United States District Court, D. New Jersey
August 31, 2005.
JOHN J. RADICH, III, Petitioner,
ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, et al., Respondents.
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 that was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
28 U.S.C. § 2254(d).
In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the
Supreme Court explained the application of § 2254 (d) (1). The
Court analyzed subsection 1 as two clauses: the "contrary to"
clause and the "unreasonable application" clause. The Court held
that under the "contrary to" clause, "a federal court may grant
the writ if the state court arrives at a conclusion opposite to
that reached by [the Supreme] Court on a question of law or if
the state court decides a case differently than [the Supreme]
Court has on a set of materially indistinguishable facts." Id.
A federal court may grant the writ under the "unreasonable
application" clause, if "the state court identifies the correct
governing legal principle from [the Supreme] Court's decisions
but unreasonably applies that principle to the facts of the
prisoner's case." Id. at 413. Habeas relief may not be granted
under the "unreasonable application" clause unless a state
court's application of clearly established federal law was
objectively unreasonable; an incorrect application of federal law
alone is not sufficient to warrant habeas relief. See id. at
411; see also Werts v. Vaughn, 228 F.3d 178, 197 (3d Cir.
2000), cert. denied, 532 U.S. 980 (2001); Matteo v.
Superintendent, SCI Albion, 171 F.3d 877, 891 (3d Cir.), cert.
denied, Matteo v. Brennan, 528 U.S. 824 (1999). Thus, the
federal court must decide whether the state court's application of federal law, when
evaluated objectively and on the merits, resulted in an outcome
that cannot reasonably be justified under existing Supreme Court
precedent. See Werts, 228 F.3d at 197; see also Jacobs
v. Horn, 395 F.3d 92, 100 (3d Cir. 2005).
With regard to 28 U.S.C. § 2254(d)(2), a federal court must
confine its examination to evidence in the record. See
Abu-Jamal v. Horn, 2001 WL 1609690, at *12 (E.D. Pa. December
18, 2001). In addition, the state court record should be reviewed
to assess the reasonableness of the state court's factual
determinations. See id. Finally, federal courts are required
to apply a "presumption of correctness to factual determinations
made by the state court." Id.; see also
28 U.S.C. § 2254(e)(1). The Court of Appeals for the Third Circuit has ruled
that this presumption of correctness can be overcome only by
clear and convincing evidence. See Duncan v. Morton,
256 F.3d 189, 196 (3d Cir. 2001) (citing 28 U.S.C. § 2254 (e) (1)). "A
finding that is well-supported and subject to the presumption of
correctness is not unreasonable." Abu-Jamal, 2001 WL 1609690 at
*12 (citing Duncan, 156 F.3d at 198).
Furthermore, federal habeas courts ordinarily refrain from
revisiting credibility determinations as "it would be wholly
inappropriate for a federal court to repastinate soil already
thoroughly plowed and delve into the veracity of the witnesses on habeas review." Sanna v. Dipaolo, 265 F.3d 1, 10 (1st Cir.
2001). A habeas petitioner therefore "must clear a high hurdle
before a federal court will set aside any of the state court's
factual findings." Mastracchio v. Vose, 274 F.3d 590, 597-98
(1st Cir. 2001).
A pro se pleading is held to less stringent standards than more
formal pleadings drafted by lawyers. See 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 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);
United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969),
cert. denied, 399 U.S. 912 (1970).
B. Claims Regarding State Sentence.
Petitioner claims that his sentence was excessive, and that he
should not have been given an extended term. He also claims that
the extended term and Megan's Law, New Jersey's sex offender
statute, should not be applied to his case and are ex post
A federal court's ability to review state sentences is limited
to challenges based upon "proscribed federal grounds such as
being cruel and unusual, racially or ethnically motivated, or
enhanced by indigencies." See Grecco v. O' Lone, 661 F. Supp. 408, 415 (D.N.J. 1987) (citation omitted). Thus, a challenge to a
state court's discretion at sentencing is not reviewable in a
federal habeas proceeding unless it violates a separate federal
constitutional limitation. See Pringle v. Court of Common
Pleas, 744 F.2d 297, 300 (3d Cir. 1984). See also
28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67 (1991); Lewis v.
Jeffers, 497 U.S. 764, 780 (1990).
