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Louis P. Urcinoli v. : Opinion

December 17, 2010

LOUIS P. URCINOLI,
PETITIONER,
v.
: OPINION RONALD H. CATHEL, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Hon. Garrett E. Brown, Jr.

NOT FOR PUBLICATION

BROWN, Chief Judge

Louis P. Urcinoli filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254(a) challenging a conviction in the Superior Court of New Jersey, Ocean County. This Court dismissed the Petition as untimely. Petitioner appealed and the United States Court of Appeals for the Third Circuit granted a certificate of appealability. The Third Circuit reversed and remanded for this Court to consider Petitioner's claims on the merits. The parties filed supplemental papers. For the reasons expressed below, the Court will dismiss the Petition and deny a certificate of appealability.

I. BACKGROUND

Petitioner challenges a judgment of conviction entered on December 13, 1996, in the Superior Court of New Jersey, Ocean County, after a jury found him guilty of the purposeful or knowing murder of Nicole Russo on March 12, 1995 ("Count One"); conspiracy to murder Bernard Mancuso, Petitioner's uncle and a potential witness in the murder prosecution ("Count Two"); and two counts of attempted murder of Mancuso and his wife ("Counts Three and Four"). The Law Division sentenced Petitioner to an aggregate term of life imprisonment plus 20 years, with a 40-year period of parole ineligibility. Petitioner appealed. The Superior Court of New Jersey, Appellate Division, affirmed the conviction and sentence. State v. Urcinoli, 321 N.J. Super. 519 (App. Div.), cert. denied, 162 N.J. 132 (1999) (table). On September 28, 1999, the New Jersey Supreme Court denied Petitioner's petition for certification. Id.

The Appellate Division described the facts as follows:

In late February 1995, Nicole Russo began dating defendant, who became a nightly dinner guest at the Russo home . . . . On March 11 defendant dropped off Nicole at the Russo house and left. Half an hour later Brian Markowski, Nicole's old boyfriend, came by her house to see her . . . . Later [that day, Nicole] told her mother that she had made a decision about whom she wanted to date and that she had told the defendant that she was going back to Brian . . . The following morning, March 12, 1995 . . . Nicole was out walking and holding hands with Brian when defendant drove up to them. Defendant asked Brian to ride with him to discuss matters . . . . Brian testified that defendant wanted him to "back off" from Nicole. When Brian said that it was up to Nicole, defendant asked him if he wanted to fight. After Brian declined, defendant drove back to rejoin Nicole. Nicole took defendant aside to talk, and he then drove off. She said to Brian that she had just told the defendant that she wanted to be with Brian and not with him.

About 1:00 p.m. Nicole, Brian and Frank Quigley were at Brian's grandmother's house to say goodbye to Brian before he went back to his home in Brooklyn. Nicole and Quigley then went back to her home. Defendant arrived dressed up at about 2:00 p.m. and reminded Nicole that she had promised to go with him to his mother's home in Hauppague, Long Island that day. Quigley testified that Nicole was hesitant but finally agreed . . . . She agreed to call and let her parents know if she would be staying overnight. Nicole never called and was never seen or heard from again after she drove off with defendant in his maroon Subaru . . . . [The next day, Nicole's father contacted defendant who] told him that he had driven Nicole to Brooklyn the night before. He said he dropped her off at about 9:30 p.m. . . . because Nicole wanted to go to Brian's house to pick up a pager that belonged to her. She was to page defendant when she wanted him to pick her up, but she never did . . . . [D]efendant [told Nicole's father] that he and Nicole had had an argument and that she got out of the car with her radio and her clothes in her arms. He said that he assumed she went to Brian's house just a few blocks away . . . At 6:00 p.m. on Monday, March 13, Mr. Russo called the Brick Township Police Department to report that his daughter [was] missing. He spoke to Detective John Bender . . . .

After his conversation with Mr. Russo, Detective Bender paged defendant, who called him fifteen minutes later. Bender told defendant he was looking for Nicole, and defendant told him the same story he had told Mr. Russo. He also gave his New Jersey address . . . . Later Bender called the Seaside Park police and learned that there was no such address . . . .

