United States District Court, D. New Jersey
November 4, 2005.
ALEJANDRO PAULINO, Petitioner,
ALFARO ORTIZ, et al., Respondents.
The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge
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unpublished per curiam Opinion decided January 28, 2003, the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.
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 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 proceeding.
28 U.S.C. § 2254(d).
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court
explained that subsection (d)(1) involves two clauses or conditions, one of which must be satisfied before a writ may
issue. The first clause, or condition, is referred to as the
"contrary to" clause. The second condition is the "unreasonable
application" clause. Williams, 529 U.S. at 412-13. In the
"contrary to" clause, "a federal court may grant the writ if the
state 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. Under the
"unreasonable application" clause, a federal court may grant the
writ 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 petitioner's] case."
Id. at 413. Habeas relief may not be granted under the
"unreasonable application" condition 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. 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. 1999), cert. denied
sub nom Matteo v. Brennan, 528 U.S. 824 (1999).
Consonant with Williams, the Third Circuit has held that §
2254(d)(1) requires a federal habeas court to make a two step inquiry of the petitioner's claims. First, the court must examine
the claims under the "contrary to" provision, identify the
applicable Supreme Court precedent and determine whether it
resolves petitioner's claims. See Werts, 228 F.3d at 196-97;
Matteo, 171 F.3d at 888-891. If the federal court determines
that the state court's decision was not "contrary to" applicable
Supreme Court precedent, then the court takes the second step of
the analysis under § 2254(d)(1), which is whether the state court
unreasonably applied the Supreme Court precedent in reaching its
decision. Werts, 228 F.3d at 197.
This second step requires more than a disagreement with the
state court's ruling because the Supreme Court would have reached
a different result. Id. AEDPA prohibits such de novo review.
Rather, the federal habeas court must determine whether the state
court's application of the Supreme Court precedent was
objectively unreasonable. Id. In short, 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. Id.; see also Jacobs v. Horn, 395 F.3d 92, 100
(3d Cir. 2005).
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 Third Circuit has ruled that this presumption of correctness based upon state
court factual findings can only be overcome by clear and
convincing evidence. See Duncan, 256 F.3d at 196 (citing
28 U.S.C. § 2254(e)(1)). Consequently, a habeas petitioner "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. Failure to Instruct the Jury (Grounds One and Three)
In his first and third claims for relief, Paulino alleges that
the trial court failed to instruct the jury on the issue of prior
inconsistent statements, and failed to charge the jury on a
lesser included offense of harassment.
Generally, matters of state law and rules of procedure are not
reviewable in a federal habeas petition. The Supreme Court has
stated that "it is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions."
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Federal courts
must afford the states deference in its determinations regarding
evidence and procedure. See Crane v. Kentucky, 476 U.S. 683,
690 (1986). 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).
Similarly, questions relating to jury charges are normally
matters of state law and are not cognizable in federal habeas
review. See Engle v. Isaac, 456 U.S. 107 (1982); Henderson
v. Kibbe, 431 U.S. 145 (1977); Zettlemoyer v. Fulcomer,
923 F.2d 284, 309 (3d Cir.), cert. denied, 502 U.S. 902 (1991);
Grecco v. O'Lone, 661 F. Supp. 408, 412 (D.N.J. 1987)
(Thompson, J.). Only where the jury instruction is "so
prejudicial as to amount to a violation of due process and
fundamental fairness will a habeas corpus claim lie." Id.
"[T]he fact that [an] instruction was allegedly incorrect under
state law is not a basis for habeas relief." Estelle v.
McGuire, 502 U.S. at 71-72. Rather, the district court must
consider "`whether the ailing instruction by itself so infected
the entire trial that the resulting conviction violates due
process,' . . . not merely whether `the instruction is
undesirable, erroneous, or even universally condemned.'"
Henderson, 431 U.S. at 154 (quoting Cupp v. Naughten,
414 U.S. 141, 146-47 (1973)). Moreover, "[t]he burden of
demonstrating that an erroneous instruction was so prejudicial
that it will support a collateral attack on the constitutional
validity of a state's court judgment is even greater than the showing required to establish plain
error on direct appeal." Id.
