# CARSON v. NEW JERSEY STATE PRISON

> District Court, D. New Jersey · July 18, 2019

URL: https://www.frixlaw.com/law-library/cases/10654635

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** July 18, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NOT FOR PUBLICATION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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10654635. Public record. Not legal advice.