MCGEE v. JOHNSON et al

Filing 28

OPINION. Signed by Judge Renee Marie Bumb on 10/31/2019. (rtm, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

DANA MCGEE,
Petitioner
v.
STEPHEN JOHNSON, et al.,
Respondents.

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Civil Action No. 17-2746(RMB)

OPINION

BUMB, District Judge
This matter comes before the Court upon the Petition for a
Writ of Habeas Corpus under 28 U.S.C. § 2254 (Pet., ECF No. 1)
filed by Petitioner Dana McGee (“Petitioner”), an inmate confined
in New Jersey State Prison in Trenton, New Jersey. Respondents
filed an answer opposing habeas relief (Answer, ECF No. 17), and
Petitioner filed a traverse.(Traverse, ECF No. 26.) Pursuant to
Federal Rule of Civil Procedure 78, the Court will determine the
claims presented in the petition on the written submissions of the
parties.

I. BACKGROUND
The factual background in this matter was summarized by the
New Jersey Superior Court, Appellate Division upon Petitioner’s
direct appeal. See D.M., 2010 WL 2868503.
Between August 2001 and October 30, 2002, D.L.
was sexually abused by defendant, a live-in
boyfriend of her mother, C.W. During the
summer of 2001, when D.L. was eight years old
and about to start third grade, D.L. lived in
an apartment with her three-year-old sister,
C.W., and defendant. The sexual abuse usually
occurred in D.L.’s bedroom before she went to
school.
On the evening of October 30, 2002, when D.L.
was nine years old, she told her mother that
defendant touched her sexually that morning.
That night, C.W., D.L. and her sister left the
apartment and stayed in a hotel.
The next morning, C.W. took D.L. to a family
doctor. The doctor referred the matter to the
Division of Youth and Family Services (DYFS),
and a caseworker requested that D.L. be
examined by Dr. Martin A. Finkel, D.O. Dr.
Finkel is a pediatrician employed by the
University of Medicine and Dentistry of New
Jersey. He is a professor of pediatrics and
medical director of the Child Abuse Research
Education and Service (CARES) Institute. The
CARES Institute is a diagnostic and treatment
center for children who are suspected of
having experienced abuse. At trial, Dr. Finkel
was qualified as an expert in the field of
“pediatrics and in the diagnosis and treatment
of child sexual abuse.”
On October 31, 2002, Dr. Finkel examined D.L.
Before the examination, Dr. Finkel obtained a
separate medical history from C.W. and then
from D.L. to avoid one from influencing the
other.

2

Dr.
Finkel
explained
that
a
diagnosis
involving child sexual abuse is made the same
way a doctor renders a diagnosis of any
medical disorder. The doctor takes a history
and then performs an examination. He said that
“when [physicians] evaluate children [when]
there's
a
concern
for
whether
they've
experienced
something
of
a
sexually
inappropriate nature, the medical history is
really [a] key and paramount component....” In
taking a child's history, Dr. Finkel first
obtains information from an accompanying adult
then the child. A complete medical history
from birth to the present exam is obtained
from the adult. He testified:
When there has been a concern that
a child experiences something of a
sexually
inappropriate
nature,
[physicians] particularly focus on
the gastrointestinal and genital
urinary
systems
because
those
are[,] in a sense [,] the target
organs[,] and so I ask a very
detailed series of questions about
[those systems. I]f I'm asking about
[the] genital urinary system, I'll
ask questions [such as: H]as the
child ever had a kidney or bladder
infection, a vaginal discharge,
vaginal
odor,
[or]
vaginal
bleeding[? H]ave they ever had any
accidental injuries[? H]ave they
ever
had
discomfort
with
urination[? H]ave they ever had
blood in their urine[? D]o they use
bubble baths, [and] if so[,] have
they ever complained of discomfort
with that[? H]ave they ever had
their private parts examined other
than routine health care?
He noted that a small percentage of children
require follow-up medical care for sexually
transmitted diseases. The follow-up care
includes re-culturing and blood tests.

3

During D.L.'s medical exam, C.W. was present.
On the physical examination, Dr. Finkel
reported:
Examination
of
genitalia
was
completed in the lithotomy position
with use of gross macroscopic and
colposcopic visualization at [four,
six, and ten] magnification with
white and green light. The labia
majora and minora and clitoral hood
are well formed without findings of
trauma. With labial separation and
traction,
it
is
possible
to
visualize a slight estrogen affect
to the hymenal tissues. There was an
annular shaped configuration to the
orifice. There are no interruptions
in the integrity of the hymenal
membrane. There are no acute or
chronic
signs
of
trauma.
Examination of the external anal
verge tissues revealed a symmetric
rugal pattern, normal response to
traction, normal symmetic tone[,]
and no acute or chronic signs of
trauma.
As part of the history, D.L. told Dr. Finkel
that the touching was “both like wiping and
inside” in the adult sense of the word. D.L.
described to Dr. Finkel that defendant “pulled
[her] over and put [her] on top of him.” She
said that this happened “in [her] room.” D.L.
told Dr. Finkel that this happened right
before school. D.L. stated that defendant
touched her private parts, which she referred
to as her “pee pee and butt,” with his finger.
D.L. said that she was wearing her pajamas at
the time that defendant touched her under her
clothing, and that “it was hurting [her]
inside.”
Using a plastic model of the female genitalia,
D.L. showed Dr. Finkel what defendant did.
D.L. told him that defendant rubbed her
vagina, and that it “hurt after when he
4

stopped and[, she] went to the bathroom.” She
told the doctor that she felt “stinging” when
she urinated. She told Dr. Finkel that
defendant touched her with his “private” which
was “long and nasty.” She said that defendant
would start “shaking it.” She told the doctor
that afterwards she had to clean her private
because it was “creamy and wet.” D.L. told the
doctor that defendant would watch “nasty
movies with two girls.”
Dr.
Finkel
examined
her
for
sexually
transmitted diseases, but all cultures were
negative. He said that D.L.'s history was
“augmented by symptom[-]specific complaints
referable to specific events.” According to
the doctor, the touching “caused some local
irritation or trauma and [D.L.] then described
that after [defendant] stopped ... it hurt.”
Specifically, it “stung” when D.L. went to the
bathroom. Dr. Finkel explained that this
discomfort when urinating is known as dysuria.
Dr. Finkel concluded that D.L. “had a symptom
related to a specific event that reflect[ed]
trauma to those tissues in the process of
rubbing.” He explained that “superficial
[irritation] could easily heal within [twentyfour] hours.” Dr. Finkel opined, within a
reasonable medical certainty, that D.L.
experienced trauma to the structures of the
vaginal vestibule. His diagnosis was not only
based upon the history provided by D.L. but
also upon his particular knowledge of dysuria,
and the sexually explicit details that one
would not expect a nine-year-old to know.
Dr.
Finkel's
objective
findings
were
consistent with penetration into the vaginal
vestibule. Upon clinical examination he
determined that “the degree of inside was not
past the hymenal membrane, [and] that it was
limited to [the] structure known as the
vaginal vestibule.” He explained that the
touching was between the labia with a finger
and a penis and the penetration was “[w]ith a

