United States District Court, D. New Jersey
Christopher Blank Petitioner Pro se
C. Cipparone, Jr., Law Office of Rocco C. Cipparone,
Jr.Counsel for Petitioner 
C. Formica, Atlantic County Prosecutor's Office, Counsel
L. HILLMAN, U.S.D.J.
Christopher Blank (“Petitioner”) has submitted a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. (Pet., ECF No. 1.) Respondents Stephen
D'Ilio and the Attorney General of the State of New
Jersey (“Respondents”) oppose the petition.
(Answer, ECF No. 4.) For the reasons stated herein, the
petition shall be denied and no certificate of appealability
after midnight on July 13, 2006, Egg Harbor Police Officer
Christopher Leary pulled over a vehicle in which Petitioner
was riding as a passenger. State v. Blank, No.
A-5815-07T4, 2011 WL 1376696, at *1 ( N.J.Super.Ct.App.Div.
Apr. 13, 2011). Officer Leary subsequently attempted to
arrest Petitioner pursuant to an outstanding warrant for
possession of stolen construction tools. Id.
Petitioner resisted that arrest and ran away from Officer
Leary on foot. Id. Officer Leary and various police
officials, including, inter alia, Egg Harbor Police
Officers Clear Constantino and William Loder, continued to
pursue Petitioner in the hopes of effectuating his arrest.
Id. at *1-2. During that subsequent pursuit,
Petitioner obtained possession of Officer Constantino's
service weapon, and used that gun to shoot Officers Leary and
Constantino as they attempted to arrest him. Id. at
*2. Several hours later, Petitioner again used that weapon to
fire one bullet at Officer Loder. Id. As a result of
[Petitioner] was charged in Atlantic County Indictment No.
06-08-1914 with three counts of first-degree attempted
murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11- 3a(1) and (2)
(counts one, two and three); three counts of second-degree
aggravated assault, N.J.S.A. 2C:12- 1b(1) (counts four, five
and six); three counts of third-degree aggravated assault
with a deadly weapon, N.J.S.A. 2C:12-1b(2) (counts seven,
eight and nine); first-degree disarming a law enforcement
officer, N.J.S.A. 2C:12-11 (count ten); third-degree
resisting arrest, N.J.S.A. 2C:29-2a(2) (count eleven);
second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4a (count twelve); and fourth-degree
possession of a weapon by a convicted person, N.J.S.A.
2C:39-7 (count thirteen).
Id. at *1. During Petitioner's subsequent
The police officers testified to the following facts. A car
cut in front of Egg Harbor Police Officer Christopher
Leary's patrol car just after midnight on July 13, 2006.
Leary recognized [Petitioner] as a passenger in the car and
was aware of an outstanding warrant for his arrest for
possession of stolen construction tools. Leary executed a
“high risk stop” by ordering the driver to turn
off the car and both the driver and passenger to put their
hands out through the windows. Leary then ordered
[Petitioner] to get out of the car and to put his hands on
his head. As [Petitioner] was getting out of the car, Egg
Harbor Police Officer Clear Constantino arrived on the scene
to serve as back-up to Leary. Upon seeing that Leary was
executing a high-risk stop and that his gun was drawn,
Constantino also drew her gun and pointed it at [Petitioner].
Leary ordered [Petitioner] to keep his hands on his head,
walk backwards toward the sound of Leary's voice and,
once he was in front of Leary, to get on his knees and cross
his feet. [Petitioner] was compliant up to this point,
although he repeatedly asked Leary, as Leary testified,
“[w]hy all this caution?”
After exiting the car, [Petitioner] went down on his knees
but would not cross his feet. Leary then holstered his weapon
and attempted to handcuff [Petitioner]. After Leary cuffed
one of his hands, [Petitioner] began to resist and would not
allow his other hand to be cuffed. The officers hit and kneed
[Petitioner] in an effort to subdue and handcuff him.
Although Constantino sprayed [Petitioner] with pepper-spray,
[Petitioner] continued to struggle. [Petitioner] eventually
broke free and ran to the side of an abandoned house. The
officers ran after [Petitioner] and caught up with him in the
yard of the abandoned house.
After the police caught up with [Petitioner], a struggle
ensued. Leary put his arm around [Petitioner's] neck in
an attempt to secure him until additional back-up arrived.
Just as Leary had gotten [Petitioner] in a choke hold,
Constantino shouted that [Petitioner] had her gun, which he
had taken from her holster.
[Petitioner] shot Constantino three times beneath her
bullet-proof vest, once in her right side into her abdomen
and twice in her right thigh. Leary released [Petitioner] in
order to draw his own weapon, but he was immediately shot by
[Petitioner] into his bullet-proof vest covering his chest.
Leary yelled for Constantino to take cover, and both officers
ran from the area to wait for help to arrive.
