UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

ANTHONY RULLAN Civil Action No. 19-5303 (KMW) Petitioner, v. OPINION STATE OF NEW JERSEY, et al., ! Respondents,

WILLIAMS, DISTRICT JUDGE Petitioner Anthony Rullan (‘Petitioner’) is a state prisoner confined at South Woods State Prison in Bridgeton, New Jersey. He is proceeding pro se with a petition for a writ of habeas corpus (“Petition”) pursuant to 28 U.S.C, § 2254. (ECF No. 1, Petition). For the reasons expressed below, the Court denies the Petition and also denies a certificate of appealability. I, BACKGROUND! Petitioner was convicted in state court of second-degree sexual assault, second degree endangering the welfare of a child, and offensive touching. The New Jersey Superior Court, Appellate Division provided the following factual summary of the proofs of trial: [Petitioner] was indicted for abusing his two daughters, Ann, born in 1986, and Alice, born in 1990.2

Ann, who was twenty-five years old when she testified, recalls that, between the age of eight and ten, she was lying naked on a couch in the living room when [Petitioner] got on the couch with his pants down and rubbed his penis

' The factual background is taken from the record submitted by the parties; the facts relevant to the individual claims for relief are discussed in the analysis section of the Opinion. 2 The state court used fictitious names for the victims and their family members.

against her vagina. She also stated that at some point during the incident she became aware that her brother, Tom, was looking through the window. After this incident “everywhere and anywhere was the perfect chance for sex [with Petitioner].” The sexual acts consisted of “the rubbing... standing bottomless, you know; bending over; spreading my legs; him either touching me, you know, or not touching me;” and sucking her breasts. At times, [Petitioner] did not touch Ann but masturbated while looking at her. At some point in time, [Petitioner] began to have anal sex with Ann as well. [Petitioner] never had vaginal intercourse with her because her mother regularly checked Ann to make sure she was still a virgin. While Ann was in high school, [Petitioner] ran a janitorial business that cleaned movie theaters after hours. Ann and Tom helped [Petitioner] clean the theaters, and on multiple occasions [Petitioner] and Ann took breaks from their chores to engage in sexual relations. Tom either continued cleaning or acted as the lookout. In addition to having sex in their home and in the theaters, Ann and [Petitioner] also had sex in cars, When they had sex at home, it was Tom’s job to keep others away including Alice, Ann’s younger sister, who reported anything that was amiss to their mother. When she was ten years old Ann told her mother about the abuse, Her mother “flipped out” and dragged [Petitioner] out of bed with a knife and forced him to take her and Ann to the hospital. On the way to the hospital, her mother jumped out of the car and walked around an empty parking lot. [Petitioner] told Ann to recant and she complied. ‘Thereafter, Ann's mother asked her daily if [Petitioner] was abusing her, but Ann always denied the abuse was still occurring. Ann also told representatives from the Division of Youth and Family Services (DYFS) that her father was not abusing her, although she did report that her mother physically beat her and routinely examined her to determine if she were still a virgin. When Ann was twenty-three and Alice nineteen years of age, Alice told Ann that [Petitioner] had sexually abused her, As a result of this disclosure Ann resolved to reveal her own abuse by [Petitioner]. Both sisters reported {Petitioner’s] sexual abuse to the police in June 2009, Alice testified that [Petitioner] and Ann had a relationship that was more like amatried couple. Alice observed them hold hands, kiss “like a making- out kiss,” and disappear into the bedroom. When they went into a bedroom Alice surmised they were on a bed because, when she looked under the door, she could not see their feet on the floor,

