CARSON v. NEW JERSEY STATE PRISON

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

:

RANDOLPH CARSON, :

: Civil Action No. 17-6537(RMB)

Petitioner :

:

v. : OPINION

:

NEW JERSEY STATE PRISON, :

et al., :

:

Respondents :

:

BUMB, District Judge

This matter comes before the Court upon the Petition for a

Writ of Habeas Corpus under 28 U.S.C. § 2254 (Pet., ECF No. 1)

filed by Petitioner Randolph Carson (“Petitioner”), an inmate

confined in New Jersey State Prison in Trenton, New Jersey.

Respondents filed an answer opposing habeas relief. (Answer, ECF

No. 10). Pursuant to Federal Rule of Civil Procedure 78, the Court

will determine the claims presented in the petition on the written

submissions of the parties.

I. PROCEDURAL HISTORY

In May 2000, Petitioner was indicted on two counts of

aggravated sexual assault, two counts of endangering the welfare

of a child, one count of aggravated sexual contact, and one count

of sexual assault in the Superior Court of New Jersey, Law

Division, Atlantic County. (Indictment, ECF No. 8-2.) Petitioner

was subsequently tried four times before the Honorable Albert J.

Garofolo, J.S.C. and a jury. (App. Div. Op., ECF No. 8-19 at 3.)

Petitioner’s first trial ended in a hung jury. (Id.) Petitioner

was convicted following his second trial, but the New Jersey

Appellate Division reversed the conviction after determining the

trial court had improperly excluded evidence relevant to the

defense. (Id.) Petitioner’s subsequent third trial again resulted

in a hung jury. (Id.) Prior to his fourth trial, Petitioner filed

a motion to dismiss the indictment and to bar another retrial based

upon fundamental fairness grounds. (Tr. of Motion to Dismiss, ECF

No. 8-3.) The trial court denied Petitioner’s motion. (Trial Ct.

Order Denying Motion to Dismiss, ECF No. 8-4.) Petitioner appealed

and on June 3, 2009, the Appellate Division affirmed the trial

court’s decision. (App. Div. Op. Affirming Denial of Motion to

Dismiss, ECF No. 8-6.) Following his fourth jury trial in 2009,

Petitioner was convicted of all six counts in the indictment. (App.

Div. Op., ECF No. 8-19 at 3.) Petitioner was sentenced to an

aggregate term of thirty-four years imprisonment. (Judgment of

Conviction, ECF No. 8-15.)

The Appellate Division affirmed Petitioner’s conviction and

sentence on February 14, 2013. (App. Div. Op., ECF No. 8-19.) The

New Jersey Supreme Court denied Petitioner’s request for

certification. (Sup. Ct. Order, ECF No. 8-23.)

In October 2013, Petitioner filed a Verified Petition for

Post-Conviction Relief (“PCR”) in the Superior Court of New Jersey,

Law Division, Atlantic County. (PCR Pet., ECF Nos. 8-24, 8-25.) On

September 19, 2014, oral arguments were held before Judge Garofolo.

(Tr. of PCR, ECF No. 8-14.) In a written decision dated January

16, 2015, the PCR court denied Petitioner’s PCR. (Trial Ct. Op.

Denying PCR, ECF No. 8-28.) On January 12, 2017, the Appellate

Division affirmed the PCR court’s decision. (PCR App. Div. Op.,

ECF No. 8-33.) Petitioner filed a petition for certification in

the New Jersey Supreme Court, which was denied on May 2, 2017.

(Sup. Ct. Order, ECF No. 8-37.) In August 2017, Petitioner filed

the instant habeas petition. (Pet., ECF No. 1.)

II. BACKGROUND

The factual background in this matter was summarized by the

New Jersey Superior Court, Appellate Division upon Petitioner’s

direct appeal. See State v. R.J.C., No. A-0285-10T2, 2013 WL 532318

(N.J. Super. Ct. App. Div. Feb. 14, 2013).

This was the most pertinent evidence presented

at the 2009 trial. The alleged assaults

occurred while defendant's step-children,

W.E. and S.E., were living with defendant and

the children's biological mother, M.D. By the

time of the 2009 trial, W.E. was twenty-two

years old. W.E. testified that when she was

nine, she and her sister moved out of their

grandmother's home, where W.E. had lived all

her life, and began living with M.D. and

defendant. For about a year, W.E. slept in

M.D.'s and defendant's bed, because she was

used to sharing a bed when she lived in the

grandmother's crowded home, and she felt more

comfortable sleeping with someone else. W.E.

also spent a lot of time with defendant,

because her mother worked at night.

W.E. described in considerable detail how

defendant began molesting her, first by

touching her genital area over her clothing,

and later by forcing her to have intercourse

with him. On occasion, he also penetrated her

with a finger and forced her to have oral sex

with him. According to W.E., although she was

in pain and sometimes bleeding, she did not

tell anyone because she was ashamed and

embarrassed. She was also afraid that if

anyone found out, she and her sister would be

taken from their mother's custody and she

would “lose [her] mother.”

The molestation continued for about a year,

until she stopped sleeping with her mother and

defendant. W.E. testified that she did not

tell anyone about the molestation until she

was in sixth grade, when she told her best

friend, L.R. Later, after she overheard her

sister, S.E., telling another friend that

defendant had raped her, W.E. told S.E. that

defendant had victimized her too. Both girls

confronted defendant with what he had done to

them. According to W.E., defendant said “how

sorry he was, and how he would never hurt us

again, and ... you always hurt the ones you

love.”

On another occasion, when the girls told

defendant that they were going to tell their

mother what had happened, defendant became

angry and threatened that if they did so, it

would be reported in the newspapers, and

everyone, including all their friends, would

find out about it. W.E. was intimidated by his

threats. She did not tell the police about the

molestation until she was fourteen years old.

The other sister, S.E., was twenty-five years

old at the time of the 2009 trial. She also

gave graphic testimony about the ways in which

defendant sexually molested her, after she and

W.E. moved in with their mother and defendant.

At the time of the move, in 1996, S.E. was

twelve years old. In 1997, when she was

thirteen and going through puberty, defendant

started grabbing her breasts and making

inappropriate comments about her body. In one

incident, he started taking her clothes off,

purportedly to show her how beautiful her body

was. He also forced her to let him take

pictures of her, naked from the waist down,

claiming that he wanted to document whether

her hymen was still intact. He then forced her

to touch his penis and “masturbate him,” by

threatening to “post [the pictures] in the

barbershop” if she refused. Defendant also

took a video of S.E. with her shirt off and

showed her naked photographs of himself. The

video and the photos were introduced in

evidence.

S.E. described, in detail, several later

incidents in which defendant raped her and

forced her to engage in oral sex. Defendant

threatened her that if she told anyone, they

would “both be in trouble” and she “would have

to move back to [her] grandmother's.” She was

afraid to tell anyone what he had done.

However, at some point, S.E. told a close

friend, V.E., and later, in the fall of 1999,

she told an adult, A.A., who worked at the

high school she attended.

M.D. testified that in 1996, she and defendant

bought a house together so that she could “get

the kids back” from their paternal

grandmother's home. She confirmed that W.E.

used to sleep with her and defendant, and that

defendant cared for the children while she

worked the night shift at a casino. In

December 1999, S.E. told M.D. that defendant

“had been molesting her.” According to M.D.,

she did not learn that W.E. had also been

“involved” until after the police came to the

house to investigate. After defendant was

arrested, he called M.D. repeatedly to say

“[t]hat he was sorry that he hurt me and that

he hurt our family, and that he was sick and

he needed help.”

M.D. also testified that after his arrest,

defendant asked her to look in the house for

a metal box that he told her contained savings

bonds. In the summer of 2001, she found a

locked box in the garage. Her son broke the

lock, in her presence, and in the box they

found “[s]exually explicit” photographs. She

gave the photos to the police.

