DOCAJ v. D'ILIO et al

Filing 22

OPINION. Signed by Judge Claire C. Cecchi on 10/27/17. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JERRY DOCAJ,
Civil Action No. 13-6120 (CCC)
Petitioner,
v.

OPINION

STEPHEN D’ILIO, et at.,
Respondents.

CECCHI, District Judge:

This matter comes before the Court upon the Petition for a Writ of Habeas Corpus under
28 U.S.C.

§

2254 (Pet., ECF No. 1) filed by Petitioner Jerry Docaj (“Petitioner”), an inmate

confined in state prison in New Jersey. Respondents filed an Answer and brief in opposition to
habeas relief. (Answer, ECF No. 10.) Petitioner filed a reply. (Petitioner Jerry Docaj’s
Reply/Traverse Brief in Support of His 28 U.S.C.
I.

§ 2254 Petition (“Reply”) ECF No.

18.)

PROCEDURAL HISTORY

In March 2005, Petitioner’s first murder trial ended in a hung jury in Bergen County
Superior Court. (Pet., ECF No. 1,

¶ 2.) His second trial, ending on November 3, 2005, resulted in

conviction on three counts: (1) murder, N.J.S.A. 2C:11-3a(1)(2); (2) possession of a weapon for
unlawful purpose, NJ.S.A. 2C:39-4a; (3) unlawful possession of a weapon, handgun, N.J.S.A.
2C:39-5b. (Id.,

¶J 2-3.)

On May 27, 2009, the Appellate Division affirmed the convictions but

remanded for resentencing. (RI.,

¶ 9);

State v. Docaj, 407 N.J. Super. 352 (N.J. Super. Ct. App.

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Div. 2009),’ cert. denied, 200 N.J. 370 (2009). (Id.) Petitioner’s sentence, after several remands
for resentencing on appeal, was life imprisonment with 63 years and nine months served without
parole eligibility. (ECF No. 1,

¶ 3.)

Petitioner filed a petition for post-conviction relief (“PCR”). (Pet.,
denied the petition on August 30, 2010.

()

¶

11.) The PCR Court

Petitioner appealed, and the Appellate Division

affirmed. (Id.); State v. Docaj, 2012 WL 2529301 (N.J. Super. Ct. App. Div. July 3, 2012). The
New Jersey Supreme Court denied the petition for certification on January 16, 2013. (Pet., ¶11.)
Petitioner filed his habeas petition in this Court on October 15, 2013. He raised eight
grounds for relief, discussed below.
II.

BACKGROUND

The factual background in this matter was summarized by the New Jersey Superior Court,
Appellate Division upon Petitioner’s direct appeal. State v. Docai, 407 N.J. Super. 352 (N.J. Super.
Ct. App. Div. 2009).2 Petitioner, an Albanian national, and Kathy Docaj, a Yugoslavian who lived
in the United States since age nine, were married in an arranged marriage in 1983. They had three
children, and lived in Lodi, New Jersey. In February 2003, the time of Kathy’s death, their son
Christopher was eighteen, their daughter Christina was fifteen, and their youngest daughter was
nine. In mid-December 2002, Kathy was involved with another man, Robert Narciso, and she told
Petitioner she no longer loved him, and asked him to move out. He moved to an apartment in Lodi
in January 2003.

1

Only a portion of the opinion on direct appeal was published. A complete copy of the
Appellate Division’s decision on direct appeal is attached as Exhibit 5 to the Answer.
2

“In a proceeding instituted by an application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court, a determination of a factual issue made by a
State court shall be presumed to be correct. The applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
2

