                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 12-1307
                                    _____________

                                  DANA T. TOKLEY,
                                                Appellant
                                         v.

                          MICHELLE RICCI;
             ATTORNEY GENERAL OF THE STATE OF NEW JERSEY



                    On Appeal from the United States District Court
                              for the District of New Jersey
                               (D. C. No. 2-09-cv-04546)
                    District Judge: Honorable Katherine S. Hayden


                       Submitted under Third Circuit LAR 34.1(a)
                                   on March 8, 2013

                Before: SCIRICA, JORDAN and ROTH, Circuit Judges

                            (Opinion filed: October 16, 2013)


                                      OPINION


ROTH, Circuit Judge:

      Dana T. Tokley appeals the District Court’s January 20, 2012, order denying his

petition for a writ of habeas corpus under 28 U.S.C. § 2254.

I.    Background


                                            1
       On November 11, 1996, two masked, armed men robbed the Quality Automobiles

car dealership in Pennsauken, New Jersey. Jose Martinez later came forward and

implicated himself and Dana Tokley in the robbery. Martinez was the state’s key witness

at Tokley’s trial and testified that Martinez, Tokley, and a third man, Elliot Rosario, had

planned to rob Quality Automobiles, but on the night in question, Rosario did not

participate. Martinez described in detail how he and Tokley committed the armed

robbery, but Martinez was the only witness to identify Tokley as one of the masked

gunman.

       At the time of trial, Martinez was serving a 20-year sentence for aggravated

manslaughter. He had been charged with murder and was eligible for a life sentence, but

in exchange for his guilty plea and trial testimony against Tokley, the state agreed to the

20-year sentence for aggravated manslaughter. Martinez explained at trial that he agreed

to cooperate with the government in exchange for a lesser charge and because he was

upset that Rosario had been killed and was concerned that he might also be killed.

       Tokley’s attorney, Scott Griffith, vigorously cross-examined Martinez about his

long criminal history, his hatred of Tokley, and his discussions with others about killing

Tokley. On redirect, Martinez explained that Rosario was like a brother to him and that

he was angry with Tokley because Tokley had influenced Rosario to kill someone in a

prior drug transaction but that person had turned out to be the “wrong guy.” Martinez

further explained that if he could get away with it, he would have killed Tokley.

Martinez then, unprompted by the government, blurted out that Tokley had murdered

Rosario. Griffith immediately objected and moved for a mistrial.

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       The trial court overruled the objection and denied the request for a mistrial.

Instead, the trial court gave a lengthy limiting instruction that the jurors should only use

Martinez’s statement “for the limited purpose of deciding the credibility and believability

of Jose Martinez’ testimony about Dana Tokley’s participation in the Quality Auto

robbery.” The trial court explained that this meant the jurors could “consider whether

this witness has so much animosity towards Dana Tokley because of the alleged death of

Elliot Rosario that he would falsely implicated Dana Tokley,” but that they “should not

hold that statement against” Tokley or conclude that Tokley had killed Rosario based on

Martinez’s statement. The trial court also reminded the jurors that they must decide

“whether the State has proven Dana Tokley guilty beyond a reasonable doubt of the

armed robbery at Quality Auto. You are certainly not here to decide whether Dana

Tokley is guilty of murdering Elliot Rosario.” Griffith did not object to this instruction,

and, before continuing with Martinez’ testimony, the trial court again reiterated that the

jurors “should not assume from that that Mr. Tokley has a propensity to commit crimes or

that he’s a bad person or an unlawful person in any way. Again, it’s for the limited

purpose of evaluating the motive of the witness, Jose Martinez, to be truthful or not

truthful.”

       Tokley was convicted in New Jersey Superior Court of first-degree armed robbery

and second-degree possession of a firearm for an unlawful purpose. On April 3, 2000, he

was sentenced to 55 years imprisonment with 27.5 years of parole ineligibility, to be

served consecutively to a sentence he was already serving. Tokley appealed, alleging

numerous trial errors, including the trial court’s failure to grant a mistrial after Martinez’s

                                               3
outburst. The New Jersey Superior Court, Appellate Division, concluded, in its order of

October 4, 2002, that there was no reversible error. Tokley appealed to the New Jersey

Supreme Court, which denied certification.

