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PAULINO v. ORTIZ

November 4, 2005.

ALEJANDRO PAULINO, Petitioner,
v.
ALFARO ORTIZ, et al., Respondents.



The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge

OPINION

This matter is before the Court on petitioner Alejandro Paulino's application for habeas corpus relief under 28 U.S.C. § 2254. For the reasons stated below, the petition for habeas relief will be denied for failure to make a substantial showing of a federal statutory or constitutional deprivation. I. BACKGROUND

  A. Procedural History

  Petitioner, Alejandro Paulino ("Paulino"), is presently confined at the Riverfront State Prison in Camden, New Jersey, serving an aggregate sentence of eight years in prison with a four-year period of parole ineligibility.

  Paulino was convicted by jury trial in the Superior Court of New Jersey, Law Division, Atlantic County in January 2001 on the following charges: (Count One) third degree terroristic threats; (Count Three) third degree unlawful possession of a weapon; (Count Four) second degree possession of a weapon for unlawful purposes; and (Count Five) second degree possession of a weapon by a convicted person. Paulino was acquitted of Count Two, fourth degree aggravated assault (pointing a firearm). He was sentenced on January 19, 2001 to five years imprisonment on Counts One and Three, eight years in prison with a four-year parole disqualifier on Count Four, and eight years imprisonment on Count Five. All sentences were to run concurrently.

  On May 3, 2001, Paulino appealed his final judgment of conviction to the New Jersey Appellate Division. In an unpublished per curiam Opinion decided January 28, 2003, the Appellate Division affirmed the conviction, finding that petitioner's claims "lack[ed] sufficient merit to warrant discussion in a written opinion." (Appellate Division Opinion, decided January 28, 2003, at pg.3-4 (RA84-85)).*fn1 The New Jersey Supreme Court denied certification on July 3, 2003. (RA116).

  Thereafter, on or about September 18, 2003, Paulino filed this federal habeas petition. The respondents answered the petition on January 5, 2004.

  B. Factual Background

  The facts of this case were recounted below and this Court, affording the state court's factual determinations the appropriate deference under 28 U.S.C. § 2254(e)(1), will simply reproduce the New Jersey Appellate Division's factual recitation:
This case arose after an objection was voiced by defendant's downstairs neighbor, Margaret Tucker, about defendant's loud playing of music in his upstairs apartment which had disrupted the night. Specifically, when her babysitter arrived at 6:30 a.m. on March 11, 2000, so that she could go to work, Tucker decided to ask defendant to turn down the music so that it would not wake up her children. She knocked on the door of defendant's apartment, which was answered by another individual. Defendant then appeared and allegedly closed his door, walked toward Tucker, pushed her against the wall, pulled a gun from his pants, and put it against her temple. He allegedly told Tucker he would blow her head off if she did not come into his apartment for sex.
(Appellate Division Opinion, decided January 28, 2003, at pg. 2).

  II. CLAIMS FOR HABEAS RELIEF

  Paulino raises the following claims in his federal habeas petition:*fn2 (1) the trial court violated petitioner's right to due process under the Fourteenth Amendment by failing to instruct the jury on the law of prior inconsistent statements; (2) the prosecutor's comment on summation that trial counsel did not introduce any testimony to disprove the fact that petitioner did not assault the victim as charged violated petitioner's Fifth Amendment right against self incrimination; (3) the trial court violated petitioner's Fourteenth Amendment right to due process by failing to instruct the jury on a lesser offense of harassment; (4) prosecutorial misconduct during summation referring to petitioner as a criminal violated petitioner's right to due process; and (5) the sentence was excessive.

  III. STANDARD GOVERNING REVIEW OF § 2254 CLAIMS

  The Court recognizes that a pro se pleading is held to less stringent standards than more formal pleadings drafted by attorneys. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). Thus, a pro se habeas petition should be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Duarte v. Hurley, 43 F. Supp.2d 504, 507 (D.N.J. 1999). Because Paulino is a pro se litigant, the Court will accord his petition the liberal construction intended for pro se petitioners.

  Under § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), federal courts in habeas matters must give considerable deference to determinations of the state trial and appellate courts. See 28 U.S.C. § 2254(e); Duncan v. Morton, 256 F.3d 189, 196 (3d Cir.), cert. denied, 122 S.Ct. 269 (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 habeas writ:
(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 ...

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