United States District Court, D. New Jersey
Susan D. Wigenton, United States District Judge.
before the Court is the petition for a writ of habeas corpus
of Debra Ann Aquilina (“Petitioner”) brought
pursuant to 28 U.S.C. § 2254 challenging
Petitioner's state court conviction (ECF No. 1).
Following this Court's Order to Answer, the State filed a
response to the petition (ECF Nos. 4). Petitioner did not
file a reply. For the following reasons, this Court will deny
the petition and deny Petitioner a certificate of
opinion affirming Petitioner's conviction and sentence,
the Superior Court of New Jersey - Appellate Division
provided the following summary of the factual basis of this
At approximately 6:00 a.m. on February 15, 2003, the Garfield
Police Department received a telephone call from [Petitioner]
stating that when she awoke, she noticed that her husband
Ralph Ludvik, Jr., was not breathing. A few minutes later,
when Sergeant John Demko arrived at [Petitioner] and
Ludvik's residence on Palisade Avenue, [Petitioner]
directed him to the second floor of the home, where he saw
Ludvik lying face up on the floor, wedged between a wall and
the bed. Because there was no light in the bedroom, Demko
dragged Ludvik to the kitchen. While Demko was in the course
of doing so, [Petitioner] attempted to grab something from
her husband's pocket. Demko told her to stop. At that
point, [Petitioner] became upset, telling Demko she was
merely trying to retrieve money that was hers. According to
Demko, there were signs of rigor mortis and he believed that
Ludvik had been “deceased for quite some time.”
Paramedics arrived shortly thereafter, and pronounced Ludvik
dead at 6:18 a.m.
While Demko was in his patrol car outside [Petitioner]'s
and Ludvik's home completing a form to be provided to the
medical examiner, [Petitioner] approached him in a
“flirtatious” manner and said, “I've
seen you before, I've seen you around. How are
you?” According to Demko, [Petitioner] was not
“crying” or “showing any signs of grief at
that point in time.”
At 6:30 a.m., Detective Michael Latona of the Garfield Police
Department arrived at the scene and spoke with [Petitioner],
who informed him that she was Ludvik's wife and that her
husband was a heroin user. She pointed to empty bags in the
bedroom that appeared to contain trace amounts of heroin. In
a dresser drawer, Latona also observed drug paraphernalia,
including syringes, plastic tubes and a tourniquet, although
Latona was unable to find the syringe that caused the
Latona also interviewed James Gerritsen, who had moved into
the house a few weeks earlier. Gerritsen told Latona that he
had gone to sleep at 10:30 p.m. the previous night, and was
awakened by defendant at 5:30 a.m. the next morning, who
stated that Ludvik was not breathing. Gerritsen explained
that Ludvik's temperament of late had been
“somewhat odd, ” and Ludvik “had been more
angry and not his normal self.”
Latona did not interview [Petitioner's son], Mark
Aquilina, who also lived in the home.
A toxicology report prepared by Theodore Siek, Ph.D., at the
request of the medical examiner, Dr. Sunandan Singh,
attributed Ludvik's death to an overdose of heroin.
Cocaine was also found in his blood, but not in an amount
sufficient to have caused his death. Based on the report of
the toxicologist, and the drug paraphernalia found in
Ludvik's bedroom, Dr. Singh concluded that Ludvik's
death was the result of an accidental drug overdose.
Singh's conclusion remained unchallenged until fifteen
months later, when on May 11, 2004, the Bergen County
Prosecutor's Office received a letter from Frank Baez, an
inmate at the Bergen County Correctional Facility, where Mark
Aquilina, defendant's son, was incarcerated on unrelated
charges. Baez's letter made reference to a comment by
Mark Aquilina admitting that he had been involved in a
suspicious death that occurred in Garfield. Contacting the
Garfield Police Department, the Prosecutor's Office
learned of Ludvik's death due to a drug overdose in
February 2003. After interviewing Baez, Detectives Gil Breit
and Mark Bendul brought Mark Aquilina to the Bergen County
Prosecutor's Office for questioning on March 4, 2005.
After receiving [the warnings required by Miranda v.
Arizona, 384 U.S. 436 (1966)], Mark initially denied
taking part in Ludvik's murder. After further
questioning, he provided a full confession about a conspiracy
to kill Ludvik, between [Petitioner], Gerritsen and himself.
Mark explained that his mother believed that if Ludvik were
dead, she would inherit the house on Palisade Avenue where
Mark, [Petitioner], Gerritsen and Ludvik had been living.
