United States District Court, D. New Jersey
B. KUGLER, U.S.D.J.
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
FACTUAL AND PROCEDURAL BACKGROUND
following evidence and testimony was presented at
Petitioner's trial, in which he was convicted of the
murder of Rachel Siani. 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.
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.
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.
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.
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.
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).
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.)
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.
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.)
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). 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.
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.)
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.)
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.)
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
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
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.
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.)
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.
HABEAS CORPUS LEGAL STANDARD
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.
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
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.
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”).
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.”). The court will now turn to the substantive
analysis of Petitioner's other three asserted grounds for
Ground I - Jury Instructions
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.
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
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.
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)).
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
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
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
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.
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.
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
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). 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.
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 ...