Alice stated, that as a young child, her father ignored her but after she turned twelve he began to sexually abuse her. ‘The first time her father inappropriately touched her occurred when she was passing her father on the stairs. [Petitioner] “took his hand and rubbed it up my skirt.” Thereafter, [Petitioner] asked her to wear skirts or dresses and “used to feel up on me.” At another time [Petitioner] called Alice into a room and put her on top of him. He pulled his penis out of his pants, pushed her underwear to the side, and “started rubbing on me.” [Petitioner] pushed her away because Alice exuded discomfort over his conduct. Alice did not tell anyone about her father’s conduct until she was approximately eighteen years old. At that time, she confided in Ann about the abuse and together they went to the police. Tom testified that he saw his father having sex with Ann and was the “lookout” on countless occasions. The first time he saw them engaging in sex was when he looked through a window and saw his father on top of Ann, who was naked. His father saw Tom at the window and later asked him if he had “see[n] anything” and that he was “going to get beat if [he] did see something.” On occasion Tom protested being a lookout, but his father responded by beating him. State vy. ALR., No. A-3286-11T1, 2015 WL 5446690, at *1-2 (N.J. Super Ct. App. Div. Sept. 14, 2015.) Petitioner was indicted and charged with first degree aggravated sexual assault, N.J.S.A. § 2C:14-2a(1) (count one); first degree aggravated sexual assault, N.J.S.A. § 2C:14-2a(2)(c) (count two); second degree endangering the welfare of a child, N.J.S.A. § 2C:24-4a (counts three and six); second degree sexual assault, N.J.S.A, § 2C:14-2b (counts four and five); and third degree witness tampering, N.J.S.A, § 2C:28-5a(1) (count seven).? (See ECF No. 11-2, at 1-3.) A jury convicted Petitioner of two counts of second degree endangering the welfare of a child and two counsel of second-degree sexual assault (counts three through six), See A.R., 2015 WL 5446690, at *1. The jury acquitted Petitioner of first degree aggravated sexual assault (counts one and two),

3 The state dismissed count seven before trial. See 4.R., 2015 WL 5446690, at *1. “Pin cites to ECF No. 11-1 through | £-27 are to the pagination automatically generated by the CM/ECF.

however, it convicted Petitioner of the lesser included offense of offensive touching. See id The court sentenced Petitioner to an aggregate term of twenty years imprisonment, subject to an eighty- five percent parole ineligibility period under the No Early Release Act, N.J.S.A. 2C:43-7.2, and three years of parole supervision. See id. Petitioner filed a counseled Notice of Appeal with the Appellate Division raising the following claims: Strickland’s standard.” Grant, 709 F.3d at 232 (quoting Harrington, 562 U.S. at 101). “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.” Id. Federal habeas review of ineffective assistance of counsel claims is thus “doubly deferential.” Jd. (quoting Pinholster, 563 U.S, at 190). Federal habeas courts must “take a highly deferential look at counsel’s performance” under Strickland, “through the deferential lens of § 2254(d),” fd. (internal quotation marks and citations omitted), IH. ANALYSIS A. Ground Four: Failure to Call Witnesses’ Petitioner’s fourth ground for relief alleges that the PCR Court erred in denying his PCR petition when the court “knew there were witnesses which were requested and were not called for the 2011 trial”’ (ECF No. 1, at 8.) On collateral appeal, Petitioner argued to the PCR court that trial counsel was ineffective for failing to call Diana Hardwed and Wilfreido Reyes. (ECF No. 11- 10, at 16-17.) The PCR court denied Petitioner’s claim that trial counsel was ineffective for failing to call witnesses Diana Hardwed, an Atlantic County DYFS caseworker, and Wilfreido Reyes, who Petitioner claimed was a very close family friend, finding Petitioner failed to establish a prima facie showing of ineffective assistance of counsel. (See ECF No, 11-39, PCR Hearing Transcript, at 14:6-25.) The PCR court noted that Petitioner failed to present evidence showing what the witnesses would have testified to and how their testimony would have changed the result of Petitioner’s trial. id.)

