United States District Court, D. New Jersey
Amodio, # 242285-B New Jersey State Prison Trenton, N.J.
08625 Petitioner, Pro se
P. Scharff, Esq.Camden County Prosecutor's Office Motions
& Appeals Unit Counsel for Respondent
L. HILLMAN United States District Judge
matter is before the Court pursuant to Petitioner David
Amodio's submission of a Petition (ECF No. 4) for writ of
habeas corpus, under 28 U.S.C. § 2254, challenging his
state court conviction for felony murder, manslaughter,
arson, and related offenses. For the reasons set forth below,
the Petition will be denied.
FACTUAL BACKGROUND and PROCEDURAL HISTORY
discussion of the factual and procedural background of this
case is set forth in the state appellate court's decision
on Petitioner's appeal of post-conviction relief:
Defendant was charged with first-degree murder of Kollin
Pimental (Kollin), N.J.S.A. 2C:11-3(a)(1) or (2) (count one);
first-degree murder of Lisa Pimental (Lisa), N.J.S.A.
2C:11-3(a)(1) or (2) (count two); first-degree felony murder
of Kollin, N.J.S.A. 2C:11- 3(a)(3) (count three);
first-degree felony murder of Lisa, N.J.S.A. 2C:11-3(a)(3)
(count four); first-degree aggravated arson, N.J.S.A.
2C:17-1(a)(1) (count five); third-degree hindering his own
apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1) (count
six); and fourth-degree contempt of a domestic violence
restraining order, N.J.S.A. 2C:29-9(b) (count seven).
The evidence presented at trial established that in September
2000, defendant moved into a home in Sicklerville, New Jersey
with his girlfriend Lisa and Kollin, her son by a previous
relationship. After a domestic dispute that occurred on
October 11, 2000, Lisa obtained a temporary restraining order
which barred defendant from the home and having any contact
Sometime after midnight on October 29, 2000, a neighbor
reported a fire at the home, and observed defendant stumbling
along the driveway. Defendant fell to the ground and said
that his “wife” and the baby were in the house.
According to a police officer who responded to the emergency
call, defendant's clothes were on fire and he was
“smoldering.” Defendant was removed by ambulance
and taken to a hospital. Later, the fire marshals found
Lisa's and Kollin's burned bodies in the house. Parts
of a broken hammer were found near Lisa's body.
The Camden County Medical Examiner performed autopsies on the
victims' bodies. He testified that Lisa died from a
depressed skull fracture that caused bleeding and bruising to
the brain. The Medical Examiner also testified that Kollin
died as a result of smoke inhalation and thermal burns, with
no other contributing cause.
The Deputy Chief Fire Examiner for Camden County testified
that he believed the fire was started with an accelerant and
an open flame. He said that the fire began on the first floor
of the house and traveled to the second floor. Tests revealed
a residue of gasoline on the socks, jeans and sneakers that
defendant was wearing at the time of the fire.
Defendant testified about the incident that led to the
issuance of the temporary restraining order. Defendant said
he was exercising and inadvertently caused Lisa to fall from
the bed. He stated that, despite the restraining order, he
met Lisa on October 19, 2000, in an effort to resolve their
According to defendant, Lisa called him the next day to
“work things out.” He testified that, several
days later, he accompanied Lisa to a store to purchase a
washing machine and clothes dryer. Defendant installed the
machines in the house. Defendant further testified that, the
week before the fire, he performed work around the house.
Defendant also said that on the morning of October 28, 2000,
he provided money to Lisa for her car payment, and purchased
new tires for Lisa's car. Defendant helped Lisa and
Kollin decorate the house for Halloween. Later, defendant and
Lisa ordered Chinese food and watched television.
Defendant left the house sometime after midnight. He
testified he went to the shed in the rear of the house to get
some tools for repairs he was going to make at his
father's house. Defendant was returning to the shed when
he saw the fire. He denied doing anything to hurt Lisa or
The jury found defendant not guilty of the murder of Kollin
as charged in count one, but found him guilty of the
lesser-included offense of first-degree aggravated
manslaughter. The jury found defendant not guilty of the
murder of Lisa, as charged in count two, but found him guilty
of second-degree passion/provocation manslaughter.
The jury additionally found defendant guilty of first-degree
felony murder of Kollin, as charged in count three; not
guilty of felony murder of Lisa, as charged in count four;
not guilty of first-degree arson, as charged in count five,
but guilty of the lesser-included offense of third-degree
arson; guilty of hindering his own apprehension or
prosecution, as charged in count six; and guilty of contempt,
as charged in count seven.
At sentencing, the trial court merged counts one and five
with count three, and sentenced defendant to life
imprisonment on count three, with a thirty-year period of
parole ineligibility. The court imposed a consecutive term of
ten years on count two, with a period of parole ineligibility
as prescribed by the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2. The court also imposed concurrent terms of four
years on count six and nine months on count seven.
