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Butrim v. D'Ilio

United States District Court, D. New Jersey

March 27, 2018

ROBERT BUTRIM, Petitioner,
STEPHEN D'ILIO, et al., Respondent.




         Petitioner, Robert Butrim, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury of two counts of aggravated sexual assault, two counts of sexual assault and two counts of endangering the welfare of a child. He received a sentence of twenty-six years imprisonment. Petitioner raises several claims in his habeas petition. For the following reasons, the habeas petition will be denied.


Defendant was accused of sexually molesting his step-daughters, L.H. and T.H. (the girls or the twins). The State alleged that the crimes took place between 2000 and 2005, beginning when the girls were five years old. [FN 3] They reported the assaults when they were eleven years old. By the time the case came to trial in 2009, the girls were fourteen. The State's case rested on their testimony. There was no forensic evidence of the alleged sexual activity.
[FN 3] Defendant was also indicted on charges of sexually molesting a male child, R.H., but those charges were dismissed on the first day of trial.
The girls were the children of M.W.B., and Ted, a man to whom she was not married. When the girls were about three years old, their mother left the girls with Ted and moved in with defendant, whom she later married. The girls and their brother, R.H., would regularly visit their mother and defendant, first at an apartment in Maple Shade and later at a condominium in Evesham. The girls testified that, when they were about five years old, defendant began sexually molesting them during the visits at the Evesham residence.
According to both girls, the assaults took place at night, during the weekend visits with the mother and defendant. The twins shared a bunk bed in a back bedroom, while their step-sister, A.W., slept in a separate bed in that room. [FN 4] The twins each described incidents in which they awoke to feel defendant pulling up their sleep shirts, pulling down their underwear and touching their genitals. L.H. testified that defendant also touched her chest area and, on one occasion, placed his penis in her mouth. L.H. testified that she slept on the top bunk while her sister slept on the bottom bunk. Both girls described how defendant would stand on the bottom bunk in order to reach L.H. in the top bunk. [FN 5] According to L.H., on some occasions she would sleep in the bottom bunk and T.H. would sleep on the top bunk. On some of those occasions, defendant got into the bed with L.H., pulled her legs apart, touched her vagina with his penis, and placed it inside her vagina. She testified that this was painful.
[FN 4] A.W. was the child of M.W.B. and defendant.
[FN 5] Both girls testified that they kept their eyes closed while defendant was molesting them. But T.H. stated that she saw his legs when he was standing on the bottom bunk.
Both girls testified that they did not complain to their mother, because they were afraid she would not believe them. L.H. testified that she had told lies in the past, and thought her mother would think this was another lie. Both girls explained that they first disclosed defendant's actions to a friend, J.V., after she told them that she had been molested. The friend urged them to tell their parents what happened to them. According to both girls, Ted overheard them discussing whether they should tell someone or not, and asked what they were talking about. At that point, they decided to tell him.
Defendant did not testify at the trial. Instead, the defense called two of the investigating detectives, in an attempt to establish that the girls' statements to the police contradicted their trial testimony in some respects, and that the police conducted an inadequate investigation. During cross-examination, the prosecutor elicited from the detectives that defendant and his wife disposed of the bottom bunk-bed mattress (but not the top mattress) through an internet trading website a couple of months before the investigation commenced. [FN 6]
[FN 6] The mattress was disposed of between the time the children disclosed the alleged sexual abuse to their mother and Ted, and the time the police were called. The parties stipulated that the police tracked down the mattress, tested it, and found no sexual DNA.
The defense also presented testimony from the girls' mother and from a series of character witnesses. According to M.W.B., her romantic relationship with the girls' father, Ted, ended in the fall of 1996, when the children were very young. However, she and Ted continued “financially living together” in the same apartment, essentially as housemates, until October 1998 when she moved in with defendant. She testified that before the girls made their accusations against defendant, they had expressed a desire for her and Ted to renew their relationship.
