The opinion of the court was delivered by: Hayden, District Judge
Petitioner Daniel Dandor, a convicted state prisoner, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his New Jersey state court conviction and sentence. For the reasons stated herein, the Petition will be denied for lack of substantive merit.
The facts of this case were recounted below and this Court,
affording the state court's factual determinations the appropriate deference, see 28 U.S.C. § 2254(e)(1), will simply reproduce the factual recitation as set forth in the unpublished opinion of the Superior Court of New Jersey, Appellate Division, decided on October 8, 2004, with respect to petitioner's direct appeal from his judgment of conviction and sentence:
The charges arose out of the murder of the sacristan of the Grace Episcopal Church in Newark on August 9, 1998. At 7:30 that morning, Tralynn Brown arrived at the church to drop off her son who was participating in a service later that morning. The church sacristan, seventy-one-year-old Roger Mook, was at the church preparing for services when Brown and her son arrived. After leaving her son at the church, Brown left to go grocery shopping. When she returned, she saw a man coming out of the church door with blood dripping from his hand. Brown passed the man face-to-face and described him as a black male in his early twenties wearing a blood stained shirt, baggy blue jeans, a green baseball cap and dark brown boots. After the man passed her, she saw him take off the blood-stained shirt as he walked away. Brown noted that the shirt was navy blue, V-neck, short sleeve, with grey and white trim. When Brown reached the door, she found it locked and noticed blood on the doorknob. She banged on the door and heard someone saying, "Help me, help me!" When someone finally opened the door, Brown saw several people in Mook's office. Among the people in the office was Hyacinth McCauley, who said that during the service she heard someone moaning, went to Mook's office with another person and found Mook lying on the floor. Mook told McCauley he had been stabbed. When McCauley opened Mook's shirt to take his pulse, she saw six stab wounds. The police were called and the ambulance arrived shortly thereafter. Mook later died of his wounds.
Brown told the police about the man she saw leaving the church, and the police took her to the area where the Puerto Rican Day parade was being held to see if she could identify him in the crowd. When she could not, she was taken to police headquarters and shown photos but was unable to identify the man she saw coming out of the church. A police artist prepared a sketch in accordance with Brown's description.
In the early morning hours of August 10, the day after Mook was stabbed, an individual who identified himself as "Thomas Parker" arrived at Newark Beth Israel Hospital in a cab. The cab driver approached Ray Ates, a security guard on duty at the door, and told Ates that his passenger needed help. Defendant got out of the cab, wearing a blue shirt and jeans. He had a bloody T-shirt wrapped around his wrist and was covered in blood. "Thomas Parker" told Ates that he had tried to kill himself. Ates took him to the triage unit where a knife and box cutter were found in defendant's jeans. A week later, the police presented Ates with a photo array from which he identified a photo of defendant as the man who had arrived in the cab.
While "Thomas Parker" was being treated for his injuries, which included a punctured lung and lacerations on his neck and wrists, he was attended by Robert Sosnicki, R.N. Later that evening, defendant was watching the six o'clock news on television while Sosnicki was changing an
I.V. bag for him. When the story about Mook's murder was shown, defendant quickly changed the channel, and an EKG alarm sounded, indicating that defendant's heart rate had soared to 177 beats per minute. Sosnicki was concerned and asked defendant if he was having chest pains, shortness of breath or dizziness. Defendant calmly responded that he was not in pain or distressed. Sosnicki became suspicious, however, because the spike in defendant's heart rate seemed to occur when defendant saw the television news report of Mook's murder. Sosnicki became more suspicious when a visitor stopped by defendant's room and called him "Dan." When Sosnicki told defendant he thought his name was "Thomas Parker," defendant said, "Well, yeah, that's a fictitious name." Acting on his suspicions, Sosnicki alerted hospital security who, in turn, contacted the Newark police.
The next day, Newark Detective Rashid Sabur went to the hospital to question defendant. Defendant told Sabur that his name was "Thomas Parker" and gave an incorrect date of birth, social security number and address. Defendant told Sabur that he was in the hospital because he had done something stupid and tried to kill himself. Sabur asked defendant if he would talk about the stupid thing he had done and defendant agreed. Before discussing the incident, however, Sabur asked defendant if he would permit a nurse to be present in the room as they talked about it. Defendant initially agreed but later said he was too ashamed and uncomfortable speaking with the nurse in the room, and she was asked to leave.
Defendant then spoke to Sabur and initially denied being in Newark on August 9 but later admitted that he was. He told Sabur that he cut himself in Irvington Park, although a later investigation disclosed no evidence of a suicide attempt at that location. When Sabur asked about the clothes defendant was wearing on the morning of August 9, defendant pointed to the clothes in his hospital bag which matched the description given by Tralynn Brown. At that point, Sabur read defendant his Miranda rights*fn1 and defendant waived them verbally. When Sabur asked defendant if he knew anything about the murder at the church, defendant said he was tired and wanted to go to sleep. Sabur stopped questioning defendant and was about to leave the hospital. In response to defendant's inquiry, Sabur gave defendant his pager number in case defendant wanted to get in touch with him.
At 4:30 a.m., defendant paged Sabur, saying he wanted to talk. By the time Sabur returned to the hospital, he had run a check on "Thomas Parker" and told defendant that he found that "Parker" had been arrested on a prior occasion. Defendant later admitted that he was Daniel Dandor.