"The Eighth Amendment, which forbids cruel and unusual
punishments, contains a `narrow proportionality principle' that
`applies to noncapital sentences.'" Ewing v. California,
538 U.S. 11, 20 (2003) (citations omitted). The Supreme Court has
identified three factors that may be relevant to a determination
of whether a sentence is so disproportionate to the crime
committed that it violates the Eighth Amendment: "(1) the gravity
of the offense and the harshness of the penalty; (ii) the
sentences imposed on other criminals in the same jurisdiction;
and (iii) the sentences imposed for commission of the same crime
in other jurisdictions." Solem v. Helm, 463 U.S. 277, 292
(1983). More recently, Justice Kennedy has explained that Solem
does not mandate comparative analysis within and between
jurisdictions, see Harmelin v. Michigan, 501 U.S. 957,
1004-05 (Kennedy, J., concurring in part and concurring in
judgment), and he has identified four principles of
proportionality review "the primacy of the legislature, the
variety of legitimate penological schemes, the nature of our federal system, and the requirement
that proportionality review be guided by objective factors"
that "inform the final one: The Eighth Amendment does not require
strict proportionality between crime and sentence. Rather, it
forbids only extreme sentences that are `grossly
disproportionate' to the crime," id. at 1001 (citation omitted)
quoted with approval in Ewing, 538 U.S. at 23. Here,
Petitioner was convicted of two counts of first degree aggravated
assault and two counts of second degree sexual assault, amongst
other charges. Any sentencing error that may have occurred is a
matter of state law and does not rise to a level of
disproportionality that violates the Eighth Amendment.
Nor does the application of the extended term to Petitioner
violate the ex post facto clause of the First Amendment, as
the section applied to Petitioner was in effect at the time of
Petitioner's sentencing. In fact, Petitioner's PCR counsel noted
in his brief that defense counsel's ex post facto objection
to the extended term was in error.
As the issues raised by Petitioner are matters of state law,
and because the Court finds no constitutional violations, these
claims must be denied.
C. Claims Regarding Prosecutorial Misconduct
Petitioner claims that during summation, the prosecutor
attempted to convince the jury that they should believe the victim's version of events. In particular, the prosecutor stated
that "it's obvious" that the victim was telling the truth, and
Because if you believe she's lying, if you believe
she's making this up, then we ought to send her out
right now to Hollywood, because that was one of the
best performances I've ever seen in my life. That
little girl wasn't lying. That little girl couldn't
lie to you in such a way.
(Trial Transcript, 3/5/96, at pp. 44-45). Petitioner also objects
to the prosecutor's conclusion during his summation, where he
Go in and decide this case without passion, without
prejudice, without emotion; but consider everything
you've heard in this case. [The victim] cries out one
more time. This time she cries out for justice. You
are the only ones that can satisfy that cry. I ask
you now to deliberate and find the defendant guilty
of all the charges in this indictment.
(Trial Transcript, 3/5/96, at p. 58).
The Appellate Division examined these comments by the
prosecutor and stated that although they did not "condone the
prosecutor's comments complained of," that "considering that
absence of any objection thereto as well as the entire context of
the summation, we are convinced the prosecutor's summation was
not `so egregious that it deprived defendant of a fair trial.'"
Under United States Supreme Court precedent, where a
prosecutor's opening or closing remarks are challenged in habeas,
"[t]he relevant question is whether the prosecutor's comments `so
infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright,
477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo,
416 U.S. 637 (1974)). In evaluating the likely effect of improper
comments, a court may consider whether the improper comments were
invited by or responsive to prior comments by opposing counsel.
Darden, 477 U.S. at 181-82. Thus, "Supreme Court precedent
counsels that the reviewing court must examine the prosecutor's
offensive actions in context and in light of the entire trial,
assessing the severity of the conduct, the effect of the curative
instructions, and the quantum of evidence against the defendant."
Moore v. Morton, 255 F.3d 95, 107 (3d Cir. 2001).
In the instant case, the prosecutor's comments were not so
offensive as to infect the entire trial, violate due process, or
render his conviction unfair. There was sufficient evidence to
convict Petitioner, which was weighed by the jury. In light of
the entire trial and with the evidence against Petitioner, the
Court is satisfied that the prosecutor's allegedly offensive
actions did not violate Petitioner's right to a fair trial.
Further, the trial judge made clear in instructing the jury
that they were the trier of facts. The trial judge charged:
As we come to the conclusion of the case, ladies and
gentlemen, I need to talk to you about what is not
evidence. As you have heard, the opening remarks of
Counsel, and I think I told you during their opening
remarks, that they would be suggesting to you, was
[sic] going to be proven, the opening remarks of the
attorney are not evidence. Similarly, the closing
remarks of the attorneys are not evidence. That is to say, the attorneys, as they talk about the evidence,
that's been introduced, recapitulated, they summarize
it, they may restate the evidence, synopsize some
parts, or all of it. But they're not adding any
evidence as they talk to you about their
recapitulation. They are arguing to persuade you to
find in favor of the position that they espouse.
(Trial Transcript, 3/5/96 at pp. 70-71).
