OPINION

ROBERT B. KUGLER, District Judge.

I. INTRODUCTION

Petitioner is a state prisoner and is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury on multiple counts including kidnapping, burglary, robbery, terroristic threats and unlawful possession of a weapon amongst others. He is currently serving a life sentence with a forty-year parole disqualifier. Petitioner raises several claims in his habeas petition. For the following reasons, the habeas petition will be denied.

II. FACTUAL AND PROCEDURAL BACKGROUND1

(Dkt. No. 9-8 at p. 2-3.)

After petitioner was convicted and sentenced at his retrial, he appealed to the Superior Court of New Jersey, Appellate Division. The Appellate Division affirmed except for reversing a conviction on one count and remanding for resentencing on an issue not relevant to this Opinion. The New Jersey Supreme Court denied certification on March 20, 2007. (See Dkt. No. 9-13.)

Petitioner subsequently filed a petition for post-conviction relief ("PCR") in the Superior Court of New Jersey, Cape May County in April, 2007. That court denied the PCR petition on January 14, 2009. (See Dkt. No. 9-18.) The Appellate Division affirmed that denial on March 8, 2011. (See Dkt. No. 9-22.) The New Jersey Supreme Court denied certification on the PCR petition on July 22, 2011. (See Dkt. No. 9-25.)

Petitioner then initiated this federal proceeding by filing a petition for writ of habeas corpus in April, 2012. Petitioner was then given the requisite notice pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000). He informed the Court that he wanted his petition to be ruled upon as filed. (See Dkt. Nos. 2 & 3.) The respondent filed his response on June 20, 2012. Petitioner then filed his original traverse in September, 2012. Subsequently, petitioner has filed numerous updates and amendments to his traverse. He has also filed a motion to compel.

III. HABEAS CORPUS LEGAL STANDARD

An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws or treaties of the United States. See Engle v. Isaac, 456 U.S. 107, 119 (1982); see also, Mason v. Myers, 208 F.3d at 415 n.1 (citing 28 U.S.C. § 2254). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. 104-132, 110 Stat. 1214 (Apr. 24, 1996), applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court. See 28 U.S.C. § 2254(d).

As a threshold matter, a court must "first decide what constitutes `clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "`[C]learly established federal law' under § 2254(d)(1) is the governing legal principle set forth by the Supreme Court at the time the state court renders its decision." Id. (citations omitted). A federal habeas court making an unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue a writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411.

The AEDPA standard under § 2254(d) is a "difficult" test to meet and is a "highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398 (2011). The petitioner carries the burden of proof and with respect to review under § 2254(d)(1), that review "is limited to the record that was before the state court that adjudicated the claim on the merits." Id.

In applying AEDPA's standards, the relevant state court decision that is appropriate for federal habeas corpus review is the last reasoned state court decision. See Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir. 2008). Furthermore, "[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). Additionally, AEDPA deference is not excused when state courts issue summary rulings on claims as "[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington v. Richter, 562 U.S. 86, 99 (2011) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)).

IV. DISCUSSION

Petitioner raises multiple claims in his habeas petition; specifically:

These claims will be considered in turn.

A. Claim I — Insufficiency of the Evidence

Petitioner makes two arguments with respect to claiming that there was insufficient evidence to support his convictions. First, he claims that there was insufficient evidence to support his convictions on the charges involving Sadie Hamer. Second, he claims that there was insufficient evidence to support the kidnapping convictions. The last reasoned decision from the state courts on this claim was from the Appellate Division on direct appeal. That court analyzed these issues as follows:

(Dkt. No. 9-8 at p. 2-3.)

The Due Process Clause of the Fourteenth Amendment "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime for with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a conviction, if "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). A petitioner raising an insufficiency of the evidence claim faces a "`very heavy burden' to overturn the jury's verdict for insufficiency of the evidence." United States v. Root, 585 F.3d 145, 157 (3d Cir. 2009) (citing United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998)). In analyzing a sufficiency of the evidence claim, a court examines both the direct and circumstantial evidence in their totality. See United States v. Pavulak, 700 F.3d 651, 668 (3d Cir. 2012) (citations omitted).

i. Sadie Hamer Incident

Petitioner's first insufficiency of the evidence claim is that there was insufficient evidence presented to establish that he was perpetrator with respect to the Hamer incident. In analyzing this claim, the Appellate Division relied on the circumstantial similarity evidence between the Hamer incident and the Perez incident in which there was more direct evidence connecting petitioner to that crime (in the form of voice identification and forensic evidence). Indeed, the court noted the similarity in time, the manner of entry, the items stolen, the nature of the victims and the fact that the petitioner either did not go to work or appeared for work late the next day with respect to the two incidents. Thus, in denying this claim, the Appellate Division in effect held that the Hamer and the Perez incidents had similar modus operandi. The Court finds that this was not an unreasonable application of clearly established federal law, because, as stated above, in analyzing a sufficiency of the evidence claim, a court needs to examine not only the direct evidence, but also the circumstantial evidence in their totality. See Pavulak, 700 F.3d at 668; see also United States v. Cobb, 397 F. App'x 128, 135-36 (6th Cir. 2010) (denying insufficiency of the evidence claim for Huntington Bank robbery where the robbery had a similar modus operandi to robbery of Chase Bank where DNA evidence supported the conviction); Dixon v. Tampkins, No. 12-2821, 2013 WL 1246751, at *9 (C.D. Cal. Feb. 11, 2013) ("Based on modus-operandi evidence from Petitioner's other convictions, a rational fact finder could have inferred that he committed the four crimes in question.") (citing United States v. Momeni, 991 F.2d 493, 494 (9th Cir. 1993); United States v. Hirokawa, 342 F. App'x 242, 248-49 (9th Cir. 2009)); report and recommendation adopted by, 2013 WL 1245981 (C.D. Cal. Mar. 27, 2013). Therefore, petitioner is not entitled to federal habeas relief on this insufficiency of the evidence claim.

ii. Kidnapping Charges

Petitioner also argues that there was insufficient evidence to find him guilty on the two kidnapping charges. "When assessing such claims on a petition for habeas relief from a state conviction, the sufficiency of the evidence standard `must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.'" Robertson v. Klem, 580 F.3d 159, 165 (3d Cir. 2009) (quoting Jackson, 443 U.S. at 324 n.16). In New Jersey, kidnapping is defined as follows:

N.J. STAT. ANN. § 2C:13-1b. Additionally, the kidnapping statute provides that kidnapping is a first-degree offense, but that it is a crime in the second-degree if the actor releases the victim in a safe place prior to apprehension. In this case, petitioner argues that there was insufficient evidence to sustain both the kidnapping charge in and of themselves as well as a finding of a first-degree kidnapping charge in both incidents.

