Scherzer v. Ortiz

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
8-18-2004
Scherzer v. Ortiz
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-4608
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No. 02-4608
KEVIN SCHERZER,
Appellant
v.
ALVIN ORTIZ, JR., ADMINISTRATOR,
Mountainview Youth Correctional Facility;
The Attorney General of the State of
New Jersey, Peter G. Verniero
Case No. 02-4609
KYLE SCHERZER,
Appellant
v.
ALVIN ORTIZ, JR., ADMINISTRATOR,
Mountainview Youth Correctional Facility;
The Attorney General of the State of
New Jersey, Peter G. Verniero
Case No: 03-1023
CHRISTOPHER ARCHER,
Appellant
v.
JOSEPH RIZZO, Administrator,
Mountainview Youth Correctional Facility;
JOHN J. FARMER, JR., The Attorney General
Of the State of New Jersey
On Appeal From the United States
District Court for the District of New Jersey
(Docket Nos. 99-cv-00130; 99-cv-00900; 00-cv-04484)
District Court Judge: The Honorable Faith S. Hochberg
______________________
Argued June 18, 2004
Before: ALITO, SMITH and * WALLACE, Circuit Judges
(Filed August 18, 2004)
John Vincent Saykanic, Esq. (Argued)
1135 Clifton Avenue
Clifton, New Jersey 07013
Counsel for Appellant Kevin Scherzer
Miles R. Feinstein, Esq. (Argued)
1135 Clifton Avenue
Clifton, New Jersey 07013
Counsel for Appellant Kyle Scherzer
* The Honorable J. Clifford Wallace, Senior United States Circuit Judge for the
Ninth Circuit, sitting by designation.
2
Martin P. Geisler, Esq. (Argued)
215 Lanza Avenue
Garfield, N.J. 07026
Counsel for Appellant Christopher Archer
Paula T. Dow
Assistant Attorney General
Acting Essex County Prosecutor
Essex County Courts Building
Newark, New Jersey 07102
Barbara A. Rosenkrans [Argued]
Special Deputy Attorney General
Acting Assistant Prosecutor
50 West Market Street
Essex County Courts Building
Newark, New Jersey 07102
Counsel for Appellees
______________________
OPINION OF THE COURT
______________________
SMITH, Circuit Judge.
Kevin Scherzer, Kyle Scherzer and Christopher Archer appeal from the District
Court’s denial of their petitions for a writ of habeas corpus. The Scherzers assert that
they were denied effective assistance of counsel during a lengthy trial that lasted from
October, 1992 to March, 1993. All three defendants argue that they were denied their
right to a fair trial due to the lack of an impartial jury and several instances of
prosecutorial misconduct. For the reasons set forth below, we reject the defendants’
arguments and affirm the District Court.
I.
The underlying facts developed at the trial of the Scherzers and Archer are
3
outlined in the New Jersey Superior Court’s exhaustive treatment of their direct appeal.
State v. Scherzer, 694 A.2d 196 (N.J. Super. 1997). Because we write only for the
parties, we will not recite them again here. Kevin Scherzer and Kyle Scherzer were
indicted along with three co-defendants, not present in this appeal, in May 1990 on
“various sexual assault charges allegedly committed against a mentally defective victim,
M.G.” Id. at 209. In September 1990, the prosecution’s request to have three of the
juvenile defendants, one of whom was Archer, tried as adults was granted. All eight
defendants were indicted in a superceding indictment charging the following: Count (1)
conspiracy to commit aggravated sexual assault; Counts (2) and (4) first degree
aggravated sexual assault (sexual penetration of a mentally defective person); Counts (3)
and (5) first degree aggravated sexual assault (sexual penetration using physical force or
coercion); and Counts (6)-(9) third degree aggravated criminal sexual contact.
Pre-trial hearings and motions began in June 1991 and continued until March
1992. Jury voir dire began on September 22, 1992. Trial commenced on October 15,
1992. The jury reached its verdict on March 16, 1993. All three defendants were found
guilty on Counts One and Three. Kevin Scherzer and Christopher Archer were found
guilty of Count Two, first degree aggravated sexual assault upon a mentally defective
person. Kyle Scherzer was found guilty of the lesser included offense of attempted
aggravated sexual assault. Each was acquitted on Counts Four through Nine. The
defendants were sentenced as young adult offenders and each received sentences of an
indeterminate term not to exceed 15 years. The defendants filed a timely appeal with the
4
New Jersey Superior Court Appellate Division.
