United States District Court, D. New Jersey
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
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
II. CLAIMS FOR HABEAS RELIEF
Page challenges his state court conviction and sentence on the
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.
III. EXHAUSTION REQUIREMENT
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
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.
IV. 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 Khalif is a pro se litigant, the Court will accord
his petition the liberal construction intended for pro se
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
(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 than the victims or witnesses themselves.
There is no federal constitutional right to a grand jury in
state criminal proceedings, thus defects in a state grand jury
process are not reviewable via a federal habeas petition unless
they "rise for some other reason to the level of a denial of
rights protected by the United States Constitution." Wainwright
v. Goode, 464 U.S. 78, 86 (1983); see also Jelinek v.
Costello, 247 F. Supp.2d 212, 278 (E.D.N.Y. 2003) ("On its face,
a state prisoner's claim that he was denied the procedural right
to be indicted by a grand jury appears to implicate a right that
is exclusively of state concern"). Page has been unable to show
how the alleged defect in the grand jury proceedings, that is,
the hearsay testimony of police officers concerning their
investigation of the robberies deprived him of his constitutional
rights. Indeed, "[a] grand jury may return an indictment based
largely or wholly on hearsay testimony." State v. Vasky,
218 N.J. Super. 487, 491 (App.Div. 1987).
Moreover, a claim as to the validity of a state indictment, as
opposed to the fairness of a trial, does not typically rise to
the level of a constitutional deprivation because any such claims alleging error in a state grand jury proceeding are rendered
harmless by the subsequent guilty verdict by a petit jury. See
Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989). See also
United States v. Mechanik, 475 U.S. 66, 72-73 (1986); United
States v. Enigwe, 17 F. Supp.2d 390, 393 (E.D. Pa. 1998),
aff'd, 248 F.3d 1131 (3d Cir. 2000), cert. denied,
531 U.S. 1185 (2001). Therefore, the petit jury's eventual conviction of
Page renders harmless Page's unsupported claim of irregularities
in the grand jury proceedings. Indeed, the victims of the
robberies testified at trial. Accordingly, this claim for habeas
relief will be denied.
B. The Identification of Petitioner was Suggestive
Page next asserts that his show-up identification by Schechter
was unnecessarily suggestive because it occurred while he was in
handcuffs in the rear of a police car with numerous police
officers and cars present at the scene. Page also argues that the
photo identification by the victim Johnson was suggestive. In
support of this claim, Page alleges that Johnson initially did
not identify Page from the composite sketch provided by the
1. The Photo Identification
While the Sixth Amendment does not require that defense counsel
be present when a witness views police or prosecution
photographic arrays, see United States v. Ash, 413 U.S. 300 (1973), an accused nevertheless is entitled to due process
protection against the introduction of evidence of, or tainted
by, unreliable identifications elicited through an unnecessarily
suggestive photographic array, id. at 320; Manson v.
Brathwaite, 432 U.S. 98, 110-17 (1977); Simmons v.
United States, 390 U.S. 377 (1968) (due process prohibits in-court
identification if pre-trial identification procedure is "so
impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification").
The Supreme Court has recognized that "improper employment of
photographs by police may sometimes cause witnesses to err in
identifying criminals." Simmons, 390 U.S. at 383. The Court has
identified certain procedures that heighten the risk of
misidentification, including such practices as displaying the
photo of only a single individual who generally resembles the
person the witness saw, showing the witness photos of several
persons among which the photograph of a single individual recurs
or is in some way emphasized, or indicating to the witness that
police have other evidence that one of the persons pictured
committed the crime. Id. Despite the risk of misidentification,
the Supreme Court has not prohibited the employment of
photographic identification methods, either in the exercise of
its supervisory power or as a matter of constitutional
requirement. Id. Instead, the Court has required that each case must be considered on its own facts and must be evaluated in
light of the totality of surrounding circumstances; also, the
Court has noted that the risk of conviction based on photo
misidentification "may be substantially lessened by a course of
cross-examination at trial which exposes to the jury the method's
potential for error." Id.