7 As noted above, the Court will be addressing Petitioner’s claims out of order for clarity purposes. ^[1]]

The Appellate Division affirmed the PCR court ruling. See A.R., 2018 WL 1192699, The Appellate Division first explained that PCR counsel represented that Petitioner said Reyes would have told the jury that Petitioner did not sexually assault his daughters, and Hardwed would have testified that she would have taken the children away in 2002 if it had been reported Petitioner committed any of the alleged acts. Id, at * 2. The Appellate Division reasoned as follows: [Petitioner] claims his counsel was ineffective by failing to call Hardwed and Reyes as witnesses at trial. Our Supreme Court has observed that “[djetermining which witnesses” to call to testify “is one of the most difficult strategic decisions that any trial attorney must confront.” State v. Arthur, 184 N.J. 307, 320 (2005). “[A] defense attorney’s decision concerning which witnesses to call to the stand is ‘an art,’ and a court’s review of such a decision should be ‘highly deferential[,|’” /d@ at 321 (quoting Strickland, 466 U.S. at 689, 693). [Petitioner] fails to demonstrate his trial counsel was ineffective by failing to call Hardwed and Reyes as witnesses at trial. His claim is founded solely on the bald and conclusory assertion they would have provided testimony that would have changed the outcome of his trial. The assertion is unsupported by an affidavit or certification based on personal knowledge establishing what would have been revealed if they had testified. See [State v. Petrozelli, 351 N.J. Super. 14, 23 (2002)]; see also State v. Bey, 161 N.J. 233, 262 (1999) (finding claim based on defendant’s speculation is insufficient for grant of post-conviction relief). [Petitioner] also failed to present any facts supported by an affidavit or certification establishing a reasonable probability that had the witnesses testified at trial, the result would have been different. See Strickland, 466 U.S. at 694; see, e.g, Bey, 161 NJ. at 262 (finding trial counsel is not ineffective by failing to call witnesses whose testimony would not have changed the outcome). Even accepting [Petitioner’s] supported conclusory assertions, [Petitioner] failed to demonstrate any probability the putative testimony of the witnesses would have changed the trial outcome. [Petitioner] alleges Hardwed would have established that DYFS’s involvement and investigations between 1994 and 2003 revealed allegations against [Petitioner] were unsubstantiated, and that Ann did not report [Petitioner’s] sexual assaults during that time. Such testimony would not have changed the result of [Petitioner’s]} trial, however, because Ann testified she spoke with different DYFS representatives during the years [Petitioner] sexually assaulted her, never disclosed [Petitioner’s] actions, and told a DYFS caseworker that [Petitioner] did not sexually assault her. [Petitioner] argues that if Reyes testified, he would have established the children’s mother was “abusive to Ann and was known to make false sexual allegations against [Petitioner] involving Ann.” Ann testified her mother was physically and mentally abusive toward her during the years [Petitioner] sexually assaulted her, and therefore any testimony from Reyes concerning the mother's abuse would have added little to Ann’s testimony, which was based on Ann’s personal knowledge. Also, [Petitioner] does not claim Reyes had personal knowledge of the mother’s purported false allegations that [Petitioner] was sexually assaulting Ann and, thus, Reyes would have been unable to testify to such alleged facts at trial. A defendant must establish both prongs of the Strickland standard in order to obtain a reversal of the challenged conviction, Strickland, 466 U.S. at 687; State v. Nash, 212 N.J. 518, 542 (2013); [State v. Fritz, 105 N.J. 42, 52 (1987)]. As the PCR court aptly determined here, [Petitioner] failed to sustain his burden of establishing a prima facie claim of ineffective assistance of counsel under both prongs of the Strickland standard. The court correctly denied [Petitioner’s] PCR petition. 2018 WL 1192699, at * 4-5, Under federal law, a failure to investigate potentially exculpatory evidence or witnesses may form the basis of ineffective assistance of counsel. See Strickland, 466 U.S. at 690-91; see also Brown vy. United States, No. 13-2552, 2016 WL 1732377, at *4-5 (D.N.J. May 2, 2016). To successfully establish this claim, a petitioner “must make a comprehensive showing as to what the investigation would have produced. The focus of the inquiry must be on what information would have been obtained ... and whether such information, assuming admissibility in court, would have produced a different result.” See Brown, 2016 WL 1732377, at *5 (quoting United States v. Askew, 88 F.3d 1065, 1073 (D.C. Cir. 1996) (internal quotation marks omitted)). The petitioner must also still demonstrate he suffered prejudice. See Strickland, 466 U.S. at 690-91. But, where a petitioner merely speculates as to what a witness might have said if interviewed by counsel and does not present sworn testimony from that witness, a petitioner will not be able to establish the prejudice prong of Strickland. See Duncan v. Morton, 256 F.3d 189, 201-02 (3d Cir. 2001) (citing United States v, Gray, 878 F.2d 702, 712 (3d Cir. 1989)). Petitioner does not specify what these potential witnesses would have testified to. Instead, Petitioner provides what appears to be a 2011 pro se brief where Petitioner indicated Hardwed® would have testified to “state documents and doctor’s reports and statement’s given by [his] accusers, which would [have] contradicted their 2011 trial testimony” and Reyes would have testified that the victims’ mother “always made false sexual assault allegations between [Ann] and [Petitioner]. (See ECF No. 1-1 at 5.) Petitioner has not provided any sworn testimony, affidavit, or certification from either witness. (See ECF No, 1.) Petitioner’s mere speculation regarding the potential witnesses’ testimony is insufficient to establish prejudice. See Duncan, 256 F.3d at 201- 02. Petitioner has also failed to show any potential information from these witnesses would have produced a different result at Petitioner’s trial. See Brown, 2016 WL 1732377, at *5. Petitioner cannot demonstrate the state court’s adjudication was an unreasonable application of clearly established federal law. Thus, Petitioner’s claim is denied.’

