meant her aunts.

43

She said her aunts didn’t like Jim

(Messino). I didn’t think from a tactical

point of view there was anything to be

gained by interviewing these people. (T:

2/20/2015, 26:21 - 28:2).

Defendant’s petition focuses on the fact that over

thirty individuals would have testified as to his

reputation in the community and to his honesty. Over

the course of Defendant’s evidentiary hearing, [14

individuals, including immediate and extended family,

family friends, and co-workers] were called[.]

. . .

On direct examination of the aforementioned witnesses,

defense counsel Jill Cohen inquired as to James

Messina’s reputation in the community as to

peacefulness, truthfulness, and law abidingness. On

cross, Prosecutor Dianna Reed-Rolando posed a form of

the following question to nearly every proffered

character witness: “Would your opinion [as to

truthfulness ] change if you knew Defendant lied to

the police about what happened in this case?” . . .

. . .

. . . [T]he State received non-responsive or

contradicting answers from nearly every single

witness. Moreover, on direct examination, trial

counsel Jaime Kaigh was questioned by Prosecutor Reed-

Rolando as to his methodology in deciding whether or

not to call character witnesses.

Prosecutor: Did you ever discuss calling

family members of Mr. Messino to testify?

Jaime Kaigh: Yes.

Prosecutor: Yes. And then, did you call

them?

Jaims Kaigh: No.

Prosecutor: Well, why didn’t you call them?

Jaime Kaigh: If you mean calling them as

character witnesses to testify about his

44

character, from my perspective it’s

extremely self-defeating when a person has

lied, the defendant, to call character

witnesses, recognizing what our character-

witness testimony is limited to here in New

Jersey, which is his reputation for honesty,

voracity, lawabidingness or truthfulness. I

don’t think you can pitch that to a jury

when the Prosecutor’s trying, subtly, to say

that Mr. Messina’s failure to be honest with

the first responders may have led to this

child’s death, may have contributed to it.

So, that’s the last thing I really wanted to

do was to put his character in issue, given

that as the backdrop. (T: 2/20/2015, 29:9 -

30:4).

The prosecutor subsequently inquired:

Prosecutor: Okay. Regarding in addition to

family members, did you ever consider

calling any other character witnesses on

behalf of Mr. Messina?

Jaime Kaigh: No, I considered it but

rejected it for the same reasons. Calling

someone to talk about his truthfulness when

he lied, and the State’s trying to prove the

lie may have contributed to the death of

this child, from a tactical point of view

did not seem to be very smart to me.

[T:2/20/2015, 31: 1 - 31:9).

ECF No. 1-2 at ECF No. 1-2 at 28–31.

The PCR court then conducted the following analysis in

rejecting Messino’s claim:

As to the issue of failure to present character

evidence in this matter, the Court has evaluated the

proffered testimony to determine whether counsel’s

failure to call, these witnesses at trial fell,

“outside the wide range of professionally competent

assistance” considered in light of all the

circumstances of the case.

45

Here, this Court finds that trial counsel’s decision

not to call character witnesses did not deprive

Defendant of a fair trial. Defendant’s objection to

the strategic decisions made by counsel not to pursue

this evidence does not satisfy the Strickland/Fritz

test. The court notes that Defendant was represented

at trial by counsel of his own selection, an attorney

who has a distinguished reputation as a trial lawyer

and who is regarded by many as being one of the ablest

criminal defense lawyers in the area. Mr. Kaigh

elected not to call witnesses that could have put the

Defendant’s character at issue, a matter which was

central to the State’s case. Further, as evidenced by

the witness’ answers on cross examination, the Court

comes to the conclusion that their testimony would not

have been helpful to the Defendant in any event.

Thus, further analysis under Strickland/Fritz is not

required because the Defendant has failed to

demonstrate that his attorney’s conduct fell below the

acceptable standard of professional conduct.

ECF No. 1-2 at 32–33 (citation omitted).

The decision of which witnesses to call to testify is

strategic, and therefore left to counsel. Diggs v. Owens, 833

F.2d 439, 446 (3d Cir. 1987); see also Henderson v. DiGuglielmo,

138 F. App’x 463, 469 (3d Cir. 2005) (“Counsel’s failure to

call a witness ‘is precisely the sort of strategic trial

decision that Strickland protects from second-guessing.’”). A

decision not to use certain witnesses does not constitute

ineffective assistance of counsel if it “amounted to a tactical

decision within the parameters of reasonable professional

judgment.” Duncan v. Morton, 256 F.3d 189, 201 (3d Cir. 2001).

