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Denofa v. D'Ilio

United States District Court, D. New Jersey

June 30, 2017

JOHN DENOFA, Petitioner,
STEPHEN D'ILIO, et al., Respondents.


          ROBERT B. KUGLER, U.S.D.J.


         Petitioner is a state prisoner and is proceeding pro se with a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury of murder. He is currently serving a life sentence, with 30-year parole ineligibility. Petitioner raises several claims in his habeas petition, one of which includes an argument that the New Jersey court that presided over his trial failed to submit the question of territorial jurisdiction to the jury. For the following reasons, the habeas petition will be denied.


         The following evidence and testimony was presented at Petitioner's trial, in which he was convicted of the murder of Rachel Siani.[1] Her body was found on April 1, 2000, in Burlington Township, New Jersey, beneath the Delaware River Turnpike Bridge, just across from the State of Pennsylvania. It was apparent that she had fallen or was thrown from the bridge because there was a blood stain on the bridge's retaining wall, no tire tracks or drag marks in the area, and an indentation underneath her body.

         Ms. Siani had last been seen alive with Petitioner entering an Econo Lodge Hotel adjacent to the strip club (Diva's) where she worked, in Levittown, Pennsylvania, on March 29, 2000. That night, Ms. Siani was smoking marijuana with her friend, Ms. Rebecca Yavorsky, in the parking lot of Diva's when she (Ms. Siani) saw Petitioner appear near the club's entrance. Ms. Siani left Ms. Yavorsky's car and joined Petitioner. A local police officer who happened to be in the parking lot of the hotel then watched Petitioner and Ms. Siani enter the hotel together.

         A subsequent police investigation discovered a 30-inch blood stain beneath the second-floor room registered to Petitioner at the hotel, and that stain matched Ms. Siani's DNA. Her keys were found in that same area. And, a second DNA match was found in the bed of Petitioner's red Dodge truck. Video footage of that same truck crossing and returning through the turnpike toll booth on the bridge depicted a lifeless body in the bed of the truck, though the identity of the truck's driver was not clear from the video.

         Piecing together this and other forensic and circumstantial evidence, the State's theory at trial was that Ms. Siani had fallen (or been thrown) from Petitioner's motel room, placed into the back of Petitioner's truck, driven over the turnpike bridge, and thrown off the bridge into New Jersey. Critically, the State's position was that Ms. Siani was still alive, albeit unconscious, when she was thrown from the turnpike bridge. The State based its position on the testimony of Dr. Faruk Presswalla, New Jersey State Medical Examiner, who conducted an autopsy on Ms. Siani's body. Detailing the type and degree of the injuries she sustained, he opined that the bridge fall killed her.

         Petitioner did not testify at trial, or present an alibi defense through his own witnesses. Rather, he presented his defense through cross-examination of the State's witnesses. His theory was that someone else obtained his truck keys, murdered Ms. Siani, and used his truck to dispose of her body.

         Petitioner's trial counsel did not raise any issue at trial about the location of the murder, or otherwise challenge the New Jersey court's jurisdiction; however, on direct appeal, Petitioner challenged the court's jurisdiction through new appellate counsel. On appeal, Petitioner argued that a state court's jurisdiction is necessarily an element of a state crime, and that each element must be presented to the jury. Because the trial judge did not sua sponte instruct the jury to decide in which state Ms. Siani died, Petitioner argued that the trial judge de facto decided jurisdiction without the jury's input, in direct contravention of his constitutional due process rights. Petitioner was successful on appeal-the Appellate Division reversed the conviction on jurisdictional grounds without addressing his remaining challenges. See State v. Denofa, 375 N.J.Super. 373, 396 (App. Div. 2005).

         The State and Petitioner both petitioned for certification and, on June 5, 2006, the New Jersey Supreme Court granted certification, reversed the Appellate Division, and reinstated his conviction. See State v. Denofa, 187 N.J. 24 (2006). The Court reasoned that, even though jurisdiction was an element of the crime that should have been submitted to the jury, there was insufficient evidence presented at trial from which the jury could have concluded that the murder was completed in Pennsylvania. In reaching its holding, the New Jersey Supreme Court pointed out that no expert testimony had been presented at trial to challenge Dr. Presswalla's conclusion that Ms. Siani died in New Jersey. (Dkt. No. 9-17 at pp. 27-32.) Thus, in effect, it held that the error was harmless. (Id.)

