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Amodio v. Warren

United States District Court, D. New Jersey

December 4, 2017

DAVID AMODIO, Petitioner,
CHARLES E. WARREN, JR., Respondent.

          David Amodio, # 242285-B New Jersey State Prison Trenton, N.J. 08625 Petitioner, Pro se

          Nancy P. Scharff, Esq.Camden County Prosecutor's Office Motions & Appeals Unit Counsel for Respondent


          NOEL L. HILLMAN United States District Judge

         This 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.[1]


         A 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 with her.
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 difficulties.
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 Kollin.
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).

         Petitioner appealed his conviction. The state appellate court affirmed in part, reversed in part, and remanded for re- sentencing on count two.[2] 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).

         Petitioner 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).

         Shortly 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).

         On or 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.

         On 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).

         On 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. (Id.).

         In his 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 doubt;
(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 verdict;
(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;[3]
(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 improper;
(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 influence; and
(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.

         Respondent 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 parties.


         As 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.

         With 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; 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.

28 U.S.C. § 2254(d).

         A state 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.

         To be 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).

         The 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 (2002)).

         Finally, 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).


         Because 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.

         A. Ground One

         In 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 cellphone.” (Id.).

         Petitioner 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) (citations omitted).

         Here, 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.

         B. Ground Two

         As his 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)).

         A claim 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 Cir.2000).

         Here, Petitioner focuses on the facts surrounding the arson in this case and argues that the evidence was insufficient to support his conviction.[4] 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.

         C. Sentencing Claims: Grounds Three, Five, Six, And Nine

         In Grounds Three, Five, Six, and Nine, Petitioner asserts certain challenges to his sentence. Each of these claims, as discussed further below, will be denied.

         Generally, 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 and shocking”).

         Here, 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 ...

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