Here, the state courts’ determination that counsel’s

decision was tactical is well supported by the record, including

46

the testimony recounted above. See also ECF No. 7-3 at 77

(Kaigh: “When a defendant lies to the police, and part of the

theory of the State’s case seem[s] to be . . . that this child

might have been cared for differently by emergency personnel,

had Mr. Messino told the truth; character was about the last

thing I wanted to introduce into this trial. . . . [U]nder the

Rules of Evidence, his reputation for truthfulness, honesty, law

abidingness, are what we’re limited to; I don’t see how

highlighting with a defendant who’s lied to the police is a very

good idea.”); id. (Kaigh: “[W]hen a defendant gives a statement

and doesn’t tell the truth about the cause of injury that might

impact the care of a victim who dies, I don’t think it’s very

good sense, from the hundreds of cases I’ve tried[,] to

introduce character testimony.”); id. at 82 (“Q. So if you had,

for example, . . . his teacher from fourth grade . . . that kept

up with him, and had nothing but wonderful things to say about

him, how would that hurt the defense? A. I think it would make

me seem incredible in from of the jury. I think it would very

negatively impact my ability to convince this jury. I think had

I done that, he would have been convicted of murder.”); id. at

83 (Kaigh: “[T]hat [character] testimony wouldn’t be accepted by

a jury, how honest he is, when on the night in question, the one

most important night of [D.R.’s] life, he didn’t tell the truth.

47

I don’t think you can credibly present that to a -- my judgment

as a trial lawyer was I couldn’t credibly present that.”).

In the factual context of this case -- where Messino did

not disclose what happened to D.R.’s mother, or to the first

responders and the medical personnel at the hospital who were

attempting to save D.R.’s life, and was not truthful in his

first statement to the police -- the state courts reasonably

found that counsel’s decision to forgo calling character

witnesses was the product of strategic judgment. Accordingly,

the state courts’ rejection of these claims was not contrary to

or an unreasonable application of Strickland and its progeny, or

based on an unreasonable determination of the facts in light of

the evidence. Habeas relief on Ground Five will be denied.

3. Failing to Call Messino to Testify (Ground Eleven)

Messino argues that counsel was ineffective for failing to

call him to testify in his own defense. Id. at 25–26. He

asserts that: (a) “he and Kaigh had no meaningful discussion”

about testifying; (b) “because [he] had been afraid to tell what

had happened while being interrogated by prosecution detectives

and delayed in describing information about the accidental fall

during his contact with medical rescue personnel, he should have

testified to explain those events”; and (c) “he had nothing to

lose at that point” and should have testified so the jury could

see “a person who worked full time, took off work to accompany

48

D.R. to doctors’ appointments, helped Laurie and D.R., and even

slept at the hospital during the admissions to CHOP.” Id. at

25.

Messino concedes that he did not exhaust Ground Eleven.

ECF No. 1 at 26 (“It was raised in the petition for [PCR] . . .

and not raised in the appeal of the decision. Defendant chooses

to proceed by way of a petition for habeas corpus rather than

file a second petition for postconviction relief, as time is of

the essence.”). The State did not respond to Ground Eleven.

Nonetheless, as noted above, a district court may deny a claim

on the merits despite non-exhaustion. Carrascosa, 520 F.3d at

254–55; 28 U.S.C. § 2254(b)(2). Accordingly, the Court will

address the substantive merits of this ground for relief.

Messino raised this argument before the PCR court, which

rejected it as follows:

Defense counsel points out that Attorney Kaigh was

ineffective for failing to call Defendant to take the

stand. During the trial, an attorney’s trial strategy

is afforded great deference. Attorney Kaigh claimed

to have weighed the option of having Defendant

testify, but decided it would not be of sound judgment

because of the facts of the case, what Defendant did

following the act, and what led up to the trial. In

this PCR motion, Defendant admitted dropping D.R. and

not telling anyone. Defendant admitted he did not

tell paramedics at scene, the child’s mother, hospital

staff, DYES workers, or police about dropping

accident. Defendant further admitted he was not

honest giving his statement to investigators. In

fact, Defendant testified that at the time of the

incident, he thought his “dropping” of D.R. may have

killed the child. Defendant further admitted that he

49

knew the staff needed to know about “the drop” to save

the child’s life, but still said nothing. Lastly,

defendant admitted the child’s mother lied to police

and the DYFS to protect him. Attorney Kaigh weighed

the stories, how they changed, and decided that the

lies and hiding would not be beneficial to the

Defendant.

