NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JAMES JOSEPH KRIVACSKA, :

Civil Action No. 11-3729 (FLW)

Petitioner, :

v. : OPINION

GARY LANIGAN, :

Respondent. :

APPEARANCES:

Petitioner pro se

James Joseph Krivacska

SBI 1061128C/03054

8L

Adult Diagnostic & Treatment Center

8 Production Way

Avenel, NJ 07001

Counsel for Respondents

Mary R. Juliano

Monmouth County Prosecutor’s Office

Monmouth County Court House

71 Monument Park

Freehold, NJ 07728-1261

WOLFSON, District Judge

Petitioner James Joseph Krivacska (“Petitioner”), a prisoner

currently confined at the Adult Diagnostic & Treatment Center,

has submitted a petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254. The respondent is Gary Lanigan.

For the reasons stated herein, the Petition must be denied.

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I. BACKGROUND

The relevant facts are set forth in the opinion of the

Superior Court of New Jersey, Appellate Division. “[Krivacska] 1

was tried by a jury for sexual offenses against two thirteenyear-old mentally challenged boys, referred to as T.A. and M.B. 

He was convicted of one count of first-degree aggravated assault

(M.B.), N.J.S.A. 2C:14-2a(2); two counts of second-degree child

endangerment (T.A. and M.B.), N.J.S.A. 2C:24-4a; and two counts

of third-degree aggravated criminal sexual contact, (T.A. and

M.B.) N.J.S.A. 2C:47-1 to 10.” That court excerpted a large 2

segment of relevant facts, taken from its earlier opinion, which

this Court will incorporate here for the sake of brevity. 

The subsequent procedural history is as follows : Defendant 3

appealed the judgment of conviction, which was affirmed by the

Appellate Division in an opinion dated April 23, 2001. The

Supreme Court of New Jersey denied certification, and his

petition for certiorari was denied by the United States Supreme

 Pursuant to 28 U.S.C. § 2254(e)(1), “In a proceeding 1

instituted by an application for a writ of habeas corpus by a

person in custody pursuant to the judgment of a State court, a

determination of a factual issue made by a State court shall be

presumed to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and convincing

evidence.”

Answer, Ex. #59, Opinion of Appellate Division at 1 2

(November 20, 2009). 

See Answer, Ex. #59, Opinion of Appellate Division at 11- 3

21, 45 (November 20, 2009). 

2

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Court. Defendant filed his petition for post conviction relief

(PCR). PCR was denied as to all issues, and the Appellate

Division affirmed. 

Petitioner asserts the following ground for relief:

(1) “GROUND ONE: Admission of TA/MB’s Wholly Unreliable

Testimony, and MB’s Incompetent Testimony, Individually and

Cumulatively, Violated Federal Due Process, Rendering Trial

Fundamentally Unfair.”

(2) “GROUND TWO: Erroneous Admission and Reliance Upon

Unvalidated Expert Testimony in Determination of

Admissibility of TA/MB’s Testimony Violated Federal Due

Process.”

(3) “GROUND THREE: Defendant was denied effective assistance of

counsel in violation of the Sixth Amendment at Pre-trial

Competency/Michaels’ hearing and at trial.”

(4) “GROUND FOUR: Denial of access to TA/MB’s school records

which were relevant and material to defense, violated

federal due process and Confrontation Clause guarantees.”

(5) “GROUND FIVE: Reasonable Probability That Outcome of PreTrial Hearing As To TA/MB’s Reliability Would Be Different

Based on Newly Discovered Evidence (NDE) Disaproving

Validity of Expert Hall’s Methods.”

(6) “GROUND SIX: Cumulative Effect of Counsel’s Errors and

Cumulative Effect of Constitutional Violations (Ineffective

Assistance, Due Process, Confrontation Clause and Brady

Claims) Violated Constitutional Rights and Had

Substantial/Injurious Effect on Jury Verdict.”4

II. 28 U.S.C. § 2254

As amended by the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), 28 U.S.C. § 2254 now provides, in pertinent

part:

The Supreme Court, a Justice thereof, a circuit judge,

or a district court shall entertain an application for

a writ of habeas corpus in behalf of a person in

custody pursuant to the judgment of a State court only

See Petition, docket entry no. 1. Any grammatical or 4

spelling errors are Petitioner’s own.

