Full opinion text
OPINION WALLS, District Judge. Petitioner, John Martini, Sr. is currently on New Jersey’s death row for kidnapping and murder. He now moves for writ of habeas corpus under 28 U.S.C. § 2254 on the following seven grounds. (1) ineffective assistance of counsel for failure to investigate and use at trial certain mitigating evidence; (2) ineffective assistance of counsel for failure to find and use drug paraphernalia in the form of several burned screens in the guilt and penalty-phase trials; (3) violation of Petitioner’s due process rights because of failure of the prosecution to turn over certain mitigating evidence discoverable under Brady v. Maryland; (4) violation of Petitioner’s due process rights and right to an impartial jury for the wrongful exclusion of prospective jurors; (5) subjection to cruel and unusual punishment because of the trial court’s refusal to instruct the jury as to N.J.S.A. 2C:ll-3c(5)(g), that the Petitioner rendered substantial assistance to the state in the prosecution of another person for the crime of murder; (6) violation of the Petitioner’s due process rights to a reliable sentencing proceeding and his subjection to cruel and unusual punishment because of the trial court’s “erroneous” answer to the jury’s question regarding mitigating evidence; (7) denial of Petitioner’s due process rights because of state court’s refusal to admit expert testimony during the post-conviction relief (“PCR”) hearing. The petition is denied on all grounds for the reasons stated below. FACTS AND PROCEDURAL HISTORY In 1990, a Bergen County jury convicted Martini of the kidnapping and murder of Irving Flax, a Fairlawn, New Jersey business executive. The evidence at trial established that Martini, and his codefendant Therese Afdahl, abducted Flax and demanded ransom money from his wife. Although his wife paid the money, Martini nevertheless shot Flax three times in the back of the head and killed him. During the trial, Martini did not dispute the fact that he kidnapped and fired the three shots that killed Flax. Instead, he asserted a diminished capacity defense based on cocaine addiction. The jury rejected that defense at both the guilt and penalty-phase trials. Martini was then sentenced to death. Martini’s conviction and death sentence were upheld by the New Jersey Supreme Court on direct appeal, State v. Martini, 131 N.J. 176, 619 A.2d 1208 (1993) (“Martini I”), and on proportionality review, State v. Martini 139 N.J. 3, 651 A.2d 949 (1994) (“Martini II”). After the United States Supreme Court denied Martini’s petition for certiorari on October 2, 1995, the Superior Court, Law Division, issued a warrant scheduling Defendant’s execution for November 15, 1995. On October 30, 1995, the Public Defender sought PCR review and a stay of execution on Defendant’s behalf, even though Martini did not wish to file any further appeals. In response, the trial court entered a stay and appointed independent counsel to represent Martini. The court also appointed a psychiatrist to determine whether Martini was competent to waive PCR proceedings. Following a two-day hearing, the court concluded that Martini was competent, and that the Public Defender could not pursue PCR on Martini’s behalf without his consent. The stay of execution was continued pending review by the New Jersey Supreme Court. In State v. Martini, 144 N.J. 603, 677 A.2d 1106 (1996) (“Martini III”), the New Jersey Supreme Court agreed with the trial court that the psychiatric evidence demonstrated Martini’s competence to make the waiver decision, but granted PCR review based on an independent interest of the State to ensure the fair application of the death penalty. In addition, the court in Martini III remanded the matter to the trial court for a PCR hearing to review “a defense based on certain undisclosed information that has been imparted to the Public Defender and presumably was not disclosed to the jury below” and two other issues which are not pertinent to this appeal. Martini III, 144 N.J. at 610-11, 677 A.2d 1106. On remand, the Public Defender attempted to present materials Martini considered confidential, claiming the information constituted mitigating evidence erroneously omitted at the penalty-phase trial. Yet Martini expressed his continued desire to keep this evidence confidential. The court conducted an in-camera inspection of the Public Defender’s submission, and ruled that Martini’s interest in maintaining the confidentiality of the submitted materials prevented their use in the PCR proceeding. The Public Defender sought and obtained leave to appeal the court’s decision to the New Jersey Supreme Court. That Court vacated the trial court’s order, and again remanded the matter to permit the judge to “reconsider the issue of the omission of mitigating evidence from Defendant’s penalty-phase trial.” State v. Martini, 148 N.J. 453, 690 A.2d 603 (1997) (“Martini IV”). The Court specifically directed the lower court to determine five issues related to the omission of this allegedly mitigating evidence, including: (1) “[wjhether the evidence was mitigating”; (2) “[i]f the evidence was mitigating, whether defense counsel’s failure to obtain the evidence constituted ineffective assistance of counsel, or whether the omission of the evidence constituted a manifest injustice and a violation of defendant’s constitutional rights, entitling defendant to post-conviction relief.” Id. at 454, 690 A.2d 603. On remand, the trial judge, after reviewing all of the confidential evidence, determined that the evidence was not mitigating. In rejecting Martini’s claims, the trial judge refused to allow two experts to testify on the mitigation value of the evidence, because he believed that to be unnecessary. Because he found the evidence was not mitigating, the trial judge determined that counsel’s failure to obtain it was not ineffective assistance of counsel. He determined that even if the evidence had some mitigating value, this value would be outweighed by Martini’s confidentiality interests in the evidence. In addition, the judge found that some of the evidence was damaging to Martini, and this eliminated the possibility that its omission constituted a manifest injustice to him. The trial judge also decided additional issues raised in the PCR petition. Two of those issues are relevant to this petition. First, the judge rejected the Public Defender’s argument that the State committed a Brady violation by failing to disclose the confidential information to the defense before Martini’s murder trial. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The trial judge concluded that the State did not have knowledge of the evidence at the time and, therefore, could not be obligated to release to Defendant what it did not know. Further, even if knowledge were imputed to the prosecutors, there was no Brady violation because Defendant himself possessed the information, yet chose not to share it with his attorneys. (10 PCR 40:8-41:5.) Second, the Public Defender also claimed ineffective assistance of counsel because of the defense counsel’s failure to obtain and use two burned cocaine screens that the Public Defender argued would have strengthened Petitioner’s diminished capacity defense. The judge rejected this argument determining that the evidence would not have “changed the jury’s mind as to whether or not the defendant was using or not using cocaine at the time.” (10 PCR 42:3-42:9.) On appeal, the New Jersey Supreme Court in State v. Martini (“Martini V’), 160 N.J. 248, 734 A.2d 257 (1999), considered Martini’s claims for ineffective assistance of counsel and Brady violation. The court affirmed the trial court, and held that Martini’s counsel did not render ineffective assistance of counsel because the evidence was not “mitigating,” and therefore it did not meet the Strickland prong of “prejudice” to the defendant, such that there was a reasonable probability that the outcome of the jury’s deliberations would have been different. Id. at 265-68, 734 A.2d 257; see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The court further held that defense counsel’s conduct was not “deficient” under Strickland because: (1) the counsel’s failure to discover the allegedly mitigating evidence was significantly affected by Petitioner’s conduct; and (2) it was reasonable for counsel “to conclude that further investigation would not yield anything useful.” Martini V 160 N.J. at 267, 734 A.2d 257. Second, the court rejected Petitioner’s Brady claim because the information was not mitigating. Moreover, the court found that because, as determined, Defendant knew the information, the government did not have a duty to turn over to him that which he already knew. Id. at 269-270, 734 A.2d 257. Finally, the court dismissed Petitioner’s claim for ineffective assistance of counsel for failure to -discover and present the burned screens at the guilt and penalty-phase trials. The Court concluded that the burned screens would have “added only cumulative weight” to the contention that Petitioner had used cocaine around the time of the murder. Id. at 272, 734 A.2d 257. DISCUSSION Standard for Review Under 28 U.S.C. § 2254 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), effective April 24, 1996, amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. § 2254. For any petitions filed after the effective date of AEDPA, courts are required to apply those amended standards. See Werts v. Vaughn, 228 F.3d 178, 195 (3d. Cir.2000) (citing Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). Under 28 U.S.C. § 2254(a) (2001), a federal court is required to consider only petitions filed on behalf of individuals in custody pursuant to a state court judgment which are grounded on a violation of the Constitution or the laws or treaties of the United States. Moreover, the petitioner must “exhaust” all of his claims in state court before coming to federal court. See 28 U.S.C. § 2254(b) (2001); Werts, 228 F.3d at 192. The AEDPA increased the deference federal courts must give to factual findings and legal determinations of the state courts. See Dickerson v. Vaughn, 90 F.3d 87, 90 (3d. Cir.1996). Under the Supreme Court’s landmark ease, Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), federal habeas corpus relief is denied to any claim which was adjudicated on the merits in a state court proceeding, unless such application: 28 U.S.C. §§ 2254(d)(1) and (2)(2001). As stated by the Court of Appeals for the Third Circuit, the federal habeas court must first determine whether the state court decision was “contrary to” Supreme Court precedent. See Keller v. Larkins, 251 F.3d 408, 417-418 (3d. Cir.2001). In the absence of such a showing, the federal habeas court must ask whether the state court decision represents an unreasonable application of Supreme Court precedent. Id. The appropriate inquiry to be made under the “unreasonable application of’ standard is “whether the state court’s application of clearly established federal law was objectively unreasonable”; an incorrect application alone does not warrant relief. Williams, 529 U.S. at 409, 120 S.Ct. at 1521, 146 L.Ed.2d at 428. The second prong requires the petitioner to show that the state court decision was based on an unreasonable determination of facts in light of the evidence presented at trial or at a hearing. Id. at 413, 120 S.Ct. at 1523, 146 L.Ed.2d at 430. However, factual issues determined by a state court are presumed to be correct, and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. Werts v. Vaughn, 228 F.3d at 196, citing 28 U.S.C. § 2254(e)(1) (1997). I. Ineffective Assistance of Counsel Because of Failure to Investigate and Present Allegedly Mitigating Evidence Petitioner argues that the New Jersey Supreme Court’s decision that he was provided effective assistance of counsel during his capital trial was an unreasonable application of Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d. at 694. Petitioner claims ineffective assistance of counsel because of his trial counsel’s failure to conduct a timely and effective investigation that would have uncovered certain mitigating evidence and to use this evidence at the penalty-phase of his trial. After conducting an in camera review of the record and the evidence at issue, this Court concludes that the New Jersey Supreme Court’s dismissal of Petitioner’s ineffective assistance of counsel claim was a reasonable application of the law and a reasonable interpretation of the facts. (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; 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. Standard for Ineffective Assistance of Counsel Under Strickland, the United States Supreme Court held that the test for ineffective assistance of counsel is: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Id. The standard by which the defense counsel’s actions should be measured is whether the performance was deficient as seen through “an objective standard of reasonableness” under prevailing professional norms, and whether the defendant was prejudiced. Id. at 687-688, 104 S.Ct at 2064, 80 L.Ed.2d. at 693. The defendant must overcome the presumption that “under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, 104 S.Ct at 2068, 80 L.Ed.2d. at 695 (citing Michel v. Louisiana, 350 U.S. 91, 100-101, 76 S.Ct. 158, 164, 100 L.Ed. 83.). [Cjounsel has a duty to make “reasonable investigations or to make a reasonable decision that makes particular investigations necessary ... a particular decision not to investigate must be directly assessed for reasonableness in all circumstances, applying a heavy measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 691, 104 S.Ct. at 2068, 80 L.Ed.2d at 695. To establish prejudice, the defendant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d. at 698. Is the evidence mitigating ? Petitioner argues that the state court’s ruling that the evidence was not mitigating and not prejudicial was both based on an unreasonable determination of the facts and an unreasonable application of established federal law. He argues that determinations of fact and law made by the state courts were objectively unreasonable applications of Strickland and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). According to Petitioner, the