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Purnell v. Hendricks

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY


October 16, 2000

BRAYNARD PURNELL, PETITIONER,
v.
ROY L. HENDRICKS, ADMINISTRATOR, NEW JERSEY PRISON, TRENTON, NEW JERSEY, AND PAUL H. ZOUBEK, ACTING ATTORNEY GENERAL OF NEW JERSEY, RESPONDENTS.

The opinion of the court was delivered by: Irenas, District Judge

HONORABLE JOSEPH E. IRENAS

OPINION

Presently before this Court is petitioner Braynard Purnell's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently incarcerated in the New Jersey State Prison, P.O. Box 861, Trenton, New Jersey 08625. For the following reasons, petitioner's application is denied.

I. FACTS

Petitioner Braynard Purnell was implicated in the August 26, 1988, killing of alleged drug dealer Lawrence Talley in West Atco, New Jersey. Although no eyewitnesses were present, the State prevailed on the theory that petitioner stabbed Talley during an attempted drug transaction and hid the body in a hedgerow in his backyard. See State v. Purnell, 601 A.2d 175, 177-78 (1992).

On February 14, 1990, petitioner was convicted, in the New Jersey Superior Court, Law Division, of capital murder, hindering apprehension, and perjury. (Pet. ¶¶ 1-4). On March 23, 1990, petitioner was sentenced to death on the capital murder charge, which was merged with a charge for possession of a weapon for an unlawful purpose. (Answer at 2). On the hindering apprehension and perjury convictions, petitioner was sentenced to five years with a two year parole disqualifier and a flat five year term, both to be served consecutive to the death sentence but concurrently with each other. (Answer at 2).

On appeal, the New Jersey Supreme Court vacated petitioner's death sentence, but affirmed his convictions for non-capital murder, hindering apprehension, and perjury. Purnell, 601 A.2d at 177. The government decided not to re-try petitioner for capital murder, but moved for resentencing on the non-capital murder count. Petitioner was resentenced to life imprisonment with a 30-year parole disqualifier. (Answer at 2).

On March 4, 1995, petitioner filed his only petition for post-conviction relief in the New Jersey Superior Court, Law Division, Camden County, alleging that he was denied his Sixth and Fourteenth Amendment rights to effective assistance of counsel. (Pet. ¶ 11). The Law Division judge held an evidentiary hearing on the issue of whether counsel was ineffective in not subpoenaing a witness, and on December 1, 1995, denied petitioner's motion. (Answer at 4).

On March 20, 1998, the New Jersey Superior Court, Appellate Division, affirmed the denial of the ineffective assistance of counsel claim, but vacated petitioner's perjury conviction. (Answer at 4). On June 17, 1998, the New Jersey Supreme Court denied petitioner's application for certification, but granted the State's petition regarding the vacated perjury conviction. The State's petition is currently pending. On April 9, 1999, petitioner filed the instant application for a writ of habeas corpus with this Court.

In his instant application, petitioner seeks relief from the Court based on nine grounds. He claims that: (1) he was denied his Sixth and Fourteenth Amendment rights to counsel when his attorney could not appear on three separate occasions for jury selection and instead sent another attorney; (2) he was denied his Constitutional right to a fair trial and effective counsel when his attorney failed to subpoena a witness or request a continuance when the witness did not appear for trial; (3) he was denied his Constitutional right to a fair trial when the trial court did not charge the lessor-included offense of passion/provocation manslaughter; (4) he was denied his Constitutional right to a fair trial and impartial jury when the trial court failed to ask the prospective jurors whether they may be prejudiced against defendant because of his race; (5) he was denied his right to due process when the trial court used unsworn jury questionnaires; (6) he was denied his Constitutional right to effective assistance of counsel because his attorney's performance at both stages of the trial was deficient; (7) he was denied his Constitutional right to a fair trial because of the prosecutor's improper conduct during the guilt phase summation; (8) he was denied his right to due process and a fair trial when the trial judge refuse to question the jurors after a newspaper article appeared indicating that the jury had considered petitioner's failure to testify as evidence of his guilt; and (9) he was denied his Sixth and Fourteenth Amendment rights to effective counsel when counsel failed to argue that his statement should have been suppressed because it was obtained after he requested that questioning be stopped. (Pet. ¶ 12).

II. DISCUSSION

A. Exhaustion

Before filing a § 2254 habeas application, a petitioner must exhaust the available state remedies. 28 U.S.C. § 2254(b)(1)(A). The burden of proving that all state remedies have been exhausted rests with the petitioner. Santana v. Fenton, 685 F.2d 71, 73 (3d Cir. 1982). Section 2254 of Title 28, United States Code provides: "An applicant shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." If any of the claims presented are not exhausted, the entire petition is deemed "mixed" one and must be dismissed. Rose v. Lundy, 455 U.S. 509, 510 (1982).

To satisfy the exhaustion requirement, a petitioner must "fairly present" his claims to the highest state court. Picard v. Connor, 404 U.S. 270, 275 (1971). A claim is considered "fairly presented" when petitioner "demonstrate[s] that [he] has presented the legal theory and supporting facts asserted in the federal habeas petition in such a manner that the claims raised in state courts are substantially equivalent to those asserted in federal court." Henderson v. Frank, 155 F.3d 159, 166 (3d Cir. 1998). In Picard, the Supreme Court stated, "(w)e do not imply that respondent could have raised the (constitutional) claim only by citing book and verse on the federal constitution ... We simply hold that the substance of a federal habeas corpus claim must first be presented to the state courts." Picard 404 U.S. 270, 278 (1971)(citation omitted).

More recently, in Duncan v. Henry, 513 U.S. 364 (1995), the Supreme Court, expanding its holding in Picard, held that in order for a federal law claim to be "fairly presented," the petitioner had to allege his claim as a violation of federal law in the course of his state court proceedings. In Duncan, the Court reviewed a Ninth Circuit case where petitioner had asserted a claim in state court without making reference to federal law and then asserted the same claim in his federal habeas application as a violation of his constitutional due process rights. The Court reversed the Ninth Circuit's holding that petitioner had exhausted the claim, stating:

If state courts are to be given the opportunity to correct alleged violations of its prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court but in state court. 513 U.S. at 365-6.

