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October 4, 2005.

TERRY MOORE, et al., Respondents.

The opinion of the court was delivered by: ANNE THOMPSON, Senior District Judge


This matter is before the Court on petitioner Lonnie Daniels' application for habeas corpus relief under 28 U.S.C. § 2254. For the reasons stated below, the petition for habeas relief will be denied for failure to make a substantial showing of a federal statutory or constitutional deprivation. I. BACKGROUND

  A. Procedural History

  Petitioner, Lonnie Daniels ("Daniels"), is presently confined at the South Woods State Prison in Bridgeton, New Jersey, serving a 45 year prison term, with a 22½ year parole disqualifier.

  On December 17, 1991, a Mercer County Grand Jury indicted Daniels on one count of robbery in the first degree; one count of burglary in the second degree; and one count of attempted aggravated sexual assault in the second degree. Daniels was tried by jury before the Honorable David J. Schroth, J.S.C. in a three-day trial in January 1993. The jury found Daniels guilty on the first degree robbery count, the second degree burglary count, and on a lesser-included offense on the third count, attempted aggravated criminal sexual contact in the third degree.

  On September 17, 1993, Judge Schroth sentenced Daniels. The court granted the State's motion for an extended term. In determining the sentence, the court reviewed the aggravating factors and found that factors one (the gravity and seriousness of the harm inflicted on the victim), six (the extent of his prior criminal record with serious criminal convictions), and nine (need for deterrence) were present. The court found no mitigating factors. Daniels was sentenced to 40 years in prison with a 20 year parole ineligibility on the robbery count, and a consecutive term of five years in prison with a 2½ year parole disqualifier on the third count. The court granted the defense counsel's motion to merge the burglary count into the robbery count for sentencing purposes.

  Daniels filed a direct appeal from this conviction and sentence, and the New Jersey Appellate Division affirmed both on June 9, 1995. The New Jersey Supreme Court denied certification on November 15, 1995. Daniels then filed his first state motion for post-conviction relief ("PCR"), which was denied after a hearing held before the Honorable Anthony J. Parillo, J.S.C. on February 7, 1997. On January 12, 1998, the Appellate Division reversed Judge Parillo's ruling and remanded the matter for a full evidentiary hearing.

  On June 28, 1999, the Honorable B. Thomas Leahy, J.S.C. conducted an evidentiary hearing on Daniels' PCR motion. Judge Leahy denied the motion that same day. On November 14, 2001, the New Jersey Supreme Court denied Daniels' petition for certification. See State v. Daniels, 170 N.J. 388 (2001).

  Daniels filed this federal habeas petition on or about September 16, 2002. After three extensions to file an answer were granted by this Court, the Court received respondents' motion to dismiss the petition as time-barred on August 4, 2003. This Court denied the respondents' motion, by Opinion and Order dated November 19, 2004 (Docket Entry Nos. 16 & 17), finding the petition was timely filed. The Court directed the respondents to file an answer to the petition, with the relevant record, within 45 days of the November 19, 2004 Order. The respondents filed their answer on January 3, 2005, together with the relevant state court record.

  B. Factual Background

  The facts of this case were recounted below and this Court, affording the state court's factual determinations the appropriate deference under 28 U.S.C. § 2254(e)(1), will simply reproduce the New Jersey Appellate Division's factual recitation:
At home in bed late at night, the victim heard an intruder inside the house. She called the police via 911, and while she was talking to the police dispatcher, the defendant suddenly appeared in the bedroom doorway. What followed was overheard on the open 911 line, including the victim's protestations and defendant's threats and demands. When the police arrived they proceeded upstairs, heard a struggle in the bedroom and found the victim, naked, and defendant with his hands on the victim's shoulders and neck area. The defendant was handcuffed and when searched, the victim's credit card was found. Both the victim and the dispatcher testified at the trial, providing a substantial basis for the jury to convict defendant of robbery, burglary and attempted assault by sexual contact.
(R42-43, Appellate Division opinion decided June 9, 1995).


  Daniels raises the following claims in his federal habeas petition:*fn1 Ground One: Daniels was denied effective assistance of trial counsel. (Petition, ¶ 12.A).

  Ground Two: Daniels was denied effective assistance of appellate counsel. (Pet., ¶ 12.B).

  Ground Three: The trial court erred in admitting the altered, prejudicial emergency 911 tape and transcript into evidence. (Pet., ¶ 12.C).

  Ground Four: The judge committed plain error when he permitted non-expert testimony. (Pet., ¶ 12.D).

  Ground Five: Daniels' sentence was excessive because of aggravating factors one and two. (Pet., ¶ 12.E).

  Ground Six: The trial court denied Daniels his right to a trial by jury and his due process right to a fair trial because of improper charges to the jury. (Pet., ¶ 12.F).

  Ground Seven: The cumulative effect of the errors complained of rendered the trial unfair. (Pet., ¶ 12.G).