M.W.B. also testified that T.H. had recanted her accusations. She recounted a 2007 telephone call with T.H. in which the girl stated that “she didn't understand why this was still going on and that nothing had happened anyway.” M.W.B. testified that in 2008, T.H. again told her that “nothing ... had happened” and also asked “what would happen” to defendant if it turned out that someone else was the culprit. In T.H.'s direct testimony, she had denied making any of those statements.
M.W.B. testified that on occasion when the children were visiting at the Evesham apartment, she saw defendant take L.H. into one of the bedrooms for an extended period of time. However, when her counsel asked if she had entered the room “to see what was going on, ” M.W.B. replied that she had, and she confirmed that she never saw defendant doing anything inappropriate. According to M.W.B., the children did not complain to her about defendant until their 2005 disclosure. She also testified that she laundered all the bed linen in the house and never saw signs of sexual activity on the children's sheets.
In an effort to show that the children might have acquired some sexual awareness from a source other than defendant's alleged conduct, defense counsel elicited from M.W.B. testimony that, while she was still living with Ted, he had a subscription to Playboy magazine. She did not testify as to whether the children ever saw the magazines. She further testified that Ted had nude photographs of her, taken when she was sixteen years old, and he kept them on his dresser where the children could see them. She was not asked, and did not explain, why she permitted him to do that. In their testimony, the girls denied seeing any nude pictures on their father's dresser.
According to M.W.B., in October 2005, she received a telephone call from her mother stating that there was something she needed to hear from L.H. and urging her to come to Ted's house immediately. When M.W.B. arrived, L.H. told her that defendant “[had] sex” with her. M.W.B. immediately examined the child and found no evidence of injury. She believed the child might be lying. Instead of calling the police or the Division of Youth and Family Services (DYFS), M.W.B. arranged for L.H. to be interviewed, two weeks later, by a retired therapist recommended by her mother. On cross-examination, she admitted to having a similar skeptical reaction when she learned of T.H.'s accusations, which she claimed she did not hear about until a week after L.H.'s disclosure. She questioned T.H. and was not convinced. She did not take either child to be examined by a doctor, nor did she notify the authorities. She testified that the therapist who spoke to L.H. found the interview “inconclusive.” She also testified that L.H. had a history of lying.
M.W.B. first testified that, after the accusations were made, the children visited her house only when defendant was not present. However, she recalled that the entire family spent Thanksgiving and Christmas, 2005, and New Year's Day, 2006, at a relative's house, and the children seemed at ease interacting with defendant. Later in her testimony, M.W.B. testified that, at some point after the girls made the accusations against defendant, a situation arose in which she and Ted both needed to work and could not find a babysitter for the girls. According to M.W.B., she and Ted allowed the girls to stay at her and defendant's home, and allowed defendant to babysit the children for those three days. She testified that the girls were asked for their consent to the arrangement and did not object. In their testimony, the girls denied that any of this occurred. They testified that they did not go to their mother's home when defendant was present.
On cross-examination, M.W.B. admitted that when the children's school reported their allegations to DYFS, the police were also notified. This occurred several months after the girls first told M.W.B. that defendant molested them. The police asked M.W.B. to participate in a “consensual intercept”-a monitored telephone call with defendant-to determine whether he would admit to the allegations. She refused. She admitted telling the police that she believed someone “traumatized” her daughters but that defendant was not the culprit.
Called as a defense witness, M.W.B.'s mother (grandmother) testified that she was present on the evening in 2005 when both girls first alleged that defendant “touched” them inappropriately. She stated that she told M.W.B. about both girls' allegations that same night and that, at her suggestion, M.W.B. immediately examined both girls. The grandmother testified that she suggested the name of a retired therapist, whom she knew. She further testified that based on her knowledge of both girls' characters, they were untruthful children.
Called by the defense, defendant's mother also testified that the girls had a reputation for being untruthful. She further testified that, when the entire family was at her house for Thanksgiving in 2005, the girls wanted to spend time with her and with defendant. The defense also presented several witnesses who attested to defendant's law-abiding character.