evidence would have had a “profound” effect on the penalty phase of the trial. However, Defendants argue that the evidence would not have been mitigating at the penalty phase of the trial and furthermore, may have had a damaging effect because of the “double-edged” nature of the evidence. In addition, Respondents argue that the proseeution would have introduced damaging rebuttal evidence that would have reduced any mitigating effect this evidence would have had. In response to this argument, Petitioner contends that the majority of the potentially damaging evidence would not have been admitted. See Martini V, 160 N J. at 262, 734 A.2d 257. Petitioner further argues that the New Jersey Supreme Court’s rejection of the mitigating nature of the evidence because it carries with it “substantial downside potential” is an unreasonable application of Lockett v. Ohio and its progeny. According to Petitioner, “ ‘[w]hen the ultimate issue is whether to put someone to death, it is virtually impossible for a court to determine that evidence that is dual in nature is not mitigating.’ ” (Petitioner’s Mem. at 34 (quoting Handler’s dissent, Martini V, 160 N.J. at 287, 734 A.2d 257.)). Petitioner goes on to cite to Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), which found that a petitioner’s record of accomplishment in prison was mitigating evidence that a jury should have heard despite the damaging effect of acquainting the defendant with an earlier criminal or juvenile record. (Petitioner’s Mem. at 34.) This Court disagrees with Petitioner’s application of Williams to the case at hand. In Williams, counsel had failed to introduce available evidence contained in prison records of the defendant’s “nightmarish childhood” — “that dramatically described mistreatment, abuse, and neglect during his early childhood, as well as testimony that he was ‘borderline mentally retarded,’ had suffered repeated head injuries and might have mental impairments organic in origin.” Id. at 370, 120 S.Ct. at 1502, 146 L.Ed.2d at 404. Furthermore, counsel failed to produce evidence of his good conduct as a prisoner and testimony that indicated the defendant’s lack of future dangerousness. Instead, at the sentencing-phase, the trial counsel focused on the defendant’s voluntary confession and produced testimony of three witnesses briefly describing the defendant as “a ‘nice boy’ and a non-violent person.” Id. at 369, 120 S.Ct. at 1500, 146 L.Ed.2d at 403. The juvenile records that provided this mitigating evidence may have “revealed that [the defendant] had been thrice committed to the juvenile system — for aiding and abetting larceny when he was 11 years old, for pulling a false fire alarm when he was 12, and for breaking and entering when he was 15 ....”; however, it is quite apparent that as a whole that evidence was mitigating. Id. at 396, 120 S.Ct. at 1514, 146 L.Ed.2d at 420. Here, the mitigating value of the evidence cannot be compared to the value of the omitted evidence in Williams. The potentially damaging effect of the evidence here outweighs that in Williams. In Williams, the omitted evidence was “readily available” to defense counsel; it was their own lack of competence that prevented them from having access to this evidence. This Court is convinced that any mitigating value of the materials is sufficiently outweighed by the potentially damaging effect that this evidence could have had for Petitioner at the penalty-phase trial. Even considering the fact that the trial judge found some of the evidence inad-missable as rebuttal evidence, there remains a significant amount of damaging evidence that the state could have produced in rebuttal. This Court concludes that overall this evidence would not be mitigating and contrariwise, would be potentially damaging to Martini. This Court finds that the New Jersey Supreme Court’s determination that the evidence was not mitigating and the omission of this material not prejudicial to have been reasonable. Was the defense counsel’s performance deficient? Petitioner contends that by failing to investigate and present the allegedly mitigating evidence, the defense counsel did not fulfill their obligation to conduct a “reasonable investigation” under Strickland. According to Petitioner, Defendant may have “deflected questions” from his trial attorneys, but he did not “purposely hid[e] information from his attorney,” as described by the New Jersey Supreme Court. Martini V, 160 N.J. at 266, 734 A.2d 257. Petitioner further argues that there is no such thing as a “legitimate strategic reason” for choosing ignorance over knowledge. “Just as a reviewing court should not second guess the strategic decisions of counsel with the benefit of hindsight, it should also not construct strategic defenses which counsel does not offer.” Harris v. Reed, 894 F.2d 871, 878 (7th Cir.1990). “[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not be later challenged as unreasonable.” Strickland, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 696. “[C]ounsel has a duty to make reasonable investigations” but the “reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions.” Id., 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d at 695-96. Here, defense counsel’s decision not to investigate was reasonable because it was based on Defendant’s refusal to reveal this information to his attorneys. Petitioner remained silent about the allegedly mitigating evidence although he was very well aware of its existence. When counsel attempted to ask Petitioner questions regarding the subject matter of the evidence, Petitioner responded, “it had no bearing on the case.” After this response by Petitioner, counsel made the informed, reasonable decision to cut off further investigation because Defendant had given counsel reason to believe that pursuing the investigation would be fruitless. See Riley v. Taylor, 277 F.3d 261, 305-06 (3rd Cir. 2001) (finding that counsel was not ineffective because of failure to present mental expert testimony when, in light of conversations with the defendant, counsel had no reason to think that a mental examination would be useful.). This Court finds that the state court’s determination that “it was reasonable for his attorneys to conclude that further investigation would not yield anything useful” was a reasonable application of clearly established federal law and a reasonable interpretation of the facts. Martini V at 267. Conclusion This Court denies Petitioner’s motion based on ineffective assistance of counsel for failure to investigate and present certain mitigating evidence. The New Jersey Supreme Court’s holding was a reasonable application of the law and interpretation of the facts for the following reasons: (1) the evidence itself is not mitigating because its potential to be damaging to Petitioner outweighs the limiting mitigating value it may have had; (2) any possible mitigating value is further outweighed by the potentially damaging value of the Government’s rebuttal evidence; and (3) it was reasonable for Petitioner’s trial counsel not to conduct any further investigation because he not only deliberately