NEVIUS v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY

D.N.J.12/11/2019

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
THOMAS NEVIUS, :
:
Petitioner, : Civ. No. 17-4587 (NLH)
:
v. : OPINION
:
THE ATTORNEY GENERAL FOR THE :
STATE OF NEW JERSEY, and :
STEVEN JOHNSON, :
:
Respondents. :
______________________________:

APPEARANCES:
Thomas Nevius, No. 201449E
New Jersey State Prison
PO Box 861
Trenton, NJ 08625
Petitioner pro se

Stephen C. Sayer
Cumberland County Prosecutor’s Office
115 Vine Street
Bridgeton, NJ 08302
Counsel for Respondents

HILLMAN, District Judge
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 step-
father. 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 step-
father'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 cut-
off 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

1 “[A] claim has been adjudicated on the merits in State court
proceedings when a state court has made a decision that finally
resolves the claim based on its substance, not on a procedural,
or other, ground.” Lewis v. Horn,
581 F.3d 92, 100
(3d Cir.
2009) (quoting Thomas v. Horn,
570 F.3d 105, 117
(3d Cir.
2009)). “Section 2254(d) applies even where there has been a
summary denial.” Pinholster,
563 U.S. at 187
. “In these
circumstances, [petitioner] can satisfy the ‘unreasonable
application’ prong of § 2254(d)(1) only by showing that ‘there
was no reasonable basis’ for the [state court’s] decision.” Id.
(quoting Harrington v. Richter,
562 U.S. 86, 98
(2011); see also
Johnson v. Williams,
568 U.S. 289, 301
(2013) (“When a state
court rejects a federal claim without expressly addressing that
claim, a federal habeas court must presume that the federal
claim was adjudicated on the merits – but that presumption can
in some limited circumstances be rebutted.”).
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 court held, in pertinent part:
However, the State did not suppress any of the
evidence related to Dr. Gross. The personnel
file obtained by counsel was not in the
State’s possession and the defense could
obtain it without the aid of prosecution — as
evidenced by the fact that defense did obtain
the file without the prosecution’s help.
Additionally, Dr. Gross’s disciplinary
history could have easily been found as new
outlets covered the stories of an apparent
“botched autopsy” Dr. Gross performed.

Additionally, Petitioner did mention Dr.
Gross’s history during his opening, closing
and cross examination of Dr. Gross.
Petitioner does not aver what would have
changed if the material were obtained sooner.
In short, Petitioner knew the specifics of the
history of Dr. Gross and argued that
throughout the course of the trial. He was
fully aware of his history and had the
opportunity to present those arguments in
order to sully the reputation and credibility
of Dr. Gross.

ECF No. 8-27, at 19-20.
The Appellate Division affirmed the PCR court’s holding and
found that Petitioner’s argument lacked sufficient merit to
warrant discussion in a written opinion. See ECF No. 8-29, at 9-
10.
Here, Petitioner has not demonstrated that he suffered
prejudice as the result of the allegedly suppressed personnel file
of Dr. Gross. Although Petitioner may not have had Dr. Gross’
personnel file from Cape May County before the start of trial,
Petitioner was still able to impeach Dr. Gross regarding his past
disciplinary infractions. During Petitioner’s opening statement,
he argued in pertinent part:
[. . .] In addition, the Chief Medical
Examiner, Dr. Elliott Gross, acknowledges that
many homicide autopsies were performed in the
presence of only one doctor, but ordered his
medical staff to continue in direct violation
of city law.

This causes autopsies to be misdiagnosed.
Evidence was lost. Shortcuts were taken, and
(indiscernible) reports were inaccurate. So
as a result, Dr. Gross was fired from the
(indiscernible) Office in 1987 but then-Mayor
Everett I. Coach (phonetic), (indiscernible)
office.

In March of 2001, instead of getting
terminated, Dr. Gross gave up his $142,500 a
year job after he (indiscernible) autopsy
(indiscernible) promoting a murder charge
against an innocent man. (indiscernible)
prosecuted the charge of an Atlantic City
police office, Mr. James Andross (phonetic) of
murder of his own wife. Ms. Eileen Andross
lost -- Mr. Andross lost (indiscernible)
suspended from his job, who would be
vindicated a month before he was to stand
trial.

After two (indiscernible) pathologists
reviewed Dr. Gross’ work and determined that
Mrs. Andross died from a coronary artery
dissection, a condition that causes a person
to hemorrhage, a (indiscernible) of Dr. Gross’
findings as asphyxiation. As part of this
(indiscernible), Dr. Gross was banned from
performing unsupervised autopsies, and was
order to perform 20 autopsies under the
supervision of State-designated
(indiscernible) pathologists, as well as to
observe 20 others.

At that time, after the State medical exam,
Mr. John Crowpowski (phonetic), refused to
reinstate Dr. Gross’ privileges because of his
(indiscernible) remedial tests.

ECF No. 8-1, at 10-11.
Upon cross-examination of Dr. Gross, Petitioner again
attacked Dr. Gross’ credibility, eliciting, in pertinent part:
PETITIONER: Doctor, isn’t is also true you
testified here today that you used to work in
the New York Medical Examiner’s Office; is
that correct?