On appeal, the defendants’ convictions were affirmed on Counts One and Two, but
vacated with respect to Count Three. The Appellate Division determined that “the State
had to prove that defendants engaged in an act of sexual penetration while aided or
abetted by at least one other person and that defendants used force or coercion. . . . [W]e
are convinced that the State failed to present enough evidence to prove to a reasonable
jury that force or coercion were used against M.G.” Scherzer, 694 A.2d at 215. The
defendants’ convictions on Count Three, therefore, were vacated. The defendants were
re-sentenced on June 30, 1997. Kevin Scherzer and Archer each received a sentence of
an indeterminate term not to exceed 15 years. Kyle Scherzer received an indeterminate
term not to exceed seven years. All three defendants appealed their sentences, which
were affirmed by the Appellate Division on January 14, 1998.
Each of the three defendants then filed a petition for a writ of habeas corpus in the
District Court. The defendants argued that their writs should issue because (1) they had
been deprived of the effective assistance of counsel in violation of their Sixth
Amendment rights; (2) they had been denied their right to an impartial jury in violation of
their Sixth Amendment rights; (3) prosecutorial misconduct had robbed them of their
right to a fair trial; (4) the introduction of testimony by the state’s witness Dr. Ann
Burgess violated their right to a fair trial; and (5) there was insufficient evidence to
convict on Counts One and Two. The District Court determined that the petitioners had
adequately exhausted their state court remedies as required by the Antiterrorism and
5
Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254, but denied their
petitions on December 13, 2002. This Court granted the Kevin Scherzer’s request for a
Certificate of Appealability on the following grounds:
(1) whether the Scherzers were denied their right to counsel by their attorneys’
absences and, if so, whether a harmless error analysis applies when counsel is
absent during critical stages of the proceedings and, if it does, whether the
attorneys’ absences in this case were harmless . . . ; (2) whether the petitioners’
right to counsel was violated by a conflict of interest; (3) whether the petitioners
were denied their right to an impartial jury by the jurors’ prayers for the victim and
certain jurors’ exposure during trial to co-workers’ negative comments about the
petitioners; (4) whether the prosecutor improperly commented on the petitioners’
behavior at trial and on their failure to testify; and (5) whether the errors alleged in
Ground Five of the § 2254 petitions prejudiced the petitioners when considered
cumulatively.
This Court granted Kyle Scherzer’s request for a Certificate of Appealability on the same
grounds, plus an additional one: whether the trial court’s instructions regarding
accomplice liability were proper. Christopher Archer’s Certificate of Appealability was
limited to the grounds enumerated (3), (4), and (5) in Kevin Scherzer’s Certificate of
Appealability.
II.
Because the District Court did not conduct its own evidentiary hearing, we must
review the state court’s decision applying the same standard as the District Court.
Marshall v. Hendricks, 307 F.3d 36, 50 (3d Cir. 2002).1 Our standard of review is
governed by AEDPA, 28 U.S.C. § 2254(d), which states:
An application for a writ of habeas corpus on behalf of a person in custody
1 We have jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253.
6
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.
The Supreme Court explained this standard in Williams v. Taylor, 529 U.S. 362,
405 (2000), holding that a decision is contrary to established federal law where (1) “the
state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a
question of law”; or (2) “the state court confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite
to ours.” Further, an unreasonable application of the Court’s clearly established
precedent occurs when (1) “the state court identifies the correct governing legal rule from
[the Supreme] Court’s cases but unreasonably applies it to the facts”; or (2) “the state
court either unreasonably extends a legal principle from our precedent to a new context
where it should not apply or unreasonably refuses to extend that principle to a new
context where it should apply.” Id. at 407.
This Court has interpreted AEDPA and the Supreme Court’s direction in Werts v.
Vaughn, 228 F.3d 178 (3d Cir. 2000), explaining:
[i]n analyzing the “unreasonable application of” provision, we are not authorized
to grant habeas corpus relief simply because we disagree with the state court’s
decision or because we would have reached a different result if left to our own
devices. . . . In other words, the federal habeas court should not grant the petition
unless the state court decision, evaluated objectively and on the merits, resulted in
an outcome that cannot reasonably be justified under existing Supreme Court
7
precedent.