State v. Amodio, No. A-4350-10T1, 2012 WL 5381769,
at *1, 2 ( N.J.Super.Ct.App.Div. Nov. 5, 2012).
appealed his conviction. The state appellate court affirmed
in part, reversed in part, and remanded for re- sentencing on
count two. State v. Amodio, 390 N.J.Super.
313, 915 A.2d 569 (App. Div. 2007). The Supreme Court of New
Jersey denied Petitioner's petition for certification.
State v. Amodio, 192 N.J. 477, 932 A.2d 28 (2007).
then filed his first petition for Post-Conviction Relief
(“PCR”), which was denied on November 12, 2010.
Petitioner appealed the PCR court's decision and, on
November 5, 2012, the state appellate court affirmed the PCR
court's denial of Petitioner's claims. State v.
Amodio, No. A-4350-10T1, 2012 WL 5381769, at *6 (
N.J.Super.Ct.App.Div. Nov. 5, 2012). The New Jersey Supreme
Court denied his petition for certification. State v.
Amodio, 213 N.J. 538, 65 A.3d 263 (2013).
thereafter, on or about July 18, 2013, Petitioner filed the
instant petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. (ECF No. 1). On September 30, 2013, this
case was administratively terminated due to Petitioner's
failure to satisfy the filing fee requirement. (ECF No. 3).
In the Court's September 30, 2013 Opinion, the Court
noted that Petitioner had not filed a true petition for writ
of habeas corpus, but had only filed a request for a stay.
The Court denied Petitioner's request for a stay, and
informed Petitioner that if he sought to reopen this matter,
he would be required to submit a petition for writ of habeas
corpus in order to invoke the jurisdiction of this Court.
(ECF No. 2). To the extent he sought a stay, the Court
informed Petitioner that he had to explain how a stay was
appropriate under Rhines v. Weber, 544 U.S. 269, 125
S.Ct. 1528, 161 L.Ed.2d 440 (2005).
about November 25, 2013, Petitioner filed an Amended Petition
and paid the required filing fee. (ECF No. 4). The case was
reopened for review by a judicial officer. (ECF No. 5). In
addition to submitting an Amended Petition, Petitioner again
requested a stay of these proceedings so that he could return
to state court and exhaust the final claim in his Petition,
designated as Ground Thirteen.
February 11, 2016, the Court denied Petitioner's request
for a stay. (ECF No. 7). The Court further ordered Petitioner
to inform the court within 45 days as to whether he wished to
withdraw his unexhausted claim and proceed on the exhausted
claim or, in the alternative, to have the Petition dismissed
without prejudice as unexhausted. (Id.). On or about
March 9, 2016, Petitioner informed the Court that he wished
to withdraw his unexhausted claim and proceed on the
exhausted claims. (ECF No. 8).
April 15 2016, the Court entered an Order to Answer the
Petition. (ECF No. 9). The Court also dismissed Ground Seven
of the Petition with prejudice because that Ground alleged
that the state court erred in the application of state law,
which is a claim not cognizable on federal habeas review.
Petition, Petitioner asserts twelve grounds for relief.
Specifically, he alleges:
(1) The items seized after the Chief Fire Marshall found two
bodies in the burned House should have been suppressed
because the state did not obtain a search warrant, and no
exigent circumstances were present;
(2) The defendant[‘s] convictions are against the
weight of the evidence and should be set aside because the
jury failed to recognize evidence pointing to reasonable
(3) A trial court must, under the new rule of law weigh the
aggravating and mitigating factors unencumbered by the
presumptive statutory term when sentencing the defendant;
(4) Defendant was denied effective assistance of trial
counsel because the court failed to properly charge the jury
as to its duty to continue to deliberate and failed to
correct the jury's impression that they had to reach a
(5) Under the pre-amendment statue, NERA does not apply to a
homicide which would otherwise be murder but for its
commission in the heat of passion;
(6) The trial court erred in imposing a consecutive term
where it determined the crimes [were] remote and independent
from on[e] another;
(7) Defendant[‘s] Post Conviction Relief Petition
should not be procedurally barred;
(8) Defendant was denied the effective assistance of the
trial and/ or appellate counsel because they failed to argue
that the state's opening and closing arguments were
(9) Defendant received an illegal sentence as consecutive
sentences were imposed;
(10) The admission of the temporary restraining order
precluded the defendant from receiving a fair trial where the
trial court's limit[ing] instruction focused the
jury's attention on the defendant's propensity to
commit this murder;
(11) Defendant's conviction must be reversed because he
was denied effective assistance of trial and appellate
counsel, in the alternative, this matter must be remanded for
an evidentiary hearing because a prima facie case of
ineffectiveness was established. A.) Trial counsel opened the
door to other crimes, wrong or acts evidence, and appellate
counsel failed to raise this on direct appeal. B.) Appellate
Counsel failed to raise jury intrusion by an extraneous
(12) Defendant was denied his right to the effective
assistance of appellate counsel, Due Process of law and a
right to a fair trial since the court declined to declare a
mistrial due to a juror interference.
filed his response to the Petition on July 15, 2016.