DR. GROSS: That’s correct.

[. . .]

PETITIONER: Now, Doctor, when you say you left
the office, did you voluntarily leave, or were
you fired sir?

DR. GROSS: I was dismissed, as the mayor had
the right to do.

PETITIONER: And, could you explain to the jury
why, sir?

DR. GROSS: Yes. As he announced, he wished to
make a change in the administrative management
of the office.

PETITIONER: Sir, did your dismissal have
anything to do with the deterioration of the
medical examiner’s office in New York?

DR. GROSS: I can only refer you to what the
mayor said, which had to do -- that he wished
to make a change in the administrative
management of the office.

PETITIONER: And, I believe you also testified
to a Mrs. Eileen Andros; is that correct, sir?

DR. GROSS: I testified about a Ms. Ellen
Andros, yes.
PETITIONER: And, you did perform her autopsy;
is that correct, sir?

DR. GROSS: That’s correct.

PETITIONER: And, in doing that autopsy, you
mistakenly missed a finding; is that correct?

DR. GROSS: That’s not correct. What I said
was, that the body exhibited certain findings
and at a later date, the microscopic change in
the coronary artery was noted, which I had not
seen, and I admitted to that error, and have
regretted it, as I publicly stated, and will
regret it for the rest of my career.

PETITIONER: Sir, are you aware of the
consequences behind --

PROSECUTOR: Judge, I’m going to object as to
the relevance of that.

THE COURT: What relevance does that have to
this case, sir?

PETITIONER: This has all relevance to do with
his credibility, Your Honor.

THE COURT: No, it doesn’t. Sustained.

ECF No. 8-4, at 26-27.
Petitioner yet again attacked Dr. Gross’ credibility during
his closing statement, arguing:
The facts are undisputed. Lies kept trying to
cover themselves up one after another. Which
brings me to the State’s next witness, Dr.
Elliott Gross.

Now, as I told you and that Dr. Gross admitted,
he was indeed fired from the New York Medical
Examiner’s Office.

Dr. Gross also admitted that he made
tremendous errors in the autopsy of Ms. Eileen
Henry (Phonetic), that led to murder charges
against an innocent man.

[. . .]

Take into consideration Dr. Gross’ background.
Everything he testified to must be looked at
under a microscope. When I tried to dig
further into Dr. Gross’ background, I was
stopped by the Judge.

When I tried to put Dr. Gross’ credibility on
the table, I was stopped for some reason. No
matter if I was stopped or not. Dr. Gross
admitted himself to his shoddy background.

ECF No. 8-6, at 83-84.
The record demonstrates that, even if Petitioner did not have
Dr. Gross’ personnel file, Petitioner still used Dr. Gross’ past
disciplinary infractions to impeach his credibility on multiple
occasions. Thus, Petitioner’s argument that he “never had the
opportunity” to impeach Dr. Gross is belied by the trial
transcripts. Petitioner does not allege what additional
information Dr. Gross’ personnel file contained that would have
added to the impeachment of Dr. Gross’ credibility.
Moreover, Petitioner is also unable to demonstrate that Dr.
Gross’ personnel file was material evidence. Knowing that Dr.
Gross had made a mistake in the performance of an autopsy for
another case, the State chose to also present the testimony of Dr.
Ian Hood, a Deputy Chief Medical Examiner in Philadelphia. See
ECF No. 8-19, at 16. Dr. Hood testified at trial that, based upon
his own review of the autopsy report and other evidence in the
case, he agreed with Dr. Gross’ finding as to the victim’s manner
of death. See ECF No. 8-4, at 35-36. Thus, even if Dr. Gross’
credibility had been impeached, Dr. Hood testified as to the same

findings. See id. at 36. Therefore, Petitioner has not
demonstrated that Dr. Gross’ personnel file was “material”
evidence that was suppressed by the State. Accordingly, the state
courts’ adjudication of this claim was not contrary to, or an
unreasonable application of, clearly established federal law.
Petitioner is not entitled to relief on this claim.
ii. Other Documents
Petitioner also contends that the State committed Brady
violations by withholding a trace evidence report, the lab notes
of FBI forensic analyst Hutchins, and a “biochemical analysis and
questionnaire report.” See ECF No. 1-1, at 6-10. When Petitioner
raised these claims during his PCR proceedings, the PCR Court held,

in pertinent part:
There are a host of documents, enumerated
across several briefs (most notably in the
appendix of his pro se supplemental brief),
which the Petitioner claims he never received.
However, he has not gone into detail about how
the remaining missing documents could have
altered the outcome of trial. If the alleged
suppression of evidence is a violation of due
process, it must be material, favorable to the
accused and actually suppressed. See, Nelson,
supra, 155 N.J. at 497. Here, the Petitioner
has not asserted how those remained documents
would have been favorable or material. [FN 4].
Thus the petitioner does not make a prima
facie case of a Brady violation. [FN 4:
Further, several of the items which are
alleged missing, the State argues were
included in the discovery file and that some
of those “missing” items were even utilized by
the defense at trial. However, this inquiry
as to the remaining documents is moot because
the Petitioner has not alleged the materiality
or favorability of those items.]

