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Defazio v. Sweeney

United States District Court, D. New Jersey

March 2, 2019



          Evin McNlty United States District Judge


         Before this Court is the petition of Anthony Defazio ("Petitioner" or "Mr. Defazio") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (DE 1, cited as "Petition"). Mr. Defazio is presently confined at Northern State Prison in Newark. New Jersey. For the reasons set forth below, his habeas petition is DENIED, and he is denied a certificate of appealability.


         A. Factual Background

         The facts of this case are set forth in the opinion of the Superior Court of New Jersey, Appellate Division, on Petitioner's direct appeal of his conviction. (DE 10-8 at 2-6.) The facts most pertinent to this Opinion are set forth below:

         Mr. Defazio met the victim, Darlene Sanders, in May 1994, He lived with her and her four children in Virginia from July 1994 until April 1995, when Ms. Sanders moved to her own apartment. Defazio and Sanders had a tumultuous relationship, including: a restraining order against Mr. Defazio; a telephone call about child support in which Defazio told Sanders that he would kill her; and Defazio's statements to others that he wanted to beat Sanders with a crowbar, dig a grave, put her in a hole, and put lime over her body; and witness testimony at that Defazio told them in 1997 that he "got rid" of Sanders. (Id. at 3-4.)

         Around midnight on February 21, 1997, Mr. Defazio called a tow truck driver in Forks Township, Pennsylvania to pull his car from the mud. The tow truck driver found Defazio in a remote wooded area, became suspicious of Defazio's behavior, and called police. (Id. at 4.)

         That day, Ms. Sanders's mother became upset after she did not return home or call. The mother contacted police on February 22, 1997. The police initiated an investigation, which eventually led them to question Defazio on February 24, 1997. He said he knew nothing about Sanders or her disappearance. (Id.)

         Mr. Defazio then called his friend Herbert Sandberg and told him that the police had questioned him. According to Mr. Sandberg, Defazio told him that "something" had happened and he was going away for a long time. That same night. Defazio's friend David Riggin appeared at Defazio's house where, according to Mr. Riggin, Defazio asked him to tell the police that on February 21, 1997 (the date of Ms. Sanders's death), they had worked together on a job. Riggin refused. (Id.)

         On Wednesday. February 26, 1997. officials in Pennsylvania unearthed Ms. Sanders's body. An autopsy revealed bruises indicating signs of a struggle. From the nature of the marks, the forensic pathologist opined that a person would "need a lot of strength to do this." He determined the cause of death to be manual strangulation. He testified that it was "impossible for it to be an accidental injury" because one "can't kill this individual unless [he] continue[d] to exert pressure" for one to two minutes after she had passed out for lack of air. (Id. at 4-5.)

         On Friday, February 28, 1997. police arrested Mr. Defazio for the murder of Ms. Sanders. (Id. at 5.)

         According to Mr. Defazio, Ms. Sanders had called him on February 20, 1997. They went to a movie on February 21, 1997, and returned to the victim's home where a fight ensued. Sanders slapped Defazio's ear, hit him with a hair brush, and kicked him. Defazio pushed her onto the bed, and she grabbed him by the neck when he jumped on top of her. He then grabbed her by the neck, "and the next thing he knew, 'she was limp.'" (Id. at 5-6.) He testified that he had his hands around Sanders's neck for what "seemed like a couple (of] seconds." (Id. at 6.) Later, he loaded her body into the trunk of the Honda of his then-current girlfriend, Donna Romano. He drove to Pennsylvania. When he found a deserted area, he dug a hole and put Sanders's body in it. When his car became stuck in the mud, he called a tow truck driver. (Id.)

         B. Procedural History

         Following a jury trial, Mr. Defazio was found guilty of purposeful or knowing murder in violation of N.J. Stat. Ann. § 2C::11-3a(1) and 2C:11-3(a)2. (DE 10-29 at 2.) He was sentenced to life imprisonment, with a thirty-year period of parole ineligibility. (Id.)