(Dkt. No. 9-24 at p.2-9 (footnote omitted))

         Petitioner was convicted in 2009 and sentenced in 2010. Petitioner did not immediately file a direct appeal. Instead, he filed a PCR petition. The Superior Court of New Jersey, Burlington County Law Division denied petitioner's PCR petition on February 25, 2011. Petitioner appealed that denial to the Appellate Division. He also filed a motion for leave to file a direct appeal nunc pro tunc. The Appellate Division granted that motion and consolidated petitioner's direct appeal and appeal of the PCR denial. On October 22, 2013, the Appellate Division affirmed the judgment of conviction and affirmed the denial of petitioner's PCR petition. The New Jersey Supreme Court denied certification on May 22, 2014. (See Dkt. No. 9-33)

         In July, 2014, this Court received petitioner's pro se habeas petition filed pursuant to 28 U.S.C. § 2254. Petitioner raises several claims in his habeas petition; they are as follows:

1. The State failed to meet its burden of proof beyond a reasonable doubt that Mr. Butrim unlawfully committed sexual assaults against T.H. and L.H. and that he endangered the welfare of those children (“Claim I”).
2. The jury heard impermissible other crimes evidence through the testimony of T.H. (“Claim II”).
3. The trial court erroneously permitted the jury to hear the playback of only the direct testimony of the witnesses and not the cross-examination (“Claim III”).
4. The trial court erred in permitting the detective to testify that he believed the charges against Mr. Butrim were proper (“Claim IV”).
5. The prosecutor's comments during his summation were inappropriate and denied Mr. Butrim a fair trial (“Claim V”).
6. The court erroneously ordered that Mr. Butrim's sentence for the two counts of aggravated sexual assault run consecutive to each other. The court also double counted an aggravating factor and failed to consider mitigating factors resulting in an excessive sentence (“Claim VI”).
7. The trial court erred in denying Mr. Butrim's petition for PCR based on his claim of ineffective assistance of counsel where it was shown that counsel failed to prepare witnesses and did not properly advise Mr. Butrim as to his right to testify (“Claim VII”).
8. The PCR court improperly denied Mr. Butrim's petition for PCR without conducting an evidentiary hearing (“Claim VIII”).
9. The PCR court erred in hearing Mr. Butrim's PCR petition where the petition was barred by Rule 3:22-3 (“Claim IX”).
10. Mr. Butrim did not receive effective assistance of PCR counsel in that counsel filed Mr. Butrim's PCR petition prior to filing a direct appeal and failed to support claims raised in the petition with affidavits (“Claim X”).
11. The decision to forego filing a direct appeal was a gross dereliction of duty on the part of the attorney representing him during post-verdict proceedings (“Claim XI”).
12. The prosecutor improperly elicited testimony to show that Mr. Butrim's wife refused to cooperate with authorities who wanted to obtain a consensual intercept, and then made improper comments during summation to suggest that Mr. Butrim's wife's actions should weigh in the determination of Mr. Butrim's guilt or innocence (“Claim XII”).
13. It was plain error for the trial court to play back the direct testimony of L.H. and T.H. without playing back their cross-examination as their cross-examination was both material and impeaching (“Claim XIII”).
14. Mr. Butrim was denied effective assistance of counsel at trial and on direct appeal in the following ways: (a) trial counsel was ineffective for failing to appeal the decision to replay only the victims direct testimony without also replaying their cross-examination; (b) trial counsel was ineffective for failing to challenge the reliability L.H.'s testimony by neglecting to question Detective Cranston about L.H.'s inconsistent claim that Mr. Butrim ejaculated in her mouth; (c) trial counsel was ineffective for failing to request a pre-trial hearing to determine the reliability of the testimony of L.H. and T.H.; and (d) trial counsel was ineffective for not objecting to the prosecutor's remarks during summation (“Claim XIV”).
15. Mr. Butrim was denied effective assistance of PCR counsel on initial review of claims that trial counsel was ineffective in the following ways: (a) PCR counsel knew or should have known that he had a duty to obtain an affidavit or certification from A.W. when presenting a claim that trial counsel failed to call an eyewitness at trial; (b) PCR counsel has an obligation to make sure factual allegations are supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification; (c) PCR counsel's omission deprived Mr. Butrim of the right to effective assistance of counsel on his initial review collateral proceeding (“Claim XV”).
16. Constitutional violations have resulted in the conviction of Mr. Butrim, who is actually innocent, based upon ineffective assistance of trial, appellate and PCR counsels by failing to raise this issue pursuant to Martinez v. Ryan, 566 U.S. 1 (2002) such that this ground should not be barred by federal review (“Claim XVI”).