5

finger and ... a penis into the structures of
the vaginal vestibule.”
Through the history obtained from C.W., Dr.
Finkle learned that D .L. had no past medical
history
of
dysuria
or
discomfort
with
urination, no urinary tract infections, and no
genital
complaints.
He
found
that
the
complaint of dysuria was “something that was
specifically related to this specific event.”
The doctor opined that D.L. experienced
inappropriate genital touching and genital
contact. He said,
In the context of that genital
touching she experienced trauma to
the tissues around the urethra that
result[ed] in a symptom of dysuria.
She also had the potential for
contracting a sexually transmitted
disease from a history that suggests
there was contact with potentially
infected genital secretions.
On November 1, 2002, D.L. was interviewed by
Detective Frank Troso, and she gave a
videotaped statement. This was her first
contact
with
law
enforcement.
D.L's
description to the detective of what defendant
did was similar to what she told Dr. Finkel.
She told Troso that defendant would enter the
bedroom, pull down her pajamas and “do stuff
to [her].” Defendant would “take off his
clothes[,] and he would take his private part
and put it inside [D.L .'s] private part.” She
described his private part as his penis and
how defendant “put it in [her] private part.”
She stated, “every time it happened, that's
mostly what he did.” She said that defendant
touched her private part with his hand, “but
that didn't happen as much as the other thing
happened.”
“He would take his penis and shove it into my
bottom,” she also said. He would go inside her
bottom and rub his penis on her bottom.
6

Defendant put D.L.'s hand on his penis. She
said that when these things happened, his
penis was hard. She said that “white[,] foamy”
stuff would come out of his penis, and it would
go on her hand, on her bottom, and on her
private part. She said that these things
happened more than once.
D.L. told Troso that defendant put his penis
in her vagina on at least three occasions,
placed his penis inside her buttocks at least
twice, and digitally penetrated her. Troso
testified that D.L. “described very, very
graphic
and
detailed
accounts
of
what
happened” between her and defendant.
On April 24, 2003, defendant was indicted. On
May 4, 2004, the trial judge granted
defendant's motion to dismiss the indictment
based on the State's failure to present
exculpatory evidence. The judge found that the
State's failure was not an intentional
subversion, and permitted the State to represent the case to the grand jury.
On May 6, 2004, the State re-presented the
matter to the grand jury. This time, the State
offered additional evidence that there were no
acute or chronic signs of trauma to D.L.'s
vagina or anus. The State elicited the
following testimony from Detective Troso:
Q: Now did you ever receive a report from Dr.
Finkel?
A: Yes, I did.
Q: And Dr. Finkel, as you described him[,] is
essentially ... a pediatric gynecologist?
A: Yes.
Q: You reviewed that report after you received
it?
A: Yes, I did.
Q: And you've reviewed it in preparation for
... today's presentation?
A: Yes.
Q: Dr. Finkel had two areas which are of import
... to your case. The first area was whether
or not there were physical ... findings
7

concerning trauma or physical abuse to either
the vagina or anus of [D.L.]?
A: Correct.
The assistant prosecutor asked Troso to read
Dr. Finkel's diagnostic assessment. He read
the following:
The historical information that ...
has been provided clearly details
this young girl experiencing a
variety of age inappropriate sexual
interactions that she explained in
detail to [Dr. Finkel,] which
involved
genital
fondling
with
penetration into the structures of
the vaginal vestibule and genital[]to
[-]genital
contact
with
placement between the labia and
rubbing into the structures of the
vagina[l] vestibule. As a result of
the
genital
fondling,
she
complained of discomfort following
the contact in the form of dysuria.
This
reflects
trauma
to
the
structures around the urethra. The
only way that she could know this
particular
symptom
[temporally]
related to this event is by having
experienced such. This confirms
with medical certainty that she
experienced
trauma
to
the
structures
of
the
vaginal
vestibule.
Those
injuries
were
superficial and have since healed
without residual[s] as would be
anticipated.
After
this
presentation,
defendant
was
indicted on May 6, 2004, and charged with
three counts of first-degree aggravated sexual
assault, N.J.S.A. 2C:14-2a(1) (Counts One,
Three and Five); seven counts of second-degree
endangering the welfare of a child, N.J.S.A.
2C:24-4a (Counts Two, Four, Six, Eight, Ten,
Twelve, and Fourteen); and four counts of

8

second-degree sexual assault, N.J.S.A. 2C:142b (Counts Seven, Nine, Eleven and Thirteen).
On April 7, 2005, the judge heard oral
argument on defendant's second motion to
dismiss the new indictment and defendant's
motion to bar the testimony of Dr. Finkel.
Defendant argued that the State failed to
present sections of Dr. Finkel's report
indicating that there was no finding of trauma
surrounding the victim's labia and clitoral
hood, that the hymen was intact, and that the
victim's anal tissue was normal.
At the conclusion of oral argument, the trial
judge denied defendant's second motion to
dismiss the indictment having found that the
State presented the pertinent, relevant parts
of the victim's history, physical examination,
and diagnostic assessment. The judge deferred
a ruling on defendant's motion to bar Dr.
Finkel's testimony until a Rule 104(a) hearing
was conducted.
On June 7, 2005, we denied defendant's motion
for leave to appeal the April 7, 2005 order.
On July 26, 2005, the trial judge conducted
the Rule 104(a) hearing to determine the
admissibility of Dr. Finkel's testimony. The
judge concluded that Dr. Finkel's testimony
was admissible. He determined that Dr. Finkel
could testify as to what D.L. told him under
N.J.R.E.
803(c)(4),
which
permits
the
introduction of hearsay statements offered for
the
purposes
of
medical
treatment
or
diagnosis. The judge concluded that “the
medical treatment purpose of the examination
conducted by Dr. Finkle was evident.”
Jury selection began, and on May 23, 2006,
defendant requested to represent himself at
trial. The judge granted that request and his
further
request
for
additional
time,
discharged the jury, and rescheduled the
trial.