3

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on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.

28 U.S.C. § 2254 (a).

With respect to any claim adjudicated on the merits in state

court proceedings, the writ shall not issue 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 determinated 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.

28 U.S.C. § 2254(d).

A state court decision is “contrary to” Supreme Court

precedent “if the state court applies a rule that contradicts the

governing law set forth in [Supreme Court] cases,” or “if the

state court confronts a set of facts that are materially

indistinguishable from a decision of th[e] Court and nevertheless

arrives at a result different from [the Court’s] precedent.” 

Williams v. Taylor, 529 U.S. 362, 405-06 (2000) (O’Connor, J.,

for the Court, Part II). A state court decision “involve[s] an

unreasonable application” of federal law “if the state court

identifies the correct governing legal rule from [the Supreme]

Court’s cases but unreasonably applies it to the facts of the

particular state prisoner’s case,” and may involve an

“unreasonable application” of federal law “if the state court

4

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either unreasonably extends a legal principle from [the Supreme

Court’s] 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,” (although the Supreme Court expressly

declined to decide the latter). Id. at 407-09. To be an

“unreasonable application” of clearly established federal law,

the state court’s application must be objectively unreasonable. 

Id. at 409. In determining whether the state court’s application

of Supreme Court precedent was objectively unreasonable, a habeas

court may consider the decisions of inferior federal courts. 

Matteo v. Superintendent, 171 F.3d 877, 890 (3d Cir. 1999).

The deference required by § 2254(d) applies without regard

to whether the state court cites to Supreme Court or other

federal caselaw, “as long as the reasoning of the state court

does not contradict relevant Supreme Court precedent.” Priester

v. Vaughn, 382 F.3d 394, 398 (3d Cir. 2004) (citing Early v.

Packer, 537 U.S. 3 (2002); Woodford v. Visciotti, 537 U.S. 19

(2002)).

Finally, a pro se pleading is held to less stringent

standards than more formal pleadings drafted by lawyers. Estelle

v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S.

519, 520 (1972). A pro se habeas petition and any supporting

submissions must be construed liberally and with a measure of

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tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998);

Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989).

III. ANALYSIS

A. State Court Evidentiary Issues (Ground One, Two, Four, Five)

Petitioner claims that the trial court erred with respect to

admission of T.A. and M.B.’s testimony, admission of expert

testimony regarding admission of T.A. and M.B.’s testimony,

denial of access to T.A. and M.B.’s school records, and exclusion

of additional expert reports from the pre-trial hearing. 

It is well-established that the violation of a right created

by state law is not cognizable as a basis for federal habeas

relief. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“We have

stated many times that ‘federal habeas corpus relief does not lie

for errors of state law.’” (quoting Lewis v. Jeffers, 497 U.S.

764, 680 (1990))). Accordingly, Petitioner cannot obtain relief

for any errors in state law evidentiary rulings, unless they rise

to the level of a deprivation of due process. Estelle, 502 U.S.

at 70 (“‘the Due Process Clause guarantees fundamental elements

of fairness in a criminal trial’”) (quoting Spencer v. Texas, 385

U.S. 554, 563-64 (1967).

For a habeas petitioner to prevail on a claim that an

evidentiary error amounted to a deprivation of due process, he

must show that the error was so pervasive as to have denied him a

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fundamentally fair trial. See Keller v. Larkins, 251 F.3d. 408,

413 (3d Cir. 2001). Petitioner has made no such showing here. 

The Appellate Division addressed and rejected each of the 

claims Petitioner has made regarding evidentiary error. 

As to the claims regardng T.A. and M.B.’s competence to

testify, the Appellate Division stated:

We now address the pivotal question whether the judge

erred by finding T.A. and M.B. competent to testify. [...] 

[E]very person is presumed competent to testify. State v.