         Respondents filed an answer in opposition to the § 2254 habeas petition. Petitioner then filed a reply brief in support of his habeas petition.[2]


         An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws or treaties of the United States. See Engle v. Isaac, 456 U.S. 107, 119 (1982); see also, Mason v. Myers, 208 F.3d 414, 415 n.1 (3d Cir. 2000) (citing 28 U.S.C. § 2254). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. 104-132, 110 Stat. 1214 (Apr. 24, 1996), applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's 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 state court. See 28 U.S.C. § 2254(d).

         As a threshold matter, a court must “first decide what constitutes ‘clearly established Federal law, as determined by the Supreme Court of the United States.'” Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). “‘[C]learly established federal law' under § 2254(d)(1) is the governing legal principle set forth by the Supreme Court at the time the state court renders its decision.” Id. (citations omitted). A federal habeas court making an unreasonable application inquiry should ask whether the state court's application of clearly established federal law was “objectively unreasonable.” See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, “a federal court may not issue a writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411.

         The AEDPA standard under § 2254(d) is a “difficult” test to meet and is a “highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). The petitioner carries the burden of proof and with respect to review under § 2254(d)(1), that review “is limited to the record that was before the state court that adjudicated the claim on the merits.” Id.

         In applying AEDPA's standards, the relevant state court decision that is appropriate for federal habeas corpus review is the last reasoned state court decision. See Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir. 2008). Furthermore, “[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); see also Dennis Sec'y Dep't of Corr., 834 F.3d 263, 353 n.10 (3d Cir. 2016) (Jordan, J., concurring in part and concurring in the judgment) (noting that while Ylst predates the passage of AEDPA, the Ylst presumption that any subsequent unexplained orders upholding the judgment will be presumed to rest upon the same ground is still valid). Additionally, AEDPA deference is not excused when state courts issue summary rulings on claims as “[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)).


         A. Claim I - Sufficiency of the Evidence

         In Claim I, petitioner argues that the state failed to meet its burden of proof that he committed sexual assaults against T.H. and L.H. and that he endangered the welfare of a child.

         The Appellate Division stated as follows:

Defendant contends that the trial court should have granted his motion for a judgment of acquittal, because the girls were not believable witnesses and there was no corroborating evidence. For similar reasons, he argues that the verdict was against the weight of the evidence. We cannot agree.
On a Rule 3:18 motion for a judgment of acquittal at the end of the State's case, the trial court
must determine . . . whether, in viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 458-[5]9 (1967).]
We apply the same standard in reviewing the trial court's decision. State v. Pickett, 241 N.J.Super. 259, 262 (App. Div. 1990).
On a motion for a new trial, premised on the verdict having been against the weight of the new evidence, the trial court considers whether “it clearly and convincingly appears that there was a manifest denial of justice under the law.” R. 3:20-1.
A trial court may only set aside a jury verdict as against the weight of the evidence if, considering the jury's opportunity to assess the witnesses' credibilities, a manifest denial of justice clearly and convincingly appears. See R. 3:20-1. The jury is free to believe or disbelieve a witness's testimony. See State v. Reyes, 50 N.J. 454, 464 (1967). On a motion for a new trial, the objective is not to second-guess the jury but to correct the injustice that would result from an obvious jury error. [State v. Saunders, 302 N.J.Super. 509, 524 (App. Div. 1997).]
We review the trial judge's decision for abuse of discretion. See State v. Artis, 36 N.J. 538, 541 (1962).]
Applying those standards, we find no error in the trial judge's decision to deny defendant's motions under either Rule 3:18 or Rule 3:20-1. The victims' testimony was not inherently incredible. Although their testimony was contradictory in some respects, it was consistent in its most important details. If believed, their version of events provided ample proof to support defendant's conviction. Moreover, the defense rested largely on the testimony from the girls' mother, M.W.B. Reasonable jurors could have found her highly unsympathetic and her testimony not believable. They could also have found it suspicious that she and defendant discarded the girls' mattress after they revealed the molestation to their parents but not before the police became involved.