         Mr. Defazio appealed his conviction and sentence. (DE 10-6.) The Appellate Division affirmed his conviction on June 28, 2000. (DE 10-8 at 24.) The New Jersey Supreme Court denied certification on October 24, 2000. State v. Franklin, 762 A.2d 220 (NJ. 2000). On May 2, 2003. he filed a petition for post-conviction relief ("PCR"). (DE 10-13; DE 10-14.) Defazio then filed a motion to compel production of Ms. Sanders's mental health records, which the Honorable Diane Pincus, J.S.C., denied on February 16, 2012. (DE 10-50.)

         On February 19, 2013, Judge Pincus denied Mr. Defazio's PCR application. (DE 10-16; DE 10-22 at 125-152.)

         On March 11, 2013, Mr. Defazio filed a motion for reconsideration of denial of an evidentiary hearing in connection with his PCR petition. (DE 10-17; DE 10-18.) On August 21, 2013, Judge Pincus denied reconsideration. (DE 10-20.)

         On March 27, 2014, Mr. Defazio appealed from Judge Pincus's denial of PCR. (DE 10-21.) The Appellate Division affirmed the denial of PCR on May 28, 2015. (DE 10-29.)

         On January 29, 2016. the New Jersey Supreme Court denied certification. Slate v. Franklin, 129 A.3d 328 (2016).

         On February 4, 2016, Mr. Defazio filed a motion for reconsideration of denial of certification. (DE 10-34.) On March 30, 2016, the New Jersey Supreme Court denied that motion. State v. Franklin. 129 A.3d 328 (N.J. 2016).

         On February 23, 2016, Mr. Defazio filed his §2254 habeas petition with this Court. (DE 1 at 29.) The Petition raises six grounds, most with numerous sub-parts: (1) ineffective assistance of counsel ("1AC") - presented in five sub-parts (DE 1 at 7-20) ("Ground One")); (2) trial court errors, improper prosecutorial comment, and IAC -presented in four sub-parts (id. at 20-23) ("Ground Two"); (3) due process violation from the State's purported withholding of'•material and favorable" evidence (id. at 23-24) ("Ground Three"); (4) deprivation of due process rights as a result of the trial judge's facial expressions at trial and the trial court's failure to provide a self-defense jury charge or a limiting instruction regarding Defazio"s pre-arrest silence (id. at 24-26) ("Ground Four"); (5) the trial judge's passion/provocation manslaughter instruction was '"fatally flawed" because it impermissibly shifted the burden of proof and inadequately defined provocation (id. at 26) ("Ground Five"); and (6) deprivation of a fair trial from the admission of "highly prejudicial and irrelevant" evidence of Mr. Defazio's other bad acts, (Id. at 27-29) ("Ground Six").)

         In July 2016, Respondents filed an answer (DE 9; DE 10), and in April 2017 Mr. Defazio filed a reply. (DE 23.)


         Under 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). 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. 773 (2010).

         Where a 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; 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)(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, 135 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).

         Under these standards, the relevant state court decision that is appropriate for federal habeas corpus review is the last reasoned state court decision. See Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir. 2008). Additionally, these standards apply "even where there has been a summary denial" by the state court. Cullen v. Pinholster, 563 U.S. 170, 187 (2011). "In these circumstances, [petitioner] can satisfy the 'unreasonable application' prong of § 2254(d)(1) only by showing that 'there was no reasonable basis' for the [state court's] decision." Id. at 187-88 (quoting Harrington v. Richter, 562 U.S. 86, 98 (2011)). Furthermore, "when the relevant state-court decision on the merits ...does not come accompanied with ... reasons ... [w]e hold that the federal court should 'look through" the unexplained decision to the last related state-court decision that does provide a relevant rationale." Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).

         In addition to the above requirements, a federal court may not grant a writ of habeas corpus under § 2254 unless the petitioner has "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). To do so, a petitioner must '"fairly present* all federal claims to the highest state court before bringing them in federal court." Leyva v. Williams, 504 F.3d 357, 365 (3d Cir. 2007) (citing Stevens v. Delaware Con: Or., 295 F.3d 361. 369 (3d Cir. 2002)). This requirement ensures that state courts "have "an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights.'" Id. (citing United States v. Bendolph, 409 F.3d 155, 173 (3d Cir. 2005) (quoting Duckworth v. Serrano. 454 U.S. 1, 3 (1981)). Nevertheless, to the extent that a petitioner's constitutional claims are unexhausted, a court can nevertheless deny them on the merits under 28 U.S.C. § 2254(b)(2). See Taylor v. Horn, 504 F.3d 416, 427 (3d Cir. 2007); Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir. 2005).


