                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                         NOT PRECEDENTIAL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.

                                              12
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.




                                             18
