United States District Court, D. New Jersey
December 27, 2005.
JOSEPH ARUANNO, Petitioner,
LYDELL SHERRER, et al., Respondents.
The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
Petitioner, Joseph Aruanno, filed the within petition for a
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Respondents
have filed an Answer. The Court has considered all submissions.
For the reasons set forth below, the Petition will be denied.
1. Factual Background
The facts of this case were recounted below and this Court,
affording the state court's factual determinations the appropriate deference, see 28 U.S.C. § 2254(e) (1), will simply
reproduce the Appellate Division's factual recitation:
At 5:30 p.m. on December 10, 1996, eight year old
G.B. was playing on the front porch of her house in
Wildwood. A man, later identified as defendant, came
onto the porch and thrust his hand down her pants
touching her vaginal area. When G.B. yelled "stop",
the man left. The identification evidence,
defendant's confession, and the inferences which
could be made from his attempted flight when
arrested, if believed by the jury, was sufficient to
prove defendant's guilt beyond a reasonable doubt.
(Respondents' Appendix "Ra" 5).
2. Procedural History
In 1997, a Cape May County Grand Jury indicted Petitioner on
two counts, including: second degree sexual assault, contrary to
N.J.S.A. 2C:14-2b (count one); and third degree endangering the
welfare of a child, contrary to N.J.S.A. 2C:24-4a (count two).
Petitioner was tried by jury from May 18 to May 20, 1998 in the
Superior Court of New Jersey, Law Division, Cape May County ("Law
Division"). The jury found the petitioner guilty of only count
one (second degree sexual assault). On February 5, 1999,
Petitioner was sentenced to ten years imprisonment and community
supervision for life as a sex offender.
Petitioner appealed his conviction and sentence. The Superior
Court of New Jersey, Appellate Division ("Appellate Division")
affirmed the conviction and sentence on October 9, 2001. (Ra5;
State v. Aruanno, A-4188-98T4, Oct. 9, 2001). The New Jersey
Supreme Court denied Petitioner's petition for certification on February 19, 2002. See State v. Aruanno,
171 N.J. 338 (2002).
The instant petition was received on May 20, 2002 and filed on
June 25, 2002. On July 22, 2002, and September 18, 2002,
Petitioner was advised of his rights pursuant to Mason v.
Meyers, 208 F.3d 414 (3d Cir. 2000). On December 19, 2002,
Respondents filed an Answer and the state court record. On
September 8, 2004, this matter was administratively terminated.
It was reopened on April 12, 2005. Petitioner has filed a motion
for counsel; two previous motions for counsel have been
A. Petitioner's Claims.
Petitioner assorts the following arguments for habeas relief:
1. The weight of the evidence does not support his conviction.
2. Ineffective assistance of counsel.
3. The trial was "unfair."
4. He was denied a speedy trial.
5. Grand jury was improperly conducted.
6. Proper appeal process was denied.
7. The trial judge should have recused himself.
8. "All rights and due processes" were denied.
9. His sentence was excessive. See Petition for Writ of Habeas Corpus, ¶ 12.
Petitioner has raised the instant claims before the New Jersey
state courts. Therefore, they are properly before this Court for
a decision on the merits. 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).
B. 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
(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, 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, SCT 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).
C. Petitioner's Claim Regarding Weight of the Evidence.
Petitioner claims that there was "no evidence, physical or
technical" against him, and that "the weight of the `alleged'
evidence will not support a conviction. It is clear there was no confession or identification and worse yet that the state
fabricated both!" (Petition, Ground One).
