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Thomas J. Stiles v. Robert Balicki

February 6, 2012

THOMAS J. STILES PETITIONER,
v.
ROBERT BALICKI, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Hillman, District Judge

OPINION

This matter is before the Court on Petitioner's petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. For the following reasons, the petition will be denied.

BACKGROUND

A. Factual Background

The relevant facts are set forth in the opinion of the Superior Court of New Jersey, Appellate Division ("Appellate Division"), in Petitioner's direct appeal.*fn1

When the crimes occurred, in March 2003, defendant was thirty-five years old. Members of the Cumberland County Prosecutor's Office Internet Crimes Against Children Task Force conducted what is commonly referred to as a sting operation. The Task Force registered and paid for an internet account with America Online (AOL). Investigator Keith Dunn, a Task Force member, using invented screen names and corresponding profiles, entered AOL chat rooms. The created names and profiles were of fictitious young boys or girls.

Using the invented screen name, Dunn would enter particular member-created special interest chat rooms. Upon entry into a chat room, it is possible to participate in the chat room's general conversation or engage in private instant messaging (IM) conversations with specific individuals in the room. Dunn complied with the Task Force policy which did not permit an investigator to initiate a private conversation with a potential suspect. Once instant messages would begin to arrive, however, Dunn would exit the general chat room and engage in one-on-one conversations initiated by another.

At 3:36 p.m. on March 18, 2003, Dunn used the screen name "LizD1990" to enter the AOL chat room "Iluvmucholdermen." Dunn had created a profile for LizD1990. Under "name," he entered "Elizabeth, Liz, Lizzy, Cutie." He completed the profile with other playful entries; for example, Liz's "personal quote" was "boys ma age r such DORKS!!!!"

As soon as Dunn entered the chat room, he typed two entries: "Hiyee" and "12 F NJ only guys from near NJ IM me please." These comments sparked a few joke responses, such as, "LOL, jail bait"; "all New Jersey pedophiles line up"; and "[h]ave some Ovaltine, Liz."

Dunn also received an instant message from "Stigol67" at 3:38 p.m. that he did not consider a joke. This AOL user turned out to be defendant. His profile listed his name as "For you to gain my trust and ask." Under hobbies and interests, he listed "[m]ost all, but the best is to [be] found in bed." Stigol wrote that his "favorite gadgets" were "[y]oung and tight ... well let you figure that out."

An hour-long conversation ensued, featuring increasingly sexual dialog initiated by defendant. He continually asked Liz whether she was "really 12." He inquired whether Liz was a virgin to all things or if she had ever performed oral sex. He asked for her description, and expressed his delight that she was five feet tall and almost ninety pounds.

Defendant pressed for a private meeting, suggesting an isolated location near where she lived, recognizing that at her age she could not drive. She expressed interest in such a meeting but explained the difficulty of getting away from the supervision of her mother. Defendant told Liz to be careful and inquired whether anyone could see her computer screen.

Liz and defendant exchanged pictures during the conversation. Dunn forwarded the childhood picture of a fellow investigator. That photograph is reproduced in the record, and it plainly depicts a child not more than twelve years old.