Where there has been an unnecessarily suggestive pre-trial
photographic identification of a suspect,
reliability is the linchpin in determining the
admissibility of identification testimony. . . . The
factors to be considered . . . include the
opportunity of the witness to view the criminal at
the time of the crime, the witness' degree of
attention, the accuracy of his prior description of
the criminal, the level of certainty demonstrated at
the confrontation, and the time between the crime and
the confrontation. Against these factors is to be
weighed the corrupting effect of the suggestive
Manson v. Brathwaite, 432 U.S. at 114 (citing Neil v.
Biggers, 409 U.S. 188
, 199-200 (1972)). "[C]onvictions based on
eyewitness identification at trial following a pretrial
identification by photograph will be set aside on that ground
only if the photographic identification procedure was so
impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification." Simmons,
390 U.S. at 383. See also Stovall v. Denno, 388 U.S. 293
, 302 (1967),
overruled on other grounds, Griffith v. Kentucky,
479 U.S. 314
(1987). Where a trial court has failed to exclude identification
evidence obtained in violation of a defendant's due process or
Sixth Amendment rights, the habeas court must determine whether
the failure to exclude that evidence was harmless constitutional
error under Chapman v. California, 386 U.S. 18
Moore v. Illinois, 434 U.S. 220
, 232 (1977).
The Court of Appeals for the Third Circuit has explained that
Simmons/Stovall inquiry is essentially two-pronged.
The first question is whether the initial
identification procedure was "unnecessarily" or
"impermissibly" suggestive. This inquiry actually
contains two component parts: "that concerning the
suggestiveness of the identification, and that
concerning whether there was some good reason for
the failure to resort to less suggestive
procedures." If a procedure is found to have been
unnecessarily suggestive, the next question is
whether the procedure was so "conducive to . . .
mistaken identification" or gave rise to such a
"substantial likelihood of . . . misidentification"
that admitting the identification would be a denial
of due process.
United States v. Stevens, 935 F.2d 1380
, 1389 (3d Cir. 1991)
(citations omitted) (emphasis added by Third Circuit).
Here, there is no basis for Page's contention that Johnson's
identification of Page from a photo array line-up was
impermissibly suggestive. Johnson testified that she had given a
description of the person who robbed the store to a composite
artist, and she later examined photographs in a photo array. She
was able to positively identify Page from the photo array as the
person who robbed the store. The detective who showed Johnson the photo array also testified. Detective Michael Laine of the
South Plainfield Police Department testified that the photo array
was made up by the Middlesex County Sheriff's Department
Identification Bureau, and that the photographs were based on the
race and description provided by Johnson.
Thus, this Court finds no impermissible circumstances of
suggestion by the photo array identification conducted by
Detective Laine; and hence, no likelihood of an "irreparable
misidentification." Simmons, 390 U.S. at 383-84. Further, Page
has failed to present any competent evidence of suggestibility in
this identification procedure whatsoever. Without any indicia of
suggestiveness in the photo array, the photographic
identification procedure was not so impermissibly suggestive as
to give rise to a very substantial likelihood of irreparable
misidentification. Accordingly, petitioner's claim is baseless
and will be denied for lack of merit.
2. The Show-Up Identification
Page also contends that the show-up identification was
impermissibly suggestive so as to result in the substantial
likelihood of misidentification. The three-time victim Schechter
made a positive identification of Page immediately after the
third robbery. The police had taken Schechter in a police car and
drove through the neighborhood until Schechter identified Page
standing outside a nearby apartment complex. Schechter identified Page by his physical features as well as by his
clothing and the distinctive shoes Page had been wearing at the
time of the robbery fifteen minutes earlier. However, Page had
already been apprehended by the police when Schechter made the
identification. Schechter testified that he did not know Page had
been apprehended, although he did state that he had heard sirens
and saw a motorcycle officer. One of the officers who drove
Schechter to the scene of the show-up testified that there were
two or three police cars and officers at the scene. Another
officer stated that Page was in custody and had already been
placed in a police car when Schechter arrived. Page contends this
information was never provided at the Wade*fn2
Respondents counter that "[o]n-the-scene showups have the stamp
of approval everywhere, including this Circuit," citing United
States v. Gaines, 450 F.2d 186 (3d Cir. 1971), cert. denied,
405 U.S. 927 (1972). In this particular case, the respondents
contend that the trial court would not have excluded the
identification because Schechter was with the police officers
shortly after the robbery and Page's apprehension, and because Schechter made the identification after having been robbed three
times by Page, "thus increasing the likelihood that Schechter
correctly identified petitioner." (Resp. Letter Brief at pp.