§ Plaintiff spells the name as Howard. The Court understands this is the same individual. ° The Court notes that Petitioner did not indicate which witnesses he is referring to in his Petition. A review of his 2011 briefing, attached to his Petition, shows that in addition to Hardwed and Reyes, Petitioner named three additional witnesses trial counsel allegedly failed to call, (See ECF No. l-1, at 53.) Petitioner names: 1) “medical doctor” who would have testified Ann’s medication had the effect of confusing her thoughts; 2) Louis Charles Shapiro, Petitioner’s 2007 trial defense attorney, whose “testimony would have contradicted all fof his] three accusers”; and 3) Investigator Bill Cassidy, who would have testified “that one of [the witnesses] had requested to be placed in the witness protection program because of [Petitioner’s] wilfe’s] anger because [the witness] was to reveal [Petitioner’s wife] was forcing him to testify against Petitioner.” (7d) It is unclear if Petitioner is attempting to include these three witnesses in his claim here, however, any claim regarding those witnesses fails for similar reasons as witnesses Hardwed and Reyes. Petitioner makes only conclusory arguments regarding what these alleged witnesses would have testified to and he provides no sworn testimony or affidavit from any of the witnesses. Again, Petitioner’s conclusory assertion regarding witness testimony is insufficient to establish prejudice. See Duncan, 256 F.3d at 201-02. As Petitioner fails to establish prejudice as required by Srrick/land, any potential claim regarding these witnesses is denied. See Strickland, 466 U.S, at 690-91, B. Ground Seven, Eight, Nine, and Ten: Trial Court Error, Evidentiary Rulings In his seventh, eighth, ninth and tenth grounds for relief, Petitioner argues that the trial court erred in admitting certain evidence at trial. (See ECF No. 1, at 9 & 11.) These claims will be addressed in turn. Generally, the admissibility of evidence is a question of state law which is not cognizable on habeas review, See Estelle vy. McGuire, 502 U.S, 32, 67-68 (1991); see also Keller v. Larkins, 251 F.3d 408, 416 2.2 (3d Cir. 2001) (“A federal habeas court .. . cannot decide whether the evidence in question was properly allowed under the state law of evidence.”) “[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.” Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983). If, however, a petitioner can demonstrate that the admission of the evidence denied him Due Process by depriving him of the “fundamental elements of fairness in [his] criminal trial,” then his claim may be cognizable on habeas review. Glenn vy. Wynder, 743 F.3d 402, 407 Gd Cir. 2014) (quoting Riggins v. Nevada, 504 U.S. 127, 149 (1992) (Thomas, J. dissenting)). A petitioner’s trial “need not have been perfect,” but it must have been fair. United States v. Hastin, 461 U.S. 499, 508 (1983). Thus, a petitioner can only succeed in challenging a state court’s evidentiary ruling by showing that the ruling was “so arbitrary or prejudicial that it rendered the trial fundamentally unfair.” Scoft v. Bartkowski, 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)). The category of infractions that violate fundamental fairness has been defined by the Supreme Court “very narrowiy, based on the recognition that, beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited application.” Medina v. California, 505 U.S. 437, 443 (1992).

