KATHARINE S. HAYDEN, District Judge.
Robert Moses, a New Jersey state prisoner, challenges his 1993 Essex County conviction for murder (and other crimes) by petitioning for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. As indicated by the Court's primary docket number, Moses's journey through both the state and federal systems has been protracted; only recently did his petition become fully ripe for review. Now, for the following reasons, the Court will deny Moses's petition and will decline to grant a certificate of appealability (COA).
A) Offense, Trial, and Conviction
In October of 1992, Robert K. "Zoom" Moses was charged alongside Marvin "Tink" Williams and Chancell Youmans with crimes connected to the August 1992 shooting death of Corey "Giz" Stevens in Newark. Moses was tried separately before a jury in December 1993.
Because the statements and trial testimony of witnesses are critical to a proper evaluation of Moses's claims, the factual portion of the Appellate Division's direct-appeal opinion is set forth in full:
At approximately 9:00p.m. on August 23, 1992, Andre Shoulers was in the area of Hawthorne Avenue. On that night he witnessed co-defendant Marvin Williams and James Hardman argue over a card game. Shoulers also saw Williams hit Hardman over the head with a baseball bat. Co-defendant Chancell Youmans was present to witness the argument, but he was not a participant. After the argument, Williams and Youmans left the scene in a blue Ford Taurus. The Taurus was owned by Williams' girlfriend.
Shortly thereafter, Shoulers, Kevin Martin, Shouler's friend, and the victim, Corey Stevens, left the area to go to Prince Street. They went to Prince Street to speak with Williams to make sure that "nothing won't [sic] happen." The defendant, Robert Moses lives on Prince Street. When Shoulers, Martin and Stevens arrived at Prince Street they observed [Moses] standing next to a white Acura Legend automobile and retrieving a black sweatshirt (hoodie) from the trunk. Thereafter, Williams and Youmans got into the Acura Legend and Shoulers told them that there was "no need for any conflict" or that "there was no need to pack guns in it" because they were all from the same area. Shoulers even suggested that they resolve the situation by fighting. However, Williams did not like that idea and indicated that "no, there are guns involved." Shoulers saw Williams with the black TEC-9 handgun that he had displayed earlier while on Hawthorne Avenue. Shoulers saw Williams threaten James Hardman with the black TEC-9 on Hawthorne Avenue earlier that night when Williams and Hardman were engaged in the argument over the card game. Not being able to reason with [Moses], Williams and Youmans, Shoulers, Martin and Stevens returned to Hawthorne Ave.
At approximately 12:30A.M. on August 24, 1992, Sterling Alexander drove to the Boys' Club on Hawthorne Ave. As Alexander approached the Boys' Club, he saw two people inside the alleyway adjacent to Williams' house. He identified one of the persons as [Moses] and indicated that [Moses] was wearing a black hoodie. Alexander said that both [Moses] and the other individual had guns and they kept peeking around the corner looking in the direction of the Boys' Club and the nearby playground. The playground is located behind the Boys' Club. At this time, the victim and a couple of other people were standing near the playground.
Alexander stopped his car by the playground so that he could talk to the victim. The two began to talk, and approximately five minutes later, Alexander heard gunshots. The victim ran to the playground and Alexander looked through his rear view mirror and saw [Moses] running from Williams' house with a gun. [Moses] was shooting the gun towards the playground. Alexander left the area and returned approximately ten minutes later to discover that the victim had been shot.
Shoulers also testified that he saw [Moses] holding a black TEC-9 gun on that night. When he first saw [Moses], the victim was standing on the street. As the defendant began shooting the gun, the victim ran to the playground and fell. Shoulers ran over to the victim and saw blood and realized that the victim had been shot. As a result, Shoulers and some friends took the victim to the hospital by car. The victim subsequently died from a gunshot wound to the head. Shoulers testified that when [Moses] was shooting the gun, he did not see Williams or Youmans.