An "on-scene" or "show-up" identification is typically one in
which the suspect is apprehended at or near the scene and is
returned to it immediately where the victim/witnesses may make an
identification. In Neil v. Biggers, 409 U.S. 188 (1972), the
Supreme Court held that to violate due process an identification
must be unnecessarily suggestive and create a substantial risk of
misidentification. 409 U.S. at 196. Although show-ups are
generally considered more suggestive than line-ups, see
Stovall, 388 U.S. at 302, a number of Circuit courts, including
the Third Circuit, have held that show-ups are justifiable under
"Immediate show-ups can serve . . . important
interests. For example, show-ups allow identification
before the suspect has altered his appearance and
while the witness' memory is fresh.". . . In our
view, such considerations will justify a show-up in a
limited number of circumstances, such as where the
police apprehend a person immediately after the crime
and in close proximity to the scene.
United States v. Funches, 84 F.3d 249, 254 (7th Cir. 1996)
(citing U.S. v. Sleet, 54 F.3d 303 (7th Cir. 1995). See
also U.S. v. Watson, 76 F.3d 4, 6 (1st Cir.), cert.
denied, 517 U.S. 1239 (1996); Johnson v. Dugger,
817 F.2d 726
, 729 (11th Cir. 1987); Gaines, 450 F.2d at 197 (where
the Third Circuit held that a show-up conducted without counsel was justified by "the fact that
the eye-witnesses might have quickly departed, and the
considerations of reliability inhering in an immediate
A "suggestive and unnecessary identification procedure does not
violate due process so long as the identification possesses
sufficient aspects of reliability," for reliability is the
"linchpin in determining the admissibility of identification
testimony." Manson v. Brathwaite, 432 U.S. at 106. In order to
judge whether there was a substantial likelihood of
misidentification, the court must look at the reliability of the
identification in light of the "totality of the circumstances."
Government of Virgin Islands v. Riley, 973 F.2d 224, 228 (3d
Cir. 1992). The court should consider factors such as the
witness' original opportunity to observe the suspect, the degree
of attention during the initial observation, the accuracy of the
initial description, the witness' degree of certainty when
viewing the suspect at the confrontation, and the elapsed time
between the crime and the apprehension/identification. Neil v.
Biggers, 409 U.S. at 199-200.
Applying the Biggers factors, this Court concludes that the
show-up identification in this case was reliable. First, Page was
identified by Schechter, an eyewitness and victim, who had been
robbed by Page on three occasions. During each of these robberies, Schechter had ample time and opportunity to view Page
as Page was close in proximity to his victim. Second, Schechter
was able to provide an accurate description of Page to the
police, which allowed the police to promptly apprehend him.
Third, Page was apprehended by the police shortly after the
robbery and near the vicinity of the robbery. Finally, Schechter
was able to identify petitioner not only from the physical
description he provided, but also by the clothing and distinctive
shoes petitioner wore at the time of the robbery only minutes
In light of all these factors, this Court finds that the
show-up identification used by the police in this case was not so
inherently unfair or impermissibly suggestive as to create a
substantial likelihood of irreparable misidentification. There
were sufficient aspects of reliability to ensure that the
petitioner was correctly identified. Moreover, if there was any
doubt as to the reliability, it was dispelled by the positive
identification made by Johnson, who likewise had been robbed by
petitioner and to whom petitioner had boasted that he robbed
Schechter. Therefore, this claim for habeas relief will be denied
for lack of merit.
C. Prosecutorial Misconduct
In his third claim, Page asserts prosecutorial misconduct with
respect to the prosecutor's statement to the trial court that he had sent a video tape of the third robbery over to Perth
Amboy Video Enterprises to see if they could get a clear shot of
the face of the perpetrator. However, there was no clear view of
the person who was the robber. Page complains that he was denied
the very same opportunity to have the tape enhanced to show that
the robber was not petitioner. Sections of the tape were shown to
the jury by the prosecutor, but these sections showed no clear
view of the robber for identification. Page contends that the
same rules that applied to him should have applied to the
prosecutor. The Court is hard-pressed to find any misconduct by
the prosecutor based on Page's allegations as set forth here.