Id. at 197 (internal quotation and citations omitted).
III.
Kevin and Kyle Scherzer claim that they were denied their Sixth Amendment
rights to effective assistance of counsel—first, by the recurrent absences of Kevin’s
counsel at trial, and second, due to joint representation by their counsel when a conflict of
interest occurred.2 We address each in turn.3
A.
Kevin Scherzer claims that his Sixth Amendment rights were violated when the
trial court allowed his counsel to be absent during pre-trial and trial proceedings and
allowed co-counsel to stand-in.4 The Appellate Division explained that under United
2 We do not address the Scherzers’ claim that their Sixth Amendment right to
effective assistance of counsel was violated due to the trial court’s failure to inform them
as to the hazards of dual representation because the issue was not certified in the
Certificate of Appealability. 28 U.S.C. § 2253.
3 Judge Alito concludes that cases involving the lack of representation are
inapposite because the petitioners were never unrepresented. Rather, they were at times
jointly represented. He therefore believes that the correct legal standard is the one
discussed in Part III.B of the opinion. Because he concludes that the attorneys were never
actively representing conflicting interests, he would reject the petitioner’s arguments
regarding their representation solely for the reasons set out in Part III.B and not III.A.
4 The Certificate of Appealability for Kyle Scherzer included the question of
whether both “the Scherzers” were denied their right to counsel based on “their attorneys’
absences.” Before us, Kyle Scherzer’s argument was limited to the argument that his
“attorney became ineffective due to his having to cover . . . for Kevin’s absentee
attorney.” Appellant’s Br. at 28. That argument is address infra as it relates to the
Scherzers’ argument that their Sixth Amendment rights were violated when Kyle
Scherzer’s attorney represented their conflicting interests.
8
States v. Cronic, 466 U.S. 648, 659 (1984), and its progeny, 5 prejudice must be presumed
if the Scherzers’ “counsel fail[ed] to appear at a critical stage of proceedings.” Scherzer,
694 A.2d at 237. However, the Appellate Division reasoned that if the occasions during
which the absences occurred were not critical stages, then the harmless error standard
articulated by Chapman v. California, 386 U.S. 18, 24 (1967), i.e., “whether there is a
reasonable possibility that the evidence complained of might have contributed to the
conviction,” is appropriate.
The Appellate Division stated that it had
no doubt that certain testimonial evidence missed by Kevin’s counsel was a critical
stage of the trial. [Dr.] Burgess presented crucial testimony about the [rape trauma
syndrome] and she described M.G.’s drawings directly inculpating Kevin . . . Thus,
since Kevin had no attorney present during critical stages of the proceeding, he
was denied effective assistance of counsel, unless he waived the right to counsel.
Scherzer, 694 A.2d at 237. The Appellate Division determined that Kevin had not
waived his right to counsel. It then turned to the question of “whether the attorney’s
absence during the taking of testimony is harmful error per se, or whether we may apply
the Chapman harmless error analysis in such a situation.” Id. at 239. Although, as cited
above, the Appellate Division determined the testimony of Dr. Burgess to be a critical
stage of the trial, it rejected the notion that trial testimony was per se a critical stage.
Agreeing with the Sixth Circuit’s analysis in Green, the Appellate Division determined
that temporary absences from testimony should be considered under the harmless error
5 Vines v. United States, 28 F.3d 1123 (11th Cir. 1994); Green v. Arn, 809 F.2d
1257 (6th Cir.), vacated on other grounds, 484 U.S. 806 (1987) (mem.); and Siverson v.
O’Leary, 764 F.2d 1208, 1217-20 (7th Cir. 1985).
9
standard outlined in Chapman, rather than the presumptive prejudice in Cronic. It
conducted a careful review of the record and of counsel’s absences prejudiced Kevin
Scherzer.
We must determine under § 2254(d) whether the Appellate Division’s application
of Cronic, 466 U.S. at 659, and Chapman, 386 U.S. at 24, was reasonable. We recognize
that it appears from the Appellate Division’s opinion that it determined that both the per
se prejudice rule of Cronic and the harmless error standard of Chapman applied to the
absences of Scherzers’ counsel during trial. As the two standards are mutually exclusive,
however, it would be unreasonable to apply both to a single situation. Taken in their
separate contexts, however, we conclude that the two discussions work in concert to
produce a reasonable application of Supreme Court precedent.