Petitioner had purchased a .38 caliber handgun ten years earlier, which he kept under his
bed. He took the handgun with him when he moved out. He began to suspect that Kathy was
cheating on him. On February 7, 2003, Kathy called Petitioner and told him she was meeting with
a lawyer to prepare papers to file for divorce.
Petitioner’s diary showed that he begged Kathy not to divorce him. Petitioner and Kathy
were alternating weekends with the children, and Petitioner had the children on February 8 and 9,
2003. Kathy said she was spending the weekend with friends in Atlantic City, but she spent the
weekend with Narciso. Petitioner wrote in his diary that he could not understand how someone
who loved her husband for nineteen years could go to Atlantic City to celebrate.
Petitioner’s diary also showed he was upset that Kathy did not give him anything for his
birthday on February 12. He wrote, “I will remember this because one day by the power of God it
will come that I will remember that day.” Her birthday was two days later, and he gave her a gift.
Around this time, she told him she had “another man lined up.” Petitioner noticed Kathy wearing
jewelry he did not know she owned.
Petitioner’s son Christopher, noticing that his mother was spending a lot of time on the
telephone, used the “Star 69” feature on the phone to find out who his mother was calling, and he
gave the number to his father. On February 17, 2003, Narciso received a call from a man who had
an accent. When Narciso asked for the caller’s phone number, the caller hung up. A paper with
Narciso’s phone number on it was found in Petitioner’s possession after police arrested him.
Kathy spent the night with Narciso on February 21, 2003. Petitioner spent that night with
their children in their marital home. He went to his apartment early the next morning. When he
went to work, he brought a book bag containing the .38 caliber gun. He called Kathy that day and

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he asked how her night out at the club had been. She told him she was out until 3:00 or 4:00 a.m.
He said he would see her later because he wanted to talk to her, to which she replied, “whatever.”
Petitioner lefi work at 6:00 p.m., bringing the book bag containing the handgun back to his
apartment. In his apartment, he put the gun in the waistband of his trousers, underneath a vest, and
went to their marital home. Kathy, their three children, and two friends of their children were in
the lower level of the home. Petitioner and Kathy went upstairs to the kitchen, where they sat
drinking coffee and smoking cigarettes. When Christopher came to the kitchen to use the phone,
Petitioner asked Kathy to go to the bedroom so they could talk. They went to the bedroom. The
door was closed and locked.
Within a minute, Christopher heard his parents screaming and cursing, and noises of
pushing and shoving. His mother screamed and he heard a single boom. Christopher began
screaming, “open the door.” Petitioner opened the door, white-faced, and immediately said, “I’m
sorry, I’m sorry.” Petitioner tried to block Christopher from seeing his mother, but he saw her lying
bloody on the floor.
Christina came upstairs and saw Christopher and Petitioner arguing and struggling.
Petitioner told Christina, “she cheated on me for two years” and “she’s gone.” Petitioner continued
to block them from entering the room. Christina dialed 9-1-1, and said she thought her mother was
dead. Petitioner could be heard on the 9-1-1 recording yelling, “she was cheating on me,” “she was
f-ing cheating on me,” and “she was cheating on me for one year.” Christopher also called 9-1-1
and requested help.
Two police officers from Lodi Police Department arrived and found Kathy lying in a pool
of blood on the bedroom floor, and a revolver resting on the lower end of the bed. Christopher was
angry and attempting to walk out of the house. Petitioner was in a daze, walking in circles. Not

4

knowing what had happened, police handcuffed Christopher and Petitioner. Petitioner was advised
he was not under arrest, and he was not given Miranda warnings.
Investigation showed Kathy died from a single gunshot wound to the back of the head, and
she was positioned low in relation to the shooter when she was shot. Petitioner gave a statement
to police about what happened in the bedroom. Petitioner denied he had gone to the house to kill
his wife. He said he begged her to stay with him, and told her he would forgive her “to this point,”
but she had looked angry and like she did not want to hear him. According to Petitioner, Kathy
had said the only thing he was getting was walking papers, and hit him once in the face.
When Kathy hit him, Petitioner said “things went dark,” and he pushed Kathy down but
also tried to catch her when it looked like she would lit her face on the floor. Petitioner admitted
he had the gun in his hand when he tried to catch her, but he did not remember pulling the gun
from his waistband and pulling the trigger, nor did he remember what he did with the gun after
shooting Kathy.
III.

DISCUSSION

A.

Standard of Review

28 U.S.C.

§ 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits
in State court proceedings 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.