In a case such as this that involves confinement, the Appellate Division noted in New Jersey that the restraint must not merely be incidental to the underlying substantive crime, but must substantially increase the risk of harm beyond that necessarily present in the crime itself. See State v. La France, 117 N.J. 583, 587 (1990). The Appellate Division then explained that the restraint in this case was not incidental because petitioner could have stolen the items without having awoken Hamer or Perez, and without threatening their lives. Thus, it certainly increased the risk of harm beyond that necessarily present in the crime itself through petitioner's additional actions. Additionally, as noted by the Appellate Division, petitioner did not release the victims from their confinement, but, instead, left both of them bound in their beds. Under such circumstances, this Court finds that the Appellate Division did not unreasonable apply clearly established federal law or deny this claim based on an unreasonable determination of the facts. Accordingly, habeas relief is not warranted on Claim I.

B. Claim II — Prosecutorial Misconduct by Injecting Personal Opinion and Presenting "Mug Shot" Photo of Petitioner

Petitioner makes several distinct arguments within Claim II. First, he asserts that the prosecutor impermissibly injected his own personal opinion in his opening statement. Second, petitioner claims that the prosecutor improperly invoked sympathy for the victims during his closing argument. Third, petitioner asserts that the prosecutor impermissibly used a Power Point presentation.

Petitioner argued as follows in the state courts with respect to the prosecutor purportedly impermissibly injecting his personal opinion in his opening remarks to jury:

(Dkt. No. 9-3 at p. 40-41 (internal citations omitted).) Petitioner also claims that the prosecutor committed misconduct by continuing to use the word atrocities to enlist the jury to his cause without offering any evidence and that a Power Point presentation that the prosecutor used improperly included a "mug shot" of the petitioner for the jury to see. The last reasoned decision on these prosecutorial misconduct issues was from the Appellate Division on petitioner's direct appeal which analyzed them as follows:

(Dkt. No. 9-8 at p. 6.)

A criminal defendant's due process rights are violated if prosecutorial misconduct renders a trial fundamentally unfair. See Darden v. Waingright, 477 U.S. 168, 182-83 (1986). A habeas petition will be granted for prosecutorial misconduct only when the misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id. at 181 (internal quotation marks and citation omitted). A prosecutorial misconduct claim is examined in "light of the record as a whole" in order to determine whether the conduct "had a substantial and injurious effect or influence" on the jury's verdict. See Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). A "reviewing court 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).

i. Prosecutor's Opening Statement Remarks

Petitioner's first argument is that the prosecutor improperly injected his personal views in his opening statement. Petitioner's main complaint is with the beginning of the prosecutor's opening statement and his use of "I" within the opening statement. The relevant portion complained of by petitioner is italicized below:

(Dkt. No. 10-6 at p. 24-25.) The state courts determined that the prosecutor's statements during his opening statements did not so infect the trial to prejudice the defendant from receiving a fair trial. After reviewing the record as cited above with respect to the prosecutor's opening statement, the Court concludes that the state court's denial of this claim was not an unreasonable application of clearly established federal law. First, the prosecutor is entitled to considerable latitude to argue the evidence and reasonable inferences that can be drawn from that evidence. See United States v. Werme, 939 F.2d 108, 117 (3d Cir. 1991). Indeed, the evidence cited by the prosecutor was based on evidence that he intended to, and in fact did produce at trial such as, the fact that the TV was left on and the nature of the attack. Furthermore, as noted by the Appellate Division, the prosecutor did not state his personal opinion or belief in the petitioner's guilt. See Fahy v. Horn, 516 F.3d 169, 203 (3d Cir. 2008) (noting that a prosecutor cannot express his personal belief in the credibility of a witness or the guilt of a defendant). Finally, it is worth noting that the jury was specifically instructed that the prosecutor's opening statement was not evidence, (see Dkt. No. 10-6 at p. 19.) and that it needed to base its decision on the evidence in the case. (See Dkt. No. 10-12 at p. 5-9.) The jury is presumed to have followed the instructions given to it by the trial judge. See Weeks v. Angelone, 528 U.S. 225, 234 (2000). Accordingly, under such circumstances, the Court finds that petitioner is not entitled to habeas relief on this prosecutorial misconduct claim.2

ii. Prosecutor's Closing Argument Remarks

Petitioner next argues that he is entitled to habeas relief because the prosecutor invoked sympathy for the victims by repeatedly using the term "atrocity" during his closing argument. The denial of this claim by the state courts was not an unreasonable application of clearly established federal law, nor based on an unreasonable determination of the facts. Indeed, the description of the crimes as atrocities where the victims were bound, threatened with a sharp object, and the robbed was based upon the evidence presented at trial. Accord Lopez v. Folino, No. 09-0975, 2012 WL 3777444, at *10 (E.D. Pa. Aug. 30, 2012) ("The prosecutor's description of the murder as an execution and Lopez as the executioner can also be argued based upon the evidence presented at trial. The shooter fired into the victim with a handgun which was placed directly against the back of his head."). Thus, petitioner is also not entitled to federal habeas relief with respect to this argument.

iii. Power Point Presentation

Petitioner also objects to the prosecutor's Power Point presentation entitled, "A Tale of Two Atrocities," that was used at his trial. Petitioner claims that the Power Point presentation improperly bootstrapped evidence from the Perez incident into the Hamer incident. Finally, petitioner claims that the power point presentation should have been excluded because it glossed over elements of the kidnapping charges.

The last reasoned decision on the prosecution's use of the Power Point presentation was from the Appellate Division on petitioner's direct appeal. That court found that the use of the power point presentation did not so prejudice petitioner that prevented him from having a fair trial. (See Dkt. No. 9-8 at p. 6 ("There is no indication in the record the prosecutor's conduct . . . in using visual aids substantially prejudiced defendant's fundamental right to have a jury evaluate the merits of his defense.").)

This argument is not cognizable on federal habeas review to the extent petitioner asserts that the state court erred as a matter of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (stating that "it is not the province of a federal habeas court to reexamine state-court determinations of state-law questions"). The due process inquiry that is applicable to this issue is whether the state court's ruling was so arbitrary or prejudicial that it rendered the trial fundamentally unfair. See Romano v. Oklahoma, 512 U.S. 1, 12-13 (1994); see also Keller v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001) (noting that to show that an evidentiary error rises to the level of a due process violation, a petitioner must show "that it was of such magnitude as to undermine the fundamental fairness of the entire trial"). The United States Supreme Court has "defined the category of infractions that violate `fundamental fairness' very narrowly." Dowling v. United States, 493 U.S. 342, 352 (1990).

Petitioner is not entitled to federal habeas relief on this claim. First, petitioner's argument that he is entitled to federal habeas relief because the Power Point presentation glossed over the kidnapping charges is without merit. Indeed, the state court instructed the jury on the elements that made up the kidnapping charges in its jury charge. (See Dkt. No. 10-12 at p. 11-12.) The jury is presumed to have followed this instruction during its deliberations. See Weeks, 528 U.S. at 234. Second, as the state court noted, the Power Point presentation did not bootstrap evidence from the Perez incident into the Hamer incident. Indeed, the striking similarities charge had separate columns for what transpired with respect to the two crimes. (See Dkt. No. 9-4 at p. 32.) This was merely an argument that there were reasonable inferences to be made from the evidence produced at trial. This did not make petitioner's trial fundamental unfair such that the denial of this claim was not an unreasonable application of clearly established federal law.

