2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
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w . v i l l a no va . e du/thir dc ir c uit_2004/393NOT PRECEDE NTIAL IN THE UNITED STATES COURT OF APPEALS

FO R T HE TH IRD CIR CU IT Case No. 02-4608 KEVIN SCHER ZER, Appellant

v. ALVIN ORTI Z, J R., ADMINIS TRATOR, M ou nt ain vi ew Y ou th C or re cti on al F ac ilit y; The AttorneyGeneral of the State of New Jersey, Peter G. V erniero
Case No. 02-4609 KYLE SCHERZER, Appellant

v. ALVIN ORTI Z, J R., ADMINIS TRATOR, M ou nt ain vi ew Y ou th C or re cti on al F ac ilit y; The AttorneyGeneral of the State of New Jersey, Peter G. V erniero* The Honorable J. Cliffor d Wallace, Senior Unit ed State s Circui t Judge for the Ninth Circui t, s itting by designation. 2 Case No: 03-1023 CHRIST OPHER ARCHER, Appellant

v. JOS EPH RIZZ O, A dministrator, M ou nt ain vi ew Y ou th C or re cti on al F ac ilit y; JOH N J. F AR M ER , JR., T he A ttorney G enera l

Of the Stat e of New Jersey On Appeal From the United St ates Distri ct Court f

or the Dis tri ct of New Jersey (Docket Nos. 99- cv-00130; 99- cv-00900; 00- cv-04484) District Cou rt Judge: Th e Ho norable F aith S. Ho chberg

______________________ Argued June 18, 2004 Before: ALITO, SMITH and * WALLACE, Circuit Judges (Fil ed August 18, 2004) John Vincent Saykanic, Esq. (Argued) 1135 Clift on Avenue Clift on, New Jersey07013 Counsel for

Appellant

Kevin Scherze r Miles R. Fei nstei n, Esq. ( Argued) 1135 Clift on Avenue Clift on, New Jersey07013 Counsel for

Appellant

Kyle Scherze r3

Martin P. Gei sler , Esq. ( Argued) 215 Lanza Avenue Garfiel d, N.J. 07026 Counsel for

Appellant

Christophe r Archer Paula T. Dow Ass istant A ttorney G enera l Acting E ssex Co unty Prosecutor Essex County Courts Buil ding Newark, New Jersey 07102 Barbara A. Rosenkrans [Argued] Special Deputy Att orney General Acting Assis tant Pr osecutor 50 West Market Stre et Essex County Courts Buil ding Newark, New Jersey 07102 Counsel for

Appellees

______________________

OPINI ON OF THE COURT

______________________ SMIT H, Circuit

Judge. Kevin Scherzer , Kyl e Scherzer and Christ opher Archer appea l from the Distri ct Court’s de nial of

their petit ions for a writ of habeas corpus . The Scherzer s assert that theywere denied effe ctive assis tance of couns el duri ng a lengthy t rialthat l asted fr om Oc tober, 1 992 to M arch, 1 993 . All thre e def enda nts arg ue tha t they we re den ied the ir right to a fai r trial due to the l ack of an impart ial j ury and severalinst ances of prosecutorial misconduct. For the reasons set forth below, we reject t he defendants’ argu men ts and affirm the D istrict Co urt. I. The u nderlying facts dev eloped at the trial of the Scherze rs and A rcher are4

out lined in th e N ew Jers ey Su per ior C our t’s ex hau stive treat me nt o f the ir dire ct ap pea l. State v . Scherz er , 694 A.2d 196 (N.J . Super. 1997). Because we write only for the parties, we w ill not recite them again h ere. Kev in Scherze r and K yle Scherzer w ere indicted along with three c o-defendant s, not present in thi s appeal, in May 1990 on “vari ous se xua l a ss aul t c har ges al le ged lycommi tted a gai nst a men ta ll y def

ect iv e vi ct im, M.G.” Id . at

209. In September 1990, the prosecution’s request t o have thre e of the juvenil e defendants , one of whom was Archer, t ried as adults was granted. All eight defendants were indic ted in a supercedi ng indict