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“Contrary to clearly established Federal law” means the state court applied a rule that
contradicted the governing law set forth in U. S. Supreme Court precedent or that the state court
confronted a set of facts that were materially indistinguishable from U.S. Supreme Court precedent
and arrived at a different result than the Supreme Court. Eley v. Erickson, 712 F.3d 837, 846 (3d
Cir. 2013) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). The phrase “clearly
established Federal law” “refers to the holdings, as opposed to the dicta” of the U.S. Supreme
Court’s decisions. Williams, 529 U.S. at 412. An “unreasonable application” of clearly established
federal law is an “objectively unreasonable” application of law, not merely an erroneous
application. FJy, 712 F.3d at 846 (quoting Renicov. Lett, 130 S. Ct. 1855, 1862 (2010)).
B.

Analysis
1.

Ground One

In Ground One of the petition, Petitioner claims that the jury instruction on
passionlprovocation manslaughter misstated the law, in violation of his Sixth Amendment right to
a fair trial, and Fourteenth Amendment right to due process. Petitioner cites the following portion
of the jury charge:
The third factor you must consider is whether the state has proven
beyond a reasonable doubt that the defendant had a reasonable time
to cool off. In other words, you must determine whether the state has
proven that the time between the provoking event and the acts which
caused death was inadequate for the return of a reasonable person’s
self-control.
(Answer, Ex. 20, ECF No. 10-20, 1212 14-6 to 10.) The correct charge is that the state must prove
that “adequate time” elapsed between the provoking event and the shooting for a reasonable person
to have cooled off. The court used the word “inadequate” in the instruction, when it should have
said “adequate.” In fact, the word “inadequate” is a mistake that appears in the model jury
instruction. State v. Docaj, 407 N.J. Super. at 361.
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Respondents cite the Appellate Division’s decision on direct appeal. Although the error
was present in the instruction, all four factors that reduce murder to manslaughter were accurately
introduced to the jury, and twice more accurately set forth when the judge “summed up” the State’s
burden of proof. State v. Docaj, 407 N.J. Super. at 363-64. In sum, there was one error imbedded
in three correct instructions regarding the State’s burden on the cooling off factor. jç at 364.
The Appellate Division also found any error was harmless because the only evidence of
provocation was a slap in the face, which did not constitute adequate provocation to support
passionlprovocation manslaughter. Defense counsel argued in summation that the provocation
included increasing emotional turmoil from the impending divorce, which was punctuated by the
slap. Id. at 367. The Appellate Division found that the lack of proof of adequate provocation posed
a critical weakness in the evidence for conviction on manslaughter, that Petitioner’s response was
not proportionate to the provocation, and that there was evidence that Petitioner brought a
concealed and loaded handgun with him that night. Id. at 368-69.
In reply, Petitioner asserts that the jury charge was, at a minimum, hopelessly confusing;
and it misstated the State’s burden of proof. Petitioner contends the jury instruction relieved the
State of its burden to prove every element of the crime beyond a reasonable doubt.
for habeas relief on an erroneous jury instruction, a defendant must show both that the jury
instruction was ambiguous, and that there was a reasonable likelihood that the jury applied the
instruction in a way that relieved the State of proving every element of the crime beyond a
reasonable doubt. Estelle v. McGuire, 502 U.S. 62, 72 (1991). In doing so, the court must consider
the challenged instruction in context of the charge as a whole and the trial record, and decide
whether the charge so infected the trial that the result violated due process. Id.; Cupp v. Naughten,
414 U.S. 141,146-47(1973).

7

The Appellate Division reasonably applied controlling federal law by considering the
challenged instruction in the context of the charge as a whole, and the trial record. The court
reasonably concluded that because the passionlprovocation manslaughter charge was given
accurately three times, and only once with a misspoken word, that the jury followed the correct
instruction. Furthermore, as the Appellate Division found, there was little chance the jury would
find a slap in the face during an argument over divorce was sufficient to provoke Petitioner to kill
his wife, particularly when one considers that he brought a gun to work that day and put it in his
waistband before going to see his wife. The Court will deny Ground One of the habeas petition.
2.