ECF No. 8-27, at 20-21.
Addressing the alleged withholding of Ms. Hutchins’ report
and lab notes later in its opinion, the PCR court also stated:
The Petitioner takes an additional issue with
[Ms. Wanko’s] testimony – that he did not
receive the curriculum vitae of Ms. Hutchins
and case notes prior to trial. This claim is
meritless, as the Petitioner actually cross
examined [Ms. Wanko] based on the case notes,
showing that he had received those items.
Additionally, the State, through their first
brief and attached exhibits, have shown that
Ms. Hutchins’ curriculum vitae was provided in
the Discovery file, thus this claim is
meritless.

Id. at 22.
The Appellate Division affirmed the PCR court’s holding,
stating that Petitioner’s claim lacked sufficient merit to warrant
discussion in a written opinion. See ECF No. 8-29, at 9-10.
Here, Petitioner has not demonstrated that the trace evidence
report, Ms. Hutchins lab notes, or the biochemical analysis and
questionnaire were suppressed. “A petitioner has the burden of
demonstrating the State withheld or suppressed evidence.” Neals
v. Warren, No. 13-4398,
2017 WL 751427
, at *8 (D.N.J. Feb. 27,
2017) (citing Maynard v. Gov’t of Virgin Islands,
392 F. App’x
105, 119
(3d Cir. 2010)). Despite Petitioner’s assertions, the
record provided by the State indicates that these documents were,
in fact, turned over to Petitioner during discovery. See ECF No.

8-19, at 20-21, 31-52. However, even if these documents had not
been provided to him during discovery, Petitioner has still not
demonstrated that the documents would have, with a reasonable
probability, changed the result of his proceeding. See Kyles,
514
U.S. at 441
.
Petitioner asserts that the trace evidence report, which
analyzed hair taken from the crime scene, would have demonstrated
to the jury that none of the hair found at the scene belonged to
him. See ECF No. 1-1, at 11 (“[The report] also showed that the
petitioner was ‘excluded’ to the remaining hair that did not belong
to the victim.”). However, a review of the report indicates that
a majority of the hair taken from the crime scene was “similar” to

that of the victim’s hair. See ECF No. 8-19, at 31-32. The report
states that there were numerous hairs collected that did not match
the victim’s hair or any of the submitted suspect hairs, and that
there were a few hairs that had insufficient characteristics or no
comparative value to be able to draw a conclusion. See
id.
The
report does not state, as Petitioner alleges, that he was
“excluded” from being a contributor to any of the trace evidence.
Petitioner has not demonstrated how this report would have made a
different result reasonably probable.
Petitioner also alleges that he should have been provided
with Ms. Hutchins’ lab notes in order to impeach Ms. Wanko. See
ECF No. 1-1, at 14-15. Petitioner contends that Ms. Hutchins’ lab

notes contained the “only” true examination of Petitioner’s prints
as compared to the handprints from the crime scene and that he
should have been able to cross-examine Ms. Wanko with Ms. Hutchins’
lab notes. Upon review of the record, it is clear that Ms. Wanko
conducted her own independent examination and comparison of
Petitioner’s palm print to the print found at the scene of the
crime. See ECF No. 8-3, at 4-28. It is also clear that Ms.
Hutchins’ lab notes rendered the same conclusion that Ms. Wanko
did – that the palm print found from the crime scene matched
Petitioner’s. See ECF No. 8-20, at 37-38. Thus, even if
Petitioner did not have access to Ms. Hutchins’ lab notes to cross
examine Ms. Wanko – which he clearly did – the notes would not

have, with a reasonable probability, changed the result of
Petitioner’s proceeding.
Finally, Petitioner argues that the biochemical analysis
questionnaire would have demonstrated to the jury that a shoelace
was used to strangle the victim, not a t-shirt. See
id.
at 11-
12. The questionnaire states, “If a weapon was used, indicate the
weapon and injuries it may have caused and to whom.” See ECF No.
8-19, at 42. Whoever authored the unsigned document wrote, “Knife
& shoe lace.” See
id.
Petitioner alleges that if he had been
provided with this questionnaire, it would have demonstrated that
“the State was aware that the t-shirt was not the weapon used” and
that he would have been able to use this information to impeach

Dr. Gross’ testimony. See id. at 11-13. However, Petitioner is
unable to demonstrate that he suffered prejudice from this
allegedly withheld evidence because he had access to the same
information about the shoelace prior to trial. See ECF No. 12, at
88; see also ECF No. 1-1, at 11-12. Indeed, Petitioner attempted
to introduce the information about the shoelace as a possible
murder weapon at trial, although his attempt was ultimately denied.
See id. (“[P]etitioner tried to show the jury that page three had
stated, ‘The medical examination revealed the shoelace (item 13)
was submitted as being the weapon used to strangle victim.’”).
During cross-examination of one of the crime scene detectives,
Petitioner tried to introduce the State’s “request for examination