Habeas review of a claim based on prosecutorial misconduct is
limited to determining whether the conduct "so infected the trial
with unfairness as to make the resulting conviction a denial of
due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974). "The touchstone of due process analysis in cases of
alleged prosecutorial misconduct is the fairness of the trial,
not the culpability of the prosecutor." Smith v. Phillips,
455 U.S. 209, 219 (1982). If it does not infect the entire trial,
misconduct alone is not enough to warrant a new trial. Id. at
220. "A criminal conviction is not to be lightly overturned on
the basis of a prosecutor's comments [or conduct] standing alone,
for the statements or conduct must be viewed in context." United
States v. Young, 470 U.S. 1, 11 (1985). However, the U.S. Supreme Court has recognized the obligation
of a prosecutor to conduct a criminal prosecution with propriety
He may prosecute with earnestness and vigor indeed,
he should do so. But, while he may strike hard blows,
he is not at liberty to strike foul ones. It is as
much his duty to refrain from improper methods
calculated to produce a wrongful conviction as it is
to use every legitimate means to bring about a just
one. . . . Consequently, improper suggestions,
insinuations, and, especially, assertions of personal
knowledge are apt to carry much weight against the
accused when they should properly carry none.
Berger v. United States, 295 U.S. 78
, 88 (1935). "The line
separating acceptable from improper advocacy is not easily drawn;
there is often a gray zone. Prosecutors sometime breach their
duty to refrain from overzealous conduct by commenting on the
defendant's guilt and offering unsolicited personal views on the
evidence." Young, 470 U.S. at 7.
The prosecutor's vouching for the credibility of
witnesses and expressing his personal opinion
concerning the guilt of the accused pose two dangers:
such comments can convey the impression that evidence
not presented to the jury, but known to the
prosecutor, supports the charges against the
defendant and can thus jeopardize the defendant's
right to be tried solely on the basis of the evidence
presented to the jury; and the prosecutor's opinion
carries with it the imprimatur of the Government and
may induce the jury to trust the Government's
judgment rather than its own view of the evidence.
Id. at 18.
Thus, where this prosecutor's conduct during trial is
challenged in habeas, "[t]he relevant question is whether the prosecutor's [conduct] `so infected the trial with unfairness as
to make the resulting conviction a denial of due process.'"
Darden, 477 U.S. at 181 (quoting Donnelly, supra). "Supreme
Court precedent counsels that the reviewing court must examine
the prosecutor's offensive actions in context and in light of the
entire trial, assessing the severity of the conduct, the effect
of the curative instructions, and the quantum of evidence against
the defendant." Moore v. Morton, 255 F.3d 95, 107 (3d Cir.
Here, there was no state court finding that the prosecutor's
conduct in showing portions of the tape to the jury was improper,
or personal, or that it unfairly prejudiced petitioner so as to
make the resulting conviction a denial of due process. Page was
identified by his victims and the fact of the tape would not have
unduly prejudiced petitioner in light of the other strong
identification evidence against him. Moreover, the tape was
unclear and did not serve to show Page as the person who robbed
the store. The prosecutor merely acknowledged that the tape could
not be enhanced for a clear identification. This comment was not
harmful to the petitioner. Accordingly, this ground for habeas
relief is without any merit and will be denied.
D. Tainted Evidence Presented to Jury
This claim was asserted in conjunction with the prosecutorial
misconduct claim as it involves the showing of the video tape to the jury. Page contends that the tape should not
have been shown to the jury.
Federal courts must afford the states deference in its
determinations regarding evidence and procedure. See Crane v.