         The Due Process Clause of the Fourteenth Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime for with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a conviction, if “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). A petitioner raising an insufficiency of the evidence claim faces a “'very heavy burden' to overturn the jury's verdict for insufficiency of the evidence.” United States v. Root, 585 F.3d 145, 157 (3d Cir. 2009) (citing United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998)). In analyzing a sufficiency of the evidence claim, a court examines both the direct and circumstantial evidence in their totality. See United States v. Pavulak, 700 F.3d 651, 668 (3d Cir. 2012) (citations omitted). “[F]ederal courts must look to state law for ‘the substantive elements of the criminal offense, ' but the minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law.” Coleman v. Johnson, 566 U.S. 650, 655 (2012) (citation omitted). The credibility of witnesses, the resolution of conflicts of evidence, and the drawing of reasonable inferences from proven facts all fall within the exclusive province of the factfinder and, therefore, are beyond the scope of federal habeas sufficiency review. See Jackson, 443 U.S. at 319.

         i. Sexual Assaults Against T.H. and L.H.

         Petitioner first argues that there was insufficient evidence to convict him of sexual assault against T.H. and L.H. Under New Jersey Law, “an actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances: (1) The victim is less than 13 years old[.]” N.J. Stat. Ann. § 2C:14-2a(1). New Jersey law further provides that “an actor is guilty of sexual assault of he commits an act of sexual contact with a victim who is less than 13 years old and the actor is at least four years older than the victim.” Id. § 2C:14-2(b). Sexual penetration is defined as “vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina by the actor or upon the actor's instruction. The depth of insertion shall not be relevant as to the question of commission of the crime.” Id. 2C:14-1(c).

         During trial, L.H. testified that petitioner would kiss her. (See Dkt. No. 9-35 at p.22) She testified that she knew it was him because he was the only male adult in the family and one time she felt his beard on her face. (See Id. at p.23) Furthermore, L.H. testified that petitioner would touch her under her shirt and on her “private area” with his hands and with his private spot (See Id. at p.24) She stated that petitioner would pull her underwear down. (See Id. at p.25) He would put his private part on the outside and inside of her private part. (See Id. at p.26) She further testified that petitioner kissed her private area and chest in addition to her lips. (See Id. at p.27) L.H. also stated that petitioner would put his private area into her mouth. (See Id. at p.29) L.H. also testified that this started when she was six years old and occurred for a couple of years. (See Id. at p.30)

         T.H. testified that petitioner would lift her shirt while she was sleeping. (See Id. at p.56) He would also pull down her shorts/underwear. (See id.) He would then touch her vagina. (See id. at p.57) T.H. also testified that he would blindfold her and put chocolate or strawberry milk stuff on his penis and have her taste it. (See Id. at p.60-61)

         Petitioner is not entitled to habeas relief on his claim that there was insufficient evidence to convict him of sexual assault. His argument is more akin to challenging the credibility of the two victims. This was the province for the jury to decide. See United States v. Soto, 539 F.3d 191, 194 (3d Cir. 2008) (“In examining a sufficiency of the evidence claim, [i]t is not for us to weigh the evidence or to determine the credibility of witnesses.”) (internal quotation marks and citations omitted). Accordingly, petitioner is not entitled to federal habeas relief on this claim in light of the victims' testimony that implicated him.

         ii. Endangering the Welfare of a Child

         Petitioner also claims that there was insufficient evidence to convict him of endangering the welfare of a child. In New Jersey, a person is guilty of endangering the welfare of a child in the second degree if he “engages in sexual conduct which would impair or debauch the morals of the child[.]” N.J. Stat. Ann. § 2C:24-4(a). “[T]he focus in a prosecution for endangering the welfare of a children shifts from the mental state of the actor in performing the lewd conduct to the potential effect that such conduct may have on the morals of the child or children who are witness to the conduct.” State v. Hackett, 764 A.2d 421, 426 (N.J. 2001). Endangering the welfare of a child does not merge with sexual assault where the child endangerment conviction is also directed at the defendant's violation of his parental duty. See State v. D.R., 537 A.2d 667, 682 (N.J. 1988).

         Similar to his arguments with respect to his sexual assault convictions, petitioner's arguments with respect to his endangering the welfare of a child relate to the credibility of the victims' testimony. This was for the province of the jury to decide given the testimony of the victims' that implicated petitioner as outlined above. Thus, petitioner is not entitled to federal habeas relief on Claim I.