of blood and other bodily fluids” – a document which accompanies
the biochemical analysis questionnaire. See ECF No. 12, at 88;
see also ECF No. 8-19, at 42. This request form indicated that a
shoelace had been submitted for testing at the State’s crime lab,
and that the shoelace had been submitted as a possible murder
weapon. See ECF No. 12, at 86 (“The medical examination revealed
a shoelace, submitted as being item 13, being the item used to
strangle the victim. The shoelace could not be matched as
belonging to anything in the apartment.”) Thus, Petitioner clearly
had access to the information that the shoelace may have, at one
time, been considered a possible murder weapon. Accordingly,
Petitioner’s argument that if he had the questionnaire, he would

have been able to present evidence that the murder weapon was
actually a shoelace and cross examine Dr. Gross with that
information, is without merit.
Given the foregoing, the allegedly withheld documents did not
render the verdict in Petitioner’s trial unworthy of confidence.
See Kyles,
514 U.S. at 434
. Petitioner’s case involved “strong,
compelling scientific evidence showing beyond a reasonable doubt
that [he] committed the charged offenses.” Nevius,
2012 WL
2361516
, at *13. The evidence against Petitioner was, as the
Appellate Division stated, “overwhelming.” See
id. at *15
.
Petitioner has not demonstrated that any Brady violations occurred
or that the state courts’ adjudication of his Brady claims was

contrary to, or an unreasonable application of, clearly
established federal law. Accordingly, Petitioner is not entitled
to relief on this ground.
C. State’s Use of Perjured Testimony
In Ground Three, Petitioner argues that the State elicited
perjured testimony from witnesses Maureen Lo-Beer and David Vai.
See ECF No. 1-1, at 16. The United States Supreme Court has long
held that the State may not knowingly use perjured testimony to
obtain a conviction. See Giglio v. United States,
405 U.S. 150,
153
(1972). A petitioner’s due process rights under the Fourteenth
Amendment are violated where the State either solicits, or fails
to correct, false testimony. See Napue v. People of State of Ill.,
360 U.S. 264, 269
(1959). “[I]f there is any reasonable likelihood
that the false testimony could have affected the judgment of the
jury,” then a petitioner’s conviction must be set aside. United
States v. Agurs,
427 U.S. 97, 103
(1976). To establish a due
process violation resulting from perjured testimony, a petitioner
must show that: (1) the witness provided false testimony; (2) the
government knew or should have known that the testimony was false;
(3) the false testimony went uncorrected; and (4) there is any
reasonable likelihood that the false testimony could have affected
the verdict. See Lambert v. Blackwell,
387 F.3d 210, 242
(3d Cir.
2004).
i. Lo-Beer Testimony

Petitioner contends that the State knowingly used perjured
testimony from witness Maureen Lo-Beer, a forensic scientist at
the State Police Laboratory’s DNA unit. See ECF No. 1-1, at 19.
Petitioner alleges, in part:
On direct examination, Low-Beer when asked by
the State how she came about determining in
fact there was a mixture [of DNA]; Low-Beer
testifies because she had found four alleles
in five loci, she knew she had a mixture or
combination. She testifies she subtracted in
all areas where there were four alleles. Low-
Beer explains she took out the victims profile
and got a single source. Low-Beer explains
she had “Nevius’s” alleles from the mixture
when asked by the State. (19T 150-4 to 152-
16). This was the petitioner’s claims to the
P.C.R. Court that the State had knowingly used
perjured testimony concerning Ms. Low-Beer’s
mixture results and conclusions. While having
direct knowledge that Mr. Klama “NEVER”
swabbed any of the blood stained areas on
specimen 10 (t-shirt). Klama only sent Low-
Beer a swabbing from the shirt of possible
skin cells labeled (#10A) (19T 68-2 to 69-12;
19T 70-2 to 71-9). This was petitioner’s
proof that the D.N.A. evidence against him was
false.

Id. at 19.
Although Petitioner’s argument is unclear, it appears he is
alleging that Ms. Lo-Beer provided false testimony when she stated
that she received a mixed DNA result. This claim appears premised
upon the argument that since Ms. Lo-Beer never tested a blood stain
from the t-shirt, that she could not have eliminated the victim as
a contributor to the mixed DNA result.
At trial, Raymond Klama, a forensic scientist in the State
Police Laboratory’s Criminalistics Unit who is responsible for
preparing evidence for DNA testing, testified that he did not send
blood stain samples from the t-shirt found at the crime scene to
the DNA Unit. See ECF No. 8-3, at 35-36. Mr. Klama testified
that he only sent swabs he had taken from the collar and armpit of
the t-shirt in an effort to find possible epithelial cells. See
id. When Ms. Lo-Beer testified, she stated that she had tested
the swabs from the t-shirt looking for skin cells. See id. at 78-
79. Ms. Lo-Beer stated that when she tested the swabs, she
discovered a mixed DNA result, which included a DNA profile from
the victim and another individual. See id. at 75. Ms. Lo-Beer

explained that she was able to identify the victim’s DNA as a
partial contributor to the mixed result because she had been
provided with a control blood sample from the victim. See id.
Ms. Lo-Beer testified that the mixed DNA results were likely due
to the fact that the t-shirt was covered in blood spatter and “when
you swab for epithelial cells, you’ll also pick up some DNA from
the blood spatters that were present also.” Id. at 87. Ms. Lo-
Beer expressly stated, however, that she did not test any blood
stains from the t-shirt – only the swabs for skin cells. See id.
at 78-79, 86-87.
PETITIONER: . . . But, before I get to that,
you just said that you didn’t test the stain;
did you not?