Ground Two

In Ground Two, Petitioner alleges that prosecutorial misconduct in the opening statement
was so egregious as to violate Petitioner’s Sixth Amendment right to a fair trial and fourteenth
Amendment right to due process. In her opening statement, the prosecutor said the trial “is not
about a celebration of Kathy’s life

.

.

.

what this trial 1sf,] is a trial to seek justice of her death.”

(Answer, Ex. 15, ECF No. 10-15, 7T21-7 to 21-10.) The trial court denied the defense mqtion for
a mistrial. Petitioner contends by making this deliberate appeal to the juror’s emotions at the outset
of trial, the jury was told it was their duty to convict and get justice for the victim.
Respondents argue that the trial judge’s instruction cured any possible prejudice. The judge
instructed, “[aJrguments, statements, remarks, openings and summations of counsel are not
evidence and must not be treated as evidence.” (Answer, Exhibit 20, ECF No. 10-20, 12T202-14
to 16); and it was the jurors’ duty to:
weigh the evidence calmly and without passion, prejudice or
sympathy. Any influence caused by these emotions has the potential
to deprive both the State and the defendant of what you promised
them, a fair and impartial trial...

8

(Id., 12T198-15 to 198-20.) Although the Appellate Division agreed that the comment in the
opening statement went beyond recitation of what the State expected to prove, it was not
“sufficiently grievous” to prejudice defendant’s right to a fair trial. State v. Docal, 407 N.J. Super.
at 362.
In reply, Petitioner cites Viereck v. United States, 31$ U.S. 236 (1943), in support of
reversal. In Viereck, the Supreme Court found the prosecuting attorney’s statements “might well
have placed the judgment of conviction injeopardy,” although the Court reversed on another basis.
Id. at 247. However, the prosecutor’s statements in Viereck were far more egregious than the
prosecutor’s statements here. During World War II, the prosecutor in Viereck called on the jury to
do their duty to their country in a time of war, telling the jury the American people were relying
on them for protection, just as they were relying on the soldiers in the Bataan Peninsula.

at 247

n.3.
For prosecutorial misconduct to constitute a violation of due process, the conduct
complained of must be so egregious as to render the entiTe proceeding fundamentally unfair.
Donnelly v. DeChristoforo, 416 U.S. 637, 642-48 (1974). The effect of the prosecutor’s conduct
must be viewed in context of the whole trial. Greer v. Miller, 483 U.S. 756, 766 (1987).
The trial judge made very clear to the jury at the beginning and close of trial that it was
their obligation to find the facts from the evidence presented to them, and apply the law in reaching
the verdict, without considering the lawyers’ arguments as evidence. (Answer, Ex. 15, ECF No.
10-15, 7T6-22 to 7-15; Answer, Ex. 20, ECF No. 10-20, 12T202-3 to 202-20.) The Appellate
Division was not unreasonable in finding, in the context of the trial as a whole, the prosecutor’s
statement was not a violation of Petitioner’s right to due process and a fair trial.

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3.

Ground Three

Petitioner contends, in Ground Three of the petition, that his rights to due process and a
fair trial were violated when the detective who interrogated Petitioner repeatedly testified that
Petitioner “was not telling the whole truth” and “was trying to hide some things.” Petitioner
presented a defense of passion/provocation manslaughter and relied in large part on the fact that
when he was interrogated by police, he said that “things went dark” after his wife slapped him,
and he could not recall the shooting.
The detective testified that Petitioner had insisted he did not go to the house with the intent
of killing his wife but “it appeared that he was not telling the whole truth.” (Answer, Ex. 19, ECF
No. 10-19, 11T38-6 to 11.) Twice more, the State elicited the detective’s testimony that
Petitioner’s statements were less than the whole truth, and that Petitioner was trying to hide some
things.
When Petitioner insisted to the detective that he did not remember what happened, the
detective accused him of being the person who fired the gun. The detective told Petitioner that his
story about not remembering was not reasonable given his recall of everything that happened up
to that point. (j at 11T50-4 to 51-4 to 7.) Petitioner responded, “I don’t f

remember man.”