A claim that the jury's verdict was against the weight of the
evidence is "essentially a matter of state law, and does not
raise a federal constitutional question unless the record is
completely devoid of evidentiary support in violation of
Petitioner's due process." Douglas v. Hendricks,
236 F. Supp.2d 412, 435-36 (D.N.J. 2002) (Walls, J.) (citation omitted). A writ
should not issue unless "no rational trier of fact could have
found proof of guilt beyond a reasonable doubt." Id. at 436
(citations omitted). As noted, factual determinations by the
trial court are presumed to be correct. See Werts v. Vaughn,
228 F.3d 178, 186 (3d Cir. 2000).
In the instant case, the Appellate Division noted that a
reasonable jury could choose to believe the witnesses, and
Petitioner's own confession, and find the petitioner guilty of
the charges beyond a reasonable doubt. (Ra5). The Appellate
Division found that Petitioner's claims regarding weight of the
evidence were "clearly without merit." After a review of the
record, this Court agrees with the state court's determination
that there was sufficient evidence to convict the petitioner of
the count for which he was found guilty. The record is not
"devoid" of evidence with regard to the count. As such, this
Court finds that no federal question of a due process violation has been raised to warrant the issuance of a writ of habeas
corpus. In addition, the petitioner has not shown, as required by
28 U.S.C. § 2254(d), 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. Petitioner's Ineffective Assistance of Counsel Claims.
Petitioner argues in Ground Two of his Petition that he did not
have the assistance of effective and competent counsel throughout
his trial. He states that: "Throughout [my] case my attorneys
proceed as they wanted, not as I asked. No motions for trial,
refused to obtain evidence in my favor. Public Defenders refused
to consult with me or address all issues. All refused to
interview people." (Petition, Ground 2). Petitioner raised this
claim on direct appeal, and was directed to reassert the claim in
a post-conviction relief petition, which he did not do. (Ra5).
Petitioner also states that his "proper appeal process was
denied," because his public defender refused to consult with him,
and thus, "knew very little about [the] case." He states that his appellate counsel did not raise the "most critical issues."
In Strickland v. Washington, 466 U.S. 668 (1984), 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 prejudice,
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 further explained:
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).
Additionally, the Supreme Court has held that the Due Process
Clause of the Fourteenth Amendment guarantees a defendant the
effective assistance of counsel on a first direct appeal as of
right. See Evitts v. Lucey, 469 U.S. 387 (1985). The
Strickland standard for effective assistance of counsel applies
to appellate counsel. See Lewis v. Johnson, 359 F.3d 646, 656
(3d Cir. 2004). Appellate counsel does not have a duty to advance
every nonfrivolous argument that could be made, see Jones v.
Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish
that appellate counsel was constitutionally ineffective "if he
shows that counsel omitted significant and obvious issues while
pursuing issues that were clearly and significantly weaker,"
Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).
In the instant case, Petitioner raised his ineffective
assistance of counsel claims on direct appeal. The Appellate
Division did not rule on the claims on the merits, but instead
informed Petitioner that he would need to bring his claims in a post-conviction relief motion before the trial court. (Ra5).
Petitioner did not do so.
When a state prisoner fails to follow a state procedural rule
at trial, on appeal, or in a state PCR proceeding, and the state
court dismisses a federal claim on independent and adequate state
law grounds, a federal habeas court must utilize the "cause and
prejudice" test to determine if the claim could be entertained.
See Wainwright v. Sykes, 433 U.S. 72 (1977); Coleman v.
Thompson, 501 U.S. 772 (1991). The petitioner must demonstrate
either (a) good cause for the failure to follow the rule of state
procedure and actual prejudice resulting therefrom, or (b) that a
miscarriage of justice would result if the court does not address
the merits of petitioner's claims. See id.
The Third Circuit has noted that in order to establish "cause"
for procedural default, the petitioner must "`show that some
objective factor external to the defense impeded counsel's
efforts to comply with the State's procedural rule.'" Werts v.
Vaughn, 228 F.3d 178, 193 (3d Cir. 2000) (quoting Murray v.
Carrier, 477 U.S. 478, 488 (1986)). Ineffective assistance of
counsel can constitute cause. See id.; Murray,
477 U.S. at 488. With regard to prejudice, the petitioner must show that he
was denied "fundamental fairness" at trial. See id. (citing
Murray, 477 U.S. at 494. Alternatively, a federal habeas court may review a procedurally
defaulted claim if failure to do so would result in a
"miscarriage of justice." See id. This exception applies "in
extraordinary cases, i.e., `where a constitutional violation has
probably resulted in the conviction of one who is actually
innocent. . . .'" See id. (quoting Murray,
477 U.S. at 496).
In the instant claim, Petitioner has failed to show cause or
prejudice, or that a miscarriage of justice has occurred in order
for this Court to review his ineffective assistance of counsel
claims. Petitioner has not advanced good cause for not following
the state procedural rules, and doing as directed by the
Appellate Division. Petitioner has also not demonstrated that he
was prejudiced and that he was denied fundamental fairness at
trial. Petitioner has also not shown that failure to review his
ineffective assistance of counsel claim would result in a
miscarriage of justice, i.e., that he is actually innocent.