withheld this information from his attorneys but also deflected questions regarding the information. As a result, the first prong of Strickland has not been satisfied because the lawyer’s performance was not “deficient”. Second, the “prejudice” prong has not been met because even if the evidence had been presented to the jury, there is not a reasonable probability that the outcome would have been different. II. Ineffective Assistance of Counsel Because of Failure to Find and Use Drug Paraphernalia Petitioner’s second ground for a writ of habeas corpus is that his trial attorney rendered ineffective assistance of counsel by failing to adequately inspect the state’s evidence to find and use drug paraphernalia in the form of several burned cocaine screens in Martini’s defense during the guilt and penalty-phase trials. Petitioner argues that the state supreme court’s rejection of this issue was an “unreasonable application” of Strickland and an unreasonable interpretation of the facts. The burned cocaine screens at issue were found in Martini’s and Afdahl’s apartment and then placed in the State’s physical evidence file. Although Martini’s attorneys presented other drug paraphernalia at trial, they overlooked the burned screens and failed to present them. The New Jersey Supreme Court concluded that counsel’s failure to find the screens was inadvertent, Martini V, 160 N.J. at 272, 734 A.2d 257, but, that, in any event, Martini himself had presumably known of their existence although he never mentioned them. Id. The Court then analyzed whether the production of this additional evidence would have been likely to have had a substantial effect on the jury’s deliberations. The Court reasoned: Given counsel’s presentation of other drug paraphernalia, including a glass cocaine pipe and a glass vial, and a certified laboratory report indicating that both the pipe and the vial contained trace elements of cocaine, the burned screens would have added only cumulative weight to the argument that Martini had used cocaine around the time of the murder. Id. Petitioner argues that the five scorched cocaine screens which the trial counsel failed to find, could have led to a different guilt or penalty phase result. According to Petitioner, the screens would have corroborated Petitioner’s diminished capacity defense and rebutted any doubts raised by the prosecutor over whether Petitioner used cocaine around the time of the Flax murder. In oral argument, Petitioner further argued that the screens would have added to evidence of “immediacy” of the cocaine use of Petitioner before the time of the Flax murder. Furthermore, the screens would have supported three mitigating factors at the penalty phase. In addition, Petitioner argues that there is no reason that his attorneys should not have inspected the brown bag closely as Afdahl’s attorneys did on her behalf. According to Petitioner, “[t]here can be few failures so basic as failing to fully examine the physical evidence. In a capital case, such a want of care is indefensible.” (Petitioner’s Mem. at 71.) According to Respondents, the screens would have added at best cumulative weight to the other evidence of Petitioner’s drug use that was presented at trial. Petitioner’s counsel not only used a vial and a pipe seized from Martini’s apartment that tested positive for cocaine to demonstrate his cocaine use but also used Martini’s confession, his hospital records, the scars on his arm from drug usage, and his wife’s testimony. Also, Petitioner’s counsel used the expert testimony of a psychiatrist and a psychologist, as well as testimony from a psychiatric social worker to establish the effect of cocaine on his mental state and culpability. Petitioner’s counsel examined the physical evidence, including the other items of drug paraphernalia. However, the thumbnail sized screens were in the bottom of a bag, wrapped in masking tape; the tiny taped bundle looked like “a little bit of garbage” according to Afdahl’s attorney. Martini himself was aware of the drug paraphernalia that would have been in his apartment. Respondents further argue that Martini was not prejudiced by the omission of the screens from the trial and/or the penalty phase because: (a) “[t]he screens may never have been tested by the police lab, insofar as they were submitted to the lab along with the pipe, and the lab report indicated that only one item was tested”; (b) “[t]he screens, even if they tested positive for cocaine, do not prove Martini used cocaine”; (c) nor do “[t]he screens, even if positive for cocaine, [indicate] when the cocaine was burned”; and (d) “[t]he defense case was replete with expert testimony, lay testimony, medical reports, Martini’s confession, and a positive lab report indicating that cocaine was detected on the paraphernalia found in Martini’s apartment.” (Respondent’s Mem. at 17.) In denying post-conviction relief, the trial court judge concluded: There was so much evidence heard by this Court and by the jury that I’m firmly convinced that the failure to find those screens would not have changed the jury’s mind as to whether or not the defendant was using or not using the cocaine at the time. This Court agrees with the New Jersey Supreme Court that the burned cocaine screens was at best cumulative evidence of Petitioner’s cocaine use around the time of the murder. Not only was other drug paraphernalia that tested positive for cocaine used but also Martini’s confession, his hospital records, the scars on his arm from drug usage, his wife’s testimony, expert testimony of a psychiatrist, a psychologist, and a psychiatric social worker were used to establish his drug use or the effect of cocaine on his mental state and culpability. Nor do the burned screens prove that Petitioner himself used cocaine or the time the cocaine was used. Consequently, this additional evidence would not have substantially affected the jury’s deliberations — the prejudicial prong would not be satisfied under Strickland. It is also apparent that the omission of the thumbnail-sized burned screens was inadvertent and a reasonable oversight by Petitioner’s counsel. Counsel’s representation was not “below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-688, 104 S.Ct. at 2064, 80 L.Ed.2d. at 693. Because the state supreme court’s determination of the facts and application of clearly established federal law was reasonable, this Court denies relief on this ground. III. Violation of Petitioner’s Due Process Rights Because of Prosecution’s Failure to Turn Over Allegedly Mitigating Evidence to the Defense as required by Brady v. Maryland Petitioner argues that the New Jersey Supreme Court’s conclusion that certain evidence was not “material” for purposes of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), was contrary to and an unreasonable application of Brady and its progeny. This Court rejected this argument in its February 9, 2001 Opinion denying Petitioner’s motion for evidentiary hearing and discovery. After reconsideration, this Court maintains the position expressed in that opinion. The New Jersey Supreme Court correctly applied the following standard for materiality: “evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is one that is ‘sufficient to undermine confidence in the outcome.’ ” U.S. v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481, 494 (1985) (citation omitted). The New Jersey Supreme Court argued that it was not reasonably probable that disclosure of the omitted evidence would result in a different outcome because “although the evidence has some mitigating value, it poses a ‘clear risk of an adverse jury reaction’ ” Martini V, 160 N.J. at 269, 734 A.2d 257 (quoting Marshall III, 148 N.J. at 258, 690 A.2d 1). As discussed previously with regard to the ineffective assistance of counsel claim, the court found that not only does this material itself have potential to adversely affect a jury but also the presentation of such evidence would give the prosecution the opportunity to present potentially damaging rebuttal evidence. Brady v. Maryland held that due process forbids a prosecutor from suppressing “evidence favorable to an accused upon request ... where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. at 1196-7, 10 L.Ed.2d at 218. As the Court of Appeals for the Third Circuit summarized: Brady thus requires disclosure by the government of evidence that is both exculpatory and material. Exculpatory evidence includes material that goes to the heart of the defendant’s guilt or innocence as well as that which might well alter the jury’s judgment of the credibility of a crucial prosecution witness. Evidence impeaching the testimony of a government witness is exculpatory when the credibility of the witness may be determinative of a criminal defendant’s guilt or innocence. If the exculpatory evidence ‘creates a reasonable doubt’ as to the defendant’s culpability, it will be held to be material. (citations omitted) U.S. v. Starusko, 729 F.2d 256, 260 (3d Cir.1984). Petitioner argues that it is unjust to hold that a Brady claim is defeated by the bare fact that a defendant has knowledge of potential Brady material. If extenuating circumstances prevent full disclosure to his trial attorneys, it is unjust to deprive a defendant of the Brady remedy. See Nagell v. U.S., 354 F.2d 441 (5th Cir.1966). Petitioner says that the circumstances surrounding the materials constituted the extenuating circumstances that prevented him from disclosing the evidence to his trial attorneys. In Government of the Virgin Islands v. Martinez (“Martinez II”), 831 F.2d 46 (3d. Cir.1987), the Court of Appeals for the Third Circuit reviewed the district court’s refusal to give the defendant a Brady remedy when the evidence of a defendant’s confession to a detective describing the commission of the crime as an act of self-defense had not been turned over to the defendant’s counsel. The defendant had not told his counsel of this statement because “he was incapacitated by family pressure from communicating truthfully with his attorney concerning the fact that he had killed [the victim].” Id. at 48. The Court affirmed the district court’s rejection of the defendant’s argument, finding that this situation was not as compelling as the situation in Nagell, where the defendant had a mental defect that prevented him from communicating truthfully with his attorney. Rather, the Court argued that any Brady violation by the prosecution was avoided or cured by the defendant’s willful failure to disclose the statement to his trial attorney. The Court reasoned that “the cause of [the defendant’s counsel’s] inability to do so was her client, not the government.” Id. at 50; see also, U.S. v. Starusko, 729 F.2d 256, 262 (3d Cir.1984) (“because the defendant suffered no prejudice from the government’s failure to disclose ..., there was no Brady violation”). This Court finds that the case at hand is more like Martinez II than Nagell. It is disputed whether the state prosecutors actually knew or should have known of the evidence. Nevertheless, as reasoned in Martinez II, this Court finds that any Brady violation allegedly committed by the prosecutor is cured by the undisputed fact that Petitioner willfully withheld this information from his counsel. Accordingly, this Court finds that the New Jersey Supreme Court’s holding was a reasonable application of Brady. The evidence at issue was not material because it is not reasonably probable that disclosure of the omitted evidence would have resulted in a different outcome. Although the material contains some mitigating evidence, it also contains damaging evidence that poses a “clear risk of an adverse jury reaction.” Martini V, 160 N.J. at 269, 734 A.2d 257 (quoting State v. Marshall, 148 N.J. 89, 258, 690 A.2d 1 (1997) (“Marshall III”).). Presentation of such material would give the prosecution the opportunity to introduce damaging rebuttal evidence. And, even if the evidence is mitigating, any Brady violation committed by the prosecution is cured because Petitioner knew of it and willfully withheld it from his lawyer. IV. Violation of Due Process Rights Because of Exclusion of Potential Jurors Based on their Death Penalty Reservations Petitioner argues that the trial court’s improper excusal of prospective jurors, Timothy Wedeen, Ronald Vladyka, and Florence Zappala denied him his rights to due process of law and an impartial jury in violation of the 6th and 14th Amendments. According to Petitioner, the New Jersey Supreme Court’s determination that this decision was within the trial court’s discretion was an unreasonable application of clearly established federal law and based on an unreasonable determination of the facts. After a close review of the trial court record, this Court finds that the New Jersey Supreme Court was reasonable in its application of law and interpretation of facts and denies relief on this ground. Adams/Witt Standard The standard of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and clarified in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), and Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), provides that “a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Adams, 448 U.S. at 45, 100 S.Ct. at 2526, 65 L.Ed.2d at 589. Deference will be paid to a trial court’s discretionary determination because the inquiry turns in large part on an assessment of credibility and demeanor. U.S. v. Barnette, 211 F.3d 803, 812 (4th Cir.2000). The United States Supreme Court in Witt noted: this standard likewise does not require that a juror’s bias be proved with “unmistakable clarity.” This is because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the matter of a catechism. What common sense should have realized experience has proved: many veniremen simply cannot be asked enough questions to reach the point where their bias has been made “unmistakably clear”; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law .... [t]his is why deference must be paid to the trial judge who sees and hears the juror. Witt, 469 U.S. at 424-426, 105 S.Ct. at 852-853, 83 L.Ed.2d at 852-853. The Witt Court held that a trial judge’s determination to excuse a prospective capital sentencing juror for cause is a finding of fact subject to a presumption of correctness