Kentucky, 476 U.S. 683, 690 (1986) ("we have never questioned
the power of the States to exclude evidence through the
application of evidentiary rules that themselves serve the
interests of fairness and reliability, even if the defendant
would prefer to see that evidence admitted"). It is
well-established that "a state court's misapplication of its own
law does not generally raise a constitutional claim. The federal
courts have no supervisory authority over state judicial
proceedings and may intervene only to correct wrongs of
constitutional dimension." Smith v. Horn, 120 F.3d 400, 414 (3d
Cir. 1997) (citations omitted), cert. denied, 522 U.S. 1109
However, evidentiary rulings may violate due process when the
petitioner "was denied fundamental fairness at trial." Hutchins
v. Hundley, 1991 WL 167036 at *4 (D.N.J. Aug. 22, 1991) (Wolin,
J.) (citations omitted); see also Kontakis v. Beyer,
19 F.3d 110, 120 (3d Cir. 1994), cert. denied, 513 U.S. 881
(1994); Lisenba v. California, 314 U.S. 219, 228, 236 (1941)
(holding that state court's evidentiary rulings may form the
basis for habeas relief when they "so infused the trial with
unfairness as to deny due process of law"). The appropriate inquiry is "whether the claimed error of law is
a fundamental defect which inherently results in a complete
miscarriage of justice or in an omission inconsistent with the
rudimentary demands of fair procedure." Hutchins, 1991 WL
167036 at *4 (citing United States v. De Luca, 889 F.2d 503,
506 (3d Cir. 1989), cert. denied, 496 U.S. 939 (1990)) (other
citations omitted). The Supreme Court has further stated that "an
otherwise valid conviction should not be set aside if the
reviewing court may confidently say on the whole record that the
constitutional error was harmless beyond a reasonable doubt."
Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986). An error is
not harmless if "it aborts the basic trial process or denies it
altogether." Hutchins, 1991 WL 167036 at *5 (citing Rose v.
Clark, 478 U.S. 570, 578 n. 6 (1986)).
This Court finds that the showing of the tape was not an error
of constitutional dimension and there is no demonstration by
petitioner that the trial process was fundamentally unfair.
Moreover, even if the trial court was wrong to allow the tape to
be shown, the tape did not show a clear picture of the robber.
The showing cannot be considered prejudicial or harmful for two
reasons. First, it did not identify petitioner, and second, there
was eyewitness testimony by the victims themselves that provided
strong direct evidence that Page was the perpetrator of the charged crimes, regardless of the video tape. Accordingly,
this ground for a writ of habeas corpus will be denied.
E. The Trial Court Erred in Failing to Sever Counts
Page next argues that Counts 7, 8, and 9 of the indictment
should have been severed and tried separately. These counts
involved the robbery on February 21, 1992 at the Auto Partsland
store in South Plainfield, New Jersey. The trial court allowed
the counts to remain because of the statement made to Johnson by
the robber, that he had robbed the American Electronics Co. Store
The Court finds that the state court's ruling, which denied
severance, was based solely on state law and state rules of
procedure and evidence. Generally, matters of state procedural
law are not reviewable in a federal habeas petition. The Supreme
Court has stated that "it is not the province of a federal habeas
court to reexamine state-court determinations on state-law
questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). This
is generally true even where the state court incorrectly applied
state law. Id. at 71. Rather, a federal habeas claim will lie
only where a state court determination violated some federally
protected right. Id. at 68. The Third Circuit likewise stated:
Our review of a federal habeas corpus petition is
limited to remedying deprivations of a petitioner's
federal constitutional rights. We can take no
cognizance of non-constitutional harm to the
defendant flowing from a state's violation of its own
procedural rule, even if that rule is intended as a guide to implement a federal
Wells v. Petsock, 941 F.2d 253
, 256 (3d Cir. 1991), cert.
denied, 505 U.S. 1223 (1992); see also Smith v.
Zimmerman, 768 F.2d 69
, 73 (3d Cir. 1985) ("a `mere error of
state law' is not a denial of due process").
Here, it is plain that Page was not denied due process or other
federally protected right. A trial judge has ample discretion
under R. 3:15-2 to order separate trials on counts of an
indictment if a party is prejudiced by their joinder. A trial
court facing this issue of whether joinder of counts is
prejudicial must consider "`whether, assuming the charges were
tried separately, evidence of the offenses sought to be severed
would be admissible under Evid.R. 55 [N.J.R.E.