MS. LO-BEER: No, I said a blood stain was not
tested.

[. . .]

PETITIONER: So, when the neck of the t-shirt
and the underarms supposedly were swabbed you
weren’t looking for ownership of the t-shirt
or what were you looking for?

MS. LO-BEER: We were looking for epithelial
cells from that t-shirt that would indicate
who might have worn that garment at one time.

Id.

When Petitioner raised this claim about Ms. Lo-Beer’s
allegedly perjured testimony during his PCR proceedings, the PCR
court rejected it, stating in pertinent part:
The Petitioner also claims that the testimony
of Maureen Low-Beer was perjured and or false.
There is no basis for this assertion.
Further, Petitioner presented his own expert
at trial who rebutted Low-Beer’s testimony.
Though the Petitioner sees inconsistencies and
other problems with Ms. Low-Beers testimony he
had the opportunity, and took advantage of the
opportunity to rebut her testimony.

ECF No. 8-27, at 23.
Here, it appears that Petitioner misunderstood Ms. Lo-Beer’s
trial testimony. Ms. Lo-Beer testified that the DNA from the swab
for skin cells on the t-shirt contained a mixture of DNA from the
victim and from another individual. The import of Ms. Lo-Beer’s
testimony was that although she only tested the swabs from the t-
shirt for skin cell DNA, some of the victim’s DNA from the blood
splatters on the t-shirt was also present. Ms. Lo-Beer explained
that she was able to determine the victim was a partial contributor
to the DNA mixture based upon a control sample of the victim’s
blood she had been given – not based upon the fact that she had
tested the t-shirt for blood stains. Indeed, Ms. Lo-Beer
specifically clarified that she did not test blood stains from the
t-shirt. Thus, Ms. Lo-Beer did not falsely testify about testing
blood from the t-shirt because she did not, as she stated, test
any blood stains from the t-shirt. Accordingly, Petitioner has
not shown that State elicited perjured testimony from Ms. Lo-Beer.
The state courts’ adjudication of this claim was not contrary to,
or an unreasonable application of, clearly established federal
law.
ii. Vai Testimony

Petitioner argues that the State also permitted Officer David
Vai to falsely testify that he lifted two handprints from the crime
scene, despite his previous testimony that he had only lifted one.
See ECF No. 1-1, at 21-22. In support of his claim, Petitioner
points to Officer Vai’s testimony from the trial of Petitioner’s
co-defendant, Boston, where Officer Vai stated that the only print
he lifted from the crime scene was from the victim’s nightstand.
See id. Petitioner states that at his own trial, Officer Vai
testified that he had lifted two handprints, one from the victim’s
nightstand and one from victim’s closet door. See id. Petitioner
asserts, therefore, that Officer Vai knowingly provided false

testimony at Petitioner’s trial when he testified that he found
two handprints. See id.
At Petitioner’s trial, Officer Vai did testify that he lifted
two handprints from the scene of the crime – one from the victim’s
nightstand and one from a closet door. See ECF No. 12, at 21-22.
Officer Vai testified that fingerprint taken from the closet door
“was of no evidential value,” but the print taken from the
nightstand was ultimately able to be sent for identification at
the Federal Bureau of Investigations (“FBI”) Laboratory in
Quantico, Virginia. See id. at 24-25.
Petitioner first raised this claim about Officer Vai’s
allegedly perjured testimony during his PCR proceedings. See ECF

No. 8-13, at 5. Petitioner relief upon Officer Vai’s testimony
from co-defendant Boston’s trial as evidence. See ECF No. 8-20,
at 81. The PCR court denied the claim stating, in pertinent part:
This claim is without merit. Though there
were differences in Vai’s testimony between
the trial of William Boston and the
Petitioner’s trial, there is nothing to
suggest that his subsequent testimony was
perjured. In petitioner’s trial Vai did
reference two latent prints, while he only
spoke of one in the trial of William Boston.
When prompted, Vai, testified that he only
found the one print “at that time.” Whereas
petitioner suggests that Vai only found one
print in general. Petitioner also asserts
that this print was unusable by Vai’s own
admission, but then Vai used it to identify
the Petitioner. In fact, Vai did testify that
he originally could not use the print, but
later, found it useable when compared to that
of the Petitioner; this is not perjury.
However, at co-defendant’s trial, the
Prosecutor did not elicit testimony about the
recovery of the palm print from Officer Vai on
direct. This was not perjury. Clearly, there
were different levels of proof as against each
defendant, and the State would have elicited
such proofs at each trial.