In a statement to the police, Shoulers never indicated that [Moses] was the person who shot the victim on August 24, 1992. However, on cross examination, he maintained that he knew all along that it was [Moses] who shot the victim. Shoulers did not tell the police that it was the defendant who shot the victim because Shoulers "wanted to get Mr. Moses himself."
Shortly before the shooting, Demetrice Hardin was on his way to his home which is located on Tillinghast Street, just around the corner from Hawthorne Avenue. He was about four or five houses from his residence when he heard several gunshots. After hearing the shots and within a minute, he saw [Moses] and another person run out from between the houses. As [Moses] approached him, Hardin asked "Who that? Who that?" [Moses] then shot at Hardin, who ran behind a van for refuge. [Moses] and the other male then ran across the street, entered a blue Taurus and left the area.
None of the eyewitnesses to the killing of Corey Stevens immediately came forward to speak to the police. Shoulers did not speak to the police until two days later, and Hardin did not come forward until one week later. Alexander never told the police or anyone what he knew about the incident until the day he testified at trial. Daryl Jackson testified for the defense. He stated that at the time of the incident he was on the playground but he was under the influence of drugs. As a result, he did not remember the incident. However, in a statement to the police on August 24, 1992, Jackson indicated that the victim was shot by a tall, light-skinned passenger of a blue Taurus or Jetta automobile. He said there were three people in the car which drove past the playground on Hawthorne Avenue. He further testified that as the car drove past, the shots were fired. Nevertheless, Jackson did not identify [Moses] as the person who shot the victim.
(Apr. 7, 1995 Op. 2-5.)
Moses was convicted of all charged offenses. He was sentenced to a term of life imprisonment with 30 years of parole ineligibility.
B) Appeal and State Post-Conviction Relief
On direct appeal, Moses attacked a jury charge, alleged prosecutorial misconduct, and contested portions of his sentence. The Appellate Division affirmed in an unpublished opinion, and the New Jersey Supreme Court denied a petition for certification on June 20, 1995. See State v. Moses, 142 N.J. 453 (1995).
Moses then filed a petition for post-conviction relief (PCR). As developed further below, he contended that he had been deprived of "crucial information regarding the credibility of a surprise state witness, " and had therefore been denied due process of law at trial. Developing the facts behind this claim took a long while; Moses's PCR application was filed in the summer of 1996, and the PCR court denied relief on November 29, 2001.
On PCR appeal, Moses added an attack on his sentence. The Appellate Division summarily affirmed in December 2003, holding that it was "satisfied that these arguments are without sufficient merit to warrant discussion in a further written opinion, and that the order of denial should be affirmed substantially for the reasons set forth by Judge Ryan in his written opinion of November 29, 2001." (Dec. 1, 2003 Op. 3-4.) The Appellate Division separately rejected the arguments "directed to the sentence" as procedurally barred. (Dec. 1, 2003 Op. 4.). Certification to the New Jersey Supreme Court was again denied. See State v. Moses, 180 N.J. 150 (2004).
C) Federal Procedural History
The federal procedural history of this case began in April 1997, when Moses filed (through counsel) a short federal habeas petition in order "to comply with the recent enactment" of the Antiterrorism and Effective Death Penalty Act of 1996 (AEPDA). (Apr. 23, 1997 Let. 1 [D.E. 1].). The petition, originally assigned to Judge Bissell, raised three bases for relief: 1) prosecutorial misconduct, 2) errors in the jury charge, and 3) a Brady violation in connection with the testimony of witness Sterling Alexander. ( See Pet. ¶¶ 12a-c [D.E. 1].) Moses asked that his petition be held in abeyance pending the resolution of his then-ongoing state postconviction proceedings. Hence, the petition was administratively terminated without prejudice to its later reopening. ( See July 31, 1997 Order [D.E. 6].)
In 2004, Moses moved pro se to reinstate his federal habeas proceedings. ( See Motion [D.E. 7].) After some back and forth, the request was eventually granted, and the petition was transferred to this Court. ( See Order [D.E. 10].)