1, Hearsay-Common Knowledge Petitioner’s seventh ground for relief alleges the trial court erred in finding “[Ann’s] opinion as to what the non-testifying member[s] of her family ‘knew’ was admissible under NJ.R.E 701.” (ECF No. 1, at 9.) Although Petitioner fails to elaborate on what testimony he is claiming was inappropriately admitted at trial, it appears he is attempting raise an evidentiary claim that was raised on direct appeal. On direct appeal to the Appellate Division, Petitioner argued “the trial court erred in permitting Ann’s testimony that it was ‘common knowledge’ that ‘everybody in the house’ ‘knew’ that ‘something was going on’ between her and A.R., and that it was Alice’s ‘job’ to ‘report’ suspicious activity to their mother.” (ECF No. 11-4, at 49.) On direct examination, Ann testified as follows: Q. Okay. And, who would be home or would there be anyone home when this would occur at your house? A. My sister and my brother were home. My brother’s job was to keep my sister away, also lookout, watch driveway, make sure nobody’s coming. Q, When you say your sister, who are you referring to? AL [Alice. | Q. Why would his job be to keep your sister away? A. Because my sister was supposed to report what she sees. J mean it was common knowledge that everybody in the house already knew that there was something going on between my dad an[d] myself, and it was her job to investigate, to find out, to report back to my mom. (ECF No, 11-33, N.T, 9/20/11, at 63:24 to 64:12.) The Appellate Division denied this claim on direct appeal, finding Petitioner’s claim was “without sufficient merit to warrant discussion in a written opinion.” See A.R., 2015 WL 5446690, at *8. As explained above, any argument that the state court erred in permitting Ann to provide this testimony, is not proper for federal habeas review. See Wilson y, Vaughn, 533 F.3d 208, 213 (3d Cir. 2008) ([a]dmissibility of evidence is a state law issue.”) (citing Estelle, 502 U.S. at 72). Petitioner can only show his due process rights were violated if the evidentiary decision was so arbitrary and prejudicial that is rendered the trial fundamentally unfair, See Romano, 512 U.S. at 1213, Petitioner fails to demonstrate that Ann’s testimony rendered the trial fundamentally unfair. There was ample testimony that multiple family members in the household were aware of Petitioner’s abuse of Ann. Ann testified that Petitioner sexually abused her. (See generally ECF No. 11-33, N.T. 9/20/11, at 52:2 to 74:3.) Ann testified that Tom, her brother, saw her and Petitioner “having sex” and was the “lookout” for them, (/d., at 52:4-5, 61:21-25.) Ann also testified that when she was ten year's old, she told her mother about the abuse. (/d., at 67:9-14.) Tom testified that he was aware of the sexual abuse and was often the lookout for them. (7d, at 179:4 to 181:7 & 184:16 to 185:18.) Alice testified that she witnessed Petitioner and Ann “making out.” (Ud., at 152:18 to 152:21.) The evidenced introduced at trial showed that household members did know about that abuse. Based on all the evidence introduced at trial, the Court does not find that any possible adverse effect from Ann’s testimony regarding what the household members “knew” rendered the trial fundamentally unfair. Romano, 512 U.S. at 12-13. Because Petitioner fails to demonstrate that his constitutional rights have been violated, this claim for habeas relief is denied, 2, Hearsay- Fresh Complaint Petitioner argues in his eighth claim that the trial court erred in admitting fresh complaint evidence without a limiting instruction. (See ECF No. 1, at 11.) Petitioner fails to elaborate on which fresh complaint evidence he is referring to, however, it appears that Petitioner is attempting to raise a claim that was asserted on direct appeal. On direct appeal, Petitioner argued the trial court erred in permitting the state to bolster Ann’s credibility with an out-of-court statement she allegedly made to her mother when she was ten years old. (See ECF No. 11-4, at 36-40.) At Petitioner’s trial, during the direct examination of Ann, the prosecutor asked Ann if she ever told her mother about what her father was doing to her. (See ECF No, 11-33, N.T, 9/20/11, at 65:3-4,) Defense counsel objected, arguing the testimony was inadmissible as a fresh complaint because Petitioner’s mother was not a witness in the trial. Ud., at 65:6-24.) The prosecution argued that the testimony was not a fresh complaint because Ann’s testimony pertained to her own knowledge of being brought to the hospital by her mother. Ud, at 66:4-8.) The prosecution further argued that a fresh complaint would be if the state was attempting to admit the mother’s testimony regarding what Ann told her, not Ann’s own testimony. Ud., at 66:11-13.) The trial court allowed the testimony, finding it did not see how it was fresh complaint issue. (/d., at 66:9-10.) Ann testified that when she was ten years old, she told her mother about the abuse. (/d., at 67:9-14.) She testified her mother “flipped out” and pulled a knife on Petitioner. (/d., at 67:23 to 68:8.) Ann also testified that her mother and Petitioner drove Ann to the hospital, where Ann changed her story. (id, at 68:15 to 69:8.) Under New Jersey state law, hearsay is an out-of-court statement admitted “to prove the truth of the matter asserted.” N.JR.E. 801(c). Subject to limited exceptions, hearsay is inadmissible. N.J.R.E, 802. Ordinarily, a third party’s testimony about a victim’s out-of-court description of an alleged sexual assault is inadmissible hearsay evidence. /d. However, the fresh- complaint doctrine is a common law exception to this rule that “allows witnesses in a criminal trial to testify to a victim’s complaint of sexual assault.” State v. Hill, 578 A.2d 370, 371 (1990). The purpose of the doctrine is to “allow | the admission of evidence of a victim’s complaint of sexual abuse, otherwise inadmissible as hearsay, to negate the inference that the victim’s initial silence or delay indicates that the charge is fabricated.” Stave v. R.K., 106 A.3d 1224, 1230-1231 (2015) (citing Mill, 578 A.2d at 377). The Appellate Division denied this claim, finding Petitioner’s “arguments are without sufficient merit to warrant discussion in a written opinion.” See 4.R., 2015 WL 5446690, at *8. The testimony that Ann told her mother about the abuse and her mother took her to the hospital was not hearsay admitted by a third-party witness for the truth of the matter. Rather, Ann testified herself as to what she told her mother and how her mother reacted to that information. Additionally, Ann only testified that she witnessed her mother pull a knife on Petitioner and that her mother took Ann to the hospital. Ann did not testify to any out-of-court statements made by her mother. The state court overruled defense counsel’s objection to this testimony, finding the testimony was not a “fresh complaint.” Accordingly, Petitioner is unable to demonstrate that the admission of Ann’s testimony was so prejudicial as to render his trial fundamentally unfair. See Scott, 2013 WL 4537651, at *9. Petitioner is not entitled to relief on this claim. ^[3]. Inferential Hearsay Petitioner argues in his ninth ground for relief that “the note the jury sent to the court during [] deliberation renders untenable the state’s contention that the jury was not affected by the improper[ly] admitted evidence regarding Sergeant O’Neill’s 2004 interview with [Ann] which gave rise to the inescapable inference that O’Neill had knowledge from a non-testifying source that [Petitioner] sexually abused Ann.” (ECF No. 1, at 11.) Based on a review of the state court record, it appears Petitioner is attempting to assert his direct appeal claim that the trial court committed plain error by allowing the prosecutor to introduce damaging inferential hearsay in violation of Petitioner’s rights to confrontation and a fair trial. (See ECF No. 11-4, at 40-46.)