Following Duncan, the Third Circuit interpreted the Court's holding as a reaffirmation of Picard and Anderson v. Harless, 459 U.S. 4, 6 (1982), which held that to fairly present a federal law claim the petitioner must do so in a manner that puts the state court on notice that a federal claim is before it. McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999). The Third Circuit's narrow holding was that the petitioner had not exhausted his "double hearsay" claim as his state court claim "made no reference to a constitutional or federal right and cited only state cases considering state evidence law without employing any constitutional analysis." Id. at 262. However, more generally, the Circuit held that a federal law claim is fairly presented if the claim had one of the following four elements in the state court pleadings even if petitioner did not refer to the specific appropriate portions of the Constitution:

(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation. McCandless, 172 F.3d at 261 (quoting Evans v. Court of Common Pleas, Del. County, Pa., 959 F.2d 1227 (3d Cir. 1992)).

In the instant case, the Government argues that petitioner has failed to exhaust Grounds Five and Eight of his application because he did not "raise them in federal constitutional terms in state courts." (Gov't Brief at 5.) In Ground Five of petitioner's application he states, "The Court's use of an unsworn jury questionnaire to expose individual Juror biases and prejudices in lieu of individual Voir Dire in most areas violated Defendant's Due Process of law." Petitioner further explains, "[t]he Trail [sic] judge used the Jury questionnaire in lieu of voir dire in many instances. The procedure was so unreliable as to violate defendant's Constitutional Rights to an impartial Jury and Due process of law." The Government argues in their brief that Ground Five is not exhausted because it was alleged to the state court only under New Jersey law and that the use of the term "due process" is not enough to connote a claim under the Constitution of the United States.

Ground Five of petitioner's current petition was alleged as Point Two in his brief to the New Jersey Supreme Court. Point Two claimed "[t]he trial court's use of an unsworn jury questionnaire to expose individual juror biases and prejudices in lieu of individual voir dire in most areas violated New Jersey Court rule 1:8-3(a) and denied Mr. Purnell Due Process of law." (Petitioner's Brief, Table of Contents.) In the "Legal Argument" section of his brief, petitioner not only alleges this claim under New Jersey law but also relies on specific portions of the Constitution and federal law. The following are passages from Petitioner's Brief:

Defendant would submit that not only was this procedure in violation of R. 1:8-3(a), which requires that voir dire be `under oath,' but also that the procedure was so unreliable as to violate his constitutional rights to an impartial jury and due process of law. The Sixth Amendment to the United States Constitution ... guarantee to criminal defendants `the right to ... trial by an impartial jury.' (Pet'r at 49.)

Since the demands of due process under the Federal Constitution as well as the New Jersey Constitution require that a defendant in a criminal prosecution be given a fair trial by an impartial jury.... (Pet'r 55.)

...the Federal and State Constitutional right to be fairly tried by an impartial jury. (Pet'r at 56.)

Constitutional violations by their very nature cast so much doubt on the fairness of the trial process that, as a matter of law, they can never be considered harmless.

Additionally, petitioner cites State v. Bey, 112 N.J. 45, 95, citing the Supreme Court's decision in Satterwhite v. Texas, 486 U.S. 249 (1988) and relies on other state cases analyzing constitutional issues. (Pet'r at 56.)

It is quite clear from the passages above, that petitioner not only relies on state law and his rights under the state constitution but also consistently asserts his rights under the United States Constitution. Recent courts have been satisfied that a petitioner's claims were exhausted with far fewer references to federal law than the present petitioner. In Keller v. Larkins, 89 F. Supp. 2d 593 (E.D.Pa. 2000), the defendant filed a habeas corpus application pursuant to § 2254 in which he alleged the admission of certain evidence prejudiced his trial. Defendant protested that admission of this evidence deprived him of a fair trial. Throughout defendant's state briefs he also called upon his right to a fair trial. Id. at 598. The court held that petitioner had exhausted his claim even though he never "explicitly cited the federal due process clause," but only "consistently referred to his right to a fair trial." Id. at 598. See also Hameen v. State of Delaware, 212 F.3d 226 (3d Cir. 2000)(holding petitioner had exhausted his claim because in his brief to the state supreme court he supported his claim by citing to a Supreme Court case that addressed the Eighth Amendment). Here, as in Keller, petitioner has made clear that he was alleging his claim under both state and federal law. Accordingly, the Court finds that Ground Five has been fairly presented, and, thus, exhausted.

In Ground Eight petitioner claims, "[t]he Judge erred in refusing to question the jurors after a newspaper article appeared indicating that the jury had considered defendant's failure not to testify as evidence of his guilt." For similar reasons we find petitioner exhausted Ground Eight.

In petitioner's brief to the New Jersey Supreme Court, Ground Eight was alleged as Point Seventeen, in which he made an identical assertion to that quoted above. Petitioner's brief to the New Jersey Supreme Court states:

Defendant would submit that his right to a fair trial and his Fifth Amendment right not to be penalized for declining to testify both demand that a new trial be ordered, or that the jurors be interrogated.

It does not matter here whether the jury actually used the defendant's failure to testify as evidence of his guilt; the mere fact that it may have considered his exercise of his constitutional right is in itself grounds for a new trial. (Pet'r Brief at 198.)

Based on the analysis of Ground Five and the holding of McCandless, the Court finds petitioner's claim to have been fairly presented as a federal law claim to the state court.

Although the New Jersey Supreme Court treated these claims as ones arising under state law, *fn1 petitioner's brief did clearly "fairly present" these claims in a constitutional context to the state court. "Exhaustion does not require that the highest state court actually rule on the merits of a petitioner's claims, it does require that the court be given the opportunity to review them." Lines v. Larkin, No. 97-2050, 1997 WL 727501, at *2 (E.D. Pa. 2000)(quoting Bond v. Fulcomer, 864 F.2d 306 (3d Cir. 1989)). The Court finds that the state court was given the opportunity to review Grounds Five and Eight as federal constitutional claims. Thus, the Court finds that both claims have been exhausted.