Defendant told Sabur he was expecting the police to come and see him sooner or later. He told Sabur that he was a high school graduate and had attended three years at Rutgers where he studied mathematics before dropping out. When Sabur asked if defendant heard anything about an incident at the church, defendant became upset and started to cry. Sabur asked why he was crying, and defendant said he did not know. Sabur stopped questioning defendant and left the hospital at that point, but took a photo of defendant before leaving. Sabur subsequently put defendant's picture into a new photo array and showed it to Brown. Brown immediately identified defendant as the person she saw leaving the church on August 9.
Sabur returned to the hospital on August 14 to interview defendant further. After reading the Miranda warnings, defendant signed a written waiver of his rights and gave a statement admitting that he killed Mook with a box cutter. He said he did not know Mook and had no reason for killing him. He stated simply, "I don't know, I just lost it." Defendant also admitted attempting suicide because of his attack on Mook and indicated he had used the same box cutter on Mook and himself. Defendant then told Sabur he did not want to continue and Sabur ended the interrogation.
At trial, defendant did not testify, but his sister and mother both testified that prior to Mook's murder, defendant appeared distressed and had talked about suicide because he was having difficulties in school and because his mother was involved in an abusive relationship which caused her to go to Florida for her safety. Defendant's mother testified that she was a former member of the Grace Episcopal Church and that defendant had accompanied her to the church on at least one occasion before the murder.
Geoffrey Loftus, Ph.D., testified at trial on behalf of defendant as an expert witness in the area of human perception and memory. Loftus attacked Brown's testimony because Brown "had a relatively short period of time during which she was actually able to see the culprit's face." He estimated that Brown observed the man coming out of the church for approximately three seconds, during which she was distracted because she was late to pick up her son, saw blood on the hand of the man coming out the door and heard someone crying for help inside. According to Loftus, the distraction affected Brown's memory, rendering her unable to identify defendant as the culprit. On cross-examination, Loftus acknowledged that it was up to the jury to determine Brown's credibility.
The jury found defendant guilty of first degree murder and the weapons charge. (Re U,*fn2 October 8, 2004 Appellate Division Opinion at pp. 2-8).
On November 19, 1998, an Essex County Grand Jury indicted petitioner, Daniel Dandor ("Dandor"), under Indictment No. 98-11-4563. The Indictment charged Dandor with purposeful and knowing murder (count one), second-degree burglary (count two), felony murder (count three), fourth-degree unlawful possession of a weapon, a knife (count four), and third-degree possession of a weapon, a knife, for an unlawful purpose (count five). (Re U, Indictment at Da 1-6).
On March 27, 28 and April 5, 2001, the Honorable Peter J. Vasquez, J.S.C., heard and subsequently denied Dandor's motion to suppress his statement. A jury trial was held before Judge Vasquez on April 9, 2001. On May 2, 2001, after the close of the State's case, the court dismissed counts two and three (second degree burglary and felony murder) upon Dandor's motion. A mistrial was declared on May 7, 2001, when a juror told the other jurors on the panel that she knew Dandor and felt he could not be guilty. (Re U at Da46).
Dandor was retried before Judge Vasquez and another jury, from February 13, 2002 to March 14, 2002. He was found guilty of murder (count one) and possession of a weapon (count five) and acquitted of unlawful possession of a weapon (count four). (Re Q, March 14, 2002 trial transcript at page 43:line 18 - 45:6). Judge Vasqez heard and denied Dandor's motion for a new trial on May 2, 2002. Dandor was sentenced on May 3, 2002 to thirty (30) years in prison with a 30-year parole disqualifier. A concurrent term of six months on the weapon conviction also was imposed. (Re R, May 3, 2002 sentencing transcript at 32:14-25).
Dandor appealed his conviction and sentence to the Superior Court of New Jersey, Appellate Division. On October 8, 2004, the Appellate Division affirmed the judgment of conviction. (Re U at Da10-31). The Supreme Court of New Jersey denied Dandor's petition for certification on January 19, 2005. (Re U at Da32).
On August 18, 2005, Dandor filed a state PCR petition, raising a claim challenging the admissibility of his statement to the police. On February 1, 2007, Dandor's appointed counsel filed a supplemental brief raising claims of ineffective assistance of trial and appellate counsel. On March 8, 2007, the Honorable Michael C. Ravin, J.S.C., heard oral argument on the PCR petition. Judge subsequently denied the PCR petition and Dandor's request for an evidentiary hearing, by letter opinion and order, dated March 12, 2007.
Dandor appealed from denial of his state PCR petition. The Appellate Division affirmed by Opinion filed on October 8, 2008. (Re W). The New Jersey Supreme Court denied certification by Order dated December 2, 2008. (Re Z).
Dandor filed this habeas petition pursuant to 28 U.S.C. § 2254, on or about March 20, 2009. The State filed a response to the petition on December 1, 2009, with the relevant state court record. Dandor filed a reply/traverse on January 20, 2010.
Dandor asserts the following claims in his petition and amended petition for habeas relief:
A. Petitioner's right to due process was violated by introduction of his involuntary and coerced statement. (Petition, Ground one).
B. The State failed to sustain its burden of proof. (Pet., Ground two).
C. Robert Sosnicki's improper testimony at trial as an expert witness deprived Petitioner of due process. (Pet., Ground three).
D. Ineffective assistance of trial counsel in failing to adequately elicit exculpatory evidence. (Pet., Ground four).
E. Ineffective assistance of trial counsel in failing to call a favorable witness. (Pet., Ground five).
F. Ineffective assistance of trial counsel for inducing Petitioner not to testify at ...