Petitioner did not file a Traverse. This matter is now fully
briefed and the Court has considered all submissions by the
STANDARDS OF REVIEW
amended by the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), 28 U.S.C. § 2254 now
provides, in pertinent part:
(a) The Supreme Court, a Justice thereof, a circuit judge, or
a district court shall entertain an application for a writ of
habeas corpus in 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.
respect to any claim adjudicated on the merits in state court
proceedings, the writ shall not issue unless the adjudication
of the claim:
(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).
court decision is “contrary to” Supreme Court
precedent “if the state court applies a rule that
contradicts the governing law set forth in [Supreme Court]
cases, ” or “if the state court confronts a set
of facts that are materially indistinguishable from a
decision of th[e] Court and nevertheless arrives at a result
different from [the Court's] precedent.”
Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000) (O'Connor, J., for the
Court, Part II). A state court decision “involve[s] an
unreasonable application” of federal law “if the
state court identifies the correct governing legal rule from
[the Supreme] Court's cases but unreasonably applies it
to the facts of the particular state prisoner's case,
” and may involve an “unreasonable
application” of federal law “if the state court
either unreasonably extends a legal principle from [the
Supreme Court's] precedent to a new context where it
should not apply or unreasonably refuses to extend that
principle to a new context where it should apply, ”
(although the Supreme Court expressly declined to decide the
latter). Id. at 407-09.
an “unreasonable application” of clearly
established federal law, the state court's application
must be objectively unreasonable. See id. at 409. In
determining whether the state court's application of
Supreme Court precedent was objectively unreasonable, a
habeas court may consider the decisions of inferior federal
courts. See Matteo v. Superintendent, 171 F.3d 877,
890 (3d Cir. 1999).
deference required by § 2254(d) applies without regard
to whether the state court cites to Supreme Court or other
federal case law, “as long as the reasoning of the
state court does not contradict relevant Supreme Court
precedent.” Priester v. Vaughn, 382 F.3d 394,
398 (3d Cir. 2004) (citing Early v. Packer, 537 U.S.
3, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002); Woodford v.
Visciotti, 537 U.S. 19, 123 S.Ct. 357, 154 L.Ed.2d 279
a pro se pleading is held to less stringent
standards than more formal pleadings drafted by lawyers.
See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct.
2197, 2200, 167 L.Ed.2d 1081 (2007) (citing Estelle v.
Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251
(1976)); Haines v. Kerner, 404 U.S. 519, 520, 92
S.Ct. 594, 30 L.Ed.2d 652 (1972). A pro se habeas
petition and any supporting submissions must be construed
liberally and with a measure of tolerance. See Royce v.
Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v.
Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989).
several of Petitioner's claims address similar subject
matter and require similar analysis, this Court will address
the grounds for relief not in the order presented in the
Petition, but in an order which resolves each ground most
efficiently and clearly.
Ground One, Petitioner claims that items seized in the burned
residence after the investigating fire department officials
found the bodies should have been suppressed at trial because
the State did not obtain a search warrant and no exigent
circumstances existed to excuse the need for a warrant. (Pet.
at 6, ECF No. 4). In support of this claim, Petitioner
states: “The fire inspectors found the bodies they
[sic] should of suspended the investigation until a search
warrant was obtained[.] Investigators unlawfully seized items
of clothing and mixed them together causing cross
contamination. They illegally searched defendant's shed
and vehicle. They also seized defendant's
is not entitled to federal habeas relief on this claim. The
Supreme Court has held that “where the State has
provided an opportunity for full and fair litigation of a
Fourth Amendment claim, a state prisoner may not be granted
federal habeas corpus relief on the ground that evidence
obtained in an unconstitutional search or seizure was
introduced at his trial.” Stone v. Powell, 428
U.S. 465, 494 (1976); see also, Wright v.
West, 505 U.S. 277, 293, 112 S.Ct. 2482, 120 L.Ed.2d 225
(1992); Marshall v. Hendricks, 307 F.3d 36 (3d Cir.
2002); Deputy v. Taylor, 19 F.3d 1485 (3d Cir.
1994). “A petitioner has had a full and fair
opportunity to litigate such claims if the state has an
available mechanism for suppressing evidence seized in or
tainted by an illegal search or seizure, irrespective of
whether the petitioner actually availed himself of that
mechanism.” Wright v. Pierce, No. CV
12-175-SLR, 2015 WL 1137987, at *7 (D. Del. Mar. 12, 2015)
Petitioner raised his Fourth Amendment argument at trial and
on direct appeal of his conviction. See State v.