As a final issue in the exhaustion arena, under Ground Nine, petitioner claims that his attorney was ineffective because he failed to argue that petitioner's statement be suppressed when police allegedly re-initiated questioning after he had asked to end questioning. Although respondents do not challenge this claim as unexhausted, the Court finds that this claim was not alleged in the proceedings. Moreover, as respondents argue on the merits of this claim, the record is clear that petitioner's attorney did move to have the statement suppressed. (Transcript, Nov. 8, 1989 at 72-6 to 74-3.) "In addition, a district court may deny a claim on its merits despite non-exhaustion `if it is perfectly clear that the applicant does not raise even a colorable federal claim.'" Evans v. Court of Common Pleas, 959 F.2d 1227, 1231 (3d Cir. 1992) (quoting Granberry v. Greer, 481 U.S. 129, 135 (1985)). Furthermore, pursuant to 28 U.S.C. § 2254 (b)(2), if the Court finds petitioner's claims to be without merit the Court may deny the petition even if a claim presented is unexhausted. Because the one claim that is unexhausted is based on a false premise and is thus per se meritless, the Court will deny petitioner's Ground Nine claim on its merits and address the rest of the exhausted claims on their merits.

B. Merits

Petitioner's petition, filed on April 9, 1999, is governed by the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which became effective on April 24, 1996. The AEDPA creates the following standard which federal courts must apply when reviewing habeas petitions brought by state prisoners:

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 proceedings 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 determined by the Supreme Court, or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d).

In Hameen v. State of Delaware, 212 F.3d 226 (3d Cir. 2000), the Third Circuit employed the AEDPA standard of review as interpreted by the Supreme Court in Williams v. Taylor, --U.S.--, 120 S.Ct. 1495 (2000).

The Court in Williams v. Taylor held that `[u]nder the contrary to clause a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on set of materially indistinguishable facts.' Williams v. Taylor further held that `[u]nder the unreasonable application clause, a federal habeas court may grant the writ if the state court identifies the correct legal principle from [the Supreme] Court decisions but unreasonably applies that principle to the facts of the prisoner's case.' The `unreasonable application' inquiry requires the habeas court to `ask whether the state court's application of clearly established federal law was objectively unreasonable.' Thus, under the `unreasonable application' clause, a `federal habeas court may not issue the writ simply because that 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.' Hameen, 212 F.3d at 235 (quoting Williams, 120 S.Ct. at 1521-23).

1. Effective Assistance of Counsel

In Grounds One, Two, Six and Nine *fn2 , petitioner argues that he received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments. Petitioner claims that his counsel was ineffective because (1) his attorney did not appear on three occasions during jury selection and instead sent partners or associates who were allegedly unfamiliar with the facts of the case (Ground One); (2) his attorney failed to subpoena a potential defense witness, Gary Bey, or request a continuance when Bey failed to appear for trial (Ground Two); and (3) his attorney's performance at both stages of trial "was so deficient in its entirety" (Ground Six). Petitioner bears the burden of proving his claim of ineffective assistance of counsel. United States v. Baynes, 622 F.2d 66, 69 (3d Cir. 1980).

In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court laid out the elements of a claim for ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from the breakdown in the adversary process that renders the result unreliable. See also Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996).

With regard to the first prong, the Supreme Court explained that the defendant "must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. For this prong, there is a strong presumption that counsel's conduct was reasonable. Id. at 689. As to the second prong, it held that "the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

The New Jersey Supreme Court only addressed the equivalent of Ground Two and the several claims under the umbrella of Ground Six in their opinion. *fn3 Ground One (formerly Point IV), while alleged, was not addressed by the court. *fn4 In Ground One petitioner claims that he was deprived of effective assistance of counsel because his attorney was absent on "three occasions" during jury selection and was covered by a partner and an associate who "[were] not familiar with the relevant law governing jury selection in capital cases." *fn5 (Pet'r Application.) Respondents argue that this claim is meritless.

The Court has reviewed the transcript and sees no evidence that Mr. Garcia was unfamiliar with the facts of this case or the law. In fact, Mr. Garcia was present on three occasions *fn6 during the first jury selection *fn7 and even participated in the voir dire in Mr. Denker's presence during that first selection *fn8 .

On the first prong of the Strickland test, petitioner must show that the attorney's behavior fell below an objective standard of reasonableness. Mr. Denker's having an associate who had been working with him on the case and had been present in court with him on several occasions fill in for him for one and a half days is not objectively unreasonable. The Court not only finds that it was not unreasonable for Mr. Denker to have Mr. Garcia conduct portions of the voir dire, but also finds that Mr. Garcia's performance did not fall below an objective standard of reasonableness. In other cases where the conduct of the attorney during jury selection was challenged as ineffective the courts have consistently found that the "methods of jury voir dire are subjective and individualistic." Meeks v. Moore, No. 98-3693, 2000 WL 827317, at *21 (11th Cir. 2000)(internal quotation omitted). In Meeks, the Eleventh Circuit agreed with the state court's finding that the transcript showed no deficiencies. Id. In United States v. Dent, the petitioner alleged that counsel should have followed up the questioning of several jurors during voir dire because they had responded in the affirmative to having a relative who had participated in a criminal case or had answered "I don't know" to whether the fact that they had known people who had been affected by drugs could effect their ability to be impartial. No. CIV.A. 99-2878, 1999 WL 717114, at *6 (E.D.Pa. 1999) The court found that because the jurors stated that they were capable of being objective and impartial that the claim of ineffective assistance of counsel had to fail. Id. In this case, the Court finds that Mr. Garcia asked appropriate questions and conducted himself in a similar way to Mr. Denker during questioning. The Court sees no deficiencies in either of their performances during jury selection.