         Nearly a year later, on May 30, 2007, Petitioner filed his first application for post-conviction relief (“PCR”) in the Superior Court of New Jersey, Law Division, Burlington County. (Dkt. No. 9-18.) Because one of Petitioner's trial counsel (John L. Call, Jr., Esq.) had since become a judge in Burlington County, the PCR application was transferred to Camden County. (Dkt. No. 9-22.) Coincidentally, the other trial counsel that worked alongside Call, Albert J. Cepparulo, Esq., also became a state court Judge in Pennsylvania.[2]

         Throughout the PCR proceedings, Petitioner filed several supplemental and amended petitions and briefs, asserting ineffective assistance of trial and appellate counsel claims, claims already asserted in his direct appeal, and other claims. Most of the filings were by his PCR counsel, David S. Nenner, Esq., but he also filed some papers pro se. Petitioner requested an evidentiary hearing, but the court did not hold one. A factual record was developed, however, including a certification from trial counsel Call. Ultimately, the PCR was denied on November 13, 2008 in a detailed opinion that rejected his request for an evidentiary hearing. (Dkt. No. 9-25.)

         On December 19, 2008, Petitioner's PCR counsel filed a notice of appeal in the New Jersey Superior Court, Appellate Division, seeking review of the PCR trial court denial. (Dkt. No. 9-32 at p. 6).[3] Neither counsel nor Petitioner took action on the case for a time, and it was dismissed for lack of prosecution on March 23, 2010. On May 11, 2010, Petitioner sought to vacate the dismissal, and requested permission to either proceed pro se or to be appointed new PCR counsel. (Dkt. No. 9-38.) The Appellate Division granted his request, and reinstated his appeal on July 6, 2010. (Id.)

         Petitioner filed new papers with the Appellate Division, this time seeking a summary reversal of the PCR trial court or, in the alternative, a remand directing the PCR trial court to hold an evidentiary hearing on his ineffectiveness claims. (Dkt. Nos. 9-31, 9-36.) He made this request via a motion filed on August 11, 2010. (Dkt. No. 9-31.) The Appellate Division denied Petitioner's request on October 12, 2010, noting that Petitioner's over 150-page submission to the Appellate Division necessarily rendered his request inappropriate for summary adjudication. (Dkt No. 9-36 at p.2). This 150-page submission included additional discovery from trial counsel Call's and Cepparulo's files that had not been submitted to the PCR trial court. (See Dkt. No. 9-41.)

         Following extensive additional briefing by Petitioner and the State, the Appellate Division went on to rule on Petitioner's appeal of the PCR denial. The appellate court issued its ruling affirming the denial on September 19, 2012, in a short per curiam opinion. The court commended the PCR trial court for its thorough analysis of Petitioner's claims, and affirmed both the denial of Petitioner's claims and the decision not to hold an evidentiary hearing. (Dkt. No. 1-3.) Petitioner filed a motion for reconsideration in December 2012, which was promptly denied by the Appellate Division on January 10, 2013. (Dkt. No. 9-58.) He then sought certification from the New Jersey Supreme Court on February 9, 2013. (Dkt. No. 9-59.) Certification was denied on September 4, 2013, without prejudice to Petitioner filing a second PCR application raising ineffectiveness of PCR counsel claims. (Dkt. No. 9-61.)

         While the appeal of his initial PCR application was pending, Petitioner filed a second PCR petition in state court, in January 2011. That petition was initially dismissed by the PCR trial court without prejudice pursuant to a state law that bars the filing of a second PCR petition while another petition is pending. (Dkt. No. 9-65). After the initial PCR proceedings concluded, on October 3, 2013, Petitioner requested permission to reinstitute his second PCR, and that request was granted. (Dkt. Nos. 9-67; 9-72.)

