United States District Court, D. New Jersey
Nevius, No. 201449E New Jersey State Prison Petitioner pro se
Stephen C. Sayer Cumberland County Prosecutor's Office
Counsel for Respondents
L. HILLMAN, U.S.D.J.
Thomas Nevius (“Petitioner”), a prisoner
presently incarcerated at New Jersey State Prison in Trenton,
New Jersey, has filed a Petition for a Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (the
“Petition”). See ECF No. 1. Respondents the
Attorney General for the State of New Jersey and Steven
Johnson (“Respondents”) filed an Answer to the
Petition (the “Answer”). See ECF No. 8. For the
following reasons, the Court will deny the Petition and a
certificate of appealability shall not issue.
opinion on direct appeal, the Superior Court of New Jersey,
Appellate Division provided the following summary of the
factual background of Petitioner's case:
According to the State's proofs, Ruth Walker, the
homicide victim, was a fifty-two-year-old woman living alone
in a one-bedroom apartment at the Chestnut Square Apartment
complex in Vineland. On Tuesday, July 30, 2002, her daughter
Janira Walker-Castro, who was visiting from Florida, and her
extended family spent the day in Wildwood. Ruth, however,
stayed home because she was tired.
At 8:19 p.m., Janira called her mother on the cell phone she
left with her, letting her know when the family would arrive
for a dinner that Ruth planned to cook. Surveillance video at
the Chestnut Square Apartment complex showed Ruth pulling
into her parking space at 8:22 p.m., and exiting the van.
When Janira phoned her mother again close to 10:00 p.m.,
there was no answer.
Later, the family arrived at Ruth's apartment and found
it dark; the outside and inside doors were locked. No. one
had a key so Anthony Reyes, the victim's son, using a
knife from his nearby home, eventually opened the outside
door, and then easily gained entry to the inner door.
Janira's husband went into the bedroom and discovered the
victim, who was clothed and wearing necklaces, lying on her
back on the floor. She had no pulse. The bedroom was in
disarray; the folding closet doors were on the floor, a table
was broken, and the bedding was disheveled.
There was a blood-stained white, Fruit of the Loom T-shirt,
size XXXL, on the bed, along with a bracelet. According to
Janira, who was familiar with her mother's wardrobe, the
victim did not wear or even own white Fruit of the Loom
T-shirts. Police also found $391 in cash on top of the
kitchen table, along with a cell phone and Ruth's keys.
All of the windows were found to be locked and the sliding
glass door secure; however, the rear kitchen screen had a
small incision in it, but it was in a locked down position,
and no entry could have been gained from it. There was a pot
of water on the stove and meat defrosting in the sink, which
led Vineland police officer Robert DeMarchi to surmise that
as the victim started to prepare dinner, she heard a noise in
the bedroom and took a knife with her to investigate.
Dr. Elliott Gross, the Cumberland County Medical Examiner at
the time, performed an autopsy the next day. He determined
that the victim, who was five-feet-six inches tall and
weighed 225 pounds, was stabbed three times in the neck, with
one of the stab wounds transecting the jugular vein and going
through two of the vertebrae, which caused blood and air to
reach the heart causing death. Due to the way the blood
seeped down the victim's breasts, Gross believed the neck
wounds were caused while she was standing.
Additionally, the victim's hyoid bone (in the neck) was
fractured. That fracture, combined with petechiae in the
victim's eyes, and necklace imprints around her neck, led
Gross to conclude that the victim also had been strangled.
Gross could not say for sure whether the strangulation had
been done manually or with a ligature, but said both could
have been used. Specifically, the T-shirt found on the bed
could have been used as a ligature. Gross thought it likely
that the person who strangled the victim was standing behind
her because the marks did not extend all the way around her
The injuries-the stab wound and the strangulation-occurred
nearly concurrently, and each was capable in and of itself of
causing her death. Gross believed that the victim's death
was caused by more than one person because the two competing
causes of death occurred nearly simultaneously and it would
not have been likely that one person could have strangled her
from behind and stabbed her from the front. In addition to
the two fatal wounds, the victim had abrasions, bruises and
cuts on her body that indicated she struggled with her
attacker or attackers and tried to defend herself. Gross
testified that a wooden-handled knife with a serrated edge,
later recovered and identified as the victim's, could
have caused the fatal stab wound.