Secondly, even if it were objectively unreasonable for Mr. Garcia to have substituted for Mr. Denker during voir dire, and Mr. Garcia had fallen below an objectively reasonable standard, that would not be enough to sustain an ineffectiveness claim. Petitioner would still need to satisfy the second prong of Strickland. In order to establish prejudice, petitioner would have to come forward with evidence that if Mr. Garcia had not filled in for Mr. Denker, the outcome of the trial would have been different. Petitioner has put forth no such evidence.

In Ground Two, (formerly Point VI), petitioner claims that he was denied effective assistance of counsel because his attorney failed to subpoena Gary Bey, "the main defense witness, or request a continuance when Mr. Bey failed to appear for trial." (Pet'r App.). While the state supreme court did address this claim, it failed to make a ruling on it. Therefore the Court will again use Strickland to analyze the effectiveness of counsel. Similar to the state supreme court, this Court cannot know for sure what effect the witness would have had on the trial. Purnell, 601 A.2d at 184. However, in order to succeed on this claim, petitioner has the burden of showing that had this element been different, the outcome of his trial would have been different.

Petitioner argues that Mr. Bey's testimony was needed to establish that the victim was seen alive after the time at which the prosecution claimed petitioner killed him. He further claims that because Mr. Denker promised to present two witnesses to establish this and only presented one, his trial was unfair due to the Mr. Denker's ineffectiveness. The State argues that counsel made a good faith effort to obtain the testimony of Gary Bey; that Gary Bey had promised to testify the day the defense rested; and that Mr. Denker made a strategic decision not to try the jury's patience on the last day by asking for a continuance when he had identical testimony from a witness counsel found less "shifty."

The Court has reviewed the transcript of Mr. Denker's opening remarks and the transcript of Mr. Denker's testimony during the post-conviction hearing. In his opening remarks, Mr. Denker did mention that he would present two witnesses on this point: "You're going to hear from two people who say they saw Lawrence Tally at midnight at The Lake, which is a bar, a club where they shoot pool in Atco." And in summarizing he said, "There are other witnesses that say they saw Lawrence Tally at The Lake at midnight." (Transcript of Trial, January 30-31, 1990 at 49, 51). In looking at Mr. Denker's statements to the jury, the Court notes that he did not specifically promise Gary Bey or even mention him by name. He also did not hinge his whole defense on having specifically two witnesses who will say X, Y, and Z, nor did he emphasize the upcoming testimony of these witnesses. Both references to this testimony were within a list of other evidence to be presented that would contradict the State's time-line of events. Counsel said there would witnesses to say they saw Mr. Tally at The Lake at midnight, and he provided one. In McAleese v. Mazurkiewicz, 1 F.3d 159 (3d Cir. 1993), the Third Circuit addressed the question of whether the attorney was ineffective based on statements he made in his opening. The court stated, "[t]he failure of counsel to produce evidence which he promised the jury during his opening statement that he would produce is indeed a damaging failure sufficient of itself to support a claim of ineffectiveness of counsel." Id. at 166. However, the court continued,

[t]he rationale for holding such a failure to produce promised evidence ineffective is that when counsel primes the jury to hear a different version of the events from what he ultimately presents, one may infer that reasonable jurors would think the witnesses to which counsel referred in his opening statement were unwilling or unable to deliver the testimony he promised. Id. at 166-7.

The court then looked at the attorney's opening remarks and held the district court erred in holding that counsel was ineffective for failing to fulfill promises made to the jury. In so holding, the court noted that the attorney's opening remarks were not specific in its promises but "merely summarized evidence that was later produced from which a jury could be left with a reasonable doubt. Trial counsel did not promise the jurors that they would hear any evidence they did not." Id. The same is true in the instant case. Here, counsel spoke of no evidence during his opening that was not produced during the trial. The fact that he did not present the jury with two witnesses may have had an effect on petitioner's trial, but the Court does not find that it influenced petitioner's trial so much as to be the "but for" cause of his guilty verdict.

Furthermore, in Mr. Denker's testimony during the post-conviction relief hearing, he explained the difficulty he encountered in reaching Mr. Bey, the reason why he was not officially subpoenaed a second time for the trial, and the efforts put forth to find Mr. Bey when he did not show up at the Courthouse when he was scheduled to testify. Mr. Denker also explained why he did not feel the testimony was necessary since the identical testimony was given by a different witness. The Court finds that Mr. Denker's response to Mr. Bey's absence at the trial was not objectively unreasonable and it did not prejudice the trial so much that the jury verdict is unreliable.

On Ground Six (formerly Point XVI), petitioner alleges a series of claims that his counsel's performance was "so deficient" that he was deprived of effective assistance of counsel. He claims that: 1) counsel did not object to the acceptance of unsworn jury testimony (formerly Point XVI); 2) his attorney's firm had formerly represented a state's witness (formerly Point IV); 3)counsel did not request and questions regarding racial prejudice during voir dire (formerly Point XVI); and 4)counsel did not ask the court to charge passion/provocation manslaughter (formerly Point XVI). As to the latter two claims, the state court addressed them as due process/fair trial claims, as they were separately alleged. For these claims, as noted above, the Court will review the record and the Supreme Court of New Jersey's opinion and apply both the AEDPA and Strickland tests outlined above.

1. Unsworn Jury Questionnaires

On the first prong of Strickland, petitioner would have to show that counsel's behavior was objectively unreasonable. Counsel did not object to the use of unsworn jury questionnaires. The record shows that after the potential jury members completed their questionnaires they were sworn in and interviewed individually on the answers to the questions on the questionnaire. When the New Jersey Supreme Court addressed petitioner's claim that the court violated his due process rights by using unsworn questionnaires, *fn9 the court held:

[w]e are satisfied as well that the use of an unsworn jury questionnaire as a preliminary basis for selecting jurors does not violate our jury-selection procedures. Each of the jurors was sworn and examined under oath in respect of the answers set forth in the questionnaire. State v. Purnell, 601 A.2d at 183.