Scherzer, 301 N.J. Super. at 463. Disqualification “is the

exception to the general rule of witness competency.” Ibid. 

The determination of whether a person is competent to serve

as a witness lies within the discretion of the court. State

v. R.W., 104 N.J. at 19 (citing State v. Butler, 27 N.J.

560, 602 (1985); State v. Gambutti, 36 N.J. Super. at 223).

Our Supreme Court has said that “[t]he broad reliance

on the discretion of the trial court and the standards

governing individual competency determinations do not change

when the proposed witness is youthful.” Id. at 20; see also

State in the Interest of R.R., 79 N.J. 97, 112-113 (1979). 

The same rules apply in determining the competency of

individuals afflicted by mental retardation or mental

illness. See State v. Scherzer, 301 N.J. Super. at 463.

Applying these principles, we discern no sound basis to

disturb the trial judge’s decision. In reaching this

conclusion, we have considered the fact that M.B. apparently

fabricated rather freely in portions of his trial testimony. 

M.B. testified at some length to an imaginary conversation

he allegedly had with T.A. at the Center’s playground. 

Defendant emphasizes that this fictitious conversation

evidenced M.B.’s inability to distinguish truth from

fantasy. The fact remains, however, that both T.A. and M.B.

were adjudged to be competent based upon substantial,

credible evidence presented at the competency hearing. That

M.B. subsequently fabricated an event that in fact did not

occur was a matter for the jury’s consideration.5

Answer, Ex. #43, Opinion of Appellate Division at 37-38 5

(April 23, 2009).

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Regarding the trial court’s consideration of unvalidated

expert testimony of Dr. Witt with respect to T.A. and M.B.’s

competence to testify, the Appellate Division stated:

That leads us to defendant’s claim that the trial judge

erred by admitting, and relying upon, Dr. Hall’s expert

testimony concerning question of taint. In support of his

argument, defendant asserts that Hall “used an idiosyncratic

clinical approach to conclude that T.A. and M.B. were

reliable because they resisted the suggestions” contained in

several of the questions propounded. (Footnote omitted.) 

We note that Hall had substantial experience in questioning

victims of sexual abuse. Her reliance upon the alleged

victims’ refusal to bend their answers to meet the

suggestions advanced in their interviewers’ inquiries would

seem to comport with common sense and common experience. In

any event, Hall’s testimony was of a nature to assist the

judge in understanding whether the victims’ statements and

trial accounts were reliable or contaminated. See N.J.R.E.

702. We conclude that her testimony: (1) concerned a

subject beyond the ken of the average person, (2) pertained

to a field of inquiry that was sufficiently reliable, and

(3) fell within the purview of the witness’s expertise. 

State v. Kelly, 97 N.J. 178, 208 (1984). 

There is no question but that T.A. and M.B. were not

ideal witnesses. So too, it is plain that several of those

who interviewed the alleged victims were less than sensitive

in the techniques they employed. We are nonetheless

entirely satisfied that the trial judge was not wide of the

mark in his essential finding that T.A. and M.B. retained

their ability to give a full and fair account of what

happened to them in their private sessions with defendant.

[...]

We recognize the deficiencies in Witt’s qualifications. 

We are nevertheless satisfied that the trial judge properly

exercised his discretion in determining that Will was

qualified to testify as an expert witness. The sufficiency

of a proposed expert’s qualifications is a matter best left

to a trial court’s discretion, and is to be reversed only

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for manifest error. (Citations omitted.) We perceive no

abuse of the judge’s discretionary powers here. 

6

As to the denial of access to T.A. and M.B.’s school

records, the Appellate Court noted: 

We add for the sake of completeness that the judge’s

denial of defendant’s pretrial motion to examine the alleged

victim’s school records was not violative of the right of

confrontation. A child’s school records are confidential,

and access to their contents is limited. See N.J.A.C. 6:3-

6.4, -6.5; N.J.A.C. 6A:14-2.9. Under some circumstances, a

defendant’s right of confrontation may trump a juvenile

witness’s right of privacy. See, e.g., Davis v. Alaska, 415

U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). We assume,

therefore, that school records relevant to the issue of

competency of a child witness should be disclosed to a

defendant upon a showing of particularized need. 