Ian Hood, who was qualified as an expert in forensic
pathology, reviewed Gross's autopsy report and
photographs from the scene, and examined the recovered knife.
He concurred with Gross's determination of the causes of
death, that the knife presented was consistent with the stab
wounds, that the T-shirt could have been used as a ligature,
and that the victim was standing up and struggling when she
was strangled from behind and stabbed from the front by two
Police investigation quickly focused on William Boston, who
lived next door to the victim. Their apartments shared a
common outer door. In July 2002, Damien Stratton lived with
Boston, Boston's mother, and Boston's stepfather. He
was “trying to get [him]self together” after
having been in prison for convictions on burglary and drug
possession charges. Stratton knew defendant, and said that
the day the victim was killed, defendant and Boston were
together all day, and in the evening, they were
“messing with” the screen in the victim's
kitchen window; defendant had a knife and Boston had a box
cutter. Stratton told Boston's step-father that the men
were messing with the screen and at the stepfather's
insistence, Boston went inside. Boston went out again to
rejoin defendant before Stratton left for the evening.
Stratton admitted to having had “some drinks”
On the day of the homicide, from 1:15 p.m. to 4:30 p.m.,
Boston did “community service” in one of the
apartments (37A) at the Parktown Apartments, helping the
maintenance worker Jose Lopez clean the vacant roach-infested
premises for re-renting. Earlier, on July 29, Lopez had
applied boric acid powder to all of the surfaces in the
apartment, including the kitchen cabinets, and found nothing
on top of them. The next day, which was the day after the
homicide, Boston worked from 3:00 p.m. until 5:00 p.m. No.
one had access to the apartment besides Lopez and Boston, and
Boston did not have a key. A week later, Lopez reentered the
apartment and found a wooden-handled knife with a
six-to-eight-inch blade, sitting on top of a kitchen cabinet;
it had no boric acid powder on it. Lopez turned the knife
over to police, which Janira said looked “exactly
like” the one used by her mother.
Boston was arrested on August 2, 2002, and charged with the
homicide. At that point, Stratton, Beals, and Cesar Caban, a
large friend of Boston's who could have fit the XXXL
T-shirt, were suspects; defendant was not. At some later
time, Stratton was eliminated as a suspect because his alibi
was confirmed, and forensic tests on DNA found on the bloody
T-shirt did not compare to Stratton's profile.
Subsequently, it was also determined that the DNA on the
T-shirt and a palm print did not match Boston's,
Beals' or Caban's profiles. However, police believed
that Boston did not act alone due to his limited
intelligence, and the fact that he was not a big person and
would not fit an XXXL T-shirt.
On September 10, 2003, Vineland Police Detectives Shane
Harris and Negron asked defendant to come to the station, and
he complied. When they asked him to provide buccal swabs,
defendant's body started to shake and his eyes watered.
Defendant then said he felt like he was being set up, but he
would provide the swabs because if he did not, it would seem
like he was hiding something. Several weeks later, under
court order, defendant provided a palm print impression. When
confronted with the court order for the palm print, defendant
got upset and said that he had never been in the victim's
Leslie Wanko, a supervisory forensic analyst for the FBI,
conducted tests on the latent palm print found in the
victim's bedroom, and determined with “100%
certainty” that it matched defendant's palm print.
Maureen Lo- Beer, an expert in toxicology, biochemistry and
DNA analysis at the New Jersey State Police forensic
laboratory, conducted DNA testing on the white XXXL T-shirt
and found that she “could not exclude” defendant
as the contributor of the DNA material found on the white
T-shirt. The profile she found could be expected to be found
in 1 of 480 million African-Americans, one in 786 million
Caucasians, and 1 in 1.46 billion Hispanics.
Defendant was arrested on October 10, 2003. He gave a taped
statement to police in which he denied ever being in the
victim's apartment. At the end of the statement,
Detective John Berry of the Cumberland County
Prosecutor's Office asked defendant how, if he was never
in her apartment, did his DNA get in her apartment. Defendant
went into a “tirade” and said he was not there,
he should not have consented to the buccal swab sample and
that the police planted the evidence.