ment chargi ng the fol lowing: Count (1) conspir acy to commit aggravated sexual a ssault ; Counts ( 2) and (4) firs t degree aggravat ed sexual a ssault (sexualpenetration of a mentall y defec tive pe rson); Counts (3) and (5) fi rst de gree aggravated sexua l assault ( sexual pene tration usi ng physi cal for ce or
coerc ion); an d C oun ts (6)-(9) third de gree a ggra vated crimin al sexu al con tact. Pre-trialhearings and motions began in June 1991 and cont inued unti l March 19 92 . Ju ry voir di re began on September 22, 1992. Tri al commenced on October 15, 1992. The jury r eached it s verdi ct on March 16, 1993. All three defendants were found guilt y on Counts One and Three. Kevin Scher zer and Chri stopher Archer were found guilt y of Count Two, fi rst de gree aggra vated sexua l assault upon a ment ally defecti ve person. Kyle Scher zer was found guil ty of the l esser i ncluded offens e of att empted aggravat ed sexual a ssault . Each was acquit ted on Counts Four

through Nine. The defendants were sentenc ed as y oung adult of fenders and ea ch recei ved sentenc es of an indete rminate term not to exceed 15 y ears. The defendants fi led a timelyappeal with the5

Ne w J erse y Sup erio r Co urt A ppe llate D ivisio n. On appeal, t

he defendants ’ convict

ions were affirmed on Counts One and Two, but
vaca ted w ith resp ect to C oun t Thre e. Th e A ppella te Div ision d eterm ined th at “the State had to prove t

hat defendant s engaged in a n act of se xual penet rati on while ai ded or abetted by at least one o ther person a nd that def endan ts used force or coercion . . . . [W]e
are co nvin ced th at the S tate faile d to p resen t enou gh ev idenc e to pro ve to a reaso nable jurythat f

orce or coe rcion were us ed against M.G.” Scherzer , 694 A.2d at 215. The defend ants’ conv ictions on C ount Th ree, therefore, w ere vacated . The def endan ts were
re-se ntenced on June 30, 1997. Kevi n Scherzer a nd Archer each re ceived a s entence of an ind eterm inate term not to e xcee d 15 years. K yle Sche rzer rec eived an ind eterm inate term not to exceed seven y ears. All three defendants appealed t heir s entences , which
we re af firm ed b y the A ppe llate D ivisio n on Jan uar y 14, 1 998
. Each of the three defendant s then fi led a petiti on for a writ of habeas corpus in the Distri ct Court. The defendants argued that their writs s hould is sue because ( 1) theyhad been depr ived o f the e ffec tive ass istance of co unse l in viola tion of their Six th Amendment rights ; (2) theyhad been denied t heir right to an impartial j ury in viol ation of their Six th A men dm ent righ ts; (3) pro secu torial m iscon duct h ad ro bbed them of the ir right to a fai r trial; (4) the intr oduction of testimony by

the st ate’s witness Dr. Ann Bu rgess v iolated their righ t to a fa ir trial; and ( 5) ther e w as insu fficien t evide nce to convict on Counts One and Two. The Distri ct Court de termine d that t he peti tioner s had adequatel y exhaus ted the ir st ate court remedi es as re quired bythe Antiterrorism and1 W e ha ve ju risdi ction pur sua nt to 28 U .S.C . § 12 91 a nd 2 8 U .S.C . § 22 53. 6 Eff ective De ath P enalty A ct of 1 996 (“A ED PA ”), 28 U .S.C. § 225 4, but d enied their petitions on D ecemb er 13, 200 2. This C ourt granted th e Kev in Scherze r’s request for a Certificate of Appealabilit y on the following grounds: (1) whether the Scherzers were denied their right to counsel by their attorney s’ abse nces and, if so, w hethe r a harm less erro r analysis ap plies w hen c oun sel is absent during cri tica l st ages of the proceedi ngs and, i f it doe s, whether the attorney s’ absences in this case were harmless . . . ; (2) whether the petiti oners’ right to counse l was violated by a conflict of interest; (3) w hether the pe titioners were denied their right t o an impartial j ury by the juror s’ pray ers for the vic tim and certa in jur ors’ expos ure duri ng tri al to c o-workers’ negati ve comments about t he petiti oners; (4) whether the prosecutor i mproperly commented on the petitioners’ beha vior at tria l and o n their f ailure to testify; and (5) w hethe r the erro rs allege d in Ground Five of the § 2254 pe titions pre judice d the petiti oners when consi dered cu m ul ati ve ly. Thi s Cou rt

