UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ______________________________ : KENNETH M. WATFORD, : : Petitioner, : Civ. No. 19-5471 (NLH) : v. : OPINION : SOUTH WOODS STATE PRISON, : et al., : : Respondents. : ______________________________:
APPEARANCES:
Kenneth M. Watford 290971B/711309 Southern State Correctional Facility 4295 Route 47 Delmont, NJ 08314
Petitioner Pro se
Jennifer Webb-McRae, Cumberland County Prosecutor Andre Araujo, Assistant Prosecutor Cumberland County Prosecutor’s Office 115 Vine Street Bridgeton, NJ 08302
Counsel for Respondents
HILLMAN, District Judge Petitioner Kenneth M. Watford, a prisoner presently incarcerated at Southern State Correctional Facility in Delmont, New Jersey is proceeding on a petition for a writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 1. For the reasons stated below, the petition will be denied. No certificate of appealability shall issue. I. BACKGROUND This Court, affording the state court’s factual determinations the appropriate deference, 28 U.S.C. § 2254(e)(1), reproduces the recitation of the facts as set forth by the New Jersey Superior Court, Appellate Division (“Appellate Division”) in its opinion denying Petitioner’s direct appeal:
At approximately 4:00 a.m. on January 1, 2009, Jennifer Denby was driving in the southbound lane of the Maurice River Parkway when she spotted a body on the right side of the road. Denby called the Vineland Police Department and Detective Christopher Ortiz responded. Ortiz checked for a pulse on the body, later identified as Ronald Rollines,1 and found none. Minutes later, emergency medical services arrived and declared Rollines dead at 4:28 a.m.
Medical Examiner Ian Hood performed an autopsy and found sixteen stab wounds on Rollines’ body; most were on his back but there were additional wounds on his upper arms, right thumb, right cheek, neck, and stomach. Several of the wounds had the capacity to be fatal and were delivered with considerable force, penetrating bones and organs. One stab wound severed Rollines’ aorta and perforated his heart. Hood determined that the cause of death was the stab wounds, and classified the death as a homicide.
Rollines was defendant’s cousin, and lived with defendant in Millville along with defendant’s son, defendant’s girlfriend, Nikia Ives, and Ives’ son and daughter. One week before his death, Rollines moved to Philadelphia and began living with Daniel Stevens and Stevens’ girlfriend, Nicole Lawson.
On December 31, 2008, Stevens drove Rollines to defendant’s home to collect Rollines’ social security
1 The victim’s last name appears as both “Rollins” and “Rollines” throughout the record. 2 disability check, which Rollines later cashed. After returning to Philadelphia, Rollines began receiving calls from defendant. At some point, Rollines asked Stevens to speak with defendant and give him directions to the apartment. Rollines told Stevens that defendant had some things that belonged to him. When defendant could not find the apartment, Stevens told him to meet at a nearby bar.
As Stevens and Rollines left Stevens’ apartment, they saw defendant who told Rollines, “I want my fucking money.” Defendant accused Rollines of taking $800 from defendant’s safe. As Stevens was about to return to his apartment to get Lawson, he heard defendant say to Rollines “let Dan go because you ain’t going nowhere.” When Stevens and Lawson left the apartment a few minutes later, Rollines and defendant were gone.
Lawson confirmed that defendant had been outside the apartment with Rollines and Stevens that night, and that later, when she and Stevens returned, Rollines and defendant were gone. Lawson called Rollines, but got no answer. Lawson then called defendant, who told her Rollines had taken $800 out of his safe. Lawson told defendant that was not possible because Rollines, Stevens, and Lawson were not at defendant’s house long enough. Lawson asked to speak with Rollines and spoke with him on defendant’s other phone. Rollines told Lawson that he was “around the corner” with defendant. When Lawson asked what was going on, Rollines replied that he was being accused of taking $800. Rollines said that he would call Lawson back, but never did. Lawson tried calling Rollines the following morning but got no answer. When Lawson called defendant, he told her that Rollines “caught a cab to Camden” to go to the home of his niece, Lanell Rollines.