Under authority of a search warrant, Detective Lieutenant
James Parent of the Cumberland County Prosecutor's Office
conducted a search of defendant's bedroom on October 10,
2003. One of the items found was an XXXL Fruit-of- the-Loom
T-shirt, which Parent described as “like a muscle shirt
with the sleeves cut off” and “sort of what was
found at the crime scene.” Other sizes and types of
T-shirts were also found, but only the XXXL shirt had cutoff
sleeves. Gina Mave, who knew defendant through her position
as the rental manager at the Parktown Apartments where
defendant had resided, said defendant often wore shirts with
the sleeves cut off, as he was a weight lifter. When shown
the shirt recovered from his apartment, Mave agreed that it
was the type of shirt defendant frequently wore. Parent
identified the shirt found in the victim's apartment and
the shirt found in defendant's bedroom as both being
white XXXL T-shirts with the sleeves cut off.
Stephanie Beine of Genetics Technologies, Inc., testified as
an expert for the defense. Her laboratory used the same
processes as the State Police laboratory to test DNA. Under
instruction from defendant's previous attorney, Beine
focused on three areas of the T-shirt that had blood stains.
She did not perform any DNA analysis on the other biological
fluid or “epithetical cells” that may have been
present, despite seeing “areas of fluorescence on the
garment that would indicate possible other biological fluids
being present.” Beine found bloodstains “A”
and “C” to contain a mixture of DNA from two
contributors, one male and one female, but the genetic
material detected from the male contributor fell below the
laboratory's reporting threshold, and thus, she was not
able to “include or exclude” defendant as a
Defendant, who represented himself at trial, testified on his
own behalf. He admitted to being at Boston's apartment on
July 30, 2002, but denied having anything to do with the
victim's death. When asked how his DNA was found in the
victim's apartment, he stated, “[m]y DNA is not
nowhere in nobody's apartment.” He also stated:
“[m]y [palm] print is nowhere inside nobody's
apartment except for my own.” Defendant maintained that
he had a job, as did his fiancée at the time, so he
did not need “to steal from nobody.” He admitted
wearing T-shirts with the sleeves cut off as he was a
weightlifter, but claimed that some of the shirts in his
bedroom belonged to his step-son. He did not know how a
bloody T-shirt got into the victim's apartment. He
believed the prosecutor “put ... up” the
laboratory witnesses to lie. Defendant declared his innocence
and said he did not know who killed the victim.
State v. Nevius, No. A-5438-07T4, 2012 WL 2361516,
at *1-4 ( N.J.Super.Ct.App.Div. June 18, 2012) (internal
jury convicted Petitioner of two counts of first-degree
murder, one count of second-degree burglary, and one count of
third-degree conspiracy to commit burglary. See ECF
No. 8-9. Petitioner was sentenced to an aggregate term of
sixty-five years in prison, subject to New Jersey's No.
Early Release Act (“NERA”). See id.
Petitioner appealed his conviction and sentence. See
ECF Nos. 8-10, 8-11. On June 18, 2012, the Appellate Division
affirmed both Petitioner's conviction and his sentence.
See Nevius, 2012 WL 2361516, at *21. The New Jersey
Supreme Court denied Petitioner's request for a writ of
certiorari. State v. Nevius, 65 A.3d 835 (N.J.
subsequently filed a petition for post-conviction relief
(“PCR”) in state court. See ECF Nos.
8-12, 8-13. The PCR court denied the petition. See
ECF No. 8-26. Petitioner's motion for reconsideration of
his PCR was also denied. See ECF No. 8-28. The
Appellate Division affirmed the denial of Petitioner's
PCR and his motion for reconsideration. See State v.
Nevius, No. A- 3982-14T4, 2017 WL 588186, at *4 (
N.J.Super.Ct.App.Div. Feb. 14, 2017). The New Jersey Supreme
Court denied Petitioner's request for a writ of
certiorari. See State v. Nevius, 167 A.3d 655 (N.J.
8, 2017, Petitioner filed the instant habeas petition,
pro se. See ECF No. 1. On September 8,
2017, Respondents filed an answer opposing the petition.
See ECF No. 8. Petitioner submitted two briefs in
reply. See ECF Nos. 9, 10.