404(b)]*fn4 in the trial of the remaining charges.'" State
v. Oliver, 133 N.J. 141, 151 (1993) (quoting State v. Pitts,
116 N.J. 580, 601-02 (1989)). Here, it appears that the trial
court correctly applied state law and rules of evidence in
determining that Page was not prejudiced by the joinder of the
counts involving the auto parts store robbery, because these offenses would have been admissible in a
trial of the other robbery charges under Evid. R. 55 (N.J.R.E.
404(b)) on the issue of identity.
Therefore, Page has failed to establish any due process
violation in the trial court's denial of his motion for severance
and he is not entitled to federal habeas relief on this ground.
F. Ineffective Assistance of Trial Counsel
In his sixth claim, Page asserts that his counsel was
ineffective by (1) failing to attack the indictment; (2) failing
to attack or present Johnson's statement and police report which
allegedly denied that the two robbers were the same; (3) failing
to convince trial court to allow enhancement of the video tape;
and (4) failing to investigate possible witnesses for the
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, under the
circumstances, the challenged action "might be
considered sound trial strategy."
Id. at 689 (citations omitted); see also Virgin Islands v.
Wheatherwax, 77 F.3d 1425
, 1431 (3d Cir.), cert. denied,
519 U.S. 1020 (1996).
If able to demonstrate deficient performance by counsel,
petitioner must also show that counsel's substandard performance
actually prejudiced his defense. Strickland, 466 U.S. at 687.
Prejudice is shown if "there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome."
Id. at 694. The reviewing court must evaluate the effect of any
errors in light of the totality of the evidence. Id. at 695-96.
Thus, the petitioner must establish both deficient performance
and resulting prejudice in order to state an ineffective
assistance of counsel claim. Id. at 697. See also Jacobs,
395 F.3d at 102; Keller, 251 F.3d at 418.
1. Failure to Attack the Indictment
Page contends that trial counsel was ineffective for failing to
attack the indictment. As demonstrated in Section V.A above,
Page's claim that the indictment was defective based on hearsay
testimony of police officers is completely without merit. Thus, a
motion to quash the indictment in this instance would have been
meritless and counsel is not obligated to raise meritless
Counsel's failure to file motions does not per se
constitute ineffective assistance of counsel. See Kimmelman v.
Morrison, 477 U.S. 365, 383-84 (1986); Jelinek v. Costello,
247 F. Supp.2d 212 (E.D.N.Y. 2003). Rather, a determination of
ineffectiveness depends on whether the motion or objection would
have been granted or sustained had it been made. United States
v. Oakley, 827 F.2d 1023, 1025 (5th Cir. 1987). Thus, "[c]ounsel
cannot be faulted for failing to pursue meritless or futile
objections." Johnston v. Love, 940 F. Supp. 738, 776 (E.D. Pa. 1996),
aff'd 118 F.3d 1576 (3d Cir.), cert. denied, 522 U.S. 972
(1997); see also Bolender v. Singletary, 16 F.3d 1547, 1573
(11th Cir.), cert. denied, 513 U.S. 1022 (1994) (failure to
raise non-meritorious issues does not constitute ineffective
assistance of counsel). Moreover, the filing of pretrial motions
"falls squarely within the ambit of trial strategy." Murray v.
Maggio, 736 F.2d 279, 283 (5th Cir. 1984), and Page has alleged
no facts that would overcome the presumption that counsel's
decision in this regard was strategic. Strickland,
466 U.S. at 689. Therefore, Page's ineffective counsel claim fails under the
first prong of Strickland, and this claim will be denied.
2. Failure to Attack Johnson's Identification
Next, Page alleges that his counsel should have attacked
Johnson's identification of him based on her earlier statement
and report to police that the two robbers were not the same.
Page's characterization of Johnson's first identification is
misinformed. Johnson was shown a composite sketch of the robber
in the American Electronic store robberies, which she was unable
to positively identify as the robber in her store. However, when
shown a photo array that included Page's photograph, she
positively identified Page as the robber.
Decisions by trial counsel with regard to examination of
witnesses are strategic by nature and necessitate a strong level of deference to the attorney's assessment. See Diggs v.