Evidence at trial revealed that shortly after the incident, the
victim's mother called police. The victim gave a description of
her assaulter, and a search began. Petitioner was about two
blocks away from the area of the assault when he was spotted by
police officers. Once Petitioner spotted one of the officers, he
quickened his pace and broke into a slow jog. The officer
approached him and Petitioner asked why he was being stopped and
stated that he did nothing wrong. The officer told him that he fit the description of an individual involved in an incident a
few blocks away, and read Petitioner his rights. The victim was
driven to the scene, and although she could not positively
identify Petitioner at first due to his positioning showing only
his profile, the victim was able to identify Petitioner after the
Petitioner was turned to face her. The victim began to shake
after the identification. This identification occurred in less
than ten minutes from the time the police received the call from
the victim's mother. Testimony revealed that the identification
occurred approximately a half-hour after the attack.
Petitioner was told he was under arrest, and began to run in an
attempt to escape. He was finally tackled to the ground by
officers and handcuffed. During a police interview in which
Petitioner waived his rights, Petitioner stated that he was sorry
for what had happened to the victim, and cried. He nodded when
asked if he had touched the victim. He said he would sign a
confession, but would not provide details of the assault.
At trial, the victim could not positively identify Petitioner,
as he had changed his appearance, but others identified him as
the person who was arrested the night of the assault.
Prior to trial, Petitioner moved the court to proceed pro se.
Trial transcripts reveal that he was disrespectful and
belligerent. The court denied the request, as the case was already old. Petitioner's attorney revealed that petitioner had
not been cooperating with the investigation of the case, stating
that he didn't want to try the case, didn't want his attorney
representing him, and kept saying that he needed different
representation, and "a dream team" to represent him. (Rall).
Once trial proceeded, the State produced as witnesses the
victim, the victim's mother, and various police officers.
Petitioner's counsel effectively cross-examined the witnesses to
attempt to undermine their credibility. The jury chose to believe
the witnesses, at least with regard to the sexual assault count;
however, this does not provide evidence of ineffective assistance
Based on the record provided, Petitioner has not demonstrated
that he was denied fundamental fairness at trial, or that a
miscarriage of justice will have occurred due to the procedural
bar on review of his ineffective assistance of counsel claim.
Thus, the Court will not grant habeas relief on these claims. E. Petitioner's Unfair Trial, Denial of All "Due Processes"
Claims, and Claim Regarding Trial Judge Recusal.
Petitioner claims that his trial was "filled with structural
defects," that he was not allowed to file motions or subpoena
witnesses, that the state withheld evidence in his favor, the
judge misled the jury, the prosecutor made false statements, and
the jury found him guilty before trial. (Petition, Ground 3). He
also claims that his due process and "all" rights were violated
"every step of the way." (Petition, Ground 8). Petitioner also
argues that the trial judge should have recused himself due to
the fact that "he was in denial and became angry, then continued
to violate me worse. Then I filed complaints and a lawsuit and he
took that personal." (Petition, Ground 7).
Petitioner raised these arguments on direct appeal in a pro
se letter brief, and his claims were found to be "clearly
without merit." (Ra5).
It has been held 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 made errors under
state law, 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 is 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 this case, Petitioner's conclusory statements are not
sufficient to warrant habeas relief. A review of the record finds
that Petitioner was not denied due process, and that a proper
trial was conducted. Petitioner was treated fairly, and there was
sufficient evidence to find him guilty of the sexual assault
charge. The fact that Petitioner disagrees with the verdict at
least the verdict of guilt on the sexual assault charge as
opposed to the verdict of acquittal on the endangering charge
is not sufficient to warrant habeas relief based on conclusory
Petitioner may be attempting to argue that even if any one of
the errors complained of do not warrant a new trial, the accumulation of errors was so great as to deny Petitioner a fair
trial. Such an argument here would be unavailing.