As both the New Jersey Supreme Court and other courts have held, unsworn jury questionnaires are appropriate. In Kontakis v. Beyer, the Third Circuit rejected the claim that "the use of a written questionnaire that was `to be completed out of the presence of counsel and the court'" violated petitioner's constitutional rights. 19 F.3d 110, 118 (3d Cir. 1994)(citation omitted). The court found the voir dire constitutional because the transcript showed that each potential juror was "patiently questioned" after they completed the written questionnaire, petitioner's attorney could present questions to the potential juror to "clear up any misunderstanding resulting from [the] written answers" and petitioner's attorney had the opportunity to challenge the jury "composition." 19 F.3d at 118 (citation ommitted). In this case, the same is true. The transcript reveals the trial court with the assistance of the prosecutor and petitioner's attorney conducted a patient inquiry with each potential jury member at which time the potential jurors were sworn in. The Court finds that the use of the unsworn jury questionnaires was reasonable. Therefore, counsel's failure to object to the questionnaires was not objectively unreasonable.

On the second prong of Strickland, petitioner would need to show that the alleged conduct of counsel was not only objectively unreasonable but also that it so prejudiced the proceedings that had the conduct not occurred the outcome would have been different. There is no evidence that petitioner's attorney's failure to object to the use of the questionnaire's was the "but for" cause of his guilty verdict.

2. Conflict of Interest

Petitioner argues his attorney was ineffective because he had a conflict of interest that resulted from the state's witness being a former client of his firm. On the first prong of the AEDPA test, the Court reviews the state court decision to examine if it is contrary to Supreme Court law. The state supreme court found:

Defendant argues that because the firm's interests would prohibit his lawyer from sharply cross-examining the firm's former client, the trial counsel's interest would be materially adverse to those of defendant. Before the trial began, the prosecutor informed the court of the potential conflict. Defendant was subsequently brought into the courtroom. He then stated that he was aware of his attorney's firm's prior representation of [James] Berry, and he consented to the attorney's continued representation. Defendant's argument is highly speculative. Nothing in the record suggests that defense counsel was prevented from serving as a vigorous partisan of defendant's interests. Berry's case was wholly unrelated to defendant's case. There was no indication that defense counsel was forced to choose between betraying Berry's confidances or compromising his duty to defendant by not cross-examining Berry fully and uninhibitedly. Defense counsel was not prevented from cross-examining Berry fully and he appears to have conducted his cross-examination ably. Moreover, defendant consented in open court to counsel's continued representation. Defendant now claims that his consent was thrust on him at the last moment and was neither knowing nor voluntary. However, defendant's consent appears on record, and there is no suggestion that he was coerced or deceived into consenting. Purnell, 601 A.2d at 183.

In Cuyler v. Sullivan, the United States Supreme Court established the test for evaluating a conflict of interest claim. 446 U.S. 335, 336 (1980). The Court held that a state trial court has the responsibility to investigate any timely objections to multiple representation, *fn10 that if the trial court does avail the petitioner of an opportunity to show that the conflict will result in an unfair trial, "a reviewing court cannot presume that the possibility for conflict resulted in ineffective assistance of counsel," and that if the defendant raised no objection at trial, in order to establish a constitutional violation, he must show that an actual conflict of interest adversely affected his lawyer's performance. Id. In this case, the defendant was given opportunity to object to his counsel and to be appointed new counsel. However, he expressed his desire to continue with his current counsel. As the Supreme Court of New Jersey ruled, in accord with the Supreme Court in Cuyler, the reviewing court cannot presume ineffective assistance of counsel when the defendant did not object at the time of the trial. Secondly, petitioner puts forth no evidence that there was an actual conflict of interest or that any such conflict prejudiced his trial. As the state supreme court pointed out, there is no reason to believe that petitioner's attorney gave him anything but a hearty defense. On the second prong, the Court asks if the application of clearly established federal law was objectively unreasonable. The federal law the state court would apply to this claim would be Strickland and Cuyler. In order to prove prejudice under Strickland, petitioner would need to prove that counsel "actively represented conflicting interests" and that the conflict "adversely affected his lawyer's performance." Cuyler, 446 U.S. at 350. See Neelley v. Nagle, 138 F.3d 917, 925 (11th Cir. 1998). In Hernandez v. Johnson, 108 F.3d 554, 558-560 (5th Cir 1997), the Fifth Circuit reviewed an identical situation. A potential conflict of interest was raised and the state court inquired and rejected the notion that there would be a conflict. The defendant was questioned in open court in a pre-trial hearing and acquiesced to his attorney's continued counsel. No evidence of the manifestation of an actual conflict of interest was put forth and under Cuyler, the court held that the state court's application was reasonable. In this case, the state supreme court, while acknowledging the potential for a conflict of interest, held that the record showed there was no actual conflict of interest. The Court finds this was not an unreasonable determination under the applicable law.

3. The Absence of Questions Concerning Race on Voir Dire

Petitioner argues that because he is black, his attorney should have questioned potential jurors regarding any racial prejudices they may hold that would keep them from being fair and impartial. Therefore, he claims, his attorney was ineffective. The state supreme court addressed the issue of whether the absence of questions on racial prejudice from the voir dire denied him a fair and impartial jury *fn11 and found: "[n]o one suggested that this crime was of an interracial nature, and nothing in the record indicates that racial issues were inextricably bound up with the conduct of the trial. Under those circumstances, we find that the voir dire on racial bias was adequate." Purnell, 601 A.2d at 183 (internal quotations omitted). In Ristaino v. Ross, 424 U.S. 589 (1976), the Supreme Court held that even in a black-on-white crime there was no constitutional right to have questions regarding racial prejudice included in the voir dire. This case directly responded to Ham v. South Carolina, 409 U.S. 524 (1973), in which the Court said it was a constitutional violation not to have included questions on racial prejudice when requested. However, in Commonwealth v. Ross, 296 N.E.2d 810 (1973), and Ristaino, the Court made clear that this is not an across-the-board requirement but instead is only applicable in very specific circumstances, as in Ham, where "[racial issues [] were inextricably bound up with the conduct of the trial." Ristaino, 424 U.S. at 597. "The Court reasoned that Ham turned on the need for questions about racial prejudice presented by its facts and did not announce `a new broad constitutional principle requiring that (such) questions... be put to prospective jurors in all State criminal trials when the defendant is black..." Ristaino, 424 U.S. at 594 (quoting Ross 296 N.E.2d at 815).