The two agreed to meet at an abandoned parking lot, although there was a long conversation about Liz's ability to sneak out of dance class and return before her mother got home. The arrangements were made, but because of car trouble, Dunn was unable to intercept defendant at the designated meeting place. The next morning, Dunn received an e-mail from defendant that had been sent the previous evening, which said, "Hey I waited till 5:30 for you but didn't see you ... saw a car that kept going around, so I booked. E-mail me or IM me..I'll be on till midnight." Liz responded at 8:59 a.m. She stated that she could not meet Stigol because her mother came home as she got out of the shower and drove her to the dance studio. There was no further contact on March 19, 2003. However, defendant sent a lengthy e-mail at 4:26 a.m. on March 20. It read: Lizzie, Hmmm, ok ... but I'm still being very careful till you meet and play with me. Still have to be careful till I know you are for real. I was there, no lie ... just got spooked because of another car driving around ... thought maybe you could have been a cop or called the cops on me. I think we should try on Saturday to meet. In the morning, this way we can meet, talk, kiss and play without rushing. I would like to pick another place easier to[ ]go for you to have you wait and I would pick you up and bring you back to my place where we could sit on the couch and show me what you know. Start with a little kissing, feeling and then stripping each other. You want to feel my cock in your hands? Maybe suck on me like the big girls do? I can teach you if you are eager. Do you have tits yet? Small would be nice and flat chested is cool too. I can get off sucking on just your little nipples, but I really want to bury my face in [ ]between your legs and see if you have red hair down around your pussy too and taste you after you get wet for me. Write to me or IM me later and tell me what you want me to do to you once we get back to my house ... tell me anything. Question, when was that pic taken? I love your face, nice smile, pretty eyes and love your red hair ... are you going to smile like that when I lick your pussy?

If any of this is too much, that is cool too ... just let me know and we can go at your speed ... ok got to go, caught [sic] you later. TJ

The parties continued to exchange instant messages. Defendant continued to graphically describe the sexual acts he intended to perform with Liz. Her responses made clear that she was young and sexually inexperienced. Although she continued to express interest in sexual activity, she also continued to express apprehension about whether it would hurt, whether she might get pregnant, whether she might get caught, and the like.

A meeting was arranged at a local car wash at a specified time. In their conversations, defendant suggested that when they met they could drive to his house, where they could be alone and perform the sexual acts.

Dunn and other law enforcement personnel surveilled the car wash. At the designated time, defendant arrived driving a vehicle described in the conversation and proceeded immediately to the specific meeting place that had been discussed. Dunn and another officer arrested defendant for setting up a meeting for the purpose of having sex with a twelve-year-old girl. Defendant was advised of his Miranda rights. He acknowledged them and initialed a Miranda form. He acknowledged to Dunn that his reason for being there was "because the girl was really cute." Defendant consented to the search of his home and computer hard drive.

Dunn and other officers went to defendant's home. Defendant told the officers he lived there alone, that no one else used his home computer, and no one else could access his screen name. When the officers arrived at defendant's home, the computer was open and the picture sent by Dunn of the young girl that was purportedly Liz was on the screen.

At the stationhouse, defendant gave a lengthy tape-recorded statement. He acknowledged his ongoing communications with Liz, that he went to the designated parking lot to meet her when she did not arrive, and that he continued pursuing her with the intention of engaging in sexual activity. He gave no indication that he believed he was role-playing with an individual who was actually an adult but was merely pretending to be twelve years old. The taped statement was submitted to the jury at trial.

Defendant testified in his own behalf. He acknowledged that he had frequented the "Iluvmucholdermen" chat room for about one-and-one-half years prior to his arrest. He said he pursued sexual relationships with several women with whom he first spoke online. On this occasion, he did not view Liz's profile until after he initiated the conversation. Nevertheless, he disregarded the profile information because, based on his experience, he knew that no young girl could have an AOL profile or enter a mature chat room. He based his knowledge of AOL's parental controls on his efforts to create a limited screen name for his young son.

Defendant contended that he made the increasingly sexual comments to Liz because he believed he was role-playing with an adult, in spite of the many references to Liz's young age and her mother and grandmother. He said he made the sexual comments because he wanted to discern the sexual experience and proclivities of the woman with whom he was communicating and to indulge her fantasies. He insisted that he believed he was dealing with an adult. He pointed to several aspects of the conversations which to him suggested she was an adult. As to Liz's petite size, defendant described a former adult girlfriend of his who was about the same size. He contended that he believed Liz's "dance class" referred to an adult dance hall or a private gentlemen's club.

