AMODIO v. WARREN

Filing 15

OPINION. Signed by Judge Noel L. Hillman on 12/4/2017. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Petitioner,
:
:
v.
:
:
CHARLES E. WARREN, JR.,
:
:
Respondent.
:
___________________________________:
DAVID AMODIO,

Civ. No. 13-4355 (NLH)
OPINION

APPEARANCES:
David Amodio, # 242285-B
New Jersey State Prison
P.O. BOX 861
Trenton, NJ 08625
Petitioner, Pro se
Nancy P. Scharff, Esq.
Camden County Prosecutor’s Office
Motions & Appeals Unit
25 North Fifth Street
Camden, NJ 08102-1231
Counsel for Respondent
HILLMAN, 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

1

To the extent that Petitioner's claims are unexhausted, this
Court will deny them on the merits pursuant to 28 U.S.C. §

I.

FACTUAL BACKGROUND and PROCEDURAL HISTORY

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); firstdegree 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

2254(b)(2) (“An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the
State”). See Carrascosa v. McGuire, 520 F.3d 249, 255 n. 10 (3d
Cir. 2008) (“There is, however, a difference between granting an
unexhausted habeas claim on the merits and denying such a claim
on the merits, as recognized by the plain language of section
2254(b)(2) . . . Denying an unexhausted claim on the merits is
consistent with the statute”); Taylor v. Horn, 504 F.3d 416, 427
(3d Cir. 2007) (“Here, because we will deny all of Taylor's
claims on the merits, we need not address exhaustion”);
Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir. 2005) (“We would
permit Bronshtein to attempt on remand to establish a reason to
excuse his procedural default, but we find it unnecessary to do
so because it is apparent that the claims in question lack
merit. Under 28 U.S.C. § 2254(b)(2), we may reject claims on
the merits even though they were not properly exhausted, and we
take that approach here”).
2

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,
3

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 firstdegree 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 lesserincluded 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-

4

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 PostConviction 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. A4350-10T1, 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

2

The trial court re-sentenced Petitioner to a consecutive term
of seven years of incarceration on count two with a NERA period
of parole ineligibility. Petitioner did not appeal his resentencing.
5

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).

6

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.

(1)

Specifically, he alleges:

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

7

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;

3

As discussed above, this claim has been dismissed.
8

(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.
II.

STANDARDS OF REVIEW

As amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), 28 U.S.C. § 2254 now provides, in
pertinent part:

9

(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

10

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)).

11

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).
III. DISCUSSION
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
12

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.
13

Amodio, 390 N.J. Super. 313, 323–29, 915 A.2d 569, 575–78 (App.
Div. 2007).
rejected it.

Both State courts considered Petitioner’s claim and
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.
states:

In support of this claim, Petitioner

“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”
14

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

4

Petitioner was convicted of third degree arson, which is
defined under New Jersey law as follows:
b. Arson. A person is guilty of arson, a crime of the
third degree, if he purposely starts a fire or causes
an explosion, whether on his own property or
another's:
(1) Thereby recklessly placing another person in
danger of death or bodily injury; or
(2) Thereby recklessly placing a building or structure
of another in danger of damage or destruction; or
(3) With the purpose of collecting insurance for the
destruction or damage to such property; or
(4) With the purpose of destroying or damaging a
structure in order to exempt the structure, completely
or partially, from the provisions of any State, county
or local zoning, planning or building law, regulation,
ordinance or enactment ; or

15

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

(5) Thereby recklessly placing a forest in danger of
damage or destruction
N.J. STAT. ANN. § 2C:17-1.
16

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.
17

In addition,

Petitioners' sentence does not exceed the statutory limits.
Consequently, these Grounds are not subject to federal habeas
review and will be denied.
1. Ground Three
In Ground Three, Petitioner asserts that “a trial court
must, under the new rule of law weigh the aggravating and
mitigating [sentencing] factors unencumbered by the presumptive
statutory term when sentencing the defendant.” (Pet. at 6, ECF
No. 4).

Petitioner raised this issue in his direct appeal.

The

Appellate Division granted Petitioner relief by vacating
Petitioner’s sentence on count two and remanding to the trial
court for re-sentencing pursuant to State v. Natale, 184 N.J.
458 (2005).
After Petitioner was re-sentenced, he did not appeal his
new sentence.

If Petitioner intends to challenge the procedure

employed at his re-sentencing, which is not entirely clear from
the Petition, such a claim is unexhausted because Petitioner did
not pursue an appeal challenging the sentence in the state
courts.

A petitioner seeking federal habeas review must exhaust

state court remedies for all grounds for relief asserted in a
habeas petition. 28 U.S.C. § 2254(b)(1)(A); Crews v. Horn, 360
F.3d 146, 151 (3d Cir. 2004).

Petitioner therefore cannot be

granted habeas relief for this claim if it is addressed to his
re-sentencing.
18

However, the Court may dismiss Petitioner’s unexhausted
claim on the merits. 28 U.S.C. § 2254(b)(2).

Exhausted or not,

Petitioner’s claim is premised on an alleged state court error
in its application of state law and therefore does not provide a
basis for habeas relief.

The Supreme Court has emphasized that

“federal habeas relief does not lie for errors of state law.”
Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (citation
omitted).

Here, in support of this claim, Petitioner states:

The judge’s one mitigating factor was actual [sic] two
factors. 1.) Defendant had no prior history of
delingunecy [sic]. 2.) defendant had no prior criminal
history or activity which should of factored in the
sentencing of the defendant and could of licensed
[sic] the sentence of defendant.
Pet. at 7.

Petitioner is thus challenging the trial court’s

application of New Jersey law -- specifically, that court’s
application of N.J. STAT. ANN. 2C:44-1b(7), which delineates the
mitigating factor in question.

This Court may not “reexamine

state-court determinations on state-law questions.” Estelle, 502
U.S. at 68.