Finally, the use of petitioner's photo in the Power Point presentation and its subsequent use at trial does not entitle petitioner to federal habeas relief. Respondent asserts that there is no indication that the picture itself was a "mug shot" as the picture was redacted. The quality of the copy of the photo that respondent submitted to this Court is extremely poor. (See Dkt. No. 9-4 at p. 29.) Indeed, the copy of the photo respondent submitted is extremely blurry. While the Court can barely make out that it is a picture of a person, beyond the silhouette, no other identifiable features of the photo are clear. Nevertheless, the quality of the picture submitted by the respondent does not affect this Court's analysis of this Claim. Testimony revealed at trial indicates that petitioner was wearing normal clothes and not in prison garb in the picture. (See Dkt. No. 10-8 at p. 40 ("I don't remember what color his clothes were, although the photograph that you showed me would show what shirt he was wearing.").) This is important because some courts have noted that failing to remove the reference to a prison in a photo may constitute an error. See Peace v. Hendricks, No. 03-5987, 2005 WL 3406405, at *6 (D.N.J. Dec. 12, 2005). Thus, it appears that the photo itself was not a "mug shot" per se, but instead an "arrest photo." See Crawford v. United States, No. 06-0265, 2008 WL 1775260, at *5 (W.D.N.C. Apr. 15, 2008) (distinguishing arrest photos from mug shots as arrest photographs "did not contain references to prison dates or incarceration.")

Respondent argues that petitioner's argument is without merit because, "[w]hile the photograph of Petitioner, S-22, was taken at the time of Petitioner's arrest, the redacted version of the photograph that the State of New Jersey showed to the jury did not give any indication of that fact." (Dkt. No. 9 at p. 42.) While perhaps technically true, respondent's argument fails to place into context how (in part) the photograph was discussed at trial. Indeed, as petitioner notes, when Detective Ulbrich was specifically questioned about the photograph, he noted that it was taken on June 30, 2002, or the day petitioner was taken into custody. (Dkt. No. 10-7 at p. 90 ("The photo was taken when he was lodged in the county jail which was on an unrelated issue.").) Thus, as this Court reads petitioner's arguments, the photograph, when combined with Ulbrich's testimony, shows that the photograph deprived him of a fair trial by the prosecutor's actions because it introduced evidence of petitioner's prior bad character.3

The state court determined that the use of the Power Point presentation did not prejudice the petitioner. To reiterate, to grant federal habeas relief, it is not enough for this Court to find that the state court's determination was incorrect, but rather, whether its determination was unreasonable which is a substantially higher threshold. See Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410)). The use of the photograph coupled with Detective Ulbrich's statement that it was taken when he was placed in the jail on an unrelated issue does give rise to the potential of prejudice towards petitioner. However, this Court notes that petitioner's identification at the time of the crimes was clearly at issue in that neither victim could visually identify the culprit, but did notice several of the culprit's features. Furthermore, in light of the deferential standard of review that this Court must apply under AEDPA to the state court's denial of this Claim, this Court finds that the state court's finding of no prejudice was not an unreasonable application of clearly established federal law. Indeed, the evidence against petitioner included DNA and forensic evidence which tied petitioner to the Perez crime scene. Furthermore, petitioner's voice was identified by Perez as her attacker on the night in question. Accordingly, this Court finds that the state court's denial of this claim based on a failure to show prejudice was not an unreasonable application of clearly established federal law. Thus, petitioner is not entitled to federal habeas relief on this claim.

C. Claim III — Improper Testimony necessitated a mistrial

In Claim III, petitioner argues that Detective Scull contributed to the unfair trial when he testified with respect to the Hamer incident that the perpetrator laid on top of her and inappropriately touched one of her breasts. Petitioner notes that in his first trial that he was charged with aggravated criminal sexual assault with respect to this touching, but that the charge was dismissed without prejudice and was not part of the second trial that is relevant to this habeas action. Petitioner claims that the trial court should have granted his motion for a mistrial which was made later on by petitioner's trial counsel during Scull's testimony. Petitioner further claims that the trial court agreed to give a curative instruction regarding Scull's comment but none was ever given. Relying on the New Jersey Rule of Evidence 403(b), petitioner argues that this added to the prejudice and made it more likely that the jury would use this improper reference to convict petitioner on an improper basis.

Neither the New Jersey Supreme Court nor the Appellate Division provided a reasoned decision on this claim on the merits. Therefore, the last reasoned decision on this claim is from the trial court which denied petitioner's motion for a mistrial in light of Scull's comment. In denying petitioner's motion for a mistrial, that court stated as follows:

(Dkt. No. 10-9 at p. 67.)

At the outset, this Claim is not cognizable on federal habeas relief to the extent that it asserts that the state court erred as a matter of state law in permitting this evidence from Scull to be admitted. See Estelle, 502 U.S. at 67-68 (stating that "it is not the province of a federal habeas corpus to reexamine state-court determinations of state-law questions"); 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."). In terms of a federal due process claim, to prevail, petitioner must prove that he was deprived of fundamental elements of fairness in his criminal trial. See Glenn v. Wynder, 743 F.3d 402, 407 (3d Cir. 2014) (quoting Riggins v. Nevada, 504 U.S. 127, 149 (1992)). As previously noted, the Supreme Court has "defined the category of infractions that violate `fundamental fairness' very narrowly based on the recognition that [b]eyond 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 order to satisfy due process, [petitioner's] trial must have been fair; it need not have been perfect." Glenn, 743 F.3d at 407 (citing United States v. Hasting, 461 U.S. 499, 508 (1983)).

The trial court decided that in light of the other facts surrounding both the Hamer incident, for example, the binding and use of a sharp object to threaten her, the fact that Scull testified that the perpetrator inappropriately touched Hamer's breasts did not so prejudice the trial so as to make it fundamental unfair. This was not an unreasonable application of clearly established federal law on whether petitioner's fundamental fairness rights were violated. Accordingly, federal habeas relief is not warranted on this claim.

D. Claim IV — Purported Improper Expert Testimony from Scull

In Claim IV, petitioner argues that the trial court erred by permitting Scull to provide expert testimony by allowing him to "connect the dots" between the Hamer and Perez crimes. Petitioner asserts that this connection was for the jury to make, not the detective's to make. The last reasoned decision on this claim was from the Appellate Division on petitioner's direct appeal which analyzed this claim as follows:

(Dkt. No. 9-8 at p. 6.) Thus, the Appellate Division found that the testimony of Scull was proper as a matter of state law. It is not the province of this Court on federal habeas review to reexamine state court determinations on state law questions. See Estelle, 502 U.S. at 67-68. Therefore, petitioner is not entitled to federal habeas relief on this claim. Accord Stidham v. Varano, No. 08-3216, 2009 WL 1609423, at *20 (E.D. Pa. June 9, 2009) (where state court found that witnesses did not testify as experts but rather that such lay opinion testimony was admissible as a matter of state law, federal court on habeas review must accept state court's determination as it "would be in no position even to consider whether the Superior Court correctly ruled that the testimony was admissible as a matter of state law").