       Tokley then filed a petition for post conviction relief in New Jersey Superior

Court, Law Division, (the PCR Court) alleging ineffective assistance of counsel. Tokley

raised five grounds for relief, including that Griffith had failed to investigate or call

witnesses who could have provided evidence of an alibi and of third-party guilt. The

PCR Court held a three-day evidentiary hearing at which several witnesses testified.

       Tokley testified that on the day of the robbery he had taken his mother and aunt to

the cemetery where his brother was buried, so he could not have committed the robbery.

Carol Tokley, Tokley’s mother, testified that she was with Tokley at the cemetery on the

day of the robbery. Tokley argued that had Griffith interviewed his mother, Griffith

would have discovered this information and could have had her testify to this alibi at trial.

While Tokley had asked Griffith to interview his mother prior to trial, Tokley admitted

that he never told Griffith about the trip to the cemetery or that his mother was with him

for it. Mrs. Tokley admitted that she did not realize the cemetery trip and the robbery

occurred on the same day, November 11, 1996, until she was attending his trial. During

the trial, Mrs. Tokley had lunch with Griffith and asked if she could testify, but even then

she did not mention the cemetery trip or what she wanted to testify about.

       Tokley’s sister, Marcella McDonald, testified at the evidentiary hearing that she

heard Ernest Hill, who was also known as E-Train, bragging to her husband on the day of

the robbery that he had committed the robbery and that it would be in the paper the next

                                               4
day. The Courier-Post did run an article about the Quality Automobiles robbery on

November 12, 1996, which McDonald saw. Tokley argued that had Griffith interviewed

McDonald and learned about Hill’s statement, he could have called McDonald to testify

about this evidence of third-party guilt. However, McDonald admitted that she did not

know Tokley was being prosecuted for the Quality Automobiles robbery that Hill had

bragged about until Tokley’s sentencing in April 2000. Tokley did not ask Griffith to

interview McDonald prior to trial, and Griffith testified that he would not have called

McDonald as a witness because she did not appear credible and her testimony would

have been of little value.

       The PCR Court concluded that Griffith’s failure to interview any potential defense

witnesses constituted a deficient performance but that Tokley could not demonstrate that

he had been prejudiced by this error. As a result, the PCR Court denied Tokley’s petition

for post-conviction relief in an oral opinion. The New Jersey Superior Court, Appellate

Division affirmed, and the New Jersey Supreme Court denied certification.

       Tokley then petitioned for a writ of habeas corpus in the United States District

Court for the District of New Jersey. The District Court denied Tokley’s petition, but

issued a certificate of appealability with respect to two of the issues Tokley raised: (1)

whether Griffith’s failure to call Tokley’s mother and sister constituted ineffective

assistance of counsel, and (2) whether the trial court’s denial of Tokley’s motion for a

mistrial in response to Martinez’s outburst violated due process. This appeal followed.




                                              5
II.    Discussion1

       Tokley asserts that the District Court erred in denying his habeas petition.

Because the District Court did not hold an evidentiary hearing, our review of the District

Court’s decision is plenary. Eley v. Erickson, 712 F.3d 837, 845 (3d Cir. 2013).

       AEDPA prohibits us from granting habeas relief

              unless it is shown that the earlier state court’s decision “was
              contrary to” federal law then clearly established in the
              holdings of [the United States Supreme] Court, [28 U.S.C.]
              §2254(d)(1); Williams v. Taylor, 529 U.S. 362, 412, 120 S.
              Ct. 1945, 146 L.Ed.2d 389 (2000); or that it “involved an
              unreasonable application of” such law, § 2254(d)(1); or that it
              “was based on an unreasonable determination of the facts” in
              light of the record before the state court, § 2254(d)(2).

Harrington v. Richter, --- U.S. ----, 131 S. Ct. 770, 785 (2011).