9

On January 9, 2007, the judge revisited
defendant's desire to proceed pro se and found
that defendant's waiver of counsel was knowing
and voluntary.
Defendant was tried from January 10, 2007,
through January 18, 2007. D.L. testified at
trial. By using her fingers, she described to
the jury what defendant did to her. She said:
If this is my private part[,] and my
private part has two like flaps on
it, he would take his middle
finger[,] and he'[d] go like this,
like that[,] and he'[d] stroke it up
and down like this.
She showed the jury how defendant moved his
finger from left to right, and how his finger
went inside the two “flaps.” She said that he
did the same thing with his penis that he did
with his hand. Defendant rubbed his penis on
the “flaps.”
(Id. at *1-5.)
II. PROCEDURAL HISTORY
Following a jury trial, on January 18, 2007, Petitioner was
convicted of three counts of aggravated sexual assault in violation
of N.J. Stat. Ann. § 2C:14-2a(1), six counts of second-degree
endangering the welfare of a child in violation N.J. Stat. Ann. §
2C:24-4a, and three counts of second-degree sexual assault in
violation of N.J. Stat. Ann. § 2C:14-2b in the Superior Court of
New

Jersey,

Law

Division,

Burlington

County.

State

v.

D.M.,

Indictment No. 04-05-0483, 2010 WL 2868503 *4-5 (N.J. Super. Ct.
July 21, 2010). Petitioner was sentenced to an aggregate sixty-

10

year sentence subject to the No Early Release Act (“NERA”). Id. at
1.
Petitioner appealed. (Answer, Ex. Ra5, ECF No. 17-8.) The
Appellate Division affirmed the conviction and sentence on July
21, 2010. See D.M., 2010 WL 2868503. Petitioner then filed a
petition

for

certification

in

the

New

Jersey

Supreme

Court.

(Answer, Ex. Ra9, ECF No. 17-12.) The New Jersey Supreme Court
denied the petition on October 21, 2010. State v. D.M., 6 A.3d 443
(N.J. 2010).
Petitioner filed a pro se post-conviction relief (“PCR”)
petition in January 2011. (Answer, Ex. Ra12, ECF No. 17-15.)
Petitioner’s attorney filed a letter brief in support of the
petition on his behalf in March 2012. (Id., Ex. Ra13, ECF No. 1716.) Oral argument was held before the Honorable Michael J. Haas
on June 21, 2012. (Id., Ex. Ra15, ECF No. 17-18.) On June 22, 2012,
the PCR court denied Petitioner’s request for relief without a
hearing. (Id.)
Petitioner appealed the PCR court’s decision. (Answer, Ex.
Ra18, ECF No. 17-21.) On May 5, 2015, the Appellate Division
affirmed the PCR Court. State v. D.L.M., A-0831-12T4, 2015 WL
1980045 (N.J. Super. Ct. App. Div. May 5, 2015). Petitioner filed
a petition for certification with the New Jersey Supreme Court,
which was denied on September 12, 2016. State v. D.L.M., 151 A.3d
81 (N.J. 2016).
11

Petitioner filed a second PCR petition on November 16, 2016,
seeking DNA testing pursuant to N.J. Stat. Ann. § 2A:84A-32a, and
arguing that “stand-by counsel should have subpoenaed Dr. Sheehan
to see i[f] she took vaginal cultures or swabs from the victim.”
(PCR Court Order Denying Petitioner’s Second Petition for PostConviction Relief and Motion for DNA Testing, Ex. Ra24, ECF No.
11-27 at 1.) The PCR Court denied his second PCR petition on March
23, 2017, finding that McGee raised essentially the same arguments
as in his first PCR motion. (Id. at 2.) McGee then filed the
present habeas petition on April 13, 2017. (Pet., ECF No. 1.)
III. DISCUSSION
A.

Standard of Review

28 U.S.C. § 2254(d) provides:
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.

12

“Contrary to clearly established Federal law” means the state
court applied a rule that contradicted the governing law set forth
in United States Supreme Court precedent or that the state court
confronted a set of facts that were materially indistinguishable
from United States Supreme Court precedent and arrived at a
different result than the Supreme Court. Eley v. Erickson, 712
F.3d 837, 846 (3d Cir. 2013) (citing Williams v. Taylor, 529 U.S.
362, 405-06 (2000)). The phrase “clearly established Federal law”
“refers to the holdings, as opposed to the dicta” of the U.S.
Supreme

Court’s

decisions.

Williams,

529

U.S.

at

412.

An

“unreasonable application” of clearly established federal law is
an “objectively unreasonable” application of law, not merely an
erroneous application. Eley, 712 F.3d at 846 (quoting Renico v.
Lett, 130 S.Ct. 1855, 1862 (2010)).
B.

Analysis
1.

Ground One
a.

The Parties’ Arguments

In Petitioner’s first ground for relief, he claims that he
was prohibited from exercising his right of self-representation in
violation

of

the

Sixth

Amendment.

(Pet.,

ECF

No.

1

at

5.)

Petitioner, who was assisted by standby counsel Timothy Reilly,
Esq., alleges that he was prohibited from presenting a defense
expert witness, Dr. Kathleen Brown. (Id. at 2.)