Around the time Moses originally moved to reopen these proceedings, he filed a second, pro se 28 U.S.C. § 2254 petition, which was separately docketed under civil number 04-4441. In that pro se petition, Moses reiterated the "surprise witness" claim and jury-charge claims, but raised two new federal allegations: 1) he was "denied due process" due to juror misconduct, and 2) he received ineffective assistance of counsel. [D.E. 1 in 04-4441.] Case 04-4441 was later consolidated with case 97-2118. ( See June 23, 2005 Order [D.E. 5 in 04-4441].)
The state answered in 2006. [D.E. 14.] After further procedural delay relating to the retention of counsel, Moses filed a counseled reply in early 2012 [D.E. 20, characterized on the docket as "objections"], in which he "consent[ed] to dismissal of the new claims [raised in the second petition], " and agreed to have the petition ruled upon as originally filed. (Reply 4.)
II. Standard of Review
As Moses's petition was filed after April 1996, the AEDPA standard of review applies. United States v. Thomas, 221 F.3d 430, 434 (3d Cir. 2000). AEDPA limits the "the availability of federal habeas relief... with respect to claims previously adjudicated on the merits' in state-court proceedings." Harrington v. Richter, 131 S.Ct. 770, 780 (2011) (quoting 28 U.S.C. § 2254(d)). Habeas relief cannot be granted on those constitutional claims unless the state court's decision was "contrary to" or "involved an unreasonable application of" clearly established holdings-not dicta-of the United States Supreme Court. 28 U.S.C. § 2254(d)(1)-(2); Williams v. Taylor, 529 U.S. 362, 412 (2000). "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 [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. Under the unreasonable application' clause, a federal habeas 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 prisoner's case." Williams, 529 U.S. at 412-13. The relevant Supreme Court decisions must be those "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); see also Greene v. Fisher, 132 S.Ct. 38, 45 (2011).
As the Supreme Court has repeatedly emphasized, "this standard is difficult to meet." Harrington, 131 S.Ct. at 786. In particular, to succeed under the "unreasonable application of" prong of § 2254(d), a petitioner must show that "the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87; accord Eley v. Erickson, 712 F.3d 837, 847 (3d Cir.) (quoting Harrington ), cert. denied, 134 S.Ct. 254 (2013); Richardson v. Ricci, No. 10-4954, 2013 WL 3863994, at *4 (D.N.J. July 24, 2013) (McNulty, J.), COA denied, C.A. No. 13-3696 (3d Cir. order entered Dec. 4, 2013).
A) Prosecutorial Misconduct
Moses alleges that the prosecutor crossed the line into impermissible misconduct during the following exchange, which occurred during the prosecutor's summation:
Prosecutor : About a week ago the Reverend Jesse Jackson gave a speech to a group of young high school students in Atlanta. As he addressed the gathering he asked them if you are walking down a hallway and you saw in an open locker a Ku Klux Klansman in Ku Klux Klan paraphernalia, what do you do? Would you tell the authorities? Would you tell the principal? Every one of those individuals in that auditorium raised their hand and said they would.
Reverend Jackson then asked the next question. If you were walking down your high school hallway and you saw a fellow student take out a gun and shoot another student; what would you do? Would you tell the principal? Would you tell the authorities? There was a smattering of hands that went up. The vast majority of those high school students in that auditorium on that day stated that they would not go to the police [and] would not go and tell the principal.
Reverend Jackson then went on to say: Did you know that there have been more killings by gunshots to young people in inner cities, inner city black males-
Defense Counsel : I'm going to object to this. What does this have to do with the evidence in this case?
Prosecutor : Judge, this is an analogy. I will bring it together in one moment. In one year there are more killings than throughout the entire history of lynchings by the Ku Klux Klan.
These individuals or high school students have a mind set. That mind set: Don't tell on people who get involved with the police. Don't be involved with authorities. Be suspicious of authority. That is the mind set of these three individuals on Hawthorne Avenue in this particular case and that is what we have to deal with.
(Pet. ¶ 12a.) Later in the summation, the prosecutor began to discuss "the leading cause of death to black males between the ages of 15 and-" before drawing an objection. The objection was sustained. (Pet. ¶ 12a.)