ECF No. 8-27, at 22.
Here, Petitioner has not shown that even if Officer Vai
provided false testimony about discovering a second print from the
victim’s closet door, that there is a reasonable likelihood that
the false testimony could have affected the judgment of the jury.
See United States v. Agurs,
427 U.S. 97, 103
(1976). Officer Vai
expressly stated during Petitioner’s trial that the handprint on
the closet door had no evidential value. See ECF No. 12, at 21-

22. Moreover, the prosecutor never argued, and no witnesses
testified, that the handprint from the closet door matched
Petitioner or that it was indicative of Petitioner’s guilt in any
way. See generally ECF Nos. 1-7, 12. Thus, there is no indication
that the reference to this second handprint could reasonably have
affected the judgment of the jury, as it had no evidential value.
Accordingly, the state courts’ adjudication of this claim was not
contrary to, or an unreasonable application of, clearly
established federal law. Petitioner is not entitled to relief on
this claim.
D. Sixth Amendment Confrontation Clause
In his fourth ground for relief, Petitioner asserts that

Officer Vai’s testimony about the Automated Fingerprint
Identification System (“AFIS”) and Ms. Wanko’s testimony about
another forensic analyst, Laura Hutchin’s, work violated
Petitioner’s rights under the Confrontation Clause. See ECF No.
1-1, at 25-33. Specifically, Petitioner alleges that he should
have been able to confront someone from AFIS about the handprint
results the system generated and that he should have been able to
confront Ms. Hutchins, who initially conducted the examination of
his palm print at the FBI laboratory, about the work that she
conducted.
The Confrontation Clause under the Sixth Amendment provides
that, “[i]n all criminal prosecutions, the accused shall enjoy the

right ... to be confronted with the witnesses against him.” U.S.
Const. amend. VI; see also Crawford v. Washington,
541 U.S. 36, 42
(2004). This clause enables defendants to bar out-of-court
“testimonial” statements made by witnesses who do not appear at
trial. See Crawford,
541 U.S. at 53-54
. Generally, a petitioner
establishes a violation under the Conference Clause “by showing
that he was prohibited from engaging in otherwise appropriate
cross-examination designed to show a prototypical form of bias on
the part of the witness.’” See Delaware v. Van Arsdall,
475 U.S.
673, 680
(1986) (quoting Davis v. Alaska,
415 U.S. 308, 318
(1974).
However, alleged violations of the Confrontation Clause are still
subject to harmless error review. See Boyd v. Johnson, No. 18-

965,
2019 WL 316025
, at *9 (D.N.J. Jan. 24, 2019) (citing Fry v.
Pliler,
551 U.S. 112, 116
(2007)). Therefore, for a habeas
petitioner to prevail on a Confrontation Clause violation claim,
he must show that not only was he prohibited from engaging in an
otherwise appropriate cross-examination, but also that this
limitation had a “substantial and injurious effect or influence in
determining the jury’s verdict.” See Fry,
551 U.S. at 116
.
i. AFIS
Petitioner argues that his Sixth Amendment confrontation
rights were violated when the state used “hearsay testimony” about
AFIS and how the system classified the fingerprints collected from
the crime scene as not sufficient.2 See ECF No. 1-1, at 25-27.

Here, Petitioner cannot demonstrate that the state court’s
adjudication of this claim was contrary to, or an unreasonable
application of, clearly established federal law because the
Supreme Court has never held that, “in the context of the
confrontation clause, it was necessary to introduce testimony
concerning the method of using AFIS.” Marshall v. Hedgepeth, No.
10-565,
2012 WL 1292493
, at *13 (E.D. Cal. Apr. 16, 2012); see
also Rabaia v. New Jersey, No. 15-4809
2019 WL 699954
, at *5
(D.N.J. Feb. 20, 2019) (holding that a petitioner could not
demonstrate the state court’s adjudication of his claim was
contrary to or an unreasonable application of federal precedent
where the United States Supreme Court had never ruled on the

issue); Williams v. Taylor,
529 U.S. 362, 405-06
(2000).
However, even if Officer Vai’s testimony regarding AFIS could

2 It appears this claim raised by Petitioner is unexhausted
because it was not presented on direct appeal or during
Petitioner’s PCR proceedings. See generally ECF Nos. 10-17. To
properly exhaust a claim for habeas review, a petitioner is
required to invoke “a complete round of the State’s established
appellate review process.” O’Sullivan v. Boerckel,
526 U.S.
838, 845
(1999). However, to the extent that a petitioner’s
constitutional claims are unexhausted or procedurally defaulted,
a court can nevertheless deny them on the merits under
28 U.S.C.
§ 2254
(b)(2). See Taylor v. Horn,
504 F.3d 416, 427
(3d Cir.
2007); see also Bronshtein v. Horn,
404 F.3d 7000
, 728 (3d Cir.
2005).
be construed as violating Petitioner’s rights under the
Confrontation Clause, this alleged violation is still subject to
harmless error analysis. See Fry,
551 U.S. at 116
. Here,