gr anted Ky le Sch er zer ’s re que st for a Cer ti fi cate of

Appe al abi li tyon the s ame grounds, plus an addi tionalone: whether the trial c ourt’ s inst

ructi ons regar ding accomplice liabi lit

y were pr oper. Chri stopher Archer’s Certifi cate of Appealabili ty was limi ted to t

he grounds enumerated (3), (4), and (5) i n Kevin Scherzer ’s Certific ate of A pp ea lab ilit y. II. Because the District Court did not conduct its own evidentiary hearing, we must
rev iew the s tate c our t’s de cisio n ap plying the s am e sta nda rd a s the Dis trict C our t. Marshall v. Hendricks , 307 F.3d 36, 50 (3d Cir. 2002 ). 1 Ou r stand ard o f revie w is governed by AED PA, 28 U .S.C. § 2254(d), which states: An application for a wri t of habeas corpus on behal f of a person i n custody7

pursuant to the j udgment of a State court s hall not be grante d with res pect t o any clai m that was adj udicat ed on the meri ts i n State c ourt pr oceedings unl ess the adjudication o f the claim-- (1) resu lted in a decisio n that w as co ntrary to, or in volv ed an unre ason able app li cat io n of, c le ar lyes tabl is hed Fed er al la w, a s de te rmi ned by th e Su pr eme Court of the United States; or (2) re sult ed in a deci sion that was based on an unreasonable determi nation of the facts i n light

of the evi dence prese nted in t he State court pr oceeding. The Supreme Court explained thi s standard in Willi ams v. Taylor , 529 U.S. 362, 405 (2000), holding t

hat a deci sion i s contr ary to est ablis hed federallaw where (1) “t he stat e court arri ves at a c onclusi on opposit e to that reac hed by [t he Supreme] Court on a ques tion of law” ; or (2) “ the state cour t conf ronts f acts tha t are m aterially indisting uisha ble fro m a re levan t Sup reme Co urt pre cede nt and arrives at a resu lt oppo site to ours. ” Further , an unrea sonable appl ication of the Court’s c learl y es tabli shed precedent

occurs when (1) “the st ate court ident ifie s the cor

rect gove rning l egal rul e from [the S upre me] C ourt’s c ases b ut un reaso nably ap plies it to th e fac ts”; or (2 ) “the s tate court ei ther unr easonably extends a l egal pri nciple from our prece dent to a new context where it s hould not appl y or unreasonabl y r efuses t o extend that pri nciple to a new context where it s hould apply .” Id . at 40 7. This Court has inter

preted AEDPA and the Supreme Court’s direct ion in Werts v. Vaughn , 228 F .3d 17 8 (3d Cir. 20 00), ex plainin g: [i]n ana ly zing the “unreasonabl e appli cati on of” provis ion, we are not authorized to grant hab eas corpu s relief simply because we d isagree w ith the state court’s de ci si on o r b ec au se we wo ul d ha ve re ac he d a di ff er en t res ul t i f l ef

t to ou r o wn devices.
. . . In other

words, the federalhabeas court should not

grant t he peti tion unles s the sta te cou rt decisio n, eva luated objec tively and on th e me rits, resulted in an outco me that can not reason ably be justified unde r existing Sup reme C ourt2 W e do n ot add ress the Sch erzers ’ claim that the ir Sixth Am endm ent righ t to

effecti ve assi stance of

counsel was vi olate d due to the tri al court ’s fai lure t o inform the m as to t he hazards of dua l repr esentat ion because the is sue was not certifi ed in the Certif icat e of Appealabil ity . 28 U.S.C. § 2253. 3 Judge Alito conc ludes that cases inv olving the lack of represen tation are inapposi te becaus e the petiti oners were never unrepres ented. Rather, theywere at times jointly repres ented. He therefore belie ves that the correct l egal st andard is the one discuss ed in Part