On Wednesday, March 15, Mr. Russo found out from one of Nicole's friends that defendant lived at a motel in Seaside Park . . . . Mr. Russo called Bender the same day with defendant's real address at the Parkside Motel. Bender called the owner, William Hansen, and told him that he was investigating a runaway who was the girlfriend of one of Hansen's tenants. Bender asked to be let into defendant's room because it was believed that there was a "strong possibility that Nicole was in that room . . . ."

Detective Bender met Hansen and a maintenance worker, Kenneth Brower, at the motel. After no one answered, Brower opened the room with a passkey. But Hansen and Brower immediately commented that the carpet and two sofa cushions were missing. Brower told Detective Bender he had been in the apartment the week before and that the carpet and cushions had been there.

A woman's blouse and pants were on the couch. Men's clothes were hanging from a rack. School books with Nicole's name on them were on a table. When Bender went into the bathroom, he saw the Mickey Mouse backpack [belonging to Nicole] under the vanity.

Bender then called Mr. Russo from the apartment and told him that although his daughter was not there, her things were. Bender was convinced that Nicole was staying in defendant's apartment.

At 8:00 that night, Bender went back to the Parkside Motel to see if Nicole had returned. He met Robert Romaniello, who lived next door. After being shown Nicole's picture, Romaniello identified Nicole's picture and said he first saw her on March 6 when she helped defendant move into his apartment. He said that about 5:00 p.m. on Sunday, March 12, he saw defendant and Nicole drive up in a maroon Subaru and enter the apartment. He described Nicole wearing clothes similar to those she wore when she left her home. Romaniello said that after defendant and Nicole went inside the apartment, he sat outside on a bench directly underneath defendant's window to wait for friends to arrive for a planned barbecue. As Romaniello sat with the back of his head up against the wall, he heard muffled voices. A couple of minutes later defendant walked outside and asked Romaniello how he was doing. Defendant went back into his apartment and immediately emerged, closing the door behind him, and walked around the corner toward the 7-Eleven store . . . . About five minutes later, defendant returned to his apartment with a bag in his hand and closed the door . . . . Romaniello returned to his apartment and watched a movie. He fell asleep and was awakened at about 8:30 p.m. by a vehicle with a loud muffler. Thinking that it may have been his friends, Romaniello looked outside and saw a white van parked behind his car. He no longer saw defendant's Subaru.

At about 9:00 p.m., Romaniello heard a loud thud on the adjoining wall to defendant's apartment, which he described as someone or something being slammed against the wall. At about 10:30 or 11:00 p.m., Romaniello saw defendant leave his apartment, open the van's side door, re-enter his apartment and return with a roll of carpet over his shoulder. Defendant turned the carpet around, placed it in the back of the van, closed the van door and drove off. Recalling the missing carpet along with defendant's odd behavior as described by Romaniello, and the inconsistency of defendant's story that he had dropped off Nicole in Brooklyn at 9:30 p.m. when Romaniello saw him in Seaside Park at that time, Detective Bender began to realize that the case involved more than a runaway girl . . . . After paging defendant again with no response, he called the Major Crimes unit of the Ocean County Prosecutor's Office. Search warrants were signed the following day based on Bender's affidavit for both defendant's apartment and the Ford van, which was located in Hauppague . . . . At defendant's apartment investigators recovered a pair of size six red jeans, a black shirt and a green jacket found on a bloodstained couch. The Mickey Mouse backpack was under the bathroom sink. Bloodstains were located on the bed frame, a chair, the bureau and door frame. A presumptive test for blood was performed which revealed blood in the bathroom and in the kitchen drains. On the bed were a pink and a white shirt, which also appeared positive for blood

[T]he Luminol showed a circular wiping motion, causing [the tester] to conclude that a great deal of blood had been cleaned up . . .

On the afternoon of March 17 . . . , Detective Bender received a message from headquarters that an arrest warrant had been issued for defendant and that defendant had contacted his uncle in Connecticut. The following day Bender . . . traveled to Wilton, Connecticut to interview Bernard Mancuso and his wife, Nancy . . . .