On cross-examination, M.D. admitted that she

did not immediately go to the police when S.E.

told her that defendant was molesting her.

Instead, she tried to contact A.A. at the high

school. M.D. testified that she “didn't know

what to do.” Meanwhile, she continued to let

defendant stay home alone with the children.

She testified that at one point she briefly

considered leaving defendant, and packed her

bags. However, he took her car keys to prevent

her from leaving, and she abandoned that plan.

M.D. also testified on cross-examination that

she never had any genital warts.

The State presented testimony from Dr. Deborah

Lowen, an expert in child abuse pediatrics.

Dr. Lowen examined both S.E. and W.E. in March

2000, “[t]o evaluate and treat any possible

problems as a result of possible sexual

abuse.” Dr. Lowen testified briefly that when

she took S.E.'s medical history, the history

included “allegations ... of sexual

penetration.” In examining S.E., Dr. Lowen

found a partial tear to the hymen, which had

healed, evidencing “penetrating vaginal

trauma.” However, the doctor could not

determine “who caused it or when it occurred,”

because S.E. told her that she “had had

consensual sexual intercourse in addition to

abusive sexual intercourse.”

Dr. Lowen also found a genital wart near

S.E.'s hymen. She explained that genital warts

are caused by various types of human papilloma

virus (HPV), and the virus is commonly

transmitted through sexual contact. She

testified that condoms do not always prevent

transmission, and a person infected with the

virus would not always have “visible warts.”

She explained that warts can also “come and

go” over time. Therefore, if a woman has a

visible genital wart, “but her male sexual

partner does not have a visible wart,” that

would not exclude him as the source of the

woman's infection. Nor would the absence of

visible genital warts in the man's other

sexual partners exclude him as the source. Dr.

Lowen explained that “people with visible

warts are basically the tip of the iceberg

[among] all the people who have HPV.”

Dr. Lowen also examined W.E. and found that

she had a healed tear of the hymen. However,

she could not opine as to who caused that tear

or when it occurred. On cross-examination, Dr.

Lowen agreed that she could not tell from the

physical examination whether either S.E. or

W.E. had been sexually abused, but she

explained that “the exam is not for the

purpose of proving whether a child has been

sexually abused.” She also agreed that HPV was

highly contagious, but insisted that the

absence of a wart did not mean that a person

was “negative for HPV.”

At defense counsel's request, immediately

after Dr. Lowen's testimony, the trial judge

gave the jury a lengthy limiting instruction.

Among other things, he told the jurors that

they could only consider Dr. Lowen's testimony

concerning “what she saw physically when she

examined” the girls and “the possible

inferences that could be drawn from what she

saw physically.” He strongly cautioned them

that “[a]ny opinion she may have ... that the

children were in fact sexually abused must be

disregarded by you.” There was no objection to

the wording of the limiting instruction.

The State also presented brief fresh complaint

testimony from the victims' friends, L.R. and

V.E. In the final jury charge, the judge gave

a very extensive instruction concerning the

limited purpose for which the jury could

consider that testimony.

The defense presented testimony from two of

defendant's long-time friends, concerning his

good reputation in the community. The defense

also presented testimony from Dr. John

Scalera, a urologist, who examined defendant

on May 12, 2000 to determine “if he had any

genital warts or genital diseases.” He found

no genital warts. On cross-examination, Dr.

Scalera agreed that the fact that defendant

did not have genital warts on the day he

examined him did not mean that “defendant

never had any warts.” He also agreed that a

physical examination would not reveal whether

defendant “ever had any genital warts.”

The defense next presented testimony from

Jacqueline Kiernan, an employee of the

Division of Youth and Family Services

(Division). Kiernan conducted an

investigation in 2000, after A.A. reported

S.E.'s allegations to the Division. Kiernan

met with S.E., who told her that her step-

father had sexually abused her, starting three

years previously and ending two years before

the interview. However, S.E. also told Kiernan

that, the weekend before the interview,

defendant called her into his bedroom; on

entering, she saw defendant with his penis

exposed, watching pornography on the internet.

S.E. recounted that she “told [defendant] to

put it back in his pants and left the room.”

S.E. also told Kiernan that defendant stopped

molesting her after she “mouthed off at him,”

and that she and her sister were “just

stick[ing] together” in opposing defendant's

efforts to molest them. S.E. informed Kiernan

that after she spoke to A.A., she also told

her mother that defendant molested her, but

did not tell her mother what had happened to

W.E. After speaking with S.E., Kiernan

interviewed W.E. and arranged for Dr. Lowen to

examine both girls.

In an effort to show that S.E.'s and W.E.'s

trial testimony was different or more

extensive than their original statements to

the police, the defense read to the jury the

testimony of Detective Oglesby, who

interviewed the girls in 2000. He confirmed

that during their interviews, neither S.E. nor

W.E. mentioned that defendant forced them to

have oral sex with him, although they revealed

many other sexual activities that he forced

upon them.

The defense also called A.A. as a witness.

While he was a social work student in college,

he participated as a counselor in a

recreational program at S.E.'s school. When

S.E. applied to participate in the program,

she indicated, in response to a question on

the application form, that she had been

physically and sexually abused. A.A. testified

that he followed up on that application by

interviewing her on October 14, 1999. At that

time, S.E. told him that her grandmother's

boyfriend had sexually abused her. At the next

meeting, she told him that her brother had

argued with her about “some rumors” going

around about her. She mentioned that her

mother “was trying to move out because her

stepdad had a bad temper,” but later indicated

that the situation “did get better.”

A.A. testified that after five meetings, S.E.

finally told him on, November 16, 1999, that

her step-father had sexually abused her when

she was twelve years old. She told A.A. that

the abuse occurred “after [defendant] gained

her trust about the previous incident with

sexual abuse by her grandmother's paramour.”

A.A. discussed these disclosures with a

supervisor and urged S.E. to tell her mother

about the situation. On cross-examination,

A.A. testified that S.E. disclosed to him that

her step-father had sexual intercourse with

her, as well as oral sex. She told him the

molestation had been going on since she was

twelve years old. She also revealed that the

step-father had molested her sister. A.A.

confirmed that he called the Division to

report the allegations. When the Division

contacted S.E. to interview her, she told A.A.

that she was embarrassed and afraid that her

fellow students would find out what happened

to her.

In his trial testimony, defendant denied that

he ever molested or inappropriately touched

S.E. or W.E. He admitted taking the video of

S.E., but insisted that it was only one of

many videos he took of the children in order

to keep M.D. aware of what was happening with

the children while she was at work. He also

authenticated a video that he made of S.E.,

consisting of his interviewing her about her

prior experience being molested at her

grandmother's house. During that video,

defendant told S.E. that if anything bad

happened to her she should tell her mother

about it.

Defendant confirmed that when the children

first moved in with him and M.D., W.E.

sometimes slept in their bed with them, and

would sometimes remain in bed with him after

M.D. left for work. However, he denied having

any sexual activity of any kind with W.E. He

also denied telling the girls not to tell

anyone if something bad happened to them. He

insisted, to the contrary, that he

“encouraged” them to tell someone if bad

things happened to them. Defendant denied that

he ever had venereal warts and stated that he

had no knowledge of M.D. ever having them.

According to defendant, even after M.D. was

aware of the allegations that he molested the

girls, she continued to have sexual relations

with him. He later told M.D. that he thought

it was “disgusting” that she heard about those

allegations “and she continued having a sexual

relationship with me.” Defendant testified

that he was the main disciplinarian in the

household, and he was quite strict. The girls

resented this and sometimes said they hated

him.

