SIMANDLE, Chief Judge:
I. INTRODUCTION
Petitioner is a state prisoner and is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury of various distributing and conspiracy to distribute controlled dangerous substances offenses. He is currently serving a sentence of twenty years imprisonment with a ten-year parole disqualifier. Petitioner raises six claims in this habeas petition; specifically:
1. Due process violation when the trial court permitted a detective to testify that she obtained a photograph of petitioner from the Department of Corrections;
2. Due process violation when the trial court failed to charge the jury with a limiting instruction concerning the testimony that petitioner's photograph was obtained from the Department of Corrections;
3. Due process violation when the trial court failed to grant a mistrial when it improperly permitted expert testimony;
4. Due process violation when the trial court failed to suppress wiretap recordings;
5. Due process violation when the trial court failed to grant petitioner a mistrial due to the prosecutor's improper remarks during summation; and
6. Due process violation when the trial court failed to adequately respond to the jury's request for written jury instructions.
For the following reasons, the habeas petition will be denied.
II. FACTUAL AND PROCEDURAL BACKGROUND1
On March 30, 2006, Detective Katherine Curtin of the Cape May County Prosecutor's Office [FN 1] began an undercover investigation regarding Steven Hawk, a/k/a defendant Rasheed Amin. On that date, she obtained a photograph of defendant from the Department of Corrections (DOC) that she used to identify defendant and made the first of four hand-to-hand purchases of cocaine directly from him.
[FN 1] In March 2006, Curtin was a "grant employee"; she was hired as a full-time employee in June 2006 and given the title of detective at that time.
At the time of the first purchase, Curtin paid defendant $50 for .304 grams of cocaine. Defendant gave her his telephone number to use to contact him for additional purchases.
Using that telephone number, Curtin arranged a second purchase of cocaine from defendant for $100 on April 7, 2006. They met in a motel parking lot. A second motor vehicle pulled up; defendant went to that motor vehicle and returned to Curtin's vehicle, where he provided her with .732 grams of cocaine.
The third purchase occurred on April 19, 2006, at a shopping center parking lot. Curtin testified that defendant advised her that they had to wait for "his girl, [that] she was going to be bringing the stuff over, the stuff being the drugs, the cocaine." A motor vehicle arrived and co-defendant Keisha Jones exited and handed defendant a clear plastic bag containing 1.761 grams of cocaine. Curtin paid defendant $100 for the cocaine.
Curtin contacted defendant to arrange the fourth hand-to-hand transaction on April 26, 2006. Curtin testified that she requested $250 worth, or a quarter-ounce of cocaine, and gave him the money.
Defendant told her that he was going to take her "to his boys to get a heavier bag" and drove them to a drug store in North Cape May. A red Ford Taurus with two unidentified males pulled up. Defendant walked to the passenger side of the vehicle, stayed there briefly, and returned to Curtin with the cocaine.
When Curtin contacted defendant to arrange for a fifth purchase, he replied that he was in North Carolina but that he could set it up and "Angel" would be able to supply her. Defendant later called her, advised that he had spoken to Angel, and told her where to meet him. [FN 2] On May 5, 2006, Angel arrived at the designated meeting place, left his vehicle, approached Curtin's vehicle and entered. She asked if he was Angel; he answered affirmatively, and they discussed the drug purchase. Curtin gave him $100 and he gave her 1.97 grams of cocaine.
[FN 2] Angel was later identified as co-defendant Randy L. Lewin.
Curtin called defendant on May 11, 2006 to arrange a sixth purchase. In a tape-recorded conversation, she asked him to contact Angel because he was not returning her calls. Defendant agreed to do so. After contacting Angel at a telephone number given to her by defendant, they met at a K-mart parking lot. A red Taurus pulled in to the parking lot with two males, one of whom was Angel. Curtin walked to the passenger side of his vehicle, where she purchased an additional quantity of cocaine for $100.
When Curtin was unsuccessful in attempting to contact Angel for another purchase, she again called defendant in North Carolina on May 19, 2006. In this tape-recorded conversation, Curtin negotiated for the purchase of an eight-ball, or one-eighth ounce of cocaine. Angel later called her and told her to call when she was ready to meet with him. They arranged to meet at a shopping mall parking lot, where Curtin purchased 3.193 grams of cocaine for $150.
Defendant was indicted [FN3] on seven counts of third-degree distribution of less than one-half ounce of cocaine, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (counts one, two, three, five, six, eight, ten); four counts of second-degree distribution of cocaine in a quantity of one-half ounce or more, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35(b)(2) (count twelve); and with being the leader of a narcotics trafficking network, N.J.S.A. 2C:35-3 (count thirteen) (the kingpin count).
[FN 3] Co-defendant Keisha Jones was indicted for distribution of cocaine (count three) and conspiracy to distribute cocaine (count four). Randy Lewin was indicted on two counts of distribution (counts six and eight) and two counts of conspiracy to distribute cocaine (counts seven and nine). Co-defendants Lonny R. Adams, Ray Rogers, Jaimi L. Hess and Pamela A. Randazzo were each indicted on two counts of possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (counts fourteen and fifteen).
Defendant moved for the suppression of his tape-recorded conversations with Curtin on the grounds that Curtin was not an "investigator or law enforcement officer" as defined in N.J.S.A. 2A:156A-2(f); that as a result, the State was required and failed to obtain the prior written approval of the Attorney General, the county prosecutor, or their designee, for recording the conversation pursuant to N.J.S.A. 2A:156A-4(c). Defendant also moved for the dismissal of the kingpin count and for the suppression of statements made by co-defendant co-conspirators pursuant to Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The trial court denied the motions.
There was also a pretrial discussion concerning the photograph Curtin obtained from the DOC and used to identify defendant. The prosecutor acknowledged that certain information on the photograph was prejudicial to defendant and should be redacted. Defense counsel requested further that the photograph should be excluded from evidence. The prosecutor maintained that thephotograph was necessary to the State's proof of identification. Defense counsel argued that it was unnecessary because "[w]e have all these other transactions. She's going to identify him in all other transactions. It's not an ID case." The court ruled that the state would be permitted to use a redacted photograph, provided there was no reference or description of the source of the photograph.
Defendant was acquitted on the kingpin count and convicted on counts one through twelve.
(Dkt. No. 12-7 at p. 2-6.)
Petitioner appealed his conviction to the Superior Court of New Jersey, Appellate Division. The Appellate Division affirmed on July 9, 2010. (See id.) Petitioner then filed a petition for certification to the New Jersey Supreme Court. On November 4, 2010, the New Jersey Supreme Court summarily denied the petition for writ of certification. (See Dkt. No. 12-8.)
On June 8, 2011, petitioner filed the instant federal habeas petition. Respondent has filed an answer in opposition to the petition.
III. APPLICATION LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws or treaties of the United States. See Engle v. Isaac, 456 U.S. 107, 119 (1982); see also Mason v. Myers, 208 F.3d 414, 415 n.1 (3d Cir. 2000) (citing 28 U.S.C. § 2254). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. 104-132, 110 Stat. 1214 (Apr. 24, 1996), applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the state court proceedings unless the state court's adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonableapplication 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 state court. See 28 U.S.C. § 2254(d).
As a threshold matter, a court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle set forth by the Supreme Court at the time the state court renders its decision." Id. (citations omitted). A federal habeas court making an unreasonable application inquiry should ask whether the state court's application of clearly established...