Thus, because this claim is both unexhausted and

fails to raise a cognizable federal claim, Petitioner is not
entitled to habeas relief.

Ground Three will therefore be

denied.
2. Ground Five
In Ground Five, Petitioner argues that New Jersey’s No
Early Release Act (“NERA”) does not apply to a homicide which

19

would otherwise be murder but for its commission in the heat of
passion.

Petitioner raised this claim in his direct appeal.

However, this claim is also premised on the state court’s
application of state law and the Appellate Division reviewed the
claim only on state law grounds. See Amodio, 390 N.J. Super. at
333–34, 915 A.2d at 581.

Because this claim fails to raise a

federal issue, Petitioner is not entitled to habeas relief.
Accordingly, Ground Five will be denied.
3. Grounds Six and Nine
In Grounds Six and Nine, Petitioner challenges the trial
court’s imposition of consecutive terms.

Specifically, in

Ground Six, Petitioner asserts that “[t]he trial court erred in
imposing a consecutive term where it determined the crimes
remote and independent from on [sic] another.” Pet. at 7.

In

Ground Nine, Petitioner states, “Defendant received an illegal
sentence as consecutive sentences were imposed.” Id.

Petitioner

raised this issue, as reflected in Ground Six, in his direct
appeal.

Petitioner later raised the issue again, as reflected

in Ground Nine, in his PCR petition.

Though these Grounds raise

the same issue, and neither will afford Petitioner habeas
relief, the Court will address these Grounds separately as their
presentation here raises distinct issues as to each asserted
ground for relief.
a. Ground Six
20

The last court to consider the claim Petitioner raises in
Ground Six was the Appellate Division on Petitioner’s direct
appeal.

That court analyzed the claim as follows:

Defendant next contends that the judge erred by
imposing a consecutive sentence on count two. We
disagree.
The judge properly found that there were two crimes
involving separate victims and the evidence
established that the deaths of the victims occurred at
different times. Furthermore, Lisa's murder and the
setting of the fire that killed Kollin were separate
acts of violence.
In our view, the judge's findings reflect an
appropriate consideration of the factors enumerated in
State v. Yarbough, 100 N.J. 627, 630, 498 A.2d 1239
(1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193,
89 L.Ed.2d 308 (1986). We therefore conclude that the
judge did not abuse his discretion when he imposed a
consecutive sentence on count two.
Amodio, 390 N.J. Super. at 333, 915 A.2d at 580–81.

Here,

Petitioner has not alleged a violation of any federal or
constitutional right arising from the court’s imposition of
consecutive sentences.

Moreover, the Appellate Division

analyzed Petitioner’s claim only pursuant to New Jersey
sentencing law.

That court determined that Petitioner’s

sentence was in accord with New Jersey mandates.

This Court,

however, cannot reexamine state court determinations of state
law. Estelle, 502 U.S. at 68.

Petitioner therefore is not

entitled to federal habeas relief on this claim.
Ground Six will be denied.

21

Accordingly,

b. Ground Nine
In Ground Nine, Petitioner again challenges the state
court’s imposing consecutive sentences.

Petitioner raised this

issue before the state courts a second time in his PCR petition.
(See Resp.’s Ex. Ra15 at 37-39, ECF No. 14-17).

There, as he

does here in Ground Nine, Petitioner asserted that “Defendant
received an illegal sentence as consecutive sentences were
imposed.” Id. at 37.

The Court finds that Ground Nine is

procedurally defaulted.
A habeas petitioner exhausts his state court remedies by
presenting his federal constitutional claims at each level of
state court empowered to hear such claims, including direct
appeal and post-conviction proceedings. 28 U.S.C. § 2254(c);
Holloway v. Horn, 355 F.3d 707, 714 (3d Cir.2004) (citing
O'Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999)).

A claim

is not only unexhausted but is also procedurally defaulted if
state procedures prohibit the petitioner from later presenting
the unexhausted claim in state court. Id. (citing Jimenez v.
Walker, 458 F.3d 130, 149 (2nd Cir.2006).
A federal court considering a petition for habeas relief
may “not review a question of federal law decided by a state
court if the decision of that court rests on a state law ground
that is independent of the federal question and adequate to
support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729
22

(1991).

The prohibition applies whether the state law ground in

question is substantive or procedural. Id.

Procedural default

may be excused and a federal habeas court may address the claim
if the petitioner shows cause for the default and prejudice
caused by a violation of federal law. Martinez v. Ryan, 566 U.S.
1, 10 (2012).
“The existence of cause for procedural default must
ordinarily turn on whether the prisoner can show that some
objective factor external to the defense impeded counsel's
efforts to comply with the State's procedural rule.” Murray v.
Carrier, 477 U.S. 478, 488 (1986).

The prejudice required to

excuse procedural default is more than the possibility of
prejudice, but that the trial errors “worked to his actual and
substantial disadvantage, infecting the entire trial with error
of constitutional dimensions.” Albrecht v. Horn, 485 F.3d 103,
124, n. 7 (3d Cir.2007)(quoting Murray, 477 U.S. at 494)).

In

addition, procedural default may also be excused if a
“fundamental miscarriage of justice” will occur if the habeas
court does not address the merits of the claim. Coleman, 501
U.S. at 750.
When Petitioner brought this claim in his PCR court, the
PCR court determined that the claim was procedurally defaulted

23

under state law pursuant to N.J. Court Rule 3:22-5 5 because the
Appellate Division had already rejected the claim in
Petitioner’s direct appeal. (Respt.’s Ex. Rta25/25T20-24 to 225; ECF No. 14-53).

Petitioner challenged the PCR court’s

finding of procedural default and the Appellate Division
affirmed, finding Petitioner’s argument did not merit
discussion. State v. Amodio, No. A-4350-10T1, 2012 WL 5381769,
at *6 (N.J. Super. Ct. App. Div. Nov. 5, 2012).

Moreover,

Petitioner has not demonstrated cause and prejudice because the
issue this claim presents mirrors that contained in Ground Six,
which was ruled upon by the Appellate Division and herein
addressed by this Court.