The Appellate Division used the term “critical stage” when discussing the
testimony of Dr. Burgess, a psychologist who testified as to whether M.G. exhibited the
symptoms of rape trauma syndrome, relying, in part, on depictions of the rape drawn by
M.G. The Appellate Division had already concluded that the trial court committed error
by allowing Dr. Burgess to testify on the subject of rape trauma syndrome. Scherzer, 694
A.2d at 218. It limited that ruling, stating “We believe that error had the capacity to taint
the jury verdict only as to Count Three, penetration by force or coercion.” Id. The
defendants’ convictions on Count Three, however, were vacated because the State had
failed to present sufficient evidence to prove the elements to a reasonable jury. The
Appellate Division determined that the testimony had no impact on the remaining counts
10
of the defendants’ conviction. Id. at 219.
Similarly, the Appellate Division held that the trial judge improperly allowed Dr.
Burgess to testify about the drawings made by M.G. However, the drawings “had no
capacity to prejudice the jury” on the remaining Count Two. Id. The state had presented
evidence, through the testimony of Christopher Archer’s brother Paul, who pled guilty to
charges arising from the same incident prior to trial, that both Kevin and Christopher had
engaged in the actions described by Dr. Burgess.
The Appellate Division’s determination that the testimony of Dr. Burgess was a
“critical stage” must be viewed in this context. While the Appellate Division did identify
Dr. Burgess’s testimony as a critical stage, it had already obviated any prejudice that
could have come from that testimony by vacating the defendants’ convictions on Count
Three. We cannot say that the Appellate Division’s decision to refuse to extend Cronic’s
presumption of prejudice to a portion of the proceedings that had no effect on the ultimate
outcome was unreasonable.
In the same way, the Supreme Court has not yet spoken on whether the Cronic
presumption of prejudice applies where counsel is temporarily absent from non-critical
stages of trial. The Appellate Division made painstaking review of the record, examining
the effect of each absence. Given this, we cannot conclude that their decision that the
temporary absences of the Scherzers’ counsel did not create a structural defect, as those
11
with which Cronic was concerned, was unreasonable.6 466 U.S. at 659. The temporary
absences of Kevin Scherzer’s counsel, therefore, do not provide a basis upon which we
may grant habeas relief.
B.
The Scherzers also claim that their Sixth Amendment rights were violated when
Kyle Scherzer’s attorney represented Kevin, because Kevin’s interests conflicted with
those of his brother Kyle.7 They argue that the joint representation violated their Sixth
Amendment right to counsel whose loyalty was “untrammeled and unimpaired,” citing
Glasser v. United States, 315 U.S. 60, 70 (1942). The Appellate Division acknowledged
that “[t]here was a potential for conflict of interest between Kyle and Kevin, as a possible
trial strategy for Kyle would have been to minimize his involvement in the sexual assaults
and to argue he was not an accomplice of [his] codefendants because he did not share
6 The Supreme Court has cautioned that “[t]he federal habeas court should not
transform the inquiry into a subjective one by resting its determination instead on the
simple fact that at least one of the Nation’s jurists has applied the relevant federal law in
the same manner the state court did in the habeas petitioner’s case.” Williams, 529 U.S.at
410. We may not, therefore, base our conclusion that the Appellate Division’s opinion
was reasonable simply on the fact that at least one court has ruled in the same manner as
they did. However, that the Appellate Division’s conclusions here are in line with the
Eleventh Circuit’s ruling in Vines, 28 F.3d at 1129, serves to bolster our determination
that it was reasonable. Scherzer, 694 F.2d at 240.
7 We recognize the inherent tension between this argument and Kevin’s earlier
argument that he was left without representation during critical portions of the trial. A
conflict of interest can exist only insofar as Kyle’s attorney actually represented Kevin
while Kevin’s attorney was absent. Thus, the Scherzers’ conflict argument relies upon
joint representation. Conversely, the Scherzers’ argument that they were denied
representation during a “critical stage” of the trial inherently requires a finding that there
was no such joint representation. Because both arguments fail, however, we need not
resolve this tension.