Owens, 833 F.2d 439, 444-45 (3d Cir. 1987), cert. denied,
485 U.S. 979 (1988). Here, it would appear that counsel's
decision not to cross-examine Johnson on her first failed
identification from a composite sketch was a strategic decision.
Johnson's positive identification of Page from a photo array was
strong direct evidence. Counsel likely determined that an
extensive cross-examination would have unduly highlighted the
strength of her recollection and identification of Page. Thus,
there is no deficient performance when counsel's decision was a
tactical choice. This claim will be denied for lack of merit.
3. Enhancement of the Video Tape Motion
Page also contends that his counsel was ineffective for failing
to win his motion to have the video tape enhanced so as to prove
the perpetrator on the tape was not Page. This claim is
completely baseless. Trial counsel made the motion and it was
denied. Counsel's performance was not deficient merely because he
Moreover, as discussed in Section V.C above, enhancement of the
tape was attempted but unattainable by the prosecutor. Therefore,
the Court finds this claim by petitioner to be without
substantive merit and the claim will be denied. 4. Failure to Investigate Possible Witnesses
Here, Page asserts that his counsel was ineffective for failing
to locate and call witnesses to dispute the reliability of
Schechter's identification of Page. In particular, Page contends
that his girlfriend and her mother would have testified that Page
had been inside Schechter's store on several occasions before the
robbery, and thus, the identification of Page when he was in
custody was based simply on familiarity. On appeal from denial of
the state PCR motion, the Appellate Division found this claim of
ineffective assistance of trial counsel to be without merit. "We
see no reasonable likelihood that these alleged deficiencies at
trial could have affected the jury's verdict." (Superior Court of
New Jersey, Appellate Division, per curiam Opinion, dated
October 31, 2001, at pg. 4).
As discussed earlier, Schechter's identification was made after
he had been robbed by petitioner three times. It was also
bolstered by Johnson's independent and positive identification of
Page in a photo line-up. Further, Schechter's identification was
based on the clothing and shoes worn by Page at the time of the
identification and at the time of the robbery only 15 minutes
earlier. Thus, this Court finds that the testimony of Page's
girlfriend and her mother would not have had any impact or effect
on the jury's verdict. Counsel's failure to call these witnesses
was neither deficient or prejudicial. This Court finds nothing to indicate that the state court
decision (which concluded there was no error, and hence, no
ineffective assistance of counsel) was based on an unreasonable
application of the facts in light of the evidence presented at
trial. Nor were the decisions contrary to established federal
law. The state court expressly found that the alleged
deficiencies would not have affected the jury's verdict. Page has
not demonstrated that the state court decision, when evaluated
objectively and on the merits, resulted in an outcome that cannot
be reasonably justified. Matteo, 171 F.3d at 891. Accordingly,
this claim of ineffective assistance of counsel is without merit.
G. The Trial Court Erred in Denying the Defense Motion to Have
the Video Tape Enhanced and in Allowing the Video Tape to be
Shown to the Jury (Points VII and VIII)
Petitioner's claim that the trial court erred in allowing the
tape to be shown to the jury was discussed and rejected by this
Court in Section V.D, at pages 23-25, supra. The claim is
plainly without merit and not subject to federal habeas review.
As to the contention that the court erred in denying the
defense motion to have the tape clarified, this claim was also
discussed and rejected. See this Opinion, supra, at page 32.
The trial court's decision was a matter of state evidentiary and
procedural law not subject to federal habeas review. Moreover,
even if the court's decision was wrong, it was harmless. Enhancement or clarification of the tape was attempted but
unattainable by the prosecutor. Therefore, these claims by
petitioner are without any substantive merit and will be denied.
H. The Trial Court Abused Its Discretion by Sentencing
Petitioner Separately on Count Seven
Petitioner argues that he should not have been sentenced
separately on Count Seven (first degree armed robbery at the auto
parts store) after the court refused to sever this claim from
Sentencing is generally considered a matter of state criminal
procedure, which does not fall within the purview of federal
habeas review. Ervin v. Beyer, 716 F. Supp. 163, 165 (D.N.J.
1989); see also Johnson v. Beto, 383 F.2d 197, 198 (5th
Cir. 1967), cert. denied, 393 U.S. 868 (1968); U.S. ex rel.