         A. Ground One: Ineffective Assistance of Counsel

         In Ground One, Mr. Defazio alleges that his trial counsel, A. Kenneth Weiner, Esquire, rendered ineffective assistance of counsel ("IAC"). (Petition at 7.)

         The Sixth Amendment guarantees the accused the "right... to have the Assistance of Counsel for his defense." U.S. Const, amend. VI. The right to counsel is the right to the effective assistance of counsel, and counsel can deprive a defendant of the right by failing to render adequate legal assistance. See Strickland v. Washington, 466 U.S. 668, 686 (1984). A claim that counsel's assistance was so defective as to require reversal of a conviction has two components, both of which must be satisfied. Id. at 687.

         First, a petitioner must "show that counsel's representation fell below an objective standard of reasonableness." Id. at 687-88. To meet this prong, a "convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. at 690. The court must then determine whether, in light of all the circumstances at the time, the identified errors fell "below an objective standard of reasonableness." Hint on v. Alabama, 134 S.Ct. 1081, 1088(2014).

         Second, a petitioner must establish that counsel's "deficient performance prejudiced the defense so as to deprive the defendant of a fair trial." Strickland, 466 U.S. at 669. To establish prejudice, the defendant must show that "there is a reasonable probability that the result of trial would have been different absent the deficient act or omission." Id. at 1083.

         On habeas review, it is not enough that a federal judge would have found counsel ineffective. The judge must find that the state court's resolution of the IAC issue was itself unreasonable, a higher standard. Harrington, 562 U.S. at 101.

         1. IAC -Failure To Obtain Decedent's Medical Records

         In Ground One's first sub-part, Mr. Defazio contends that Mr. Weiner failed to obtain certain medical records of Ms. Sanders that would have shown a "cardiomyopathy heart condition that would have impacted the 'causation' determination of the manner of death." (Petition at 9 ("IAC-Medical Records Claim").)

         At trial, Defazio testified that during the fight with Sanders, he jumped on top of her and grabbed her by the neck to try to control her. The next thing he knew, she went limp and he realized that she was dead. (DE 10-8 at 6).

         In PCR proceedings, Judge Pincus determined that "[t]he fact that Ms. Sanders suffered from a heart problem and, as a result, might have succumbed to strangulation more quickly than someone in perfect health, would not have lessened Defendant's criminal responsibility for causing Ms. Sanders' death." (DE 10-22 at 142-43.) Judge Pincus ruled that: "While it appears that Counsel may have been deficient in failing to obtain Ms. Sanders' medical records in order to provide them to his expert, and use them to cross-examine the State's expert, Defendant has not satisfied the second prong of Strickland in that he cannot demonstrate, to a reasonable probability, that, but for Counsel's deficient performance, the result of his trial would have been any different." (DE 10-22 at 142.)

         Agreeing that Mr. Defazio's IAC-Medical Records Claim had no merit, the Appellate Division affirmed "for the reasons stated by Judge Pincus" (DE 10-29 at 8.) The Appellate Division agreed with the PCR court that Mr. Defazio had shown neither deficient performance nor prejudice. First, the Appellate Division correctly set forth the governing Strickland standard, under which a habeas petitioner must demonstrate both: (1) deficient performance by counsel and (2) that defective performance's prejudice to the defense. (DE 10-29 at 8-9) (internal citation and quotation marks omitted). Then, the Appellate Division explained Defazio's failure to satisfy Strickland's first prong:

We agree with the PCR judge defendant did not. through sworn affidavits or certifications, demonstrate that trial counsel would have uncovered evidence supporting defendant's unsubstantiated assertions regarding the victim's health which caused her accidental death. Rather, as Judge Pincus noted, counsel did consult with a forensic pathologist prior to trial and the doctor's opinion was the victim's death was a homicide ...