ECF No. 1-2 at 36.

It is well-established that “the accused has the ultimate

authority to make certain fundamental decisions regarding the

case, [including] whether to . . . testify in his or her own

behalf.” Jones v. Barnes, 463 U.S. 745, 751 (1983); see also

Rock v. Arkansas, 483 U.S. 44, 49-56 (1987). Here, trial

counsel testified as follows regarding his discussions with

Messino about Messino’s right to testify and counsel’s

recommendation that he not testify:

Q. During the preparation for this case, did you ever

discuss with Mr. Messino whether or not he should

testify?

A. Many times.

Q. Okay. And, what were those discussion about?

A. Well, without fail, in every case, from the onset,

I talk about with a client, whose potential or her

potential to testify. But, as you get closer to

trial, naturally, in trial preparation, you focus in

more on that. So, our conversations including many

discussions about his right to testify, his right not

to testify. That election, how it works in court; its

ramifications; his right to have a jury charge, you

cannot use against him the fact he chose not to

testify.

We discussed in this type of case, there’s a pretty

strong belief by many defense attorneys that the

50

citizen accused needs to get up and say, “I didn’t do

it,” to beat a murder charge.

We also had discussions about the fact that although

he has no prior, indictable criminal record, his is a

difficult path if he testifies. Because, how would he

explain the lie that he told on the very first, to the

first responders and his first statement to the

police.

I felt that that was a decision best made during

trial, when the state utters the words, “State rests,”

there would be time for Mr. Messino and I -- of course

I told him the decision is his, with input from me.

But, ultimately, the decision’s always his. And, I

think the record in this case probably reflects that.

That we had a detailed colloquy about his right to

testify.

I would also say this, in preparation for his

testimony -- and, again, I’ve tried a lot of cases,

and I may have some negative interference; but, I

believe we watched a video tape together; and I

believe that I cross-examined him in preparation for

what I thought his rigorous cross-examination might

be. So, he was prepared to testify.

Q. And after the State rested, did you discuss

whether or not he was to testify in detail with him?

A. We did.

Q. And, although it might have been your

recommendation, whose decision was it ultimately for

him not to testify?

A. In any case, it’s always the defendant’s decision.

In this case, it was his.

Q. Okay. And did you discuss that and make that

clear to him?

A. I did.

ECF No. 7-3 at 51–52.

51

Messino was also questioned at the PCR hearing about his

decision not to testify at trial:

Q. Regarding your . . . decision not to testify, do

you remember the Court and [Kaigh] asking you specific

questions regarding that?

A. I do.

Q. Do you remember specific questions from Kaigh

regarding whether it was your desire not to testify?

A. Yes.

Q. And do you remember specifically him asking you

questions regarding whether or not he had prepared you

to testify?

A. Yes.

Q. And do you remember telling him that he did do

some preparation for you to testify?

A. Not to testify. He did not prepare me to testify.

Q. Do you remember when he asked you that and you

acknowledged that there had been some?

A. I might have. I don’t remember that off the top

of my head.

Q. Do you remember that after Jaime Kaigh questioned

you regarding testimony that Judge Tomasello then

followed up?

A. I’m pretty sure, yes.

Q. And do you remember if Judge Tomasello

specifically asked you if it was your desire not to

testify?

A. Yes.

Q. Okay. And you told him that it was your desire

not to testify.

A. Yes.

52

Q. And do you also recall the judge asking you if you

were satisfied with the advice that Jaime Kaigh gave

you?

A. Yes.

Q. And do you remember telling the Court that you

were satisfied?

A. Yes.

ECF No. 7-1 at 134–135.

Messino also testified as follows regarding his conduct

surrounding D.R.’s death:

Q. . . . [A]fter you dropped him you put him down and

patted him after he cried out?