       Tokley argues that the state court’s decisions with respect to both his ineffective

assistance of counsel claim and his due process claim were contrary to or an unreasonable

application of federal law.

                                             A.

       Tokley argues that his trial counsel rendered ineffective assistance by failing to

interview his mother and his sister, who would have, respectively, provided information

relevant to an alibi defense and a third-party guilt defense. To establish ineffective

assistance of counsel, “a defendant must show both deficient performance by counsel and

prejudice.” Knowles v. Mirzayance, 556 U.S. 111, 129 (2009); Strickland v. Washington,

466 U.S. 668 (1984). Tokley argues that the Appellate Division’s conclusion that Tokley

1
  The District Court had jurisdiction pursuant to 28 U.S.C. § 2254, and this Court has
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a).
                                             6
failed to satisfy the prejudice prong of Strickland was contrary to or an unreasonable

application of federal law.

       Here, both the PCR court and the Appellate Division applied the standard set forth

in Strickland to evaluate Tokley’s ineffective assistance of counsel claim. Accordingly,

these decisions were not contrary to established Supreme Court precedent. See Werts v.

Vaughn, 228 F.3d 178, 203 (3d Cir. 2000).

       The PCR Court concluded that the verdict would not have been different if

Griffith had interviewed Tokley’s mother or sister. The court reasoned that neither

potential witness realized she had exculpatory evidence until after the verdict in Tokley’s

case had been reached. The court also concluded that neither potential witness was

credible.

       Tokley argues that the PCR Court improperly substituted its own view for that of

the jury when it concluded that Mrs. Tokley and McDonald lacked credibility. This is

unavailing because courts may consider the credibility of witnesses in determining

whether a petitioner has demonstrated prejudice. See, e.g., Moss v. Hofbauer, 286 F.3d

851, 868 (6th Cir. 2002).

       The Appellate Division concluded that no rational jury would have believed Mrs.

Tokley and that the PCR Court did not err by finding that any testimony from McDonald

would not have helped the defense. On this basis, the Appellate Division affirmed the

PCR Court’s order finding that Tokley was not prejudiced by Griffith’s failure to

interview Mrs. Tokley or McDonald. The Appellate Division’s decision was not an

unreasonable application of Strickland, and Tokley has not demonstrated that the

                                             7
Appellate Division’s decision cannot be justified under Strickland. As a result, we will

affirm the District Court’s order with respect to Tokley’s ineffective assistance of counsel

claim.

                                                B.

         Tokley asserts that the trial court’s denial of his motion for a mistrial after

Martinez’s outburst violated due process and that he is entitled to habeas relief because

the Appellate Division’s decision affirming the trial court’s denial was contrary to or an

unreasonable application of federal law. Specifically, Tokley argues that “there was an

overwhelming probability that the jury would be unable to follow the court’s instructions

and a strong likelihood that the evidence of other crimes was devastating to Tokley.”

         Here, the Appellate Division applied New Jersey law to determine that the trial

court did not err by denying Tokley’s motion for a mistrial and by instead instructing the

jury to consider Martinez’s statement only for its impact on Martinez’s credibility. The

Appellate Division reasoned that the trial court did not abuse its discretion in not

declaring a mistrial because the prosecutor did not elicit the statement and the trial court

“carefully weighed the testimony in light of the prejudice to the defendant as well as the

potential to demonstrate the bias and hostility of the witness . . ..” Furthermore, the

Appellate Division concluded that the curative instruction to the jury “made clear the jury

could only use the comment to asses Martinez’s credibility, and the jury should not

consider whether the statement was true or not.”

         While the Appellate Division did not consider the Supreme Court’s precedents in

its analysis of Tokley’s claim, a state court decision is neither contrary to nor an

                                                8
unreasonable application of federal law “so long as neither the reasoning nor the result of

the state-court decision contradicts [the Supreme Court’s cases].” Early v. Packer, 537

U.S. 3, 8 (2002). There is no such contradiction here.

III.   Conclusion

       For the foregoing reasons, we will affirm the District Court’s order denying

Tokley’s § 2254 petition.




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