Defendant denied ever exposing himself to the

girls or taking nude pictures of them. He

admitted taking nude pictures of a former

paramour, but insisted that he kept those

pictures locked in a box and never showed them

to S.E. He denied ever asking M.D. to retrieve

the box. He admitted briefly touching S.E.'s

breast once, at her request, because she told

him there was a lump in her breast. The lump

turned out to be a cyst, which she had removed.

According to defendant, at some point, his

relationship with M.D. started to deteriorate.

He told M.D. that he was thinking of breaking

up with her, and took steps to put the house

on the market. This brief testimony was

designed to support the defense theory that

the girls made up the sexual abuse

allegations, with M.D.'s encouragement, in

order to retain possession of the house and

force defendant to move out.

On cross-examination, defendant was

questioned extensively about the video he made

of his “interview” with S.E., around the time

that the girls were moving into his house. In

the video, he elicited from the child her

disclosure that while at her grandmother's

house, a man tried to put his tongue in her

mouth and was improperly touching her. In

response to the prosecutor's questions, he

admitted that instead of immediately stopping

the videotaping and calling M.D., he went on

with the interview; however, he stated that he

later told M.D. and suggested that she watch

the video.

He also admitted that after eliciting S.E.'s

disclosure about the prior molestation, he

told her in great detail about all the

sacrifices he and M.D. were making to buy the

house and what a financial burden it was, in

order to make sure that S.E. appreciated what

he and M.D. had done for her. At one point in

the video, he joked with S.E. that she and her

sister might have to go back and live with

their grandmother, although he knew she hated

living there. Defendant also admitted taking

a video of S.E. in which she was undressing,

but he asserted that he did not realize that

she was going to take her dress off during the

video. He admitted that the pictures in the

locked box included him as well as his former

paramour and were “pornographic.” But he

denied ever showing them to S.E.

Id. at *1-6.

III. DISCUSSION

A. Standard of Review

28 U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

with respect to any claim that was adjudicated

on the merits in State court proceedings1

unless the adjudication of the claim--

(1) resulted in a decision that was contrary

to, or involved an unreasonable application

of, clearly established Federal law, as

1 “[A] claim has been adjudicated on the merits in State court

proceedings when a state court has made a decision that finally

resolves the claim based on its substance, not on a procedural, or

other, ground.” Lewis v. Horn, 581 F.3d 92, 100 (3d Cir. 2009)

(quoting Thomas v. Horn, 570 F.3d 105, 117 (3d Cir. 2009)).

“Section 2254(d) applies even where there has been a summary

denial.” Pinholster, 563 U.S. at 187. “In these circumstances,

[petitioner] can satisfy the ‘unreasonable application’ prong of

§ 2254(d)(1) only by showing that ‘there was no reasonable basis’

for the [state court’s] decision.” Id. (quoting Harrington v.

Richter, 562 U.S. 86, 98 (2011); see also Johnson v. Williams, 568

U.S. 289, 301 (2013) (“When a state court rejects a federal claim

without expressly addressing that claim, a federal habeas court

must presume that the federal claim was adjudicated on the merits

– but that presumption can in some limited circumstances be

rebutted.”).

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.

“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 v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013)

(citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). The

phrase “clearly established Federal law” “refers to the holdings,

as opposed to the dicta” of the U.S. Supreme Court’s decisions.

Williams, 529 U.S. at 412. 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 v. Lett, 130 S.Ct. 1855, 1862 (2010)).

B. Analysis

1. Ineffective Assistance of Counsel

In Petitioner’s first ground for relief, he raises several

ineffective assistance of counsel claims against his trial

counsel. (Pet., ECF No. 1 at 6.) Specifically, Petitioner states

the following:

1. Trial counsel failed to protect my due

process rights not objecting to the reading of

prior testimony of Det. Charles Oglesby to the

jury without him present – without my agreeing

to it.

2. Counsel failed to investigate, refused to

send investigator to speak with valued witness

– says 8 yrs ago witness was hostile.

3. Counsel failed to protect my right Double

Jeopardy (4 trials, Double Jeopardy attached

somewhere).

4. Counsel failed to call witnesses and being

diligent in interviewing them for trial.

5. Counsel did not put forth a strategy for

trial or proper presentation, states to judge

that she has no strategy.

6. Counsel failed to object to nude photos

being admitted when during a prior hearing was

inadmissible. Counsel condoned perjured

testimony.

(Id.)

The Sixth Amendment right to counsel is the right to the

effective assistance of counsel. See Strickland v. Washington, 466

U.S. 668, 687–88 (1984). There are two elements to a Sixth

Amendment ineffective assistance of counsel claim, deficient

performance by counsel and prejudice. See Premo v. Moore, 562 U.S.

115, 121 (2011). For the deficient performance prong, “a person

challenging a conviction must show that counsel’s representation

fell below an objective standard of reasonableness.” Id. at 121

(internal quotations omitted) (quoting Harrington v. Richter, 562

U.S. 86, 104 (2011)). A petitioner must overcome a “‘strong

presumption’ that counsel’s representation was within the ‘wide

range’ of reasonable professional assistance.” Id. (quoting

Harrington, 562 U.S. at 104). The burden a petitioner must meet is

“that counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Id. at 121–22. (quoting Harrington, 562 U.S. at 104).

Habeas review of counsel’s performance is doubly deferential, and

the question is not whether counsel’s actions were reasonable but

whether there is any reasonable argument that counsel satisfied

Strickland’s deferential standard. See id. at 122–23.

To prove Strickland prejudice, a petitioner must establish

that “counsel’s errors were so serious as to deprive the defendant

of a fair trial.” Strickland, 466 U.S. at 669. To establish

prejudice, a petitioner must show that “there is a reasonable

probability that the result of trial would have been different

absent the deficient act or omission.” Hinton v. Alabama, 571 U.S.

236, 264 (2014). On habeas review, it is not enough that a federal

judge would have found counsel ineffective. See Harrington, 562

U.S. at 101. The judge must find that the state court’s resolution

of the issue was unreasonable. See id.

a. Failure to Object to the Reading of

Detective Oglesby’s Testimony

Petitioner first alleges that his trial counsel was

ineffective for not objecting to the reading of Detective Oglesby’s

prior testimony into the record. (Pet., ECF No. 1 at 6.) Petitioner

states that trial counsel failed to protect his due process rights

by having the testimony read in lieu of Detective Oglesby’s live

testimony. (Id.) Respondents contend that Petitioner’s claim is a

“non sequitur, as not only was Det. Oglesby a defense witness, but

it was defense counsel who proposed reading his testimony.”

(Answer, ECF No. 8 at 13.)

When Petitioner raised this claim during his PCR proceedings2,

the PCR court held, in pertinent part:

Defendant’s claim that counsel was

constitutionally incompetent for failing to

discredit the testimony of his own witness is

meritless.

There is no half-cogent reason as to why

[Petitioner’s trial attorney] should have

attempted to impeach or otherwise dispute the

credibility of a witness whose testimony—if

viewed as true—helps to exonerate Defendant.

At best, her decision was a prudent strategic

decision to keep Defendant out of jail. The

reasoning behind Defendant’s argument is

difficult to ascertain, much less comprehend.

Additionally, even if [Petitioner’s

attorney’s] failure to impeach Detective

Oglesby constitutes incompetence, there is

2 This Court notes that the claim Petitioner raised on PCR was

framed differently than the claim he raised in the instant habeas

petition. Before the PCR court, Petitioner argued that trial

counsel was ineffective for reading Detective Oglesby’s testimony

to the jury, and that trial counsel was ineffective for not

informing the jury that Detective Oglesby was currently facing

criminal charges. (Answer, ECF No. 8, Ex. Ra24, ECF No. 8-25 at

10-13.) In his § 2254 action, Petitioner argues his trial counsel

was ineffective for not objecting to the reading of Detective

Oglesby’s prior testimony. (Pet., ECF No. 1 at 6.)

absolutely no evidence that such a failure

would have made any different in the outcome

of the case. Indeed, had Defendant gotten his

way and discredited Detective Oglesby’s

testimony, he would have likely made it that

much easier for the jury to return a guilty

verdict.