E. Claim V — Statements of Petitioner's Prior Incarceration

In Claim V, petitioner argues that the trial court erred in denying his request for a mistrial in light of Detective Ulbrich's references to his prior incarceration. The first occurred in discussing petitioner's appearance on direct:

(Dkt. No. 10-7 at p. 90.) The second reference occurred later on during the direct examination of Ulbrich when he discussed the buccal swab that was taken from petitioner; specifically:

(Dkt. No. 10-7 at p. 94-95.) At the close of testimony that day, petitioner's counsel moved for mistrial arguing that these two references were unduly prejudicial. The trial court denied the motion for a mistrial and stated as follows:

(Dkt. No. 10-7 at p. 99-100.) The trial court's denial of this claim is the last reasoned decision for purposes of this Court's review as the Appellate Division denied this claim without discussion. See Ylst, 501 U.S. at 803.

The disclosure of petitioner's incarceration "may, in certain circumstances, violate a defendant's due process right to a fair trial." United States v. Faulk, 53 F. App'x 644, 647 (3d Cir. 2002). For example, a panel of the Third Circuit in Faulk, using Estelle v. Williams, 425 U.S. 501, 512-13 (1976), noted that "a defendant's Fourteenth Amendment rights are violated if compelled to stand before a jury while dressed in identifiable prison clothes." Faulk, 53 F. App'x at 647 (citation omitted). In Estelle, "[t]he Supreme Court emphasized that `the constant reminder' to the jury over the course of a trial that the defendant is a prisoner may impair the presumption of innocence." Id. (citing Estelle, 425 U.S. at 504). Nevertheless, many courts have noted that the "the mere utterance of the word [jail, prison, or arrest] does not, without regard to the context or circumstances, constitute reversible error per se." United States v. Villanbona-Garnica, 63 F.3d 1051, 1058 (11th Cir. 1995) (quoting United States v. Veteto, 701 F.2d 139-40 11th Cir. 1983) (quoting United States v. Barcenas, 498 F.2d 1110, 1113 (11th Cir. 1974))); see also United States v. Atencio, 435 F.3d 1222, 1237 (10th Cir. 2006) ("The rule of Estelle does not apply, to every mere utterance of the words [jail, prison, or arrest], without reference to context or circumstances.") (internal quotation marks and citation omitted); Faulk, 53 F. App'x at 648; United States v. Alsop, 12 F. App'x 253, 258 (6th Cir. 2001); United States v. Henry, Crim. No. 06-33-02, 2012 WL 5881848, at *6 (E.D. Pa. Nov. 21, 2012) (noting that courts from outside the Third Circuit have held, in line with Faulk, that mere utterance of words jail, prison or arrest does not amount to a constitutional violation). As some courts have explained, this distinction "is because `the impact of referring to a defendant's incarceration is not constant as it is with prison garb.'" United States v. Falciglia, No. 09-120, 2010 WL 2408153, at *9 (W.D. Pa. June 7, 2010) (quoting United States v. Washington, 462 F.3d 1124, 1136-37 (9th Cir. 2006)). Thus, isolated or brief references to a defendant's incarceration during trial do not necessarily amount to a due process violation. See Atencio, 435 F.3d at 1238 (prosecutor's single reference that defendant was in jail did not impair presumption of innocence since it was isolated and not a continuing occurrence); United States v. Allen, 425 F.3d 1231, 1236 (9th Cir. 2005); Faulk, 53 F. App'x at 647-48 ("[W]e find that the prosecutor's brief (albeit repeated) mention of Faulk's imprisonment in a single short series of questions did not serve as a `constant reminder' to the jury of defendant's condition so as to impair the presumption of innocence."); Falciglia, 2010 WL 2408153, at *10 (witnesses two references to defendant being an "inmate" did not impair the presumption of innocence because it did not constitute a "constant reminder" that defendant had been incarcerated).

In this case, references to petitioner's incarceration were brief and in passing. They did not serve as a "constant reminder" to the jury that petitioner had been incarcerated and did not impair his presumption of innocence. See Faulk, 53 F. App'x at 647. Additionally, the trial court gave petitioner the opportunity to come up with a curative instruction.4 Furthermore, the second reference by Ulbrich did not even necessarily implicate that petitioner was in jail, only that the buccal swabs were taken from petitioner at the Cape May County Jail. Under these circumstances, and when viewed in context, the Court finds that the state court's denial of this claim was not an unreasonable application of clearly established federal law and the decision was not based on an unreasonable determination of the facts. Accordingly, this claim does not warrant granting federal habeas relief.

F. Claim VI — Failure to Suppress Statement

In Claim VI, petitioner argues that the trial court erred in refusing to suppress his statement to the police. He claims that the State failed to prove that his statements were voluntarily given after waiving his Miranda rights. He states that he was interviewed by two detectives at once and was handcuffed and placed in a holding cell before the interrogation. The last reasoned decision on this claim was from the trial court which denied petitioner's motion to suppress his statement to police. In denying the motion to suppress, the trial court stated as follows:

(Dkt. No. 10-3 at p. 21-22.)

The United States Supreme Court decision in Miranda v. Arizona, 384 U.S. 436 (1966) "held that `[t]he defendant may waive effectuation' of the rights conveyed in the warnings `provided the waiver is made voluntarily, knowingly, and intelligently.'" Fahy, 516 F.3d at 194 (quoting Miranda, 384 U.S. at 444). This inquiry has two dimensions as explained by the Supreme Court; specifically:

Moran v. Burbine, 475 U.S. 412, 421 (1986). "The ultimate question in the voluntariness calculus is `whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution.'" Fahy, 516 F.3d at 194 (quoting Miller v. Fenton, 474 U.S. 104, 112 (1985)).

In this case, the state court analyzed the totality of the circumstances in determining whether petitioner's waiver of his Miranda rights was violated in the context of denying the motion to suppress after conducting an evidentiary hearing. The state court's decision was not an unreasonable application of clearly established federal law. Furthermore, upon reviewing the suppression hearing transcript, its decision holding that the Miranda waiver was knowing and intelligent was not based on an unreasonable determination of the facts. Accordingly, petitioner is not entitled to federal habeas relief on this claim.

