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DIAL v. SHERRER

December 16, 2005.

VERNIE C. DIAL, Petitioner,
v.
LYDELL B. SHERRER, et al., Respondent.



The opinion of the court was delivered by: JEROME SIMANDLE, District Judge

OPINION

Vernie C. Dialt ("Dial"), who is confined at South Woods State Prison in Bridgeton, New Jersey, filed a Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a), raising a number of grounds for relief. The State filed an Answer opposing the Petition, accompanied by relevant portions of the State court proceedings. For the reasons expressed below, the Court will deny habeas relief, dismiss the Petition and decline to issue a certificate of appealability. See 28 U.S.C. §§ 2254 (a) and (d); 2253 (c) (2). I. BACKGROUND

  On August 15, 1997, after a jury trial, Petitioner was convicted of robbery in violation of N.J.S.A. 2C:15-1 (Answer, Paragraph 2.) Petitioner was sentenced to twenty years' imprisonment with a ten year parole disqualifier. (Petition, Paragraph 3; Answer, Paragraph 3.) The New Jersey Appellate Division affirmed Dial's conviction and sentence on February 3, 1999. (Ans. Paragraph 9.) The New Jersey Supreme Court denied Petitioner's application for certification on July 8, 1999. (Pet. Paragraph 9; Ans., Paragraph 9.) Petitioner thereafter filed a Petition in state court for post-conviction relief; relief was denied on January 24, 2000. (Ans., Paragraph 11.) The New Jersey Appellate Division affirmed the lower court on January 4, 2002. (Id.) The New Jersey Supreme court again denied certification on March 28, 2003. (Id.) The instant Petition was submitted on June 2, 2003. (Docket.) On August 4, 2003, this Court filed a Memorandum Opinion and an order to Show Cause why the Petition should not be dismissed for untimeliness, to which Petitioner responded on August 18, 2003; the Court determined that the Petition was timely and that all claims had been exhausted, and entered a Notice and Order pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), as to which the Petitioner, in a letter filed September 8, 2003, elected to have the Petition ruled on as is.

  II. FACTS

  Federal courts in habeas corpus cases are required to give deference to the factual findings of both the state trial and appellate courts. Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996) (citing Sumner v. Mata, 449 U.S. 539, 546 (1981) (section 2254 makes no distinction between the factual determinations of a state trial court and those of a state appellate court)). See also 28 U.S.C. § 2254 (e)(1).*fn1 The factual recital is taken from the New Jersey Appellate Division Opinion in this case (Ans., Ex R4., Opinion of the New Jersey Appellate Division in State v. Dial, A-970-97 T4 (February 3, 1999):
The charges arose out of events that occurred on October 31, 1996, in the slot machine area at Bally's Park Place Casino. The victim, Michaelen Dwulet, was playing a fifty-cent machine. A friend, Willie Hamilton, was seated next to her on the left. Her business partner, Frank Latella, was seated to the immediate left of Hamilton.
Dwulet had her money in two buckets, one inside the other — a small one filled with half-dollar coins and the larger containing dollar coins — about an arm's length from her, placed between her machine and the unoccupied machine to her immediate right.
As she reached for the buckets, Dwulet realized they were gone, jumped up and shouted "my money's gone." Hamilton leapt to his feet almost simltaneously, saying "well, that guy has it." Moments before he had seen defendant walk down the isle empty-handed, sit at the unoccupied machine next to Dwult, pull the handle once and walk rapidly away with a cup, trying to "stick it under his jacket." Hamilton and Dwult pursued defendant for a short distance until Hamilton was able to grab defendant's shoulder. They demanded that the buckets be returned. Hamilton retained his grip on defendant even as defendant was returning the buckets. As defendant struggled to get free, he said to Hamilton, "Let me go or I'll stick you." This was heard by Dwult and Hamilton, and also by a Bally's security officer who responded to the struggle. Hamilton said that in Philadelphia, "stick" means "stab."
Defendant was then held at the Division of Gambling Enforcement Office until the arrival of State Police, who took him into custody. No weapon or money was found on defendant. His identity was readily established at trial from the arrest photo, although defendant's appearance had apparently been changed during the time that elapsed since the October 1996 incident. [(Ans., Ex R4. pp. 2-3.)
III. DISCUSSION
A. Grounds Raised in Petition

  Petitioner Dial raises the following grounds for relief in his § 2254 petition:

  Ground One: That he was denied his dues process right to a fair trial(1)" by the prosecutor's improper use of Petitioner's impecuniosity to imply that he had motive to commit theft," and (2) "by the prosecutor's improper comments designed to bolster the credibility and appeal to the jurors' emotions."

  Ground Two: That trial counsel was ineffective for failing to object to prosecutor's conduct (above in Ground One) and in failing to obtain videotape of the incident, and that appellate counsel was ineffective for failing to raise these issues of trial counsel's ineffectiveness on appeal, and for failing to raise "the issue regarding the trial court's holding on remand that the negative was used during the prosecutor's summation."

  Ground Three: That the trial court erred in holding on remand that the transcript was inaccurate by omitting the word "not" before the words "that he's a poor person."

  B. Standards Governing Petitioner's Claims

  Section 2254(a) grants federal district courts subject matter jurisdiction to entertain a claim that a state prisoner is in custody in violation of the federal constitution or federal law or treaties. Section 2254(a) provides, in pertinent part: . . . a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

 A habeas corpus petition must "specify all the grounds for relief," and set forth in summary form "the facts supporting each of the grounds thus specified." See Rule 2 (c) of the Rules Governing Section 2254 Cases in District Courts. Petitioner has the burden of establishing each claim in the Petition. See United States v. Abbott, 975 F. Supp. 703,705 (E.D. Pa. 1997). Under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2244 ("AEDPA"), federal courts in habeas corpus cases must give deference to determinations of the state courts. Duncan v. Morton, 256 F.3d 189, 196 (3d Cir.), cert. denied, 534 U.S. 919 (2001); Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996) (citing Parke v. Raley, 506 U.S. 20, 36 (1992)). Habeas corpus relief must be denied as 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) (1)].
The Supreme Court interpreted this standard in Williams v. Taylor, 529 U.S. 362 (2000), explaining that
 
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. [529 U.S. at 412-13].
See also Marshall v. Hendricks, 307 F.3d 36, 51 (3d Cir. 2002), cert. denied, 538 U.S. 911 (2003). Whether a state court's application of federal law is "unreasonable" must be judged objectively; an application may be incorrect, but still not unreasonable. Williams, 529 U.S. at 409-10. In addition, "in certain cases it may be appropriate to consider the decisions of inferior federal courts as helpful amplifications of Supreme Court precedent." Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 890 (3d Cir.), cert. denied, 524 U.S. 824 (1999). Finally, in considering claims raised in a habeas petition, federal courts "must presume that the factual findings of both state trial and appellate courts are correct, a presumption that can only be overcome on the basis of clear and ...

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