(Answer, ECF No. 8, Ex. Ra27, ECF No. 8-28 at 2-3 (emphasis in

original).)

On appeal, the Appellate Division affirmed the decision of

the PCR court, stating that Petitioner had presented no more than

“bald assertions.” See State v. R.J.C., No. A-3619-14T4, 2017 WL

117297, at *1 (N.J. Super. Ct. App. Div. Jan. 12, 2017).

Detective Oglesby had been a defense witness and testified on

behalf of Petitioner during Petitioner’s first three trials. See

R.J.C., 2013 WL 532318, at *5. Detective Oglesby’s testimony was

presented by the defense to undermine the credibility of the

victims by identifying inconsistencies in their initial statements

to police and their testimony at trial. See id. At Petitioner’s

fourth trial, defense counsel was unable to locate the detective.

(Trial Tr. dated 9/16/09, ECF No. 8-10 at 3.) Given Detective

Oglesby’s absence, defense counsel requested that his prior trial

testimony be read into the record. (Id.) The State agreed to

stipulate to the reading of Detective Oglesby’s testimony. (Id.)

Here, Petitioner cannot demonstrate that his trial counsel

was ineffective for having the testimony of Detective Oglesby read

at trial because he cannot demonstrate that he was prejudiced by

the admission. Despite trial counsel’s good faith attempts to find

Detective Oglesby, she was unable to locate him, and he was not

present to testify at trial. If defense counsel had not requested

that Detective Oglesby’s testimony be read into the record, the

jury would not have heard his testimony that undermined the

credibility of the victims and was favorable to Petitioner’s

defense. Moreover, Petitioner has not demonstrated what, if

anything, the jury would have gained from listening to Detective

Oglesby’s testimony live rather than hearing it read. See R.R. v.

Beard, Civ. No. 09-1102, 2015 WL 5730784, at *4 (W.D. Pa. Sept.

30, 2015) (denying petitioner’s argument that he was prejudiced by

his witness’ testimony being read into the record in lieu of his

live testimony because there was not a reasonable probability that

the outcome of the trial would have been different if the witness

had testified live.) Accordingly, Petitioner is not entitled to

relief on this claim.

b. Trial Counsel’s Failure to Investigate and

Call Witnesses for Trial

Petitioner next argues his trial counsel was ineffective for

failing to investigate several witnesses. (Pet., ECF No. 1 at 6.)

Petitioner states that counsel failed to call witnesses and refused

to send an investigator to speak with these valued witnesses. (Id.)

Respondents argue that Petitioner’s claim is without merit because

he fails to name any individuals who defense counsel should have

investigated and he fails to proffer what these witnesses, if

questioned, would have testified about. (Answer, ECF No. 8 at 13-

14.) To the extent Petitioner intends to identify the same

witnesses he discussed in his pro se PCR brief, Respondents assert

that Petitioner has still not proffered what the witnesses would

have testified about. (Id.)

When Petitioner first raised this claim during his PCR

proceedings, he named several witnesses he alleged had been

“willing and able to testify” on his behalf at trial. (Petitioner’s

pro se PCR Br., ECF No. 8-25 at 47.) Except for one witness,

Petitioner did not provide what these individuals would have

testified about. (Id.) Petitioner’s failure to provide sworn

testimony from these witnesses about what information they would

have provided to trial counsel if they had been interviewed

rendered Petitioner unable to demonstrate a claim of ineffective

assistance of counsel on PCR. (Trial Ct. Op. Denying PCR, ECF No.

8-28 at 3.) The Appellate Division affirmed the PCR court’s

decision stating that Petitioner had failed to make out a prima

facie case of ineffective assistance of counsel and that, “[i]n

particular, defendant did not present affidavits from any of the

witnesses attesting to the facts purportedly within their

knowledge. In fact, with the exception of one individual,

defendant did not even describe what information the witnesses

allegedly knew that would be helpful to the defense.” (PCR App.

Div. Op., ECF No. 8-33 at 3.)

A counsel’s failure to investigate potential witnesses may

form the basis of an ineffective assistance of counsel claim if a

petitioner can demonstrate prejudice. See Strickland, 466 U.S. at

690-91; see also Brown v. United States, No. 13-2552, 2016 WL

1732377, at *4-5 (D.N.J. May 2, 2016). To successfully establish

this claim, a petitioner “must make a comprehensive showing as to

what the investigation would have produced. The focus of the

inquiry must be on what information would have been obtained … and

whether such information, assuming admissibility in court, would

have produced a different result.” Id. (quoting United States v.

Askew, 88 F.3d 1065, 1073 (D.C. Cir. 1996) (internal quotation

marks omitted). A petitioner may not merely speculate as to what

a witness may have said. See Duncan v. Morton, 256 F.3d 189, 202

(3d Cir. 2001) (citing United States v. Gray, 878 F.2d 702, 712

(3d Cir. 1989)). Rather, a petitioner must present sworn testimony

of that witness in order to establish that he suffered prejudice

as a result of trial counsel’s alleged failure to investigate that

witness. See id.

Here, Petitioner has not provided any information, let alone

sworn testimony, regarding what the witnesses would have testified

about. Petitioner provides only mere speculation that certain

individuals would have allegedly testified on his behalf. Absent

what testimony these witnesses would have provided and how that

testimony would have affected the outcome of his trial, Petitioner

is unable to present a prima facie claim that his counsel was

ineffective for not interviewing these witnesses. Accordingly,

Petitioner is not entitled to relief on this claim.

c. Trial Counsel’s Failure to Protect Petitioner

from Double Jeopardy

Petitioner next asserts simply that his trial counsel was

ineffective for failing to protect his right against Double

Jeopardy. (Pet., ECF No. 1 at 6.) Respondents submit that defense

counsel did protect Petitioner’s rights against Double Jeopardy

when she filed a motion to dismiss the indictment and bar a fourth

trial. (Answer, ECF No. 8 at 14.) In that motion, defense counsel

argued that that another retrial would be fundamentally unfair and

would violate Petitioner’s right against Double Jeopardy.

(Petitioner’s Br. in Support of Motion to Dismiss, ECF No. 8-5.)

When the motion was denied by the trial court, defense counsel

appealed to the Appellate Division, which ultimately affirmed the

lower court’s denial. (App. Div. Op. Affirming Denial of Motion to

Dismiss, ECF No. 8-6.)

The Double Jeopardy Clause of the Fifth Amendment provides

that no person shall “be twice put in jeopardy” for the same

offense. U.S. Const. amend. V. “It has long been settled,

however, that the Double Jeopardy Clause’s general prohibition

against successive prosecutions does not prevent the government

from retrying a defendant who succeeds in getting his first

conviction set aside, through direct appeal or collateral attack,

because of some error in the proceedings leading to a conviction.”

Lockhart v. Nelson, 488 U.S. 33, 38 (1988). Similarly, “a retrial

following a ‘hung jury’ does not violate the Double Jeopardy

Clause.” Richardson v. United States, 468 U.S. 314, 324 (1984).

“[W]ithout exception, the courts have held that the trial judge

may discharge a genuinely deadlocked jury and require the defendant

to submit to a second trial.” Id. at 324 (quoting Arizona v.

Washington, 434 U.S. 497, 509 (1978) (alteration in original).

Underpinning these exceptions is the notion that while a defendant

has the right to a fair trial, society also has an interest in

punishing those who are criminally liable. See Lockhart, 488 U.S.

at 38 (“It would be a high price indeed for society to pay were

every accused granted immunity from punishment because of any

defect sufficient to constitute reversible error in the

proceedings leading to conviction.”)