STANDARD OF REVIEW
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 is the proper mechanism for a state prisoner to
challenge the fact or duration of his confinement where the
petitioner claims his custody is in violation of the
Constitution or the laws of the United States. See
28 U.S.C. § 2254(a); Cullen v. Pinholster, 563
U.S. 170, 181 (2011); Preiser v. Rodriquez, 411 U.S.
475, 498-99 (1973). A habeas petitioner bears the burden of
establishing his entitlement to relief for each claim
presented in the petition. See Harrington v.
Richter, 562 U.S. 86, 98 (2011).
standard used in reviewing habeas claims under § 2254
depends on whether those claims have been adjudicated on the
merits by the state court. If they have not been adjudicated
on the merits, the Court reviews de novo both legal questions
and mixed factual and legal questions. See Appel v.
Horn, 250 F.3d 203, 210 (3d Cir. 2001). If the state
court adjudicated the claim on the merits, then 2254(d)
limits the review of the state court's decision as
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding . . . .
28 U.S.C. § 2254(d).
claim has been adjudicated on the merits in state court,
this Court has “no authority to issue the writ of
habeas corpus unless the [state court's] decision
‘was contrary to, or involved an unreasonable
application of, clearly established Federal Law, as
determined by the Supreme Court of the United States,' or
‘was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.'” Parker v. Matthews, 567 U.S.
37, 40 (2012) (quoting 28 U.S.C. § 2254(d)).
begins the analysis under § 2254(d)(1) by determining
the relevant law clearly established by the Supreme Court.
See Yarborough v. Alvarado, 541 U.S. 652, 660
(2004). Clearly established law “refers to the
holdings, as opposed to the dicta, of [the Supreme
Court's] decisions as of the time of the relevant
state-court decision.” Williams v. Taylor, 529
U.S. 362, 412 (2000). A court must look for “the
governing legal principle or principles set forth by the
Supreme Court at the time the state court renders its
decision.” Lockyer v. Andrade, 538 U.S. 63,
71-72 (2003). “[C]ircuit precedent does not constitute
‘clearly established Federal law, as determined by the
Supreme Court,' [and] therefore cannot form the basis for
habeas relief under AEDPA.” Parker, 567 U.S.
at 48-49 (quoting 28 U.S.C. § 2254(d)(1)).
decision is “contrary to” a Supreme Court holding
within 28 U.S.C. § 2254(d)(1), if the state court
applies a rule that “contradicts the governing law set
forth in [the Supreme Court's] cases” or if it
“confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme Court] and
nevertheless arrives at a [different result.]”
Williams, 529 U.S. at 405-06. Under the
“‘unreasonable application' clause of §
2254(d)(1), a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle
from [the Supreme Court's] decisions but unreasonably
applies that principle to the facts of the prisoner's
case.” Williams, 529 U.S. at 413. “[A]n
unreasonable application of federal law, ” however,
“is different from an incorrect application of federal
law.” Harrington v. Richter, 562 U.S. 86, 101
(2011) (quoting Williams, 529 U.S. at 410).
Inadmissibility of Co-Defendant's Statement
Ground One, Petitioner argues that his due process right to
present a defense was violated when the trial court
prohibited him from introducing statements made by
co-defendant Boston. See ECF No. 1-1, at 4.
Specifically, Petitioner sought to introduce Boston's
statement to police that he and another individual, Tyrone
Beals, had committed the crime. See id. at 4-5.
Boston was arrested, he initially told law enforcement that
it was Beals who had broken into the victim's apartment
and stabbed the victim when she returned home. See State
v. Nevius, 45 A.3d 360, 366 ( N.J.Super.Ct.App.Div.
2012). Boston later alter his statement to police, this time
stating that he had entered the victim's apartment with
Beals but had hidden inside a bathroom while Beals stabbed
the victim. See id. In another subsequent statement
to police, Boston again changed his story, this time alleging
that Beals had threatened Boston until Boston agreed to break
into the apartment. See id. Boston stated that he
had broken into the apartment with Beals but left once he saw
the victim had returned home. See id. Boston added
that when he heard screaming, he returned to the apartment in
an attempt to stop Beals from killing the victim but was
unsuccessful. See Id. Boston stated that after Beals
stabbed and strangled the victim, Boston removed the t-shirt
Beals used to strangle the victim and used it to clean off
the knife. See id.
