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Nevius v. The Attorney General for State of New Jersey

United States District Court, D. New Jersey

December 11, 2019

THOMAS NEVIUS, Petitioner,
v.
THE ATTORNEY GENERAL FOR THE STATE OF NEW JERSEY, and STEVEN JOHNSON, Respondents.

          Thomas Nevius, No. 201449E New Jersey State Prison Petitioner pro se

          Stephen C. Sayer Cumberland County Prosecutor's Office Counsel for Respondents

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Petitioner 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.

         I. BACKGROUND

         In its 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 neck.
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 different people.
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” that night.
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 apartment.
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 contributor.
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 footnotes omitted).

         The 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. 2013).

         Petitioner 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. 2017).

         On June 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.

         II. STANDARD OF REVIEW

         A 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).

         The 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 follows:

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; or
(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).

         If a claim has been adjudicated on the merits in state court, [1] 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)).

         A court 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)).

         A 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).

         III. DISCUSSION

         A. Inadmissibility of Co-Defendant's Statement

         In 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.

         When 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.

         While 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, at 3-4.

         At 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.

         On 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.

         Generally, 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).

         Here, 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.

         B. Brady Violations

         In 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.

         The 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 (1972).

         i. State Pathologist's Personnel File

         Petitioner 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.

         The 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.

         Petitioner 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.

         When Petitioner raised this claim during his PCR proceedings, the PCR ...


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