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RADICH v. ATTORNEY GENERAL OF STATE OF NEW JERSEY

August 31, 2005.

JOHN J. RADICH, III, Petitioner,
v.
ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, et al., Respondents.



The opinion of the court was delivered by: WILLIAM H. WALLS, District Judge

OPINION

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 propriety.
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 ...

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