After shooting at Leary and Constantino, [Petitioner] ran
away and encountered Egg Harbor Police Officer William Loder,
who was on patrol and had responded to the scene. Loder shone
a spotlight on [Petitioner] and ordered him to stop and
identify himself. When [Petitioner] refused, Loder repeatedly
ordered [Petitioner] to show his hands. [Petitioner] did not
respond, headed toward the woods and then fell to the ground.
When [Petitioner] got up, he pointed a gun at Loder. Loder
shot at [Petitioner] five times, hitting him once in the arm.
[Petitioner] then shot at Loder, narrowly missing his head.
[Petitioner's] gun jammed after [Petitioner] fired once
at Loder. [Petitioner] then discarded the gun and ran into
Police officers, SWAT teams, and K-9 officers combed the area
in search of [Petitioner]. Egg Harbor Police Officer James
Knight testified that his K-9 dog led him to [Petitioner],
and upon locating him, [Petitioner] began “fighting
[and] punching the dog.” Before police subdued him,
[Petitioner] received a serious dog bite.
Id. at *1-2.
[Petitioner, on the other hand, ] testified that after the
officers caught up with him at the house, they handcuffed him
to a fence and kicked and beat him to such a degree that he
did not think he would survive. [Petitioner] said he was hit
on the head with a metallic object and fell to the ground.
[Petitioner] testified that while on his knees he found a gun
on the ground, picked it up and fired at the officers. After
shooting at the officers, [Petitioner] claims that he shot
the handcuffs off of the fence, broke free and jumped over
[Petitioner] testified that he fired one shot at Loder in
self-defense and then discarded the gun.
Id. at *2.
foregoing makes clear, Petitioner, during trial, readily and
consistently acknowledged: (i) that he obtained possession of
Officer Constantino's firearm as Officers Leary and
Constantino attempted to arrest him (see also,
e.g., Jan. 23, 2008 Trial Tr. 208:15-18, ECF No.
4-8); (ii) that he shot Officers Leary and Constantino with
that gun (see, e.g., Jan. 24, 2008 Trial
Tr. 50:20-23, ECF No. 4-9); and (iii) that he also used that
weapon to fire one bullet at Officer Loder several hours
later. (Id. at 92:2-5.) Petitioner claimed that
these actions were done in self-defense and out of fear for
his personal safety. (See, e.g.,
Pet'r's Aug. 24, 2015 Reply Br. at 6, ECF No. 8 (the
“main factual issue at trial” was whether
Petitioner was justified in his “use of force in
tenth day of trial proceedings, “the jury found
[Petitioner] guilty of counts one through twelve [of the
charges set forth in the indictment detailed supra],
and after [Petitioner] waived his right to a jury trial, the
court found [Petitioner] guilty of count thirteen.”
Blank, 2011 WL 1376696, at *1. In other words,
Petitioner “was convicted of disarming [Officer
Constantino] and shooting her three times, shooting [Officer
Leary] in his bullet-proof vest and shooting near the head of
[Officer Loder] as he tried to arrest [Petitioner] on an
outstanding warrant.” Id. Petitioner was
sentenced “to an aggregate extended term of eighty-five
years with an eighty-five percent parole bar” as a
result of the foregoing. Id.
subsequently appealed his conviction and sentence to the
Appellate Division, arguing, inter alia, that the
trial court: (i) “erred in failing to charge attempted
passion/provocation manslaughter to the jury[;]” and
(ii) “erred in denying the jurors permission, during
deliberations, to re- enact the removal of [Officer
Constantino's] gun from the holster.” (See
Pet'r's Appeal Br. at 13, 21, ECF No. 4-16
(capitalization in original omitted).) The Appellate Division
affirmed Petitioner's conviction and sentence on April
13, 2011. Blank, 2011 WL 1376696, at *11. The New
Jersey Supreme Court denied certification of Petitioner's
direct appeal on September 5, 2011. State v. Blank,
27 A.3d 952 (N.J. 2011) (table).
thereafter filed a post-conviction relief (“PCR”)
petition in the state court challenging, inter alia,
his trial counsel's failures to: (i) use peremptory
challenges to excuse numerous jurors who had affiliations
with law enforcement; and (ii) present expert testimony
regarding the distance at which Petitioner's handcuffs
were shot. (See Pet'r's PCR Br. at 17, 36,
ECF No. 4-20.) The same judge who presided over
Petitioner's criminal trial, the Honorable Michael A.
Donio, J.S.C., denied Petitioner's PCR petition, without
an evidentiary hearing, for the reasons which he set forth on
the record on May 24, 2013. (May 24, 2013 PCR Hr'g Tr.
51:14-71:21, ECF No. 4-15.) The Appellate Division affirmed
the denial of Petitioner's PCR petition. State v.
Blank, No. A-4717-12T4, 2014 WL 6474347, at *1 (N.J.
Sup. Ct. App. Div. Nov. 20, 2014), as amended (Dec.
