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
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unpublished per curiam Opinion decided January 28, 2003, the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.
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 ...