Here, Petitioner’s right against Double Jeopardy was not

implicated despite the fact that he was tried four times. Both

Petitioner’s first and third trials ended in a hung jury, and

retrials following a hung jury do not implicate Double Jeopardy

concerns. See Richardson, 468 U.S. at 324. Petitioner’s second

trial resulted in a conviction which was later reversed on direct

appeal for a trial court error. The Double Jeopardy Clause does

not implicate retrials for a defendant who succeeds in setting

aside his conviction on direct appeal because of an error in the

trial court proceedings. See Lockhart, 488 U.S. at 38. Thus,

Petitioner was never subjected to Double Jeopardy.

Further, Petitioner’s argument that trial counsel failed to

protect his rights against Double Jeopardy is not borne out by the

record since trial counsel did file a motion raising that argument.

Consequently, Petitioner cannot demonstrate that his trial counsel

failed to protect his rights under the Due Process Clause because

his attorney did, indeed, attempt to have Petitioner’s case

dismissed based upon double jeopardy grounds. Petitioner also

cannot demonstrate that the outcome of the proceedings would have

been different because trial counsel had argued that Petitioner’s

right against double jeopardy was being infringed upon because the

trial court and Appellate Division had already denied trial

counsel’s motion. Accordingly, Petitioner is unable to demonstrate

that trial counsel was ineffective. Petitioner is not entitled to

relief on this claim.

d. Trial Counsel’s Strategy

Petitioner next contends that his trial counsel failed to put

forth a strategy for trial and that she stated “to the judge that

she has no strategy.” (Pet., ECF No. 1 at 6.)3 Respondents submit

that Petitioner’s claim is without foundation, as their review of

the trial record did not disclose any mention by defense counsel

that she lacked a trial strategy. (Answer, ECF No. 8 at 14.)

Strickland requires a presumption that counsel acted within

the range of reasonable professional assistance. See Strickland,

466 U.S. at 689. The petitioner bears the burden of demonstrating

that counsel’s actions fell outside that wide range of reasonable

assistance. See id. Moreover, “a convicted defendant making a claim

of ineffective assistance must identify the acts or omissions of

counsel that are alleged not to have been the result of reasonable

professional judgment.” Strickland, 466 U.S. at 690. Thus, a

petitioner attempting to assert an ineffective assistance of

counsel claim must point to specific errors allegedly made by trial

counsel. See United States v. Chronic, 466 U.S. 648, 666 (1984);

see also Stevens v. Del. Corr. Ctr., 295 F.3d 361, 370 (3d Cir.

2002) (“[A] party claiming ineffective assistance must identify

specific errors by counsel, and the court must indulge a strong

presumption that counsel’s conduct was reasonable.”)

3 It appears that this claim is unexhausted as it was not raised

by Petitioner either on direct appeal or during his PCR

proceedings. However, to the extent that a petitioner’s

constitutional claims are unexhausted or procedurally defaulted,

a court can nevertheless deny them on the merits under 28 U.S.C.

§ 2254(b)(2). See Taylor v. Horn, 504 F.3d 416, 427 (3d Cir.

2007); Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir. 2005).

Here, Petitioner has submitted only the bare allegation that

defense counsel failed to put forth any trial strategy. (Pet., ECF

No. 1 at 6.) Although Petitioner alleges defense counsel informed

the court that she “has no strategy,” this allegation is not borne

out by the trial record. Upon this Court’s review of the trial

transcripts from the fourth trial, it does not appear that defense

counsel ever stated that she lacked a trial strategy. (See

generally Trial Tr. dated 9/9/09, ECF No. 8-7; Trial Tr. dated

9/10/09, ECF No. 8-8; Trial Tr. dated 9/14/09, ECF No. 8-9; Trial

Tr. dated 9/15/09, ECF No. 8-10; Trial Tr. dated 9/16/09, ECF No.

8-11.) In fact, the record demonstrates that trial counsel did

have a strategy – to argue that her client had been wrongfully

accused and to undermine the credibility of the victims to

demonstrate that fact. (Answer, ECF No. 8, Ex. Ra6, ECF No. 8-7 at

52-59.) Trial counsel presented this argument during both her

opening and closing statements, she cross-examined the victims

with prior inconsistent statements, and she presented witnesses to

undermine the credibility of the victims and their statements.

(Trial Tr. dated 9/9/09, ECF No. 8-7 at 52-59 & 87-120; Trial Tr.

dated 9/10/09, ECF No. 8-8 at 60-92; Trial Tr. dated 9/15/09, ECF

No. 8-10; Trial Tr. dated 9/16/09, ECF No. 8-11 at 7-18.)

Consequently, Petitioner has not established that defense counsel

lacked a trial strategy. Petitioner has also not alleged how the

outcome of his trial would have been different if defense counsel

had employed a different strategy. Petitioner is unable to overcome

the strong presumption that counsel acted within the range of

reasonable professional assistance. Therefore, he is not entitled

to relief on this claim.

e. Failure to Object to Sexually Explicit

Photographs

Petitioner also contends that his trial counsel was

ineffective for failing to object to the admission of sexually

explicit photographs into evidence. (Pet., ECF No.1 at 6.)

Petitioner states that although the photographs were deemed

inadmissible at a pre-trial hearing, defense counsel failed to

object to their introduction during his fourth trial. (Id.)

Petitioner further states simply, “counsel condoned perjured

testimony.” (Id.) Respondents state that it is unclear which

photographs Petitioner is referring to, but Respondents presume he

is likely referring to photographs depicting oral sex between a

man and a woman that Petitioner was alleged to have shown to one

of the victims, S.E. (Answer, ECF No. 8 at 15.) Respondents admit

that prior to the first trial, the court did rule certain sexually

explicit photographs were inadmissible because the victim had been

unable to identify that those were the photographs Petitioner had

shown to her. (Id.) Given this ruling, those pictures were never

presented at any of Petitioner’s trials. (Id.) However, other

sexually explicit photographs, which were discovered after the

trial court’s ruling and which were identified by the victim as

ones that Petitioner had shown to her, were introduced at

Petitioner’s fourth trial. (Id.) Respondents assert that these

photographs were properly admitted during the fourth trial because

they had not been subject to the trial court’s prior ruling and

there was no basis for trial counsel to object to their admission.

(Id.)

Petitioner raised first this claim during his PCR

proceedings. (Answer, ECF No. 8, Ex. Ra24, ECF No. 8-25 at 48.) In

addressing a different, but related claim4, the PCR court held:

Finally, defendant argues that his attorney

failed to cross-examine one of the minor

victims on her failure to identify a

photograph defendant allegedly showed her of

his own private parts when later, at trial,

she did so. However, the record shows that the

photograph ultimately identified by the victim

had not yet been discovered and was not among

photos shown to her when she failed to make an

identification. Subsequently, a photograph

was recovered which the victim did testify at

trial was the photo shown to her. Thus, there

was no inconsistency in the witness’ testimony

that would have been an appropriate subject of

cross examination.

(Answer, ECF No. 8, Ex. 27, ECF No. 8-28 at 4.)

The Appellate Division affirmed the PCR court’s denial,

stating Petitioner had made no more than “bald assertions”

4 The PCR court did not address on the merits Petitioner’s claim

that counsel failed to object to the sexually explicit photographs.

regarding ineffective assistance of counsel. (Answer, ECF No. 8,

Ex. Ra32, ECF No. 8-33 at 2-3.)