Thus, even assuming that the prosecutor's remarks were
improper, the judge's instruction was clear and correct and
prevented the prosecutor's remarks from so infecting the trial
with unfairness as to make the resulting conviction a denial of
Further, Petitioner has not demonstrated that the actions of
the state courts "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 "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." Accordingly, this
ground for a writ of habeas corpus will be denied.
D. Claim Regarding Trial Court Error.
Petitioner also argues that he was denied his right to a fair
trial as a result of the elicitation of testimony by the
prosecutor that connected petitioner with prior criminal conduct.
In particular, when the victim's mother was testifying, the
prosecutor asked her if she specifically questioned the victim as to whether anything of a sexual nature was going on between her
and the petitioner. The victim's mother stated that she did ask.
The prosecutor then asked: "What made you ask her that?" To which
the victim's mother replied: "His background." (Trial Transcript,
2/29/96 at p. 35). Defense counsel did not object. Petitioner
argues that this "elicitation" was inadmissible and prejudicial,
as it connected him with prior criminal conduct.
The Appellate Division examined this claim and found:
As far as we can discern, the witness' reference to
"[defendant's] background" was not anticipated by the
prosecutor, was fleeting and not thereafter referred
to. Moreover, to the extent the jury might have drawn
an inference that defendant had a prior record, they
were to find that out, in any event, when he
testified. Further, no objection was made, we do not
think it was "clearly capable of producing an unjust
result," and any error was plainly harmless as the
evidence was otherwise overwhelming. We are convinced
the fleeting comment had nothing to do with the
(State v. J.R., A-7360-95T4 (Sept. 22, 1997) at p. 4).*fn4
Additionally, Petitioner claims that the trial court erred in
ruling that his prior convictions were admissible to attack
credibility. The Appellate Division was presented this claim on
direct appeal and found that it was "entirely without merit and
requires no further opinion."
With respect to Petitioner's claims in his habeas petition that
the trial court erred in admitting the above-described testimony, it has been hold that federal courts must afford the
states deference in their determinations regarding evidence and
procedure. See Crane v. Kentucky, 476 U.S. 683, 690 (1986)
(stating "we have never questioned the power of the States to
exclude evidence through the application of evidentiary rules
that themselves serve the interests of fairness and reliability,
even if the defendant would prefer to see that evidence
admitted"). It is well-established that "a state court's
misapplication of its own law does not generally raise a
constitutional claim. The federal courts have no supervisory
authority over state judicial proceedings and may intervene only
to correct wrongs of constitutional dimension." Smith v. Horn,
120 F.3d 400, 414 (3d Cir. 1997) (citations omitted), cert.
denied, 522 U.S. 1109 (1998).
Assuming, arguendo, that the trial judge did err under state
law in allowing the testimony, a state's misapplication of its
own law may constitute a violation of due process only in "rare"
cases. See id. ("when that misapplication has the effect of
depriving a person of life, liberty, or property without due
process of law in violation of the Fourteenth Amendment, the
resulting federal constitutional error can be corrected by a
federal habeas court"). Evidentiary rulings may violate due
process when the petitioner "was denied fundamental fairness at
trial." Hutchins v. Hundley, 1991 WL 167036 at *4 (D.N.J. Aug. 22, 1991) (Wolin, J.) (citations omitted); see also Kontakis
v. Beyer, 19 F.3d 110, 120 (3d Cir.), cert. denied,
513 U.S. 881 (1994); Lisenba v. California, 314 U.S. 219, 228, 236
(1941) (holding that state court's evidentiary rulings may form
the basis for habeas relief when they "so infused the trial with
unfairness as to deny due process of law").
The appropriate inquiry is "whether the claimed error of law is
a fundamental defect which inherently results in a complete
miscarriage of justice or in an omission inconsistent with the
rudimentary demands of fair procedure." Hutchins, 1991 WL
167036 at *4 (citing United States v. De Luca, 889 F.2d 503,
506 (3d Cir. 1989), cert. denied, 496 U.S. 939 (1990)) (other
citations omitted). The Supreme Court has further stated that "an
otherwise valid conviction should not be set aside if the
reviewing court may confidently say on the whole record that the
constitutional error was harmless beyond a reasonable doubt."
Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986). An error is
not harmless if "it aborts the basic trial process or denies it
altogether." Hutchins, 1991 WL 167036 at *5 (citing Rose v.
Clark, 478 U.S. 570, 578 n. 6 (1986)).