4, 2014). The New Jersey Supreme Court denied certification
of Petitioner's PCR appeal on January 7, 2015. State
v. Blank, 112 A.3d 593 (N.J. 2015) (table).
filed his § 2254 petition, pro se, on May 28,
2015. (ECF No. 1.) Petitioner's habeas petition sets
forth four grounds which he claims entitle him to habeas
Ground One: Denial of right to fair trial and due process of
law, based on trial judge's [denial of the jury's
request during] jury deliberations [to have the safety lock
from Officer Constantino's gun removed] wherein jurors
were prevented from accessing evidence and therefore
prevented from re-enacting key events.
Ground Two: Denial of effective assistance of counsel, based
on trial counsel's failure to exercise [preemptory]
challenges to remove jurors with connection[s] to law
Ground Three: Denial of effective assistance of counsel,
based on trial counsel's failure to present expert
witnesses to prove that handcuffs were shot from close range.
Ground Four: Denial of right to fair trial and due process of
law, based on trial judge's failure to issue jury charge
regarding lesser offense of attempted passion/provocation
(Pet. at ¶ 12, ECF No. 1 (capitalization in original
omitted).) On June 18, 2015, this Court ordered Respondents
to “file a full and complete answer [responding to each
of the four grounds] asserted in the petition.” (ECF
No. 2.) Respondents filed their original answer on July 20,
2015. (ECF No. 4.) That answer did not, however,
“directly respond to Petitioner's complaint that
two of the jurors had direct connections to the State's
witnesses[, ]” in spite of the fact that “Juror
No. 9 and Juror No. 5 admitted during voir dire that they
knew witnesses for the prosecution.” (See
April 26, 2016 Order at ¶¶ 4, 5.) Petitioner filed
a reply, pro se, to Respondents' July 20th
answer on August 24, 2015. (ECF No. 8.)
April 26, 2016, this Court ordered Respondents to file an
additional supplemental answer “responding to
Petitioner's allegations that he received ineffective
assistance of counsel due to his trial counsel's failure
to use a preemptory challenge to remove jurors who had
connections to the State's witnesses.” (Apr. 26,
2016 Order at 2-3, ECF No. 9.) Respondents filed their
supplemental answer on May 11, 2016. (ECF No. 10.)
of a letter dated May 4, 2016, Petitioner requested that this
Court appoint him counsel “for the limited purpose of
filing a Supplemental Reply” to Respondents'
supplemental answer. (ECF No. 12.) On May 18, 2016, this
Court appointed attorney Rocco C. Cipparone, Jr. to serve as
Petitioner's counsel for the express and “limited
purpose of preparing [that] Supplemental Reply.”
(See June 16, 2016 Order, ECF No. 16.)
- through his appointed habeas counsel - filed a supplemental
reply on July 14, 2016. (ECF No. 17.) Petitioner thereafter,
on September 15, 2016, filed an additional supplemental
reply, pro se. (ECF Nos. 18, 19.) At that time,
Petitioner also filed a motion, pro se, to expand
the record to include an additional self-prepared declaration
dated September 5, 2016, which details [Petitioner's]
purported discussions with his trial counsel about Juror Nos.
5 and 9 during voir dire.
No. 20-1.) Petitioner requested that “the Court
consider his [pro se supplemental] submissions as
though they were attached to his appointed attorney's
Supplemental Reply.” (See Apr. 13, 2017 Mem.
Order at ¶ 4, ECF No. 21.)
April 13, 2017, this Court entered a Memorandum Order denying
Petitioner's September 5th pro se applications
without prejudice. (ECF No. 21.) In so doing, this Court
noted that it “appointed [Petitioner] counsel for the
express purpose of filing of supplemental reply to streamline
this matter and ensure that the parties' positions were
concisely and completely presented for this Court's
consideration.” (See Apr. 13, 2017 Mem. Order
at ¶ 5, ECF No. 21.) Nonetheless, in order “to
ensure that any and all relevant and appropriate arguments
[were] presented” in that supplemental reply, this
Court afforded Petitioner an additional “30 days to
consult with [his appointed habeas counsel] and, should
counsel deem appropriate, counsel may file an amended
supplemental reply.” (See Apr. 13, 2017 Mem.
Order at ¶ 5, ECF No. 21.) Petitioner declined to submit
an amended supplemental reply in response to the Court's
April 13, 2017 Memorandum Order.
STANDARD OF REVIEW
U.S.C. § 2254 permits a federal court to entertain a
petition for writ of habeas corpus on behalf of a person in
state 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.” 28 U.S.C. § 2254(a).
respect to any claim adjudicated on the merits by a state
court, the writ shall not issue unless the adjudication of
(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 (2000).
state-court decision is an unreasonable application of
clearly established [Supreme Court] precedent if it correctly
identifies the governing legal rule but applies that rule
unreasonably to the facts of a particular prisoner's
case.” White v. Woodall, 134 S.Ct. 1697, 1706,
reh'g denied, 134 S.Ct. 2835 (2014). This Court
must presume that the state court's factual findings are