JUAN B. PAULINO, Petitioner,
KAREN BALICKI, et al., Respondents.
JUAN B. PAULINO, Petitioner pro se, SPN-573575/SBI-263064D, South Woods State Prison, Bridgeton, New Jersey,
STEPHANIE PAIGE DAVIS-ELSON, ESQ., HUDSON COUNTY PROSECUTOR'S OFFICE, Jersey City, New Jersey, Counsel for Respondents.
DENNIS M. CAVANAUGH, District Judge.
Petitioner Juan B. Paulin() ("Petitioner"), a convicted state prisoner presently confined at the South Woods State Prison in Bridgeton, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his February 2007 New Jersey state court judgment of conviction. For the reasons stated herein, the Petition will be denied for lack of substantive merit.
A. Procedural History
On November 16, 2005, a Hudson County Grand Jury returned a six count indictment (Indictment No. 1630-11-2005) against Petitioner as follows: (Counts One, Three and Five) first degree aggravated assault by penetration of a child under the age of 13, in violation of N.J.S.A. 2C:14-2a(1); and (Counts Two, Four and Six) third degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a. (Ra4-Ra5,  November 16, 2005 Indictment No XXXX-XX-XXXX.)
Before trial commenced, the Honorable Camille M. Kenny, J.S.C., heard oral argument on the State's motion to admit pretrial statements made by the victim ("A.B.") to the victim's father ("R.B."), grandmother ("D.M."), and Detective Victoria Regal, as well as a videotape of the victim's interview conducted by Detective Regal. Petitioner's counsel objected to admission of the statements and videotape on the ground that they were repetitive and would unfairly emphasize the State's proofs to the jury thereby prejudicing Petitioner. On May 23, 2006, Judge Kenny ruled that the victim's statements to D.M. and Detective Regal were admissible, but that the victim's statement to R.B. was not admissible. (May 23, 2006 Transcript of Pretrial Motion, ECF 11-14 *SEALED*.)
A trial was held before a jury and Judge Kenny, commencing on June 20, 2006, continuing on June 21 and June 22, 2006, and concluding on June 27, 2006. At the conclusion of the State's case, Judge Kenny granted defense counsel's motion for a judgment of acquittal on Counts Five and Six. However, the jury returned a verdict of guilty on the remaining Counts One through Four. (Trial Transcripts, ECF Nos. 11-16 through 11-32 *SEALED*.)
On February 9, 2007, Judge Kenny merged the convictions and sentenced Petitioner to concurrent terms of 18 years in prison with a parole ineligibility period of 85% and a five-year term of parole supervision upon release pursuant to the No Early Release Act ("NERA"), N.J.S.A. 20:43-7.2. (Sentencing Transcripts, ECF Nos. 11-33, 11-34 *SEALED*.)
Petitioner filed a notice of appeal from his conviction and sentence to the Superior Court of New Jersey, Appellate Division. (Ra10-Ra18.) On August 31, 2009, the Appellate Division affirmed the conviction and remanded the matter to the Law Division for correction of the judgment of conviction. (Ra346-Ra375.) An amended judgment of conviction was entered accordingly on September 18, 2009. State v. Pauline, 2009 WL 2707342 (N.J.Super. A.D. Aug. 31, 2009). (Ra8-Ra9.) Petitioner never filed a petition for certification with the Supreme Court of New Jersey after the Appellate Division affirmed the conviction. (Respondents' Answer at 91 9.)
On October 9, 2009, Petitioner filed his first state petition for post-conviction relief ("PCR"). (Ra376.) Petitioner's counsel filed a brief in support of the PCR petition on February 25, 2010, and Petitioner submitted a supplemental pro se brief on March 16, 2010. On May 3, 2010, oral argument was heard before the Honorable Joseph V. Isabella, J.S.C. In a written opinion and Order dated May 10, 2010, Judge Isabella denied the PCR petition. (Ra645-Ra664.)