Moses contends in his petition that this line of summation was improper:
The thrust of the prosecutor's statement was twofold: first, to bring in matters outside the record to explain his witnesses' failure to come forward with their stories and, second, to enflame the jury over both the high crime and death rate among black males and the unwillingness of those in the community to report those crimes to the police. In so doing, the prosecutor violated Petitioner's constitutional rights to due process and a fair trial.
(Pet. ¶ 12a.)
Moses originally raised this claim on direct appeal. The Appellate Division reviewed the remarks in question before deciding there was no error, holding both that "[d]rawing an analogy in summation is not improper, " and that, under the circumstances, the conduct was not such that a new trial was warranted. With regard to the statistical commentary, the judge properly instructed the jury that it was not bound "by any comments that were made by the attorneys" and that the remarks were not to be considered as evidence. (Apr. 5, 1995 Op. 9-12.)
This decision passes muster under 28 U.S.C. § 2254(d), and the Court will defer to it. "When analyzing a claim of prosecutorial misconduct, the key question is whether a state prosecutor's comments to the jury so infec[ted] the trial with unfairness as to make the resulting conviction a denial of due process.'" Rolan v. Coleman, 680 F.3d 311, 321 (3d Cir.) (quoting Greer v. Miller, 483 U.S. 756, 765 (1987)), cert. denied, 133 S.Ct. 669 (2012); see also Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Here, the Appellate Division weighed the prosecutor's conduct against the effect of the curative instructions and the circumstances of the trial as a whole. See Darden v. Wainwright, 477 U.S. 168, 182 (1986). Neither the prosecutor's use of a statistical analogy during the summation phase of the trial, nor his attempts to contextualize the state witnesses' reluctance to come forward, clearly exceeded the boundaries established by the line of relevant Supreme Court cases.
Moses relies to the contrary on Moore v. Morton, 255 F.3d 95 (3d Cir. 2001), but Moore is easily distinguishable. Significantly, there the Third Circuit quoted the portion of the opinion of the Appellate Division that specifically found the prosecutor's comments to be improper:
Although we are persuaded that the prosecutor's comments did not deprive defendant of a fair trial, we would be derelict if we did not express our disapproval in the strongest terms. The summation showed a disregard of the obligation of the prosecutor to play fair and see that justice is done. [citation omitted]. Our role, however, is not to supervise or punish prosecutorial misconduct. It is to examine the trial for fairness. Fortunately, the judge, unlike the prosecutor, was sensitive to the need for a fair trial and promptly and forcefully delivered curative instructions to the jury.
Id. at 108. In granting habeas relief, the Third Circuit pointed out that governing Supreme Court precedent "requires the reviewing court to factor the prejudicial effect of the prosecutor's improper remarks into the jury's finding of guilt and then assess its impact." Id. at 113. Surveying the record, summarizing the various comments made by the prosecutor, and noting that the evidence was "not strong, " the Circuit distinguished the fact-pattern in Moore from those instances where the Supreme Court had found "highly prejudicial prosecutorial arguments curable." Id. at 119. Hence, in "[t]aking into account the prosecutor's highly prejudicial comments, the trial judge's curative instructions, and the strength of the evidence, [the Third Circuit] believe[d] a reasonable application of Supreme Court precedent requires finding Moore's trial was so infected with unfairness that it was constitutionally infirm." Id. ; see also id. at 120 (Rendell, J., concurring) (observing that that prosecutor's remarks "were, in fact, outrageous in their direct appeal to the jury to decide the case on improper grounds and abandon the standards that our system of justice requires").
In this case, the prosecutor's comments do not warrant such condemnation, and were curable. See Donnelly, 416 U.S. at 647 ("[A] court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations."). The Appellate Division reasonably decided that the prosecutor's comments were not improper at all, and was not required to weigh their effect against the quantum of evidence supporting guilt or innocence. Fahy v. Horn, 516 F.3d 169, 204 (3d Cir. 2008) ("[T]he comments Fahy recites were either not improper, or if they were improper, not ...