Amodio, 390 N.J.Super. 313, 323-29, 915 A.2d 569, 575-78
(App. Div. 2007). Both State courts considered
Petitioner's claim and rejected it. Accordingly, because
Petitioner had the opportunity to fully and fairly litigate
this claim, he is barred from habeas relief on this issue and
the claim will be dismissed.
second ground for relief, Petitioner asserts that his
convictions were against the weight of the evidence and
should be set aside. In support of this claim, Petitioner
states: “The lack of evidence points to reasonable
doubt. No Gas container was found and no one saw who set the
fire, or even if the fire was set. No definitive explanation
on what if anything was used to start fire.” (Pet. at
6, ECF No. 4). Petitioner raised this claim in his direct
appeal. The Appellate Division did not discuss this argument,
however, and concluded that it was “not of sufficient
merit to warrant discussion in this opinion.”
Amodio, 390 N.J.Super. at 334, 915 A.2d at 581
(citing N.J. Ct. R. 2:11-3(e)(2)).
that the jury's verdict was against the weight of the
evidence raises a due process concern. Only where,
“after viewing the evidence in the light most favorable
to the prosecution, [no] rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt” should the writ issue. Jackson v.
Virginia, 443 U.S. 307, 319 (1979). This standard must
be applied “with explicit reference to the elements of
the criminal offense as defined by state law.”
Jackson, 443 U.S. at 324, n. 16. See also Orban
v. Vaughn, 123 F.3d 727 (3d Cir.1997), cert.
denied, 522 U.S. 1059 (1998). As noted above, state
court factual determinations are presumed to be correct.
See Werts v. Vaughn, 228 F.3d 178, 186 (3d
Petitioner focuses on the facts surrounding the arson in this
case and argues that the evidence was insufficient to support
his conviction. To the contrary, however, sufficient
evidence was presented at trial to support this conviction.
The State presented testimony from arson investigators,
police officers, and EMS personnel, as well as expert
testimony regarding the cause of the fire. In addition,
Petitioner was found at the scene suffering from burns. The
evidence also included DNA evidence linking Petitioner to
both the homicides and the arson. (See Respt.'s
Ex. Rta16/16T108-12 to 109-13; ECF No. 14-44). Petitioner
therefore has not shown that no reasonable trier of fact
could have found him guilty beyond a reasonable doubt. As
such, the Appellate Division's rejection of this claim
was not contrary to federal law. Accordingly, Petitioner is
not entitled to habeas relief on this claim and Ground Two
will be dismissed.
Sentencing Claims: Grounds Three, Five, Six, And
Grounds Three, Five, Six, and Nine, Petitioner asserts
certain challenges to his sentence. Each of these claims, as
discussed further below, will be denied.
sentencing is considered a matter of state criminal
procedure, which does not fall within the purview of federal
habeas review. Ervin v. Beyer, 716 F.Supp. 163, 165
(D.N.J. 1989); see also Johnson v. Beto, 383 F.2d
197, 198 (5th Cir. 1967), cert. denied,
393 U.S. 868 (1968); U.S. ex rel. Jackson v. Meyers,
374 F.2d 707, 711 n. 11 (3d Cir. 1967). Indeed,
absent some constitutional violation, federal courts cannot
review a state's alleged failure to adhere to its own
sentencing procedure. Rorie v. Beard, Civ No.
04-3380, 2005 WL 825917, *5 (E.D. Pa. April 7,
2005)(citing Branan v. Booth, 861 F.2d 1507, 1508
(11th Cir. 1988)). Thus, a federal court will not reevaluate
a sentence in a habeas proceeding unless it exceeds the
statutory limits. Jones v. Superintendent of Rahway State
Prison, 725 F.2d 40 (3d Cir. 1984); see also,
Williams v. Duckworth, 738 F.2d 828, 831 (7th Cir.
1984), cert. denied, 469 U.S. 1229 (1985) (“As
a general rule, federal courts will not review state
sentencing determinations that fall within statutory
limits.”); Bonner v. Henderson, 517 F.2d 135,
136 (5th Cir. 1975) (“This Court will not upset the
terms of a sentence within statutory limits unless so
disproportionate to the offense as to be completely arbitrary
in Grounds Five, Six, and Nine, Petitioner has not alleged
that his sentence violates any federal constitutional rights.
Instead, his claims are premised on alleged errors of state
law. The Appellate Division found that those claims lacked
merit. Petitioner originally raised Ground Three as a Sixth
Amendment claim on direct appeal and, on that issue, the
Appellate Division granted Petitioner relief. In addition,
Petitioners' sentence ...