A. Correct.

Q. Laurie then came down, and you didn’t tell her

what happened, did you?

A. No.

Q. In fact, you just went to bed as if nothing had

happened, correct?

A. Correct.

Q. Even after you heard [D.R.] in distress you never

told Laurie you dropped him, did you?

A. No.

Q. You, in fact, even called 9-1-1.

A. Correct.

Q. And you let her believe that he was having seizure

knowing that you had dropped him?

A. I didn’t let her believe. That’s what she had

told me, that he was shaking and like he was having a

seizure like he had the first time.

53

Q. However, you didn’t tell her that his stress could

have been from the fall, did you?

A. No, I did not. At that time everything was

happening so fast.

Q. And after 9-1-1, shortly thereafter paramedics

arrived, is that correct?

A. Correct.

Q. And when paramedics arrived they were trying to

save his life, weren’t they?

A. They were there, yes.

Q. And you didn’t say anything to paramedics, did

you?

A. No.

Q. You didn’t tell them you dropped him?

A. No.

Q. You even saw the bruise on his abdomen when

paramedics were trying to treat him, didn’t you?

A. I believe I saw a small bruise, yes.

Q. Okay. And even after seeing the bruise, knowing

you had dropped him, you still told paramedics nothing

had happened?

A. No.

Q. You then drove to the hospital, correct?

A. Correct.

Q. And when you got to the hospital you saw Laurie,

is that correct?

A. Yes.

. . .

54

Q. Did you learn that when you had gotten to the

hospital that during the ambulance ride he had stopped

breathing?

A. Somewhere – after I had gotten there, yes, but it

wasn’t quite at first.

Q. And learning that his life was in jeopardy you

still chose not to tell her that you had dropped him?

A. I did not because I didn’t know what was going on.

Q. Okay, you didn’t know what was going on, but you

knew doctors and nurses were trying to save his life,

is that correct?

A. correct.

Q. And you knew that they needed to know what

happened in order to save his life, correct?

A. Correct.

Q. In fact, nurses specifically came out to talk to

Laurie while you stood there asking what had happened.

A. Yes.

Q. And you said nothing.

A. Yes.

Q. And you knew it was important for them to treat

him to know if there was an injury, correct?

A. Correct.

Q. And you still said nothing as they were trying to

save his life.

A. Correct.

Q. You called the family. Did you ever tell the

family that you had dropped him?

A. Not until after I was questioned by the police.

. . .

55

Q. . . . [W]hen they were trying to resuscitate

[D.R.] did you know it was looking like it was not

going to be a good outcome?

A. At one point they came out and said his heart had

stopped.

Q. And even after knowing that you still said

nothing.

A. I froze, yes.

Q. Nurses and doctors specifically were asking if

anything happened, and you told them nothing.

A. I told them nothing.

Q. In fact, even as they were questioning Laurie you

stood next to her and you told her nothing.

A. Correct.

Q. You knew there was a bruise on the lower abdomen,

and you knew doctors saw that bruise, but you never

told them the baby was dropped, correct?

A. Correct.

Q. You knew that you had dropped him shortly before

9-1-1- was called, but you said nothing to doctors who

tried to save his life.

A. Correct.

Q. You then went to the police after [D.R.] had died

and you spoke with Detective Crane first, is that

correct?

A. I believe it was Krane and/or Illas was there,

yes.

Q. Was there another detective by the name of

O’Brien? Were there two detectives in the room the

first time you spoke?

A. I do remember an O’Brien.

Q. Okay, and do you remember them specifically asking

you did you know how the injury occurred?

56

A. He asked me if I knew how the injury occurred,

yes.

Q. And you told them you had no clue.

A. I told -- I did not tell them I had dropped

[D.R.], correct.

Q. In fact, didn’t Detective Crane specifically ask

you did he fall or drop, and you told him no?

A. Yes.

Q. Did you then change that version and give a

subsequent statement?

A. After my first statement I had gone back and told

them the truth, yes.

Q. And you testified that you didn’t tell anyone at

first and you didn’t tell Laurie because you didn’t

think it was serious.

A. Correct.

Q. Did you think it was serious when 9-1-1 was

called?

A. I knew something was going on, yes.

Q. But, even then when you knew it was serious, you

did nothing?