         Before Petitioner's second PCR was ruled upon, he filed the instant Petition for federal habeas relief in this Court on December 23, 2013. (Dkt. No. 1.) Several months after Petitioner filed the instant action, the state PCR trial court denied Petitioner's claims in a letter opinion dated February 11, 2014. (Dkt. No. 9-72.) Petitioner appealed. Because the PCR trial court ruled on the second PCR application without first giving Petitioner the opportunity to fully brief his claims, the Appellate Division reversed and remanded on March 7, 2016. See State v. Denofa, 2015 WL 10428285, at *2-3. To this Court's knowledge, Petitioner's second PCR application is still pending in state court.[4]

         When he filed his Petition before the Court, Petitioner raised four challenges: (1) a territorial jurisdiction jury instruction challenge; (2) a cumulative ineffective assistance of trial counsel challenge; (3) an appellate counsel ineffective assistance challenge; and (4) a PCR counsel ineffective assistance challenge. (See Dkt. No. 1.) In his petition, he states that, for the last three of these challenges, he “relies on the pro-se brief filed on appeal of the initial PCR application, and on the forthcoming memorandum of law.” (Dkt. No. 1 at pp. 7, 8, 10) For the first challenge, he relies upon his appellate counsel's brief filed on direct review. (Id. at p. 5.) While Petitioner stated that he would file a memorandum of law, (id. at pp. 8, 10.), he failed to do so.

         Shortly after he filed his petition, the Court notified Petitioner of the Third Circuit Court of Appeal's ruling in Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), that he must include all of his habeas claims in one petition or else face the possibility that any future-brought claims could be barred under the Antiterrorism Effective Death Penalty Act (“AEDPA”), Pub. L. 104-132, 110 Stat. 1214 (Apr. 24, 1996). (Dkt. No. 2.) The Court gave Petitioner the option of having his petition ruled upon “as is, ” or withdrawing his petition to add additional claims. (Id. at p. 2.) The order stated that if Petitioner did not respond the order within 30 days, the Court would consider his petition “as is.” (Id. at p. 3.) Petitioner did not respond to the order. The Court then ordered an answer from Respondent, the Attorney General of the State of New Jersey (“State”). (Dkt. No. 3.) The answer was ultimately filed on May 12, 2014. (Dkt. No. 9.)

         Thereafter, Petitioner filed two motions to stay, which were both denied. In the motions to stay, Petitioner argued that he needed time to fully exhaust the claims raised in his second state PCR petition. As explained most recently in this Court's December 22, 2015 ruling, Petitioner's request for a stay was denied because the bulk of the claims he raised before this Court were based upon claims raised in his initial state PCR application-not the second one. (See Dkt. No. 17 at pp. 5-6). In his motions to stay, Petitioner further argued that he intended to raise here claims that his state PCR counsel should have raised in the initial PCR application. This Court rejected that argument, noting that he did not actually raise those particular claims in his Petition here. (Id.)

         Petitioner also filed a motion for extension of time to file a reply to the State's answer, which extension was granted. (Dkt. Nos. 14-15.) However, Petitioner never filed the reply. The Court now rules on the Petition.


         Under AEDPA, “[f]ederal habeas courts cannot grant relief with respect to any claim that was adjudicated on the merits in State court unless the 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.” Dennis v. Sec'y, Pennsylvania Dep't of Corr., 834 F.3d 263, 280 (3d Cir. 2016) (quoting 28 U.S.C. § 2254(d)) (internal quotation marks omitted). Clearly established law refers to legal principles found in U.S. Supreme Court decisions rendered prior to or at the time of the state habeas decision. Id.

         “A state court decision is contrary to clearly established federal law if the state court (1) applies a rule that contradicts the governing law set forth in Supreme Court precedent or (2) confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from that reached by the Supreme Court.” Id. (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)) (internal quotation marks omitted). “A state court decision is an unreasonable application of federal law if the state court identifies the correct governing legal principle, but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 281 (quoting Williams, 529 U.S. at 413) (internal quotation marks omitted).

         Lastly, a state court's determination of facts is unreasonable when its findings lack sufficient support in the record. Id. While state courts factual findings are presumed correct, 28 U.S.C. § 2254(e)(1), “[d]eference does not by definition preclude relief. A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect ….” Id. (quoting Miller- El v. Cockrell, 537 U.S. 322');">537 U.S. 322, 340 (2003)). However, a federal court may conclude that a state court's factual findings are unreasonable only when there is clear and convincing evidence that contradicts the state court's findings. See id.