(DE 10-29 at 9-10.) Finally, the Appellate Division explained Mr. Defazio's failure to satisfy Strickland's second prong:

Moreover, we agree with the PCR judge that even if defendant could show deficient performance, his claims still fail under Strickland's second prong ... To establish prejudice from a deficiency, the defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." This 'Ms an exacting standard:;[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Defendant has proffered no facts to support a reasonable probability that the results of the trial would have been different. The PCR judge referred to the trial testimony of witnesses that defendant said in effect he would kill the victim, he would bury the body in the woods and cover it with lime. After the murder, defendant told a witness that he got rid of the victim by strangling her and that it was neat, bloodless, and easier than he thought. At trial, defendant admitted he did not try to resuscitate the victim or call anyone for help. Specifically, as the PCR judge stated, and we concur, "it is clear that the State had an extremely strong case against [d]efendant, which demonstrated that [d]efendant premeditated and planned the murder of [the victim] and disposed of her body." Consequently, we agree with the PCR judge defendant failed to present a prima facie case in support of post-conviction relief.

(DE 10-29 at 9-10.)

         After reviewing the record and governing law, I find that the state courts' application of Strickland to the facts was not unreasonable.

         First, as to Strickland's deficient performance prong, medical records of Ms. Sanders's pre-existing heart condition would not have changed the facts about her strangulation - or so a reasonable attorney could have thought. Defense counsel did not merely neglect the medical issue; he "consult[ed] with a medical pathologist prior to trial[, ] [whose] opinion was the victim's death was a homicide." (DE 10-29 at 10.) The cause-of-death facts were established by Dr. Mihalakis, the forensic pathologist. (DE 10-22 at 131.) Mr. Defazio himself admitted grabbing the victim by her neck. (DE 10-8 at 6.) Under the deficient-performance prong of Strickland, I must indulge a presumption that counsel's choices about the victim's medical records were made in furtherance of a legal strategy. An application of common sense to the cause-of-death evidence and Mr. Defazio's own testimony here tend to confirm that presumption. In this context, the state courts' rulings that Mr. Defazio failed to show Strickland deficient performance were not unreasonable.

         Second, as to Strickland's prejudice prong, neither Judge Pincus's decision nor the Appellate Division's affirmance of it was an unreasonable application of clearly established federal law or an unreasonable determination of the facts. Mr. Defazio did not deny grabbing the victim by her throat or that she died immediately thereafter. The State put forth testimony establishing the volatile nature of their relationship, including Defazio's previous threats to kill Ms. Sanders; witnesses' testimony that Defazio told them he wanted to kill her; and Mr. Sandberg's statement that Defazio told him. prophetically, that he had done "something" for which Defazio would be '"going away for a long time." (DE 10-8 at 3-6.) In light of these facts, Defazio has not shown that it is reasonably probable that, if counsel had obtained Ms. Sanders's cardiomyopathy medical records, the outcome of his case would have been different.

         "Because a convicted defendant must satisfy both prongs of the Strickland test [i.e., deficient performance and prejudice], failure to establish either deficient performance or prejudice makes it unnecessary to examine the other prong." United States v. Manamela, 612 Fed.Appx. 151, 154 (3d Cir. 2015) (citing Strickland, 466 U.S. at 699). Here, Petitioner established neither, as the state courts reasonably found under a correct application of governing federal precedent. Accordingly, Ground One's IAC-Medical Records Claim is denied.

         2.1AC -Failure To Pursue Self-Defense As An Alternative Defense

         In Ground One's second sub-part, Mr. Defazio argues that Mr. Weiner was ineffective in failing to pursue self-defense as an alternative defense. (Petition at 13 ("IAC Self-Defense Claim").) Defazio alleges that a jury, based on an imperfect self-defense theory, could have convicted him of the lesser offense of second-degree reckless manslaughter. (Id. at 15.) He charges that a "financial conflict of interest" caused counsel to fail to obtain such evidence. (Id. at 13.) The Petition suggests that counsel opted to use limited resources to pay himself instead of experts who would have supported a self-defense theory. (Id. at 8, 20.)