Lanell Rollines testified that she spoke with Rollines on the evening of December 31, 2008, but that Rollines did not visit her on January 1, 2009, and that Rollines had never been to Camden to see her.
State v. Watford, No. A-2990-11T3, 2016 WL 416557, at *1-2 (N.J. Super. Ct. App. Div. Feb. 4, 2016). 3 Police executed a search warrant at defendant’s home and recovered a pair of men’s sneakers. They also seized [a] F–150 [truck] and a burgundy truck. A drop of Rollines’ blood was found on defendant’s sneaker, and two small drops of blood were found on the F–150’s bedcover. Ives testified that Rollines received dialysis treatment three times per week and once, when he was living with them, he came home and had a little bit of bleeding from his treatment. Ives also testified that when Rollines was still living there, he occasionally wore defendant’s shoes.
Police traced the location of defendant’s two cell phones that evening. Between 12:00 and 1:00 a.m., defendant’s phone was pinging off towers near his home; between 1:08 and 1:23 a.m., the phones were moving northbound on Route 55; at 1:23 a.m., the phones were pinging near a Sunoco gas station in Mullica Hill; [a] call made at 1:23 a.m. lasted fifty-two minutes, and pinged off of towers near the Ben Franklin Bridge and, as the call continued until approximately 2:15 a.m., the phone pinged off towers near Stevens’ residence; between 2:50 and 3:17 a.m., defendant’s phone began moving along Broad Street in Philadelphia and progressed over the Ben Franklin Bridge; a call originating at 3:17 a.m. and ending at 3:28 a.m. showed defendant’s phone location along Route 55 with the call ending near Sewell, approximately 21 miles north of where Rollines’ body was found. Analysis of this call revealed that, if the phone was transported southbound toward defendant’s home at the same rate of speed that it had been travelling in the call immediately prior, the phone would have passed through the location where Rollines’ body was found on the Maurice River Parkway at about 3:47 a.m., fifteen minutes before his body was discovered.
There were no calls between 3:28 and 5:17 a.m., but between 5:17 and 5:51 a.m., the phones were located near defendant’s home.
Police obtained surveillance tapes from a Sunoco gas station in Mullica Hill, as well as from the Ben Franklin Bridge, which were introduced at trial. The gas station tape showed a truck similar in appearance and features to defendant’s F–150, pulling in between 1:24 and 1:27 4 a.m. The bridge tape showed a similar truck driving across the bridge at approximately 1:45 a.m.
Defendant was brought in for questioning on January 1, 2009, and denied killing Rollines. He claimed that he and Rollines never argued over money, and that Rollines did not owe him money. Defendant suggested that Rollines was robbed, and that “the true perpetrator intended to kill Rollines.” When asked about Rollines’ blood found on his sneaker and his truck, defendant said Rollines lived with him, had dialysis shunts that bled, would sometimes wear defendant’s sneakers, and had previously been in defendant’s truck. Defendant was subsequently arrested.
After defendant’s arrest, he was held in the Cumberland County Jail. A warrant was obtained to intercept and record defendant’s outgoing calls from the jail. Five of these calls were played for the jury.
In a call made at 10:40 a.m. on January 4, 2009, between defendant and his son, defendant stated: “I don’t want nothing but the best for you, man. I’m so sorry I done let you down again. I done fucked up. I let that fucking anger get me on.”
In a second call made at 1:20 p.m. between defendant and Ives, defendant stated, “New Year’s night, did you—did you grab me? Did you say ‘baby don’t go, please?’ Did you do any of that? You didn’t do any of that.” Ives responded that she told defendant to get “anger management,” and defendant replied “How come you didn’t help me manage it then?”
. . . .
In a fourth call on January 8, 2009, at 12:48 p.m. between defendant and Ives, Ives said she did not understand why the police seized the burgundy truck. Defendant responded, “I don’t understand why they took the black truck. Baby, did you tell them when I left home I was driving the black truck? ... I told them I drove my car. They just took it upon themselves to take both of my fucking trucks.”