III. B of the opini on. Because he conc ludes t hat the attorneys were never active ly represen ting co nflicting interests , he w ould reject the petition er’s arg um ents reg ard ing their rep rese ntati on s olely f or th e rea son s set o ut in Par t III.B and not III.A
. 4 The Certifi cate of Appealabili ty for Kyl e Scherzer include d the question of whether both “the Scherzers” were denied their right to counsel based on “their at torneys’ abse nces .” Be fore u s, Kyle S cherz er’s arg um ent w as limite d to the argu men t that his “att orney became ineffect ive due t o his havi ng to cover . . . f or Kevin’s absentee attorney .” Appellant’s Br. at 28. That argument is address infra as it relates to t

he Sch erzers ’ argu men t that their S ixth A men dm ent righ ts we re viola ted w hen K yle Scherzer’s attorneyrepresented their conflicting interests. 8 pre ced ent. Id. at 197 (internal qu otation and c itations omitted). III. Kevin and Kyle Scherzer c laim that the y were deni ed thei r Sixth Amendment rights to effective a ssistance of co unsel— first, by the recurrent absence s of K evin’s counsel at

tri al, and second, due to joi nt repr esentat ion by their

counsel when a confl ict of interest occur

red. 2 We address each i n turn. 3 A. Kevin Scherzer

clai ms that hi s Sixth Amendment ri ghts were vi olate d when the tri al court

allowed hi s counsel to be absent during pr e-trial and tri al proce edings and allowed co- counsel t o stand- in. 4 The A ppellate D ivision explained that under United5 Vines v. United States, 28 F .3d 11 23 (1 1th C ir. 1994 ); Green v. Arn , 809 F.2d

125 7 (6 th C ir.), vacated on ot her grounds , 484 U.S. 806 ( 1987) (mem.); and Sivers on v. O’Leary , 764 F.2d 1208, 12 17-20 (7 th Cir. 1985 ). 9 States v . Cro nic , 46 6 U .S . 64 8, 6 59 (1 98 4) , an d i ts p ro ge ny, 5 prejudi ce must be pre sumed if the Scherzers ’ “counselfail [ed] to appear at a crit ical stage of pr oceedings. ” Scherzer , 694 A.2d at 237. However, the Appell ate Divi sion re asoned that if the occasions during which the absenc es occurred were n ot critical stages, then the harm less error standard
ar tic ul ate d b y Ch apm an v. C aliforn ia , 386 U.S . 18, 2 4 (1 967 ), i.e., “whether there is a reasonabl e possibi lit

y that the evidence compl ained of might have contributed to the
con victi on,” is ap pro pria te. The Appellate Divisi on stat ed that it had no doubt that

certa in tes timoni al evi dence missed by Kevin’s counse l was a cri tica l st age of t he t ri al . [ Dr. ] Bu rg es s pres ented c ru ci al te stimo ny abo utth e [r ape tr auma syndrome] and she described M.G.’s drawings directly i nculpating Kevin . . . Thus, since Kevin ha d no attorney pr esent during cri tica l st ages of the proceedi ng, he wa s den ied ef fectiv e assista nce o f cou nsel, un less he wa ived th e right to coun sel. Scherzer , 694 A.2d at

237. The Appellate Divisi on determi ned that Kevin had not waive d his right to cou nsel. It then turned to the q uestion of “ whe ther the attorney’s absence during the tak ing of testimo ny is harmful error per se , or w hethe r we may ap ply the Chapman harmless error analy sis i n such a si tuati on.” Id . at 239. Although, as cited above, the Appellat e Divisi on determi ned the t esti mony of Dr. Burges s to be a criti cal stage of the tri al, it

rejected the noti on that tri al testi mony was per se a crit ical stage. Agreeing with t

he Sixth Circuit’ s analy sis i n Green , the Appellat e Divisi on determi ned that temporaryabsences fr om testi mony shoul d be considered under the harmless error10

standar d outli ned in Chapman , rat her than t

he presumpti ve prejudi ce in Cro nic . It cond ucted a care ful rev iew o f the re cord and o f cou nsel’s a bsen ces p rejudic ed K evin Scherze r. We must determine under § 2254(d) whether the Appellat e Divisi on’s appl ication of Cro nic , 466 U.S. at 659, a nd Chapman , 386 U.S. at 24, was r easonable . We recognize that i t appear s from the Appell ate Divi sion’s opinion t hat it determi ned that