In the present case, the state court considered the facts of the case and found that race was not an issue of the trial and did not need to be on the voir dire. Given the holdings in Ristaino and Ross, the state court's holding was not contrary to constitutional law, nor was it an objectively unreasonable application of federal law. Petitioner was provided a fair and impartial jury, and it cannot be said that counsel was ineffective to a level that rises to prejudice as outlined in Strickland for not requesting the court include questions on racial prejudice.

4. Passion/Provocation Manslaughter

Petitioner claims that counsel was ineffective for not asking that passion/provocation manslaughter be included in the jury charge even though the victim was killed in a fight. The state court considered the question of whether it was error not to have charged passion/provocation manslaughter rather than whether it rendered counsel ineffective. The Court will address this question using the AEDPA and Strickland tests. The state supreme court, noted in its analysis of this question that the jury was given lesser offenses to consider, including aggravated manslaughter and reckless manslaughter. The state court also found that there were only a "few fragments of evidence that might suggest that the victim started the fight or engaged in mutual combat." Purnell, 601 A.2d at 186. In reviewing these few fragments, the court held that "[s]everal scratches and bruises when compared to fifteen stab wounds do not suggest mutual combat." Id. Thus, the state supreme court held that the trial court did not err in not charging passion/provocation manslaughter. The United States Supreme Court, in Beck v. Alabama, 447 U.S. 625 (1980), held that if the evidence can support a lesser, non-capital charge than the jury must be given that option. However, in this case it is reasonable to conclude, as the New Jersey Supreme Court did, that passion/provocation could not be supported by the evidence. Further, as the New Jersey Supreme Court noted, the jury was instructed on more appropriate, lesser, non-capital charges. Thus, the state supreme court's determination that it was not error for the trial court to instruct on passion/provocation manslaughter was not contrary to Supreme Court precedent. Further, in similar cases courts have found greater evidence than is found in this case inadequate to support passion/provocation. See State v. Perry, 590 A.2d 624; State v. Oglesby, 585 A.2d 916. Thus, the Court finds the state court's application of law objectively reasonable. Because passion/provocation could not have been supported by the evidence, the trial court was not in error for not charging it, and counsel was not ineffective for not requesting it be charged.

2. Right to a Fair Trial

On Grounds Two, Three, Seven and Eight petitioner argues he was denied the right to a fair trial. Petitioner contends that his trial was unfair because: (1) his attorney failed to subpoena Gary Bey or request a continuance when Bey failed to appear for trial (Ground Two); (2) the trial court did not include the lessor-included offense of passion/provocation manslaughter in its charge to the jury (Ground Three); (3) the prosecutor made improper comments in his summation during the guilt phase hearing (Grounds Seven); and (4) the trial judge failed to question the jury about a newspaper article stating that the jury considered Petitioner's failure to testify as evidence of his guilt (Ground Eight).

On Ground Two, petitioner claims that he was deprived of his constitutional right to a fair trial by his attorney's failure to subpoena a witness or request a continuance during that witness's absence. This claim is indistinguishable from the ineffective assistance of counsel claim brought by petitioner on the same grounds. Because the Court has already determined that Petitioner received constitutionally adequate assistance of counsel in this regard, it is not necessary to revisit the issue as a fair trial claim. The Court thus finds that petitioner suffered from neither ineffective assistance of counsel nor an unfair trial as a result of his attorney's decision to proceed without the testimony of Mr. Bey.

On Ground Three, petitioner contends that the trial court's failure to include a passion/provocation manslaughter charge deprived him of his constitutional right to a fair trial. As discussed above, the New Jersey Supreme Court held that the trial court did not err in failing to provide such a charge. Purnell, 601 A.2d at 186-7. Thus, under AEDPA, this holding may not be disturbed unless it was contrary to or based on an unreasonable application of Supreme Court precedent. 28 U.S.C. § 2254(d)(1).

"In the federal courts, it has long been `beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.'" Beck, 447 U.S. at 635. Here, as discussed above, it is reasonable to conclude that the evidence would not support a jury finding of passion/provocation manslaughter. Thus, the New Jersey Supreme Court's determination that the trial court did not err in withholding a passion/provocation manslaughter charge was consistent with and resulted from a reasonable application of established Supreme Court precedent. Under AEDPA, this Court, therefore, cannot disturb the state court's holding.

In Ground Seven, petitioner argues that improper comments by the prosecutor during his summation undermined the reliability of his conviction and deprived him of a fair trial. Specifically, he alleges that the prosecutor improperly: a) "criticized and disparaged defense counsel;" b) criticized defendant for "involving his children in the case;" c) instructed the jury that "in order to acquit the defendant, the jury must believe that all of the State's witnesses lied;" and d) referred to defendant's failure to take the stand. (Pet. at 12, G). The New Jersey Supreme Court examined these four contentions, and although it indicated that some of the remarks may have towed the line of permissible prosecutorial advocacy, it found that none was so outrageous as to deny petitioner a fair trial. Purnell, 601 A.2d at 185 (citation omitted).

In Darden v. Wainwright, 477 U.S. 168, 181 (1986), the Supreme Court articulated the standard of review for prosecutorial misconduct claims. The Court held that "[t]he relevant question is whether the prosecutors' comments so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id. at 181. This determination calls on reviewing courts to decide whether there is a "reasonable possibility" that the contested statements "might have contributed to the conviction." Chapman v. California, 386 U.S. 18, 23 (discussing the "harmless error" test articulated in Fahy v. State of Connecticut, 375 U.S. 85, 86-87 (1963)). However, the Supreme Court has since held that on collateral review of habeas cases, the habeas court must determine whether the error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). The Court has also indicated that improper statements must be examined within the context of the entire trial in order to determine if an individual is deprived of a fair trial. United States v. Young, 470 U.S. 1, 11-12 (1985).

