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
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
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).
II. CLAIMS FOR HABEAS RELIEF
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).
III. STANDARD GOVERNING REVIEW OF § 2254 CLAIMS
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, ...