noting that it is necessary to analyze an ineffectiveness claim considering all circumstances
How later courts described this case
- noting that it is necessary to analyze an ineffectiveness claim considering all circumstances
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MICHAEL PAVLYIK, ! Civil Action No. 19-17691 (SMW)
Petitioner, !
v. ! OPINION
PATRICK NOGAN, et al.,
Respondents,
WILLIAMS, District Judge
This matter comes before the Court on Petitioner Michael Pavlyik’s (“Petitioner”) petition
for writ of habeas corpus (“Petition”) brought pursuant to 28 U.S.C. § 2254, (ECF No. 1.)
Following an order to answer, Respondents filed a response to the Petition (ECF No. 22), to which
Petitioner replied (ECF No. 23). For the following reasons, Petitioner’s habeas petition is denied,
and Petitioner is denied a certificate of appealability.
I. BACKGROUND!
In its opinion affirming Petitioner’s convictions, the New Jersey Superior Court,
Appeliate Division provided the following factual summary:
A jury found [Petitioner] {| guilty of eight crimes involving sexual
abuse of his stepdaughter, A.A., and one weapons offense. The
abusive conduct commenced in February 2004, when A.A. was
eight years old, and continued until February 2007. It occurred in
New Jersey on the weekends and during the summer weeks while
A.A., who lived with her father in Maryland, was in the care of her
mother and stepfather in their New Jersey home. Ordinarily, three
! The factual background is taken from the record submitted by the parties; the facts relevant to the individual claims
for relief are discussed in the analysis section of the Opinion.
other younger children were staying in the home when A.A.
visited—one is defendant’s child and two are A.A.’s half-siblings.
A.A., who was fifteen years old when the case was tried in 2011,
testified that [Petitioner] started sexuaily abusing her in 2004, when
she was eight years old and continued until 2007, when she was
eleven years old. A.A. acknowledged enjoying her time in New
Jersey with her family and, for a time, wanting to live there rather
than in Maryland. Nevertheless, A.A. testified about what
[Petitioner] did to her and caused her to do to him while she was
with him.
A.A, described a variety of sexual acts to which [Petitioner]
subjected her to over the three-year period: penile penetration of her
vagina on one occasion; touching of her breasts; causing her to touch
his penis; cunnilingus; and causing her to engage in fellatio.
(ECF No. 22-6, State vy. M-P., No, A-2498-11T3 at 1-2 (N.J. Super. Ct. App. Div. March 26,
2014).)
The Gloucester County Grand Jury returned Indictment No. 07-12-01225-I, charging
Petitioner with endangering the welfare of a child, N.S.A. § 2C:24-4a (count one); aggravated
sexual assault, N.I.S.A. § 2C:14-2a(1) (counts two, three, four); sexual assault, N.J.S.A. § 2C:14-
2b (counts five, six, seven); showing obscene material to a minor, N.J.S.A § 2C:34-3b(2) (count
eight); and possession of a destructive device, N.J.S.A. § 2C:39-3a (count nine). (ECF No. 22-2.)
On April 1, 2011, following a jury trial presided over by the Honorable Walter L. Marshall,
I.S.C., Petitioner was convicted on al! counts. (See ECF Nos. 22-38.) On July 1, 2011, Petitioner
was sentenced to a total term of thirty-three years imprisonment, subject to the No Early Release
Act (“NERA”). (See ECF No. 22-39.)
Petitioner filed a Notice of Appeal with the Appellate Division, (ECF No, 22-4.) On March
26, 2014, the Appellate Division affirmed Petitioner’s convictions. (ECF No. 22-6, M.P., No. A-
2498-11T3.) On September 22, 2014, the New Jersey Supreme Court denied Petitioner’s petition
for certification, (ECF No, 22-7,)
Petitioner filed a pro se post-conviction relief (“PCR”) petition raising a multitude of
claims. (ECF No, 22-8.) On October 28, 2014, Petitioner filed a pro se supplemental PCR petition.
(ECF No, 22-10,) On October 10, 2015, counsel filed a supplemental PCR petition. (ECF No. 22-
11.) On September 13, 2016, the PCR court denied Petitioner’s PCR petition. G2CF No. 22-13.)
On May 31, 2018, the Appellate Division affirmed the denial of Petitioner’s PCR petition.
(ECF No. 22-17, State v. M.P., No. A-1593-16T2 (N.J. Super. Ct. App. Div. May 31, 2018).) On
December 6, 2018, the New Jersey Supreme Court denied Petitioner’s petition for certification.
State v. M.P., 236 N.J. 116, 198 A.3d 293 (Table) (2018).
On September 11, 2019, Petitioner filed the instant habeas petition (“Petition”) and
supporting brief with this Court. (ECF Nos. 1, 1-2.) Thereafter, Respondents filed a response. (ECF
No. 22.) Petitioner filed a reply. (ECF No. 23.) On January 24, 2023, this Court issued a
Memorandum Opinion finding the Petition was mixed—i.e., it contained both exhausted and
unexhausted claims. (ECF No. 25.) This Court provided Petitioner with the opportunity to either
(i) withdraw his unexhausted claims and have the Court rule on his remaining claims; or (2) request
a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005), or to return to state court to exhaust his
unexhausted claims. (/d.) On February 8, 2023, Petitioner elected to withdraw his unexhausted
claims: Ground One, Ground Two, subclaims b, d, e, f, i, j, k, 1, n, and o, and Ground Three,
subclaims a, d, and e. (ECF No, 27.) Petitioner’s remaining habeas claims are as follows:
2. Ineffective assistance of trial counsel for failing to investigate
witnesses and adequately cross examine A.A.,
a, Trial counsel failed to investigate Robert Andrews.
c. Trial counsel failed to investigate Tina Raspe.
g, Trial counsel failed to investigate Regina Howard.
h. Trial counsel failed to investigate Jean Willemain.
m. Trial counsel failed to investigate Mildred Quiles.
3. Ineffective assistance of trial counsel for failing to investigate
potential expert witnesses.
b. Trial counsel failed to investigate potential medical
experts.
c. Trial counsel failed to investigate potential explosive
experts.
4, Ineffective assistance of trial counsel for failing to investigate
legal theories applicable to the defense.
a. Trial counsel failed to conduct adequate legal research
which could have been resorted to for the exclusion of the
fresh complaint evidence of C.D. admitted as hearsay.
b. Trial counsel failed to object to the unconstitutional
admission of the victim’s fresh complaint evidence.
c. Trial counsel failed to investigate the admission of
material designated as confidential.
d. Trial counsel failed to investigate the requirements to
sustain a conviction for possession of a destructive device.
e, Trial counsel failed to investigate inconsistent statements
for impeachment,
f. Trial counsel failed to object to hearsay lab testimony.