Boston was in prison awaiting his trial, he provided yet
another statement, this time to a fellow inmate, which stated
that it was actually Boston and Petitioner who had committed
the crime. See id. Boston confessed to the other
inmate that Boston had “intentionally changed the
actors in his written narrative to the police, and that
whatever he said Beals had done, [Boston] had actually done,
and whatever [Boston] said that he had done, [Petitioner] had
actually done.” Id. Boston also wrote a letter
to the prosecutor in his case, alleging his statement to
police had been coerced and the version of events that he
provided to police the day he was arrested was inaccurate.
See ECF No. 8-5, at 6. Boston was tried separately
from Petitioner and was convicted on all counts, including
first-degree murder and conspiracy to commit murder. See
State v. Boston, No. A-4129- 07T3, 2012 WL 3568290, at
*1 ( N.J.Super.Ct.App.Div. Aug. 21, 2012). Boston refused to
testify at Petitioner's trial. See ECF No. 8-5,
Petitioner's trial, Petitioner attempted to introduce
Boston's statement to police that Boston and Beals had
been the perpetrators of the crime. See id. During
cross-examination of State's witness Detective Negron,
Petitioner asked, “isn't it true that Mr. Boston
told you that Tyrone Beals killed Ms. Walker?” ECF No.
8-2, at 6. The State objected and the trial court ruled that
the question was inadmissible hearsay. See id. at
6-7. During Petitioner's case-in-chief, he again sought
to introduce Boston's statement to police. See
ECF No. 8-5, at 3. Petitioner informed the court that Boston
refused to testify at trial and that, in lieu of Boston's
live testimony, Petitioner wanted to introduce Boston's
statement to police as a statement against penal interest.
See id. at 4. The trial court ruled the statement
was inadmissible hearsay and that it could not be admitted as
a statement against penal interest because it “lacked a
certain reliability that would normally be associated with a
statement against penal interest.” See ECF No.
8-5, at 44. The trial court found that Boston's statement
to police showed Boston as, at best, “an unwilling and
reluctant participant in a burglary, in which Tyrone Beals
committed a homicide, if one were to believe the statement.
This statement [was] made to exculpate [Boston] from the
greater of the offenses, that which was probably at one time,
a capital murder charge.” Id. The trial court
determined that the statement had “little, if any,
probative value, ” and that it would be
“absolutely unfair and inappropriate” to admit
the statement Boston made to police without also allowing
into evidence the statement Boston made to his fellow prison
inmate, which the court had held was also inadmissible.
See id. at 46.
appeal, the Appellate Division affirmed the trial court's
ruling, determining that the trial court had properly barred
the statements under New Jersey Rule of Evidence 803(c)(25).
See Nevius, 2012 WL 2361516, at *10. The Appellate
Division stated that “[i]f anything, the accusatory
shifting of blame to Beals served to exculpate not only
[Petitioner] but Boston as well and it is for this very
reason that Boston's statements are inherently
untrustworthy and therefore inadmissible under N.J.R.E.
803(c)(25).” Id. at *9. The Appellate Division
held that the ruling did not deprive Petitioner of a fair
trial. See id. at *10.
the admissibility of evidence is a question of state law
which is not cognizable on federal habeas review. See
Estelle v. McGuire, 502 U.S. 62, 67-70 (1991) (observing
that “federal habeas corpus relief does not lie for
errors of state law” (quoting Lewis v.
Jeffers, 497 U.S. 764, 780 (1990))); see also
Marshall v. Lonberger, 459 U.S. 422, 438 (1983)
(“[T]he Due Process Clause does not permit the federal
courts to engage in a finely-tuned review of the wisdom of
state evidentiary rules”). If, however, a petitioner
can demonstrate that the admission of the challenged evidence
deprived him of the “fundamental elements of fairness
in [his] criminal trial, ” then he may establish a
Fourteenth Amendment due process violation. Glenn v.
Wynder, 743 F.3d 402, 407 (3d Cir. 2014) (quoting
Riggins v. Nevada, 504 U.S. 127, 149 (1992). A
petitioner must show that state court's evidentiary
ruling was “so arbitrary or prejudicial that it
rendered the trial fundamentally unfair.” Scott v.
