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