Thus, this habeas claim is

procedurally defaulted because the state appellate court
reviewing the PCR petition dismissed the claim on a state
procedural ground.
D. Ground Ten
In Ground Ten, Petitioner argues that the admission of the
temporary restraining order precluded him from receiving a fair

5

The Rule provides, in relevant part:
A prior adjudication upon the merits of any ground for
relief is conclusive whether made in the proceedings
resulting in the conviction or in any post-conviction
proceeding brought pursuant to this rule or prior to
the adoption thereof, or in any appeal taken from such
proceedings.

N.J. Ct. R. 3:22-5.
24

trial because the trial court’s “limited instruction focused the
jury’s attention on [Petitioner’s] propensity to commit this
murder.” (Pet. at 8; ECF No. 4).

Petitioner does not assert

that the admission of the restraining order and the trial
court’s instruction violated a specific constitutional or
federal right, but states that he was denied a fair trial as a
result of these events.

Construing the Petition liberally, the

Court therefore construes this claim as raising a claim under
the Due Process Clause.
Petitioner raised this matter in his direct appeal.

The

Appellate Division analyzed the claim as follows:
We next consider defendant's contention that the trial
judge erred in instructing the jury with regard to the
temporary domestic violence restraining order.
The record shows that the judge discussed the
instructions with counsel at a charge conference.
Defense counsel agreed to the proposed charge, but
insisted that the restraining order be referred to as
a temporary order. The trial judge instructed the jury
as follows:
Now, ladies and gentlemen of the jury, during the
course of this trial, you have heard testimony
regarding a temporary restraining order obtained
by Lisa Pimental against the defendant, David
Amodio. Now, the existence of this temporary
restraining order may not be used by you as a
jury to infer that the defendant committed any
acts of violence. The temporary restraining order
is not proof of violent acts. It may, however, be
considered to assess or determine the defendant's
credibility as to the existence of motive to
commit the crimes and may be considered as a
basis for the contempt charge in Count Seven of
the indictment in this case.
25

Defendant now argues that the judge erred by failing
to focus the jury's attention on the specific purpose
for which the temporary restraining order may be used.
We consider this contention under the plain error
standard. R. 2:10–2.
When a defendant is charged with contempt of a
domestic-violence restraining order, and other
offenses arising from the same incident, the charges
should be tried sequentially. State v. Chenique–Puey,
145 N.J. 334, 343, 678 A.2d 694 (1996). The underlying
offense should be tried first and, in that proceeding,
the restraining order is not admissible unless the
defendant testifies, in which case, the order is
admissible to impeach defendant's testimony. Ibid.
“Following a verdict on the underlying offense, the
trial court should immediately proceed to try the
contempt charge before the same jury.” Ibid.
Here, the trial judge initially severed the contempt
charge from the other offenses charged in the
indictment. Defense counsel recognized that if
defendant testified, the restraining order could be
used for impeachment purposes. Defendant testified and
he was questioned about the order. Later, the parties
agreed to have the jury consider the contempt charge
with the other charges.
In our view, the judge's instruction to the jury on
the restraining order did not improperly focus the
jury on defendant's propensity or predisposition to
commit the underlying offense. Indeed, as we have
pointed out, the judge specifically informed the
jurors that the restraining order was not proof of any
violent acts. Moreover, the judge stated that the
order could not be used by the jurors to infer that
defendant committed any acts of violence. The judge
instructed the jury that the order could be considered
to assess defendant's credibility as to the existence
of any motive to commit the crimes.
. . . .
Defendant's motive was a material issue in dispute. He
testified that he did not kill Lisa and did not start
the fire that took Kollin's life. Clearly, the
26

credibility of these statements was at issue.
Furthermore, the temporary restraining order provided
evidence that defendant may have been motivated to
commit the crimes because Lisa had obtained the order,
which barred him from having any contact with her and
forced him to leave the house he had recently
purchased.
We therefore are convinced that the charge regarding
the restraining order properly instructed the jury on
the manner in which the order could be used by the
jury in its deliberations and fact-finding. The charge
was not erroneous, nor was it clearly capable of
leading to an unjust result. R. 2:10–2.
Amodio, 390 N.J. Super. at 329–31, 915 A.2d at 578–79.
Petitioner asserts that the trial court’s admission of the
restraining order and instruction to the jury concerning it
denied him a fair trial.

Thus, the Court will consider

Petitioner’s claim as one under the Due Process Clause of the
Fourteenth Amendment.
“[T]he Due Process Clause guarantees the fundamental
elements of fairness in a criminal trial.” Riggins v. Nevada,
504 U.S. 127, 149 (1992).

In the field of criminal law, “the

category of infractions that violate ‘fundamental fairness’ [is
defined] very narrowly based on the recognition that, beyond the
specific guarantees enumerated in the Bill of Rights, the Due
Process Clause has limited operation.” Medina v. California, 505
U.S. 437, 443 (1992).

In order to satisfy due process,

Petitioner’s trial must have been fair, but it need not have
been perfect. United States v. Hasting, 461 U.S. 499, 508-09

27

(1983) (“[T]here can be no such thing as an error-free, perfect
trial, and [] the Constitution does not guarantee such a
trial.”).

“Except in cases involving a violation of a specific

constitutional provision such as the Confrontation Clause, this
Court may not reverse a state trial judge's action in the
admission of evidence unless the evidentiary ruling so infuses
the trial with unfairness as to deny due process of law.”
Riggins, 504 U.S. at 147.

As to Petitioner’s claim regarding

the trial court’s jury instructions, such errors are harmless
unless they “had substantial and injurious effect or influence
in determining the jury’s verdict.”

Brecht v. Abrahamson, 507

U.S. 619, 637 (1993).
The Court concludes that the state courts’ resolution of
these issues did not deny Petitioner of his right to due process
of law.