13

Respondents contend that while Petitioner’s waiver of his
right to counsel served as a bar to future claims of ineffective
assistance, he has nonetheless failed to demonstrate that standby
counsel was ineffective. (Answer, ECF No. 17 at 41-49.) Respondents
further contend that any claims of purported trial court errors
while attempting to locate and learn of what Dr. Brown’s testimony
would entail, are meritless. (Id. at 48-49.)
b. State Court’s opinion
The Court notes that while Petitioner raised this claim within
the context of his right of self-representation in his counseled
PCR brief, he did not appeal the PCR court’s denial of this
particular claim. Petitioner unsuccessfully raised this claim as
an ineffective assistance of appellate counsel claim on appeal of
the PCR decision. D.L.M., 2015 WL 1980045 at *3. While this claim
is unexhausted, it can nonetheless be denied on the merits. See
Granberry v. Greer, 481 U.S. 129, 131, 135 (1987) (noting that the
exhaustion requirement is not a jurisdictional requirement to the
exercise of habeas corpus jurisdiction over the merits of a state
prisoner’s claims and a district court may deny a claim on its
merits despite non-exhaustion “if it is perfectly clear that the
applicant does not raise even a colorable federal claim.”).
To the extent that the PCR Court ruled on this particular
claim, it held that Petitioner “was free to argue any abuse of

14

discretion on Judge Almeida’s part to the Appellate Division on
direct appeal.” (Answer, Ex. Ra15, ECF No. 17-18 at 30.)
c.

Analysis

The right to self-representation is guaranteed by the Sixth
Amendment to the United States Constitution as well as the New
Jersey Constitution. U.S. Const. amend. VI; N.J. Const. art. 1, ¶
10. The clearly established federal law for claims alleging denial
of the right to self-representation was articulated by the United
States Supreme Court in Faretta v. California, 422 U.S. 806 (1975).
This right is afforded to a defendant who voluntarily, knowingly,
and

intelligently

chooses

to

do

so,

and

the

state

may

not

constitutionally force a lawyer upon him. Id. at 834-35. Faretta
and

its

progeny

of

cases

provide

that

a

defendant

must

unequivocally assert his right to self-representation in a timely
manner and the trial court must then conduct a colloquy with the
defendant to determine that the waiver of counsel is knowing and
voluntary. Buhl v. Cooksey, 233 F.3d 783, 791 (3d Cir. 2000).
At the start of the defense’s case-in-chief, the court twice
permitted

Petitioner

and

his

standby

counsel

to

use

court

facilities to call Kathleen Brown, PhD., a nurse who reviewed the
medical examiner’s report. (Answer, Rta Nos. 12-13, ECF Nos. 1740 at 4.) Dr. Brown, who previously advised Mr. Reilly that she
would not serve as a witness and further that her testimony would
not be favorable to the defense’s case, did not respond to both
15

attempts to reach her that day. (Id.) The Court subsequently held
a

lengthy

discussion

with

the

parties

about

the

Petitioner insisted that he needed to speak with Dr.

issue

and

Brown. (Id.

at 5.) The court arranged for Petitioner to be able to receive
calls at the jail where he was detained in the event that Dr. Brown
returned his calls that evening. (Id. at 6.) The court dismissed
the jury with the hopes that the case could resume the following
day. (Id. at 9.)
The next morning, the court learned that the defense had an
approximately fifteen to eighteen-minute telephone conversation
with Dr. Brown. (Id., ECF No. 17-41 at 3.) Mr. Reilly proffered to
the court that Dr. Brown’s testimony would not be helpful to the
defense and that Dr. Brown indicated she would not be able to
testify that day. (Id. at 4.) Petitioner urged the court to speak
with Dr. Brown about the issue of her arranging her travel to court
and

also

explained

at

length,

what

he

expected

Dr.

Brown’s

testimony to entail. (Id. at 4-8.) The trial court then gave
Petitioner an additional opportunity to attempt to reach Dr. Brown
by telephone. (Id. at 9.) Petitioner re-appeared before the court
and indicated that Dr. Brown would not be able to testify that
day. (Id.) However, he repeatedly evaded the judge’s question when
asked whether Dr. Brown’s testimony would be helpful to his case.
(Id.)

16

The trial court then swiftly ordered the parties into chambers
for an on-the-record telephone call to Dr. Brown. (Id. at 10.) The
trial

judge

and

Dr.

Brown

had

a

brief

discussion

about

her

favorable opinion of the medical examiner’s report as well as the
fact that she previously relayed this information to Petitioner
and his standby counsel. (Id. at 10-11.) Near the end of the
judge’s conversation with Dr. Brown, Petitioner attempted to ask
her a follow-up question which the judge quickly prohibited. (Id.)
Petitioner nonetheless argues that he “was forced to end
presenting his defense at this point.”

(Pet., ECF No. 1 at 6.)

Here, while Petitioner appears to disagree with Dr. Brown’s
professional opinion and her subsequent decision to not serve as
a defense witness, he has not demonstrated how the trial court
impinged on his right to represent himself. The record is clear
that Petitioner represented himself and had the assistance of
standby counsel throughout the course of the trial. Further, the
record reflects that the trial court gave Petitioner and standby
counsel numerous opportunities to contact Dr. Brown after the trial
had commenced; many of those times providing them with exclusive
use of court facilities. The principles set forth in Faretta,
namely that his waiver of counsel was knowing, intelligent and
voluntary, do not bear on Petitioner’s instant claim. Therefore,
Petitioner has not established a valid Faretta violation. Ground
One of the petition is denied.
17

2.

Ground Two
a.

The Parties’ Arguments

In Ground Two of his petition, Petitioner contends his “pretrial” counsel provided ineffective assistance in violation of the
Sixth Amendment by failing to thoroughly investigate the case
“and/or” communicate the status of the case to Petitioner. (Pet.,
ECF No. 1 at 7.) More specifically, Petitioner argues that counsel
failed to request deoxyribonucleic acid (“DNA”) testing on swabs
taken from the victim and failed to request the report that
concluded Petitioner’s DNA was on cigarette butts retrieved from
law enforcement during Petitioner’s post-arrest interview. (Id.)
Petitioner submits that DNA testing of the cultures taken from the
victim would have resulted in his acquittal. (Id.) He further
contends that counsel’s pre-trial dereliction prompted him to
represent himself for the balance of his case including the
entirety of the trial. (Id.)
Respondents contend the Appellate Division reasonably applied
Strickland by finding counsel was not ineffective for failing to
pursue this information. (Answer, ECF No. 17 at 51-55.) Respondents
submit that the record is silent about any physical evidence being
taken from Petitioner either at his residence or anywhere else.
(Id. at 52.) Respondents further submit that the record is also
void of any evidence that DNA was taken from the victim. (Id. at
52-53.)