[O]n Friday, March 17, at about 1:30 p.m. defendant called. Nancy answered. [Nancy picked defendant up at the train station and he said the police were looking for him.] Alone in the living room with Bernard, defendant told him that he had had a fight with his girlfriend and hit her in the head six or seven times with a crowbar. When Bernard asked if she was dead, defendant told him that he was sure that she was because he "went back and slit her throat." Defendant told him that it had happened in his apartment in New Jersey and that he cleaned up well but "messed up" by leaving his blood-stained shirt at the apartment . . . . Bernard told him that fingerprints would convict him but defendant said he has wrapped Nicole's body in six or seven garbage bags, put her in a van, drove her to Long Island and put her in a dumpster. He refused to tell Bernard the location of the dumpster where he put the body. Bernard was mortified and afraid for himself, his wife and his daughter. When defendant asked him for money, he gave him the $200 he had in his wallet to get him out of the house. He then drove defendant back to the train station . . . .

On March 27, 1995, defendant called the Mancuso home. [Defendant told Bernard] he was in Los Angeles and asked him for money so that he could come home and straighten things out. Bernard refused to transfer money but said he would arrange for a plane ticket waiting for him at the Los Angeles airport . . . . Defendant was arrested at the Los Angeles airport when he attempted to pick up his ticket . . .

When he was returned to New Jersey, defendant was housed in the Ocean County Jail to await trial, and he became acquainted with Thomas MacPhee. MacPhee testified that defendant asked him if he knew anyone in the streets to kill his uncle for him because he felt that if the uncle testified against him, he would get thirty years in jail. MacPhee questioned why defendant would kill his uncle if he was innocent of killing Nicole. Defendant then admitted to MacPhee that he had killed her and that he was mad at her because she made him kill her . . . . According to MacPhee defendant said he wanted his uncle tortured. When MacPhee said cutting him up could be messy, defendant said it would not be a mess as he had cut up Nicole and put her in trash bags and buried her so that the body could never be found.

When MacPhee told defendant that he did not know anyone who would do the job, defendant asked MacPhee to do it when he got out of jail and promised him $5,000. Defendant showed MacPhee his bank statement which had about a $25,000 balance. MacPhee pretended to go along with the plan. He said defendant gave him detailed descriptions of Bernard and Nancy Mancuso, directions to their home, descriptions of their cars and license plate numbers, as well as an explanation of Bernard's daily routine at the train station and the address and directions to their summer home . . .

Urcinoli, 321 N.J. Super. at 523-533.

On October 22, 1999, Urcinoli filed a pro se notice of motion to file a petition for post conviction relief in the Law Division. In his attached certification, Urcinoli averred that, when he returned to his apartment on March 12, 1995, from the Seven-Eleven convenience store, he found Nicole Russo dead, with a knife sticking out of her neck and her left wrist cut. Urcinoli states that he disposed of the body because he was afraid he would be charged with murder. He avers that, although he told his attorney that he wanted to testify, his attorney advised him that he would be a terrible witness and refused to permit him to testify. Urcinoli contended in his motion for post-conviction relief that he did not receive a fair trial because he was not given the opportunity to testify. He further argued that trial counsel was ineffective because he failed to request a jury charge on the lesser included offenses of murder. In a pro se letter brief submitted to the trial court, Petitioner argued that trial counsel was ineffective for failing to object to testimony concerning luminol testing of his apartment for blood and failing to properly cross-examine witnesses for the State. After hearing oral argument, the trial court denied the application on April 20, 2000. Petitioner appealed. In an opinion filed on December 10, 2001, the Appellate Division affirmed denial of the petition for post-conviction relief. See State v. Urcinoli, Docket No. A-6329-99T4 slip op. (N.J. Super. Ct., App. Div., Dec. 10, 2001). On May 22, 2002, the Supreme Court of New Jersey denied the petition for certification. See State v. Urcinoli, 172 N.J. 359 (2002) (table).