Petitioner has not demonstrated how his inability to confront
“whoever had supplied” Officer Vai with the information from AFIS
had a substantial and injurious effect or influence in determining
the jury’s verdict. Officer Vai’s testimony was that he sent
Petitioner’s fingerprints “to AFIS” and the results “came back not
sufficient.” See ECF No. 12, at 22. This information was not
detrimental or unfavorable to Petitioner’s case. The information
only indicated that the fingerprints located at the crime scene
were insufficient for comparison.
Moreover, as the Appellate Division stated in their decision
on direct appeal, “the critical evidence directly implicating
defendant in the victim’s murder was the testimony from the other

experts who personally conducted the analysis of defendant's DNA
and palm prints and who individually testified at trial.” Nevius,
2012 WL 2361516
, at *13. It was this combination of expert proofs
which “placed defendant in the victim's apartment though he denied
ever being there, and placed defendant in possession of one of the
murder ‘weapons’—the T-shirt.” Nevius,
2012 WL 2361516
, at *13.
Thus, Petitioner has not demonstrated that his inability to
confront “whoever had supplied” Officer Vai with the information
from AFIS had a substantial and injurious effect or influence in
determining the jury’s verdict. Petitioner is not entitled to
relief on this claim.
ii. FBI Laboratory Report

Petitioner argues that his rights under the Confrontation
Clause were also violated when the State did not present the
testimony of Ms. Hutchins, but only the testimony of her
supervisor, Ms. Wanko. See ECF No. 1-1, at 28-33. The gravamen
of Petitioner’s argument is that he should have been provided the
opportunity to question Ms. Hutchins who initially worked on the
fingerprint report because “Wanko admits she did not physically
prepare the report admitted against petitioner but only signed it
after Hutchins prepared it.” See
id. at 31
(emphasis in original).
Petitioner first raised this claim to the PCR court. See ECF
No. 9-1, at 121-123 (Jan 24, 2015). In support of his argument
that Ms. Wanko did not physically prepare the report but merely

signed it, Petitioner relied on Ms. Wanko’s testimony at the trial
of his co-defendant. See
id. at 122
. In denying Petitioner’s
claim, the PCR court found that Petitioner’s Sixth Amendment rights
had not been violated because Ms. Wanko had indeed participated in
the fingerprint analysis and had testified at trial based upon her
own conclusions. See
id.
Moreover, the PCR court noted that it
was Ms. Wanko’s report that was admitted at trial and that Ms.
Wanko had a “real and direct involvement” with the findings. See
id.
The PCR court stated that Ms. Wanko did not engage in the
kind of “surrogate testimony” that the United States Supreme Court
had cautioned against. See
id.
Here, the state court’s adjudication of this claim was not

contrary to, or an unreasonable application of clearly established
federal law. The United States Supreme Court has held that “the
Confrontation Clause requires the authentication of testimonial
evidence by a person who certified the evidence, personally
performed the work to produce the evidence, or observed the
performance of such work.” Stevens v. Warren, No. CV 13-2831,
2017 WL 5889811
, at *7 (D.N.J. Nov. 28, 2017) (citing Bullcoming
v. New Mexico,
564 U.S. 647, 657
(2011)). Ms. Wanko testified
that she conducted her own independent analysis of the prints
submitted to the FBI laboratory and arrived at her own opinion as
to whether the prints matched. See ECF No. 8-3, at 9-13. The
following portion of Ms. Wanko’s testimony at co-defendant

Boston’s trial, which Petitioner referenced, highlights this
point:
PROSECUTOR: Ms. Wanko, do you remember the
name of the analyst who initially worked on
this comparison?

MS. WANKO: Yes, I do.

PROSECUTOR: What was her name?

MS. WANKO: Her name was Laura Hutchens.

PROSECUTOR: Now, when Ms. Hutchens made her
findings, did you merely accept her findings,
and put your name on the report?
MS. WANKO: No. I thoroughly check all of her
work.

PROSECUTOR: Okay. And, how do you do that?

MS. WANKO: I go step by step behind her with
-- through a separate analysis, and
comparison, and --

PROSECUTOR: So, do you actually do the same
comparison that she would have done?

MS. WANKO: Yes, I do.

PROSECUTOR: And, is that called verification?

MS. WANKO: Actually, verification comes as a
last step.

PROSECUTOR: I’ll show you what’s been marked
S67 for identification, and ask you if you can
identify that copy?

MS. WANKO: Yes. This is a copy of the --

PROSECUTOR: Well, you can’t show it to the
jury.

MS. WANKO: Right. This is a copy of the case
notes, which were prepared by Laura Hutchens.

PROSECUTOR: And, does it indicate whether
there was any verification of her work done,
and by whom?

MS. WANKO: Yes.

PROSECUTOR: What does it say?

MS. WANKO: She, in her case notes, she
identified the palm print, which we had
labeled Q1, with the left palm print of Tom
Nevius. I again compared it, and identified
it, and then we had a third specialist look at
it, and do a separate comparison, and separate
analysis, and to verify the identification.
PROSECUTOR: Okay. So, not only did [Ms.
Hutchins] compare it favorably, but you
reviewed it and compared the latent with Mr.
Nevius’ palm print, and a third analyst
confirmed what your opinion was, and Laura
Hutchen’s opinion; is that correct?

MS. WANKO: Yes.