both the per
se prejudi ce rule of Cro nic and the harmless er ror st andard of Chapman applie d to the absences of Scherzers’ counsel during trial. As the two standards ar e mutuall y exclusive, how ever, it w ould be un reaso nable to app ly both to a single s ituation . Tak en in th eir sepa rate co ntexts, h ow ever, w e con clude that the two discu ssions wo rk in co ncert to prod uce a reaso nable applic ation o f Su prem e Co urt pre cede nt. The Appellate Divisi on used the term “cri tica l st age” when discuss ing the testimony of Dr. Burgess, a psy chologis t who testifie d as to whether M.G. exhibit ed the sympt oms of rape tr auma syndr ome, rel yi ng, in part, on depictions of the rape dra wn by M.G. The Appellate Divi sion had alreadyconcluded that the tri al court committed e rror by allo win g D r. Bu rge ss to testif y on th e su bjec t of r ape trau ma syndr om e. Scherzer , 694 A.2d at 218. It l imit ed that ruli ng, st ating “ We believe that err or had the c apacity t o taint the jur y ver dict onl y as to Count Three, penetration by force or coe rcion. ” Id . The defendants ’ convict

ions on Count Three , however, were vacated bec ause the St ate had fail ed to pres ent suffi cient evidence t o prove the e lements to a reasonabl e jury . The Ap pellate D ivision determ ined th at the tes timon y had no impa ct on th e rem aining coun ts11

of th e de fen dan ts’ co nvi ction
. Id . at 21 9. Similarly, the Appellate D ivision held that the trial judge im properly allowed Dr. Burgess to testi fy about the drawings made by M.G. However, the drawings “had no cap acity to prejud ice th e jur y” on the r em ainin g C oun t Tw o. Id . The st ate had pr esented evide nce, th roug h the te stimo ny of C hristop her A rcher’ s broth er Pa ul, wh o pled guilty to charges arisi ng from the same i ncident prior to trial, that bot

h Kevin and Christ opher had eng age d in the a ction s de scrib ed b y Dr. B urg ess. The A ppellate Division’s determination that t he testimony of Dr. Burgess was a “crit ical stage” must

be viewed in this cont ext. While the Appell ate Divi sion di d identi fy Dr. Burgess’ s test

imony as a crit

ical stage, it had a lready obviate d any pr ejudic e that could have come fr om that t esti mony by vacati ng the defendant s’ convi ctions on Count Three. We cannot s ay t hat the Appellat e Divisi on’s deci sion t o refuse t o extend Cro nic ’s presu mp tion of prejud ice to a portion of the proc eedin gs tha t had n o eff ect on the ultim ate outcome was unreasonable. In the s ame way, t

he Supreme Court has not yet spoken on whether t

he Cro nic presumpti on of prejudi ce appli es where counselis t emporaril y abs ent from non-c ritical stages of tri al. The Appellate Divisi on made painst aking revi ew of the recor d, examini ng the effect

of each absence. Given this , we cannot conclude that their decisi on that t

he temporary absences of the Scherzers’ counsel did not cr eate a structur al defect, as t hose6 The Supreme Court has caut ioned that “[t ]he federa l habeas c ourt shoul d not trans form the i nquiryinto a s ubjective one byresting it s determinati on inst ead on the simp le fac t that at lea st one of the Na tion’s ju rists has a pplied the rele vant f edera l law in the same manner t

he state court di d in the habeas peti tioner ’s case .” Wil li ams , 529 U .S.at 410. We may not, theref ore, bas e our concl usion that theAppellat e Divisi on’s opini on was reasonabl e simply

on the fact

that at lea st one court has ruled in t he same manner as theydid. However, that t he Appellat e Divisi on’s concl usions here are i n line wit h the Eleventh Circuit’ s ruli ng in Vines , 28 F.3d at 1129, serves to bol ster

our determinati on that i t wa s rea son able
. Scherzer , 694 F.2d at 240. 7 We recognize the inhere nt tens ion between this ar gument and Kevin’s e arli er arg um ent th at he wa s lef t wi tho ut re pre sen tatio n du ring critic al po rtion s of the tr ial. A conf lict of inte rest can exist on ly insofar a s Kyle’s a ttorney ac tually repre sented Ke vin while Kevin’s attorney was abs ent. Thus, the Scherzers ’ confli ct argument reli es upon joint repres entation. Conver sely , the Scherzers ’ argument t hat the y were deni ed representation d uring a “critical stage” o f the trial inherently requires a finding that there was no such joi nt repr esentat ion. Becaus e both argument s fail , however, we need not resol ve this tensi on. 12 with which Cro nic was concerned, was unreasonabl e. 6 466 U .S. at 659. The tempora ry ab se nc es of

