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Thomas D'amico v. Karen Balicki

September 6, 2012


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


Before the Court is Petitioner Thomas D'Amico's ("Petitioner" or "D'Amico") Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition") challenging his convictions in the New Jersey Superior Court, Union County, for which he is currently serving a sentence at the South Woods State Prison, Bridgeton, New Jersey. This Petition is decided without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons stated below, this Court DENIES D'Amico's Petition and DECLINES to issue a certificate of appealability.


The New Jersey Supreme Court set forth the factual background of this case as follows:

On the evening of October 23, 1999, Edward Gentile, Carmine Perrotti, Lewis Rodgriguez, Christopher Longo, [Petitioner], Violet Arias, Ann Truzzolino, Alvin Baez, and Josephine Castagna were present at Sinners Go-Go Bar (Sinners) in Elizabeth. Some time around 10:30 p.m., Arthur McKeown and Bennett Grant arrived at Sinners. Truzzolino, who was a friend of McKeown's, approached the two men and McKeown introduced Grant to her. Later, several of Truzzolino's friends, including Arias and Castagna, joined that group.

After 1:00 a.m., McKeown and Grant decided to leave. Truzzolino joined them as they departed. Arias, who had driven to Sinners with Truzzolino, followed them outside, where she convinced Truzzolino to return to the bar. Grant objected and followed Arias and Truzzolino back inside Sinners. Shortly thereafter, an argument ensued. Sinners' management intervened and asked Grant to leave. Grant acceded, exited Sinners and started to walk to the car with McKeown. Arias, Truzzolino, and other patrons followed Grant and began screaming and running after him. Arias approached and attempted to hit Grant.

Tony Velez, a doorman at Sinners, testified that . . . [he] noticed a group of patrons run outside, surround Grant and McKeown and punch and kick them. Eventually Grant and McKeown fled towards a nearby bridge with the crowd in pursuit. At that time, a car pulled up and several people entered the car, which sped after Grant and McKeown.

Joseph Machado, Sinners' general manager, and Pablo Fragoso, the club's operations manager, both testified that there was an altercation between Arias and Grant at Sinners that night. . . . [Fragoso] observed defendants and others kicking Grant. . . . . Eventually, Fragos pulled Arias away and tried to stop D'Amico from kicking Grant. D'Amico was an Elizabeth police officer and was off duty the night of the incident. . . . . Fragroso then observed [Jean] Morales drop a Belgian block, weighing approximately twenty-five pounds, on Grant's head. The crowd grew silent and began to disperse.

State v. Castagna, 187 N.J. 293, 300-01 (2006). Grant died five months later as a result of the various head injuries he suffered from the incident. Id. at 302.

On June 7, 2000, D'Amico, Arias, Baez, Castagna, Gentile, Morales, and Perrotti were charged in an eleven-count indictment. Petitioner was charged with five counts in the indictment: murder (Count 1), aggravated manslaughter (Count 2), two counts of official misconduct (Counts 3 and 4), and obstructing administration of law (Count 11). (Pet'r's Br. 1; Resp't's Br. ¶1.) Before the trial, four of Petitioner's six co-defendants: Arias, Baez, Gentile, and Perrotti pled guilty to second degree reckless manslaughter. (Pet'r's Br. 2.)

Subsequently, Petitioner proceeded to trial and was tried before the Honorable Walter Barisonek, J.S.C. ("Judge Barisonek"). The jury acquitted D'Amico of the murder charge but found him guilty of aggravated manslaughter, both counts of official misconduct, and obstructing administration of law.*fn1 (Id. at 3.) Petitioner was sentenced to twenty years in prison for the aggravated manslaughter conviction and pursuant to the New Jersey No Early Release Act ("NERA") D'Amico must serve at least eighty-five percent of that sentence. (Id.) Additionally, D'Amico was sentenced to a consecutive seven-year term on the official misconduct convictions. (Id.)