5. Petitioner was denied due process by failure of the PCR court to
conduct an evidentiary hearing with factual and expert witnesses
who could have offered exculpatory evidence demonstrating trial
counsel was ineffective.
(See generally ECF Nos, 1, 1-2.)
Ii, STANDARDS OF REVIEW
A. Legal Standard
Under the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA”), 28 U.S.C.
§ 2254 provides, the district court “shall entertain an application for writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of a State court only on the ground that he
is in custody in violation of the Constitution or laws or treaties of the United States.” Habeas
petitioners bear the burden of establishing their entitlement to relief for each claim presented in a
petition based upon the record that was before the state court. See Eley v. Erickson, 712 F.3d 837,
846 (3d Cir. 2013). District courts are required to give great deference to the determinations of the
state trial and appellate courts. Renico v. Lett, 559 U.S. 766, 772-73 (2010).
Where a claim has been adjudicated on the merits by the state courts, the district court shall
not grant an application for writ of habeas corpus unless the state court adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States: or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d).
“Contrary to clearly established Federal law” means the state court applied a rule that
contradicted the governing law set forth in U.S. Supreme Court precedent or that the state court
confronted a set of facts that were materially indistinguishable from U.S. Supreme Court precedent
and arrived at a different result than the Supreme Court. Eley, 712 F.3d at 846 (citing Williams v.
Taylor, 529 U.S. 362, 405-06 (2000)). Federal law is clearly established for these purposes where
it is clearly expressed in “only the holdings, as opposed to the dicta” of the opinions of the United
States Supreme Court. See Woods vy. Donald, 575 U.S. 312, 316 (2015). An “unreasonable
application” of clearly established federal law is an “objectively unreasonable” application of law,
not merely an erroneous application. Eley, 712 F.3d at 846 (quoting Renico, 559 U.S. at 773), As
to 28 U.S.C. § 2254(d)(1), a federal court must confine its examination to evidence in the record.
Cullen v. Pinholster, 563 U.S, 170, 180-81 (2011).
“When reviewing state criminal convictions on collateral review, federal judges are
required to afford state courts due respect by overturning their decisions only when there could be
no reasonable dispute that they were wrong.” Woods, 574 U.S. at 316. Where a petitioner
challenges an allegedly erroneous factual determination of the state courts, “a determination of a
factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have
the burden of rebutting the presumption of correctness by clear and convincing evidence, 28
U.S.C. § 2254(e)(1). Furthermore, “[w]Jhen a state court arrives at a factual finding based on
credibility determinations, the habeas court must determine whether that credibility determination
was unreasonable.” See Keith v. Pennsylvania, 484 F. App’x 694, 697 (3d Cir. 2012) (citing Rice
v. Collins, 546 U.S. 333, 339 (2006).
B. Ineffective Assistance of Counsel Standard
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated the two-
prong test for demonstrating when counsel is deemed ineffective. First, a petitioner must show that
considering all the circumstances, counsel’s performance fell below an objective standard of
reasonableness. See id. at 688; see also Grant y, Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (noting
that it is necessary to analyze an ineffectiveness claim considering all circumstances) (citation
omitted). A petitioner must identify the acts or omissions that are alleged not to have been the
result of reasonable professional judgment. See Strickland, 466 U.S. at 690. Under this first prong
of the Strickland test, scrutiny of counsel’s conduct must be “highly deferential.” See id at 689.
Indeed, “[cjJounsel is strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” fd. at 690, The
reviewing court must make every effort to “eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Jd. at 689. If counsel makes “a thorough investigation of law
and facts” about his plausible options, the strategic choices he makes accordingly are “virtually
unchallengeable.” Gov’t of Virgin Islands v. Weatherwax, 77 F.3d 1425, 1432 Gd Cir. 2006)
(citing Strickland, 466 U.S. at 690-91). If, on the other hand, counsel pursues a certain strategy
after a less than complete investigation, his choices are considered reasonable “to the extent that
reasonable professional judgments support the limitations on investigation.” Rolan vy. Vaughn, 445
F.3d 671, 682 3d Cir, 2006) (citing Strickland, 466 U.S. at 690-91).
The second prong of the Strickland test requires the petitioner to affirmatively prove
prejudice. See 466 U.S at 693. Prejudice is found where “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different,” Jd. at
694, A reasonable probability is “a probability sufficient to undermine confidence in the outcome.”
see also McBridge v. Superintendent, SCI Houtzdale, 687 F.3d 92, 102 n.11 (3d Cir. 2012).
“This does not require that counsel’s actions more likely than not altered the outcome, but the
difference between Strickland’ s prejudice standard and a more-probable-than-not standard is slight
and matters only in the rarest case. The likelihood of a different result must be substantial, not just
conceivable.” Harrington y. Richter, 562 U.S. 86, 111-12 (2011) Gnternal quotation marks and
citations omitted).
“With respect to the sequence of the two prongs, the Strickland Court held that ‘a court
need not determine whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies ... If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice .. . that course should be
followed.’” Rainey v. Varner, 603 F.3d 189, 201 (3d Cir. 2010) (quoting Strickland, 466 U.S. at
697).
When assessing an ineffective assistance of counsel claim in the federal habeas context,
“(t]he pivotal question is whether the state court’s application of the Strickland standard was
unreasonable,” which “is different from asking whether defense counsel’s performance fel! below
Strickland’s standard.” Grant, 709 F.3d at 232 (quoting Harrington, 562 U.S. at 101). “A state
court must be granted a deference and latitude that are not in operation when the case involves
[direct] review under the Strickland standard itself.” Jd. Federal habeas review of ineffective
assistance of counsel claims is thus “doubly deferential.” Jd. (quoting Pinholster, 563 U.S. at 190).
Federal habeas courts must “take a highly deferential look at counsel’s performance” under
Strickland, “through the deferential lens of § 2254(d).” Jd. (internal quotation marks and citations
omitted).