Moreover,

Respondents

point
18

out

that

the

victim’s

allegations

involved

conduct

that

spanned

over

a

significant

period of time, specifically one year and two-months. (Id. at 53.)
b.

The State Court’s Decision

On habeas review, the district court must review the last
reasoned state court decision on each claim. Ylst v. Nunnemaker,
501 U.S. 797, 803 (1991).
The

highest

state

court

decision

on

Ground

Two

is

the

Appellate Division’s review of the PCR Court’s decision. The
Appellate Division addressed this claim in part as follows:
Here, there is no evidence showing
that any DNA samples were taken from
defendant’s cigarette butts, or any
report was generated concerning
defendant’s
DNA.
Moreover,
the
record
indicates
that
no
DNA
evidence was ever recovered from the
victim.
Indeed,
Dr.
Finkel
testified at trial that he took
vaginal cultures from the victim but
he never said he swabbed the victim
for DNA evidence. Thus, counsel was
not ineffective for failing to
obtain discovery regarding evidence
that did not exist, and appellate
counsel was not deficient in failing
to raise this issue on appeal.
D.L.M., 2015 WL 1980045 at *4.
c.

Analysis

The Supreme Court set forth the standard by which courts must
evaluate claims of ineffective assistance of counsel in Strickland
v. Washington, 466 U.S. 668 (1984). First, the defendant must show
that

counsel’s

performance

was
19

deficient.

This

requirement

involves demonstrating that counsel made errors so serious that he
was not functioning as the “counsel” guaranteed by the Sixth
Amendment. Id. at 687. Second, the defendant must show that he was
prejudiced by the deficient performance. Id. This requires showing
that counsel’s errors deprived the defendant of a fair trial.

Id.

Counsel’s performance is deficient if his representation falls
“below an objective standard of reasonableness” or outside of the
“wide range of professionally competent assistance.”

Id. at 690.

In examining the question of deficiency, “[j]udicial scrutiny of
counsel’s performance must be highly deferential.”

Id. at 689.

In addition, judges must consider the facts of the case at the
time of counsel’s conduct, and must make every effort to escape
what the Strickland court referred to as the “distorting effects
of hindsight.” Id.
The petitioner bears the burden of showing that counsel’s
challenged action was not sound strategy. Kimmelman v. Morrison,
477 U.S. 365, 381 (1986). Furthermore, a defendant must show a
reasonable probability that, but for counsel’s errors, the result
of the proceeding would have been different.

Id. at 694.

When assessing an ineffective assistance of counsel claim in the
federal habeas context, “[t]he pivotal question is whether the
state

court’s

application

of

the

Strickland

standard

was

unreasonable,” which “is different from asking whether defense
counsel’s performance fell below Strickland’s standard.” Grant v.
20

Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (quoting Harrington v.
Richter, 562 U.S. 86, 101 (2011)).
A state court must be granted a deference and latitude that
are not in operation when the case involves [direct] review under
the Strickland standard itself.”
ineffective

assistance

of

Id.

counsel

Federal habeas review of
claims

is

thus

“doubly

deferential.” Id. (quoting Cullen v. Pinholster, 131 S.Ct. at
1403). Federal habeas courts must “take a highly deferential look
at

counsel’s

performance”

under

deferential lens of § 2254(d).” Id.

Strickland,

“through

the

(internal quotation marks and

citations omitted). “With respect to the sequence of the two
prongs, the Strickland Court held that ‘a court need not determine
whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged
deficiencies . . . If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.’” Rainey
v. Varner, 603 F.3d 189, 201 (3d. Cir. 2010) (quoting Strickland,
466 U.S. at 697)).
At

Petitioner’s

trial,

Dr.

Finkel

testified

about

the

examination he conducted on the victim the day after she reported
the offense.1 (Answer, Ex. Rta10, ECF No. 17-38.) He testified that

1

The victim testified that she reported the abuse by Petitioner
to her mother at an earlier date, but the mother did not take any
21

after conducting an interview with the victim, he “evaluated her
for sexually transmitted diseases using cultures.” (Id. at 24.)
Further, the victim testified that although it was her October 30,
2002 report of the abuse that prompted her mother to notify
authorities, Petitioner’s conduct spanned over a prolonged period
of time. (Answer, Ex. Rta9, ECF No. 17-37 at 17-21.)
While

the

Court

is

aware

that

the

victim

alleged

that

Petitioner’s sexual abuse occurred up until the day before she was
seen by Dr. Finkel, the Respondents argue that the charging
documents alleged that the conduct occurred over a fourteen-month
timespan. (Answer, ECF No. 17-53.) Further, the victim’s own trial
testimony and statements to Dr. Finkel reflect that Petitioner did
not exclusively penetrate her with his penis, but also digitally
penetrated her. (Answer, Ex. Rta9, ECF No. 17-37 at 18-19, Ex.
Rta10, ECF No. 17-37 at 27.) In context, it makes sense that
counsel did not pursue the issue of requesting any DNA analysis of
vaginal cultures taken from the victim because the state’s case
did not rely on the exclusive theory that Petitioner penetrated
the victim with his penis on October 31, 2002.
The record does not reflect that any of the biological matter
taken from the victim was ever submitted for DNA analysis because
that did not appear to be the doctor’s reason for taking the

subsequent action involving reporting it to authorities. (Answer,
Ex. Rta9, ECF No. 17-31 at 17.)
22

cultures from the victim. Nor for that matter, did the state’s
medical witness testify that the cultures taken from the victim
could be subjected to DNA testing. See Marshall v. Hendricks, 307
F.3d 36, 85 (3d Cir. 2009) (“The deference accorded to counsel's
reasonable strategic decisions can be seen in numerous United
States

Supreme

Court

rulings

following

on

the

heels

of

Strickland.”) Moreover, the record is silent about law enforcement
procuring any cigarette butts or any other items purportedly having
Petitioner’s DNA.
Therefore, Petitioner has not established that the state
court’s denial of this claim was not an unreasonable application
of clearly established federal law. Ground Two of the petition is
denied.
3.

Ground Three
a.