(Id. at 51-6 to 5 1-7.) Petitioner’s defense was that he was telling the detective the truth about not
remembering killing his wife.
Respondents contend the context of the detective’s testimony is important. During the
interrogation, after Petitioner recounted in detail going to the victim’s house and arguing with her,
Petitioner admitted that he had a gun in his waistband, but did not recall taking the gun out. The
detective asked Petitioner whether he went to the house with the intent of killing his wife. When
Petitioner answered no, the detective said he did not think Petitioner was telling the whole truth.

10

The trial judge denied defense counsel’s objection to this testimony because the detective was only
recounting what was said in the interrogation.
In the jury charge, the trial judge reminded the jurors that they were the finders of fact and
must determine the credibility of witnesses. (Answer, Ex. 20, ECF No. 10-20, 12T202-3 to 10).
The court stressed that, “[y]ou and you alone are the sole and exclusive judges of the evidence, of
the credibility of the witnesses, and the weight to be attached to the testimony of each witness.”
(Id. at 1 2T202-7 to 202-10.) With respect to petitioner’s statement, “I don’t f

remember man,”

the court instructed that the jury first had to decide whether the statement was made and whether,
if made, it or any portion of it was credible. (RI. at 1 2T229-2 to 229-21). In deciding credibility,
the jurors were told to “take into consideration the circumstances and facts as to how the statement
was made, as well as all other evidence in this case relating to this issue.” (Id. at 12T229-22 to
230-1.)
In reply, Petitioner cites state cases condemning testimony by police officers that expressed
m opinion of the defendant’s guilt, warning that a jury may be inclined to accord special respect
to a police witness. Petitioner argues, the detective’s testimony violated his right to a fair trial.
“Federal habeas corpus relief does not lie for state law errors.” Estelle, 502 U.S. at 67
(quoting Lewis v. Jeffers, 497 U.S. 780 (1990)). The only question is whether the error so infected
the entire trial with unfairness that the resulting conviction violated due process. Id. at 72. The
Supreme Court has defined the category of errors that violate fundamental fairness very narrowly.
Id. at 73.
The Appellate Division noted the Detective’s testimony was not admitted as an expression
of his opinion on Petitioner’s guilt, but rather that his statements were provided in a detailed
description of the interrogation. (Answer, Ix. 5, ECF No. 10-5 at 40.) The testimony provided

11

context for Petitioner’s repeated claims that he did not recall the shooting. (j4 at 41.) The jury was
properly instructed that it was their duty to determine whether Petitioner stated he did not
remember shooting his wife, and if his statement was credible. (Id.) The detective’s statements did
not prevent the jury from its function of evaluating Petitioner’s credibility.

(. at 42.)

The transcript of the record, cited above, confirms that the jury was correctly instructed on
its duty to consider whether Petitioner was credible when he said he did not remember shooting
his wife. Furthermore, it is clear from the detective’s testimony that he was describing what was
said during the interrogation, and not offering the jury his opinion that Petitioner was guilty of
murder rather than manslaughter. Therefore, the Court will deny Ground Three of the habeas
petition.
4.

Ground Four

In Ground Four, Petitioner contends that the trial court denied him the right to a fair trial,
the right to remain silent, and the right to due process under the Fifih, Sixth and Fourteenth
Amendments, by instructing the jury that the Court had already ruled on the question involving
Petitioner’s Miranda rights. Petitioner contends reasonable jurors might have taken this to mean
the judge believed that the police honored his legal rights during the interrogation. This would
suggest to the jury that they could believe the testimony of the interrogating detective, that
Petitioner was not telling the whole truth when he said he did not remember. Petitioner asserts this
was prejudicial because his defense was based on the jury believing his statements that he could
not remember what happened after his wife slapped him.
Respondents again note that the trial judge instructed the jury “[tJhere is for your
consideration in this case an oral statement allegedly made by the petitioner. It is your function to
determine whether or not the statement was actually made by the defendant and, if made, whether