Dunn acknowledged under cross-examination that AOL rules require an individual to be at least eighteen to create a profile. He agreed that, when setting up a new screen name, AOL asks the user, "Are you creating this screen name for a child?" AOL then provides a parent disclaimer form encouraging parents to utilize particular parental controls in order to protect the safety and privacy of their children. These parental settings permit the parent to choose the appropriate age category for the child. When a parent selects the "under twelve" age category, the child cannot use AOL's IM service and can only enter monitored chat rooms. The child could not access the "Iluvmucholdermen" chat room.

Dunn agreed with defense counsel that he logged into AOL as someone with no parental controls. However, Dunn refused to believe that this supported defendant's claim that no young child could be present in the chat room. Dunn did not know the date AOL placed the parental control information on its server. Dunn believed an underaged individual could create a screen name and enter a mature chat room if he or she was determined to do so. For example, a knowledgeable thirteen-year-old could get a password cracker to ascertain the master screen name password, and then follow the basic procedure to create his or her own screen name.

The jury obviously rejected defendant's contention that he was role-playing and convicted him of the offenses we have described.

State v. Stiles, 2007 WL 3170148 (N.J. App. Div. Oct. 31, 2007) (Respondents' Appendix "RA" 6)(internal footnote omitted).

B. Procedural Background

Petitioner was charged in Indictment 03-06-526, Cumberland County, with attempted aggravated sexual assault, attempted endangering the welfare of a child, luring, unlawful possession of an assault weapon, and unlawful possession of a large capacity ammunition magazine, in violation of New Jersey state law. On May 21, 2004, a jury found Petitioner guilty of counts one through three, and not guilty of the weapons charges. On November 19, 2004, Petitioner was sentenced to an aggregate eight year term of imprisonment, subject to New Jersey's No Early Release Act (NERA). On October 31, 2007, Petitioner's convictions were affirmed, but the sentences were remanded. On March 27, 2008, the New Jersey Supreme Court denied certification to review Petitioner's appeal (RA 9). The United States Supreme Court denied a writ of certiorari on December 15, 2008 (RA 10).

On May 4, 2009, Petitioner filed a pro se petition for post-conviction relief (PCR) (RA 11). On July 27, 2009, the PCR motion was dismissed (RA 14). On September 23, 2010, the PCR motion was reinstated (RA 15).

Meanwhile, in this District Court, on October 9, 2009, the Clerk of the Court received from Petitioner a letter titled: "Confusion with requirements towards timely filing of a Petition for a Writ of Habeas Corpus under USC § 2254 by a person in state custody" (docket entry 1). In the letter, Petitioner expressed concern over the timeliness of his filing of a habeas petition. In response to the letter, this Court issued an Order (docket entry 2), directing the Clerk of the Court to send Petitioner a blank § 2254 petition, closing the case, and informing Petitioner that in order to have the case reopened, he must submit a motion to reopen, a completed form petition, and either the filing fee or an application to proceed in forma pauperis ("IFP"). The Order, sent to Petitioner's address on file, was returned as undeliverable.

On May 10, 2010, Petitioner submitted a letter asking the status of his case, and submitting an address change (docket entry 4). On June 25, 2010, the case was reopened (docket entry 5). At that time, parties were added, including Karen Balicki, the warden of the South Woods State Prison (docket entries 6, 9).

Petitioner submitted the form petition, along with approximately 100 additional pages, and his application to proceed IFP on July 21, 2010 (docket entry 6). At the time he filed his renewed petition, Petitioner was on parole. Petitioner argues in the petition that: (1) he has been denied access to the Courts with regard to his post-conviction relief ("PCR") motion in state court; (2) his conviction was the result of entrapment by State personnel; (3) there was no probable cause to prosecute him; (4) the prosecutors conducted an illegal search of Petitioner's computer; (5) the detectives' activities in arresting him, by using an undercover agent, were illegal; (6) the State had no statute supporting an actual violation; (7) the trial ...


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