Kev in Sch er ze r’ s c oun se l, th er ef or e, do n otpr ovi de a b as is upo n wh ic h we may grant

habeas rel ief. B. The Scherzers also cl aim that their Sixth Amendment ri ghts were vi olate d when Kyle S cherz er’s attor ney repre sented Ke vin, be caus e K evin’s interests conf licted w ith those of hi s brothe r Kyl e. 7 The y argue th at the jo int repre sentatio n vio lated th eir Sixth Amendment right t o counsel whose l oyal ty was “untrammeled and uni mpaired, ” citing Glasser v. United Stat

es , 315 U.S. 60, 70 (1942). The Appellate Divisi on acknowledged that “[ t]here w as a p otentia l for co nflict o f intere st betw een K yle and K evin, a s a po ssible trial strateg y for K yle wou ld hav e bee n to m inimiz e his inv olvem ent in th e sex ual ass aults and to argu e he w as not an ac comp lice of [his] cod efenda nts becaus e he did n ot share13

their purpose. ” Scherzer , 694 A .2d at 244. T he A ppellate D ivision determin ed that “[i]n light of the pot ential confl ict of interest and t

he absence of an express waiver by Ky le, he was deprived of hi s Sixth Amendment ri ght to a c ounsel whose l oyal ty was untrammeled and unimpair ed.” Id . (interna l quo tation a nd cita tion om itted). N oneth eless, the Ap pellate Divisi on concluded that “whil e Kyle a nd Kevin may have i n theoryhad a potential confli ct of i nteres t, i n fact, the defens e str ategychosen by them resul ted in t here bei ng no confli ct bet ween their

positions at

tri al, because both defendants had the same i nteres t and plan. ” Id . Ap plying Ne w J erse y law , State v . Land , 372 A.2d 297 (N.J . 1977), the Appellat e Divisi on concluded that “the consis tent t rialstrategyof all defense counsel resul ts i n the constitutional e rror be ing harmle ss bey ond a reasonabl e doubt. ” Scherzer , 694 A.2 d at 2 44. Althou gh the A ppellate D ivision did not cite to the a ppropriate S uprem e Cou rt prece dent, w e hold that its co nclus ion is n either “ contra ry to,” nor a n “un reaso nable applic ation,” o f clea rly establishe d fed eral law as articu lated b y Supre me C ourt p reced ent. Wil li ams , 529 U.S. at 407. The Supr eme Court requi res that “i n order t o establ ish a violation of the Sixth Am endment, a defendant w ho raised no objection at trial must demonstrate that

an actual conflict

of interest

adversely affected [the defendant’s] lawyer ’s perf

ormance.” Cuyler v. Sulli van , 446 U .S. 335, 348 (1980) (em phasis add ed). See also , Bur

ge r v . K emp , 483 U.S. 776, 783 (1987) (prejudic e is pr esumed “onlyif the defendant demonst

rates that c ounsel act

ively repres ented confl icti ng interests and that a n actualconfli ct of i nteres t advers elyaffected hi s lawy er’s pe rformance” ( internal14

qu ot ati on s o m itte d) ). T he re is n o p re su m pt io n o f p reju di ce w he re th er e is sim pl y a potential for con flict. Glasser , 315 U.S . at 76
. The Scherzers identi fy onl y one i nstance t hat coul d be deemed an actual , rat her than a pot entia l, c onflic t of interest . Dr. Burges s rel ied upon, in part , drawings made by M.G. depicti ng the rape , showing Kevin wit h a great er invol vement than Ky le. At the time the te stim ony w as g iven , Kyle ’s atto rne y wa s rep rese ntin g bo th K evin and Kyle
. The Scherzers contend that the fail ure of Kyl e’s attorneyto ask ques tions at that point was result

of a confli ct bet ween his dutyto Kevin to i mpeach the witne ss and inquire as to whether t

he perpetrator

was not, i n fact, Kyle, and his duty t o protect Kyle fr om such imp eac hm ent. This argument