HE. ANALYSIS
A. Ground Two: Failure to Investigate Fact Witnesses and Cross Examine A.A?
Petitioner’s second ground for relief alleges that trial counsei was ineffective failing to call
“a host of possible factual non-expert witnesses” who may have had the “potential for presenting
exculpatory evidence, which could have resulted in acquittal.” (ECF No. 1-2 at 84.) Petitioner
alleges the “record contains nothing to demonstrate trial counsel investigated 15 possible germane
factual witness.” (/d.) Relevant here, Petitioner alleges trial counsel should have investigated
“Robert Andrews, . . .,Tina Raspe, ..., Regina Howard, Joan Willemain, .. ., [and] Mildred
Quiles.” (/d.) Petitioner also argues that trial counsel failed to adequately cross-examine the victim
on inconsistent statements between her pre-trial statement and her trial testimony. (/d. at 90-91.)
Finally, Petitioner argues that PCR counsel was also ineffective for failing to interview these
witnesses. (/d. at 89.)
2 The Court will only be addressing the grounds for relief that have not been withdrawn by Petitioner.
Petitioner submits that Robert Andrews was the biological father of A.A. and was “the
source of a prior allegation of abuse by Petitioner found to be unsubstantiated and alleged to have
occurred on February 17, 2004.” Ud.) Petitioner claims that Andrews was involved in a custody
dispute with A.A.’s mother and during the custody hearing, testimony was given regarding
Andrew’s abuse of his ex-girlfriend, Tina Raspe. (/¢.) Petitioner also alleges that Andrews testified
at the custody hearing that he permitted visits to resume between Petitioner and A.A., even though
he believed Petitioner was abusing A.A., because “of the attorney fees involved in contesting [it].”
(id.) Petitioner alleges that trial counsel should have been alerted that the custody dispute may
have been a possible reason for the allegations against Petitioner. (/@.)
Petitioner submits that Regina Howard “was a therapist who had met with [A.A.] on March
6, 2007,” and that she spoke with and sent documents to the Department of Social Services. (/d. at
86.) Petitioner claims that Joan Willemain was with the Maryland Department of Social Services
and interviewed A.A, Ud.) According to Petitioner, on May 12, 2007, Willemain recommended
the matter be closed with a referral for counseling. (/d. at 87.) Finally, Petitioner claims that
Mildred Quiles was a licensed clinical social worker who investigated and found a prior incident
of alleged abuse as to A.A. unsubstantiated. Ud. at 88.)
On collateral appeal the Appellate Division provided the following background:
The law firm that represented [Petitioner] assigned the matter to an
attorney who was a new hire, and became responsible for the file
three months before the scheduled trial date. Thus, it is unsurprising
that the heart of [Petitioner’s] PCR petition is the claim that his
attorney’s services were ineffective and prejudiced his right to a fair
trial.
Before [Petitioner] rested, defense counsel mentioned on the record,
but outside the presence of the jury, he might be calling an additional
possible witness, a DCPP employee. Allegedly, the worker signed a
letter on August 8, 2008, stating that after investigation of a June 3,
2008 referral, DCPP determined the allegation was unfounded.
During the discussion with the judge, counsel acknowledged that the
indictment preceded the letter by approximately a year. He said he
nonetheless had a duty to attempt to locate the worker and interview
her, The assistant prosecutor responded that A.A. had told another
friend about the sexual abuse. The friend told her mother, who
relayed it to DCPP. According to the prosecutor, the disclosure
related to the subject matter of the trial, and therefore the Division
decided to take no further action. Defense counsel attempted to
locate the worker, and the judge gave him time to do so, albeit
expressing some skepticism about the admissibility and relevance of
the letter. When the trial resumed the following day, counsel did not
mention the letter again.
(ECF No. 22-17 at 4-7, M-P., No. A-1593-16T2.) The Appellate Division denied Petitioner’s claim
that trial counsel was ineffective for failing to investigate potential witnesses and adequately cross
examine A.A, as follows:
Evidentiary hearings on ineffective assistance of counsel claims are
only granted when a defendant presents prima facie evidence in
support of PCR. See State v. Preciose, 129 N.J. 451, 462-63 (1992).
As set forth in State v. Cummings, and reiterated in the cases that
follow:
[I]n order to establish a prima facie claim, a
petitioner must do more than make bald assertions
that he was denied the effective assistance of
counsel. He must allege facts sufficient to
demonstrate counsel’s alleged substandard
performance. Thus, when a petitioner claims his trial
attorney inadequately investigated his case, he must
assert the facts that an investigation would have
revealed, supported by affidavits or certifications
based upon the personal knowledge of the affiant or
the person making the certification.
(321 N.J. Super. 154, 170 (App. Div. 1999) (citation
omitted). ]
[Petitioner’s] arguments are not supported by any certifications
regarding facts allegedly overlooked by trial counsel that would
have affected the outcome of the case. Therefore, no further
comment is necessary on the counseled brief’s argument that trial
10
counsel’s failure to meet with [Petitioner] or interview the DCPP
worker prejudiced the outcome.
Under Strickland v. Washington, a defendant must identify acts or
omissions allegedly showing unreasonable professional judgment
by an attorney and then establish that such acts and omissions had a
prejudicial effect on the outcome. 466 U.S. 668, 687 (1984), Even
if we were to agree that trial counsel should have done more, which
we do not, we cannot agree that the failure to do so had any effect
on the outcome.
[Petitioner] provides no information whatsoever, other than his own
bald assertions, as to the nature of that information or how it would
have altered the outcome. [Petitioner’s] uncounseled brief attacks
counsel’s alleged failure to “investigate” or, presumably, to
adequately explore on cross-examination, A.A.’s prior inconsistent
statements. Had the cross-examination been more expansive,
[Petitioner’s] suggested areas of cross-examination would not have
affected the verdict. That A.A. may have said the sexual attacks
occurred in one room as opposed to another, or that family members
were outside, or that she sent him affectionate e-mails, were all
explored during the trial. The jury heard the testimony and
apparently did not consider it important.
[Petitioner] has not established ineffective assistance or any
prejudice. The State’s proofs were indeed overwhelming.
(id. at 11-13, M-P., No. A-1593-16T2.)