A. I froze, yes.

ECF No. 7-1 at 138–42.

The record reflects that Messino was advised of his right

to take the stand; he was aware that the decision whether to

testify was his; and he decided on advice of counsel not to

testify. Accordingly, to the extent Messino is claiming that

counsel was ineffective for not advising Messino of his right to

testify, the claim is without merit.

57

Notwithstanding Messino’s knowing and voluntary waiver of

his right to testify, the state courts reasonably found that

counsel was not ineffective for advising Messino not to take the

stand. The record, including the testimony recounted above,

supports the state courts’ conclusion that counsel’s advice was

the result of sound trial strategy because, as the PCR judge

found, “the lies and hiding would not be beneficial to the

Defendant.” ECF No. 1-2 at 36. See, e.g., Byrd v. Collins, No.

10-2702, 2011 WL 5075165, at *10 (E.D. Pa. Feb. 15, 2011)

(“trial counsel’s advice not to testify falls within the

objective standard of reasonableness, especially in light of the

facts that the Commonwealth’s case was substantially comprised

of circumstantial evidence”), report and recommendation

adopted, 2011 WL 5075032 (E.D. Pa. Oct. 25, 2011); Hodges v.

Shannon, No. CIV.A. 08-CV-2483, 2009 WL 2413685, at *7–8 (E.D.

Pa. Aug. 5, 2009) (“A criminal defendant has a constitutional

right to testify on his own behalf, but defense counsel’s

alleged failure to call the defendant to the stand does not

constitute ineffective assistance when a defendant is aware of

his right to testify.”) (citing Rock v. Arkansas, 483 U.S. 44,

53 n.10 (1987)); Pettaway v. Brown, No. 09-3587, 2010 WL

7800939, at *8 (S.D.N.Y. May 3, 2010) (“[P]etitioner’s attorney

advised his client of his right to testify and then convinced

him that it would not be wise for him to do so -- a course of

58

action that is proper for a defense attorney. Therefore, the

performance of Mr. Pettaway’s attorney was not deficient.”),

report and recommendation adopted, 2011 WL 5104623 (S.D.N.Y.

Oct. 26, 2011).

Messino has also failed to establish prejudice, as he has

not established that the outcome would have been different had

he testified. See, e.g., Thomas v. Zon, No. 04-0471, 2009 WL

605231, at *12 (W.D.N.Y. Mar. 6, 2009) (“In hindsight, Thomas is

now convinced that his testimony would have resulted in a more

favorable verdict. However, he has failed to demonstrate how

this is the case, and he therefore has failed to meet his burden

of demonstrating that he suffered constitutional prejudice as a

result of failing to testify.”). Thus, Messino is not entitled

to relief on this claim. Habeas relief on Ground Eleven will

therefore be denied.

4. Child Abuse Testimony (Ground Twelve)

Messino argues that counsel was ineffective for failing to

object to witness testimony opining that D.R.’s injuries were

the result of child abuse. Id. at 26–27. Specifically, two

treating doctors “who were not qualified as experts in abuse,”

were “allowed to give an expert opinion about abuse although it

was the ultimate issue in the case.” ECF No. 11 at 32. In

support, Messino argues that counsel should have objected to

testimony from Dr. Gregg, the treating pediatric orthopedic

59

doctor at CHOP, which Messino sets forth in his petition as

follows:

. . . [a]nd if we see a child who’s 2 years old or

less with that particular type of femur fracture

without knowing anything – not – knowing that it’s a

week old and it is bothersome. But not knowing

anything, there’s an 80 percent probability that

that’s abuse. There’s a 20 percent chance it wouldn’t

be abuse. . . .

[T]here was no doubt in my mind that somebody abused

this kid. . .

[or] I think somebody said, ‘Well, he had a temper

tantrum” and I said, ‘well that’s bullshit. It’s not .

. . it didn’t happen that way.’ So we referred them

to the Social Department for child abuse. . . .

. . . [this] – you know, a lot of times we suspect

child abuse. And, you know, you’re not sure so you

want to protect the children; Because if you come in

with a broken bone and its child abuse, the chances

you come in the next year dead is 10 percent. . .