Bartkowski, Civ. No. 11-3365, 2013 WL 4537651, at *9
(D.N.J. Aug. 27, 2013) (citing Romano v. Oklahoma,
512 U.S. 1, 12-13 (1994)). Significantly, the 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 not demonstrated that the trial court's
exclusion of Boston's statements was “so arbitrary
or prejudicial” as to render his trial fundamentally
unfair. The underpinning of all hearsay exceptions is that
the statements are made under circumstances which provide an
indicium of reliability. See Williamson v. United
States, 512 U.S. 594, 598 (1994); see also Idaho v.
Wright, 497 U.S. 805, 820-21 (1990). The Supreme Court
has held that “the arrest statements of a codefendant
have traditionally been viewed with special suspicion. Due to
his strong motivation to implicate the defendant and to
exonerate himself, a codefendant's statements about what
the defendant said or did are less credible than ordinary
hearsay evidence.” Williamson, 512 U.S. at 601
(1994) (quoting Lee v. Illinois, 476 U.S. 530, 541
(1986)) (internal quotation marks omitted). Here, as the
trial court and Appellate Division found, the statements made
by Boston were self-serving and helped to exculpate Boston,
making him look, at worst, like an unwilling participant to a
burglary gone wrong. His statements did not bear the indicia
of reliability to make them admissible under a hearsay
exception. Thus, the state courts' determination that
Boston's statement to police were untrustworthy and
therefore inadmissible, was not contrary to, or an
unreasonable application of federal law. Petitioner is not
entitled to relief on this claim.
Ground Two, Petitioner alleges that the State withheld
multiple pieces of evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963). See ECF No. 1-1,
at 6-16. Specifically, Petitioner asserts that the State
withheld: Dr. Gross' personnel file; a trace evidence
report; the lab notes of FBI forensic analyst Laura Hutchins;
and a “biochemical analysis and questionnaire
report.” See id. at 6. Petitioner argues that
these documents were material and favorable to his defense
and, if disclosed to the Petitioner, would have had the
ability to change the outcome of his proceeding. See
id. at 6-16.
government has a duty to provide a defendant with all
relevant, exculpatory materials. See Kyles v.
Whitley, 514 U.S. 419, 432 (1995) (citing
Brady, 373 U.S. 83). The government's
suppression of material evidence favorable to the defense
constitutes a violation of a defendant's due process
rights. See Brady, 373 U.S. at 87. Evidence is
considered material, “only if there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different.” United States v. Bagley, 473 U.S.
667, 682 (1985). To establish a Brady violation, a
petitioner must show that: (1) the evidence at issue was
favorable to the defense; (2) the evidence was suppressed by
the government; and (3) petitioner was prejudiced as a
result. See Moore v. Illinois, 408 U.S. 786, 794-95
State Pathologist's Personnel File
contends that the State committed a Brady violation
by withholding the State pathologist, Dr. Gross',
personnel file. See ECF No. 1-1, at 6-10. Petitioner
argues that the State was aware Dr. Gross had disciplinary
infractions in his past and the failure of the State to
provide Petitioner with Dr. Gross' personnel file
constituted a Brady violation. See ECF No.
8-12, at 26. Petitioner submits that, without the personnel
file, he “never had the opportunity to impeach”
Dr. Gross. See ECF No. 1-1, at 7.
record is unclear as to when and if Petitioner received the
Dr. Gross' personnel file. It appears that on January 28,
2008, one day prior to Dr. Gross' testimony, Petitioner
requested a court order to obtain the file from the Human
Resources Department of Cape May County. See ECF No.
8-19, at 25. The trial court signed the order that same day.
See id. at 28. It is unclear however whether
Petitioner actually received a copy of the personnel file
that day as well.
did, however, discuss Dr. Gross' disciplinary infractions
during his opening statement on January 18, 2008 - before the
trial court's order. See ECF No. 8-1, at 10-11.
Petitioner also subsequently cross-examined Dr. Gross about
his disciplinary infractions and again utilized the
information during closing arguments to attack Dr. Gross'
credibility. See ECF Nos. 8-4, at 26-27; and 8-6, at
83-84. Petitioner appears to contend that the arguments he
made throughout trial about Dr. Gross' disciplinary
infractions were based solely upon information he discovered
through the media and not derived from the personnel file.
See ECF No. 1-1, at 7.
Petitioner raised this claim during his PCR proceedings, the