Petitioner first contends that the prosecutor acted improperly when he "criticized and disparaged" defense counsel. As explained by the New Jersey Supreme Court, petitioner's claim amounts to one that

the prosecutor was accusing trial counsel of being a principal in the plot to deceive the jury when the prosecutor said in his closing argument "defense was obviously hurt by Dia's prior testimony and prior statements and they have to come up with some way to try to explain that away. *** But now they come up with this story, well, you know, I was mad. I was mad at Braynard [Purnell]." 601 A.2d at 185.

In analyzing this claim, that court found that "[e]ven if that statement could be read to refer to defense counsel, it is much too oblique to support defendant's claim that the prosecutor `improperly criticized and disparaged defense counsel.'" Id. This Court agrees and finds that the New Jersey Supreme Court decision was neither contrary to Supreme Court precedent nor an objectively unreasonable application of Supreme Court jurisprudence.

Petitioner next claims that the prosecutor improperly criticized the defendant for involving his children in his case. During his closing, the state's attorney told the jury "Frankly, ladies and gentlemen, I think it's sort of despicable the way this defendant involved his children in his plot." (Transcript of Trial, February 13, 1990 at 126). The prosecutor then went on to explain in detail the evidence suggesting that petitioner influenced his children. The New Jersey Supreme Court found that the use of the word "despicable" was "understandable when viewed in the context of this case." Purnell, 601 A.2d at 185. The court noted that the objectionable term was used only once, the remainder of the closing was "devoted to a fair review of the evidence", and the term proceeded a recount of evidence suggesting "an improper influence on the children." Id.

As discussed, the United States Supreme Court has instructed lower courts to analyze prosecutorial comments in the context of the entire trial to determine whether the comments objected to have deprived the petitioner of a fair trial. Young, 470 U.S. at 11-12. Here, as detailed above, the state court reasonably conducted such an examination in concluding that the prosecutor's comments were not improper when taken in context. See Purnell, 601 A.2d at 185. Accordingly, this Court finds that the state court's determination was both consistent with and a reasonable application of Supreme Court precedent.

Petitioner's third claim of prosecutorial misconduct involves the prosecutor's statement to the jury that in order to acquit the petitioner it must believe that all of the state's witnesses had lied. Specifically, the prosecutor told the jury that

I submit to you that in order to acquit this defendant you not only have to believe that these witnesses who came in here were mistaken.... You have to find that these witnesses came in here and lied to convict this defendant. And I submit to you that's what the defendant essentially would have to convince you of. (Transcript of Trial, February 13, 1990 at 89).

Later, he added, "I'm not going to stand here and tell you Arthur Ellison [a defense witness] is a liar, because I don't have to say that. Unlike the defendant with the State witnesses, I don't have to say Arthur Ellison is a liar." (Transcript of Trial, February 13, 1990 at 103). The New Jersey Supreme Court agreed with the state that the comment was "made in response to defense counsel's repeated attacks on the veracity of the State's witnesses...." Purnell, 126 A.2d at 185.

At the United States Supreme Court's urging to examine alleging improper statements in the context of the trial as a whole, courts have employed the "invited response" rule, which maintains that they must look not only at the impact of the prosecutor's remark but also at defense counsel's remarks. Young, 470 U.S. at 13. The Court has stated that "the import of the evaluation has been that if the prosecutor's remarks were invited, and did no more than respond substantially in order to right the scales" as tipped by the defense counsel's statements, such remarks would not unfairly prejudice the defendant. Id. at 13-14 (citations omitted). In this case, the New Jersey Supreme Court reasonably applied the "invited response" rule in concluding that the prosecutor's comments about the jury having to find all of the state's witnesses to be liars did not constitute misconduct in light of the defense attorney's repeated assault on the truthfulness of the state's witnesses. Thus, this Court cannot and will not disturb its holding.

Lastly, petitioner claims that the prosecutor improperly referred to his decision to exercise his constitutional right not to testify. The New Jersey Supreme Court outlined the three specific instances alleged: "[i]n one comment the prosecutor referred to defendants failure to explain how his sweatshirt was found at Marie Simmon's house, and in the other two comments the prosecutor referred to the various statements of defendant and his family." Purnell, 601 A.2d at 186. In addressing the issue of whether these comments were improper, the court found

[t]he comment on the sweatshirt was not a direct comment on defendant's failure to testify, but was at least partially in response to defense counsel's assertion during summation that Simmons had lied when she testified that defendant had come to her house Friday night. The two other comments were appropriate in the circumstances of this case. In short, there is no indication that the prosecutor sought to take advantage of defendant's failure to testify in this case. Id. at 185.

The Supreme Court has stated that unlike the situation in which the prosecutor invites the jury to draw an adverse inference from the defendant's failure to testify on his own initiative, where "the prosecutor's reference to the defendant's opportunity to testify is a fair response to a claim made by defendant or his counsel," there is no violation of the privilege against compulsory incrimination. United States v. Robinson, 485 U.S. 25, 32 (1988). In Robinson, the Court found no Fifth Amendment violation when the prosecutor mentioned testifying as one of several opportunities available to the defendant, contrary to the assertions of his attorney, to explain his case. Id. Here, in analyzing petitioner's first claim, regarding the prosecutor's comments on the defendant's failure to explain how his sweatshirt appeared at Marie Simmon's home, the New Jersey Supreme Court found that the statement was in part invited by defense counsel's own comments. Purnell, 601 A.2d at 185. In light of defense counsel's attack on the veracity of Ms. Simmons, a witness for the state, this Court finds that the New Jersey Supreme Court reasonably concluded that the prosecutor's comment in reference to the sweatshirt was a "fair response." In analyzing petitioner's latter two claims, the state court held that the comments referring to petitioner's and his family's statements were appropriate under the circumstances of the case. Having surveyed the record, this Court cannot say that this conclusion was directly contrary to Supreme Court precedent or an objectively unreasonable interpretation of such.

Consequently, as to all of petitioner's claims of improper comments by the prosecutor, this Court finds that the state court's determinations were neither contrary to Supreme Court precedent nor an objectively unreasonable application of Supreme Court jurisprudence.