G. Claim VII — Change of Venue

In Claim VII, petitioner argues that the trial court should have ordered a change of venue or empaneled a foreign jury because of undue pretrial publicity that failed to ensure that he received a fair trial by an unbiased jury. While the habeas petition states that the trial court should have granted his motion for a change of venue, it appears that no such motion was ever made by petitioner. Indeed, petitioner's direct appeal brief to the Appellate Division argued as follows, "[w]hile defendant did not specifically request a change of venue or foreign jury, the trial court had an independent duty to act swiftly and decisively to overcome the potential bias of the jury from outside influences." (Dkt. No. 9-3 at p. 55-56.) Nevertheless, there was some discussion of the pretrial publicity of the case in the lead up to the retrial. Indeed, immediately prior to jury selection, the following colloquy took place between the trial court, Mr. Michael J. Catanese, Esq. (petitioner's trial counsel) and Mr. David J. Meyer (assistant county prosecutor):

(Dkt. No. 105- at p. 9-10.)

The Appellate Division summarily denied petitioner's claim on direct appeal that the trial court should have sua sponte transferred venue of this case. However, petitioner's burden "still must be met by showing there was no reasonable basis for the state court to deny relief." Harrington, 562 U.S. at 98. "[A] habeas court must determine what arguments or theories . . . could have supporte[d] the state court's decision; and then must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Cullen, 131 S. Ct. at 1402 (internal quotation marks and citation omitted).

The Fourteenth Amendment guarantees a criminal defendant a right to a trial by an impartial jury free from outside influences. See Sheppard v. Maxwell, 384 U.S. 333, 362 (1966). In some cases, a court may presume prejudice to the defendant such as "[w]here media or other community reaction to a crime or a defendant endangers an atmosphere so hostile and pervasive as to preclude a rational trial process[.]" Rock v. Zimmerman, 959 F.2d 1237, 1252 (3d Cir. 1992) (citing Sheppard, 384 U.S. 333; Estes v. Texas, 381 U.S. 532 (1965); Rideau v. Louisiana, 373 U.S. 723 (1963)), overruled on other grounds by, Brecht, 507 U.S. 619; see also Campbell v. Bradshaw, 674 F.3d 578, 593 (6th Cir. 2012) ("`Presumptive prejudice from pretrial publicity occurs where inflammatory, circus-like atmosphere pervades both the courthouse and the surrounding community[.]'") (quoting Foley v. Parker, 488 F.3d 377, 287 (6th Cir. 2007)). "[T]he community and media reaction, however, must have been so pervasive as to make it apparent that even the most careful voir dire process would be unable to assure an impartial jury." Rock, 959 F.2d at 1252-53 (citations omitted). Nevertheless, the United States Supreme Court has explained that the presumption of prejudice from pretrial publicity "attends only in the extreme case." United States v. Skilling, 561 U.S. 358, 381 (2010); see also Campbell, 674 F.3d at 593 (noting that presumptive prejudice from pretrial publicity is rarely presumed); Rock, 959 F.2d at 1252 (cases of presumed prejudice from pretrial publicity "are exceedingly rare.").

In Skilling, 561 U.S. at 379-81, the Supreme Court traced the history of its cases with respect to presumed prejudice due to pretrial publicity by citing to its opinions in Rideau v. Louisiana, 373 U.S. 723 (1963), Estes v. Texas, 381 U.S. 532 (1965) and Sheppard v. Maxwell, 384 U.S. 333 (1966):

Skilling, 561 U.S. at 379-81 (footnote omitted). With these cases as a backdrop, in Skilling the Supreme Court found a number of considerations to be relevant in determining whether there is presumed prejudice, such as: (1) the size and characteristics of the community in which the crime occurred; (2) the content of the media coverage; (3) the timing of the media coverage; and (4) the existence of media interference with court proceedings. See 561 U.S. at 382-84.

Petitioner never presented before the state courts evidence with respect to the size and characteristics of the community in Cape May County5, nor does he present such evidence before this Court. Furthermore, even if petitioner had presented such evidence with respect to the size and characteristics of Cape May County in his habeas petition, it is improper for this Court to receive such evidence when analyzing this Claim under the AEDPA standard of review. See Cullen, 131 S. Ct. at 1398, 1400 (noting that federal habeas review under § 2254 "is limited to the record that was before the state court that adjudicated the claim on the merits" and "that evidence introduced in federal court has no bearing on" such review). As such, this Court cannot say that this factor weighed for or against a finding of presumed prejudice.6

The second factor requires a court to examine the content of the news coverage. As previously noted, petitioner's conviction arose from a second trial after the first trial was reversed and remanded due to the statements of a discharged juror. Before the trial court, petitioner's counsel expressed concern about an Atlantic City Press article that was issued a few days prior to the re-trial that discussed the prior trial and conviction. Petitioner's appellate brief on direct appeal also referenced another article that purportedly showed petitioner being led into the courtroom in handcuffs and referenced the prior trial and conviction.

Accordingly, the purported pretrial publicity as petitioner asserted in the state courts with respect to petitioner's re-trial amounted to two newspaper articles. Petitioner's trial counsel even admitted that the pretrial publicity for this case was not "extensive." While the first article was purportedly from the Atlantic City Press, it is unclear where the purported second article came from. For the most part, petitioner did not show the state courts that these articles were anything more than factual in nature that petitioner was being retried on kidnapping charges. As best this Court can determine since the two articles are not included in the record, the two articles mentioned by petitioner to the state courts may be far different than the type and content of pretrial publicity that arose with the defendant's confession in Rideau or the type of "bedlam" coverage in Sheppard. Indeed, in Skilling, 561 U.S. at 383, the Supreme Court cited to United States v. Chagra, 669 F.2d 241, 251-52 n. 11 (5th Cir. 1982), which noted that, "[a] jury may have difficulty in disbelieving or forgetting a defendant's opinion of his own guilt but have no difficulty in rejecting the opinions of others because they may not be well founded." As one court has noted, "the highly factual nature of the media coverage, coupled with the fact that the news stories contain no confessions by Defendants, weigh against a finding of presumed prejudice." United States v. Savage, Crim. Nos. 07-550-03, 07-550-04, 07-550-05, 07-550-06, 2012 WL 2376680, at *5 (E.D. Pa. June 25, 2012) (citing United States v. Lindh, 212 F.Supp.2d 541, 549 (E.D. Va. 2002)). In this case, petitioner's statements to the state courts regarding the pretrial publicity in the form of two newspaper articles immediately prior to his second trial did not weigh in favor of transferring trial of this case to another venue.

The third factor to consider is the timing of the media coverage. The incidents giving rise to the charges in this case took place in 2000. Petitioner vaguely alluded to widespread dissemination of publicity of petitioner's first trial in his appellate brief to the Appellate Division on direct appeal. However, he only mentioned two articles that were issued immediately prior to his re-trial in 2004. In the absence of evidence that showed a high level of media interest continuing up to petitioner's re-trial, this factor also does not weigh in favor of a transfer. See Hertzel v. Lamas, 372 F. App'x 280, 284 (3d Cir. 2010) ("The passage of time and the sporadic nature of the coverage in the months proceeding the trial suggest that any prejudice that may have been presumed around the time of Guzman's death and Hetzel's arrest may have dissipated by the next year); see also United States v. Matusiewicz, Crim. Nos. 12-83-1, 12-83-2, 13-83-3, 2014 WL 2446084, at *4 (D. Del. May 29, 2014) ("In the absence of evidence that a high level of media interest had continued since the shootings, the court concludes that a period of more than a year is a sufficient cooling off period.") (citation omitted).

