United States District Court, D. New Jersey
SUSAN D. WIGENTON, UNITED STATES DISTRICT JUDGE.
before the Court is the pro se amended petition for
a writ of habeas corpus of Silas Quixal
(“Petitioner”) brought pursuant to 28 U.S.C.
§ 2254 challenging Petitioner's state court
conviction. (ECF No. 7). The State filed a response to the
petition (ECF No. 12), to which Petitioner has replied. (ECF
No. 24). For the following reasons, this Court will deny the
petition and deny Petitioner a certificate of appealability.
opinion affirming Petitioner's conviction, the Superior
Court of New Jersey - Appellate Division provided the
following summary of Petitioner's criminal trial and
Tried to a jury, [Petitioner] was convicted of aggravated
sexual assault upon a victim less than thirteen years of age,
a crime of the first degree, N.J.S.A. 2C:14-2a(1);
endangering the welfare of a child, a crime of the third
degree, N.J.S.A. 2C:24-4a; and sexual assault upon a victim
less than thirteen years of age, a crime of the second
degree, N.J.S.A. 2C:14-2b. The trial court sentenced
[Petitioner] to nineteen years in prison, subject to the
provisions of N.J.S.A. 2C:43-7.2, the No. Early Release Act
(“NERA”), for aggravated sexual assault; four
years in prison for endangerment, to be served concurrently;
and nine years in prison, subject to NERA, for sexual
assault, to be served consecutively. . . .
[Petitioner's] victim was S.B., who was six years old at
the time of the incident. S.B.'s mother had some plants
she wished to have repotted so she drove to a local nursery,
taking S.B. and her sixteen-month-old daughter with her.
While they were waiting for the plants to be repotted, S.B.
became separated from her mother. Her mother went through the
store, calling for S.B. and found her at the end of one the
aisles. [Petitioner] was nearby, and S.B. had a strange
expression on her face. Her mother asked if S.B. had not
heard her calling for her, but S.B. did not answer. Her
mother asked what she had been doing, but S.B. said she could
not tell her. Her mother asked if [Petitioner] had told her
not to say anything, and S.B. nodded affirmatively.
S.B.'s mother assured her she would not be angry with
S.B. and that [Petitioner] would not either. S.B. then told
her mother that [Petitioner] had kissed her and licked her;
she pointed to her vaginal area. S.B.'s mother went
immediately to store personnel to report what her daughter
had told her and they summoned the police.
Police Officer Michael Boccher of the Paramus Police
Department responded to the scene. He spoke with S.B., who
repeated what she had told her mother. Officer Boccher asked
S.B. if she could show him, where in the store the incident
occurred. She agreed and led him toward the rear. On the way,
[Petitioner] happened to pass by. S.B. spontaneously
identified [Petitioner] to Officer Boccher as the man who had
The police spoke to [Petitioner], who appeared nervous and
upset. When he asked what would happen to him if he told them
the truth, he was placed under arrest and verbally advised of
his Miranda rights. See Miranda v. Arizona,
[384 U.S. 436] (1966).
S.B. was interviewed by Detective Barbara Stio of the
prosecutor's Sex Crimes and Child Abuse Unit at the
Audrey Hepburn Children's House. Detective Stio has been
trained in conducting forensic interviews of children in
connection with claims of sexual abuse. She repeated what she
had told her mother. She also said that [Petitioner] had
taken out his penis and asked her to touch it, but she
refused. Following that interview, S.B. was examined by a
physician and her clothing was taken for examination.
Subsequent testing at the State Police laboratory disclosed
the presence of [Petitioner's] DNA on S.B.'s
After [Petitioner] was arrested, he was transported to the
prosecutor's office, where he was again advised of his
Miranda rights and executed a written waiver. He was
questioned by Sergeant Cilento of the prosecutor's sex
crimes and child abuse squad. Confronted with S.B.'s
allegations, [Petitioner] confessed. Following a pretrial
hearing, [Petitioner's] confession was ruled admissible
at his trial.
During [Petitioner's] trial, the prosecution presented a
number of witnesses, including Detective Stio, who testified
with respect to her interview of S.B. and Sergeant Cilento,
who testified with respect to his interrogation of
State v. Quixal, No. A-5879-07T4, 2010 WL 5419109,
at *1-3 (N.J.Super.Ct.App.Div. Apr. 19, 2010).
2016 opinion affirming the denial of Petitioner's state
court petition for post-conviction relief, the Appellate
Division additionally noted the following about the evidence
underlying Petitioner's conviction:
The testimony at trial established that [Petitioner] worked
at a garden center. The six-year-old victim had come to the
center with her mother. When the child was separated from her
mother, she encountered [Petitioner] and asked for help to
find her mother. [Petitioner] took the child to a secluded
area of the garden center, kissed her on the lips, pulled her
pants and underwear down and licked her on her vagina. The
child also reported that [Petitioner] had taken out his penis
and asked her to touch it, but she refused.