In the instant case, this Court finds that Petitioner's case is
not the "rare" instance where evidentiary rulings have violated
his rights to due process. No objection was made to the
statements challenged by Petitioner. A review of the whole record demonstrates that the trial process was fundamentally
fair. The comment by the State's witness referring to
Petitioner's "background" was not so egregious as to result in a
complete miscarriage of justice the comment did not
specifically refer to a criminal background, and could have been
perceived in other ways by jurors. In fact, it is not clear that
the witness was referring to Petitioner's criminal background
when making the comment. She could have been referring to his
background of abuse towards her, or his sexual preferences, or
some other factor in his background. Regardless, this Court finds
no violation of Petitioner's due process rights due to the
Furthermore, Petitioner's argument that the trial court
permitted the State to use Petitioner's prior convictions for
impeachment purposes because they are too remote is without
merit. Petitioner's prior convictions occurred in 1982
(possession of controlled dangerous substance), and 1988 (theft
and criminal mischief). The trial court ruled that if Petitioner
were to testify, both convictions would be admissible, and that
neither conviction was too remote.
Under both New Jersey state law, and Federal law, it is within
the trial court's discretion to allow defendants to be impeached
by prior criminal convictions. See Fed.R.Evid. 609 (evidence
that accused has been convicted of a crime admissible to attack
credibility if court finds probative value outweighs prejudicial effect); N.J.R. Evid. 609 (evidence of prior
conviction of accused admissible to impeach unless it is too
remote); State v. Sands, 76 N.J. 127, 144-45 (1979) (broad
discretion to trial judge to determine remoteness; trial judge
"must balance the lapse of time and the nature of the crime to
determine whether the relevance with respect to credibility
outweighs the prejudicial effect to the defendant"). As it was
within the trial court's discretion to determine whether or not
Petitioner's prior convictions were too remote to be used for
impeachment purposes, this Court finds no constitutional
Further, the state court determinations have not "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 "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." Accordingly, this ground for a writ of habeas corpus
will be denied.
E. Claim Regarding Ineffective Assistance of Counsel.
Petitioner claims that his trial counsel was ineffective, in
that he did not cross-examine witnesses effectively, and did not
advocate for a shorter sentence, or against an extended term.
Petitioner also states that his attorney did not call witnesses on his behalf, including the social worker who interviewed the
In Strickland, the Supreme Court held that in order to
establish that trial counsel is ineffective, the petitioner must
show that "counsel's performance was deficient," in that "counsel
made errors so serious that counsel was not functioning as
`counsel' guaranteed . . . by the Sixth Amendment," and "that the
deficient performance prejudiced the defense." Id. at 687. In
order to establish prejudice, the defendant must show "a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
State v. Fritz, 105 N.J. 42, 60-61 (1997) (quoting
Strickland, 466 U.S. at 694). "In any case presenting an
ineffectiveness claim, the performance inquiry must be whether
counsel's assistance was reasonable considering all the
circumstances." Strickland, 466 U.S. at 688. The Supreme Court
Judicial scrutiny of counsel's performance must be
highly deferential. It is all too tempting for a
defendant to second-guess counsel's assistance after
conviction or adverse sentence, and it is all too
easy for a court, examining counsel's defense after
it has proved unsuccessful, to conclude that a
particular act or omission of counsel was
unreasonable. A fair assessment of attorney
performance requires that every effort be made to
eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's
perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must
indulge a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the
defendant must overcome the presumption that, under
the circumstances, the challenged action "might be
considered sound trial strategy."
Id. at 689 (citations omitted); see also Virgin Islands v.
Wheatherwax, 77 F.3d 1425
, 1431 (3d Cir. 1996), cert. denied
519 U.S. 1020 (1996).
Petitioner's arguments that his counsel was ineffective in
violation of the Sixth Amendment are without merit. Petitioner
fails to show that the result of his case would have been
different had counsel more vigorously cross-examined the victim.
See Strickland, 466 U.S. at 688; Fritz, 105 N.J. 60-61. In
fact, at the time of the trial, the victim was an eleven-year-old
child. It is certainly feasible that counsel would not want to
vigorously cross-examine a child claiming to be the victim of
abuse before a jury. Also, this Court notes that a review of the
record indicates that counsel adequately cross-examined the
victim, asking her about inconsistencies between her statement to
the police and her direct testimony, and eliciting information to
establish that she could have fabricated the accusations against
Petitioner due to her knowledge of sex and her witnessing her
mother and Petitioner in certain situations. Petitioner has not
overcome the strong presumption that counsel's actions were trial
strategy. See id. at 689. application of, clearly established Federal law, as determined by
the Supreme Court of the United States," or "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." The petition for a writ of habeas corpus, is
For the foregoing reasons, Petitioner's application for a Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2254 is hereby DENIED.
An appropriate Order accompanies this Opinion.
The Court further finds that no certificate of appealability
will issue because Petitioner has not made a substantial showing
of the denial of a constitutional right, as required by
28 U.S.C. § 2253.
© 1992-2005 VersusLaw Inc.