Here, with respect to Paulino's claim that an instruction
should have been given the jury on a lesser included offense of
harassment, it appears that there was no request by counsel for
such a charge. In Beck v. Alabama, 447 U.S. 625, 635 (1980),
the Supreme Court held that in a capital case, a trial court must
give a requested charge on a lesser included offense where it is
supported by the evidence. 447 U.S. at 635; Gilmore v. Taylor,
508 U.S. 333, 360 (1993). The Court left open the question of
whether instructions on lesser included offenses were required in
non-capital cases. Id. The Third Circuit has held that trial
courts must charge a lesser included offense so that the jury
does not convict a defendant of a crime more serious than the
jury believes the defendant actually committed merely because the
jury believes the defendant had some degree of involvement and
does not want to set the defendant free. Vujosevic v. Rafferty,
844 F.2d 1023, 1027 (3d Cir. 1988) (citing Keeble v. United
States, 412 U.S. 205, 212-13 (1973)). But see Geschwendt v.
Ryan, 967 F.2d 877, 884 n. 13 (3d Cir.) (observing that the
Supreme Court, in Schad v. Arizona, 501 U.S. 624 (1991), cast
doubt on the theory that due process requires the court to
instruct on a lesser included offense in non-capital offenses),
cert. denied, 506 U.S. 977 (1992). Other circuits have held
that the failure to give lesser included offense instructions in a
non-capital case does not present a constitutional question.
See Pitts v. Lockhart, 911 F.2d 109, 112 (8th Cir. 1990),
cert. denied, 501 U.S. 1253 (1991); Bonner v. Henderson,
517 F.2d 135, 136 (5th Cir. 1975).
Under New Jersey law, an instruction as to a lesser offense is
warranted where the facts provide a rational basis for such a
conviction. N.J.S.A. 2C:1-8e ("the court shall not charge the
jury with respect to a lesser included offense unless there is a
rational basis for a verdict convicting the defendant of the
lesser included offense"); State v. Choice, 98 N.J. 295, 298-99
(1985). However, a charge on a lesser included offense should not
be given where it would invite the jury to engage in sheer
speculation. State v. Mendez, 252 N.J. Super. 155, 159 (App.
Div. 1991), certif. denied, 127 N.J. 560 (1992).
This Court finds no need to determine whether or not due
process requires a trial court to charge a jury on a lesser
included offense in non-capital cases, because in this case, the
testimonial evidence presented at trial clearly supported the
charge of terroristic threats, and not mere harassment. See
Khalif v. Hendricks, 2005 WL 2397227 *20 (D.N.J. Sep. 28, 2005)
(quoting Kontakis v. Beyer, 19 F.3d 110, 118 (3d Cir. 1994)
("Nothing in Beck permits us to grant habeas relief when a
state court refuses to charge a jury that it may convict a defendant for an offense when under state law the evidence could
not justify the conviction")).
This Court further observes that the states are free to define
criminal offenses in any way they see fit, within certain
constitutional limitations, even through their lower courts.
Smith v. Horn, 120 F.3d 400, 415 (1997), cert. denied,
522 U.S. 1109 (1998) (citing Johnson v. Rosemeyer, 117 F.3d 104 (3d
Cir. 1997)). A habeas petitioner who challenges state jury
instructions must "point to a federal requirement that jury
instructions on the elements of an offense . . . must include
particular provisions," or "demonstrate that the jury
instructions deprived him of a defense which federal law provided
to him." Johnson, 117 F.3d at 110. Federal district courts
simply do not "sit as super state supreme courts for the purpose
of determining whether jury instructions were correct under state
law with respect to the elements of an offense and defenses to
it." Id; see also Geschwendt v. Ryan, 967 F.2d 877, 888-90
(3d Cir.), cert. denied, 506 U.S. 977 (1992).
Moreover, a "trial court does not . . . have the obligation on
its own meticulously to sift through the entire record in every
murder trial to see if some combination of facts and inferences
might rationally sustain a manslaughter charge." Choice,
93 N.J. at 299. Rather, "[i]t is only when the facts `clearly
indicate' the appropriateness of" an unrequested charge that the
duty of the trial court to provide the charge arises. Id. (quoting
State v. Mauricio, 117 N.J. 402 (1990)).
Here, it is not alleged that the defense counsel objected to
the jury instructions, nor did he request a charge on the lesser
included offense of harassment. Thus, petitioner must show that
the evidence presented at trial clearly indicated a rational
basis for the lesser included offense of harassment so as to
impose a duty on the trial court to so instruct the jury. Paulino
fails to meet this requirement. The testimonial evidence at trial
strongly supported the terroristic threat charge and conviction;
Paulino also was simultaneously convicted of associated weapons
offenses. Thus, a lesser included offense of mere harassment was
not obviously indicated. Therefore, there was no reasonable basis
from the evidence and testimony at trial from which the court
would be required to sua sponte instruct the jury on the
lesser included offense of harassment.
