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Blank v. D'Ilio

United States District Court, D. New Jersey

April 23, 2018

STEPHEN M. D'ILIO, et al. Respondents.

          Christopher Blank Petitioner Pro se

          Rocco C. Cipparone, Jr., Law Office of Rocco C. Cipparone, Jr.Counsel for Petitioner [1]

          Mario C. Formica, Atlantic County Prosecutor's Office, Counsel for Respondents


          NOEL L. HILLMAN, U.S.D.J.


         Petitioner 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 will issue.

         II. BACKGROUND[2]

         Shortly 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 the foregoing:

[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 criminal trial:

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 the woods.
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 the fence.
[Petitioner] testified that he fired one shot at Loder in self-defense and then discarded the gun.

Id. at *2.

         As the 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 self-defense.”).)

         On the 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.

         Petitioner 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).

         Petitioner 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).

         Petitioner 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 relief:

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 enforcement.
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 manslaughter.

(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.)

         On 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.)

         By way 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.)

         Petitioner - 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.

         (ECF 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.)

         On 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.


         28 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).

         With respect to any claim adjudicated on the merits by a state court, 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 (2000).

         “[A] 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 ...

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