According to Mark, the three devised a plan “to somehow
take over the house, ” which involved “taking
care of Ralph” by “getting him out of the
way.” Mark explained that the only reason his mother
married Ralph Ludvik was “to get her hands on the
Mark explained that on the day of Ludvik's death, Ludvik
had driven to Paterson to buy cocaine. While he was gone,
[Petitioner] and Gerritsen discussed “ways of getting
rid of [Ludvik, ]” and devised a plan to “give
him a drug overdose.” In furtherance of that plan, Mark
dissolved nearly four bags of heroin, and drew the heroin
solution into a syringe, knowing that such quantity was a
lethal dose. Mark admitted that following a signal from
[Petitioner], he handed the syringe to an unsuspecting
Ludvik, who injected the heroin into his arm. Ludvik
immediately clutched his chest, and dropped to the floor
unconscious. Mark explained that while Ludvik was
unconscious, [Petitioner] rifled through Ludvik's pockets
and removed whatever cash she could find. Afterward, he and
[Petitioner] “part[ied] through the night.”
Shortly before 6:00 a.m., they returned to the bedroom,
realized Ludvik was dead, and called the police.
In the March 4, 2005 statement that Mark provided to
Detectives Breit and Bendul, he also explained that during
the time his mother was married to Ludvik, she was
“fooling around” with Gerritsen, and that his
mother and Gerritsen intended to “get together”
after Ludvik was dead.
Ultimately, Mark provided a twenty-seven page statement to
Detectives Bendul and Breit, and on videotape, acknowledged
that his statement was true. At [Petitioner]'s trial,
Breit read Mark's entire statement to the jury, and
played the videotape.
The State presented Mark's testimony at trial. After
initially asserting his Fifth Amendment right to remain
silent, Mark was granted immunity by the Attorney General.
Confronted by the prosecutor with his March 4, 2005 statement
to Detectives Breit and Bendul, Mark insisted that “it
was all made up. Nothing ever happened. . . . It was all just
a fictional account.” He denied telling Baez that he
participated in Ludvik's murder, and asserted that he
neither “hot loaded” a syringe nor handed the
deadly quantity of heroin to Ludvik.
The State also presented the testimony of Gerritsen, who
denied any involvement in the plan to murder Ludvik.
Gerritsen explained that he moved into the home on Palisade
Avenue with [Petitioner] and Ludvik in the latter part of
2002, because Ludvik had lost his job, and Ludvik and
[Petitioner] were experiencing financial difficulties.
[Petitioner] and Ralph had married a few months earlier.
Gerritsen testified that while they were all living together,
[Petitioner] continually made disparaging remarks about
Ludvik. He also testified that Mark suggested to [Petitioner]
that she should loosen one of the stair rails, push Ludvik
down the stairs and “make it look like an
Gerritsen also testified, without objection, that while he
was living in the house with [Petitioner], Ludvik and Mark,
there were several occasions when [Petitioner] came into his
room and crawled into his bed. When Gerritson protested, and
told her she should be in bed with her husband, and not with
him, she became “pissy, ” which he defined as
The State also presented the testimony of Ludvik's
father, Ralph Sr., who explained that before Ralph Jr.'s
death, he, Ralph Sr., had explained to [Petitioner] that he
believed title to the property on Palisade Avenue had passed
to Ralph Sr.'s sister Jane after their mother's
death. Ralph Sr. explained that [Petitioner] told him a
lawyer had assured her that her husband, Ralph Jr., was the
owner of the property.
In his testimony, Detective Breit described his interview
with [Petitioner] at the Edna Mahan Correctional Facility,
where [Petitioner] was incarcerated on unrelated charges
involving the fraudulent use of a credit card. The jury was
merely told that the interview occurred in a “break
room, interview room setting, ” with no mention of
[Petitioner] being incarcerated. Breit testified that he
began his interview with [Petitioner] by telling her that he
was there to discuss the circumstances of her husband's
death, at which time she immediately responded that he had
died of a drug overdose. When Detective Breit handed
[Petitioner] the pre-printed Miranda rights form, and
explained that he needed to advise her of her constitutional
rights, she became “hostile and irate.” According
to Breit, [Petitioner]'s agitation increased, and
“her demeanor changed, ” when Breit told her he
had already spoken with her son, Mark. [Petitioner] then
demanded to know what Mark had told him, but Breit explained
he was unable to provide her with any further information
until she signed the Miranda rights card. At that point,
[Petitioner] “became more hostile, ”
“started to . . . cry and [became] upset and . . . was
Breit testified that he was never able to interview
[Petitioner] because his discussion with her “just went
into . . . a circular conversation” in which he would
try to elicit her cooperation and have her sign the Miranda
rights card, while [Petitioner] would demand to know why it
was necessary that she do so. Ultimately, after forty-five
minutes, Breit terminated the interview when [Petitioner]
said, “if you're not going to answer my questions,
I'm not going to answer yours.”