5 In a fifth call on January 8, 2009, at 8:25 p.m. between defendant and his brother, defendant indicated that he did not want Ives to see what he had been doing outside that night.
Id. at *2-4 (footnotes omitted). On November 18, 2009, a Cumberland County grand jury charged Petitioner with first-degree murder, N.J.S.A. § 2C:11– 3(a)(1), (2); third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. § 2C:39–4(d); fourth-degree unlawful possession of a weapon (a knife), N.J.S.A. § 2C:39– 5(d); and third-degree hindering apprehension or prosecution, N.J.S.A. § 2C:29–3(b)C:5–2. ECF No. 7-2. The State dismissed the hindering charge prior to trial. ECF No. 7-22 at 1. The jury ultimately convicted Petitioner of possession of a weapon for an unlawful purpose and unlawful possession of a weapon. ECF No. 7-19. The jury also convicted him of the lesser included offense of passion/provocation manslaughter. Id. On October 5, 2011, the trial court merged the weapons convictions and sentenced Petitioner to an extended term of 18 years with an 85% period of parole ineligibility on the manslaughter charge. ECF No. 7-22. Petitioner filed a direct appeal with the Appellate Division. ECF No. 7-23. On July 22, 2013, the Appellate Division remanded to the trial court “for the limited purpose of DNA testing pursuant to N.J.S.A. 2A:84A- 6 32a.” ECF No. 7-25. The appellate court retained jurisdiction. Id. The trial court issued an order directing testing on August 14, 2013. ECF No. 7-27. “A subsequent mitochondrial DNA test determined that Rollines and defendant ‘cannot be excluded as the source’ of the hair found in Rollines’ hands.” Watford, 2016 WL 416557, at *9.2
The Appellate Division affirmed Petitioner’s convictions and sentence on February 4, 2016. Watford, 2016 WL 416557. Petitioner filed a petition for writ of certification from the New Jersey Supreme Court on February 23, 2016. ECF No. 7-32. The New Jersey Supreme Court denied the petition on May 19, 2016. State v. Watford, 141 A.3 296 (N.J. 2016) (Table); ECF No. 7-34. Petitioner did not seek review from the Supreme Court of the United States. On July 6, 2016, Petitioner filed a postconviction relief
2 “[C]ertain hair fibers found in Rollines’ hands at the crime scene . . . were not presented to the jury. Six items were analyzed by the New Jersey State Police Office of Forensic Science:
• head hair from the victim (item # 2); • hair recovered from victim’s right hand (item # 3); • hair recovered from victim’s left palm (item # 4); • buccal sample from victim (item # 5); • head hair from defendant (item # 6); and • buccal sample from defendant (item # 7).”
Watford, 2016 WL 416557, at *9. 7 (“PCR”) petition in the Law Division. ECF No. 7-35. He argued that trial counsel was ineffective for failing to request DNA testing of the hairs before trial. Id. at 4. He also argued appellate counsel was ineffective for failing to argue that his rights were violated “when defendant/petitioner was forced to stand trial while shackled/tethered to [the] floor” and for
failing to communicate with him during direct appeal. Id. PCR counsel filed a supplemental brief arguing that remand counsel “was remiss for not seeking to enforce the court’s granting of the defendant’s motion where the State used a testing method that could not, by its own report, identify a specific individual as the source of the materials.” ECF No. 7- 36 at 12. “Remand counsel was also remiss in not requesting that the skin sample retrieved from the victim’s hand also be tested.” Id. The State agreed to test the skin sample, and “[n]uclear DNA testing of the skin sample attached to the hair found in the victim’s hand revealed the skin belonged to the
victim.” ECF No. 7 at 9. See also 19T12:18-21.3 The PCR court
3 1T = Hearing Transcript dated May 31, 2011; ECF No. 7-3. 2T = Trial Transcript dated June 2, 2011; ECF No. 7-4. 3T = Trial Transcript dated June 7, 2011; ECF No. 7-5. 4T = Trial Transcript dated June 8, 2011; ECF No. 7-6. 5T = Opening Statements Transcript dated June 8, 2011; ECF No. 7-7. 6T = Trial Transcript dated June 9, 2011; ECF No. 7-8. 7T = Trial Transcript dated June 15, 2011; ECF No. 7-9. 8 conducted oral argument on November 27, 2017 and denied the petition without an evidentiary hearing. 19T; ECF No. 7-39. Petitioner filed an appeal on June 19, 2018. ECF No. 7-40. According to Petitioner, “[t]he Petitioner’s appeal from denial of PCR was voluntarily withdrawn on or about January 30, 2019.” ECF No. 1 at 5. He filed his habeas corpus petition on February