Under federal law, a failure to investigate potentially exculpatory evidence or witnesses may
form the basis of ineffective assistance of counsel. See Strickland, 466 U.S. at 690-91; see also
Brown vy. United States, No. 13-2552, 2016 WL 1732377, at *4-5 (D.NJ. May 2, 2016). To
successfully establish this claim, a petitioner “must make a comprehensive showing as to what the
investigation would have produced. The focus of the inquiry must be on what information would
have been obtained... and whether such information, assuming admissibility in court, would have
produced a different result.” See Brown, 2016 WL 1732377, at *5 (quoting United States v. Askew,
88 F.3d 1065, 1073 (D.C. Cir. 1996) (internal quotation marks omitted)). The petitioner must also
11
still demonstrate he suffered prejudice. See Strickland, 466 U.S. at 690-91. But, where a petitioner
merely speculates as to what a witness might have said if interviewed by counsel and does not
present sworn testimony from that witness, a petitioner will not be able to establish the prejudice
prong of Strickland. See Duncan vy. Morton, 256 F.3d 189, 201-02 (3d Cir. 2001) (citing United
States v. Gray, 878 F.2d 702, 712 (3d Cir. 1989)),
Here, Petitioner makes conclusory arguments regarding the potential witnesses and what
information they may have provided. Petitioner has not provided any sworn testimony, affidavits,
or certifications from any of these witnesses. Petitioner does not even submit that these witnesses
would have testified on his behalf. At most, Petitioner speculates that A.A. may have made the
allegations against Petitioner based on a custody dispute between Robert Andrews and her mother,
Tina Raspe may have testified that Robert Andrews was abusive, Regina Howard may have testified
that she interviewed A.A., Joan Willemain may have testified that she referred A.A. for counseling
after recommending “the matter” be closed, and Mildred Quiles may have testified that a prior
incident of alleged abuse at to A.A. was unsubstantiated, (See ECF No. 1-2 at 84-88.) Petitioner’s
mere speculation regarding the potential witnesses’ testimony is insufficient to establish prejudice.
See Duncan, 256 F.3d at 201-02. Petitioner has also failed to make any argument as to how any
potential information from these witnesses would have produced a different result at Petitioner’s
trial. See Brown, 2016 WL 1732377, at *5.
The Appellate Division found that Petitioner failed to show prejudice and that the State’s
proofs were indeed overwhelming. The Appellate Division also noted that the jury heard A.A.’s
testimony at trial and Petitioner failed to show how any further cross-examination of her would
have changed the outcome of his case. (ECF No. 22-17 at 12, MZP., No. A-1593-16T2,) On direct
appeal the Appellate Division summarized the State’s proofs as follows:
12
It is an understatement to say that the State’s evidence adequately
supports the verdict. A.A., who was fifteen years old when the case
was tried in 2011, testified that [Petitioner] started sexually abusing
her in 2004, when she was eight years old and continued until 2007,
when she was eleven years old. A.A. acknowledged enjoying her
time in New Jersey with her family and, for a time, wanting to live
there rather than in Maryland. Nevertheless, A.A. testified about
what [Petitioner] did to her and caused her to do to him while she
was with him.
A.A. described a variety of sexual acts to which [Petitioner]
subjected her to over the three-year period: penile penetration of her
vagina on one occasion; touching of her breasts; causing her to touch
his penis; cunnilingus; and causing her to engage in fellatio.
With respect to “oral sex,” A.A. testified that [Petitioner] used a
purple, rubber toy he took from under his and her mother’s bed and
directed her to suck it. Sometimes he substituted his penis for the
toy. In addition, she said that [Petitioner] licked her vagina, “usually
either before or after” she “gave him oral sex.”
A.A. also described the prelude to the only act of intercourse she
acknowledged at trial. [Petitioner] showed her a video that depicted
“a regular teenager, a gitl, and her father. . . having sex in the back
of a van.” After A.A. looked at the video on the living room
computer as defendant directed, he asked her if “she wanted to try
it,” took her to the couch, pulled down her pants and “stuck his penis
in [her] vagina.”
A.A.’s last visit to New Jersey was on the weekend before March 6,
2007, which was the day A.A. first disclosed [Petitioner’s] abuse to
an adult. A.A. made the disclosure in Maryland to Detective
Chrystal Hassler (then known as Detective Chrystal Young) and a
Maryland social worker, Joan Willemain.
As A.A, explained at trial, she did not go to the detective’s office on
her own. She went to answer the detective’s questions “about
something [she] and [her friend C.D.] had did [sic]” in Maryland.
The detective’s questions “led to something else, and come to find
out that I had let out that my step-dad was sexually abusing me, and
they stopped me from going there.”
An audio recording of A.A.’s March 2007 interview with Detective
Hassler and Willemain was played for the jury at trial. A.A’s
descriptions of [Petitioner’s] conduct during that interview were
generally consistent with, but not identical to, her trial testimony,
13
For example, during the interview, A.A. described the purple toy
[Petitioner] used to teach her before tricking her by putting his penis
in her mouth, She also described [Petitioner] making her watch
videos on the computer in the living room that showed teenagers
doing the things defendant “tr[ied] to do to [her].”
Other than differences in the terminology A.A. used when she was
interviewed at age eleven and testified at trial at age fifteen, the most
notable differences between her accounts were: her descriptions of
cunnilingus, which A.A. disclosed at trial but not during the
interview; and her description of penile penetration of her vagina,
which she told Hassler and Willemain occurred about “five or four”
times in |Petitioner’s] bedroom but told the jury occurred only once
in the living room.
Evidence tending to corroborate A.A.’s testimony was retrieved
during a search of the New Jersey home [Petitioner’s] shared with
A.A.’s mother, two children born of their relationship, and
[Petitioner’s] son born of another relationship, who is a year
younger than A.A, That search was conducted shortly after A.A.’s
interview. A purple dildo, along with other sexual devices and a
device for cleaning them, was found in a bag under the bed used by
[Petitioner] and A.A.’s mother. A substance retrieved from the
purple device was subjected to DNA testing and determined to be
saliva of a female, but it was not A.A.’s saliva.
Videos stored on the computer in the living room in the home of
A.A’s mother and [Petitioner] were also found and seized. One of
the videos, which was four minutes and nine seconds long,
graphically depicts actual anal and vaginal intercourse between a
mature adult male and a teenage girl. The conduct takes place in the
back of a vehicle that appears to be either a station wagon or SUV
with a hatchback that is up and open to expose the flat surface of the
interior. That video was played for the jurozs.
The young woman in the video is wearing shorts, her hair is in
pigtails tied with bows, and she repeatedly addresses the older male
as “daddy.” That was the only video shown to the jurors, But the
officer who recovered that video from the computer in the living
room of [Petitioner’s] home selected and retrieved others, and he
testified briefly about their various titles and content,
The State also presented expert testimony tending to corroborate
vaginal penetration. In March 2007, Dr. Wendy Lane, who was
qualified at trial as an expert in pediatric medicine with a specialty
in pediatric abuse, examined A.A. and found damage to the eleven-
14
year old’s hymenal tissue. In Dr. Lane’s opinion, the damage was
caused by penetrating trauma, not blunt trauma such as one from a
fall on gymnastics equipment or a bicycle. Dr. Lane also ruled out
A.A.’s use of a tampon or self-exploration as possible, but very
unlikely, causes of the well-healed transaction she observed.