As the Appellate Division stated, Petitioner testified

at trial and knew that were he to do so, the restraining order
could be used for impeachment purposes.

During Petitioner’s

testimony, he testified as to his version of the events leading
to the imposition of the restraining order and denied committing
the crimes for which he was tried.

Because Petitioner’s motive

and credibility were at issue, the court’s admission of the
restraining order for those limited purposes was not
fundamentally unfair.

Similarly, Petitioner has not shown that

the trial court’s limiting instruction had a substantial and
28

injurious influence on the jury’s decision.

The trial court

specifically instructed the jury that the restraining order
could not be used to infer that Petitioner committed any acts of
violence and that consideration of the order was limited to
credibility regarding motive and the contempt charge, which was
based on violation of the order.

The Appellate Division’s

resolution of these state-law evidentiary questions therefore
does not give rise to a cognizable federal due process claim.
Moreover, that court’s decision was not contrary to federal law.
Accordingly, Ground Ten will be denied.
E. Ineffective Assistance of Counsel Claims: Grounds Four,
Eight, Eleven, and Twelve
Petitioner’s Grounds Four, Eight, Eleven, and Twelve are
based on his assertion that he was denied his Sixth Amendment
right to effective assistance of counsel.
1. Standard of Review
The Counsel Clause of the Sixth Amendment provides that a
criminal defendant “shall enjoy the right ... to have the
Assistance of Counsel for his defence.” U.S. Const. amend. VI.
The right to counsel is “the right to effective assistance of
counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.
Ct. 1441, 25 L.Ed.2d 763 (1970)(emphasis added)(citations

29

omitted), cited in Ross v. Varano, 712 F.3d 784, 797 (3d Cir.
2013).
To prevail on a claim of ineffective assistance of counsel,
a habeas petitioner must show both that his counsel's
performance fell below an objective standard of reasonable
professional assistance and that there is a reasonable
probability that, but for counsel's unprofessional errors, the
outcome would have been different. Strickland v. Washington, 466
U.S. 668, 687, 694, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984).
With respect to the “performance” prong, there is “a strong
presumption that counsel's conduct falls within the wide range
of reasonable professional assistance.” Strickland, 466 U.S. at
689.

With respect to the “prejudice” prong, a “reasonable

probability” of prejudice is “a probability sufficient to
undermine confidence in the outcome.” Strickland at 694.

Thus,

counsel's errors must have been “so serious as to deprive the
defendant of ... a trial whose result is reliable.” Id. at 687.
The performance and prejudice prongs of Strickland may be
addressed in either order, and “[i]f it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient
prejudice ... that course should be followed.” Id. at 697.
There is “a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689.

As a general matter, strategic
30

choices made by counsel after a thorough investigation of the
facts and law are “virtually unchallengeable,” though strategic
choices “made after less than complete investigation are
reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” Id. at 690–
91; see also Marshall v. Cathel, 428 F.3d 452, 462–63 (3d Cir.
2005).

If counsel has been deficient in any way, however, the

habeas court must determine whether the cumulative effect of
counsel's errors prejudiced the defendant within the meaning of
Strickland.
2. Ground Four
As his fourth ground for habeas relief, Petitioner asserts
that he 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. (Pet. at 7, ECF No.
4).

In support of this claim, Petitioner states:
[O]n April 11, 2004, at approximately 1:15 p. m.,
which was the fourth day of deliberations. The jury
indicated it was deadlocked, [J]udge Brown received a
note which stated it would be unfair to the defendant
if we the jury continued to deliberate. The judge
charged the jury and ordered them back to
deliberations. But due to the late hour the court gave
them the opinion [sic] for the next day. The jury
agreed and the foreperson said 'tomorrow would be a
better day" after that was said the court failed to
charge the jury after that statement was made.

(Id.).
31

Petitioner raised this claim in his PCR proceedings.

The

Appellate Division concluded that this claim did not present
sufficient merit to warrant discussion and summarily affirmed
the PCR court’s denial of the claim. State v. Amodio, No. A4350-10T1, 2012 WL 5381769, at *6 (N.J. Super. Ct. App. Div.
Nov. 5, 2012).

Thus, the last state court to analyze this claim

was the PCR Court, which discussed the claim as follows:
Jury Instructions. Petitioner also claims that his counsel
was ineffective for failing to request that this Court
instruct the jury that they had no obligation to reach a
unanimous verdict.
Jury deliberations began on Wednesday, April 7, 2004,
continued to the following day, and resumed for a third day
on April 13, 2004.
At approximately l:15 p.m., the jury informed this court
that they were at an impasse on deliberations on five of
the seven counts against petitioner. In response, this
Court read the model jury charge for further jury
deliberations. The jury then continued deliberations at
2:25, and at 5:52 p.m., this Court inquired whether to
continue or to resume deliberations the following day.
The foreperson indicated that “tomorrow would be a better
day” and the jurors were dismissed for that day.
On the fourth day of deliberations, the jury reached a
verdict acquitting petitioner of the death eligible
charges.
The model charge allows for additional charging after a
"reasonable time has gone by subsequent to the delivery of
your charge.” The model jury charge referred to New Jersey
Statutes Annotated 2C:1-9(d), subsection 2, which approves
termination of deliberations where "the trial Court finds
that the termination is necessary because of the failure of
the jury to agree upon a verdict after a reasonable time
for deliberation has been allowed."

32

In the present case, this Court gave the model jury charge
in the middle of the third day of deliberations and the
jury delivered their verdict at the end of the fourth day
of deliberations.
Now, although the statute does not give a specific time
period, it was reasonable for the jury to -- the jurors to
deliberate for another day after the model charge was read.
Further, the record does not indicate that the jurors were
unable to reach a verdict after the model jury charge for
the further (sic) deliberations was read. In fact, there
were no more questions or concerns raised by any juror
after the model charge was read.
Additionally, petitioner has not provided this Court with
any evidence that defense counsel was required to request
the Court to advise jurors that there is no obligation to
reach a verdict. There is no model jury charge that covers
such a request.
Similarly, petitioner has not provided any affidavits or
certifications indicating that such a model charge would
say or when during deliberations such a charge should be
given. As a result, petitioner has failed to make a prima
facie case of prejudice with regard to jury deliberations
and, therefore, failed to make a prima facie case of
substandard representation.
(Respt.’s Ex. Rta25/25T32-7 to 34-13; ECF No. 14-53).