13, 2019. ECF No. 1. Respondent opposes the petition.4
8T = Trial Transcript dated June 16, 2011; ECF No. 7-10. 9T = Trial Transcript dated June 21, 2011; ECF No. 7-11. 10T = Trial and Rule 104 Hearing Transcript dated June 22, 2011; ECF No. 7-12. 11T = Trial Transcript dated June 23, 2011; ECF No. 7-13. 12T = Trial Transcript dated June 28, 2011; ECF No. 7-14. 13T = Trial Transcript dated June 29, 2011; ECF No. 7-15. 14T = Charge Conference Transcript dated June 30, 2011; ECF No. 7-16. 15T = Closing Arguments and Jury Charge Transcript dated July 6, 2011; ECF No. 7-17. 16T = Trial/Verdict Transcript dated July 7, 2011; ECF No. 7- 18. 17T = Sentencing Transcript dated September 7, 2011; ECF No. 7-20. 18T = Sentencing Transcript dated October 5, 2011; ECF No. 7- 21. 19T = PCR Hearing Transcript dated November 27, 2017; ECF No. 7-38.
4 Respondent initially disputed Petitioner’s assertion that his PCR appeal had been withdrawn and pointed to papers that were filed on Petitioner’s behalf in the Appellate Division after the submission of the § 2254 petition. ECF No. 7 at 5. Petitioner responded that he was unaware that “appellate counsel deliberately disregarded the Petitioner’s directive, and without authorization . . . filed a brief and appendix in support of the PCR appeal on April 23, 2019.” ECF No. 8 at 5-6. Petitioner subsequently provided copies of the Appellate Division’s order dismissing his appeal, No. A-4713-17T3, on June 17, 2019. ECF 9 II. STANDARD OF REVIEW Title 28 U.S.C. § 2254 permits a federal court to entertain a petition for writ of habeas corpus on behalf of a person in state custody, pursuant to the judgment of a state court, “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a). With respect to any claim adjudicated on the merits by a state court, the writ shall not issue 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). A state court decision is “contrary to” Supreme Court precedent “if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases,” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from [the Court’s]
No. 9 at 2. 10 precedent.” Williams v. Taylor, 529 U.S. 362, 405–06 (2000). “[A] state-court decision is an unreasonable application of clearly established [Supreme Court] precedent if it correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner’s case.” White v. Woodall, 572 U.S. 415, 426 (2014). “[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). The Court must presume that the state court’s factual findings are correct unless Petitioner has rebutted the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). III. DISCUSSION Petitioner raises a single claim for this Court’s review: The trial court abused its discretion where it refused to admit into evidence the Philadelphia police report that supported the Petitioner’s claim of third-party guilt. This Error denied the petitioner his state and Federal due process, trial by jury, and fair Trial rights, in violation of the U.S. Constitution amendments VI, VIII and XIV. This Violation requires the court to vacate the Petitioner’s conviction and remand for a new Trial.
ECF No. 1 at 21. The Appellate Division rejected this claim on direct appeal. See Watford, 2016 WL 416557, at *9 (“We find the remaining arguments raised by defendant in his pro se brief lack 11 sufficient merit to warrant further discussion in our opinion.”). “In considering a § 2254 petition, we review the ‘last reasoned decision’ of the state courts on the petitioner’s claims.” Simmons v. Beard, 590 F.3d 223, 231–32 (3d Cir. 2009) (quoting Bond v. Beard, 539 F.3d 256, 289–90 (3d Cir. 2008)). Here, the Court “look[s] through” the Appellate Division’s
summary denial and applies AEDPA’s standards to the trial court’s determination. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The Court “presume[s] that the unexplained decision adopted the same reasoning.” Id. Petitioner wanted to introduce “an incident report taken by the Philadelphia Police Department wherein Daniel Stevens called in to report Ronald Rollins missing, and specifically told the police that he was last seen getting into a taxi cab.” ECF No. 6 at 33. See also id. at 30-31. On direct, Stevens denied seeing Rollines enter a cab on the night in question: [Prosecutor]: [W]hile you’re still outside with [Petitioner] and with Ronnie, you have that time frame?
