The opinion of the court was delivered by: WILLIAM H. WALLS, District Judge
Petitioner, John J. Radich, III, filed the within petition for
a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The Court
has considered all submissions. For the reasons set forth below,
the Petition will be denied. BACKGROUND
Petitioner was accused of continually molesting his
six-year-old stepdaughter over a period of two years. The abuse
consisted of cunnilingus and the use of pornographic movies.
Petitioner would masturbate to pornographic movies in the
victim's presence, and tell her, "kiss me, it makes me hornier."
After molestation acts with the victim, Petitioner would tell the
victim not to tell anybody because he would get into a lot of
trouble, and that if she told, he would kill her mother.
Petitioner's relationship with the victim's mother was abusive
physically and mentally. The victim often witnessed Petitioner
abusing her mother, and was afraid of him. When Petitioner's wife
left Petitioner to enter a battered women's shelter, the victim
confided in her grandmother about the abuse. The grandmother
contacted the authorities and the victim made a statement against
Petitioner. The victim's mother believed the victim's
accusations, because Petitioner would tell her the same phrase
about kissing him while he masturbated.*fn1
On December 4, 1992, a Middlesex County Grand Jury indicted the
petitioner on twelve counts, including: aggravated assault,
contrary to N.J.S.A. 2C:14-2a (counts one and two); sexual
assault, contrary to N.J.S.A. 2C:14-2b (counts three and four); endangering the welfare of a child, contrary to N.J.S.A.
2C:24-4a (counts five through eight); lewdness, contrary to
N.J.S.A. 2C:14-4a (counts nine and ten); and terroristic
threats, contrary to N.J.S.A. 2C:12-3a (counts eleven and
twelve). Counts six and eight were dismissed during trial.
Between February 27 and March 6, 1996, the petitioner was tried
by a jury in the Superior Court of New Jersey, Law Division,
Middlesex County ("Law Division"). The State presented the
victim, the victim's mother, the victim's grandmother, an
investigator, and a doctor as witnesses. Petitioner chose not to
testify on his own behalf, and defense counsel presented no
witnesses. The jury found the petitioner guilty on all remaining
counts of the indictment. On June 10, 1996, the petitioner
appeared for sentencing and was sentenced to forty-two years
imprisonment, pursuant to an extended term.
Petitioner appealed his conviction and sentence. In a ten-page
per curiam decision dated September 22, 1997, the Superior
Court of New Jersey, Appellate Division ("Appellate Division")
affirmed the conviction, but remanded the matter for
resentencing. (State v. J.R., A-7360-95T4 (Sept. 22, 1997)).
Petitioner's petition for certification was denied by the New
Jersey Supreme Court ("Supreme Court"). (State v. J.R.,
152 N.J. 365 (1998)). On March 19, 1998, Petitioner was resentonced pursuant to the
Appellate Division's direction to concurrent terms aggregating
thirty years, to be served at the Adult Diagnostic and Treatment
Center. Petitioner did not appeal the resentence.
On March 13, 2000, Petitioner filed a motion for
Post-Conviction Relief ("PCR") in the trial court. The motion
argued ineffective assistance of trial counsel. The judge denied
petitioner's request for an evidentiary hearing, finding that
petitioner had not made a prima facie case of ineffective
assistance of trial counsel.
The petitioner appealed the denial, and on March 22, 2002, the
denial was affirmed by the Appellate Division. (State v. J.R.,
A-6675-99T4 (Mar. 22, 2002)). It is unclear whether or not
Petitioner petitioned the Supreme Court for certification.
The instant petition was received on September 23, 2003 and was
filed on June 20, 2003.*fn2 On October 21, 2003, the
respondents filed a letter brief in response to the
Petition.*fn3 PETITIONER'S CLAIMS
Although Petitioner does not clearly list his arguments for
habeas relief, the Court construes the arguments as follows:
1. Petitioner's sentence as a persistent offender to
an extended term violates the ex post facto
clause, and is excessive.
2. The prosecutor's summation exceeded the bounds of
3. Trial Court error: The trial court erred by ruling
that petitioner's prior convictions were admissible
to attack his credibility. Petitioner was denied a
fair trial due to elicitation of testimony concerning
his prior convictions.
4. Petitioner was denied the effective assistance of
counsel at trial and sentencing witnesses were not
called forth in his case, his counsel did not
cross-examine effectively, and did not advocate for a
more lenient sentence.
See Petition for Writ of Habeas Corpus, ¶ 12.
It appears that Petitioner has raised the instant claims before
the New Jersey state courts. To the extent that Petitioner has
not raised the claims before the state courts, this Court finds
that they are meritless, and will excuse the exhaustion
requirement. See 28 U.S.C. § 2254(b) (1), (2). DISCUSSION
A. Standards Governing Petitioner's Claims.
Section 2254 of Title 28, United States Code, provides that the
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 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).
Under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and
Effective Death Penalty Act, 28 U.S.C. § 2244 ("AEDPA"), federal
courts in habeas corpus cases must give considerable deference to
determinations of the state trial and appellate courts. See
Duncan v. Morton, 256 F.3d 189, 196 (3d Cir.), cert. denied
534 U.S. 919 (2001); Dickerson v. Vaughn, 90 F.3d 87, 90 (3d
Cir. 1996) (citing Parke v. Raley, 506 U.S. 20, 36 (1992)).
Section 2254(d) sets the standard for granting or denying a
writ of habeas corpus. The statute reads as follows:
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the
merits in State court proceedings 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 determined by the Supreme
Court of the United States; or
(2) resulted in a decision ...