The PCR

court further concluded, with respect to all of Petitioner’s
ineffective assistance claims, that Petitioner “failed to prove
either gross error or prejudice” as required by Strickland.
(Id. at 35-17 to 18).

Specifically, the PCR court concluded

that Petitioner’s counsel “convinced the jury to acquit
petitioner of both [death-eligible] murder charges and one of
the felony murder charges” and that the State’s evidence was
“overwhelming.”

(Id. at 36-4 to 21).

33

This Court agrees with the PCR court that Petitioner has
failed to make the required showing under Strickland.
Specifically, Petitioner has failed to demonstrate that his
counsel’s performance was objectively unreasonable or shown a
reasonable probability that the outcome of his trial would have
been different but for his counsel’s alleged error.

At trial,

the court instructed the jury as to further deliberations as
follows:
Ladies and gentlemen, it is your duty as jurors to
consult with one another and to deliberate with a view
to reaching an agreement if you can do so without
violence to individual judgment. Each of you must
decide the case for yourself, but do so only after an
impartial consideration of the evidence with your
fellow jurors. In the course of your deliberations, do
not hesitate to re-examine your own views and change
your opinion if convinced it is erroneous, but do not
surrender your honest conviction as to the weight or
effect of evidence solely because of the opinion of
your fellow jurors or for the mere purpose of
returning a verdict. You are not partisans. You are
judges, judges of the facts. Ladies and gentlemen, you
will retire to the Jury Assembly Room for further
deliberations. Thank you. [Rta21/21T5-24 to 6-17].
(Resp.’s Ex. Rta21/21T5-24 to 6-17, ECF No. 14-49 (emphasis
added)).

This instruction admonished the jurors to adhere to

their individual judgment and not to “surrender . . . honest
conviction[s] . . . for the mere purpose of returning a
verdict.”

Thus, contrary to Petitioner’s assertion, the

instruction did not give an impression that the jury had no
choice but to return a unanimous verdict.

34

Moreover, as the PCR

court observed, Petitioner failed to identify a “proper”
instruction informing the jury that it did not have an
obligation to reach a verdict or to demonstrate that defense
counsel was required to request such an instruction.

Petitioner

therefore has not shown that counsel’s representation was
deficient.
Petitioner also has not established prejudice as required
under Strickland.

As the PCR court stated, the record does not

indicate that the jury remained unable to reach a verdict during
its continued deliberations.

In addition, after continuing to

deliberate, the jury acquitted Petitioner of the more serious
death-eligible offenses.

Given the nature of the trial court’s

charge to continue deliberation, the evidence presented at
trial, the jury’s ultimate verdict, and no indication that the
jury’s verdict was anything but the result of its deliberations
and determinations of the facts, Petitioner has failed to
satisfy the prejudice requirement of Strickland.

He therefore

is not entitled to federal habeas relief on this claim.
Accordingly, Ground Four will be denied.
3. Ground Eight
In Ground Eight, Petitioner asserts that he was denied
effective assistance of trial “and/or” appellate counsel because
counsel failed to argue that the state's opening and closing
arguments were improper.

In support of this claim, Petitioner
35

states, “the prosecutor used sarcasm and called the defendant a
[‘]dumb criminal’ and said defendant fire expert Mr. Decker
failed to use common sense and logic in reaching his opinion,
and counsel failed to argued [sic] a mistrial on prosecutor's
archaistic and improper remarks.”

(Pet. at 8; ECF No. 4).

Petitioner raised this issue during his PCR proceedings.
The Appellate Division concluded that this claim did not present
sufficient merit to warrant discussion and summarily affirmed
the PCR court’s denial of the claim. Amodio, No. A-4350-10T1,
2012 WL 5381769, at *6.

Therefore, the last state court to

consider this claim was the PCR court, which analyzed the claim
as follows:
Petitioner asserts that it was improper to describe
the two murders as “horrible,” used sarcasm in
summation towards the defense expert, and referred to
the petitioner as a “dumb” criminal.
Under State v. Chew, 150 New Jersey 30, 84 (1997),
prosecutorial misconduct is not a ground for reversal
of a criminal conviction unless the conduct was so
egregious as to deprive the defendant of a fair trial.
The Court found a mistrial was warranted because the
Prosecutor’s excessive remarks were plainly designed
to impassion a jury. . . .
( Reading )
"...to justify reversal, the Prosecutor’s conduct must
have been 'c1ear1y and un-mistakenly improper and must
have substantially prejudiced the defendant's
fundamental right to have a . . . jury fairly evaluate
the merits of his defense'” . . . .

36

Generally, if no objection was made to the improper
remarks, the remark will not be deemed prejudicial.
Id. at 576.
In this context, it cannot be said that the
Prosecutor’s remarks were so egregious as to deprive
petitioner of a fair trial. This can -- strike that -this case can be differentiated from State v. Chew
because the Prosecutor's remarks were not excessive
nor designed to impassion a jury.
The homicides were accurately described as "horrible",
since petitioner bludgeoned Lisa Pimentel with a
hammer to death before setting the fire that resulted
in the burning -- in burning her body and burning twoyear-old Colin to death.
These comments did not deprive petitioner of a fair
trial because he was acquitted on the purposeful and
knowing, murder counts.
Therefore, despite the comments, the jury was not
moved by the "horrible” nature of the crime.
In a similar manner, calling petitioner a “dumb”
criminal or using sarcasm toward an expert could -could not have impacted the jury.
These comments were not excessive, "unmistakably
improper,” nor designed to impassion a jury. There's
no indication that calling a criminal “dumb” is unfair
or prejudicial. Similarly, challenging an expert's
conclusions is common and widely acceptable; using
sarcasm to challenge an opinion is not improper.
Further, no objection was made to any of the
Prosecutor’s remarks, nor did this Court perceive any
misconduct during the State's opening and closing
remarks.
Therefore, petitioner has failed to make a prima facie
case that any of the Prosecutor’s comments were either
unfair or prejudicial.
(Respt.’s Ex. Rta25/25T27-24 to 30-6; ECF No. 14-53).