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their purpose.” Scherzer, 694 A.2d at 244. The Appellate Division determined that “[i]n
light of the potential conflict of interest and the absence of an express waiver by Kyle, he
was deprived of his Sixth Amendment right to a counsel whose loyalty was untrammeled
and unimpaired.” Id. (internal quotation and citation omitted). Nonetheless, the Appellate
Division concluded that “while Kyle and Kevin may have in theory had a potential
conflict of interest, in fact, the defense strategy chosen by them resulted in there being no
conflict between their positions at trial, because both defendants had the same interest and
plan.” Id. Applying New Jersey law, State v. Land, 372 A.2d 297 (N.J. 1977), the
Appellate Division concluded that “the consistent trial strategy of all defense counsel
results in the constitutional error being harmless beyond a reasonable doubt.” Scherzer,
694 A.2d at 244.
Although the Appellate Division did not cite to the appropriate Supreme Court
precedent, we hold that its conclusion is neither “contrary to,” nor an “unreasonable
application,” of clearly established federal law as articulated by Supreme Court precedent.
Williams, 529 U.S. at 407. The Supreme Court requires that “in order to establish a
violation of the Sixth Amendment, a defendant who raised no objection at trial must
demonstrate that an actual conflict of interest adversely affected [the defendant’s]
lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 348 (1980) (emphasis added).
See also, Burger v. Kemp, 483 U.S. 776, 783 (1987) (prejudice is presumed “only if the
defendant demonstrates that counsel actively represented conflicting interests and that an
actual conflict of interest adversely affected his lawyer’s performance” (internal
13
quotations omitted)). There is no presumption of prejudice where there is simply a
potential for conflict. Glasser, 315 U.S. at 76.
The Scherzers identify only one instance that could be deemed an actual, rather
than a potential, conflict of interest. Dr. Burgess relied upon, in part, drawings made by
M.G. depicting the rape, showing Kevin with a greater involvement than Kyle. At the
time the testimony was given, Kyle’s attorney was representing both Kevin and Kyle.
The Scherzers contend that the failure of Kyle’s attorney to ask questions at that point
was result of a conflict between his duty to Kevin to impeach the witness and inquire as
to whether the perpetrator was not, in fact, Kyle, and his duty to protect Kyle from such
impeachment.
This argument suffers from the same infirmity present in the Scherzers’ absence of
counsel argument. The Appellate Division determined that allowing Dr. Burgess to
testify on this topic was improper and vacated Count Three as a result. Any prejudice
which could have resulted from her testimony had already been obviated by the Appellate
Division. We consider the Appellate Division’s decision not to extend the presumption of
prejudice required by Cronic reasonable under the circumstances. 466 U.S. at 661.
Further, the Appellate Division determined that Kevin and Kyle had chosen not to
pursue a defense strategy of minimizing their respective involvement in the rape.
Scherzer, 694 A.2d at 244. The Appellate Division was
convinced based on the entire record that the three defendants, Kevin, Kyle, and
Archer, presented a joint defense in which the trial attorneys did not attempt to
distinguish their clients or their conduct from the other defendants. The strategy of
each defendant, as shown from their opening through their closing arguments, was
14
to establish that M.G. consented to the sexual activities, to deny that M.G. was
mentally defective, and to attack the prosecution and its case.
Id. at 240-41. As the Appellate Division noted, Paul Archer testified that Kevin Scherzer
and Christopher Archer had been involved in the actual penetration of M .G. Id. at 219.
The Scherzers do not contend that Kevin’s attorney was absent during this testimony, or
that Kevin’s attorney deviated from their trial strategy during Paul Archer’s testimony by
asking the questions that they argue Kyle Scherzer’s attorney failed to ask during Dr.
Burgess’ testimony. It appears, then, that the Scherzers had a strategic basis for deciding
not to point fingers at one another. Thus, any conflict of interest was simply a potential
one. Cf. Burger, 483 U.S. at 784 (acknowledging that strategic reasons for arguing lesser
culpability may exist and may not be related to any potential conflict of interest); Cuyler,
446 U.S. at 348. The defendants thus failed to show an actual conflict of interest. As
such, the Appellate Division’s determination that the potential conflict of interest never
materialized into an actual one, and that no Sixth Amendment violation occurred, is
reasonable.
IV.