12

the statement or any portion of it is credible.” (Answer, Exhibit 20, ECF No. 1-20, 12T229-2 to
229-7.) Respondents contend that no juror who heard this instruction could take away from it that
the trial judge was vouching for the detective’s testimony.
In reply, Petitioner points out that New Jersey rules of evidence prohibit a trial judge from
informing the jury that the judge has determined police obtained a statement from the defendant
in a legally proper manner. (Reply at 49 citing N.J.R.E. 104(c); State v. Hampton, 61 N.J. 250,
272 (1972)). Petitioner’s statements to the detective were critical to his defense, and he asserts

bolstering the detective’s credibility prejudiced the trial. The Appellate Division found this claim
without sufficient merit to warrant discussion. (Answer, Ex. 5, ECF No. 10-5 at 42-43.)
To obtain habeas relief, it is not enough for a Petitioner to show an error of State law.
Estelle, 502 U.S. at 67. As discussed above, a petitioner must show that an evidentiary error
rendered the entire trial, considered as a whole, fundamentally unfair.
Two factors make the Appellate Division’s determination reasonable. First, as discussed in
Ground Three, it would have been clear to the jury that the detective was not testifying to provide
his opinion of Petitioner’s guilt, but rather to tell them what occurred during the unrecorded
interrogation. Second, even if a juror was inclined to believe the detective was offering his opinion
that Petitioner was not telling the whole truth, the judge cured this by telling the jury it was their
function alone to determine whether Petitioner was credible when he told the detective he could
not remember shooting his wife. The Court will, therefore, deny Ground Four of the habeas
petition.
5.

Ground Five

In Ground Five, Petitioner alleged his Sixth Amendment right to a fair trial and Fourteenth
Amendment right to due process were violated when an Emergency Medical Technician (“EMT”)

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repeatedly characterized the crime scene as a murder scene, when the defense was that defendant
was guilty only of manslaughter. The jury might have accorded the EMT’s testimony weight
because she had medical training, and she testified that the scene of the crime did not appear the
same as other deaths she attended. Petitioner contends this was an improper statement that
expressed the EMT’s opinion that defendant was guilty. Defense counsel did not request a curative
instruction, nor did the trial judge

sponte instruct the jury to disregard the prejudicial remarks.

Respondents submitted that it was defense counsel, on cross-examination, who asked the
EMT if she had ever come upon a scene that looked like this one. She answered, “I’ve been to
scenes [where] people were dead. I’ve been to DOAs before, but I’ve never been to a murder scene,
no.” (Answer, Ex. 17, ECF No. 10-17, 9T170-l to 170-8.) Later in the cross-examination, she
repeated that she had never responded to a murder scene before.

(, 9T173-7 to 173-9.)

Respondents note the jury received instructions on the whole panopiy of homicide charges, from
murder, passionlprovocation manslaughter, aggravated manslaughter to reckless manslaughter,
and this would dispel any prejudice that the jury might have beei influenced by the EMT’s
characterization of the scene as a murder.
Petitioner argues determination of the facts that establish guilt or innocence are exclusively
reserved to the jury, and testimony directly related to the ultimate question of guilt rises to
reversible error. (Pet., ECF No. 1 at 53 citing State v. Odom, 116 N.J. 65, 77 (1989); State v.
Hightower, 120 N.J. 378, 425-26 (1990); State v. Landeros, 20 N.J. 69, 74-75 (1955)).
On direct appeal, the Appellate Division found this claim lacked sufficient merit to warrant
discussion. “Where a state court’s decision is unaccompanied by an explanation, the habeas
petitioner’s burden still must be met by showing there was no reasonable basis for the state court
to deny relief.” Harrington v. Richter, 562 U.S. $6, 9$ (2011). Petitioner has not met that burden

14

here. It is unlikely the jury understood the EMT was giving her opinion that Petitioner was guilty
of murder when she characterized the scene as a murder scene, rather than merely describing the
scene where she found a body lying in a pooi of blood with a revolver left lying nearby. Even if
the jury were influenced by the fact that the EMT characterized what she saw as a murder scene,
the jury was well-instructed on the elements of murder versus the elements of passion/provocation
manslaughter, which the jurors knew to be Petitioner’s defense. The jurors were instructed that
they alone would decide the facts and apply the law to arrive at the verdict. There is a reasonable
basis in the record upon which the Appellate Division could have denied this claim.
Therefore, the Court will deny Ground Five.
6.