The PCR

court similarly found that Petitioner’s appellate counsel was
37

not ineffective for raising this issue on appeal because the
prosecutor’s statements were not improper. (Id. at 25T39-6 to
17).
In addressing the issue of prosecutorial misconduct on
habeas review, the Third Circuit has stated:
The Supreme Court has held that federal habeas relief
may be granted when the “prosecutorial misconduct may
'so infec[t] the trial with unfairness as to make the
resulting conviction a denial of due process.”' Greer
v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 97
L.Ed.2d 618 (1987) (quoting Donnelly v. DeChristoforo,
416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431
(1974)). The Court further opined that for due process
to have been offended, “the prosecutorial misconduct
must be 'of sufficient significance to result in the
denial of the defendant's right to a fair trial.”' Id.
(citing United States v. Bagley, 473 U.S. 667, 676,
105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (quoting United
States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 49
L.Ed.2d 342 (1976))). See also Ramseur v. Beyer, 983
F.2d 1215, 1239 (3d Cir. 1992) (our review of a
prosecutor's conduct in a state trial in a federal
habeas proceeding is limited to determining whether
the prosecutor's conduct “'so infect[ed] the trial
with unfairness as to make the resulting conviction a
denial of due process.”' (quoting Greer, 483 U.S. at
765, 107 S.Ct. 3102)). This determination will, at
times, require us to draw a fine line-distinguishing
between ordinary trial error on one hand, and “'that
sort of egregious misconduct which amounts to a denial
of constitutional due process”' on the other hand.
Ramseur, 983 F.2d at 1239 (quoting United States ex
rel. Perry v. Mulligan, 544 F.2d 674, 678 (3d Cir.
1976)).
Werts v. Vaughn, 228 F.3d 178, 197-98 (3d Cir. 2000).
In evaluating whether the remarks of the prosecutor rise to
the level of a constitutional violation, “Supreme Court
precedent requires the reviewing court to weigh the prosecutor's
38

conduct, the effect of the curative instructions and the
strength of the evidence.” Moore v. Morton, 255 F.3d 95, 107 (3d
Cir. 2001) (citing Darden v. Wainwright, 477 U.S. 168, 182, 106
S. Ct. 2464, 2472, 91 L.Ed. 2d 144 (1986)); see also Werts, 228
F.3d at 198 (citations omitted) (“The remarks must be
sufficiently prejudicial in the context of the entire trial to
violate a petitioner's due process rights.”); Ramseur, 983 F.2d
at 1239 (citing Greer, 483 U.S. at 766, 107 S.Ct. 3102).
Here, the PCR court concluded that the prosecutor’s
comments were not egregious and that they did not deny
Petitioner his right to a fair trial.

Accordingly, that court

concluded that Petitioner failed to establish that his trial and
appellate counsel were ineffective for failing to challenge the
statements; in other words, the PCR court concluded that
Petitioner did not satisfy Strickland’s prejudice prong.

This

Court agrees and finds that Petitioner’s claim that his counsel
was ineffective on these points lacks merit.

The Court, as it

must, considers the prosecutor’s comments within the context of
the entire trial.
a. The “horrible” nature of the crimes
Petitioner claims that his counsel should have challenged
the prosecutor’s description of the crimes as “horrible.”
opening remarks, the prosecutor stated in part:

39

In

So, ladies and gentlemen, when I speak with you again
after all of the evidence is presented, I’m going to
ask you to apply your common sense to this evidence
and render a verdict consistent with the evidence and
your common sense, and I submit to you that when you
hear this evidence, the only conclusion you can draw
is that he is guilty of these two horrible murders and
all the related charges.
(Respt.’s Ex. Rta10/10T38-9 to 16; ECF No. 14-38).

Given the

entire record of the trial and the evidence presented regarding
the nature of the crime, this Court agrees with the PCR court
that this comment was not egregious and did not render
Petitioner’s trial unfair.

Moreover, Petitioner has not

demonstrated a reasonable probability that the outcome of his
trial would have been different had his counsel challenged this
statement.

In fact, as the PCR court observed, Petitioner was

acquitted of the more serious charges against him, which
suggests that the prosecutor’s description of the crimes as
“horrible” did not produce an unfair result.

Accordingly,

Petitioner has failed to show prejudice as required by
Strickland and he is therefore not entitled to habeas relief on
this claim.
b. Prosecutor’s “sarcastic” remarks
Petitioner argues that the prosecutor’s use of sarcasm when
addressing the testimony of the defense expert constituted
misconduct and that counsel should have challenged the
prosecutor’s actions.

In summation, the prosecutor stated:

40

Do you really believe she had an asthma attack, fell
and hit her head, and ended up next to a hammer,
ladies and gentlemen? Of course not.
Gee, Dr. Adams, when she fell, did she also splatter
her blood and gasoline all over the defendant too?
Geez, well, I don’t know.
(Respt.’s Ex. Rta18/18T90-22 to 91-2; ECF No. 14-46).

Again,

this Court agrees with the PCR court’s conclusion that these
comments were not so egregious as to infect the trial with
unfairness and deprive Petitioner of a fair trial.

A prosecutor

is entitled to considerable latitude to argue the evidence and
reasonable inferences that can be drawn from that evidence. See
United States v. Werme, 939 F.2d 108, 117 (3d Cir. 1991).
Petitioner has not identified – and this Court has not uncovered
– controlling authority stating that a prosecutor’s use of
sarcasm in a summation is constitutionally improper.