On August 5, 2002, the Clerk of this Court accepted Urcinoli's first petition for writ of habeas corpus ("first petition") pursuant to 28 U.S.C. § 2254 for filing. See Urcinoli v. Hendricks, Civil No. 02-3813 (GEB) (D.N.J. filed Aug. 5, 2002). The petition raised eight grounds. In an Opinion and Order filed October 31, 2003, this Court dismissed the petition without prejudice as a mixed petition, see 28 U.S.C. § 2254(b), (c), and declined to issue a certificate of appealability. Id. Specifically, this Court determined that the petition was a mixed petition because Petitioner had not presented five of his eight claims to the New Jersey courts as federal claims. See Baldwin v. Reese, 541 U.S. 27 (2004); Duncan v. Henry, 513 U.S. 364, 365-66 (1995).

On December 13, 2003, Petitioner signed his second state petition for post conviction relief. On March 30, 2004, the Law Division denied relief. Petitioner appealed, and in an opinion filed March 1, 2005, the Superior Court of New Jersey, Appellate Division, affirmed the order denying post conviction relief. See State v. Urcinoli, Docket No. A-4432-03T1 slip op. (App. Div. March 1, 2005). The Appellate Division rejected Petitioner's claims as follows:

While defendant's point headings in this brief are not illustrative of his arguments, his arguments are totally lacking in substance. He claims, as he did in the first PCR petition, that trial counsel failed to properly investigate and prepare the case prior to trial, but does not articulate any specifics with respect to what could have or should have been investigated and presented, nor does he proffer any evidence that would change the outcome of the trial. He claims that trial counsel was totally unprepared for trial and that counsel's cross-examination was "entirely unfocused and irrelevant." Again, defendant fails to present specifics as to what counsel could have or should have done, or how it would have changed the outcome of the trial. He argues that appellate counsel was also unprepared and inadequately represented him, again without providing specifics.

Id. at p. 7.

On September 12, 2005, the New Jersey Supreme Court denied Petitioner's petition for certification. See State v. Urcinoli, 185 N.J. 264 (2005) (table).

On September 29, 2005, Petitioner signed his second § 2254 Petition, which is now before this Court on remand. The Petition raises eight grounds:

Ground One: THE TRIAL COURT VIOLATED THE FOURTEENTH AMENDMENT AND ABUSED ITS DISCRETION BY DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL ON COUNTS TWO, THREE, AND FOUR BECAUSE NO REASONABLE JURY COULD HAVE CONVICTED HIM OF ATTEMPTED MURDER AND CONSPIRACY TO COMMIT MURDER.

Ground Two: THE WARRANTLESS ENTRY BY POLICE INTO DEFENDANT'S APARTMENT VIOLATED THE FOURTH AMENDMENT AND ALL SUBSEQUENT POLICE SEARCHES WERE THE FRUIT OF THIS CONDUCT.

Ground Three: THE TRIAL COURT'S ADMISSION OF EVIDENCE THAT THE DEFENDANT STOLE A USED CAR WAS IRRELEVANT, UNDULY PREJUDICIAL AND VIOLATED THE FOURTEENTH AMENDMENT.

Ground Four: THE TRIAL COURT'S FAILURE TO SEVER COUNTS TWO, THREE, AND FOUR VIOLATED THE FOURTEENTH AMENDMENT BECAUSE PREJUDICE TO THE DEFENDANT OUTWEIGHED JUDICIAL ECONOMY. Ground Five: THE TRIAL COURT'S ADMISSION OF EXPERT DNA TESTIMONY VIOLATED THE FOURTEENTH AMENDMENT BECAUSE THE REPORT WAS NOT PROVIDED TO DEFENSE COUNSEL UNTIL AFTER THE TRIAL BEGAN.