The Parties’ Arguments

In Ground Three, Petitioner contends he was denied his right
to effective assistance of standby counsel because of his failure
to subpoena Dr. Kathleen Brown and Dr. Sheenan to testify for the
defense. (Pet., ECF No. 1 at 8-9.) Petitioner alleges that Dr.
Sheenan was the first physician to examine the victim after she
reported the assault. (Id.) He also provides, “[a]s part of the
examination,
examination

Dr.
and

Sheenan
taken

would

vaginal

have

swabs.

conducted
These

swabs

a

vaginal

would

have

contained bodily fluids, which would have contained important DNA
23

evidence.” (Id.) Petitioner argues that this DNA evidence would
have proven to be exculpatory evidence. (Id.) Further, in his
traverse Petitioner provides that his basis for knowing about Dr.
Sheenan’s examination of the victim is from handwritten notes of
an examination of the victim which Petitioner provides are Dr.
Sheenan’s notes.2 (Traverse, ECF No. 26 at 40.)
Respondents

assert

that

the

Appellate

Division

properly

resolved Petitioner’s claim as Petitioner has not demonstrated
that standby counsel was ineffective for not compelling Dr. Brown’s
testimony, as she was not able to provide testimony that was
helpful to his case. (Answer, ECF No. 17 at 50-51.) Further,
Respondents submit that Petitioner has failed to demonstrate how
he was prejudiced by counsel’s failure to subpoena Dr. Sheenan.
(Id. at 50.)
b.

The State Court Decision

On appeal of the PCR denial, the Appellate Division addressed
this claim as follows:

2

Petitioner also provides that despite Respondents’ argument that
they are not aware of Dr. Sheenan’s role in the matter, she was
listed as a state’s witness on the trial witness list. He provides
that although the witness list was not provided to the state court,
he can provide it to this Court upon request. (Traverse, ECF No.
26 at 40.) In a subsequent filing, Petitioner provides a purported
“Prosecutor’s Office Witness List” that lists a “Dr. C. Sheenan.”
(ECF No. 27 at 5.) See Cullen v. Pinholster, 563 U.S. 170, 181
(2011)(held that “review under § 2254(d)(1) is limited to the
record that was before the state court that adjudicated the claim
on the merits.”)
24

Defendant also argues that standby counsel
erred by failing to subpoena certain witnesses
for trial, specifically Dr. Brown and a “Dr.
Sheenan.” The PCR court correctly found that
this claim was without merit. The court wrote:
Dr. Brown was unable to testify in
a way that was beneficial to
defendant, and both Dr. Brown and
standby counsel agreed that her
testimony could be detrimental to
defendant’s case. Because defendant
disagreed
with
standby
counsel
about this issue, [the trial court]
took the extra step of finding out
exactly what Dr. Brown’s potential
testimony would be. After [the
court] was satisfied that defendant
had misstated Dr. Brown’s position
regarding testifying at his trial,
[the court] determined that [it] was
not going to order Dr. Brown to
testify. Given these circumstances,
standby
counsel’s
failure
to
subpoena Dr. Brown to give testimony
damaging to defendant was not below
an objectively reasonable standard
of
representation,
nor
has
defendant
argued
that
he
was
prejudiced in any way by Dr. Brown’s
absence at trial. As to “Dr.
Sheenan,” it is unclear from the
record who “Dr. Sheenan” is, and
defendant has failed to articulate
any reason standby counsel should
have subpoenaed [this witness] and
he has failed to demonstrate that he
was prejudiced by standby counsel’s
failure to do so.
The record fully supports the PCR court’s
determination regarding this claim.
D.L.M., 2015 WL 1980045 at *4.

25

c.

Analysis

The Court need not reiterate the ineffective assistance of
counsel standard applied in such claims. See supra, Section 3, B
2 c. In addition to the standard set by Strickland and its progeny,
the United States Court of Appeals for the Third Circuit has
provided that counsel is not ineffective just because he does not
act in accordance with the defendant’s wishes. See Diggs v. Owens,
833 F.2d 439, 445-46 (3d. Cir. 1987). Moreover, the petitioner
must

demonstrate

how

a

witness’s

testimony

would

have

been

favorable to his defense. See United States v. Gray, 878 F.2d 702,
712 (3d Cir. 1989).
First,

with

respect

to

Dr.

Kathleen

Brown,

this

Court

considered the factual context within which Dr. Brown was not
called to serve as a defense witness, in its disposition of Ground
One of the instant petition. See supra, Section 3, B 1 c. Notably,
in addition to standby counsel’s multiple proffers to the trial
court about Dr. Brown’s potentially harmful testimony if she were
called to testify, the record reflects that the trial court made
an on-the-record inquiry of Dr. Brown via telephone. (Answer, Ex.
Rta No. 13, ECF No. 17-41 at 10-11.) Dr. Brown explained to the
trial court that her testimony would potentially work against
Petitioner’s

defense

because

she

report.

26

concurred

with

Dr.

Finkel’s

Next, with respect to Dr. Cindy Sheenan, the Court has
reviewed an exhibit which Petitioner submits are Dr. Sheenan’s
handwritten notes.3 (Answer, Ex. Ra17, ECF. No 17-20 at 40.) Dr.
Sheenan’s name does not appear to be anywhere on the document.
While the document does indicate that the victim was interviewed
and examined by a professional on October 31, 2002, after reporting
recent sexual abuse, the document’s author is unknown. (Id.)
The
standby

Appellate
counsel

was

Division
not

reasonably

ineffective.

concluded

Other

than

that

trial

Petitioner’s

uncorroborated assertion of Dr. Sheenan’s existence, the record
does not reflect what role she played in the case. Even if this
Court were to accept that she did in fact meet with and examine
the victim shortly after the offense was reported, Petitioner has
not demonstrated how her testimony would have been helpful. He
assumes, without any factual basis, that she “would have conducted
a vaginal examination and taken vaginal swabs. These swabs would
have contained bodily fluids, which would have contained important
DNA

evidence.”

established

how

(ECF
the

No.