suffers f rom the same i nfirmit

y pr esent i n the Scherz ers’ absence of
coun sel arg um ent. T he A ppella te Div ision d eterm ined th at allow ing D r. Bur gess to testify on this topic was i mproper and vacated Count Three as a result . Any pr ejudic e wh ich co uld h ave re sulted f rom her tes timon y had alre ady bee n ob viated by the A ppella te Divisi on. We consider

the Appell ate Divi sion’s decisi on not to extend the pre sumption of pr eju di ce re qu ire d b y Cro nic reasonabl e under the circumst ances. 466 U. S. at 661. Furth er, the A ppella te Div ision d eterm ined th at Ke vin an d K yle had c hose n no t to pursue a defens e str ategyof minimizi ng their respective invol vement in t he rape. Scherzer , 694 A.2d at 244. The A ppellate Division was convinced bas ed on the entire r ecord that the t hree defendant s, Kevin, Kyle, and Arc her, pre sented a joint d efen se in w hich th e trial attorn eys did n ot attem pt to distinguis h their

clie nts or t

heir conduc t from the other def endants. The strategy of each defendant , as s hown from their ope ning thr ough their closi ng arguments, was15

to est ablis h that M.G. cons ented t o the sexualacti viti es, t o deny t hat M.G. was me ntall y def ectiv e, an d to attac k th e pr ose cutio n an d its c ase . Id . at 240-41. As the Appellat e Divisi on noted, Paul Archer testi fied that Kevin Scher zer and Ch risto phe r A rch er h ad b een inv olv ed in the a ctua l pen etrat ion of M .G. Id . at 21 9. The Scherzers do not conte nd that Kevi n’s attorneywas absent during thi s test imony, or that Kevi n’s attorneydeviat ed from thei r trial s trategy during Paul Archer ’s te sti mony by asking the q uestions that they argue K yle Scherzer’s attorney failed to ask during D r. Burgess’ testi mony. I t appear s, then, that the Scherzers had a str ategi c basis for deci ding not to poi nt finge rs at

one another . Thus, any confl ict of interest was si mply a potentia l
one . Cf. Burger , 483 U.S. at 784 (acknowle dging that strategic reasons f

or argui ng lesse r culpa bility may exist a nd m ay not be related to any po tential co nflict o f intere st); Cuyler , 446 U. S. at

348 . T he de fe ndant s thus fa il ed to sh ow a n a ctua l c onf li ct of in te re st . A s such, t he Appellat e Divisi on’s det ermination that the pote ntialconfli ct of i nteres t never mate rialized in to an a ctual o ne, an d that n o Six th A men dm ent vio lation o ccurre d, is reasonabl e. IV. The defendants fur

ther ar gue that

their Sixth Amendment ri ght to a f air and imparti al jur

y was vi olate d by the juror s’ pray ers t hat occurred each daybefore trial , as well as by the exposure of a few jurors, during a break in t rial, to their co-workers’ state me nts a bou t the d efe nda nts’ g uilt. W e dis agr ee. M u’M in v. V irginia , 500 U.S. 415, 427 (1991), counsels that “ our own cases have s tres sed the wide di scretion granted to the tri al court

in conducting voir dire in the area of pret rialpublici ty and in othe r areas of16

inquiry that might

tend to s how juror bi as.” Rel yi ng on this Court’s precedent and upon New Jersey l aw, the Appell ate Divi sion concl uded that the trial j udge had made the
re qu isi te “ pr ob in g i nq ui ry in to th e p os sib le p reju di ce ca us ed by a ny j ur y irr eg ul ar ity, rely ing on his or her own object ive eval uation of

the pote ntialfor prej udice rather t han on the jurors’ s ubjective eval uation of their own impartia lit