So I actually called the people in Jersey three times

over a period of about a month to tell them, like,

‘don’t be confused. This is child abuse. You have to

find out what it is. I don’t care what your social

worker tells you. I’m telling you this doesn’t happen

normally in this – in this kid . . . that is only the

second time in my life that I picked up the phone and

called somebody personally about it . . . cause this

was extreme example as far as I was concerned.

ECF No. 1 at 27. Messino also argues that counsel should have

objected to the testimony of Dr. Kovacs, another treating

doctor, who allegedly9 testified that two breaks in one leg was

“the hallmark of child abuse.” Id.

9 As noted above, Messino did not provide the trial transcripts,

nor does his petition even cite page numbers in the trial

transcripts. The Court is thus asked to take his word that his

60

Messino concedes that Ground Twelve is not exhausted. ECF

No. 1 at 27 (This claim “was not specifically addressed in the

direct appeal of the PCR”; however “Defendant chooses to proceed

by way of a petition for habeas corpus rather than file a second

petition for post-conviction relief, as time is of the

essence.”). The State did not respond to this ground for

relief. Addressing the merits of this claim, as permitted by 28

U.S.C. § 2254(b)(2), the Court finds that Messino has not

established that counsel was ineffective for failing to object

to this testimony.

First, Messino alleges in conclusory fashion that these

witnesses, both treating pediatric physicians, were not

qualified to opine that the injuries they observed were

consistent with abuse, but he provides virtually no support for

this allegation. Conclusory allegations are insufficient to

support habeas relief. See United States v. Thomas, 221 F.3d

430, 438 (3d Cir. 2000); see also ECF No. 7-3 at 198–99 (Kaigh:

“I think that [Dr. Gregg’s] opinion is probative, and also

prejudicial as anything that is probative is; and, I think under

a Rule 104 analysis, it’s probably going to come in. He’s an

expert testifying about it.” “I don’t believe in frivolous

petition accurately quotes the trial testimony, and the Court is

unable to determine whether the portions of testimony quoted in

the petition are complete because they contain various ellipses

indicating omitted text.

61

objections; so even in retrospect I probably wouldn’t have

objected to that.”).

Second, Messino alleges in conclusory fashion that Drs.

Gregg and Kovacs are opining on “the ultimate question” of

“whether there was abuse and neglect.” ECF No. 11 at 32. But

the ultimate issue on the endangering charge was not whether the

child had been abused; it was whether Messino had abused the

child. The testimony that Messino now objects to opines only

that the child had likely been abused; it does not opine on the

ultimate issue, i.e., whether Messino was the abuser. See,

e.g., Viers v. Warden, 605 F. App’x 933, 943 (11th Cir. 2015)

(petitioner failed to establish ineffective assistance of

counsel where witness testified about who the victim accused of

abusing her without concluding who actually abused her; such

testimony “did not impermissibly go the ultimate issue of who

abused” the victim).

Even if it had, however, Messino does not cite a Supreme

Court case holding that trial counsel was ineffective under the

Sixth Amendment for not objecting to testimony about an ultimate

issue in the case. See, e.g., Moses v. Payne, 555 F.3d 742, 761

(9th Cir. 2009) (noting that the Supreme Court has not held that

the Constitution forbids an expert from testifying to an

ultimate issue in a case); Baker v. Warren, No. CIV. 07-CV-

11065, 2010 WL 1257788, at *4 (E.D. Mich. Mar. 29, 2010) (“there

62

is no clearly established federal law as determined by the

Supreme Court which suggests that admission of [opinion

testimony that goes to an ultimate issue in the case] violates

the Constitution”); see also Fed. R. Evid. 704 (“An opinion is

not objectionable just because it embraces an ultimate issue.”).

Finally, Messino has not established prejudice. This is

particularly so given that defense witnesses testified that the

injuries were not the result of abuse. See, e.g., Hartzell v.

Sauers, No. 10-1236, 2011 WL 484181, at *3 (M.D. Pa. Feb. 7,

2011) (“in regard to prejudice, as the superior court noted,

based on the evidence at trial, including that Petitioner had

his own expert, who testified in opposition to the

Commonwealth's expert, we cannot say the court was unreasonable

in its decision”).

Thus, Messino has not established an entitlement to relief

on the basis that counsel was ineffective for failing to object

to the quoted testimony. Habeas relief on Ground Twelve will be

denied.