The doctor acknowledged she could not identify the source of A.A’s
penetrating trauma with absolute certainty. Nevertheless, based on
A.A.’s history, which included the child’s denial of consensual
sexual conduct and no history of other penetrating trauma, Dr. Lane
opined, within a reasonable degree of medical probability, that the
penile intercourse with [Petitioner] was the cause.
Finally, the State presented evidence that A.A. had confided in other
children while the abuse was ongoing. At trial and during her
interview with Hassler and Willemain, A.A. said she told
[Petitioner’s] son that [Petitioner] was hurting her and told her friend
C.D, about the sexual abuse.
[Petitioner’s] son testified for the defense. He denied being told
about A.A.’s being hurt. G.D, testified for the State at trial and told
the jurors what A.A. said.
G.D. lived in Maryland. And, by both A.A.’s and C.D.’s accounts,
they were best friends when A.A. confided in her. According to
G.D., while they were sharing secrets, A.A., who seemed upset but
did not cry, told her that her stepfather “touched . . . and licked her
in her vaginal area and did it with her,” meaning to G.D. that “he
had sexual intercourse with her,” G.D. explained that she did not tell
anyone because A.A. asked her not to.
During her March 2007 interview, A.A. said: “I told [G.D.] what my
step-dad had done to me because she was, she was kinda the only
person | could tell at the time.” At trial A.A. volunteered additional
information. When the prosecutor asked what she told G.D., A.A.
said: “My step-dad started sexually abusing me and it was basically
like a teacher and student kind of thing. And when me and [G.D. got
to] know each other more, I soon told her about it and then we started
experimenting with each other.” Moments later, A.A. repeated her
statement linking her telling C.D. about [Petitioner’s] abuse and the
two girls’ “experimenting.”
(ECF No. 22-6 at 3-5, M0. P., No. A-2498-11T3.)
15
Petitioner makes only conclusory arguments regarding who these potential witnesses were
and how they were involved in this matter. He fails to provide any evidence regarding what they
would have testified to. Additionally, Petitioner fails to explain how their testimony could have
changed the outcome of his case. Additionally, as explained above, the jury listened to a recording
of A,A.’s statement to detectives and listened to her trial testimony, Petitioner fails to argue how
trial counsel further cross examining A.A. would have affected the jury’s verdict. The Appellate
Division applied the standard in Strickland and found Petitioner failed to meet the prejudice prong.
Petitioner cannot demonstrate the state court’s adjudication was an unreasonable application of
clearly established federal law. Thus, Petitioner’s claim is denied.?
B. Ground Three: Failure to Investigate Expert Witness
In ground three, Petitioner alleges that trial counsel was ineffective failing to investigate
potential medical experts and a potential explosives expert. (ECF No. 1-2 at 95-99.) Regarding
medical experts, Petitioner argues that trial counsel should have obtained an expert to dispute the
State’s medical expert’s opinion that penile intercourse with Petitioner was the cause of the
damages to A.A.’s hymenal tissue. Petitioner submits that an expert could have testified that the
experimentation between A.A. and C.D. could have caused the damage. (/d. at 96.) Petitioner also
3 Petitioner also raises this claim against PCR counsel, arguing that PCR counsel was ineffective for failing to
investigate witnesses. This claim is not cognizable on habeas review, as there is no federal constitutional right to
counsel in PCR proceedings. See Coleman vy. Thompson, 501 US. 722, 752 (1991); 28 U.S.C, § 2254(i) (‘The
ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be
a ground for relief in a proceeding arising under section 2254.”); Skelion v. Gihnore, No. 19-2028, 2020 WL 5231572,
at *] (E.D. Pa, Sept. 2, 2020) (“To the extent that the petitioner is attempting to obtain habeas relief simply based on
an allegation that his state post-conviction relief counsel was ineffective, such a claim is meritless and cannot be a
basis for habeas relief.”); Kelly v. Johnson, No. 16-2553, 2020 WL 3097510, at *17 (D.N.J, June 11, 2020) (“Petitioner
also contends that PCR counsel was ineffective for failing to adequately argue the ineffective assistance of trial counsel
claim. Specifically, he argues that counsel’s failure to obtain and submit affidavits from witnesses . . . to the PCR
Court undermined the likelihood of success on those claims ,... The Court will deny this ground because it is not
cognizable as an independent ground for habeas relief.”); Boone v. Gilmore, No. 15-2733, 2017 WL 6497295, at *3
(E.D. Pa. Dec. 19, 2017) (“To the extent that Petitioner intended to pursue a standalone claim that PCRA counsel was
ineffective for failing to present Mr. Davis’s affidavit to the PCRA court, that claim is non-cognizable.”). Accordingly,
habeas relief is also denied as to the portion of this claim against PCR counsei.
16
argues that an expert could have testified that it was improper for the emergency room doctor who
treated A.A. to decide not to examine A.A. because she was upset and that A.A. “should have been
examined immediately regardless of psychological condition.” Ud.) Regarding an explosive expert,
Petitioner argues that trial counsel should have investigated procuring George W. Chin as an expert,
as he was the New Jersey state police forensic scientist who authored a report on the explosive
device seized from Petitioner’s residence. Petitioner claims that the State’s explosives expert’s
testimony relied on the report Chin authored, and trial counsel should have determined “whether
[Chin’s] opinion would contradict trial evidence of a detective who did not conduct testing.” (Ud. at
98.) Finally, Petitioner argues that PCR counsel was also ineffective for failing to investigate
medical and explosive experts. (See id. at 96-98.)
On collateral appeal, Petitioner raised these claims in a conclusory fashion in his pro se
supplemental PCR petition, which listed ninety statements and claims. (See ECF No. 22-10.) There,
Petitioner argued “ineffective assistant of counsel for failing to hire an explosives expert to counter
the state” and “ineffective assistance of counsel for failing to hire a medical expert to counter the
state.” (id, at 3.) The PCR court noted that “Petitioner added an additional ninety [] claims or
statements about how counsel was deficient[, and] [m]any of these claims are meritless or statutorily
barred, and many of the statements are baseless or irrelevant.” (ECF No. 22-13 at 14.) The PCR
court explained that for the claims that were not, “the relevant ‘inquiry is whether counsel’s
performance was ‘reasonable considering all the circumstance.” (/d., citing State v. Savage, 120
4 By way of background, on direct appeal, the Appellate Division summarized the evidence regarding the explosive
device as follows:
The State also presented evidence to establish defendant’s possession of a
destructive device. It was found during the search of defendant’s room in March
2007. The device consisted of a fused, five-inch cardboard cylinder holding an
explosive mixture containing black powder. A detective from the arson and bomb
squad unit of the New Jersey State Police testified that if the fuse was ignited the
device would explode and propel anything in the area outward in all directions.