Ground Six: THE INSTRUCTIONS VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT BECAUSE THE COURT FAILED TO INCORPORATE EVIDENTIARY FACTS INTO THE CHARGE AND FAILED TO CHARGE THE JURY ON THE LESSER INCLUDED OFFENSES OF AGGRAVATED AND RECKLESS MANSLAUGHTER AND PASSION-PROVOCATION MANSLAUGHTER, WHEN THE EVIDENCE REQUIRED SAME, THUS LIMITING THE JURY'S OPTIONS TO CONVICTION OR ACQUITTAL FOR MURDER ON COUNT ONE.

Ground Seven: TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE FOR REFUSING TO PERMIT DEFENDANT TO TESTIFY, FOR FAILING TO REQUEST INSTRUCTIONS ON THE LESSER INCLUDED OFFENSES TO MURDER, AND FOR PURSUING AN ERRONEOUS DEFENSE THAT NICOLE RUSSO WAS NOT DEAD.

Ground Eight: TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE FOR FAILING TO PROPERLY CROSS-EXAMINE SEVERAL WITNESSES. (Pet. ¶ 12, Rider C at Docket Entry #1.)

By Opinion and Order entered August 4, 2006, this Court dismissed the Petition as time barred and denied a certificate of appealability. The Third Circuit granted Petitioner's request for a certificate of appealability. By mandate filed on January 29, 2010, in this Court, the Third Circuit reversed and remanded for this Court to consider the exhausted claims Petitioner presented in his Petition. The parties thereafter filed a supplemental Answer and Reply.*fn1

II. STANDARD OF REVIEW

Section 2254(a) of Title 28 of the United States Code gives the court jurisdiction to entertain a habeas petition as follows:

[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.

28 U.S.C. § 2254(a).

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), limits a federal court's authority to grant habeas relief when a state court has adjudicated petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Where a federal claim was "adjudicated on the merits" in state court proceedings, the writ must be denied unless adjudication of the claim either involved an unreasonable application of clearly established federal law, or was based on unreasonable determination of the facts in light of the evidence before the state court. See 28 U.S.C. § 2254(d). Specifically, § 2254(d) provides:

(d) An application for a writ of habeas corpus . . . 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). "A state court decision is an 'adjudication on the merits,' reviewed under the deferential standard of § 2254(d), where it is 'a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground.'" Simmons v. Beard, 581 F. 3d 158, 166 (3d Cir. 2009) (quoting Rompilla v. Horn, 355 F.3d 233, 247 (3d Cir. 2004), rev'd on other grounds sub nom. Rompilla v. Beard, 545 U.S. 374 (2005) (internal quotation marks and citation omitted)); see also Rolan v. Vaughn, 445 F. 3d 671, 678 (3d Cir. 2006). A state court may render an adjudication on the merits of a federal claim by rejecting the claim without any discussion whatsoever. See Rompilla, 355 F.3d at 247.

A court begins the analysis under § 2254(d)(1) by determining the relevant law clearly established by the Supreme Court. See Yarborough v. Alvarado, 541 U.S. 652, 660 (2004). Clearly established law "refers to the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412; see also Carey v. Musladin, 549 U.S. 70, 74 (2006) ("federal habeas relief may be granted here if the California Court of Appeal's decision was contrary to or involved an unreasonable application of this Court's applicable holdings"). A court must look for "the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71, 72 (2003).

A decision is "contrary to" a Supreme Court holding within 28 U.S.C. § 2254(d)(1), if the state court "contradicts the governing law set forth in [the Supreme Court's] cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of th[e Supreme] Court and nevertheless arrives at a [different] result." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). See also Thomas v. Carroll, 581 F. 3d 118, 124 (3d Cir. 2009) (State court's determination was not contrary to federal law, as required for habeas relief, where Supreme Court never faced the precise issue presented in the case). Under the "'unreasonable application' clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from th[e Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413.*fn2 Whether a state court's application of federal law is "unreasonable" must be judged objectively; an application may be incorrect, but still not unreasonable.*fn3 Id. at 409-10; see also Thomas v. Varner, 428 F. 3d 491, 497 (3d Cir. 2005). "[T]his Court has held on numerous occasions that it is not 'an unreasonable application of clearly established Federal law' for a state court to decline to apply a specific legal rule that has not been squarely established by this Court." See Knowles v. Mirzayance, 129 S. Ct. 1411, 1419 (2009). Moreover, "a court that unreasonably extends a rule in a new context or, in the alternative, unreasonably fails to extend a rule may also be deemed to unreasonably apply the correct rule." Thomas, 581 F. 3d at 124-25 (quoting Fischetti v. Johnson, 384 F. 3d 140, 148 (3d Cir. 2004)).