The fourth factor to consider is the extent to which there has been media interference Maybe I'll come downMMwith the actual courtroom proceedings. See Skilling, 561 U.S. at 382 n.14; see also Savage, 2012 WL 2376680, at *4 (citing United States v. Diehl-Armstrong, 739 F.Supp.2d 786, 793 (W.D. Pa. 2010)). In this case, there was nothing before the state courts to suggest media interference with the courtroom proceedings. Therefore, this factor also did not weigh in favor of a transfer.

Applying the factors outlined above, petitioner did not show that the state court's denial of his claim of presumed prejudice necessitating a transfer was an unreasonable application of clearly established federal law or the result of a decision based on an unreasonable determination of the facts. This conclusion, however, does not end the analysis on this claim as this Court must next analyze whether actual prejudice infected petitioner's jury. See Skilling, 561 U.S. at 385; see also Savage, 2012 WL 2376680 at *3 (noting distinction between presumed prejudice and actual prejudice with respect to changing venue based on pretrial publicity).

Where there is an absence of facts demonstrating presumed prejudice, a petitioner must show actual prejudice such that those who served on the jury could not reach an impartial verdict based solely on the evidence produced at trial. See Patton v. Yount, 467 U.S. 1025, 1035 (1984), citing Irvin, 366 U.S. at 723); see also Rock, 959 F.2d 1237 ("In the absence of a showing of an `utterly corrupt' trial atmosphere, the defendant, in order to demonstrate a violation of his right to an impartial jury, must establish that those who actually served on his jury lacked a capacity to reach a fair and impartial verdict based solely on the evidence they heard in the courtroom.") (citations omitted). As the Supreme Court has noted:

Irvin, 366 U.S. at 722-23 (citations omitted); see also Rock, 959 F.2d at 1253 ("The fact that jury members may have been exposed to press reports or other community reaction concerning the case and even the fact that they may have formed a tentative opinion based on that exposure will not establish a constitutional violation if the trial court has found, with record support, that each of the jurors was able to put aside extrinsic influences.").

A review of the voir dire indicates that the state court's denial of this claim did not run afoul of § 2244(d)(1) or (2). One potential juror indicated at sidebar that he had read in the paper that this case was a retrial. (See Dkt. No. 10-5 at p. 15.) That juror was promptly excused. (See id. at p. 16.) Another juror indicated at sidebar that she had prior knowledge of what occurred. (See id. at p. 18.) It is unclear whether this prior knowledge was from the pretrial publicity or from another source. However, this juror too was also promptly excused. (See id.) Subsequently, the trial judge made sure during voir dire that the remaining jurors did not have prior knowledge of this case on at least two occasions. First, the trial judge asked the potential jurors as follows, "[B]ut any of you, presently seated in the box, familiar with this case because of anything they've heard outside the courtroom? Anything at all outside the courtroom? Anybody know anything about this case because of anything they've heard outside the courtroom?" (Dkt. No. 10-5 at p. 45.) No prospective juror in the box responded in the affirmative according to the transcript. Subsequently, the trial judge was even more specific later on when he questioned the prospective jurors as follows:

(Dkt. No. 10-5 at p. 58.) No one responded in the affirmative to the trial judge's inquiry. Accordingly, a review of the voir dire transcript reveals that petitioner failed to show actual prejudice based on the pretrial publicity of his case. See Stevens v. Beard, 701 F.Supp.2d 671, 726-27 (W.D. Pa. 2010) (reviewing voir dire transcript and finding no actual prejudice where only three prospective jurors were dismissed for cause because they had a fixed opinion about the case based on the media coverage). Therefore, the denial of this claim by the state courts was not an unreasonable application of clearly established federal law nor was the decision based on an unreasonable determination of the facts as petitioner failed to show presumed prejudice and/or actual prejudice to the state courts based on pretrial publicity. Accordingly, petitioner is not entitled to federal habeas relief on this claim.

H. Claim VIII — Failure to Recuse

In Claim VIII, petitioner argues that the trial court erred in denying his motion to recuse. The Appellate Division denied this claim without discussion. Therefore, the last reasoned decision on this claim for purposes of AEDPA review is from the trial court.

At petitioner's retrial, the trial court issued a mistrial during the course of the voir dire of the first jury to be empaneled due to statements that one prospective juror made. More specifically, one prospective juror in that first jury pool on retrial stated that, "I got mugged by a nigger a couple of years ago, and if I get a chance to put a nigger away, I will." (Dkt. No. 10-4 at p. 32.) Subsequently, petitioner moved for a mistrial which was granted such that a new separate second jury was empaneled a week later. The trial judge stated the following in granting the motion for a mistrial due to this prospective juror's statements from the first jury that was empaneled:

(Dkt. No. 10-4 at p. 44-45.) After the second jury was empaneled the following week, petitioner argued that the trial judge should recuse herself based on the statements she had made in granting the mistrial the previous week. Indeed, petitioner's counsel argued as follows:

(Dkt. No. 10-5 at p. 4.) In denying petitioner's motion for recusal, the trial judge stated as follows:

(Dkt. No. 31-1 at p. 1.) In state court, petitioner argued that the trial judge was required to recuse herself based on New Jersey Court Rule 1:12-1 which requires recusal if the judge gives an opinion upon a matter in question in the action, is interested in the action or where there is any other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so. However, as described previously, it is not the province of this Court to examine state court determinations of state law. See Estelle, 502 U.S. at 67-68.

Nevertheless, "[a] fair trial in a fair tribunal is a basis requirement of due process." In re Murchison, 349 U.S. 133, 136 (1955). However, `"most matters relating to judicial disqualification d[o] not rise to a constitutional level.'" Martinez v. Stridiron, 538 F. App'x 184, 188 (3d Cir. 2013) (quoting FTC v. Cement Institute, 333 U.S. 683, 702 (1948)). "Due process requires recusal only when a judge `has a direct, personal, substantial, pecuniary interest in a case' or when there are `circumstances in which experience teaches that the [objective] probability of actual bias on the part of the judge or decisionmarker is too high to be constitutionally tolerable.'" Id. (quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876-77 (2009)).