To demonstrate prejudice, a petitioner must show that “but

for counsel’s unprofessional errors,” there is a “reasonable

probability” that the outcome of the proceedings would have been

different. See Strickland, 466 U.S. at 694. “A reasonable

probability is a probability sufficient to undermine confidence in

the outcome.” Id. at 694-95. Here, Petitioner fails to acknowledge

the fact that his trial counsel did object to the introduction of

the sexually explicit photographs when they were first presented

at his second trial. (Petitioner’s Br. in Support of Motion to

Dismiss, ECF No. 8-5 at 21.) Despite defense counsel’s objection

to the photographs, the trial court permitted the State to

introduce them at trial. (Id.) Petitioner’s trial counsel did not

again object to their admission during the subsequent fourth trial.

However, Petitioner cannot demonstrate that his trial counsel was

ineffective for failing to object to the admission of the sexually

explicit photographs, when trial counsel did object to their

admission when they were first presented. Defense counsel was

overruled when she objected and Petitioner cannot demonstrate that

if counsel had objected again at the fourth trial, the trial court

would have reversed its prior ruling. Petitioner is similarly

unable to demonstrate that there is a reasonable probability that

the outcome of the trial would have been different if defense

counsel had objected to the photographs’ admission yet again at

his fourth trial. Accordingly, Petitioner is not entitled to relief

on this claim.

2. Prosecutorial Misconduct

In Ground Two, Petitioner raises several allegations of

prosecutorial misconduct. (Pet., ECF No. 1 at 7.) Specifically,

Petitioner states:

1. The prosecutor withheld evidence that Det.

Oglesby was under indictment and in the very

same courthouse during my trial.

2. The prosecutor contrived with the judge in

secret to violate my right by denying me

admissible evidence (Judge’s order for me to

be examined by their doctor for genital warts

which I did not have).

3. Prosecutor knowingly violated my

confrontational right(s) by reading Det.

Oglesby’s prior testimony to jury as Det.

Oglesby was not unavailable but hidden by the

State and court.

4. Prosecutor knowingly violated my right(s)

by altering the video of S.E. preparing for

her school dance to contrive a conviction.

5. Prosecutor knowingly violated my right(s)

by allowing the alleged victim to use perjured

testimony to help contrive a conviction.

6. Prosecutor knowingly violated my right(s)

by allowing evidence (nude photos) which were

obtained through a criminal act. The mother of

alleg [sic] victim broke into my locked

security box and took private nude photos

along with my funds and other private items.

(Id.)

Under United States Supreme Court precedent, prosecutorial

misconduct is insufficient to overturn a conviction unless it “so

infect[s] the trial with unfairness as to make the resulting

conviction a denial of due process.” Donnelly v. DeChristoforo,

416 U.S. 637, 643 (1974). “It is not enough to show that a

prosecutor’s remarks were inappropriate or even deserving of

universal condemnation.” Reid v. Beard, 420 F. App’x 156, 159 (3d

Cir. 2011) (citing Darden v. Wainwright, 477 U.S. 168, 181 (1986)).

Rather, to determine whether prosecutorial misconduct has resulted

in a denial of due process, reviewing courts must “examine the

prosecutor’s offensive actions in context and in light of the

entire trial, assessing the severity of the conduct, the effect of

the curative instructions, and the quantum of evidence against the

defendant.” Moore v. Morton, 255 F.3d 95, 107 (3d Cir. 2001); see

also Darden, 477 U.S. at 182; see also Donnelly, 416 U.S. at 643.

a. Detective Oglesby

Petitioner submits that the prosecutor engaged in misconduct

when she withheld evidence that Detective Oglesby was “under

indictment and in the very same courthouse during my trial.” (Pet.,

ECF No. 1 at 8.) Petitioner states that it was also misconduct for

the prosecutor to permit Detective Oglesby’s testimony to be read

into the record when Detective Oglesby was being “hidden by the

State and court.” (Id.) Respondents argue that Petitioner offers

no support for his bald assertions and he ignores the fact that it

was his own trial attorney who requested Detective Oglesby’s

testimony be read into the record. (Answer, ECF No. 8 at 16.)

Although neither the PCR court nor the Appellate Division reached

the merits of this issue, the claim was raised by Petitioner during

his PCR proceedings. (Answer, ECF No. 8, Ex. Ra24, ECF No. 8-25 at

49.) The trial court’s denial of Petitioner’s PCR was ultimately

affirmed by the Appellate Division. See R.J.C., 2017 WL 117297, at

*1.

In order to protect a defendant’s due process rights under

the Fifth Amendment, the United States Supreme Court mandates that

prosecutors must disclose all material exculpatory evidence to the

defense. See Brady v. Maryland, 373 U.S. 83 (1963). If the

prosecutor does not turn over “any favorable evidence known to the

others acting on the government’s behalf in the case, including

the police,” a criminal defendant may be entitled to a new trial.

Giglio v. United States, 405 U.S. 150, 154 (1972). Evidence is

deemed “material” if there is a reasonable probability that the

absence of the evidence would “undermine confidence in the outcome

of the trial.” Strickland, 466 U.S. at 694 (quoting Kyles v.

Whitley, 514 U.S. 419, 434 (1995)).

Here, Petitioner has not demonstrated that the prosecutor

engaged in misconduct. Petitioner has failed to demonstrate that

the prosecutor knew Detective Oglesby was “under indictment and in

the very same courthouse.” Moreover, Detective Oglesby was a

defense witness and his testimony was favorable to Petitioner.

Even if the prosecutor knew that Detective Oglesby was under

indictment, this evidence would not have been favorable to

Petitioner’s case. In fact, this evidence would have, at best,

discredited Petitioner’s own witness and the beneficial testimony

Petitioner sought to elicit from him. Petitioner has not shown

that there is a reasonable probability that the absence of the

evidence about Detective Oglesby’s criminal charges, which could

have only weakened Petitioner’s defense, undermines the confidence

in the outcome of the trial. Strickland, 466 U.S. at 694.

Accordingly, Petitioner is not entitled to relief on this claim.

b. Evidence of Warts

Petitioner next states that “[t]he prosecutor contrived with

the judge in secret to violate my right by denying me admissible

evidence (judge’s order for me to be examined by their doctor for

genital warts which I did not have.)” (Pet., ECF No. 1 at 8.)

Respondents contend this argument is both irrelevant and erroneous

because this exclusion of evidence occurred at Petitioner’s second

trial, not at his fourth trial which is the subject of his instant

§ 2254 application. (Answer, ECF No. 8 at 16-17.) Petitioner raised

this claim during his PCR proceedings, but it was not addressed on

its merits by the PCR court or the Appellate Division.

(Petitioner’s pro se PCR Br., ECF No. 8-25 at 49.)

Habeas applications pursuant to 28 U.S.C. § 2254 are the

appropriate remedy for petitioners “in custody pursuant to the

judgment of a State court[.]” Here, however, Petitioner appears to

be challenging a trial court ruling from his second trial which

was later reversed by the Appellate Division. Prior to Petitioner’s

first trial, one of Petitioner’s victims, S.E., was examined by a

doctor who noticed signs of vaginal trauma and the presence of a

venereal wart. (App. Div. Op., ECF No. 8-38 at 4.) Petitioner was

also examined by a doctor, but he did not exhibit any visible

venereal warts. (Id.) Prior to Petitioner’s first trial, the State

sought to introduce the testimony regarding the victim’s vaginal

trauma but requested that any testimony regarding the victim’s

venereal warts be excluded. (Id.) At a pre-trial hearing, the trial

court ruled that any evidence regarding warts, or lack thereof,

was not relevant to the case and was not admissible. (Id. at 4-

6.) This evidence was, therefore, not elicited at his second trial.

(Id. at 1-3.) Following his conviction at his second trial,

Petitioner sought appeal of the trial court’s evidentiary ruling.

(Id.) The Appellate Division reversed the trial court’s decision,

stating that the exclusion of the venereal warts evidence resulted

in a manifest denial of justice. (Id. at 6-7.) Petitioner’s

conviction was reversed and remanded for a new trial. (Id. at 7.)