The State also presented Dr. Singh, who testified that after
reading Mark Aquilina's March 2005 statement, he had not
changed his earlier conclusion that Ludvik died from a drug
overdose; however, Mark's statement caused him to alter
his original conclusion that the death was accidental. Singh
instead concluded that the manner of death was homicide. Dr.
Singh conceded that if Mark's statements to the
Prosecutor's Office were false, he would be obliged to
revise his opinion accordingly.
The toxicologist, Dr. Siek, testified that the quantity of
heroin found in Ludvik's blood was five times more than
the therapeutic level of morphine. Because the heroin had not
been completely metabolized, Dr. Siek opined that it had been
ingested only a few hours prior to Ludvik's death. In
sum, Dr. Siek concluded that Ludvik died due to an overdose
of morphine and cocaine.
At the conclusion of deliberations, the jury [convicted
Petitioner of first degree murder in violation of N.J. Stat.
Ann. § 2C:11-3, first degree conspiracy to commit murder
in violation of N.J. Stat. Ann. §§ 2C:11-3 and 5-2,
two counts of third degree possession of cocaine and heroin
respectively in violation of N.J. Stat. Ann. §
2C:35-10(a)(1), and third degree hindering prosecution in
violation of N.J. Stat. Ann. § 2C:29-3(b)(1)]. Prior to
sentencing, [Petitioner] moved for acquittal and for a new
trial. The judge denied both motions.
State v. Aquilina, 2012 WL 140851, at *1-5 (N.J.
App. Div. Jan. 19), certif. denied, 210 N.J. 479
(2012). Following the merger of certain charges for
sentencing purposes, Petitioner was ultimately sentenced to a
life sentence with an eighty five percent parole disqualifier
on the murder charges, concurrent five year terms on the two
drug charges, and a five year term of imprisonment on the
hindering prosecution charge to run consecutive to all the
other sentences. Id. at *1. Petitioner appealed, and
the Appellate Division affirmed her conviction and sentence.
Id. The New Jersey Supreme Court thereafter denied
her petition for certification on June 8, 2012. State v.
Aquilina, 210 N.J. 479 (2012).
thereafter filed a petition for post-conviction relief in
which she argued that she had received ineffective assistance
of counsel during her trial, which was denied without an
evidentiary hearing. See State v. Aquilina, 2016 WL
5746623, at *2 (App. Div. 2016), certif. denied, 228
N.J. 474 (2017). Petitioner appealed, and the Appellate
Division affirmed the denial of post-conviction relief.
Id. The New Jersey Supreme Court denied
certification on January 20, 2017. State v.
Aquilina, 228 N.J. 474 (2017). She thereafter filed her
present habeas petition. (ECF No. 1).
28 U.S.C. § 2254(a), the district court “shall
entertain an application for a writ of habeas corpus [o]n
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.” A habeas petitioner has the burden of
establishing his entitlement to relief for each claim
presented in his petition based upon the record that was
before the state court. See Eley v. Erickson, 712
F.3d 837, 846 (3d Cir. 2013); see also Parker v.
Matthews, 567 U.S. 37, 40-41 (2012). Under the statute,
as amended by the Anti-Terrorism and Effective Death Penalty
Act, 28 U.S.C. § 2244 (“AEDPA”), district
courts are required to give great deference to the
determinations of the state trial and appellate courts.
See Renico v. Lett, 559 U.S. 766, 772-73 (2010).
claim has been adjudicated on the merits by the state courts,
the district court shall not grant an application for a writ
of habeas corpus unless the state court 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;
(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)(1)-(2). Federal law is clearly
established for these purposes where it is clearly expressed
in “only the holdings, as opposed to the dicta”
of the opinions of the United States Supreme Court. See
Woods v. Donald, ___ U.S. ___, ___, 125 S.Ct. 1372, 1376
(2015). “When reviewing state criminal convictions on
collateral review, federal judges are required to afford
state courts due respect by overturning their decisions only
when there could be no reasonable dispute that they were
wrong.” Id. Where a petitioner challenges an
allegedly erroneous factual determination of the state
courts, “a determination of a factual issue made by a
State court shall be presumed to be correct [and the]
applicant shall have the burden of rebutting the presumption
of correctness by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1).