As such,

Petitioner has not established that counsels’ failure to
challenge this statement prejudiced him at trial or on appeal
because he has not shown that such a challenge would have been
successful.

As a result, Petitioner has failed to show a

reasonable probability that the outcome of the proceedings would
have been different if counsel had raised this issue.
Accordingly, Petitioner is not entitled to habeas relief on this
claim.
c. “Dumb Criminal”

41

Petitioner also asserts that the prosecutor’s reference to
him as a “dumb” criminal constituted misconduct which should
have been challenged by his counsel.

During summation, the

prosecutor stated in part:
We heard argument [from defense counsel] how the
defendant – how stupid could he be? Well, as I said,
this is not a planned murder. This is someone who’s
inflicted trauma and now is trying all kinds of ways
to figure out what they’re going to do about it. Are
they going to do stupid things? Yes, of course, at
least stupid in hindsight, leaving the hammer there.
The defendant didn’t – unlike Mr. Reilly’s
characterization, the defendant didn’t have all night
to consider how to do this. I’m not alleging that he’s
that evil, ladies and gentlemen. I’m not alleging that
he sat there or stood there as he’s washing the cars,
boy, how am I going to kill her and set this house on
fire and get away with it? That’s not what he was
doing, so that’s why we can expect stupid things.
He was dumb enough to burn himself while setting the
fire. Doesn’t that tell you that he’s dumb enough to
leave a hammer next to the body?
Ladies and gentlemen, you shouldn’t acquit a defendant
just because he’s a lousy criminal. I mean, we’d have
to acquit everybody.
. . . .
As I said, you can’t find the defendant not guilty
because he’s a dumb criminal and he set himself on
fire.
(Respt.’s Ex. Rta18/18T85-25 to 86-20; 18T105-15 to 17; ECF No.
14-46).
Viewed in context, these comments were not so egregious as
to infect the trial with unfairness and violate Petitioner’s

42

rights to due process.

The prosecutor’s statements in this

respect were in response to defense counsel’s summation, in
which counsel challenged the plausibility of the State’s case by
suggesting that the State wanted the jury to believe that
Petitioner was “a knuckle-head who poured a quart of gas on the
floor” away from the bodies and lit it with a match in close
proximity to his own face.

(Rta18/18T32-10 to 16; ECF No. 14-

46). See e.g., Darden, 477 U.S. at 182 (noting that the “invited
response” nature of the prosecutor’s comment is used to
determine the effect on the trial as a whole).

Weighed against

the evidence and the entirety of the proceedings, the
prosecutor’s comments were not constitutionally improper.

As

such, Petitioner’s counsel was not ineffective for failing to
challenge these remarks because Petitioner cannot demonstrate a
reasonable probability that if they had, the outcome of his
trial would have been different.

Petitioner therefore is not

entitled to federal habeas relief on this claim.

Accordingly,

Ground Eight will be denied.
4. Ground Eleven (A)
In Ground Eleven (A), Petitioner asserts that he received
ineffective assistance because trial counsel “opened the door to
other crimes, wrong or [sic] acts evidence, and appellate
counsel failed to raise this on direct appeal.” (Pet. at 8; ECF

43

No. 4).

Petitioner raised this issue in the course of his PCR

proceedings.
The last state court to discuss this claim was the
Appellate Division during Petitioner’s PCR appeal.

That court

analyzed the claim as follows:
Defendant argues he was denied the effective
assistance of trial and appellate counsel. We do not
agree.
To establish a prima facie case for ineffective
assistance of counsel, a defendant must show a
reasonable likelihood of success under the two-part
test articulated by the Supreme Court in Strickland v.
Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064,
80 L. Ed.2d 674, 692–93 (1984), and adopted by our
Supreme Court in State v. Fritz, 105 N.J. 42, 58
(1987). The Strickland test requires the defendant to
show that (1) the representation by his attorney fell
below an objective standard of reasonableness; and (2)
but for counsel's errors, the results of the
proceeding would have been different. Strickland,
supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L. Ed.2d
at 698.
“Judicial scrutiny of counsel's performance must be
highly deferential.” Id. at 689, 104 S.Ct. at 2065, 80
L. Ed.2d at 694. Consequently, there is a “strong
presumption that counsel's conduct falls within the
wide range of reasonable professional assistance”
because of the inherent difficulties associated in
evaluating counsel's performance. Ibid. A defendant
must, therefore, “overcome the presumption that, under
the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id. at 689, 104
S.Ct. at 2065, 80 L. Ed.2d at 694–95 (quoting Michel
v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100
L. Ed. 83, 93 (1955)).
Defendant claims that his attorney erroneously had him
testify on direct examination about the October 11,
2000 incident that led to the issuance of the
temporary domestic violence restraining order. He
44

contends that this testimony opened the door to
“devastating” cross-examination and rebuttal evidence
that Lisa's arm was bruised during the incident.
. . . .
Here, defendant moved to sever the contempt charge
from the other counts for purposes of trial. The State
did not oppose the motion. When the motion was argued,
defense counsel noted on the record that he had
discussed the Chenique–Puey decision with defendant
and had explained that, if defendant elected to
testify at trial, he could be cross-examined about the
restraining order and the facts that led to its
issuance. The court granted the motion.
At trial, defendant's counsel informed the court that
defendant intended to testify. The court noted that,
if defendant testified, the restraining order would be
admissible for impeachment purposes. Defendant then
testified about the October 11, 2000 incident, which
led to the issuance of the restraining order. The
parties thereafter agreed “to have the jury consider
the contempt charge with the other charges.” Amodio,
supra, 390 N.J.Super. at 330.
The PCR court determined that defendant's trial
attorney was not deficient in having defendant testify
concerning the restraining order and the surrounding
events. The court noted that, since defendant chose to
testify, the restraining order and the related events
were admissible for impeachment purposes. The court
found that counsel made a strategic decision to have
defendant explain these matters in an effort to
minimize this evidence.
The PCR court additionally found that trial counsel's
representation of defendant was “the opposite of
substandard performance.” The court noted that counsel
had convinced the jury to find defendant not guilty of
both murder charges and one felony murder charge. The
court also noted the difficult task that counsel
faced, given the strength of the evidence the State
had presented.
We are satisfied that the PCR court correctly
determined that defendant was not denied the effective
45

assistance of trial counsel. We are also satisfied
that appellate counsel was not deficient for failing
to raise this issue on appeal.
Amodio, No. A-4350-10T1, 2012 WL 5381769, at *4–5.
This Court agrees with the Appellate Division’s conclusion
that Petitioner was not denied the effective assistance of
counsel on this issue.

