United States District Court, D. New Jersey
B. KUGLER, UNITED STATES DISTRICT JUDGE.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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
[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
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
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
(Dkt. No. 9-24 at p.2-9 (footnote omitted))
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)
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
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
9. The PCR court erred in hearing Mr. Butrim's PCR
petition where the petition was barred by Rule 3:22-3
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
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
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
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
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”).
filed an answer in opposition to the § 2254 habeas
petition. Petitioner then filed a reply brief in support of
his habeas petition.
CORPUS LEGAL STANDARD
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).
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.
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.”
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
Claim I - Sufficiency of the Evidence
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.
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
[State v. Reyes, 50 N.J. 454, 458-9 (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
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.
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
Sexual Assaults Against T.H. and L.H.
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).
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)
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)
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
Endangering the Welfare of a Child
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).
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
Claim II - Other Crimes Evidence
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). The Appellate Division analyzed this claim
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
Q: Okay. And how old were you when it stopped?
A: Ten or eleven.
Q: When it stopped with you?
Q: When you say both, what do you mean both?
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)
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).
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)
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?
Q: Okay. Would everybody be awake? Because in Buttonwood
there's only one bedroom, right?
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