(ECF No. 22-6 at 5, No. A-2498-11T3.)
17
N.J. 594, 617 (1990) (quoting Strickland, supra, 466 U.S, at 688.)) The court noted that “many of
the additional number of claims Petitioner makes about how trial counsel was deficient are merely
bald assertions.” (/d. at 15.) The PCR court concluded that there was no “factual evidence to suggest
that the Petitioner had a reasonable probability that the proceeding result would have been different
but for counsel’s errors,” (/d.) Therefore, the court found Petitioner failed to meet the second prong
of Strickland. Ud.)
The state court’s holding that Petitioner failed to show prejudice required by Strickland was
neither contrary to nor an unreasonable application of federal law. It is axiomatic that a petitioner’s
“failure to include a sworn statement regarding the nature of [an expert’s] proposed testimony is
fatal to his making a prima facie showing of prejudice” as to the failure to call such an expert at
trial. Tolentino v. United States, No. 13-4168, 2014 WL 3844807, at *3 (D.N.J, July 31, 2014); see
also Duncan, 256 F.3d at 201-02. Regarding Petitioner’s claims that trial counsel was ineffective
for failing to call medical experts, Petitioner has identified no expert who was willing to provide
testimony in support of his claims, he has failed to show any prejudice flowing from counsel’s
alleged failure to call such witnesses, and these claims therefore fail to set forth a valid basis for
habeas relief. Although Petitioner does identify George W. Chin as the explosive device expert trial
counsel should have procured to testify, Petitioner fails to argue what Chin would have testified to,
provide an affidavit to what he would have testified to, or how the lack of said testimony prejudiced
Petitioner, As Petitioner notes, Chin was the New Jersey state police forensic scientist who authored
a report on the explosive device seized from Petitioner’s residence and in that report, he found the
item was a “low explosive.” (ECF No, 22-25 at 2.) Petitioner fails to show the outcome of his trial
would have been different if counsel had called Chin as an expert to testify to his finding that the
18
device was an explosive. Strickland, 466 U.S. at 686-88, 693-94, Therefore, Petitioner fails to show
he is entitled to habeas relief on this claim.’
C. Ground Four: Failure to Investigate Legal Theories
Petitioner raises several subclaims under ground four. The Court will address each claim in
turn.
1. Failure to Object to Fresh Complaint Hearsay
In ground four, subclaims a and b, Petitioner argues that trial counsel was ineffective for
failing to adequately object to or research an objection to the hearsay “fresh complaint” evidence
of A.A.’s report of the abuse to C.D. that was introduced at trial. (ECF No. 1-2 at 105-112.)
Petitioner appears to argue that the statement A.A. made to C.D. should not have qualified as a
fresh complaint due to the time between the abuse and A.A. reporting it to C.D, (See ie.) Petitioner
argues that if trial counsel had researched the issue, counsel would have been able to utilize this
argument, (7d. ai 108.)
Petitioner raised the instant claim in his ninety claim pro se supplemental PCR petition.
(ECF No. 22-10 at 3.) The Appellate Division denied this claim and found that “despite
[Petitioner’s] allegations to the contrary, counsel did object to the testimony of the fresh complaint
witness.” (ECF No. 22-17 at 10, M.P., No, A-1593-16T2.)
By way of background, on direct appeal, the Appellate Division explained that C.D. testified
for the State at trial and told the jury what A.A. said. (ECF No. 22-6 at 5, MP., No, A-2498-1173.)
The Appellate Division noted that following a pretrial hearing, the trial court determined C.D,’s
5 As noted above, Petitioner argues that PCR counsel was also ineffective for failing to investigate medical and
explosive experts. This claim is not cognizable on habeas review, as there is no federal constitutional right to counsel
in PCR proceedings. See Coleman, 501 U.S, at 752; 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of
counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding
arising under section 2254.”) Accordingly, this claim is also denied as to any argument for habeas relief regarding
PCR counsel.
19
testimony about what A.A. told her was sufficiently trustworthy to be admitted at trial. Ud. at 5, fn.
3.) During the pretrial motion hearing, trial counsel objected to the admission of the statement under
N.J.R.E. 803(c)(27), arguing that the events had taken piace years prior and that went to the
trustworthiness of the statement, (See ECF No. 22-34 at 34:1-21.) Petitioner appears to argue that
trial counsel should have objected based on the length of time between the abuse and A.A,’s report
to C.D. because based on the length of time the statement did not qualify as an “excited utterance”
under N,J.R.E, 803(c)(2). However, the trial court admitted the statement under N.JLR.E.
803(c\(27), not as an excited utterance under N.J.R.E. 803(c)(2). Ud. at 36:3-6.) Petitioner fails to
show that the Appellate Division’s finding that trial counsel did object to the admission of this
evidence and was therefore not ineffective was contrary to or any unreasonable application of
clearly established federal law or that the denial was based on an unreasonable determination of the
facts. For these reasons, Petitioner is not entitled to habeas relief on this claim.
2. Failure to Investigate Confidential Information from Witnesses
In ground four, subelaim three, Petitioner argues that trial counse! was ineffective for failing
to investigate whether confidential information from individuals named in ground two of the instant
petition could have been used to impeach the victim. (ECF No. 1-2 at 112-118.) Petitioner admits
that “most of the witnesses alluded to within ground two may have had some privilege to exercise
as counselors, therapists, psychologists, or psychiatrists.” Ud. at 113.) However, Petitioner argues
that following A.A.’s testimony, counsel should have “requested all reports generated by the
persons invoking any claims of privilege . . . [a]dditionally he should have subpoenaed all of them
and requested each provide a verbal summary of what [A.A.] had revealed to them regarding any
alleged attacks by Petitioner if no written reports existed.” (d. at 114.) Petitioner claims the
20
contradictions in A,A.’s testimony and prior reports should have alerted counsel to the need for this
confidential information. (/d. at 114.)
This claim for habeas relief, reiterates the arguments already made in ground two above.