As explained above, Ann testified at Petitioner’s trial that she told her mother about the abuse when she was ten, the prosecutor then asked the following: Q. After that point did you ever attempt to tell anyone again? A, No. Never. Q. And, at some point in time, were you interviewed back in 2004 by a detective from Vineland? A. Yes. Q. And, did he confront you with whether or not your father has ever touched you? A. Yes. Q. Okay. And, what happened during that interview? A, I wouldn’t tell him. I couldn’t. Q. Did you - - did you become emotional? A. Very. Q. And, do you remember anything else you said to the detective that day in regards to - - A. Asked me if I was being completely honest, and I said I was being as honest as I could be. And I] asked him to leave. Q, And he let you leave. A. Yeah. (ECF No. 11-33, N.T. 9/20/11, at 69:19 to 70:14.) Sergeant Steven O’Neill subsequently testified as follows: Q. And, do you recall if you were working back in - - back on February 17, 2004? A. Yes, Q, And, on that occasion, did you have an opportunity to meet with an individual by the name of [Ann] Rullan? A, Yes, I did. Q, And, did you interview Ms. Rullan? A, Yes, I did. Q. Now, I’m not going to ask you what she stated to you during that interview, but do you recall when speaking to her what her demeanor was like? A. She was very emotionally upset, to the point [ would say uncontrollable at times. Q. Did you need to take breaks during the interview? A. Yes, I did. She took a break, and I had to provide her with tissues, and also I gave her some water. Q. Okay, and, the individual you were speaking to her about, was that her father? A. That is correct, Q. And, how was she with answering your questions? A. She - - in between her being very emotional, she had a very difficult time talking about it, Q. Okay. And, how did the interview end? A. She - - she had asked, after one of her breaks, she asked if she can go home, and she didn’t want to discuss it any further. Ud., at 137:6 to 138:10.) The jury asked the court during deliberations: “What year was [Ann] interviewed by O’Neill and for what reason?” (ECF No. 11-35, Tr. 9/22/11, at 14:23-24.) The court informed the jury that the interview took place in 2004 and there was no testimony in the record as to the reason for that interview. Ud., at 22:12-19.)