         Judge Pincus rejected Mr. Defazio's claim, citing Strickland's principle that "[i]n hindsight, a court should not question trial counsel's strategy so long as it was reasonable." (DE 10-22 at 147.) Judge Pincus explained that self-defense would have been unsupportable on the facts:

[A]n otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel"s exercise of judgment during trial. As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude to thwart the fundamental guarantee of a fair trial.
In this case, it was a reasonable tactical decision for counsel to pursue the accidental nature of the death and passion/provocation manslaughter, rather than alternative defenses of self-defense, voluntary intoxication, and/or diminished capacity.
As to Defendant's suggestion that counsel should have pursued a strategy of self-defense, N.J.S.A. 2C:3-4(a) provides, in pertinent part, that the use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion. N.J.S.A. 2C:3-4(b)(2). [Furthermore, ] [a] person may not use more force than that which he reasonably believes is necessary to repel the attack. The amount of force must be proportionate to what the defendant reasonably believes [i]s necessary.
Even accepting Defendant's testimony as true, the assault was limited to Ms. Sanders hitting Defendant with a brush and slapping and kicking him. Other than a scratch on his neck, Defendant did not sustain any injuries. Strangling Ms. Sanders to death as a result of her hitting him with a brush and slapping and kicking him was certainly more force than that which was reasonably necessary to repel the attack. The amount of force was greatly disproportionate to what was reasonably necessary, and there is no support for the idea that Defendant believes the force was reasonably necessary to protect himself against death or serious bodily injury, as he only had a scratch on his neck that did not require any medical attention.

(DE 10-22 at 147-48.)

         After citing the Strickland standard, the Appellate Division affirmed the PCR court's ruling, for "substantially the reasons stated by Judge Pincus." (DE 10-29 at 8.) The Appellate Division stated: "Defendant failed to offer any support for his contention that his counsel's ... financial difficulties resulted in ineffective assistance of counsel." (Id. at 10.)

         In finding that Mr. Defazio had not demonstrated Strickland's deficient performance standard, the state courts' determinations were not objectively unreasonable. The record demonstrates that the victim's conduct towards Mr. Defazio consisted of a hair brush thrown at him, a slap, and a kick. (DE 10-8 at 6.) Such non-lethal behavior is a far cry from warranting the use of deadly force, such as would have been required to argue self-defense under N.J. Stat. Ann. § 2C:3-4(a). The evidence at trial showed that Mr. Defazio's level of force was not commensurate with the victim's. Thus, self-defense, especially in the form of deadly force, was not a viable option under the governing law. In addition, reasonable counsel could have perceived that pursuing inconsistent defenses, or a blame-the-victim strategy, before the jury could have seriously backfired. In context, counsel's decision to pursue the stronger defense of accident, rather than a weaker theory of self-defense, did not "f[a]ll below an objective standard of reasonableness." Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). The state courts reasonably found that Mr. Weiner was not deficient in failing to pursue a self-defense defense at trial.

         Accordingly, the state court rulings on this claim were neither contrary to nor an unreasonable application of federal precedent. Therefore, Ground One's IAC Self-Defense Claim is denied.

         3. IAC -Failure To Engage In Plea Negotiations

         In Ground One's third sub-part, Mr. Defazio contends that Mr. Weiner rendered IAC by "refus[ing] to approach the State to negotiate or discuss possibility of a plea, telling Petitioner that it was not legal to plea bargain a murder case." (Petition at 15 ("IAC-Plea Claim").) Defazio suggests that Weiner failed to engage in plea negotiations because he was fearful of exposing himself to criminal and ethical violations and because he had an interest in proceeding to trial for monetary gain. (Id. at 15-16.)

         In PCR proceedings, Judge Pincus first summarized Mr. Defazio's IAC-Plea Claim, which is similar to the one asserted here:

Defendant argues that Counsel was burdened by an actual conflict of interest that pitted Counsel's interests directly against those of Mr. Franklin's, causing Counsel to refrain from entering into plea discussions/negotiations with the State. According to defendant, Counsel failed to initiate or engage in pre-trial plea discussions/negotiations because Counsel was fearful of exposing himself to criminal and or ethical violations and malpractice liability. Defendant also argues that Counsel had an interest in proceeding to trial in order to increase his personal pecuniary gain, in an effort to support and finance his growing drug and gambling addictions. According to Defendant, in November of 1997, Defendant and his parents requested that Counsel approach the State to discuss the possibility of a plea agreement. Defendant contends that Counsel refused to entertain any such possibilities and refused to broach the subject with the State. Defendant argues that ethically and ...

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