In this case, the denial of this claim by the state courts was not an unreasonable application of clearly established federal law nor was the decision based on an unreasonable determination of the facts. In Liteky v. United States, 510 U.S. 540 (1994), the Supreme Court noted that, "opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment unfair." Id. at 555 (emphasis added). Indeed, the Supreme Court further noted in Liteky that "judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible." Id. Furthermore, and perhaps most relevant to this case, the Supreme Court explained that, "[a]lso not subject to deprecatory characterization are `bias' or `prejudice' are opinions held by judges as a result of what they learned in earlier proceedings. It has long been regarded as normal and proper for a judge to sit in the same case upon its remand, and to sit in successive trials involving the same defendant." Id. at 551. In Liteky, the Supreme Court gave an example of what kind of statement by a judge would require his recusal. The Court's example was a District Judge's statement in a World War I espionage case against German-American defendants that, `"One must have a very judicial mind, indeed, not [to be] prejudiced against the German Americans' because their "hearts are reeking with disloyalty.'" Id. (citing Berger v. United States, 255 U.S. 22, 28 (1921)).

In this case, the trial judge's statement in granting the motion for mistrial was based on facts introduced in the prior trial. They did not display a deep-seated favoritism or antagonism that would make fair judgment impossible or unfair. Indeed, the trial judge noted that she would not make such an opinion known to the newly empaneled jury, and noted that it was the jury, and not her who was the ultimate factfinder. Accordingly, based on these circumstances, petitioner has failed to show that he is entitled to federal habeas relief on this claim.

I. Claim IX — Ineffective Assistance of Counsel for Failure to Seek Suppression of Cigarette Butt

In Claim IX, petitioner argues that trial counsel was ineffective for failing to seek suppression of the cigarette butt that contained his DNA evidence. He asserts as follows in his habeas petition:

(Dkt. No. 1 at p. 8.) Thus, petitioner's claim on habeas review appears to be that the cigarette butt was not found at the crime scene, but instead was a cigarette butt that the police found when they subsequently searched petitioner's dwelling.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984), the Supreme Court articulated the test for demonstrating an ineffective assistance of counsel claim. First, the petitioner must show that considering all of the circumstances, counsel's performance fell below an objective standard of reasonableness. See id. at 688; see also Ross v. Varano, 712 F.3d 784, 798 (3d Cir.2013). Petitioner must identify acts or omissions that are alleged not to have been the result of reasonable professional judgment. See Strickland, 466 U.S. at 690. The federal court must then determine whether in light of all of the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance. See id.

Second, a petitioner must affirmatively show prejudice, which is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." See id. at 694; see also McBride v. Superintendent, SCI Houtzdale, 687 F.3d 92, 102 n. 11 (3d Cir.2012). "With respect to the sequence of the two prongs, the Strickland Court held that `a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.'" Rainey v. Varner, 603 F.3d 189, 201 (3d Cir.2010) (quoting Strickland, 466 U.S. at 697).

Additionally, in assessing an ineffective assistance of counsel claim under AEDPA, the Supreme Court has noted that:

Harrington, 562 U.S. at 101 (internal quotation marks and citation omitted) (emphasis in original).

Petitioner raised this claim in his post-conviction relief ("PCR") petition. The last reasoned decision on this Claim was from the Appellate Division during petitioner's PCR proceedings. The Appellate Division analyzed this Claim as follows:

(Dkt. No. 9-22 at p. 2-3.)

The denial of this claim by the state courts was not an unreasonable application of clearly established federal law. The Appellate Division cited to and applied the Strickland test to determine whether the PCR court properly denied this Claim. It specifically relied on the reasons given by the PCR court. That Court also stated the correct Strickland standard. It then painstakingly cited to the trial transcript with respect to the cross-examination of Detective Skull. This was the Detective who was called to Perez's dwelling where the cigarette butt was discovered. Skull testified that it was these witnesses who discovered and subsequently turned over the cigarette butt to him. As the PCR court noted, there was nothing to suggest that these witnesses had access to petitioner's cigarette butts in his dwelling prior to turning the cigarette but over to Skull. Accordingly, as there was a lack of evidence suggesting that the witnesses had access to petitioner's cigarette butts from another location, the denial of this claim was not based on an unreasonable application of Strickland since there was no reasonable probability that the outcome of the trial would have been different had such an argument been made by trial counsel. Furthermore, petitioner fails to show that the denial of this claim was based on an unreasonable determination of the facts as the record does not suggest that these witnesses had access to petitioner's cigarette butts, other than that which was found on Perez's roof. Therefore, petitioner is not entitled to federal habeas relief on this claim.

J. Claim X — Ineffective Assistance of Counsel for Failure to Move to Suppress Voice Identification

In Claim X, petitioner argues that trial counsel was ineffective for failing to suppress the voice identification of petitioner by Mary Perez. More specifically, petitioner argues as follows:

(Dkt. No. 1 at p. 8-9.)

It appears that the Appellate Division denied this specific claim without discussion. Therefore, the last reasoned decision on this Claim for purposes of this Court's AEDPA review is from the PCR court which denied petitioner's PCR petition. That Court stated as follows in denying this Claim:

(Dkt. No. 10-16 at p. 24-27) (internal citations omitted).

As noted by the Superior Court, petitioner did in fact file a motion to suppress the voice identification at the police barracks. Thus, counsel was not ineffective since a motion to suppress was actually made. Furthermore, it appears as if there was an agreement not to refer to the voice identification by Perez at the police barracks. Petitioner does not note that the voice identification at the police station was used at trial. Accordingly, the state court's denial of this claim was not an unreasonable application of Strickland nor was the denial of this claim based on an unreasonable determination of the facts. Therefore, petitioner is not entitled to federal habeas relief on this Claim.

K. Claim XI — Ineffective Assistance of Counsel for Failing to Request Suppression of Evidence Following Illegal Arrest Because Arrest Warrant was Invalid

In Claim XI, petitioner claims that his trial counsel was ineffective for failing to seek to suppress the evidence that was obtained after he was arrested since the arrest warrant was invalid. More specifically, he argues:

(Dkt. No. 1 at p. 9.) The Appellate Division denied this claim during the PCR proceedings by stating as follows:

(Dkt. No. 9-22 at p. 5.) Indeed, the Superior Court laid out the factual and legal underpinnings giving rise to the Appellate Division's affirmance for denying this Claim by stating the following:

(Dkt. No. 10-16 at p. 27-31 (internal citations omitted).)

The state court's denial was not an unreasonable application of Strickland. The state court determined that the motion to suppress would have been denied such that there was no reasonable probability that the outcome of the proceeding would have been different. Indeed, as the state court noted, much of the evidence giving rise to the search of petitioner's dwelling (in which key evidence used at trial was seized) was discovered before and independent of petitioner's subsequent arrest. Accordingly, petitioner failed to show to that the state court unreasonable applied Strickland's prejudice prong by finding that petitioner had failed to show to a reasonable probability that the outcome of his proceeding would have been different. Thus, this Claim does not merit granting federal habeas relief.

L. Claims XII & XIII — Failure to Conduct Evidentiary Hearing During PCR Proceedings

In Claims XII and XIII, petitioner asserts that the PCR court erred in denying his PCR petition without first conducting an evidentiary hearing. According to petitioner, he made a prima facie showing that his Fourteenth Amendment right to a fair trial was violated. Furthermore, petitioner claims that he should have been awarded an evidentiary hearing during the PCR proceedings because trial counsel failed to suppress the cigarette butt due to a lack of chain of custody and because the detective lied about what he did with this evidence. (See Dkt. No. 1 at p. 9.)