Petitioner appealed from denial of his first state PCR petition (Ra699-Ra707), and while his appeal was pending before the Appellate Division, Petitioner filed his second PCR petition, pro se, on July 21, 2010. (Ra665-Ra680.) Judge Isabella denied the second PCR petition without oral argument or an evidentiary hearing in a written opinion dated September 28, 2010. (Ra681-Ra698.) The Appellate Division affirmed the denial of post-conviction relief in an unpublished opinion decided February 28, 2012. State v. Pauline, 2012 WL 611898 (N.J.Super. A.D. Feb. 28, 2012). It does not appear that Petitioner filed a petition for certification before the Supreme Court of New Jersey. Petitioner also did not appeal from denial of his second state PCR petition.
On October 4, 2010, Petitioner filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. 2254. This petition was filed before state court collateral review had completed. On August 10, 2011, the State filed a motion to seal certain documents in this habeas action. Specifically, the State sought to seal materials where there were repeated references to the victim and the victim's family by name, and graphic photographs taken of the five-year old sexual assault victim during a physical examination. The documents sought to be sealed included the grand jury, motion hearing and trial transcripts dated October 26, 2005, May 4, 22 and 23, 2006, June 20, 21, 22 and 27, 2006 and February 9, 2007, as well as pro se supplemental materials submitted to the Appellate Division and trial court in support of Petitioner's PCR petitions. This Court granted the motion to seal in an Order entered on February 14, 2012. (ECF No. 12.)
The State filed its answer and the relevant state court records on September 16, 2011. (ECF Nos. 10, 11.) There was no reply or traverse filed by Petitioner.
B. 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 reproduce the recitation as set forth in the published opinion of the Superior Court of New Jersey, Appellate Division, decided on August 31, 2009, with respect to Petitioner's direct appeal:
In February 2002, A.B. and her mother J.B. moved to an apartment in West New York. A.B. was three years old at the time. They shared the apartment with A.S., a friend of defendant. Defendant was their landlord, and he is thirty years older than A.B.
J.B. considered defendant a friend. He visited her home once or twice a week, and he played with A.B. and read her stories in her bedroom. In J.B.'s view, defendant and A.B. also had a friendly relationship. The child had never exhibited fear in defendant's presence and, on occasion, asked whether defendant was coming to visit. Although J.B. said she never left defendant alone with A.B., once, when she was doing laundry in the basement, she left A.B. there with defendant while she went upstairs to get something. And, when defendant read stories to A.B. in her bedroom, J.B. watched television in the living room.
On July 8, 2004, just after J.B. came home from work, A.B. announced that "Juan touched [her] butt." J.B., who had been intimate with defendant, did not report A.B.'s complaint.
On July 9, 2004, A.B.'s father, R.B., picked the child up from daycare for his scheduled weekend parenting time, which commenced every week on Friday afternoon and ended on Saturday evening. R.B. had to go to work and planned to have A.B. stay at his mother's home that night, as she frequently did. That evening, A.B. and her grandmother, D.M., played cards. During the game, A.B. told her grandmother that "Juan had touched her peepee.'" Assuming "Juan" was a child who attended day care with A.B., D.M. asked A.B. if she had told her teacher. A.B. said no and explained that "Juan" was her mother's friend. When D.M asked A.B. if she had told her mother, the child said she had but her mother did not believe her.
A.B.'s grandmother asked what had happened, and A.B. described two incidents. Defendant once took her to a bathroom in the basement, removed her pants and "touched her peepee real hard like he was pushing a button"; he did the same thing when he was reading to her in her bedroom.
A.B.'s grandfather was not in the room for this conversation, and her grandmother asked the child to tell "poppy." D.M. called J.B., who indicated that she did not believe the child. D.M. then called her son, who left work and went to his mother's home. When R.B. arrived, he assured A.B. that she could tell him anything, and he would not get mad at her. Speaking about "Juan, " A.B. told her father that "somebody had touched her."
After listening to A.B., R.B. called J.B. The next day, he asked J.B. for defendant's address, but he did not call the police because he was considering "tak[ing] the law in. his] own hands." On Sunday July 11, however, R.B. reported his daughter's complaint to the police.
On Monday July 12, Detective Victoria Regal of the Hudson County Prosecutor's Office, Sexual Assault Victim's Unit, interviewed A.B. Although the detective spoke to A.B.'s father and grandmother before interviewing A.B., she did not speak to A.B. until they were in a room equipped for ...