Moreover, even if it was error not to charge the jury on the
lesser included offense of harassment, the lack of such a charge
did not affect the outcome of the trial. There was sufficient
evidence at trial to support the terroristic threats conviction,
and it was very clear that the jury believed the victim's
testimony concerning the incident. Thus, at most, petitioner's
claim of fault is based on omission, which the Supreme Court has
stated is less serious than a misstatement of the law. See Henderson, 431 U.S. at 155 ("An omission, or an incomplete
instruction, is less likely to be prejudicial than a misstatement
of the law"). Paulino fails to point to a federal requirement
that a specific instruction was required in this instance; nor
can he demonstrate that the lack of the proposed charge deprived
him of a defense which federal law provided to him. Johnson v.
Rosemeyer, 117 F.3d at 110.
Therefore, this Court concludes that the absence of a jury
instruction on the lesser included offense of harassment, when
viewed in the context and evidence of this case, did not so
infect the trial with unfairness as to violate Paulino's due
process rights. Accordingly, this claim will be denied for lack
of substantive merit.
This Court reaches the same conclusion with respect to the
claim that the jury should have been instructed on the issue of
prior inconsistent statements. The trial judge did give the jury
general instructions on the issue of credibility. (2T 29:8-30:6).
Further, there was no request by counsel for the model jury
charges on prior inconsistent statements. Such an instruction
merely informs as to certain types of evidence and is typically
provided as a guide for the jury to evaluate the evidence at
trial. It does not go to the elements of the offenses or as to
burden of proof, which are required instructions. In addition, the Court finds that the lack of such an
instruction to the jury did not affect the outcome of the trial.
There was sufficient evidence at trial to support the
convictions. As stated above, this claim of error is based on
omission, which the Supreme Court has stated is less serious than
a misstatement of the law. See Henderson, 431 U.S. at 155.
Paulino fails to point to a federal requirement that a specific
instruction was required in this instance; nor can he demonstrate
that the lack of the proposed charge deprived him of a defense
which federal law provided to him. Johnson v. Rosemeyer,
117 F.3d at 110. Hence, this Court likewise concludes that the
absence of a jury instruction on prior inconsistent statements,
when viewed in the context and evidence of this case, did not so
infect the trial with unfairness as to violate Paulino's due
B. Prosecutorial Misconduct (Grounds Two and Four)
Next, Paulino raises two claims of prosecutorial misconduct.
First, he alleges that the prosecutor wrongly told the jury in
summation that the defense counsel failed to offer evidence to
disprove the State's charges. This conduct purportedly violated
petitioner's right against self incrimination. Second, Paulino
takes issue with the prosecutor's comment during summation that
petitioner is a criminal. Habeas review of a claim based on prosecutorial misconduct is
limited to determining whether the conduct "so infected the trial
with unfairness as to make the resulting conviction a denial of
due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974). "The touchstone of due process analysis in cases of
alleged prosecutorial misconduct is the fairness of the trial,
not the culpability of the prosecutor." Smith v. Phillips,
455 U.S. 209, 219 (1982). If it does not infect the entire trial,
misconduct alone is not enough to warrant a new trial. Id. at
220. "A criminal conviction is not to be lightly overturned on
the basis of a prosecutor's comments [or conduct] standing alone,
for the statements or conduct must be viewed in context." United
States v. Young, 470 U.S. 1, 11 (1985).
However, the U.S. Supreme Court has recognized the obligation
of a prosecutor to conduct a criminal prosecution with propriety
He may prosecute with earnestness and vigor indeed,
he should do so. But, while he may strike hard blows,
he is not at liberty to strike foul ones. It is as
much his duty to refrain from improper methods
calculated to produce a wrongful conviction as it is
to use every legitimate means to bring about a just
one. . . . Consequently, improper suggestions,
insinuations, and, especially, assertions of personal
knowledge are apt to carry much weight against the
accused when they should properly carry none.
Berger v. United States, 295 U.S. 78
, 88 (1935).
"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).
As to the claim that the prosecutor referred to the defendant
as a criminal during summation, this Court finds that the
prosecutor's single comment or remark during summation did not
have the capacity on its own to so infect the trial with
unfairness as to make the resulting conviction a denial of due
process. The decision of the Appellate Division is not contrary
to, and does not involve an unreasonable application of, clearly
established federal law nor is it based on an unreasonable
determination of the facts in light of the overwhelming
testimonial evidence presented in the state court proceedings.