Ground Six

Petitioner claims, in Ground Six, that he was denied due process and a fair trial when an
officer read a Bible passage to the jury. The prosecutor elicited testimony from the officer that a
Bible was found in Petitioner’s apartment, bookmarked at a certain page where passages had been
marked. The prosecutor asked the officçr to read the caption of one of the passages. He read,
“Psalm 37: The fate of the sinners and the reward of the just.” Petitioner contends it is highly
prejudicial for the prosecutor to invoke the Bible to infer Petitioner’s motive to kill his wife.
Respondents note the Bible was never mentioned on direct examination; defense counsel
raised the issue by asking the police officer why pictures of pages of the Bible were taken at the
scene but the Bible was not taken into evidence. The detective testified that a page was marked by
a bookmark, and several passages were marked, so they photographed that page. Respondents
assert the Bible was relevant to show Petitioner’s feelings about his wife’s betrayal and decision
to seek a divorce. Furthermore, there was never any question at trial that the Bible belonged to
Petitioner.

15

Petitioner cited State cases holding that reliance by the prosecutor on any religious writing
is improper. Furthermore, Petitioner contends the Bible was irrelevant because it was not shown
to be his, and no one could know who or why someone marked the passages that were marked or
even what it meant if Petitioner had marked the passage.
The Appellate Division found this claim to be without sufficient merit to warrant
discussion. Even assuming it was error to admit the testimony, the Appellate Division could have
reasonably concluded that the testimony did not prejudice Petitioner. There was more than
sufficient evidence during the trial for the jury to conclude Petitioner killed his wife out of anger
over her cheating on him and asking for a divorce. He told his children, immediately after killing
their mother, that she was cheating on him. On the recorded 9-1-1 call, Petitioner could be heard
screaming “she cheated on me.” Furthermore, Petitioner had made a statement in his diary,
invoking God in his anger at his wife. Even without hearing the passage marked in the Bible, the
jury was likely to find Petitioner killed his wife because she cheated on him. For this reason,
Petitioner is not entitled to habeas relief on Ground Six.
7.

Ground Seven

Petitioner alleges ineffective assistance of trial and appellate counsel. Respondents contend
Petitioner exhausted some but not all of his claims of ineffectiveness of trial counsel, and
procedurally defaulted all his claims of ineffective assistance of appellate counsel.
a.

Ineffective Assistance of Trial Counsel

On direct appeal, Petitioner argued that his trial counsel was ineffective for failing to object
to the error in the passion/provocation manslaughter charge, failing to object to the jury charge
regarding Miranda rights, failing to object to the EMT’s reference to the “murder scene,” and
failing to object to an officer reading a passage from a Bible found in Petitioner’s apartment.

16

(Answer, Ex. 1, ECF No. 10-1 at 45-48.) The Appellate Division, citing Strickland v. Washington,
466 U.S. 668, 688 (1984), found that because all of the underlying claims of trial court error were
meritless, counsel could not have been ineffective for failing to object. (Answer, Ex. 5, ECF No.
10-5 at43.)
The Appellate Division applied the correct standard for ineffective assistance of counsel
under Strickland, and reasonably concluded that counsel’s performance was not deficient for
failing to raise arguments that lacked merit. $ç Boyer v. Houtzdale, 620 F. App’x 118, 123 (3d
Cir. 2015) (“[C]ounsel cannot be ineffective for failing to raise a meritless claim.”)
b.

Procedural default

In general, federal habeas relief may not be granted to a person in custody pursuant to a
judgment of a State court, if the person has not exhausted the remedies available in the courts of
the State. 28 U.S.C.