At Petitioner’s fourth trial, the conviction from which he is

presently appealing, the evidence regarding the presence of the

victim’s venereal wart and Petitioner’s lack of venereal warts was

indeed elicited. (Trial Tr. dated 9/14/09, ECF No. 8-9 at 12.)

Here, Petitioner is challenging an evidentiary error from his

second trial which resulted in a judgment of conviction that was

reversed by the Appellate Division. Since that conviction was

overturned, Petitioner is not currently in custody pursuant to

that judgment. Rather, Petitioner is in custody, and is presently

seeking relief from, the judgment of conviction that was obtained

at his fourth trial. At his fourth trial, Petitioner was permitted

to elicit testimony about venereal warts. Therefore, Petitioner’s

argument is moot. He is not entitled to relief on this claim.

c. Confrontation Clause

Petitioner next contends that the prosecutor violated his

rights under the Confrontation Clause by allowing the testimony of

Detective Oglesby to be read into the record at trial. (Pet., ECF

No. 1 at 8.) Respondents assert that they were not responsible for

Detective Oglesby’s absence from trial and reiterate that it was

Petitioner’s trial attorney who requested Detective Oglesby’s

testimony be read in lieu of his live testimony. (Answer, ECF No.

8 at 16.) This claim was also raised by Petitioner during his PCR

proceedings, but it was not addressed on its merits by either the

PCR court or the Appellate Division.

The United States Supreme Court has held that the

Confrontation Clause bars the admission of “testimonial statements

of witnesses absent from trial,” unless that witness is unavailable

to testify, and “the defendant has had a prior opportunity to

cross-examine [that witness].” Crawford v. Washington, 541 U.S.

36, 59 (2004). When a party seeks to establish the unavailability

of a witness, they must demonstrate that they made a good faith

effort to locate the witness. See Barber v. Page, 390 U.S. 719,

724-25 (1968); see also Zong Lor v. Jenkins, 178 F. App’x 569, 570

(7th Cir. 2006).

Here, Petitioner has not demonstrated that his rights under

the Confrontation Clause were violated. Petitioner’s trial counsel

informed the court of her good faith attempts to locate the

witness, including the use of an investigator and her efforts to

effectuate service on Detective Oglesby. Given Detective Oglesby’s

absence, defense counsel sought to introduce Detective Oglesby’s

testimony from a previous trial where both the State and the

defense had the prior opportunity to cross-examine Detective

Oglesby. These facts demonstrate that admission of Detective

Oglesby’s prior testimony was not a violation of Petitioner’s

rights under the Confrontation Clause. See Crawford, 541 U.S. at

59. Moreover, Petitioner has not demonstrated that the

prosecutor’s permission of Detective Oglesby’s testimony rendered

the trial so unfair as to make the resulting conviction a denial

of due process. See Donnelly, 416 U.S. at 643. Detective Oglesby’s

testimony was favorable to the defense and was employed by the

defense to undermine the credibility of the victims. Accordingly,

Petitioner has not demonstrated that the prosecutor engaged in

misconduct. Petitioner is not entitled to relief on this claim.

d. Admission of Photographs

Petitioner also alleges that the prosecutor erred when she

admitted into evidence sexually explicit photographs that were

“obtained through a criminal act.” (Pet., ECF No. 1 at 8.)

Petitioner adds that his wife, M.D., broke into his locked box and

“took private nude photos along with my funds and other private

items.” (Id.) Respondents contend that Petitioner’s claim is

meritless because he fails to identify a criminal statute M.D.

violated when she obtained the photographs from her own garage.

(Answer, ECF No. 8 at 16.)

M.D. testified at trial that after Petitioner was arrested,

he repeatedly asked her to search for a metal box that he said

contained savings bonds. (Trial Tr. dated 9/10/09, ECF No. 8-8 at

112.) M.D. stated was unable to locate the box because it was not

“in the place where [Petitioner] said it was.” (Id.) Over one year

after Petitioner was arrested, M.D. eventually discovered the box

in her garage. (Id.) Upon opening the box, M.D. found “sexually

explicit pictures” contained inside. (Id. at 113-14.) M.D.

testified that she then turned the box over to the police. (Id.)

The Fourth Amendment protects individuals against

unreasonable searches and seizures. See U.S. Const. amend IV.

Evidence obtained as a result of an unlawful search by the

government is inadmissible at trial. See Wong Sun v. United States,

371 U.S. 471, 484 (1963) (citing Weeks v. United States, 232 U.S.

383 (1914)). This protection only extends, however, to

unreasonable searches that are a result of governmental action.

See Mapp v. Ohio, 367 U.S. 643, 660 (1961). Evidence that obtained

by a private citizen, even wrongfully, is not barred from evidence

at trial, so long as it was without participation by the

government. See Burdeau v. McDowell, 256 U.S. 465, 475-76 (1921).

Here, there is no evidence that the State illegally obtained

the metal box. M.D., a private citizen, discovered the box in her

own home after having been asked repeatedly by Petitioner to locate

it. There is no evidence that the government participated in M.D.’s

discovery of the box or that the government ever urged M.D. to

find it. Rather, M.D. stated it was at the request of Petitioner

that she even attempted to locate it. Thus, Petitioner’s argument

that the prosecutor engaged in misconduct by proffering “illegally

obtained photographs” is without merit because the photographs

were not illegally obtained. Accordingly, Petitioner is not

entitled to relief on this claim.

e. Altered Video of Victim

In Petitioner’s final two prosecutorial misconduct claims, he

alleges that the prosecutor “violated my right(s) by altering the

video of S.E. preparing for her school dance to contrive a

conviction” and that the prosecutor “violated my right(s) by

allowing the alleged victim to use perjured testimony to help

contrive a conviction.” (Pet., ECF No. 1 at 8.) In his Petition,

Petitioner drew a line connecting the two claims in what appears

to be an indication that the claims are related. (Id.) Respondents

submit that these arguments are without merit because Petitioner

fails to specify how the video was altered or which witness

allegedly committed perjury. (Answer, ECF No. 8 at 17.) Respondents

presume Petitioner is attempting to raise the same argument he

brought during his PCR proceedings where he alleged the prosecutor

had deleted the portion of the video where the victim, S.E.,

allegedly spoke with her mother. (Id.) Respondents also presume

that Petitioner is therefore arguing that S.E.’s testimony where

she stated that she did not recall her mother being present when

the video was filmed, was perjurious. (Id.)

A conviction obtained through the knowing use of false

evidence, including false testimony, is fundamentally unfair and

violates a defendant’s due process rights. See Miller v. Pate, 386

U.S. 1, 7 (1967); see also Pyle v. Kansas, 317 U.S. 213 (1942). In

order to demonstrate this constitutional violation, a petitioner

must show that the evidence was false and that the prosecutor knew

or should have known it was false. See Napue v. Illinois, 360 U.S.

264, 269 (1959); see also Prosdocimo v. Sec’y, Pennsylvania Dep’t

of Corr., 458 F. App’x 141, 146 (3d Cir. 2012); see also Lambert

v. Blackwell, 387 F.3d 210, 242 (3d Cir. 2004). Here, Petitioner

has not demonstrated that any false evidence was admitted.

Petitioner has not established that the video recording was

altered, nor that any witness committed perjury. Petitioner

provides only bald assertions about the video and witness

testimony.5 Accordingly, Petitioner has not demonstrated that the

prosecutor violated his due process rights by knowingly using false

evidence at trial. Petitioner is not entitled to relief on this

claim.

3. Judicial Misconduct

In Ground Three, Petitioner raises several claims of alleged

“judicial misconduct.” (Pet., ECF No. 1 at 9.) Specifically,

Petitioner sets forth the following allegations in Ground Three:

1. Withheld evidence that Det. Oglesby was

under indictment and in same courthouse during

my trial.