  The Court recognizes that a pro se pleading is held to less stringent standards than more formal pleadings drafted by attorneys. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). Thus, a pro se habeas petition should be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Duarte v. Hurley, 43 F. Supp.2d 504, 507 (D.N.J. 1999). Because Daniels is a pro se litigant, the Court will accord his petition the liberal construction intended for pro se petitioners.

  Under § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), federal courts in habeas matters must give considerable deference to determinations of the state trial and appellate courts. See 28 U.S.C. § 2254(e); Duncan v. Morton, 256 F.3d 189, 196 (3d Cir.), cert. denied, 122 S.Ct. 269 (2001); Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996) (citing Parke v. Raley, 506 U.S. 20, 36 (1992)). Section 2254(d) sets the standard for granting or denying a habeas writ:
(d) 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 of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).

  In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court explained that subsection (d)(1) involves two clauses or conditions, one of which must be satisfied before a writ may issue. The first clause, or condition, is referred to as the "contrary to" clause. The second condition is the "unreasonable application" clause. Williams, 529 U.S. at 412-13. In the "contrary to" clause, "a federal court may grant the writ if the state 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 a set of materially indistinguishable facts." Id. Under the "unreasonable application" clause, a federal court may grant the writ if "the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of [the petitioner's] case." Id. at 413. Habeas relief may not be granted under the "unreasonable application" condition unless a state court's application of clearly established federal law was objectively unreasonable; an incorrect application of federal law alone is not sufficient to warrant habeas relief. Id. at 411. See also Werts v. Vaughn, 228 F.3d 178, 197 (3d Cir. 2000), cert. denied, 532 U.S. 980 (2001); Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 891 (3d Cir. 1999), cert. denied sub nom Matteo v. Brennan, 528 U.S. 824 (1999).

  Consonant with Williams, the Third Circuit has held that § 2254(d)(1) requires a federal habeas court to make a two step inquiry of the petitioner's claims. First, the court must examine the claims under the "contrary to" provision, identify the applicable Supreme Court precedent and determine whether it resolves petitioner's claims. See Werts, 228 F.3d at 196-97; Matteo, 171 F.3d at 888-891. If the federal court determines that the state court's decision was not "contrary to" applicable Supreme Court precedent, then the court takes the second step of the analysis under § 2254(d)(1), which is whether the state court unreasonably applied the Supreme Court precedent in reaching its decision. Werts, 228 F.3d at 197.

  This second step requires more than a disagreement with the state court's ruling because the Supreme Court would have reached a different result. Id. AEDPA prohibits such de novo review. Rather, the federal habeas court must determine whether the state court's application of the Supreme Court precedent was objectively unreasonable. Id. In short, the federal court must decide whether the state court's application of federal law, when evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent. Id.; see also Jacobs v. Horn, 395 F.3d 92, 100 (3d Cir. 2005).

  Finally, federal courts are required to apply a "presumption of correctness to factual determinations made by the state court." Id.; see also 28 U.S.C. § 2254(e)(1). The Third Circuit has ruled that this presumption of correctness based upon state court factual findings can only be overcome by clear and convincing evidence. See Duncan, 256 F.3d at 196 (citing 28 U.S.C. § 2254(e)(1)). Consequently, a habeas petitioner "must clear a high hurdle before a federal court will set aside any of the state court's factual findings." Mastracchio v. Vose, 274 F.3d 590, 597-98 (1st Cir. 2001).


  A. Ineffective Assistance of Trial Counsel

  Daniels asserts a litany of errors by his trial counsel, which he claims denied him effective assistance of counsel in violation of his Sixth Amendment rights. He complains that (1) counsel failed to give an opening statement at trial; (2) counsel failed to object to testimony and cross-examine key state witnesses; (3) counsel was antagonistic to Daniels during the aborted plea agreement, and during Daniels' direct testimony at trial; (4) counsel failed to make a motion for a directed verdict on first degree robbery and attempted sexual assault based on the victim's lack of serious injury; (5) counsel failed to obtain appropriate medical records of the victim and cross-examine her on her injuries; (6) counsel failed to object to the admission of prejudicial portions of the 911 tape, which Daniels asserts was doctored; and (7) counsel failed to request a self defense charge to the jury.

  The "clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), is the standard for ineffective assistance of counsel as enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner seeking to prove a Sixth Amendment violation must demonstrate that his counsel's performance fell below an objective standard of reasonableness, assessing the facts of the case at the time of counsel's conduct. Id. at 688-89; Jacobs v. Horn, 395 F.3d 92, 102(3d Cir. 2005); Keller v. Larkins, 251 F.3d 408, 418 (3d Cir.), cert. denied, 534 U.S. 973 (2001). Counsel's errors must have been "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 688. "In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Id. The Supreme Court further explained:

  Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, ...

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