This much conceded, “allowing a defendant to forage for

evidence is not an ingredient of either due process or

fundamental fairness in the administration of criminal

laws.” State v. R.W., 104 N.J. 14, 28 (1986). The

Confrontation Clause is not a constitutionally compelled

right to discovery in a criminal case. Pennsylvania v.

Richie, 480 U.S. 39, 52-53, 107 S.Ct. 989, 999, 94 L.Ed.2d

40, 54 (1987). It does not require disclosure of any and

all information that perhaps might be useful in

contradicting unfavorable testimony. Ibid.; see also State

v. Harris, 316 N.J.Super. 384, 397-98 (App. Div. 1998).

We are convinced that the trial judge properly balanced

the alleged victims’ right to privacy with defendant’s right

of confrontation by examining the school records in camera. 

This procedure has been recommended by the Supreme Court,

see State v. Boiardo, 82 N.J. 446, 467 (1980), and by this

court, (citations omitted), in a wide variety of factual

settings. The judge correctly applied that procedure here. 

Within that context, we find no merit in defendant’s

claim that only an expert would know what to look for in the

school files of the alleged victims. The judge was fully

aware of the factual and legal issues raised, and had the

Answer, Ex. #43, Opinion of Appellate Division at 27-28 and 6

33 (April 23, 2009).

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ability to make reasoned decisions concerning what was

relevant and what was not. We thus find no constitutional

violation.7

Finally, as to the two expert reports which Petitioner has

characterized as “newly discovered evidence” (these reports were

apparently based on additional research conducted after the

trial), the Appellate Division noted that “if such proofs were

available, defendant would not be entitled to the new trial he

now requests inasmuch as he has failed to establish how this

evidence could not have been discovered before trial by the

exercise of reasonable diligence.”8

Thus, the Court does not find that Petitioner was deprived

of due process with respect to any of the issues discussed in

this section. The decision of the Appellate Division is neither

contrary to, nor an unreasonable application of, clearly

established federal law, nor is it a decision based on an

unreasonable determination of the facts in light of the evidence

presented. 

Furthermore, Petitioner has not pointed this Court to any

precedent in support of his position that the trial court erred

in the above referenced instances. Therefore, all grounds

Answer, Ex. #43, Opinion of Appellate Division at 35-37 7

(April 23, 2009).

Answer, Ex. #59, Opinion of Appellate Division at 28-29 8

(November 20, 2009).

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related to trial court error will be denied as Petitioner is not

entitled to relief on these grounds.

B. Ineffective Assistance of Trial Counsel (Ground Three)

In the third ground raised in the Petition, Petitioner

argues that he was denied effective assistance of counsel at the

pretrial competency hearing conducted pursuant to State v.

Michaels, 136 N.J. 299, 642 A.2d 1372 (N.J. 1994), and also at

trial. Specifically, Petitioner alleges that trial counsel

failed to consult experts regarding the methodology of the

State’s expert witnesses regarding victims’ competence to testify

at trial, failed to challenge the victims’ testimony at the

Michaels hearing, failed to cross-examine victim M.B. regarding

prior inconsistent statements, and failed to request certain jury

instructions as to “other crimes” evidence. 

The Counsel Clause of the Sixth Amendment provides that a

criminal defendant “shall enjoy the right ... to have the

Assistance of Counsel for his defence.” U.S. Const. amend. VI. 

The right to counsel is “the right to effective assistance of

counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)

(emphasis added).

To prevail on a claim of ineffective assistance of counsel,

a habeas petitioner must show both that his counsel’s performance

fell below an objective standard of reasonable professional

assistance and that there is a reasonable probability that, but

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for counsel’s unprofessional errors, the outcome would have been

different. Strickland v. Washington, 466 U.S. 668, 687, 694

(1984). A “reasonable probability” is “a probability sufficient

to undermine confidence in the outcome.” Strickland at 694. 