Although Petitioner now argues that trial counsel should have further investigated potential
confidential information, in ground two Petitioner argued that counsel should have further
investigated these potential witnesses and what testimony they could potentially offer. As noted
above, Petitioner withdrew his claims related to majority of the witnesses originally named in
ground two, (See ECF No. 27.) As ground four essentially repeats the arguments raised in ground
two, the Court finds those claims withdrawn as to ground four also. Additionally, Petitioner again
makes conclusory arguments regarding any potential witness. Petitioner argues that trial counsel
should have asked the Court to determine if “any such disclosures normally held to be confidential
were at odds with [A.A.’s] version.” Petitioner also makes the conclusory accusation that had
counsel investigated witnesses “it would have been clear that [A.A.’s] statements to them... and
the disclosures to law enforcement and medical personnel and the fresh complaint witness were all
contradictory,” (/d. at 114.) Petitioner fails to provide any evidence to support these arguments. His
bald assertions do not provide a basis for habeas relief. See Palmer v. Hendricks, 592 ¥.3d 386, 395
(3d Cir, 2010) (“bald assertions and conclusory allegations” cannot establish an ineffective
assistance of counsel claim); Zeftlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir.1991) (finding
that the defendant could not “meet his burden to show that counsel made errors so serious that his
representation fell below an objective standard of reasonableness based on vague and conclusory
allegations that some unspecified and speculative testimony might have established his defense.”)
As explained at length in ground two, the Appellate Division noted that the State’s proofs
against Petitioner wete overwhelming and found that Petitioner failed to show the prejudice
21
necessary to prove trial counsel was ineffective for failing to do any further investigation into
potential witnesses. Accordingly, the state courts’ rejection of Petitioner’s failure-to-investigate
claim was not contrary to or an unreasonable application of Strickland and its progeny, nor was it
based on an unreasonable determination of the facts in light of the evidence. Habeas relief on this
claim will be denied.
3. Failure to Clarify the Elements for Possession of a Destructive Device
in ground four, subclaim four, Petitioner claims that the requirements for a conviction for
possession of a destructive device were not complied with because trial counsel “failed to
investigate ... the proofs required to convict as to this offense.” (ECF No. 1-2 at 119.) Petitioner
argues that N.J.S.A. 27:2-3 defines “dangerous fireworks” as “fireworks in excess of five inches in
length” and the device found in his residence was noted to be only five inches in length. (d.)
Petitioner raised this claim in a conclusory fashion in his ninety-claim pro se supplemental
brief on collateral appeal. (ECF No. 22-10 at 3.) The PCR court dismissed the claims in Petitioner’s
pro se supplemental brief finding that the claims were all either “meritless or statutorily barred.”
(ECF No. 22-13 at 14.) The PCR court found that there was no factual evidence to suggest that
Petitioner had a reasonable probability that the proceeding result would have been different but for
counsel’s errors. (/d. at 15.)
Petitioner’s claim is meritless. The State charged Petitioner with third-degree possession of
a prohibited destructive device, contrary to NJ.S.A. § 2C:39-3a, which makes it a crime to
knowingly possess any destructive device. In pertinent part, “destructive device” is defined as “any
device, instrument or object designed to explode or produce uncontrolled combustion, including . .
any explosive...” N.I.S.A. 2C:39-1(c), Petitioner was not charged with illegal possession of a
firework, a disorderly persons offense under N.J.S.A. 21:3-8, which would have pertained to the
22
definition of “dangerous firework” found in N.J.S.A. 27:2-3 that Petitioner presents here. As
Petitioner was not charged with the possession of fireworks, trial counsel cannot be found
ineffective for failing to argue that the proofs of Petitioner’s case did not meet the definition of
fireworks. Trial counsel cannot be found ineffective for failing to raise a meritless claim. See Werts
v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000). Thus, Petitioner is not entitled to habeas relief as to
this claim.
4, Failure to Investigate Inconsistent Statements for Impeachment
Ground four, subclaim five, reiterates the arguments made by Petitioner in the above
discussed ground two and ground four, subclaim three. (See ECF No. 1-2 at 119-120.) Petitioner
argues again that trial counsel was ineffective for failing to adequately conduct investigations into
inconsistencies in A.A.’s statements and “possible exculpatory witnesses.” (/d. at 119.) This claim
is denied for the reasons explained by the Court in ground two and ground four, subclaim three.
5. Failure to Object to Hearsay
In ground four, subclaim six, Petitioner argues that trial counsel was ineffective for failing
to object to hearsay presented by State witness Alexander Perry regarding the destructive device.
(ECF No. 1-2 at 121,) Alexander Perry testified at Petitioner’s trial that he was the detective who
dismantled the destructive device at Petitioner’s residence and sent the components to the lab for
testing. (ECF No, 22-35 at 49:7-20, 53:20-23.) Detective Perry then testified that the lab results
indicated the powder from the device was “36 grams of explosive mixture, containing black
powder.” Ud. at 54:2-7.) George Chin authored the lab report indicating that the destructive device
contained “black powder, a low explosive.” (ECF No. 22-25.) Chin did not testify at Petitioner’s
trial. Petitioner argues that trial counsel was ineffective for failing to object to Detective Perry’s
23
hearsay testimony regarding George Chin’s laboratory findings that the device contained explosive
powder,
Petitioner raised this claim on collateral appeal and the state court denied the claim
reasoning as follows:
In pertinent part, Petitioner argues that defense counsel failed to
object to hearsay testimony regarding the lab results of the alleged
explosive device. The fact that hearsay testimony was admitted at
trial was raised on appeal, but since defense counsel failed to object
to the results, the court rejected the issue on appeal.
The Petitioner correctly notes that the Appellate Court agreed that
he had the right to confront the witness. Because the Petitioner has
a right to confront the witness, he argues defense counsel should
have objected. When counsel fails to object, review on appeal is for
plain error and reversal is appropriate only if the error is “clearly
capable of producing an unjust result.” R. 2:10-2; State v. Rose, 206
N.J. 141, 157 (2011). By rejecting the Petitioner’s claim, the
Appellate Court did not find the admission of hearsay evidence as
clearly capable of producing an unjust result.
Under the aforementioned Strickland test, Petitioner must show
counsel’s performance was deficient and that there would be a
reasonable probability that, but for counsel’s unprofessional errors
the result of the proceeding would have been different. In the
Defense’s reply brief, Defense argues “[t]he record combined with
the Appellate Division’s decision demonstrate that had trial counsel
actually objected to the detective’s testimony, the objection would
have been sustained at the very least on appeal.” (Reply Brief, 2).
However, Petitioner has failed to establish a prima facie case of
ineffective assistance of counsel.