On August 29, 2002,*fn2 D'Amico appealed his convictions and sentence to the New Jersey Superior Court Appellate Division claiming that his trial counsel, Robert Norton ("Norton" or "trial counsel") provided him with ineffective assistance. (Id.; Resp't's Br. ¶ 8.) On April 12, 2005, the Appellate Division reversed Petitioner's conviction based, in part, on his ineffective assistance of counsel claim. (Id.) However, on July 17, 2006, the New Jersey Supreme Court reversed the Appellate Division's decision and reinstated D'Amico's conviction and sentence after it concluded that Petitioner had failed to demonstrate that he received ineffective assistance of counsel. (Id. at 3-4.)

Subsequently, on March 22, 2007, Petitioner filed an application for Post-Conviction Relief ("PCR"). At the PCR hearing,*fn3 D'Amico asserted that he was denied effective assistance of counsel because Norton: (1) did not advise him of the State's plea offer, and (2) failed to conduct a pretrial conference to ascertain if he understood the State's final plea offer and his potential sentencing exposure, if convicted. (Id. at 4.) D'Amico also claimed that his constitutional rights were violated. (Id.) On January 22, 2008, the trial judge denied D'Amico's PCR application. On March 7, 2008, Petitioner appealed the PCR decision to the Appellate Division. On May 3, 2010, the Appellate Division affirmed the PCR decision "substantially for the reasons expressed by Judge Barisonek in his well-reasoned oral decision of January 22, 2008." State v. D'Amico, No. A-3187-07T4, 2010 N.J. Super. Unpub. LEXIS 954, at *11 (App. Div. May 3, 2010), certif. denied, 205 N.J. 79 (2011). The Supreme Court denied Petitioner's petition for certification on January 20, 2011. This Petition followed.


Pursuant to 28 U.S.C. § 2254, an individual in custody as a result of a state court judgment may seek a writ of habeas corpus "on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." § 2254(a). Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),

[f]ederal habeas corpus relief is precluded as to any claim that was adjudicated on the merits in a state court proceeding unless such 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; 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.

Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir. 2000) (quoting §§ 2254(d)(1) and (2)). In Williams v. Taylor, the Supreme Court explained the standard of review as set forth in § 2254(d)(1). 529 U.S. 362 (2000). According to the Court,

[u]nder the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Id. at 412-13. The Court further explained that the "unreasonable application of" standard inquires "whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409.


Petitioner asserts that he is entitled to habeas relief because he was denied his constitutional rights to effective assistance of counsel, due process, and a fair trial in the state courts. (Pet'r's Br. 11-12.)

1. Ineffective Assistance of Counsel Claim

The United States Constitution grants the accused in criminal prosecutions the right "to have the Assistance of Counsel." U.S. Const. amend. VI. The Supreme Court has recognized that the criminal defendant's constitutional right to counsel is actually a "'right to the effective assistance of counsel.'" Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970)). An attorney's assistance is ineffective if (1) "counsel's representation fell below an objective standard of reasonableness;" and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 689, 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

Petitioner claims that his constitutional right to the effective assistance of counsel was violated for six reasons. D'Amico claims that trial counsel:

1) Failed to accurately advise [him] of the penal consequences of proceeding to trial or request a pretrial conference to ensure [that he] understood the plea offer and the sentencing consequences if he lost at trial;

2) Failed to advise [him] of the final plea offer extended by the State, which [he] would have accepted had he been aware of it;

3) Made numerous and serious errors and omissions during the trial, including telling the jury in opening statements that [he] was "a criminal", who "disgraced the badge", enjoyed "no presumption of innocence", and was guilty of "one or more" crimes, and promised that [he] would testify, without previously disclosing this strategy to [him];

4) Elicited highly damaging and prejudicial testimony from [him] on direct examination;

5) Failed to object to the State's request for [him] to demonstrate the manner in which he ...

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