         B. Claim II - Other Crimes Evidence

         Petitioner argues in Claim II that the jury heard impermissible other crimes evidence through the testimony of T.H. when she testified that petitioner sexually assaulted R.H. Petitioner asserts that inclusion of this evidence does not fall within any of the exceptions enumerated in New Jersey Rules of Evidence 404(b).[3] The Appellate Division analyzed this claim as follows:

We find no plain error in T.H.'s passing comment about her brother, R.H. The testimony arose in this context. During T.H.'s testimony, the prosecutor questioned her as to how long the sexual assaults lasted, and the following exchange occurred:
Q: Okay. And how old were you when it stopped?
A: Ten or eleven.
Q: When it stopped with you?
A: Both.
Q: When you say both, what do you mean both?

         A: I mean, like all of us, me, [L.H.] and [R.H.].

Defense counsel did not object. The prosecutor then asked if T.H. had seen defendant touch “any of the other children in the house, [R.H.] and [A.W.]?” to which T.H. replied “No.” We conclude that the prosecutor's follow-up question, which referred to the brother and the step-sister, effectively neutralized any possible implication that T.H. was accusing defendant of molesting anyone besides herself and L.H.

(Dkt. No. 9-24 at p.20-21)

         At the outset, to the extent that petitioner is arguing that the state court erred in permitting T.H. to make the statement at trial regarding R.H., this would be a state evidentiary question that is not appropriate for this Court to review in these federal habeas proceedings. See Wilson v. Vaughn, 533 F.3d 208, 213 (3d Cir. 2008) (“Admissibility of evidence is a state law issue.”) (citing Estelle v. McGuire, 502 U.S. 62, 72 (1991)). The due process inquiry that is applicable to this claim is whether the admission of this evidence was so arbitrary or prejudicial that it rendered the trial fundamentally unfair. See Romano v. Oklahoma, 512 U.S. 1, 12-13 (1994); see also Keller v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001) (noting that to show an evidentiary error rises to the level of a due process violation, a petitioner must show “that it was of such magnitude as to undermine the fundamental fairness of the entire trial.”) The United States Supreme Court has “defined the category of infractions that violate ‘fundamental fairness' very narrowly.” Dowling v. United States, 493 U.S. 342, 352 (1990).

         Petitioner has failed to show that T.H.'s passing comment about her brother during trial rendered his trial fundamentally unfair. Indeed, as noted by the state court, immediately after T.H.'s statement that included her brother, T.H. testified that she never saw petitioner touch anyone else, which would obviously include her brother. (See Dkt. No. 9-35 at p.66) Thus, immediately after T.H.'s statement, the jury also heard from T.H. that she never saw the petitioner touch her brother. Additionally, the trial judge specifically instructed the jury during the charge that the charges against petitioner related to T.H. and L.H. (See Dkt. No. 9-37 at p.60-65)

         Within this claim, petitioner also alleges that “not only did T.H. refer to the allegation that Mr. Butrim had inappropriately touched R.H. in the past, but she also included R.H. in her account of the incident in the kitchen.” (Dkt. No. 3 at p.20) For context, the relevant colloquy took place between T.H. and the prosecutor during trial with respect to the incident in the kitchen:

Q: Okay. Did he ever take his penis and touch parts of you with his penis?
A: I don't remember. I mean -
Q: Okay. Did he ever touch your mouth with it?
A: I think one time when I was living in, when he was living in Buttonwood, he'd like take us into the kitchen and put like chocolate milk stuff and like strawberry stuff on his thing and we'd be blindfolded and taste it. . . .
Q: Okay. Now in Buttonwood, tell me about this. Tell me what it is you're describing there.
A: He'd go in the kitchen and I guess he'd put stuff on him, but and then he'd blindfold us and said try it and then -
Q: Okay. This what your telling me know, did this, did this happen during the day or the night?
A: Day when my mom was at work.
Q: Okay. These would be times when you, [L.], [R.] and [A.] would all be home?
A: Uh-huh.
Q: Okay. Would everybody be awake? Because in Buttonwood there's only one bedroom, right?
A: Uh-huh.
Q: Okay. Would everybody be awake?
A: Yes, in the living room.
Q: Okay. And was there a wall between the living room and the dining room or the living room and the kitchen?
A: No. Well, the kitchen, yes.
Q: There's a wall between the living room and the ...

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