On Ground Eight, petitioner claims that the trial judge erred in refusing to question the jury about a newspaper article in The Philadelphia Inquirer indicating that the jury had considered petitioner's failure to testify as evidence of his guilt. This ground was among those the New Jersey Supreme Court adverted to "only briefly." Purnell, 601 A.2d at 188. Without further discussion, the court held that "[t]he trial court did not err in denying defendant's motion for post-trial questioning of the jurors." Id.

"By the beginning of this century, if not earlier, the near-universal and firmly established common-law rule in the United States flatly prohibited the admission of juror testimony to impeach a jury verdict." Tanner v. United States, 483 U.S. 107, 117 (1987) (citations omitted). The United States Supreme Court, however, has carved out an exception where "an `extraneous influence' was alleged to have affected the jury." Id. (citations omitted)(indicating that the Court admitted testimony of jurors as to hearing and reading prejudicial matter not in evidence and on influence by others to impeach jury verdicts). *fn12 Here, petitioner contends that the trial judge should have questioned the jurors after a newspaper article quoted a female juror as stating "[h]e didn't say anything throughout the trial and some of us thought that if he was not guilty, he would have spoken." Although the jury may have drawn an improper inference from petitioner's refusal to testify, such an inference is neither an external or extraneous matter, and therefore is not a proper subject for post-conviction inquiry. Thus, the New Jersey Supreme Court correctly found that the trial court properly refused to indulge in such an inquiry. For the court to have held otherwise would have been contrary to and based on an objectively unreasonable interpretation of Supreme Court precedent.

3. Due Process and Impartial Jury

On Ground Four petitioner argues his rights to due process and an impartial jury were violated; on Ground Five petitioner contends that his right to due process was violated. Petitioner claims his rights were violated when the trial court: (1) failed to ask the prospective jurors if defendant's race would prejudice them (Ground Four); and (2) used unsworn jury questionnaires (Ground Five).

In Ground Four, petitioner argues that his right to an impartial jury and due process were violated by the trial court's failure to question prospective jurors about possible racial prejudice against petitioner. As discussed above, the New Jersey Supreme Court found that the voir dire on racial bias was adequate because the crime was not of an "interracial nature" and "nothing in the record indicates that racial issues were `inextricably bound up with the conduct of the trial.'" Purnell, 601 A.2d at 183 (citations omitted).

The Supreme Court, in Ham v. South Carolina, 409 U.S. 524 (1973), recognized that "some cases may present circumstances in which an impermissible threat to the fair trial guaranteed by due process is posed by a trial court's refusal to question prospective jurors specifically prejudice during Voir dire." Ristaino v. Ross, 424 U.S. 589, 595 (1976). However, the Court has made clear that a defendant does not always have a constitutional right to have the jury questioned as to all matters that might hypothetically prejudice them against him. Id. at 594. Rather, the Court has required questioning on racial prejudice only where racial issues are "inextricably bound up with the conduct of the trial." Id. at 597.

The Ristiano Court found that although the defendant was black and the victim was white, the need to question the veniremen about racial prejudice did not rise to constitutional dimensions under the facts of that case. Id. The Court distinguished those facts from the circumstances in Ham that mandated specific questions regarding racial prejudice to ensure an impartial jury: the defendant's local prominence as a civil rights activists and his defense that he was framed by law enforcement officials in retaliation for those activities. Id. at 595-97. According to the Ristiano Court, the mere fact that the victim was white and the defendants were black "was less likely to distort the trial than were the special factors involved in Ham." Id. at 597.

In his habeas petition, petitioner claims the trial court's "failure to ask Prospective Jurors [sic] any questions whatsoever to determine if they would be prejudiced against defendant because of his race violated his constitutional rights." (Pet. ¶ 12, D). However, as in Ristiano, petitioner can point to no aggravating factors necessitating inquiry into the racial attitudes of the veniremen. Further, in this case, unlike Ristiano, where the court found that the interracial nature of the crime was not sufficient to warrant inquiry into racial prejudice, both petitioner and the victim of alleged crime were black. Additionally, the Supreme Court has held that although

a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias.... a defendant cannot complain of a judge's failure to question the venire on racial prejudice unless the defendant has specifically requested such an instruction. Turner v. Murray, 476 U.S. 28, 36-37 (1986) (emphasis added).

Again, however, the instant case did not involve an interracial crime, and even if it did, the petitioner would be without recourse because he made no request for such questioning. Thus, this Court finds that the New Jersey Supreme Court's holding that the voir dire on racial bias was adequate was not contrary to or based on an objectively unreasonable application of Supreme Court precedent.

In Ground Five, petitioner asserts that the trial court's use of an unsworn jury questionnaires to expose juror's biases and prejudices rather than individual voir dire deprived him of due process. As discussed above, the New Jersey Supreme Court found that the use of such questionnaires as a preliminary grounds for choosing jurors was consistent with the state's jury-selection procedures because each juror was subject to examination under oath as to the answers therein. Purnell, 601 A.2d at 183.

However, as the Third Circuit noted in Kontakis, "[i]n assessing this argument, [this Court] do[es] not review the voir dire for violations of New Jersey law; rather [its] `authority is limited to enforcing the commands of the United States Constitution.'" 19 F.3d at 118 (citations omitted). As discussed above, the Kontakis court found that "the voir dire passed constitutional muster" because potential jurors were questioned orally after completing the questionnaires, defense counsel had an opportunity to submit questions to clarify any misunderstandings resulting from jurors's written responses, and the court allowed defense counsel the opportunity to challenge the jury composition. Id. Similarly, in this case, the trial court, with the prosecutor and petitioner's counsel, interviewed each juror under oath as he or she was sworn in. Thus, this Court finds that the trial court's use of unsworn jury questionnaires did not result in an unfair or prejudiced trial.

III. CONCLUSION

For the foregoing reasons, petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied. An appropriate order will issue on an even date herewith.

JOSEPH E. IRENAS, U.S.D.J.


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