5. Theory of the Case (Ground Nine)

Messino argues that counsel was ineffective for failing to

“present a credible or cohesive defense theory for the case”

during closing arguments, though, as noted above, he does not

provide transcripts of said closing arguments. Id. at 22–23.

He argues that counsel was ineffective because he argued that

63

Mollo, the natural father, was most likely the abuser, yet Mollo

did not see D.R. after the femur fracture and could not have

caused the other injuries -- the corneal injury, the pulled

hair, the scrotal injury, the abdominal injuries -- and was not

at the home on the morning of the death. ECF No. 1 at 23.

Counsel further “attacked and defamed the entire medical

staff at Children’s Hospital of Philadelphia arguing that this

was not a hospital that you would bring your child to if he or

she were sick. It was his tactic to have the jury disbelieve,

Dr. Christian, Dr. Kaplan, Dr. Gregg, Dr. Kovacs and Dr. Nance,

without putting forth any evidence of the same.” Id. He also

“argued in his closing, that Dr. Adams’ testimony was

‘compelling’ and ‘riveting,’” and he said “so what that Adams

wrote two reports.” Id. Finally, he “suggested to the jury

that if Messino was responsible for the injuries, ‘it was

manslaughter, aggravated manslaughter, not purposefully done.’”

Id.

Messino concedes that he did not exhaust Ground Nine. Id.

at 23 (The claim was “not addressed specifically . . . in the

direct appeal of the denial of the [PCR]”; however “Defendant

chooses to proceed by way of a petition for habeas corpus rather

than file a second petition for post-conviction relief, as time

is of the essence.”).

64

The State responds that counsel’s closing did not amount to

ineffective assistance of counsel because his arguments “were a

matter of strategy,” and Messino cannot show that “with a

different closing, the outcome would have been any different.”

ECF No. 7 at 23. Despite non-exhaustion, the Court will address

the merits of this claim, as permitted by 28 U.S.C.

§ 2254(b)(2).

Although the “right to effective assistance extends to

closing arguments,” “counsel has wide latitude in deciding how

best to represent a client, and deference to counsel’s tactical

decisions in his [or her] closing presentation is particularly

important because of the broad range of legitimate defense

strategy at that stage.” Yarborough v. Gentry, 540 U.S. 1, 5-6

(2003). “Judicial review of a defense attorney’s summation is

therefore highly deferential and doubly deferential when it is

conducted through the lens of federal habeas.” Id. at 6.

Further, “a closing argument is usually given in a manner

consistent with the theory of the case; a summation cannot

therefore be deficient in a manner sufficient to support a claim

of ineffective assistance of counsel unless the theory and

method of implementing the theory were unreasonable under the

circumstances.” United States v. Ciancaglini, 945 F. Supp.

813, 825 (E.D. Pa. 1996).

65

Kaigh testified as follows regarding the defense theory of

the case:

[D.R.] suffered from MPS. There were allegations of

child abuse that had to be addressed in conjunction

with the allegation of murder and homicide. The child

was reported to have scratched corneas. Cloudy

corneas are part of MPS.

The child was reported to have hair pulled out, when

in reality it was alopecia. A disease causing the

hair loss.

. . .

The child was reported to have had multiple leg

fractures, yet, they can be explained as toddler

fractures. The second fracture coming when he was

wearing a cast.

So, all the allegations of child abuse could be

explained medically, either through the walking cast

that he had, the toddler fractures, the alopecia, the

self-abusive behavior of MPS.

So . . . my theory of the case was consistent with

[defendant’s] last statement to the police, he

accidentally dropped this child. But, that accident -

- he was in no way a child abuser, all the abuse can

be explained; and that not every accident is reckless.

Certainly, the goal of this case was to get away from

knowing or purposeful conduct, which . . . means

murder. So, when faced with a confession, that,

[defendant] accidentally dropped the child, the only

theory of this case, really, and borne out through

cross-examination of all the doctors, was that this

was an accidental death. And, the main contributor was

the MPS. Which also explained away many of the

allegations of child abuse.

I think the case began . . . with Mimi Molo at some

early point. I vigorously cross-examined Mimi Molo,

trying to create the impression he was the abuser.

ECF No. 7-3 at 107.