There is a strong presumption that counsel has rendered adequate
assistance and made significant decisions of reasonable professional
judgment. Failing to object does not automatically render counsel’s
performance deficient, The Petitioner must allege specific facts or
omissions to succeed on the first prong. The Petitioner alleges that
by allowing the evidence in, the State was allowed to establish one
of the elements without the proper investigation or confrontation.
Further, the Defense alleges “a timely objection by trial counsel
would have led to a reasonable probability of success on that charge
at the time of trial.” (Reply Brief, 3). The Petitioner must do more
than make bald assertions. The errors made my counsel must be so
24
serious that counsel was not functioning as the counsel guaranteed
the defendant by the Sixth Amendment. As such, Petitioner has
failed to show specific facts, and succeed on the first prong.
However, assuming arguendo the Petitioner establishes the first
prong, he cannot show that the proceeding would have been
different as the Appellate Court already found that the admission of
hearsay evidence did not produce an unjust result, According to the
second prong, the stated deficiency must have impacted the outcome
of the proceeding and must be “so serious as to deprive the
defendant of a fair trial.” Washington, 466 U.S. at 690. The
Appellate Court already ruled that it did not.
(ECF No, 22-13 at 8-9.)
The state court’s decision was not an unreasonable application of clearly established federal
law. Petitioner argues that counsel’s deficient performance violated his rights under the
Confrontation Clause of the Sixth Amendment, which is applicable to the States through the
Fourteenth Amendment. Tennessee y, Lane, 541 U.S. 509, 523 (2004), The Confrontation Clause
guarantees a criminal defendant the right to confront “the witnesses against him.” U.S. Const,
amend, VI, The Confrontation Clause bars the “admission of testimonial statements of a witness
who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.” Crawford v. Washington, 541 ULS. 36, 53-54 (2004). The
Confrontation Clause often arises “when a witness refers to specific information from a non-
testifying third party.” Turner v. Warden, No. 18-17384, 2022 WL 951309, at *8 (D.N.J. Mar. 30,
2022). The right to confrontation, however, may “be waived, including by [a] failure to object to
the offending evidence.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 314 0.3 (2009).
Assuming arguendo that trial counsel’s performance was deficient in failing to object the
Detective Perry’s hearsay testimony about George Chin’s report finding that the powder from the
device was an explosive powder, containing black powder, the Court finds Petitioner fails to
demonstrate Stickland prejudice. Petitioner fails to show if trial counsel had objected and Petitioner
25
was provided with the opportunity to cross-examine George Chin, how that cross-examination
would have persuaded the jury to arrive at a different conclusion. The state court reasonably applied
Strickland in concluding that Petitioner failed to show how any deficiency by trial counsel impacted
the outcome of his case. Accordingly, Petitioner is not entitled to habeas relief on ground four,
subclaim six.
D. Ground Five: Failure to Hold an Evidentiary Hearing
Petitioner’s fifth ground for habeas relief, alleges that PCR court violated his due process
rights in failing to hold an evidentiary hearing. (ECF No. 1-2 at 122-130.) Petitioner also argues
that this Court must hold an evidentiary hearing. (See id.)
First, infirmities in a state PCR proceeding do not raise constitutional questions in a federal
habeas action. Habeas petitioners are not entitled to relief based upon any alleged deficiencies in
state PCR proceedings because purported errors in state post-conviction relief proceedings are
collateral to the conviction and sentence and do not give rise to a claim for federal habeas relief.
Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir, 1998), cert. denied, 526 U.S. 1065 (1999) (“The
federal role in reviewing an application for habeas corpus is limited to evaluating what occurred in
the state or federal proceedings that actually led to the petitioner’s conviction; what occurred in the
petitioner’s collateral proceeding does not enter into the habeas calculation . .. . Federal habeas
power is limited . . . to a determination of whether there has been an improper detention by virtue
of the state court judgment”; what occurs in state collateral review proceedings “does not enter into
the habeas calculation”).
Thus, the PCR evidentiary hearing claim does not raise a claim that is cognizable in a federal
habeas proceeding. Even if errors in Petitioner’s state PCR proceedings are presumed to have been
present, they are irrelevant to the instant habeas matter because they were collateral to Petitioner’s
26
conviction and sentence and thus cannot give rise to a claim for federal habeas relief. See Hassine,
160 F.3d at 954. See also 28 U.S.C. § 2254q).
Second, “fijn deciding whether to grant an evidentiary hearing, a federal court must consider
whether such a hearing could enable an applicant to prove the petition’s factual allegations, which,
if true, would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550 U.S. 465,
474 (2007) (internal citation omitted). “A district court is required to hold an evidentiary hearing
only when the petitioner presents a prima facie showing that ‘a new hearing would have the
potential to advance the petitioner’s claim.’” Porter v. Adm’r of New Jersey State Prison, No, 20-
2048, 2021 WL 2910944, at *4 (3d Cir. July 12, 2021) (quoting Sieh/ v. Grace, 561 F.3d 189, 197
(3d Cir. 2009)). To evaluate whether this standard has been met, this Court must first determine
whether the Appellate Division, as the last state court to reach the issue on its merits, issued a
decision that was contrary to federal law, an unreasonable application of federal law, or was based
on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). In the absence of such a
finding, the inquiry ends, and Petitioner has not satisfied the § 2254(d) standard. If the Court finds
the state court decision was contrary to or an unreasonable application of federal law or was based
on an unreasonable determination of the facts, it must then determine whether a hearing could allow
Petitioner to prove his allegations.
Upon review of the parties’ papers and other relevant materials, the Court finds that the state
court reasonably applied Sirickland to Petitioner’s claims. Accordingly, the Court will deny habeas
relief without an evidentiary hearing.
IV. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), a petitioner may not appeal from a final order in a habeas
proceeding where that petitioner’s detention arises out of his state court conviction unless he has
a7
“made a substantial showing of the denial of a constitutional right.” “[A petitioner] satisfies this
standard by demonstrating that jurists of reason could disagree with the district court’s resolution
of his constitutional claims or that jurists could conclude [that] the issues presented here are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S, 322, 327
(2003). Because Petitioner’s habeas claims are without merit for the reasons set forth above, he
has failed to make a substantial showing of the denial of a constitutional right, and his petition is
not adequate to receive encouragement to proceed further. Therefore, this Court denies Petitioner
a certificate of appealability.
V. CONCLUSION
In conclusion, Petitioner’s habeas petition (ECF No. 1) is DINEED, and Petitioner is
DENIED a certificate of appealability. Petitioner’s request for an evidentiary hearing is DENIED.
An Order consistent with this opinion shall be entered.
Dated: (Pavers good
fon. Karen M. Williams,
United States District Judge
28