The defendants further argue that their Sixth Amendment right to a fair and
impartial jury was violated by the jurors’ prayers that occurred each day before trial, as
well as by the exposure of a few jurors, during a break in trial, to their co-workers’
statements about the defendants’ guilt. We disagree. Mu’Min v. Virginia, 500 U.S. 415,
427 (1991), counsels that “our own cases have stressed the wide discretion granted to the
trial court in conducting voir dire in the area of pretrial publicity and in other areas of
15
inquiry that might tend to show juror bias.” Relying on this Court’s precedent and upon
New Jersey law, the Appellate Division concluded that the trial judge had made the
requisite “probing inquiry into the possible prejudice caused by any jury irregularity,
relying on his or her own objective evaluation of the potential for prejudice rather than on
the jurors’ subjective evaluation of their own impartiality.” Scherzer, 694 A.2d at 258.
Our review of the record comports with that of the Appellate Division: the trial court
judge thoroughly questioned the jurors, discharged those he found lacking, and ensured
that the jury was not tainted.
V.
Defendants next claim that the prosecutor improperly commented on both their
behavior at trial and their failure to testify in violation of the Fifth Amendment right to
remain silent, their Sixth Amendment right to a fair trial, and their Fourteenth
Amendment due process right. Reviewing the record, the Appellate Division recognized
that “[p]rosecutorial misconduct . . . will not warrant reversal unless the conduct was so
egregious so as to deprive defendant of a fair trial.” Id. at 230. After carefully reviewing
each of the allegedly inappropriate comments, the Appellate Division concluded that “any
possible infringement on defendants’ right to silence did not rise to the level of reversible
error because of the effective action of the trial judge in re-establishing in the minds of
the jurors the importance of [the right to silence].” Id. at 234.
When considering prosecutorial misconduct, we must determine whether “the
prosecutor’s remarks . . . so infected the trial[] with unfairness as to make the resulting
16
conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)
(internal citations and quotations omitted). A trial court may not permit commentary
either on the defendants’ silence, or on their failure to explain “any evidence or facts
against him which the defendant can reasonably be expected to deny or explain because
of the facts within his knowledge.” Griffin v. California, 380 U.S. 609, 610 (1965). The
prosecutor’s comments here can fairly be characterized as comments on the defendants’
failure to live up to promises made during oral argument. Further, any inappropriate
statements made by the prosecutor were met immediately with a corrective instruction by
the trial court, which reminded the jury that the defendants had neither a burden of proof,
nor an obligation to testify. On these facts, the prosecutor’s actions did not “so infect[]
the trial with unfairness as to make the resulting conviction a denial of due process.”
Donnelly, 416 U.S. 643. The Appellate Division’s rejection of the defendants’ claims,
therefore, was neither contrary to, nor an unreasonable application of, Supreme Court
precedent.
VI.
Lastly, the defendants list multiple actions taken by the prosecutor which they
argue, considered cumulatively, violated their right to due process. The cumulative effect
of the prosecutor’s actions must be reviewed against the standard of whether they “so
infected the trial with unfairness as to make the resulting conviction a denial of due
process.” Donnelly, 416 U.S. at 643. Our review of the record leads to the conclusion
that the Appellate Division’s determination that any misconduct by the prosecutor was
17
ameliorated by the trial judge’s actions was a reasonable application of the standard set
forth in Donnelly. They do not, therefore, provide a basis upon which we may grant
relief. Finally, the Appellate Division's determinations with respect to the other alleged
instances of trial court error likewise were reasonable applications of Supreme Court
precedent.
VII.
Kyle Scherzer challenges the trial court's instruction on accomplice liability.
However, because his argument relies wholly on state law interpretation, it may not be
maintained in a federal habeas proceeding. Carpenter v. Vaughn, 296 F.3d 138, 153 (3d
Cir. 2002). To the extent Kyle Scherzer's claims a constitutional violation, we hold that
the Appellate Division's decision was not “an unreasonable application of[] clearly
established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d); see
also Henderson v. Kibbe, 431 U.S. 145, 154 (1977).
VIII.
For the foregoing reasons we determine that the Appellate Division reasonably
applied the pertinent Supreme Court precedent to each of the alleged trial infirmities.
Given our limited standard of review, we decline to issue the requested writs. We
therefore affirm the judgment of the District Court.
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