Counsel’s decision to have Petitioner

testify to these matters in order to get ahead of them and
attempt to explain them was a reasoned strategic decision.
Petitioner has not overcome the presumption that counsel’s
strategy was sound.

As discussed above with respect to Ground

Ten, Petitioner knew that if he testified, the events
surrounding the restraining order could be used to impeach his
credibility.

Moreover, the trial court provided proper limiting

instructions as to the proper use of this evidence.

In sum,

Petitioner has not demonstrated a reasonable probability that
but for counsel’s alleged error, the outcome of his trial would
have been different.

Accordingly, Petitioner is not entitled to

habeas relief on this claim.

Ground Eleven (A) will therefore

be denied.
5. Grounds Eleven (B) and Twelve
In Grounds Eleven (B) and Twelve, Petitioner asserts that
his appellate counsel was ineffective for failing to raise the
issue of jury intrusion and interference.

In support of this

claim, Petitioner states, “While the jury was waiting to be
46

brought in a gentleman walked past juror nine, Hit her Badge and
said ‘GUILTY’ all the jurors were present, three of them felt
threatened.”

(Pet. at 8-9; ECF No. 4).

Petitioner raised this issue during his PCR proceedings.
The last state court to address this claim was the Appellate
Division, which analyzed the claim as follows:
Defendant also argues that his appellate counsel erred
by failing to raise an issue of “jury intrusion by
outside influence” in his appeal. Again, we disagree.
The record indicates before the trial continued on the
morning of April 2, 2004, the judge asked the jurors
if they had been exposed to media coverage or
approached by anyone regarding the case. After one
juror indicated she had been approached regarding the
case, the judge questioned all of the jurors, in the
presence of counsel.
Juror number nine stated that while she was waiting to
enter the courtroom that morning, “a gentleman walked
past, hit my badge, and said, ‘Guilty.’” After further
questioning, the judge asked the juror if she felt
“threatened in any way[,]” and the juror responded in
the negative. The juror also stated that the incident
would not interfere with her ability to be fair and
impartial.
The judge [sic] court questioned the other jurors, who
all testified that they could be fair and impartial.
Defendant moved for a mistrial. The judge denied the
motion, finding that the jury had not been tainted and
could continue with the case.
Where, as here, there is a claim of jury intrusion by
irregular influences, the trial judge must determine
if the jury has been tainted by questioning the jurors
in the presence of counsel. State v. R.D., 169 N.J.
551, 558 (2001). The decision to grant a mistrial
rests in the sound discretion of the trial court. Id.
The trial court's decision will not be reversed unless
shown to be an abuse of discretion. Id. at 560.
47

The PCR court correctly found that there was no
evidence that the trial judge abused his discretion by
denying defendant's motion for a mistrial. The judge
had questioned the jurors in the manner required by
R.D. If appellate counsel had raised the issue in the
appeal, the result of that proceeding would have been
the same. We are therefore convinced that the PCR
court correctly determined that defendant was not
denied the effective assistance of appellate counsel.
Amodio, No. A-4350-10T1, 2012 WL 5381769, at *5–6.
The Appellate Division concluded that Petitioner was not
prejudiced by appellate counsel’s failure to raise this issue
during Petitioner’s direct appeal because the result of that
proceeding would have been the same.

This Court agrees.

The

trial court questioned the jurors after the incident in question
and concluded that the jury had not been tainted.

Denying

Petitioner’s motion for a mistrial therefore did not, in and of
itself, constitute a denial of due process. See Smith v.
Phillips, 455 U.S. 209, 217 (1982) (“due process does not
require a new trial every time a juror has been placed in a
potentially compromising situation . . . it is virtually
impossible to shield jurors from every contact or influence that
might theoretically affect their vote”).
Given the trial court’s investigation into this incident,
as well as the Appellate Division’s analysis of the claim,
Petitioner has not shown that had appellate counsel raised the
issue of intrusion, such a challenge would have been successful

48

and would have altered the outcome of his appeal.

Accordingly,

Petitioner has not demonstrated the prejudice required by
Strickland and is not entitled to federal habeas relief on these
claims.

Therefore, Grounds Eleven (B) and Twelve will be

denied.
IV.

CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice
or judge issues a certificate of appealability, an appeal may
not be taken from a final order in a proceeding under 28 U.S.C.
§ 2254.

A certificate of appealability may issue “only if the

applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).

“A petitioner

satisfies this standard by demonstrating that jurists of reason
could disagree with the district court's resolution of his
constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.” Miller–El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct.
1029, 154 L.Ed.2d 931 (2003) (citation omitted), cited in Eley
v. Erickson, 712 F.3d 837, 845 (3d Cir. 2013).
Here, jurists of reason would not disagree with this
Court's resolution of Petitioner's claims.
appealability will issue.

49

No certificate of

V.

CONCLUSION

For the reasons set forth above, the Petition for a Writ of
Habeas Corpus under Title 28 U.S.C. § 2254 will be denied.

An

appropriate Order follows.

s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge
Dated: December 4, 2017
At Camden, New Jersey

50