2. On May 12, 2000, ordered me to be examined

by their doctor. I complied and was negative

for any disease. In April 2001 before trial,

the judge in limine with the State denied that

evidence and result.

5 The Court of Appeals for the Third Circuit has previously held

that “bald assertions and conclusory allegations do not afford a

sufficient ground for an evidentiary hearing on a habeas petition.”

Palmer v. Hendricks, 592 F.3d 386, 395 (3d Cir. 2010) (internal

citation and quotation marks omitted). See also Simms v. Carroll,

432 F. Supp. 2d 443, 444 (D. Del. 2006) (“Bald assertions and

conclusory allegations’ do not provide a court with sufficient

information to permit a proper assessment of habeas claims, and a

habeas court cannot speculate about claims.” (quoting 28 U.S.C. §

2254 Rule 2)).

3. Allowed State to read Det. Oglesby’s prior

testimony to jury without him being present or

my consent.

4. Was disappointed that jurors couldn’t

convict me.

5. Allowed perjured testimony by State’s

witness.

6. Made negative comments to “ACPress” of

proposed evidence by defense. Says I had

agenda.

7. Allowed evidence which was once ruled

inadmissible (nude pics) (of oral sex, female

on male).

(Id.)

Respondents argue that Petitioner’s assertions are mostly

repetitive of claims he already raised in Grounds One and Two, and

that any allegation of judicial misconduct is “unfounded,

erroneous, and irrelevant, [. . .] as there is no evidence that

[the judge] conducted himself improperly in this matter[.]”

(Answer, ECF No. 8 at 18-20.)

At the outset, this Court notes that Petitioner’s subpoints

one, four, five, and six are bare allegations which do not afford

a sufficient ground for an evidentiary hearing. See Palmer, 592

F.3d at 395. Petitioner provides no support for his contentions.

There is nothing in the record that demonstrates the trial court

“withheld evidence” regarding Detective Oglesby, or even that the

trial judge was aware Detective Oglesby was facing criminal

charges. Petitioner also provides no support for his allegation

that that the judge was apparently “disappointed” jurors did not

convict Petitioner – presumably a reference to either Petitioner’s

first or third trial which each resulted in a hung jury. Further,

Petitioner does not provide which State witness allegedly

committed perjury. And, Petitioner fails to demonstrate that the

trial judge ever made negative comments to the “ACPress.” This

Court cannot speculate as to what claims Petitioner may have

intended to raise. See Simms, 432 F. Supp. 2d at 444. There is

simply not sufficient information provided by Petitioner to permit

a proper assessment of these claims. See id.

The remainder of Petitioner subpoints – subpoints two, three,

and seven – all relate to questions of state evidentiary rules.

(Pet., ECF No. 1 at 9.) Generally, the admissibility of evidence

is a question of state law which is not cognizable on habeas

review. See Estelle v. McGuire, 502 U.S. 32, 67-68 (1991); see

also Keller v. Larkins, 251 F.3d 408, 416 N.2 (3d Cir. 2001) (“A

federal habeas court … cannot decide whether the evidence in

question was properly allowed under the state law of evidence.”)

“[T]he Due Process Clause does not permit the federal courts to

engage in a finely tuned review of the wisdom of state evidentiary

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

however, a petitioner can demonstrate that the admission of the

evidence denied him Due Process by depriving him of the

“fundamental elements of fairness in [his] criminal trial,” then

his claim may be cognizable on habeas review. Glenn v. Wynder, 743

F.3d 402, 407 (3d Cir. 2014) (quoting Riggins v. Nevada, 504 U.S.

127, 149 (1992) (Thomas, J. dissenting)). A petitioner’s trial

“need not have been perfect,” but it must have been fair. United

States v. Hastin, 461 U.S. 499, 508 (1983). Thus, a petitioner can

only succeed in challenging a state court’s evidentiary ruling by

showing that the ruling was “so arbitrary or prejudicial that it

rendered the trial fundamentally unfair.” Scott v. Bartkowski, No.

11-3365, 2013 WL 4537651, at *9 (D.N.J. Aug. 27, 2013) (citing

Romano v. Oklahoma, 512 U.S. 1, 12-13 (1994)). The category of

infractions that violate fundamental fairness has been defined by

the Supreme Court “very narrowly, based on the recognition that,

beyond the specific guarantees enumerated in the Bill of Rights,

the Due Process Clause has limited application.” Medina v.

California, 505 U.S. 437, 443 (1992).

In Petitioner’s subpoint two he argues that the trial court

erred in excluding evidence that he did not exhibit visible

manifestation of venereal warts caused by human papillomavirus

(HPV). (Pet., ECF No. 1 at 9.) As discussed previously, this

evidentiary ruling related only to Petitioner’s first and second

trials. After Petitioner was convicted following his second trial,

he appealed the trial court’s evidentiary ruling and the Appellate

Division reversed his conviction, stating that he should have been

permitted to introduce the evidence of venereal warts. Thus, at

Petitioner’s fourth trial, the conviction from which he seeks

relief, he was allowed to introduce this evidence. Thus,

Petitioner’s claim attempts to challenge his conviction from his

second trial, which was reversed, and not the conviction from which

he is presently confined. See 28 U.S.C. § 2254 (stating that a

writ of habeas corpus is a civil action for “a person in custody

pursuant to the judgment of a State court[.]”) Accordingly,

Petitioner is not entitled to relief on this claim.

In Petitioner’s subpoint three, he alleges that the trial

court also erred in permitting Detective Oglesby’s prior testimony

to be read to the jury. (Pet., ECF No. 1 at 9.) As discussed

previously, Detective Oglesby was a witness for the defense. His

testimony was used by Petitioner to undermine the credibility of

the victim-witnesses at trial. Moreover, it was defense counsel’s

request that the testimony be read into the record given the

unavailability of Detective Oglesby. Accordingly, Petitioner is

unable to demonstrate that the admission of Detective Oglesby’s

testimony, which was favorable to Petitioner, was so prejudicial

as to render his trial fundamentally unfair. See Scott, 2013 WL

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

Finally, in Petitioner’s subpoint seven, he states that the

trial court erred by allowing the admission of sexually explicit

photographs into evidence that the trial court had previously ruled

were inadmissible. (Pet., ECF No. 1 at 9.) This claim, however,

misstates the procedural history of the case. Prior to Petitioner’s

first trial, the court ruled that several sexually explicit

photographs were inadmissible because the victim had been unable

to identify them. (Trial Ct. Op. Denying PCR, ECF No. 8-28 at 4.)

The photographs that were introduced at Petitioner’s fourth trial,

however, were not the same photographs that had been subject to

the trial court’s initial ruling. (Id.) The photographs presented

at Petitioner’s fourth trial had not been discovered until after

the first trial had concluded, and the victim was able to identify

those photographs as the ones Petitioner had shown to her. (Id.)

Accordingly, Petitioner is not entitled to relief on this claim.

IV. CERTIFICATE OF APPEALABILITY

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

judge issues a certificate of appealability, an appeal may not be

taken from a final order in a proceeding under 28 U.S.C. § 2254.

A certificate of appealability may issue “only if the applicant

has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree

with the district court’s resolution of his constitutional claims

or that jurists could conclude the issues presented are adequate

to deserve encouragement to proceed further.” Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003).

For the reasons discussed above, Petitioner has not made a

substantial showing of the denial of a constitutional right.

Therefore, the Court will deny a certificate of appealability.

V. CONCLUSION

In the accompanying Order filed herewith, the Petition for

habeas relief under 28 U.S.C. § 2254 is denied.

Dated: July 18, 2019

s/Renée Marie Bumb

RENÉE MARIE BUMB

United States District Judge