[Stevens]: Yes.
[Prosecutor]: Did you see Ronnie get in a cab?
[Stevens]: No.
[Prosecutor]: Did you hear Ronnie say he was getting in a cab?
12 [Stevens]: No.
[Prosecutor]: Did you see a cab in the area?
7T50:6-16. The trial court read the report into the record outside of the jury’s presence: It says, year ‘08, District 39, 203 Section 1, District 35, Vehicle WI, report date 11/09, crime or classification MT MONPL, two words and then there’s a code. It says time out 5:38 and location 3332 North Bouvier Street, date of occurrence 11/4 code, time of occurrence 3:00 a.m., complainant Daniel Stevens, age 58, race, sex and phone number. Address, the same address that has been relevant to this, 332 North Bouvier Street. And then it says checked founded, report to follow no, description of incident and M-C which I presume means male caller in police. And you gentlemen can help me if that’s wrong.
Then it says complaint and states male below has been living with him for about a week, plus is concerned because he didn’t come home last night. Complaint doesn’t know the male very well. I can’t read— nor does he know if his family member. Male was last seen taking a cab and then there’s a — I can’t, I don’t understand the next little symbol.
I can’t read one word. Wanted to report the male missing but doesn’t fit the criteria.
14T15:22 to 16:20. See also ECF No. 6 at 30-31. Trial counsel was aware of the police report at the time Stevens testified but decided not to cross-examine Stevens about the report. 14T11:24 to 12:11. Instead, trial counsel moved to admit the report into evidence after the close of witness 13 testimony under the business records exception to the hearsay rule: This is a case where somebody is reporting a missing person and why would — what motivation, what inherent motivation would somebody have to inaccurately report that type of information especially here in this particular case where the declarant [Daniel Stevens] has actually testified in court and has said, look he was concerned with the disappearance of Mr. Rollins. So his statement that’s contained within that writing is inherently reliable and, moreover, it’s taken in the regular course of business of police business.
14T8:24 to 9:9. See also N.J.R.E. 803(c)(6). Trial counsel argued that the statement could be considered a recorded recollection as well. 14T9:20-24 (citing N.J.R.E. 803(c)(5)). The trial court declined to admit the statement under either hearsay exception: I’m troubled that this very important issue was not explored with the person that made it. I don’t know how accurate the policeman was in recording this story and I don’t know what exactly the witness meant. [Stevens] was here and the jury could have judged that credibility. And if I let this in, it becomes much more important that it may be entitled to.
Here what’s important is that there was report of Mr. Rollins being missing and whether the declarant said he saw a cab out there or he saw him getting into a cab, he saw him getting into another car, he had no duty to report that correctly. The only way to test his credibility and recollection when he was on the witness stand and that wasn’t done. And to take this statement which I don’t know how accurately recorded was the policeman without him being subject to examination, I 14 think makes this for this purpose not admissible and generally not trustworthy . . . .
[Rule] 803c5 is because the witness wasn’t given an opportunity to explain it. . . . [T]he witness was never asked except tangentially and the witness said what they said. And without this being absolutely reliable, I’m not going to allow it in because then it magnifies to the jury what could be a mistake. And I think it had to be out of the mouth of the witness what this meant because he did testify he reported the – Mr. Rollins missing that night.