y. ” Scherzer , 694 A.2 d at 2 58. Our rev iew of the record co mpo rts with that of the A ppellate D ivision: the trial court judge thoroughly questi oned the j urors, dischar ged those he f ound lacki ng, and ensured that t he ju ry wa s no t tain ted. V. De fend ants n ext cla im tha t the pro secu tor imp rope rly comm ented on b oth the ir beha vior at tria l and th eir failu re to testif y in violation of the Fifth A men dm ent righ t to
rema in silent, th eir Sixth Am endm ent righ t to a fa ir trial, and th eir Fo urteen th Amendment due process ri ght. Revi ewing the re cord, t he Appellat e Divisi on recogniz ed that “[p]rosecutori al misconduct . . . will not warrant reversalunless the conduct was so egregious so as to de prive def endant of a fair trial. ” Id . at 230. After c areful ly reviewing each of the al legedl y i nappropri ate comments, the Appell ate Divi sion concl uded that “any poss ible inf ringem ent on defe ndan ts’ right to silence did n ot rise to th e leve l of rev ersible
error because of the effecti ve acti on of the trialjudge in re-est ablis hing in t he minds of the jurors the importanc e of [the right to sil ence]. ” Id . at 234. When consideri ng prosecut orialmisconduct, we must determi ne whether “the prosecut or’s r emarks . . . so i nfected t he tri al[] wit

h unfairne ss as t o make the res ulti ng17

conviction a deni al of due pr ocess. ” Donnelly v. DeC hristoforo , 416 U.S. 637, 643 (1974) (internal citations and qu otations om itted). A trial court may not perm it comm entary either o n the d efen dants ’ silence , or on their fa ilure to e xplain “any ev idenc e or fa cts against him which the defendant can reasonably be expected to deny or explain because of the fact s withi n his knowledge. ” Griffin v. Ca lifornia , 380 U.S. 609, 610 (1965). The prosecutor’s comments here can fairly be characterized as comments on the defendants’ failure to live u p to p rom ises m ade d uring oral arg um ent. Fu rther, an y inappro priate stat ements made by the pros ecutor were met immediat elywith a correcti ve inst ructi on by the trial c ourt, which reminded t he jurythat t

he defendants had neither a burden of proof, nor an obli gation to testify . On these fa cts, the pros ecutor’ s acti ons did not “so infec t[] the tr ial w ith u nfa irne ss as to m ake the r esu lting con victi on a den ial of due pro ces s.” Do nnelly , 416 U.S. 643. The A ppellate Division’s rejecti on of the defendants’ claims, therefore, w as neither con trary to, nor an unreason able application o f, Suprem e Cou rt pre ced ent. VI. Lastly , the defendants lis t multiple a ctions taken bythe pros ecutor whic h they argue, c onsider ed cumulati vely , viol ated their right to due process . The cumulative effect of the prosecutor’s acti ons must be reviewed against the standard of whether they “so infect ed the trialwith unfai rness as to make the resulting convic tion a de nial of due process. ” Do nnelly , 416 U.S. at 643. Our r eview of the r ecord le ads to t he conclusi on that t he Appellat e Divisi on’s det ermination that any mis conduct bythe pros ecutor was18

amelior ated bythe trial j udge’s actions was a re asonable application of t he standard set forth i n Do nnelly . They do not, t herefore, provide a ba sis upon which we may grant reli ef. Fina lly , the Appellat e Divisi on's de terminations with res pect t o the othe r all eged instances of trial cou rt error likewise w ere reasona ble applications o f Supre me C ourt prece dent. VII. Kyle Sch erze r ch allen ges the tr ial co urt's in struc tion on a cco mp lice lia bility. However, because hi s argument r elie s whollyon stat e law int erpret ation, it maynot be
ma intai ned in a f ede ral h abe as p roc eed ing
. Carpenter v. Vaughn , 296 F.3d 138, 153 (3d Cir. 2002) . To the extent Kyl e Scherzer 's c laims a c onsti tuti onal viol ation, we hold that the A ppella te Div ision's de cision w as no t “an u nreas onab le app lication o f[] cle arly establish ed F edera l law, a s deter mine d by the S upre me C ourt.” 2 8 U .S.C. § 225 4(d); see also Henderson v. Kibbe , 431 U .S. 145, 154 (1977). VIII. For th e fore goin g reas ons w e dete rmine that the Ap pellate D ivision reaso nably app lied t he p ertin ent S upr em e C our t pre ced ent to eac h of the a llege d tria l infi rmit ies. Gi ve n o ur

l i mi t ed st an dar d o f r ev i ew , we de cl i ne t o i ss ue t he r eq ue sted wr i t s. We ther efo re af firm the ju dgm ent o f the Dis trict C our t.