         As noted above, Petitioner raises four claims in his habeas petition. The four claims are:

1. Petitioner was deprived of his right to a fair trial when the law division neglected to provide adequate jury instructions (“Claim I”).
2. Petitioner's trial counsel was cumulatively ineffective resulting in prejudice. (“Claim II”).
3. Petitioner's appellate attorney was prejudicially ineffective during direct review. (“Claim III.”)
4. Petitioner's PCR attorney was prejudicially ineffective for neglecting to research, investigate, advance and support numerous claims petitioner had insisted be advanced. (“Claim IV”).

         This Court has previously explained to Petitioner that PCR counsel claims are not cognizable on federal habeas review; therefore, Petitioner is not eligible for relief based on Claim 4. See 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.”).[5] The court will now turn to the substantive analysis of Petitioner's other three asserted grounds for relief.[6]

         A. Ground I - Jury Instructions

         Petitioner argues, in his Petition, that his right to a fair trial was violated by the state trial court's failure to properly instruct the jury. He does not explain, in the Petition itself, exactly which jury instruction(s) he is challenging; however, he directs the Court to Points 1 and 3 of his appellate counsel's brief before the New Jersey Appellate Division, in support of his argument. (See Dkt. No. 1 at p. 5). His former appellate counsel's brief makes two specific jury instruction claims: that the trial court failed to instruct the jury on territorial jurisdiction; and that the trial court failed to instruct on the lesser-included offense of aggravated manslaughter.

         1.Territorial Jurisdiction Element

         Petitioner's most intriguing argument is that the trial court failed to submit the territorial jurisdiction element to the jury. At trial, that New Jersey had sufficient jurisdiction to prosecute the crime was apparently presumed. Petitioner's trial counsel never raised the issue, and there was no discussion by the trial judge or prosecutor about jurisdiction.

         Petitioner first raised the issue on his direct appeal, where he argued that territorial jurisdiction is an element of each state crime and, therefore, it must be proven in order to support a criminal conviction. Agreeing with Petitioner, the Appellate Division vacated his conviction, reasoning that

[i]n any jury trial, where the proofs establish the existence of a factual question as to a critical feature of the case-in a criminal prosecution, any element of the crime charged, including territorial jurisdiction-the jury must be adequately instructed as to that aspect even where no countervailing evidence has been introduced.

State v. Denofa, 373 N.J.Super. at 395. In the Appellate Division's view, the proofs presented at trial created a factual question regarding jurisdiction that should have been submitted to the jury for resolution. Id.

         The New Jersey Supreme Court, on its review, rejected the Appellate Division's characterization of the proofs at trial. While the New Jersey Supreme Court agreed that territorial jurisdiction is an element that must be submitted to a jury, the Court held that there was no factual dispute in Petitioner's case. State v. Denofa, 187 N.J. at 35-43. More specifically, the New Jersey Supreme Court explained that the question of jurisdiction should be addressed as early as practicable in a trial. But where the parties do not raise the issue, the Supreme Court noted, “the [trial] court is not obliged to sift meticulously through the record in search of any combination of facts” that would support a jurisdiction charge. Id. at 42. The Court went on to clarify that “the standard of review is ‘whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find' beyond a reasonable doubt that the crime occurred within the State.” Id. at 44 (quoting State v. Reyes, 50 N.J. 454, 458-59 (1967) (per curiam)).

         Viewing the evidence in the light most favorable to the State, the New Jersey Supreme Court concluded that there was sufficient record evidence to support jurisdiction. Id. at 46.[7]

         The Court based its conclusion that there was sufficient evidence of jurisdiction on the following evidence presented at trial:

In support of the inference that Rachel's death occurred at the Delaware River Turnpike Bridge, the State offered Dr. Presswalla, a medical examiner and expert forensic pathologist. Dr. Presswalla testified that in his opinion Rachel was alive at the time she was thrown from the bridge. Dr. Presswalla formed that opinion because Rachel's liver was “totally pulpified, ” and only “a large force impact on the abdomen” caused by a fall from the height of the bridge, as opposed to the height of defendant's second floor motel room, could have caused that type of devastating injury and the accumulation of 400 cc of blood in the peritoneal cavity.
We cannot agree with the Appellate Division that Dr. Presswalla's testimony concerning the cause and place of Rachel's death was “equivocal.” Medical opinion testimony is not rendered with certainty, but with reasonable certainty. See, e.g., State v. Fortin, 178 N.J. 540, 597, 843 A.2d 974 (2004) (“An expert offering scientific opinion testimony must do so within a reasonable degree of certainty or probability.”). In that respect, Dr. Presswalla's testimony met the test. In his own words, responding to questions, Dr. Presswalla left little doubt about where Rachel died.
A: My opinion is that she sustained a near fatal head injury from the fall from the Econo Lodge, but the fall from the bridge produced the liver injury, and she died as a result of the combination of both these injuries.
Q: Well do you have an opinion as to whether or not Rachel Siani was still alive when she went from the top of that bridge to the bottom of the ground in New Jersey?
A: Yes. That is why I'm saying that she died as a combination of both injuries. Had she died-even though that was a serious injury and she could have died from the injury from the fall at the motel, she wasn't dead at the time that she went over the bridge, and that's why I used the combination- Q: How do you know that, Doctor? How do you know that she wasn't dead when she went over the bridge, in your opinion?
A: The liver injury that I showed you resulted in 400 cc's of bleeding into the peritoneal cavity. If she was already dead, a liver injury taking place in a dead body, although it would be-may lacerate, will not bleed out beyond maybe about 100 cc's. That is just a little blood that may be there, might ooze out.
Q: Why is that? Just explain that. Why?
A: Because when you're dead, you don't have any blood pressure. It's the blood is under pressure in order to bleed. If it's not under pressure, then if there is blood on the surface where you make a breach, that little blood will just leak out.
Q: So based on the quantity of blood in the peritoneum from the lacerated liver, that's how you conclude that Rachel still had to have blood pressure.4
A: Yes.
Nothing in that verbal exchange clearly indicated that territorial jurisdiction was at issue. Moreover, defendant neither cross-examined Dr. Presswalla concerning his opinion on the location of Rachel's death nor introduced expert or lay testimony suggesting that Rachel died in Pennsylvania, before her body was thrown from the bridge. Defendant did not contest the location at which the crime was committed; he simply maintained that he was not the murderer. Under those circumstances, the trial court was not required to comb through the evidence to raise a lack of jurisdiction defense that defendant, apparently, did not consider tenable.

Id. at 45-46.

         As noted above, in his Petition to this Court, Petitioner explained that he relies on his appellate counsel's brief before the Appellate Division on this issue. (See Dkt. No. 1 at p. 5). In that brief, his counsel generally argued that the trial court's failure to charge violated the Sixth Amendment of the U.S. Constitution as well as the Fourteenth Amendment. Counsel cited two U.S. Supreme Court cases in support of the argument: United States v. Gaudin, 515 U.S. 506 (1995), and In re Winship, 397 U.S. 358 (1970). Gaudin is also cited in the Appellate Division's ruling. State v. Denofa, 373 N.J.Super. at 391.

         In re Winship and Gaudin stand for the proposition that the Sixth and Fourteenth Amendments protect accused persons from conviction of a crime where proof of each element of that crime has not been proven. 397 U.S. at 364; 515 U.S. at 519. More succinctly put, all “[e]lements of a crime must be charged in an indictment and proved to a jury beyond a reasonable doubt.” United States v. O'Brien, 560 U.S. 218, 224 (2010); id. at 237 (Stevens, J., concurring) (discussing In re Winship).

         A failure to charge the jury on all elements of a crime does not automatically result in a constitutional violation, however. In a case analyzing a trial court's failure to instruct on the causation element of a crime, the U.S. Supreme Court has explained that “[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.” Henderson v. Kibbe, 431 U.S. 145, 155 (1977).[8] To determine whether there has been a constitutional violation, reviewing courts must compare the omission with all of the instructions that were actually given. Id. at 155-56.

         Moreover, post-Gaudin U.S. Supreme Court precedent makes clear that failure to submit an element of a crime to a jury is subject to a constitutional harmless error analysis. In Neder v. United States, 527 U.S. 1 (1999), the U.S. Supreme Court addressed a federal district court's refusal to submit the element of materiality to a jury in a tax fraud case. Although the government, in that case, conceded that the federal district court's refusal was ...

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