Shortly after the incident, the child gave a recorded
statement that was played at trial, and the child also
testified at trial. The State introduced DNA evidence taken
from the inside of the child's underwear. The DNA
analysis showed that cells from a male's saliva were
found on the inside of the child's underwear and
[Petitioner's] DNA matched the DNA found on the
[Petitioner] also gave a statement to the police during which
he admitted to kissing the victim “on the vagina,
” which he also described as “[o]n top of the
vagina.” [Petitioner's] statement was admitted at
trial. At trial [Petitioner] testified that when he
encountered the child, she asked him to help her find her
mother. When he said he would help, the child kissed him and
he kissed her on her stomach. [Petitioner] denied sexually
assaulting the child, and testified that he told the police
what they wanted to hear because he was afraid.
State v. Quixal, No. A-1966-14T2, 2016 WL 1637217,
at *1-2 (N.J.Super.Ct.App.Div. Apr. 26, 2016) (footnote
omitted). As the foregoing makes clear, “the evidence
of [Petitioner's] guilt at trial was strong. The victim
gave a statement and testified, [Petitioner] gave a
statement, and there was DNA evidence.” Id. at
his conviction and sentence, Petitioner appealed. See
Quixal, 2010 WL 5419109. On appeal, the Appellate
Division affirmed his conviction, but remanded for
resentencing because “the trial court gave no reasons
for imposing consecutive sentences.” Id. at
*3. The Appellate Division instructed “the trial court
to determine anew whether consecutive sentences are
appropriate and, if it is satisfied they are, to place its
reasons upon the record.” On June 22, 2010, the trial
court resentenced Petitioner to “the same term”
of imprisonment. State v. Quixal, 70 A.3d 749, 750
(N.J.Super. App. Div. 2013). The New Jersey Supreme Court
denied certification of Petitioner's direct appeal on
July 12, 2010. State v. Quixal, 999 A.2d 463 (N.J.
about May 12, 2014, Petitioner filed a counseled petition for
post-conviction relief (“PCR”) in the state trial
court (the “PCR court”). (See Aug. 1, 2014
PCR Hr'g Tr. 3, ECF No. 12-28). Following briefing and a
non-evidentiary hearing, the PCR court denied that petition
by way of an opinion and order. (ECF No. 12-10). The
Appellate Division affirmed the denial of PCR relief in all
respects on April 26, 2016. Quixal, 2016 WL 1637217.
Petitioner then filed a petition for certification, which the
New Jersey Supreme Court denied on September 12, 2016.
State v. Quixal, 151 A.3d 92 (2016) (Table).
Petitioner's current habeas petition followed.
28 U.S.C. § 2254(a), the district court “shall
entertain an application for a writ of habeas corpus [o]n
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.” A habeas petitioner has the burden of
establishing his entitlement to relief for each claim
presented in his petition based upon the record that was
before the state court. See Eley v. Erickson, 712
F.3d 837, 846 (3d Cir. 2013); see also Parker v.
Matthews, 567 U.S. 37, 40-41 (2012). Under the statute,
as amended by the Anti-Terrorism and Effective Death Penalty
Act, 28 U.S.C. § 2244 (“AEDPA”), district
courts are required to give great deference to the
determinations of the state trial and appellate courts.
See Renico v. Lett, 559 U.S. 766, 772-73 (2010).
claim has been adjudicated on the merits by the state courts,
the district court shall not grant an application for a writ
of habeas corpus unless the state court adjudication:
(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;
(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)(1)-(2).
petitioner carries the burden of proof, and review under
§ 2254(d) is limited to the record that was before the
state court that adjudicated the claim on the merits. See
Harrington v. Richter, 562 U.S. 86, 98, 100 (2011).
“[C]learly established law for purposes of §
2254(d)(1) includes only the holdings, as opposed to the
dicta, of [the Supreme Court's] decisions,
” as of the time of the relevant state-court decision.
White v. Woodall, 134 S.Ct. 1697, 1702 (2014)
(quoting Williams v. Taylor, 529 U.S. 362, 412
(2000)); accord Woods v. Donald, ___ U.S. ___, ___,
125 S.Ct. 1372, 1376 (2015). “When reviewing state
criminal convictions on collateral review, federal judges are
required to afford state courts due respect by overturning
their decisions only when there could be no reasonable
dispute that they were wrong.” Woods, 125
S.Ct. at 1376. Where a petitioner challenges an allegedly
erroneous factual determination of the state courts, “a
determination of a factual issue made by a State court shall
be presumed to be correct [and the] applicant shall have the
burden of rebutting the presumption of correctness by clear
and convincing evidence.” 28 U.S.C. § 2254(e)(1).
federal court may not grant a writ of habeas corpus under
§ 2254 unless a petitioner has “exhausted the
remedies available in the courts of the State.” 28
U.S.C. § 2254(b)(1)(A). In other words, “a
petitioner must ‘fairly present' all federal claims
to the highest state court before bringing them in federal
court.” Leyva v. Williams, 504 F.3d 357, 365
(3d Cir. 2007) (citing Stevens v. Delaware Corr.
Ctr., 295 F.3d 361, 369 (3d Cir. 2002) (quoting
Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002))).
