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October 18, 2005.

JERRY PAGE, Petitioner,
ROY L. HENDRICKS, et al., Respondents.

The opinion of the court was delivered by: DICKINSON DEBEVOISE, Senior District Judge


This matter is before the Court on petitioner Jerry Page's 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, Jerry Page ("Page"), is presently confined at the New Jersey State Prison in Trenton, New Jersey, serving an aggregate prison sentence of 35 years with a 17½-year parole disqualifier for his conviction on four counts of robbery.

  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, as set forth on direct appeal:
According to the testimony presented by the State, defendant robbed the same victim, Jack Schechter, at Schechter's store in Piscataway on three separate occasions: December 17, 1991, February 18, 1992 and February 27, 1992. On the first occasion, defendant robbed Schechter at gunpoint. The second time, according to Schechter, defendant "had his hands in his pocket with a protruding appearance." Defendant informed Schechter that he had a gun and forced him into the back room by pushing whatever was concealed in his jacket into Schechter's back. On the third occasion, defendant kept one hand in his pocket as if he was holding a gun and he removed money from Schechter's wallet and checked his pants pockets. Schechter felt an object, which he believed to be a gun, pointed into his back.
Between the second and third robbery of Schechter, defendant robbed an auto parts store in South Plainfield. Defendant ordered Pamela Johnson, an owner of the store, to give him the money from the register. According to Johnson, defendant told her that he had a gun in his pocket. He kept one hand on the counter and the other in his pocket, which gave it a bulging appearance.
(Superior Court of New Jersey, Appellate Division, per curiam Opinion, filed July 19, 1996). Page was tried by jury in a trial before the Honorable Joseph E. Sadofski, J.S.C., on February 9, 10 and 11, 1993. He was convicted on four counts of first degree robbery, and one count of possession of a weapon for an unlawful purpose. Judge Sadofski sentenced Page on April 5, 1993 to an aggregate term of 35 years in prison with a 17½-year parole disqualifier. In December 1994, Page filed a Notice of Appeal from his conviction and sentence. On July 19, 1996, the Appellate Division affirmed the convictions, but vacated the concurrent sentence on the charge of possession of a weapon for an unlawful purpose, merging the count with one of the robbery counts. The New Jersey Supreme Court denied Page's petition for certification on December 2, 1996.

  In October 1997, Page filed a petition for post-conviction relief ("PCR") in state court. The Honorable Robert P. Figarotta, P.J. Cr., denied the PCR petition on July 2, 1998. Page appealed and the Appellate Division affirmed the denial on October 31, 2001. The New Jersey Supreme Court denied certification on April 25, 2002.

  Page filed this federal habeas action on or about April 22, 2003.*fn1 On or about January 26, 2004, the respondents filed an answer to the petition, in the form of a letter brief, with selected portions of the relevant state court record. The Court notes that the trial transcripts and the transcripts from the state PCR proceeding (if any) were not provided by the State as required under Rule 5(c) of the Rules Governing Section 2254 Cases in the United States District Courts ("§ 2254 Habeas Rules").


  Page challenges his state court conviction and sentence on the following grounds:

  Point I: The indictment was defective because it was based on the hearsay testimony of police officers.

  Point II: The identification of petitioner was suggestive.

  Point III: Prosecutorial misconduct.

  Point IV: Tainted evidence was presented to the jury.

  Point V: The trial court erred in refusing to sever counts 7, 8, and 9 of the indictment.

  Point VI: Ineffective assistance of trial counsel. Point VII: The trial court erred in denying the defense motion to have the video tape clarified by the State crime lab.

  Point VIII: The trial court erred in allowing the video tape into evidence because it was allegedly tampered with by an uncertified video shop.

  Point IX: The trial court abused its discretion by sentencing the defendant separately on count seven of the indictment.

  Point X: Ineffective assistance of appellate counsel.


  It is well established that a state prisoner applying for a writ of habeas corpus in federal court must first "exhaust[] the remedies available in the courts of the State," unless "there is an absence of available State corrective process[] or . . . circumstances exist that render such process ineffective. . . ." 28 U.S.C. § 2254(b)(1); see also 28 U.S.C. § 2254(c); Rose v. Lundy, 455 U.S. 509, 510 (1982); Johnson v. Pinchak, 392 F.3d 551, 556 (3d Cir. 2004). A petitioner exhausts 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 proceedings. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 847 (1999) ("requiring state prisoners [in order to fully exhaust their claims] to file petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State"); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (collateral attack in state court is not required if the petitioner's claim has been considered on direct appeal), cert. denied, 532 U.S. 919 (2001); 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.") Once a petitioner's federal claims have been fairly presented to the state's highest court, the exhaustion requirement is satisfied. Castille v. Peoples, 489 U.S. 346, 350 (1989); Picard v. Connor, 404 U.S. 270, 275 (1971).

  The petitioner generally bears the burden to prove all facts establishing exhaustion. Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993). This means that the claims heard by the state courts must be the "substantial equivalent" of the claims asserted in the federal habeas petition. Picard, 404 U.S. at 275. Reliance on the same constitutional provision is not sufficient; the legal theory and factual basis must also be the same. Id. at 277.

  Here, the State asserts that many of the claims raised by Page in this federal habeas petition are unexhausted. However, to the extent any of the claims were not exhausted in state court, this Court may opt to review such claims, and deny them on the merits pursuant to 28 U.S.C. § 2254(b)(2). Section 2254(b)(2) provides that "[a]n application for writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." In this case, respondents have addressed most of petitioner's claims on the merits. Thus, for the reasons discussed below, the Court will deny this petition on the merits, pursuant to 28 U.S.C. § 2254(b)(2), because "it is perfectly clear that an applicant does not raise even a colorable federal claim." Lambert, 134 F.3d at 514-15.


  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 Khalif 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). V. ANALYSIS

  A. Defective Indictment on Hearsay Testimony

  Page's first claim asserts that the indictment was defective because it was based on the hearsay testimony of police officers rather ...

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