PAVLYIK v. NOGAN, 1:19-cv-17691

Background

Petitioner Michael Pavlyik was convicted by a jury in New Jersey of multiple sexual offenses against his stepdaughter between 2004 and 2007, as well as possession of a destructive device.
Pavlyik's conviction was affirmed on direct appeal, and post-conviction relief (PCR) was denied by both the trial and appellate courts in New Jersey.
He filed a federal habeas petition under 28 U.S.C. § 2254, asserting claims of ineffective assistance of counsel, focusing on failures to investigate witnesses and experts, and errors relating to legal theories and evidentiary issues.
The District Court previously found some claims unexhausted and, after Pavlyik withdrew those, ruled on the balance of his claims.
The District Court denied all remaining habeas claims, denied a request for an evidentiary hearing, and declined to issue a certificate of appealability.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance: fact witnesses/cross-examination	Counsel failed to investigate and call key factual witnesses and to challenge the victim on inconsistent statements	No specific evidence as to what additional investigation or cross-examination would have revealed or changed at trial	Denied—Failure to show prejudice or what additional evidence would have resulted, and State’s evidence was overwhelming
Ineffective assistance: failure to investigate expert witnesses	Counsel failed to procure medical and explosives experts who could have challenged State’s evidence	No affidavits or specific expert testimony proffered; claim is speculative	Denied—No showing of prejudice under Strickland since no expert testimony or likely outcome change demonstrated
Ineffective assistance: failure to pursue legal theories (fresh complaint, hearsay, elements)	Counsel failed to object to hearsay, research legal theories, or contest the destructive device charge definition	Trial counsel did raise objections and pursued appropriate arguments or claim was unsupported; no legal merit on the fireworks/device distinction	Denied—Either objections were made or claims were without merit; no prejudice shown
Failure of PCR court to hold evidentiary hearing	Due process violation for lack of hearing on ineffective assistance claims	Errors in collateral proceedings not cognizable on federal habeas; no showing a hearing would change the outcome	Denied—Claim not cognizable, and no prima facie showing for a federal evidentiary hearing

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (Supreme Court case setting forth two-part test for ineffective assistance of counsel)
Renico v. Lett, 559 U.S. 766 (establishing deference for state court determinations under habeas review)
Cullen v. Pinholster, 563 U.S. 170 (federal review under § 2254(d)(1) limited to the record before the state court)
Harrington v. Richter, 562 U.S. 86 (discussing standard for prejudice and deference to state courts on habeas)
Crawford v. Washington, 541 U.S. 36 (Confrontation Clause prohibits admission of certain out-of-court statements absent witness availability and cross-examination)
Coleman v. Thompson, 501 U.S. 722 (no federal constitutional right to counsel in state collateral proceedings)