66

The closing arguments Messino identifies in support of this

claim are consistent with the defense theory of the case.

First, closing arguments related to cross-examination of the

State’s witnesses, Dr. Adams’s testimony, and Mollo’s

interactions with D.R. support the defense theory that the

various injuries were not the result of abuse because there were

alternative explanations for the injuries, and its alternative

theory that if the injuries were the result of abuse, the abuse

had most likely been inflicted by Mollo, not Messino. Second,

an argument referencing manslaughter supports the defense theory

that if the jury were to find Messino responsible for the injury

that caused D.R.’s death, it should convict him of manslaughter

rather than murder.

Given Messino’s risk of a murder conviction, counsel’s

decision to present these alternatives was reasonable. See ECF

No. 7-3 at 79 (Kaigh: “The goal of the defense was to show that,

first of all, to avoid the murder charge, by showing there was

no purposeful conduct here. If Messino was responsible for

these injuries, it was in the manslaughter, aggravated

manslaughter, not purposely done.”); ECF No. 7-3 at 169 (Kaigh:

“[T]he State was trying to prove a purposeful and knowing

murder. Mr. Messino had basically confessed to a reckless or to

an accidental death and I felt that . . . having lied about the

way it happened, he was in danger of getting convicted of

67

murder.”); ECF No. 7-3 at 178 (Kaigh: “The cause of death in

this case was blunt force trauma to the abdomen with healing

injuries that were chronologically dated by [the medical

examiner]. . . . The issue in this case is did [Messino] drop

this child, was it an intentional murder, an accidental death?

And really part of my trial strategy was trying to debunk the

purposeful murder.”); see also Miller v. Luther, No. 15-6456,

2016 WL 9281385, at *8–9 (E.D. Pa. Dec. 14, 2016), (where,

during closing, counsel argued “for a conviction of voluntary

manslaughter rather than first-degree murder under the theories

that [petitioner] either committed the crime in the heat of

passion or mistakenly believed his life was in danger,”

petitioner’s ineffective assistance claim was rejected because

there was support in the record that the argument was supported

by professional judgment), report and recommendation

adopted, 2017 WL 2957823 (E.D. Pa. July 10, 2017).

Counsel’s theory of the case was a reasonable strategic

decision grounded in the facts, and Messino’s complaints about

counsel’s closing arguments are not inconsistent with counsel’s

theory of the case. Thus, Messino has failed to overcome the

presumption that counsel exercised sound trial strategy. See

Strickland, 466 U.S. at 681 (“Because advocacy is an art and not

a science, and because the adversary system requires deference

to counsel’s informed decisions, strategic choices must be

68

respected in these circumstances if they are based on

professional judgment.”). Accordingly, Messino has not

established deficient performance.

Moreover, Messino has not shown prejudice; rather,

counsel’s arguments were successful to the extent that Messino

was acquitted of murder, which carried a much higher sentence --

potentially life -- than Messino ultimately received. Habeas

relief on Ground Nine will be denied.

6. Third-Degree Endangering Charge (Ground Ten)

Messino argues that counsel was ineffective for failing to

(a) request a charge on the lesser-included third-degree

endangering the welfare of a child or (b) ask the jury to decide

the lesser-included offense on the verdict sheet. ECF No. 1 at

24–25. Messino asserts that this charge should have been

requested because “Title 2C: 24-4, Endangering the Welfare of a

Child, makes distinctions between a person who had supervisory

responsibilities over the child or was merely with the child at

the time of the alleged abuse or neglect,” and here, “there was

little if no evidence that Defendant had any supervisory role,”

“nor did he stand in loco parentis.” Id. at 24.

Messino concedes that Ground Ten is not exhausted. Id. at

24–25 (This claim was “not specifically raised in the direct

appeal of the denial of the PCR”; however “Defendant chooses to

proceed by way of a petition for habeas corpus rather than file

69

a second petition for post-conviction relief, as time is of the

essence.”).

The State responds that counsel was not ineffective for

failing to ask for a charge on the lesser included third-degree

offense. For support, the State relies on the Appellate

Division’s rejection on direct review of Messino’s in loco

parentis argument (which, the State asserts, is the difference

between the second and third-degree endangering offense);

specifically, the Appellate Division’s finding that “‘[g]eneral

and ongoing responsi

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