Even if none of Petitioner's claims on its own amounts to a
constitutional violation, the "cumulative effect of the alleged
errors may violate due process." Sullivan v. Cuyler,
631 F.2d 14, 17 (3d Cir. 1980); see also Douglas v. Hendricks,
236 F. Supp.2d 412, 436 (D.N.J. 2002) (Walls, J.) (stating that no
cumulative error occurred when the trial was fair and verdict
supported by sufficient evidence); Pursell v. Horn,
187 F. Supp.2d 260, 374 (W.D. Pa. 2002) ("That the reliability of a
state criminal trial can be substantially undermined by a series
of events, none of which individually amounts to a constitutional
violation, is an idea that has been accepted by nearly every
federal court to have addressed the issue.").
This Court finds that Petitioner has not demonstrated that
aggregated trial errors rendered his trial unfair. There was
sufficient evidence produced at trial that supported the verdict
rendered by the jury. Therefore, this ground for habeas corpus
relief will be denied.
F. Petitioner's Claim Regarding Denial of Speedy Trial
Petitioner claims that his right to a speedy trial was violated
because his "trial was postponed for evaluations that were not
needed, and again so the prosecutor could go on vacation when the
law states this type of crime is to be tried as soon as possible. The prosecution and state's undue delays resulted in a
prejudicial situation which prohibited my ability to have a fair
trial." (Petition, Ground 4).
The Sixth Amendment guarantees that "[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial." U.S. CONST. amend. VI. In Barker v. Wingo,
407 U.S. 514 (1972), the Supreme Court set forth four guidelines to
determine whether the Sixth Amendment's guarantee of a speedy
trial has been violated: (1) the length of the delay; (2) the
reason for the delay; (3) whether, in due course, the defendant
asserted his right to a speedy trial; and (4) the prejudice to
the defendant. See id. at 530; see also United States v.
Dent, 149 F.3d 180, 184 (3d Cir. 1998), cert. denied, Dent
v. United States, 525 U.S. 1085 (1999).
In the instant case, the petitioner has not demonstrated facts
or evidence to support any of these four factors. Petitioner was
indicted in January 1997, and tried in May 1998. Assuming,
arguendo, that a sixteen-month delay is lengthy, the petitioner
has not shown that he has been prejudiced by this delay, or that
the delay was unreasonable. Petitioner has not asserted his right
to a speedy trial at any time in the state courts. Therefore, he
fails to demonstrate that his Sixth Amendment right to speedy
trial has been violated, and his habeas claim is without merit. G. Petitioner's Claim Regarding the Grand Jury.
Petitioner claims that the grand jury proceedings in his case
were improperly conducted. He states that "the state withheld
evidence and made false statements. They did not present
exculpatory evidence. They refused to allow me to attend. All
this resulted in invalid indictments!" (Petition, Ground 5).
Petitioner vaguely presented this issue to the Appellate
Division, which found the claim to be "clearly without merit."
Any errors in the issuance of the indictment are errors of
state law, precluding habeas relief. See Smith v. Horn,
120 F.3d 400, 414 (3d Cir. 1997) (citations omitted), cert.
denied, 522 U.S. 1109 (1998). New Jersey state law requires all
objections based on defects in the indictment to be raised prior
to trial. See N.J. Ct. R. 3:10-2(c). New Jersey state law
also mandates that the proceedings be held in secrecy, see
N.J. Ct. R. 3:6-7, and that only the jurors, prosecuting
attorney, clerk, and witnesses are permitted to attend the grand
jury sessions, see N.J. Ct. R. 3:6-6.
Petitioner's bare allegations fail to raise a constitutional
violation, and do not demonstrate 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.
H. Petitioner's Claim Regarding Sentence.
Petitioner argues that his sentence was excessive. However, 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 indigeneies." 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 one count of second degree
sexual assault and was sentenced to ten years imprisonment. 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. As the sentencing issue raised by
Petitioner is a matter of state law, and because the Court finds
no constitutional violation, this claim must be denied. CONCLUSION
For the foregoing reasons, the Petition for a Writ of Habeas
Corpus, pursuant to 28 U.S.C. § 2254 is denied. 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.
Petitioner's pending motion for counsel is denied as moot.
An appropriate Order accompanies this Opinion.
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