1

results

at
of

9.)
the

Nonetheless,
examination

he

has

would

not
have

undermined the state’s case against him; particularly in light of

3

These notes were attached as an exhibit to Petitioner’s pro se
appeal of the PCR denial. (Answer, Ex. Ra17, ECF. No 17-20 at 40.)
The record does not reflect that this exhibit was provided to the
PCR Court. See Cullen, 563 U.S. 170, 181 (2011).
27

the fact that the victim alleged that the abuse occurred over a
prolonged period of time. See Strickland, 466 U.S. at 694.
Therefore, the Appellate Division’s determination was not
contrary to or an unreasonable application of clearly established
Supreme Court precedent. Ground Three of the petition is denied.
4.

Ground Four
a.

The Parties’ Arguments

Petitioner’s fourth ground for relief is that his appellate
counsel was ineffective for failing to raise the following issues
on direct appeal: first, that the trial court abused its discretion
by impinging on his right to self-representation; second that pretrial counsel was ineffective for failing to subpoena an expert
witness. (Pet., ECF No. 1 at 10.) Petitioner does not provide any
supporting facts but it appears that he is alleging ineffective
assistance of appellate counsel for failing to raise Grounds One
and Three of the instant habeas petition.
Respondents assert the Appellate Division reasonably denied
this claim because neither counsel’s supposed failure to call a
witness or the trial court’s decision to inquire directly about
the favorability of Dr. Brown’s testimony, violated Petitioner’s
constitutional rights.(Answer, ECF No. 17 at 62.)
b.

The State Court Decision

On PCR appeal, the Appellate Division addressed this claim as
follows:
28

Defendant further argues that his appellate
counsel rendered ineffective assistance in his
direct
appeal.
Defendant
asserts
that
appellate counsel should have raised the
following
issues:
(1)
the
trial
court
improperly held a “telephonic voir dire” of
Dr. Brown; (2) the trial court erred by
refusing to allow defendant to question Dr.
Brown during the “telephonic voir dire”, (3)
the trial court erroneously refused to grant
defendant a continuance to allow him time to
secure Dr. Brown’s appearance; and (4) trial
counsel
rendered
ineffective
assistance.
Defendant maintains that “his chances of
succeeding on appeal would have increased” if
the aforementioned issues had been raised.
The PCR court rejected these arguments. The
court noted that at trial, defendant had not
been denied the opportunity to present any
testimony that would have been favorable to
him. The court pointed out that defendant had
not demonstrated that he was prejudiced by the
trial court’s “careful consideration of
[defendant’s] attempt to call and expert
witness [who was] sympathetic to his position
in this case.”
Moreover, defendant was not prejudiced by
appellate counsel’s failure to raise claims of
ineffective assistance of counsel on appeal.
Those claims were raised and resolved in the
PCR proceeding. We therefore conclude that the
record
fully
supports
the
PCR
court’s
determination that defendant was not denied
the effective assistance of appellate counsel.
D.L.M., 2015 WL 1980045 at *4-5.
c.

Analysis

Ineffective assistance of appellate counsel is analyzed under
the Strickland standard as well. See Albrecht v. Horn, 485 F.3d

29

103, 137 (3d Cir. 2007) (quoting United States v. Mannino, 212
F.3d 835, 840 n.4 (3d Cir. 2000)).
The Appellate Division’s Opinion is consistent with Supreme
Court precedent.d As this Court previously opined when denying
Ground One of the instant petition, the record reflects that the
trial court made multiple efforts to ensure that Petitioner was
able to communicate with his desired witness, Dr. Brown, before
eventually determining that her presence would not be beneficial
to Petitioner’s defense. See supra, Section 3, B 1 c. Further,
this

Court

already

observed

that

pre-trial

counsel

was

not

ineffective for failing to subpoena Dr. Brown and Dr. Sheenan.
See supra, Section 3, B 3 c. Therefore, appellate counsel cannot
be deemed ineffective for failing to raise an issue that would not
have resulted in the reversal of his client’s conviction. See Buehl
v. Vaughn, 166 F.3d 163, 174 (3d Cir. 1999).
Therefore, Ground Four of the petition is denied.
5.

Ground Five
a.

The Parties’ Arguments

In Ground Five, Petitioner contends he was deprived of his
constitutional due process right to a fair trial when the trial
court permitted the victim to leave the witness stand to “consult
with her father and a member of the prosecutor’s office.” (Pet.,
ECF No. 1 at 11.)

30

Respondents assert that Petitioner has not made a valid due
process claim as he has not established that the victim conferred
with her father about the case or her testimony during the recess.
(Answer, ECF No. 17 at 61.)
b.

The State Court Decision

Petitioner raised the instant claim for the first time at
oral argument in support of his PCR. (Answer, Ex. Ra 15, ECF No.
17-18 at 32.) The PCR court dismissed the claim as followsLikewise, at the time of oral argument on June
21, 2012, defendant, through counsel, argued
that Judge Almeida should not have permitted
the child victim to step off the stand while
a question defendant raised was addressed.
Defendant did not provide a transcript of this
occurrence. Nor has he specified why it was
improper for the witness to leave the stand
during what appears to have been a break.
Defendant alleged, without any proof, that the
witness was “coached” by the prosecutor’s
office during the break. His argument fails
because it is not substantiated and because he
has not demonstrated that Judge Almeida abused
his discretion by permitting the witness to
take a break. It also fails, however, because
it is the type of argument that should have
been raised on appeal.
(Id. at 32-33.)
On appeal of the PCR denial, the Appellate Division summarily
dismissed this claim as meritless pursuant to R. 2:11-3(e)(2).4
D.L.M., 2015 WL 1980045 at *5.