Jackson v. Meyers, supra. Indeed, absent some constitutional
violation, federal courts cannot review a state's alleged failure
to adhere to its own sentencing procedure. Rorie v. Beard,
Civ.A. No. 04-3380, 2005 WL 825917, *5 (E.D. Pa. April 7, 2005)
(citing Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir.
1988)). Thus, a federal court will not reevaluate a sentence in a
habeas proceeding unless it exceeds the statutory limits. Jones
v. Superintendent of Rahway State Prison, 725 F.2d 40 (3d Cir.
1984); see also Williams v. Duckworth, 738 F.2d 828, 831
(7th Cir. 1984), cert. denied, 469 U.S. 1229 (1985) ("As
a general rule, federal courts will not review state sentencing determinations that fall within statutory limits."); Bonner v.
Henderson, 517 F.2d 135, 136 (5th Cir. 1975) ("This Court
will not upset the terms of a sentence within statutory limits
unless so disproportionate to the offense as to be completely
arbitrary and shocking").
Here, petitioner has not alleged that his sentence violates any
federal constitutional rights. Moreover, Page's sentence does not
exceed the statutory limits. Page merely argues that he should
not have been sentenced separately on this count when it was not
severed from the indictment. This claim is completely baseless.
Consequently, Point IX of the petition is not subject to federal
review and will be denied.
I. Ineffective Assistance of Appellate Counsel
Page also broadly asserts that his appellate counsel was
ineffective for failing to raise most of the above cited issues
on direct appeal. Several of these claims were raised in Page's
state PCR proceedings but were denied.
On appeal from denial of the PCR petition, the Appellate
As to ineffective assistance of appellate counsel,
defendant alleges failure to raise trial counsel's
performance, failure to argue the suggestiveness
identification issue, failure to return defendant's
phone calls, and failure to argue an excessive
sentence. We are satisfied based on the record that
none of these alleged failures had any reasonable
potential for affecting the outcome of the appeal. (Superior Court of New Jersey, Appellate Division, per curiam
opinion, filed on October 31, 2001, at pg. 4).
Claims of ineffective assistance of appellate counsel are
evaluated under the Strickland standard previously discussed.
See Wright v. Vaughn, 2004 WL 1687865, *6, n. 10 (E.D. Pa.
July 26, 2004). In order to prevail on a claim that appellate
counsel was ineffective, Page must show that (1) counsel's
performance fell below an objective standard of reasonableness,
and (2) there was a reasonable probability, but for counsel's
deficiency in raising the arguments on appeal, that the
conviction would have been reversed on appeal. See Buehl v.
Vaughn, 166 F.3d 163, 173-74 (3d Cir. 1999), cert.
dismissed, 527 U.S. 1050 (1999).
Here, Page has failed to show that the performance of his
appellate counsel was deficient and that he was prejudiced
thereby, and in light of the evaluation of this issue by the
state court, this Court cannot conclude that the determination of
this issue resulted in a decision that was contrary to, or
involved an unreasonable application or determination of law or
fact. Williams v. Taylor, supra. Moreover, for those claims
not raised in the PCR proceedings, this Court has found said
claims to be without substantive merit. Thus, there is no
reasonable probability that Page's conviction would have been
affected had these claims been raised on direct appeal.
Accordingly, the Court will deny relief on this claim. VI. CERTIFICATE OF APPEALABILITY
This Court next must determine whether a certificate of
appealability should issue. See Third Circuit Local Appellate
Rule 22.2. The Court may issue a certificate of appealability
only if the petitioner "has made a substantial showing of the
denial of a constitutional right." 28 U.S.C. § 2253(c)(2). For
the reasons discussed above, this Court's review of the claims
advanced by Page demonstrates that he has failed to make a
substantial showing of the denial of a constitutional right
necessary for a certificate of appealability to issue. Thus, this
Court declines to issue a certificate of appealability pursuant
to 28 U.S.C. § 2253(c)(2).
For the foregoing reasons, this Court finds that Page's § 2254
habeas petition should be denied on the merits. A certificate of
appealability will not issue. An appropriate Order accompanies
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