ECF No. 8-20, at 37-38.
As the record demonstrates and the PCR court determined, Ms.
Wanko’s testimony does not fall within the type of testimony
cautioned against by the Supreme Court where an analyst merely
presents the report of another. See Bullcoming,
564 U.S. at 662
.
Here, there is no question that Ms. Wanko’s expert opinion was
informed by her own independent analysis. Accordingly, the state
courts’ determination that Petitioner’s rights under the
Confrontation Clause were not violated was not contrary to, or an
unreasonable application of clearly established federal law.
Petitioner is not entitled to relief on this claim.
E. Ineffective Assistance of Appellate Counsel
In his fifth ground for relief, Petitioner argues that his
appellate counsel was ineffective for failing to adequately
investigate his case and for failing to litigate issues concerning
withheld evidence, perjured testimony, and confrontation
violations. See ECF No. 1-1, at 33. Petitioner states that as a
result of appellate counsel’s “many failures,” Petitioner was
deprived of a fair direct review. See id. at 37.
Petitioner raised this argument of ineffective assistance of
appellate counsel during his PCR proceedings. See ECF Nos. 12-
16. The PCR court denied each of these claims, finding that

Petitioner had not demonstrated the prejudice prong of Strickland.
See ECF No. 8-27. The Appellate Division affirmed the PCR court’s
decision. See Nevius,
2017 WL 588186
, at *2-4.
The Sixth Amendment of the United States Constitution
provides: “[i]n all criminal prosecutions, the accused shall enjoy
the right ... to have the Assistance of Counsel for his defense.”
U.S. Const. amend. VI. The Supreme Court has recognized that “the
right to counsel is the right to the effective assistance of
counsel.” Strickland v. Washington,
466 U.S. 668, 686
(1984)
(quoting McMann v. Richardson,
397 U.S. 759
, 771 n.14 (1970)). A
showing of ineffective assistance of counsel requires two
components to succeed. Id. at 687. The two requisite proofs are as

follows: (1) a defendant must show that counsel’s performance was
deficient; and (2) the defendant must show prejudice. Id.
When a convicted defendant complains of deficient
performance, the defendant’s burden of proof is to show that the
conduct of counsel fell below an objective standard of
reasonableness. Id. at 688. Hence, “[j]udicial scrutiny of
counsel’s performance must be highly deferential.” Id. at 689. To
combat the natural tendency for a reviewing court to speculate
whether a different strategy at trial may have been more effective,
the Supreme Court has “adopted the rule of contemporary assessment
of counsel’s conduct.” Maryland v. Kulbicki,
136 S. Ct. 2, 4
(2015)
(quoting Lockhart v. Fretwell,
506 U.S. 364, 372
(1993)). As to

proving prejudice under Strickland, “actual ineffectiveness claims
alleging a deficiency in attorney performance are subject to a
general requirement that the defendant affirmatively prove
prejudice.”
466 U.S. at 693
. To succeed on this proof, a defendant
must show “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Hinton v. Alabama,
134 S. Ct. 1081, 1088
(2014)
(quoting Padilla v. Kentucky,
559 U.S. 356, 366
(2010)). A
reasonable probability is a probability which sufficiently
undermines confidence in the outcome of the trial. Strickland,
466
U.S. at 694
.
Generally, appellate counsel has no obligation to raise every

claim on direct appeal. See Smith v. Robbins,
528 U.S. 259, 288
(2000); United States v. Sanders,
165 F.3d 248, 253
(3d Cir. 1999).
The decision of which issues to raise on appeal is a strategic
choice. See Smith,
528 U.S. at 288
(citing Jones v. Barnes,
463
U.S. 745
(1983)). The chief component of effective appellate
advocacy is the winnowing out of weaker claims in favor of those
with a greater chance of success. See Jones,
463 U.S. at 753
.
“Declining to raise a claim on appeal, therefore, is not deficient
performance unless that claim was plainly stronger than those
actually presented to the appellate court.” Davila v. Davis,
137
S. Ct. 2058, 2067
(2017).
Here, the state courts’ adjudication of Petitioner’s

ineffective assistance of appellate counsel claims was not
contrary to, or an unreasonable application of, clearly
established federal law. Petitioner has not demonstrated that he
was prejudiced by appellate counsel’s failure to raise the claims
of Brady violations, perjured testimony, or Confrontation Clause
infringements. Nor has Petitioner demonstrated that these claims
were plainly stronger than those that were raised on appeal. As
discussed more fully above, Petitioner has not shown that any Brady
violations occurred, that any of the witnesses perjured
themselves, or that his rights under the Confrontation Clause were
violated. Given the insufficient merit of these claims, it cannot
be said that these issues were plainly stronger than the ones

appellate counsel did raise on appeal. See Davila,
137 S. Ct. at
2067
. Accordingly, Petitioner is not entitled to relief on these
claims.
IV. CERTIFICATE OF APPEALABILITY
The AEDPA provides that an appeal may not be taken to the
court of appeals from a final order in a § 2254 proceeding unless
a judge issues a certificate of appealability on the ground that
“the applicant has made a substantial showing of the denial of a
constitutional right.”
28 U.S.C. § 2253
(c)(2). This Court will
deny a certificate of appealability because jurists of reason would
not find it debatable that dismissal of the Petition is correct.
V. CONCLUSION

For the above reasons, the § 2254 habeas petition is denied,
and a certificate of appealability shall not issue. An appropriate
Order follows.

Dated: December 11, 2019 s/ Noel L. Hillman
At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

NEVIUS v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY

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