under 28 U.S.C. § 2254(d). Id. at 429, 105 S.Ct. at 855, 83 L.Ed.2d at 855. With regard to the standard of review under the habeas statute, “the question is not whether a reviewing court might disagree with the trial court’s findings, but whether those findings are fairly supported by the record.” Id. at 434, 105 S.Ct. at 858, 83 L.Ed.2d.at 857. Timothy Wedeen Mr. Wedeen was excused sua sponte by the trial judge over the objection of defense counsel. It is obvious from the record that Mr. Wedeen expressed significant doubts about his ability to impose the death penalty. As can be seen from the exchange below, Timothy Wedeen initially told the judge during voir dire that he did not agree with the death penalty, thought it “barbaric” and expressed doubt that he could impose the death penalty. Q. What are your feelings about the death penalty? A. I don’t agree with it. Capital punishment is barbaric. Q. Are there any crimes that you think it is appropriate to impose the death penalty? A. No, I do not. Q. None at all? A. Not really no. I feel life without parole is a more appropriate measure. ****** Q. And once having taken such an oath, if the facts warrant it and the principles warrant it, those combined, they warranted the imposition of the death penalty, would you be able to impose the death penalty? A. I would find it difficult. My judgment would be affected by my personal feelings. I could not say that it wouldn’t. Q. Would you be able to find it in the appropriate case? A. Would I be able to sentence someone to die? Q. Yes, in the appropriate case. A. I honestly can’t say. I really don’t know. I feel very strongly about this. (3T 167-1 to 167-10; 167-17 to 168-6.) In answer to the defense counsel’s question as to whether he would follow the law, he did say, “[y]es, I will follow it.” (3T 169-2 to 169-4) However, in response to a question by the prosecutor, he then stated again that he did not know if he could make a decision based on the facts putting aside his personal feelings. Q. Would you be able to make that decision based on the facts in the case putting aside your personal feelings? A. I don’t know. I honestly do not know. I feel very strongly about this issue. (3T 171-3 to 171-7.) Again, to another inquiry by defense counsel asking whether he could “follow the law as the Judge gives it to [him]?”, Mr. Wedeen answered “[y]es, I will.” (3T 171-18 to 171-19.) Finally, upon questioning by the trial judge, Mr. Wedeen expressed definite hesitance in his ability to impose the death penalty, absent his feelings: Q. Would your views prevent you or impair your ability to impose the death penalty? A. They may. I honestly have to say they may. It’s something I feel very strongly about. I have very strong convictions about this. Q. That’s what we want from you. No one is trying to put you on the spot. We’re just trying to find out your honest views so that we have a jury who will listen to the evidence and make the decision based on the evidence and the proofs posed. I know it’s difficult when you have strong feelings one way or another about a certain issue. A. My judgment would be impaired by my feelings, yes. I have to be honest and say yes, it would when it comes to that issue. I wish I could say otherwise but that’s how I feel. (3T 172-8 to 172-23.) The trial judge excused Mr. Wedeen over the defense counsel’s objections stating, “[i]f he is not telling us that his ability to impose the death penalty may be impaired by his beliefs, he’s at least telling us, T don’t know.’ ” (3T 177-1 to 177-3.) Petitioner says that Wedeen’s excusal was inappropriate: First, the court excused him on its own motion over the objection by defense counsel. The prosecutor never asked that Wedeen be excused. Second, the trial court’s use of the phrases “would impair” and “may impair” indicated that the trial judge was using a standard more exacting than federal law. Petitioner further claims that Wedeen’s voir dire did not meet the Adams /Witt standard because Wedeen drew the distinction between following the law but could not guarantee his beliefs not surfacing during deliberations. As shown by the above exchanges, Mr. Wedeen indicated that his views towards the death penalty would substantially affect his penalty-phase deliberations by stating that his “judgement would be impaired by [his] feelings.” The Witt Court sustained the dismissal of a juror that answered, “I am afraid I would” and “I think I would” when asked whether her beliefs against the death penalty would interfere with her sitting as a juror in a capital case. Witt, 469 U.S. at 416, 105 S.Ct. at 848, 88 L.Ed.2d at 846; see also Riley, 277 F.3d 261, 307-09. Here, Mr. Wedeen has answered with at least as much hesitance in his ability to impose the death penalty as the juror in Witt. This Court finds that Petitioner has not overcome the presumption of correctness that is accorded to the trial judge. See Witt, 469 U.S. at 424-426, 105 S.Ct. at 852-853, 83 L.Ed.2d at 852-853. And, this Court concludes that the state supreme court’s determination that “his excusal for cause was well within the trial court’s discretion” was factually supported by the record and was a reasonable application of federal constitutional jurisprudence. Martini I, 131 N.J. at 219, 619 A.2d 1208. Ronald Vladyka Mr. Vladyka was dismissed for cause sua sponte by the trial judge over defense counsel’s objection because of his inability “to fulfill his duty and function as a juror.” (27T 28-21 to 28-22.) The record demonstrates that Mr. Vladkya would not have been able to announce a sentence of death and had significant doubts about his ability to weigh the mitigating and aggravating factors before reaching a decision on the sentence. Mr. Vladkya initially expressed doubts about his ability to impose the death penalty for any crime. Q. Do you have any feelings or beliefs about the death penalty? A. I don’t believe in it. Q. Under any circumstances? A. Well, I just — I don’t know. I just don’t believe in it. I can’t really give a reason why. Q. Do you think there are any crimes where the death penalty is an appropriate penalty? A. Well — no. Q. None at all? A. No, not really. (27T 18-18 to 19-3.) Furthermore, Mr. Vladyka expressed ambivalence about his ability to weigh the aggravating and mitigating factors and if the facts warranted, impose the death penalty. Q. As a sworn juror if the jury were to find the defendant guilty of murder, he would be hearing evidence from the State we call aggravating factors; the defense would be presenting mitigating factors. I would explain the principles of law that you’re to apply. As a sworn juror, would you be able to weigh those factors, the evidence on both sides, apply the principles of law as I explain, and if the facts warranted, this is hypothetical, if the facts warranted, would you be able to vote to impose the death penalty? A. That’s a hard situation. You know, you don’t know the facts, okay. (27T 19-13 to 19-23.) This Court acknowledges that Mr. Vla-dyka did answer “yes” to the question, “Would you be able to vote to impose the death penalty?” (27T 20-5 to 20-6.) However, later, Mr. Vladyka