Petitioner argued on direct appeal that the testimony of Ann and Sergeant O’Neill “gave tise to the inescapable inference that a non-testifying witness had provided O’Neill with information, which prompted him to suspect [Petitioner] had sexually abused Ann” in violation of State vy. Branch, 182 N.J. 338 (2005), Gee ECF No. 11-4, at 42-46.) The Appellate Division denied this claim, finding Petitioner’s “remaining arguments are without sufficient merit to warrant discussion in a written opinion.” See 4.R., 2015 WL 5446690, at *8. Under New Jersey state law, “the Confrontation Clause and the hearsay rule are violated when, at trial, a police officer conveys, directly or by inference, information from a non-testifying declarant to incriminate the defendants in the crime charged.” Branch, 182 N.J, at 359 (citing State v. Bankston, 63 NI. 263, 268-60 (1973)). Accordingly, “[w]ben the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused’s guilt, the testimony should be disallowed as hearsay.” Bankston, 63 N.J. at 271. The New Jersey Supreme Court noted that a police officer can explain “the reason he approached a suspect or went to the scene of the crime by stating that he did so ‘upon information received[ ]’ . . . to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct.” /d at 268. However, “when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused|,| the testimony violates the hearsay rule ... [and his] Sixth Amendment right to be confronted by witnesses against him.” Jd. at 268-69, The record shows that Sergeant O’Neill did not provide any testimony as to why he was interviewing Ann in 2004, Additionally, defense counsel asked Sergeant O’Neill on cross- examination if he was interviewing Ann in relation to some other crime, and the prosecution object and defense counsel withdrew the question. (ECF No. 11-33, N.T. 9/20/11, 141:18-24.) Sergeant O’Neill did not offer any testimony that would indicate a non-testifying witness gave him any evidence of Petitioner’s guilt. See Bankston, 63 N.J. at 271. Additionally, Tom testified that he reported the relationship between Ann and Petitioner to a Vineland Detective Lynn Wheling in 2004. (See ECF No. 11-33, N.T. 9/20/11, 187:9 to 188:21.) Sergeant O’Neill’s testimony did not convey “directly or by inference” that non-testifying declarant incriminated defendant. See Branch, 182 at 350. Even if the Sergeant O’Neill’s testimony was impermissible hearsay, it was harmless error to admit it. Constitutional error is harmless unless it “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). Factors that a federal court is to consider in determining whether a Confrontation Clause error was harmless “include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” Delaware vy, Van Arsdall, 475 U.S. 673, 684 (1986). Sergeant O’Neill’s testimony was cumulative, as Ann had already testified that she was interviewed by O’Neil! and was very emotional and unwilling to tell him anything. Additionally, defense counsel had the opportunity to cross-examine Sergeant O'Neill. Most importantly, there was ample evidence introduced at trial against Petitioner, including Ann and Alice’s testimony that Petitioner sexually abused them and Tom’s testimony that he witnessed the sexual abuse. Any inference that could have been made from Sergeant O’Neill’s testimony was harmless, The Appellate Court found this claim was without sufficient merit to warrant discussion and denied the claim. Petitioner has not shown that the states evidentiary ruling violated his constitutional right. Thus, Petitioner’s claim is denied. ^[4]. Hearsay- Bolstering Credibility . Petitioner’s tenth ground for relief alleges that the “judge intentionally and deliberately set up [Petitioner] for failure by permitting the state to bolster the credibility of Tom’s testimony. (ECF No. 1, at 11.) On direct appeal Petitioner argued “the trial court erred in allowing the state to bolster the credibility of Tom’s testimony by eliciting from Tom that he reported the abuse he witnessed to a Bridgeton Detective in 2004 and 2005, and to a doctor.” (ECF No. 11-4, at 46-49.) The Appellate Division denied this claim, finding it was without arguable merit to warrant discussion in a written opinion, See A.R., 2015 WL 5446690, at *8. On direct examination, ‘Tom testified that he reported Petitioner’s sexual abuse of Ann to police in 2004 and 2005. (ECF No. 11-33, N.T. 9/20/11, at 187:9 to 189:11.) Tom also testified that he told a doctor at the New Jersey Cares Institute about the abuse. (/d., at 189:15 to 190:2.) Under New Jersey law, hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.LR.E. 801(c). Tom was not testifying to a statement made by someone other than himself. Tom testified only to reports that he made. Moreover, Tom testified only that these reports were made, not to the specifics of the reports. This evidence does not qualify as hearsay. Assuming arguendo, that this evidence was hearsay, Petitioner again fails to show the admission of the evidence was so arbitrary and prejudicial that is rendered the trial fundamentally unfair, See Romano, 512 U.S. at 12-13. As explained repeatedly throughout this Opinion, there was significant evidence offered against Petitioner, including eyewitness testimony. Petitioner has failed to show that Tom’s testimony that he reported the abuse in 2004 and 2005 