Accordingly, this claim will be denied.
Likewise, with respect to the prosecutor's comment on the
defense counsel's failure to disprove the victim's testimony, the
Court finds no error of constitutional dimension. During
summation, the prosecutor stated: "The important part of it and
that's unshakeable, Mr Leszchyn [defense counsel] didn't
introduce any testimony, didn't shake her testimony, didn't
introduce anything to disprove the fact that he pushed her up
against the wall and put a gun to her head." (2T 17:17-22).
Defense counsel had objected several times during summation, but did not object to this comment by the prosecutor. Obviously, the
state courts did not conclude that this comment was prejudicial
Indeed, the New Jersey Supreme Court has held that similar
language during summation amounts to nothing more than fair
commentary as to the legitimate inferences that may be made from
the non-production of evidence, as opposed to an illegal comment
on the defendant's failure to testify. See State v. Gosser,
50 N.J. 438 (1967), certif. denied, 390 U.S. 1035 (1967).
Here, the prosecutor's comment was a general reference to the
lack of evidence overall, it was not a specific comment on the
defendant's failure to testify. This is underscored by the
prosecutor's specific remark that defense counsel could not shake
Ms. Tucker's testimony.
Consequently, this one remark by the prosecutor, which plainly
did not make any reference to the defendant's failure to testify,
did not so infect the trial with unfairness as to make the
resulting conviction a denial of due process. The decision of the
state courts in this regard is not contrary to, and does not
involve an unreasonable application of, clearly established
federal law nor is it based on an unreasonable determination of
the facts in light of the overwhelming testimonial evidence
presented in the state court proceedings. Therefore, the Court will deny this claim of prosecutorial misconduct for lack of
C. Excessive Sentence Claim
Sentencing is generally considered a matter of state criminal
procedure, which does not fall within the purview of federal
habeas review. Ervin v. Beyer, 716 F. Supp. 163, 165 (D.N.J.
1989); see also Johnson v. Beto, 383 F.2d 197, 198 (5th
Cir. 1967), cert. denied, 393 U.S. 868 (1968); U.S. ex rel.
Jackson v. Meyers, supra. Indeed, absent some constitutional
violation, federal courts cannot review a state's alleged failure
to adhere to its own sentencing procedure. Rorie v. Beard,
Civ.A. No. 04-3380, 2005 WL 825917, *5 (E.D. Pa. April 7, 2005)
(citing Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir.
1988)). Thus, a federal court will not reevaluate a sentence in a
habeas proceeding unless it exceeds the statutory limits. Jones
v. Superintendent of Rahway State Prison, 725 F.2d 40 (3d Cir.
1984); see also Williams v. Duckworth, 738 F.2d 828, 831
(7th Cir. 1984), cert. denied, 469 U.S. 1229 (1985) ("As
a general rule, federal courts will not review state sentencing
determinations that fall within statutory limits."); Bonner v.
Henderson, 517 F.2d 135, 136 (5th Cir. 1975) ("This Court
will not upset the terms of a sentence within statutory limits
unless so disproportionate to the offense as to be completely
arbitrary and shocking"). Here, petitioner has not alleged that his sentence violates any
federal constitutional rights. He does not allege that his
sentence exceeds statutory limits, nor does the record show that
the court evaluated the aggravating and mitigating factors in any
way other than a fair and reasonable manner based on the evidence
proven at trial. The sentence was clearly within the range given
the statutory offenses. Thus, the Court concludes that Paulino's
claim is completely baseless, and is not subject to federal
V. CERTIFICATE OF APPEALABILITY
This Court next must determine whether a certificate of
appealability should issue. See Third Circuit Local Appellate
Rule 22.2. The Court may issue a certificate of appealability
only if the petitioner "has made a substantial showing of the
denial of a constitutional right." 28 U.S.C. § 2253(c)(2). For
the reasons discussed above, this Court's review of the claims
advanced by petitioner demonstrates that he has failed to make a
substantial showing of the denial of a constitutional right
necessary for a certificate of appealability to issue. Thus, this
Court declines to issue a certificate of appealability pursuant
to 28 U.S.C. § 2253(c)(2). CONCLUSION
For the above reasons, this Court finds that the § 2254 habeas
petition should be denied on the merits and a certificate of
appealability will not issue. An appropriate Order follows.
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