again expressed ambivalence about his ability to weigh the factors and to sentence a petitioner to death if the circumstances warranted. Q. Can you do both, having made the weighing process of aggravating and mitigating factors, are you capable in the proper circumstances to send John to death row? A. I guess if everything was in place and I believed in it, I mean, you know it is hard to say yes or no. (27T 26-1 to 26-5.) Finally, the trial judge excused Vladyka when he answered “no” to the question whether he, if chosen as a foreperson, would be able to announce a verdict in favor of the death penalty (a question to which he had answered “I don’t know” earlier). The defense counsel objected arguing that Mr. Vladyka was “railroaded.” He argued that Mr. Vladyka would not have to be the person to announce that a man would die. Further, he claimed that Mr. Vladyka “was unfairly treated” and “was rushed.” (27T 28-10 to 28-17.) In response, the trial judge stated that he did not feel that “[Vladyka] would be able to fulfill his duty and function as a juror.” (27T 28-21 to 28-22.) Petitioner contends that the New Jersey Supreme Court’s affirmance of the trial court judge’s excusal of this prospective juror was an unreasonable application of the law because he answered “yes” when asked if he would be able to impose the death penalty. The New Jersey Supreme Court also recognized that he indicated “with significant reluctance” that he “could follow his oath as a juror and vote for the death sentence.” Martini I, 131 N.J. at 219, 619 A.2d 1208. Petitioner further contends that Mr. Vladyka’s inability to announce the sentence of death should not have prevented him from being on the jury because someone else on the jury could be assigned to be foreperson. However, Petitioner fails to view the questioning “as a whole.” Witt, 469 U.S. at 435, 105 S.Ct. at 858, 83 L.Ed.2d at 858. First of all, Mr. Vladyka’s inability to announce the sentence of death gives some indication of “an unwillingness or an inability on the part of [the juror] to follow the court’s instructions and obey [his] oath, regardless of [his] feelings about the death penalty.” Adams, 448 U.S. at 50, 100 S.Ct. at 2529, 65 L.Ed.2d at 593. This alone may not constitute excusal of a juror. However, this fact in combination with Vladyka’s announcement that he did not believe in the death penalty, that there were no crimes for which he thought it would be an appropriate punishment, and his ambivalence about his ability to weigh aggravating and mitigating factors to determine whether to impose the death sentence all contributed to the trial judge’s decision to excuse him. A juror’s bias does not have to be made “ ‘unmistakably clear.’ ” Witt, 469 U.S. at 424, 105 S.Ct. at 852, 83 L.Ed.2d at 852. Rather, the trial judge’s determination of juror bias “involves credibility findings whose basis cannot be easily determined from an appellate record.” Id. at 429, 105 S.Ct at 855, 83 L.Ed.2d at 855. The Petitioner has not overcome the presumption of correctness accorded the trial judge’s decision. The New Jersey Supreme Court’s determination that Vla-dyka’s excusal was within the trial judge’s discretion was based on a reasonable determination of the facts supported by the record and not contrary to, or an unreasonable application of, clearly established federal law. Florentie Zappala The trial judge excused Ms. Zappala upon a motion by the prosecution to “thank and excuse” her because of her inclination to “give a little more weight to that testimony of a police officer only because it [sic] was a police officer.” (31T 22-10 to 22-11.) Defense counsel objected to the prosecution’s motion on the basis that “with the assistance of counsel, properly done, we could have salvaged her ... and she would have been admitted into the pool.” (31T 22-18 to 22-19.) From the following, the trial judge was justified in his impression that Ms. Zappa-la would be inclined to give more weight to the testimony of police officers. Q. You were asked if you would believe the testimony of a police officer just because the party testifying was a police officer, and you said yes. Why is that? A. I think I would. I mean, I would be inclined to. % j¡: H* ‡ :¡: Jfc Q. You can’t have jurors who come in and say, “Well, anything a police officer tells me I’m going to believe.’ We want jurors who will listen to the evidence and fairly evaluate the evidence? A. Balance. Q. Now, based on your answer to that question, we don’t know if you can do that. Only you can tell us. A. I don’t know. I mean, it would be a question I would think about, I’d be inclined to believe a police officer, but I don’t know. You know, I should think he’d be telling the truth. (31T 20-2 to 20-21.) Petitioner objects to the treatment of prospective-juror Florence Zappala because she 'was cut-off mid-answer by the prosecutor’s motion to excuse the juror and was prevented from completing an answer to the question that would have indicated whether she would have been qualified to sit. The trial judge explained that he based this excusal upon his perception that the juror would give more weight to the testimony of police officers. Petitioner argues that the court should have undertaken further questioning of the juror with that end in mind especially since defense counsel did not object to the juror. This Court finds Petitioner’s arguments weak. Mrs. Zappala was excused because of her bias towards the testimony of police officers. That she was unable to finish an answer in response to a question regarding her beliefs on the death penalty is irrelevant to her feelings about the testimony of police officers. This Court finds that the questioning with regard to her treatment of testimony of police officers was sufficient. The New Jersey Supreme Court’s analysis that the trial court was within its discretion “in excusing Mrs. Zappala based on her remarks concerning the veracity of police officers” was a reasonable interpretation of the facts and a reasonable application of clearly established federal law. Martini I, 131 N.J. at 221, 619 A.2d 1208. V. Trial Court’s Refusal to Instruct the Jury on “Substantial Assistance” Petitioner asserts that the New Jersey Supreme Courts’ holding that the trial judge’s refusal to instruct the jury that Petitioner rendered substantial assistance to the state in the prosecution of another person for the crime of murder, did not prevent the jury from considering and giving effect to mitigating evidence was objectively unreasonable within the meaning of 28 U.S.C. § 2254. This Court finds that Petitioner’s argument has little merit and denies relief on this ground. The New Jersey Supreme Court found that there was not sufficient rehable evidence of the substantial assistance instruction, N.J.S.A. 2C:11-3C(5)(g) (“factor 5(g)”), to submit to the jury and even if there had been, the failure to submit it was harmless error. The evidence of substantial assistance presented to the jury during the penalty-phase of the trial was the testimony of FBI Agent Trahey who related that Petitioner told Afdahl that he was going to cooperate with the investigators and tell them “what had happened and that he wanted her to be aware of that fact.” This conversation lasted “[a]t best two to three minutes.” It was undisputed that Afdahl made an inculpatory statement after speaking to Petitioner. At the pretrial hearing on Petitioner’s motion to suppress, further testimony about Petitioner’s meetings with Afdahl on January 26th and 30th was heard. According to the testimony of Agent Peterson during a pre-trial hearing, Petitioner told Agents Trahey and Peterson that Petitioner wanted to first consult with Afdahl because “he wanted to alert her to tell the whole truth as well.... ” However, Agent Peterson, unlike Agent Trahey, does not remember hearing the conversation between Petitioner and Afdahl. Agent Tra-hey also testified that Martini told Afdahl, “ ‘Therese, I’m now going to cooperate with them and I’m going to tell them what happened.’ ” Furthermore, from testimony of Officer Carlino, the policeman, who questioned Afdahl, Afdahl signed consents to search the apartment and the rooms at the Days Inn before speaking to Martini. After speaking to him, “she said that she could now tell us the truth regarding Mr. Flax’s murder, because Martini had told her to cooperate with the police,” so said Carlino. However, also from pre-trial hearing testimony by Officer Carlino, Afdahl was brought back to the Prosecutor’s office on January 30, 1989. After a meeting between Afdahl and Petitioner, Afdahl falsely confessed to having shot Irving Flax. Car-lino said that Afdahl was asked to falsely confess by Martini in exchange for promises that they would get married and live in a cottage furnished by the Witness Protection Program. At the commencement of the penalty phase, Petitioner asked that the jury be instructed on N.J.S.A. 2C:11-3c(5)(g), that Petitioner rendered substantial assistance to the state in the prosecution of another person for the crime of murder. The trial judge denied this request, stating: Substantial assistance means considerable assistance, assistance' which played a fairly large or important role in the arrest or prosecution of the other person. And that has not happened here. Mr. Martini’s short two or three minute discussion or statement to Therese Afdahl at approximately one a.m. January 26, might have lead [sic] Therese to then voluntarily give a statement as to her involvement in this, but certainly that in and of itself is not substantial assistance, meaning that it was considerable assistance, assistance which played a fairly large or important role in the arrest and prosecution of Therese Af-dahl. Defense may be able to utilize that testimony on the catch-all mitigating factor and argue that, but as a separate mitigating factor I’m going to sustain the objection of the prosecutor. The trial judge further stated that he would reconsider if defense presented new evidence “that changes [his] mind on that, of course then we can always deal with that.” (52 T 12-13 to 13-16.) Defense counsel did not pursue this subject any further during his penalty phase case or summation, although he did stress the extent of Petitioner’s cooperation with law enforcement as a non-statutory mitigating factor. (54T 31-20 to 32-12.) Petitioner correctly refers to the standard of review in Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998): “ ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.’ ” Id. (quoting Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316, 329 (1990)). According to Petitioner, the need for reliability in sentencing determinations between life and death is so great that the United States Supreme Court has said that “[s]o long as the evidence [introduced at a capital sentencing hearing] ... do not prejudice a defendant, it is preferable not to impose restrictions.” Zant v. Stephens, 462 U.S. 862, 886, 103 S.Ct. 2733, 2747, 77 L.Ed.2d 235, 254 (1983) (quoting Gregg v. Georgia, 428 U.S. 153, 203-4, 96 S.Ct. 2909, 2939, 49 L.Ed.2d 859, 891 (1976)). Since the decision in Lockett, the Supreme Court has repeatedly restated that the 8th Amendment forbids a state from limiting a defendant’s presentation of mitigating factors to a jury, or the jury’s right to consider and independently weigh those factors. 438 U.S. at 604, 98 S.Ct. at 2964-5, 57 L.Ed.2d. at 990; see also Eddings v. Oklahoma, 455 U.S. 104, 113-115, 102 S.Ct. 869, 876-877, 71 L.Ed.2d 1, 10-11 (1982). The trial judge’s allowance of the evidence being introduced as a “catch-all” mitigating factor or his allegations to consider new evidence “that changes his mind” was insufficient, according to Petitioner. In addition, Petitioner finds problematic the fact that the trial judge ruled before the penalty phase began that the evidence was not good enough to convince him that the jury should even be allowed to consider whether the mitigating factor existed and what weight, if any, should be accorded. Petitioner contends that such a premature and exclusionary rule was inappropriate. The state supreme court also found this decision to be premature arguing that the trial judge should have waited until the end of the penalty phase when all of the evidence was before the jury with respect to the mitigating factors. Respondents emphasize that Martini’s trial attorneys chose not to present other evidence that Martini had induced his co-defendant (Therese Afdahl) to confess, despite the fact that the trial court invited them to do so. Citing N.J.S.A. 2C:11-3c(2)(a), the New Jersey Supreme Court argued that, “[a] defendant has the burden to produce evidence of existence of any mitigating factor.” Martini I at 295, 131 N.J. 176. The record contains no indication that Martini encouraged Afdahl to confess, beyond informing her that he intended to do so. Moreover, the State was prepared to introduce rebuttal evidence that Martini tried to have Afdahl lie for him by falsely admitting that she shot the victim, so that Martini would be exonerated. Respondents and the state supreme court argue that because of this incredibly damaging evidence, “defense counsel’s failure to [present evidence other than Agent Trahey’s trial testimony] was understandable.” Id. It is noted that the trial court assured the defense that, depending on what was introduced, the court would charge the jury on the “catch-all” mitigating factor and re-consider its ruling on the “substantial assistance” factor if the evidence supported it. On appeal, the New Jersey Supreme Court appropriately ruled that “the catch-all factor, c(5)(h), permitted defendant to introduce evidence of his cooperation with police that was short of ‘substantial’ assistance” and that the trial court had not “preclud[ed] defendant from submitting any evidence on that issue.” Id. at 300, 619 A.2d 1208. Even assuming it was erroneous for the trial court to reject the substantial assistance instruction, this error was harmless because the catch-all factor, c(5)(h), permitted Petitioner to introduce evidence of his cooperation with police. It is undisputed that under Lockett, federal law requires that the jurors not be precluded from considering as a mitigating factor any aspect of a defendant’s