“This requirement ensures that state courts have an
initial opportunity to pass upon and correct alleged
violations of prisoners' federal rights.”
Leyva, 504 F.3d at 365 (citing United States v.
Bendolph, 409 F.3d 155, 173 (3d Cir. 2005) (quoting
Duckworth v. Serrano, 454 U.S. 1, 3 (1981))). To the
extent that a petitioner's constitutional claims are
unexhausted, this Court can nevertheless deny them on the
merits under 28 U.S.C. § 2254(b)(2). See Taylor v.
Horn, 504 F.3d 416, 427 (3d Cir. 2007) (“because
[this court] will deny all of [petitioner's] claims on
the merits, [it] need not address exhaustion.”);
Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir. 2005)
(“Under 28 U.S.C. § 2254(b)(2), [this court] may
reject claims on the merits even though they were not
properly exhausted, and [this court will] take that approach
Petitioner's Excessive Sentence Claim
argues that his sentence is excessive. (Am. Pet., ECF No. 7
at PageID: 26, 32). More specifically, Petitioner claims that
“[t]he [t]rial [c]ourt erred in imposing consecutive
sentences and imposing sentences in excess of the mid-point
in the sentencing range” and that he should have
instead received a five-year prison term. (Id.).
Petitioner claims that his “crimes[, ] while
reprehensible, were less serious than the typical sexual
assault.” (Id. at Page ID: 26). As noted
above, Petitioner challenged the sentence he received in the
lone direct appeal he filed, and as a result, the Appellate
Division remanded for resentencing. See Quixal, 2010
WL 5419109 at *3. Petitioner was then resentenced to
“the same term” of imprisonment on June 22, 2010.
Quixal, 70 A.3d at 750. Because Petitioner failed to
appeal the sentence imposed on him at resentencing, it does
not appear that Petitioner properly exhausted this claim
during his state court proceedings. However, because this
Court finds this claim is without merit, it will be denied,
notwithstanding Petitioner's failure to exhaust.
See 28 U.S.C. § 2254(b)(2).
sentences are generally matters of state law that fall
outside of the purview of federal habeas courts. See
Chapman v. United States, 500 U.S. 453, 465 (1991)
(“a person who has been so convicted is eligible for,
and the court may impose, whatever punishment is authorized
by statute for his offense, so long as that penalty is not
cruel and unusual . . . and so long as the penalty is not
based on an arbitrary distinction that would violate the Due
Process Clause of the Fifth Amendment”) (citations
omitted); see also Reid v. Ricci, No. 07-3815, 2008
WL 2984207, at *12 (D.N.J. July 31, 2008) (“absent a
claim that the sentence constitutes cruel and unusual
punishment prohibited by the Eighth Amendment, or that it is
arbitrary or otherwise in violation of due process . . . the
legality of [a petitioner's] state court sentence is a
question of state law”) (citations omitted).
the facts do not indicate that the sentence Petitioner
received was cruel and unusual, or arbitrary in a manner that
would violate the United States Constitution. The record
reveals that Petitioner was sentenced to an aggregate term of
twenty-eight years imprisonment, consisting of: (i) nineteen
years for his conviction on count one, i.e.,
committing aggravated sexual assault upon a victim less than
thirteen years of age; (ii) five years for Petitioner's
conviction on count two, i.e., endangering the
welfare of a child, to run concurrently to count one; and
(iii) nine years for his conviction for count three,
i.e., committing sexual assault upon a victim less
than thirteen years of age, to run consecutively to count
one. (See June 18, 2010 Sentencing Tr. 20-23, ECF
sentencing judge made clear that he imposed consecutive
sentences on counts one and three “because they were
clearly independent, separate and distinct offenses.”
(Id. at 21). The judge also noted that
Petitioner's lack of any prior criminal history
represented a mitigating factor which he accounted for when
imposing the sentence, but further noted that there were many
other aggravating factors, including the “especially
heinous, cruel and depraved” nature of Petitioner's
crimes against a “particularly vulnerable [victim]
because of her age” that were also taken into
consideration. (Id. at 20-23). The record further
makes clear that the sentence imposed, while on the higher
range, did not go beyond the statutory maximum. See,
e.g., Quixal, 2010 WL 5419109 at *3.
on these facts, it is clear that this is not one of those
rare or extreme cases where the sentence imposed was cruel
and unusual, or arbitrary in a manner that would violate the
United States Constitution. See Lockyer v. Andrade,
538 U.S. 63, 77 (2003) (explaining that a state sentence
raises federal constitutional concerns only when it is
grossly disproportionate to the crime committed); United
States v. Miknevich, 638 F.3d 178, 185-86 (3d Cir. 2011)
(“a sentence within the limits imposed by statute is
neither excessive nor cruel and unusual under the Eighth
Amendment.”) (internal quotations and citations
omitted); Apprendi v. New Jersey, 530 U.S. 466, 481
(2000) (“judges [are permitted] to exercise discretion
. . . in imposing a judgment within the range
prescribed by statute). As such, this claim for habeas relief
Petitioner's Jury ...