rendered the trial fundamentally unfair. As such, this claim for habeas relief is denied. C. GROUNDS ONE, TWO, THREE, FIVE, SIX AND ELEVEN Petitioner’s remaining grounds for relief fail to specify which constitutional challenges he is making to his conviction. Petitioner also fails to assert any supporting facts for his remaining grounds for relief. In his first ground for relief, Petitioner argues the “trial court judge negotiate|d| [Petitioner’s} constitutional rights by not making sure the witnesses requested for the 2011 trial appearance [] attend[ed]. Witnesses were requested by [Petitioner] and was ignored.” (ECF No. i, at 6.) Petitioner fails to specify which witnesses he is referring to, how the trial court was made aware of said witnesses, and any ruling by the trial regarding these alleged witnesses. Petitioner’s second ground for relief submits the “trial court judge violated [Petitioner’s] constitutional right by deliberately not allowing the trial jury to hear any information which was the [Petitioner’s| defense. But instead limited the [Petitioner’s] defense for the purpose of the judge and state’s satisfaction to gain conviction.” Ud.) Petitioner provides no facts regarding what information the trial court precluded Petitioner from presenting to the jury or what defense Petitioner was prevented from asserting. The third ground for relief alleges the “N.J. Appellate Court has {] violated [Petitioner’s] constitutional right’s by [] having knowledge that [Petitioner] has presented evidence to Superior Court which would exonerate [Petitioner] but instead affirm,” (/d.} In his fifth ground for relief, Petitioner appears to argue the PCR court erred in denying Petitioner an evidentiary hearing when “there was a briefing stating there [was] information which was not provided and allowed to be heard by the trial jury, which may ha[ve] in fact exonerate[d] [Petitioner].” (Ud, at 8.) The third and fifth grounds for relief fail to provide the Court with any of the alleged facts that would “exonerate” Petitioner. Petitioner alleges in his sixth ground for relief that the prosecutor “fin]appropriately [misled] defense counsel by providing false facts and was allowed by trial court judge to do so. [|Trial court judge knew prosecutor was lying[,] which in our law that is [obstruction] of justice.” at 9.) Petitioner fails to support this claim with any facts to support his allegation that the prosecutor provided “false facts” or that the trial court was aware of such false information. Finally, Petitioner’s eleventh ground for relief argues “the trial court intentionally and deliberately set up [Petitioner] for failure by permitting the state to boister the credibility of Alice’s testimony.” CUd., at 11.) There is no information provided in the Petition regarding what evidence was offered by the state to bolster the credibility of Alice. Federal habeas petitioners must satisfy heightened pleading standards, which include specifying all grounds for relief. See 28 U.S.C § 2254 Rule 2(c}; McFarland vy. Scott, 512 U.S, 849, 856 (1994), It is the burden of a habeas petitioner to articulate his allegations by setting forth facts to support them. See Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir.1991), A court has a duty to liberally construe a petitioner’s pro se filings. Estelle, 429 U.S. at 106. However, “bald assertions and conclusory allegations” do not provide a court with sufficient information to permit a proper assessment of habeas claims. Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir, 1987); see Zettlemoyer, 923 F.2d at 298 (A petitioner “cannot meet his burden to show that counsel made errors so serious that his representation fell below an objective standard of reasonableness based on vague and conclusory allegations ... [r]ather, he must set forth facts to support his contention.””); U.S. v. Thomas, 221 F.3d 430, 437-38 Gd Cir. 2000) (“[Vlague and conclusory allegations contained in a [habeas petition] may be disposed of without further investigation by the District Court.”). The Court has attempted to construe Petitioner’s remaining grounds for relief by thoroughly reviewing the numerous documents that were submitted pro se and through counsel to the state courts on appeal. While Petitioner repeatedly alleged on appeal in state court that information from a 2004 investigation and a 2007 trial should have been admitted at his 2011 trial, the Court is unable to specifically apply these numerous unclear state court arguments to any of his remaining habeas grounds for relief. Plaintiff’s remaining claims submit nothing more than bald assertions and conclusory arguments, Therefore, Petitioner’s grounds one, two, three, five, six and eleven are unreviewable and are dismissed. See Zettlemoyer, 923 F.2d at 301 (“bald assertions and conclusory allegations do not provide sufficient ground” for further inquiry on habeas review). Il. 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 constitutionai claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El », 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.

IV. CONCLUSION For the above reasons, the § 2254 habeas petition is denied, and a certificate of appealability will not issue. An appropriate Order follows. Dated: January 26, 2022 ee ae BS ee oA, ‘ SE —— Hon. Karen M. Williams, United States District Judge