14T21:5. “[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). See also Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for errors of state law[.]”). The Court limits its review to Petitioner’s argument that “[t]he court’s error in ruling that the police report could not be admitted into evidence prevented this Petitioner from fully presenting his defense at trial and deprived the jury of its duty to both review and consider a key piece of material evidence.” ECF No. 8 at 12. 15 “The Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense, but we have also recognized that state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials.” Nevada v. Jackson, 569 U.S. 505, 509 (2013) (cleaned up). “Such rules do not
abridge an accused’s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’” United States v. Scheffer, 523 U.S. 303, 308 (1998) (quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987)). “Moreover, we have found the exclusion of evidence to be unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused.” Id. Petitioner argues the report would have shown “that the Petitioner was not with the decedent at the time of his death; and more importantly, that he was killed by someone other than the Petitioner.” ECF No. 1 at 21. “A police report . . .
prepared in the context of an investigation and recounting subjective events in a narrative form, is not a document that fits into any exception to the hearsay rule.” State v. Mosley, 179 A.3d 350, 363 (N.J. 2018). “A police report may be admissible to prove the fact that certain statements were made to an officer, but, absent another hearsay exception, not the 16 truth of those statements.” Manata v. Pereira, 93 A.3d 774, 784 (N.J. Super. Ct. App. Div. 2014). Therefore, the trial court reasonably concluded that Petitioner could not introduce the report as a business record for the purpose that Petitioner wanted to use the report, namely as evidence that Rollines left in a cab on the night in question.
Additionally, the trial court reasonably concluded that the reference to the cab in the report was ambiguous and potentially misleading to the jury. At trial, Stevens and his girlfriend, Nicole Lawson, denied seeing Rollines leave in a cab. Lawson testified that she called Petitioner while looking for Rollines, and it was Petitioner who told her that Rollines “caught a cab to Camden.” 7T80:5 to 81:2. Lawson then passed this information to Stevens. 7T81:17-22. See also 7T51:17-20 (Stevens’ testimony that he “heard that” Rollines got into a cab from Lawson). It was reasonable that the trial court was concerned that the report’s reference to a cab would mislead the
jury in the absence of any testimony that explained the context. “State and Federal Governments unquestionably have a legitimate interest in ensuring that reliable evidence is presented to the trier of fact in a criminal trial. Indeed, the exclusion of unreliable evidence is a principal objective of many evidentiary rules.” United States v. Scheffer, 523 U.S. 17 303, 309 (1998). The trial court’s decision “does not implicate any significant interest of the accused” because the trial court “did not preclude [Petitioner] from introducing any factual evidence” about the missing persons report. Id. at 316-17. The trial court only disagreed with Petitioner’s stated theories of admissibility. Trial counsel knew about the report and could
have questioned Stevens about the reference to a cab during his testimony but chose not to do so.5 Petitioner had the chance to question Stevens about the report’s reference to Rollines leaving in a cab, meaning the trial court’s decision did not prevent him from presenting his defense to the jury.6 Petitioner has not shown that the trial court’s decision was contrary to or an unreasonable application of clearly established federal law. He also has not shown that the decision was based on an unreasonable determination of the facts
5 Trial counsel did show Stevens a different statement that he made to the police on January 1, 2009. 7T57:4. Trial counsel asked Stevens if he remembered “telling the police that, that you walked up and you looked around and you saw a silver car back off and pull off?” 7T61:14-16. Stevens responded that he did not remember. 7T61:17.
6 Petitioner argues that “Mr. Stevens was not the author of the police report, and there is no evidence that he ever saw the police report prior to trial. Thus, even had Mr. Stevens been shown a copy of the police report, there is nothing that would have authenticated the report through that witness.” ECF No. 8 at 9. Authenticating a document and having one’s recollection refreshed by a document are two separate evidentiary issues. 18 in light of the evidence at trial. Accordingly, he is not entitled to federal habeas corpus relief. 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 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). Here, Petitioner has failed to make a substantial showing of the denial of a constitutional right. Thus, no certificate of appealability shall issue.
V. CONCLUSION For the above reasons, the Court will deny the petition for writ of habeas corpus. A certificate of appealability will not issue. An appropriate Order follows. Dated: July 22, 2022 s/ Noel L. Hillman At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J. 19