However, "[i]f the petitioner's legal claims were presented but not addressed by the state courts, 28 U.S.C. § 2254(d) does not apply, and federal courts undertake a de novo review of the claim." Rolan, 445 F. 3d at 678. As the New Jersey courts adjudicated petitioner's claims on the merits, this Court may not grant relief unless either § 2254(d)(1) or § 2254(d)(2) is satisfied. See 28 U.S.C. § 2254(d).

III. DISCUSSION

A. Due Process - Sufficiency of Evidence

In Ground One, Petitioner argues that the evidence was insufficient to convict him of attempted murder of the Mancusos and conspiracy to murder them. As factual support, Petitioner asserts:

[T]he most that can be said of defendant was that he was obsessed with his uncle, fantasized his death and discussed ways in which his death could occur. This type of conduct, however, is not a crime. MacPhee disclosed no conduct on defendant's part which could possibly be construed beyond a reasonable doubt as a substantial step toward the commission of a crime. There was nothing presented at the end of the State's case that a reasonable person would possibly consider as an offense, let alone being corroborative of a purpose to commit murder . . . .

While the defendant may have wished his uncle dead, there was no testimony that he ever acted on it. Importantly, there was no agreement between the defendant and MacPhee . . . . Whatever MacPhee may have pretended to do in order to ensnare defendant, it never arose to the level of an agreement between them. (Docket Entry #1 at pp. 11-12.)

A sufficiency of the evidence claim is governed by Jackson v. Virginia, 443 U.S. 307, 318 (1979). "[I]n a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 - if the settled procedural prerequisites for such a claim have otherwise been satisfied - the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Id. at 324; accord McDaniel v. Brown, 130 S. Ct. 665, 666 (2010) (per curiam). When assessing a sufficiency of the evidence claim in a § 2254 petition, the sufficiency of the evidence standard "must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson, 443 U.S. at 324 n.16. Jackson "requires a reviewing court to review the evidence in the light most favorable to the prosecution. Expressed more fully, this means a reviewing court 'faced with a record of historical facts that supports conflicting inferences must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" McDaniel, 130 S. Ct. at 673 (quoting Jackson, 443 U.S. at 326); see also House v. Bell, 547 U.S. 518, 538 (2006) ("When confronted with a challenge based on trial evidence, courts presume the jury resolved evidentiary disputes reasonably so long as sufficient evidence supports the verdict"). The Court emphasized that "the standard . . . does not permit a court to make its own subjective determination of guilt or innocence." Jackson at 320, n. 13. Moreover, "a reviewing court must consider all of the evidence admitted by the trial court, regardless whether that evidence was admitted erroneously." McDaniel, 130 S. Ct. at 672 (citation and internal quotation marks omitted). "[U]nder Jackson, the assessment of credibility of witnesses is generally beyond the scope of review." Schlup v. Delo, 513 U.S. 298, 330 (1995). The question is "whether, viewing the evidence in the light most favorable to the state, it was objectively unreasonable for the Appellate Division to conclude that a rational trier of fact could have found, beyond a reasonable doubt that [petitioner] was guilty[.]" Kamienski v. Hendricks, 2009 WL 1477235 (3d Cir. May 28, 2009).

In Ground One, Petitioner challenges the convictions for two counts of attempted murder of his uncle and aunt in violation of N.J. Stat. Ann. § 2C:5-1(a)(3), and conspiracy to commit murder contrary to N.J. Stat. Ann. § 2C:5-2. "A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he . . . [p]urposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime." N.J. Stat. Ann. § 2C:5-1(a)(3). As to conspiracy, New Jersey law provides:

a. Definition of conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:

(1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or ...


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