Counsel’s errors must have been “so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.” 

Id. at 687. “When a defendant challenges a conviction, the

question is whether there is a reasonable probability that,

absent the errors, the factfinder would have had a reasonable

doubt respecting guilt.” Id. at 695.

The performance and prejudice prongs of Strickland may be

addressed in either order, and “[i]f it is easier to dispose of

an ineffectiveness claim on the ground of lack of sufficient

prejudice ... that course should be followed.” Id. at 697.

There is “a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.” 

Strickland, 466 U.S. at 689. As a general matter, strategic

choices made by counsel after a thorough investigation of the

facts and law are “virtually unchallengeable,” though strategic

choices “made after less than complete investigation are

reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation.” Id. at 690-

91. If counsel has been deficient in any way, however, the

habeas court must determine whether the cumulative effect of

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counsel’s errors prejudiced the defendant within the meaning of

Strickland. See Berryman v. Morton, 100 F.3d 1089, 1101-02 (3d

Cir. 1996).

As to the issue of ineffective assistance of counsel, the

Superior Court of New Jersey Appellate Division noted that the

PCR court rejected Petitioner’s assertions that trial counsel was

ineffective with respect to, including but not limited to, the

issues raised in the instant Petition, and found that none of the

issues raised by Petitioner in his challenge to the PCR division

warranted reversal of the PCR court’s determination. The

Appellate court cited to Strickland, noting that “[i]t is

axiomatic that in order for defendant to obtain relief based on

ineffective assistance grounds, he is obliged to show not only

the particular manner in which counsel’s performance was

deficient, but also that the deficiency prejudiced his right to a

fair trial.”9

Here, the state court decisions were neither contrary to,

nor involved an unreasonable application of, clearly established

federal law, nor were they based upon an unreasonable

determination of the facts in light of the evidence presented. 

Thus, Petitioner is not entitled to relief on this claim. 

Answer, Ex. #59, Opinion of Appellate Division at 25 9

(November 20, 2009).

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C. Cumulative Errors (Ground Six)

In his last ground for relief, Petitioner argues that the

cumulative effect of errors violated his constitutional rights

and had a detrimental effect on the jury verdict. The test for a

“cumulative error” claim is whether the overall deficiencies “so

infected the trial with unfairness as to make the resulting

conviction a denial of due process.” See Hein v. Sullivan, 601

F.3d 897, 917 (9th Cir. 2010)(relying on Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1794); see also Fahy v. Horn,

516 F.3d 169, 205 (3d Cir. 2008)(“Cumulative errors are not

harmless if they had a substantial and injurious effect or

influence in determining the jury’s verdict, which means that a

habeas petitioner is not entitled to relief based on cumulative

errors unless he can establish ‘actual prejudice’”).

Petitioner raised his cumulative error claim in his state

PCR proceedings. Because the PCR court found no merit to any of

Petitioner’s claims for post-conviction relief, there is no basis

or merit for habeas relief based upon an alleged accumulation of

errors which did not exist.

In addition, Petitioner does not make any assertions that

would suggest actual prejudice. After careful consideration of

the state court record, this Court cannot find any aspect of

Petitioner’s criminal proceedings suggesting prejudice. 

Accordingly, this claim does not merit habeas relief, since the

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state court’s dismissal of Petitioner’s cumulative error argument

was not an unreasonable application of Supreme Court precedent. 

IV. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or

judge issues a certificate of appealability, an appeal may not be

taken from a final order in a proceeding under 28 U.S.C. § 2254.

A certificate of appealability may issue “only if the applicant

has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree

with the district court's resolution of his constitutional claims

or that jurists could conclude the issues presented are adequate

to deserve encouragement to proceed further.” Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003).

Here, Petitioner has failed to make a substantial showing of

the denial of a constitutional right. No certificate of

appealability shall issue.

V. CONCLUSION

For the reasons set forth above, the Petition must be

denied. An appropriate order follows.

 /s/ Freda L. Wolfson 

FREDA L. WOLFSON

United States District Judge

Dated: September 25, 2012

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