4

This rule authorizes an affirmance when in an appeal of a
criminal, quasi-criminal or juvenile matter, the Appellate
Division determines that some or all of the arguments made are
31

c.
While

being

Analysis
cross-examined,

the

victim

appeared

to

be

confused by a question and asked for clarification. (Answer, Ex.
Rta 9, ECF No. 17-37 at 23.) Before she could answer the question,
she abruptly asked the court to take a break so she could speak to
her father. (Id.) The trial court implored her to respond to the
question first, but she insisted that she did not understand the
question. The court took a recess and the following colloquy
occurred at sidebar:
THE COURT: What do you, Mr. Morgan, think your
obligation now is under the sequestration
order in view of the witness saying that she
wanted to speak to her father?
MR. MORGAN: I don’t think it’s a violation of
the sequestration order. She didn’t say she
wanted to talk about her testimony. Her dad
just walked in the courtroom.
THE COURT: I know that I saw a gentleman came
in and that unnerved her as soon as that person
came in. There’s been a lot of activity. Did
you hear what I just said? There’s been a
tremendous amount of activity, people walking
in while this witness is testifying from the
State’s – from the State. And the man who just
walked in, you could tell, I could see
palpably it changed her demeanor on the stand.
My question to you is and it’s in the backdrop
of that I suppose but that’s of no material
moment, the sequestration order would prohibit
a witness from talking to anyone about her
testimony while she’s testifying.
MR. MORGAN: I agree.
without sufficient merit to warrant discussion in a written
opinion.
32

THE COURT: Okay. Do you think you have an
obligation to tell the gentleman who just
walked in who apparently is her father that
he’s not allowed to talk to her about the
testimony or about the case?
MR. MORGAN: I will and I think I can clarify
some of this Judge, Before D.L.5 took the
stand, when you asked me to bring her into the
courtroom, she said I want my dad, my dad’s
not here. He’s supposed to be here. Obviously,
it was on her mind before she took the stand.
He came into the courtroom in the middle of
the testimony.
THE COURT: He came into the courtroom
literally three minutes ago, 10 after two.
MR. MORGAN: That’s when she—
THE COURT: Couldn’t he have waited?
MR. MORGAN: No, sir. I didn’t even ask the
Court for an adjournment at that point. I’m
suggesting it was his arrival that probably
unnerved her so it could be as benign as I
want to go and hug my dad but I will clearly
communicate to her and her father.
THE COURT: Do you understand what’s going on?
MR. MCGEE: I understand
see, the only thing I’m
Your Honor, is I asked
somebody prepare you for

what’s going on but,
more concerned about
her a question, did
this.

THE COURT: She said she doesn’t understand the
question.
MR. MCGEE: I understand that’s why you called
a recess.
THE COURT: I wasn’t going to call a recess if
she said I understand the question but I want
5

The Court will refer to the minor victim by her initials.
33

to talk to my dad, I’m not going to call a
recess. I don’t care who the witness is.
MR. MCGEE: I’m not trying to be smart.
THE COURT: I’m not suggesting anything in that
regard. I just don’t want any violation of the
sequestration order.
MR. MCGEE: Can I finish?
THE COURT: Go ahead.
MR. MCGEE: The problem is now she goes over,
somebody prepared her for this, whoever
prepared her, it didn’t come out.
THE COURT: I can’t tell her to understand the
question if she doesn’t understand.
MR. MCGEE: That’s why I rephrased it.
THE COURT: You can rephrase it.
MR. MCGEE: Are you going to let her talk to
her father?
THE COURT: Yes. That’s not a violation of
sequestration order. What’s a violation of the
order if she talks to her father and says to
her father, Dad, did I talk to anybody, what
did I say, how should I answer the question,
that’s a violation of the order.
MR. MCGEE: You’re going to let them go outside
the courtroom?
THE COURT: Yes. They can go wherever they
want. Yes. That’s not a violation.
MR. MCGEE: I have no control.
MR. REILLY: The fact the father is in the
courtroom you would want somebody to monitor
the conversation because they might talk about
her testimony.

34

THE COURT: I think that Mr. Morgan needs to
instruct the father and the witness not to
talk about it, I know the witness is withisn’t the witness with a member of your unit?
MR. MORGAN: Yeah,
Advocacy Center.

a

member

of

the

Child

THE COURT: Can a member of the Child Advocacy
Center be with her at the time she has the
discussion with the father?
MR. MORGAN: We’ll have someone there, Judge.
It seems to be there’s a nefarious motive that
seems to be being indicated.
THE COURT: No. There’s not a nefarious motive.
Record will bear this out I suspect. The
question was asked on three occasion, there
was delay, the delay’s not a problem at all,
when the father entered probably three
questions before this question was asked, the
witness’s demeanor changed and she had
difficulty answering the question and in her
answer to the second to last time Mr. McGee
asked the question, she said I want a break.
You said ask the Judge. I want a break to talk
to my father. There’s nothing nefarious in
that. It’s simply the logical conclusion one
might reach is I want to talk to my father to
deal with this question that I don’t know how
to answer.
MR. MORGAN: One might reach it.
THE COURT: That’s not nefarious. It’s a
possible scenario by reminding what I think
you need to do under sequestration.
MR. MORGAN: I’m more than happy to do it.
THE COURT: Good. Have the child advocacy
person there. Okay. See you after the recess.
(Id. at 24-26.)

35

The court allowed the witness to leave the witness stand
during a brief recess.6 (Id. at 26.) Shortly thereafter the victim
returned to the witness stand and resumed her testimony without
incident. (Id. at 26-55.)
Generally, a trial court may exclude testimony of witnesses
who violate a sequestration order if the defendant is prejudiced
by the violation. See United States v. McClain, 469 F.2d 68, 69
(3d Cir. 1972) (citations omitted). Here, the record does not
support that the victim discussed her testimony or any facts about
the case with her father during the recess. The court’s decision
to order a representative from the Child Advocacy Center to
accompany the victim as she spoke to her father most likely also
served to deter any possible violation of the sequestration order.
Petitioner has not demonstrated how the state court’s ruling was
an unreasonable application of clearly established federal law.
Therefore, Ground Five of the petition is denied.
IV.

CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or

judge issues a certificate of appealability, an appeal may not be
taken from a final order in a proceeding under 28 U.S.C. § 2254.
A certificate of appealability may issue “only if the applicant
has made a substantial showing of the denial of a constitutional

6

The record is silent about whether the witness actually spoke
to her father during the recess.
36

right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree
with the district court’s resolution of his constitutional claims
or that jurists could conclude the issues presented are adequate
to

deserve

encouragement

to

proceed

further.”

Miller-El

v.

Cockrell, 537 U.S. 322, 327 (2003).
For the reasons discussed above, Petitioner has not made a
substantial showing of the denial of a constitutional right.
Therefore, the Court will deny a certificate of appealability.
V.

CONCLUSION
In the accompanying Order filed herewith, the Petition for

habeas relief under 28 U.S.C. § 2254 is denied.

Dated: October 31, 2019
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

37