As previously noted, petitioner is entitled to federal habeas relief for violations of the Constitution, laws or treaties of the United States. See 28 U.S.C. § 2254(a). Thus, claims based on state law error are not cognizable. See Estelle, 502 U.S. at 67-69. Furthermore, "the federal role in reviewing an application for habeas corpus is limited to evaluating what occurred in the state or federal proceedings that actually led to the petitioner's conviction; what occurred in the petitioner's collateral proceeding does not enter into the habeas calculation." Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998); see also Lambert v. Blackwell, 387 F.3d 210, 247 (3d Cir. 2004) ("[H]abeas proceedings are not the appropriate forum for Lambert to pursue claims of error at the PCRA proceeding."). Thus, petitioner's claim that he should have obtained an evidentiary hearing in his PCR proceedings before the state courts is not properly before this Court as a habeas claim. Accord Davis v. New Jersey, No. 12-5748, 2014 WL 2615657, at *17 (D.N.J. June 12, 2014); Vreeland v. Warren, No. 11-5239, 2013 WL 1867043, at *4 n.2 (D.N.J. May 2, 2013). Accordingly, petitioner is not entitled to federal habeas relief on this claims that the PCR court should have conducted an evidentiary hearing.

M. Petitioner's Traverse

Petitioner appears to raise a new claim in his Traverse. He asserts in his traverse that the search warrant issued lack probable cause. At the outset, the propriety of petitioner bringing this new claim in his traverse which was filed more than one year after the New Jersey Supreme Court denied certification on his PCR petition is questionable. See Ryan v. Hendricks, No. 04-4447, 2014 WL 268578, at *3 n.4 (D.N.J. Jan. 23, 2014) (explaining court will not consider new claims brought in reply in support of habeas petition where petitioner was provided with required Mason v. Myers, 208 F.3d 414 (3d Cir. 2000) notice made no effort to timely amend the petition). However, even if such a claim was properly before this Court, petitioner still would not be entitled to federal habeas relief on this issue. In Stone v. Powell, 428 U.S. 465 (1976), the United States Supreme Court held that, "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at trial." Id. at 494. This bar applies whether or not the claim is potentially meritorious. See Deputy v. Taylor, 19 F.3d 1485, 1491 (3d Cir. 1994).

Petitioner gives no indication that he did not have a full and fair opportunity to litigate this Fourth Amendment claim in the state courts. Thus, he fails to show that he is entitled to federal habeas relief on this claim, even if it is was properly raised before this Court.

N. Request for a Stay

Petitioner has also filed a request for a temporary stay of these proceedings. (See Dkt. No. 18.) The entirety of his request is as follows:

(Id.) Thus, it appears as if petitioner seeks a stay so that he can exhaust unexhausted claims.

A state prisoner applying for a writ of habeas corpus under § 2254 in federal court must first "exhaust[ ] the remedies available in the courts of the State," unless "(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1); see also Rose v. Lundy, 455 U.S. 509, 515 (1982). A petitioner must exhaust state remedies by presenting his federal constitutional claims to each level of the state courts empowered to hear those claims, either on direct appeal or in collateral post-conviction relief proceedings. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 847 (1999) (announcing the rule "requiring state prisoners to file petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State"); see also 28 U.S.C. § 2254(c) ("An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.").

Recognizing the complexities that face prisoners who must exhaust state remedies while complying with the one-year statute of limitations period for § 2254 habeas petitions as set out in § 2244(d)(1), the United States Court of Appeals for the Third Circuit has held that "[s]taying a habeas petition pending exhaustion of state remedies is a permissible way to avoid barring from federal court a petitioner who timely files a mixed petition [containing both exhausted and unexhausted claims]." Crews v. Horn, 360 F.3d 146, 151 (3d Cir. 2004). Indeed, the Third Circuit has stated that "when an outright dismissal could jeopardize the timeliness of a collateral attack, a stay is the only appropriate course of action." Id. at 154.

Since Crews, however, the United States Supreme Court has explained when a stay should be issued; specifically:

Rhines v. Weber, 544 U.S. 269, 277-78 (2005).

In this case, petitioner's request for a stay is devoid of any argument illustrating "good cause" for why he has failed to exhaust these general admittedly unexhausted claims. Furthermore, his stay request is completely lacking with respect to the specifics of these claims to show that they are potentially meritorious. Therefore, this Court will deny petitioner's request for a stay.

O. Petitioner's Request to Amend Habeas Petition

Petitioner has also filed a motion to amend his habeas petition. (See Dkt. No. 24.) In the request, petitioner seeks to add a claim that counsel was ineffective in failing to object to a jury instruction given by the trial judge. The jury instruction given to the jury that is at issue was as follows:

(Dkt. No. 10-12 at p. 5.) While Federal Rule of Civil Procedure 15 states that leave to amend should be freely given, the motion may be denied where there is undue delay, bad faith, dilatory motive, unfair prejudice, or futility of amendment. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (citing Foman v. Davis, 371 U.S. 178, 182 (1962); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)).

Generally, claims involving jury instructions in state criminal trials are matters of state law and are cognizable only if the instructions are so fundamentally unfair that they deprive a petitioner his rights to a fair trial and due process. See Henderson v. Kibbe, 431 U.S. 145, 154 (1977). Petitioner appears to argue that the above listed jury instruction left the jury with the impression that the petitioner had an obligation to answer to the charges by testifying in his own defense. However, this Court gleans nothing from the jury instructions, when read in full, that would give the jury such an impression. Indeed, the trial court specifically instructed the jury that petitioner had the right to remain silent and that his choice to remain silent should not enter into their deliberations in any way whatsoever. Accordingly, as the proposed claim by petitioner is meritless, his request to amend his habeas petition to add this claim would be futile such that the request to amend will be denied.

P. Petitioner's Motion to Compel

Petitioner has filed a renewed motion to compel. (See Dkt. No. 29.) In the motion, petitioner requests that the Court order respondent to supply a copy of petitioner's arrest warrant. Petitioner previously sought to have this Court compel respondent to produce the arrest warrant. In denying that first motion to compel without prejudice, this Court stated that respondent admitted that the arrest warrant was invalid. Furthermore, the Court explained it appeared that the actual arrest warrant would not be necessary to decide petitioner's claims. (See Dkt. No. 28 at p. 1.) The same holds true now for the reasons discussed supra why petitioner's ineffective assistance of counsel claims related to the arrest warrant do not merit federal habeas relief. Accordingly, the renewed motion to compel will be denied.

Q. 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). Applying this standard, this Court finds that a certificate of appealability shall not issue in this case.

V. CONCLUSION

For the foregoing reasons, petitioner's habeas petition will be denied and a certificate of appealability shall not issue. Furthermore, petitioner's request for a stay and motion to compel will be denied. An appropriate order will be entered.