§ 2254(b)(1)(A). “State prisoners must give the state courts one full

opportunity to resolve any constitutional issues by invoking one complete round of the State’s
established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). The
independent and adequate state ground doctrine “applies to bar federal habeas when a state court
declined to address a prisoner’s federal claims because the prisoner had failed to meet a state
procedural requirement.” Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). The doctrine is
based on concerns of respecting a State’s interest in enforcing its laws. j at 730-3 1. Federal and
State courts are “equally bound to guard and protect rights secured by the Constitution.” Id. at 731
(quoting Rose v. Lundy, 455 U.S. 509, 515 (1982)).
The procedural default doctrine applies to both state appeal and collateral proceedings.
Coleman, 501 U.S. at 732. “[A] habeas petitioner who has failed to meet the State’s procedural
requirements for presenting his federal claims has deprived the state courts of an opportunity to

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address those claims in the first instance.” Id. at 731-32. Although the claims are technically
exhausted because there are no longer any state remedies available, applying the independent and
adequate state ground doctrine in such cases protects “the States’ interest in correcting their own
mistakes.” Id.
To overcome a procedural default of federal claims in state court, a prisoner must
demonstrate “cause for the default and actual prejudice as a result ofthe alleged violation of federal
law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of
justice.” Coleman, 501 U.S. at 750. The cause-and-prejudice test applies to procedural defaults at
trial and on direct appeal. Murray, 477 U.S. at 489-91 (citing Reed v. Ross, 46$ U.S. at 1 0-1 1.)
For ineffective assistance of counsel to establish cause to excuse a procedural default, the
defendant must show counsel’s performance was constitutionally ineffective under the Strickland
standard. Id. at 48$.
In his PCR application, Petitioner alleged trial counsel was ineffective for failing to request
a competency hearing or for an adjournment until Petitioner was competent to assist in his defense.
(Answer, Ex. 7; ECF No. 10-7 at 4, Point I.) Petitioner also alleged counsel was ineffective for not
insisting that an interpreter be present throughout the proceedings because Petitioner had a
language barrier, and he lacked funds to hire an interpreter. (j, at 5, Point IV.) Petitioner further
contended that appellate counsel was ineffective for failing to raise ineffective assistance claims.

(Icli
Petitioner procedurally defaulted these ineffective assistance of counsel claims by failing
to raise them on appeal of the PCR Court decision. (Answer, Ex. 10, ECF No. 10-7 at 5-6, Points
I and II.) A petitioner must exhaust all of his federal claims through one complete round of the
State’s appellate procedure. O’Sullivan, 526 U.S. at 845. It is now too late for Petitioner to appeal

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his abandoned PCR claims, and they are procedurally defaulted. çj at 838 (failure to timely present
federal habeas claims to State Supreme Court resulted in procedural default).
Additionally, the Appellate Division affirmed the PCR Court’s decision that New Jersey
Rule 3:22-4 barred Petitioner from asserting ineffective assistance of counsel for failing to object
to the prosecutor’s summation because he could have raised, but failed to raise, the claim on direct
appeal. (Answer, Ex. 7, ECF No. 10-7 at 7-8.) In any event, the Appellate Division correctly noted
that counsel had objected to some of the comments Petitioner complained of, and the trial court
gave appropriate instructions.

( at 8.) Therefore, Petitioner’s ineffective assistance of counsel

claim alternatively failed on the merits.

(4)

Petitioner now contends appellate counsel’s failure to raise these claims on appeal
establishes cause and prejudice to excuse his procedural default. (Reply at 69.) In support of his
argument, Petitioner states only that he should not be penalized for counsel’s failure to raise these
issues, and he had expressed his dissatisfaction with counsel to both the Public Defender’s Office
and the trial judge. (jçjj
“[T]he existence of cause for a 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, 106
S. Ct. 2639, 91 L.Ed.2d 397 (1986). Cause, therefore, can be
established by showing, for example, that the factual or legal basis
for a claim was not reasonably available to counsel or that
government interference made compliance with the procedural rule
impracticable. Id.; Hull v. Freeman, 991 F.2d 86, 91 (3d Cir. 1993).
Attorney error may constitute cause only where such error rises to
the level ofineffective assistance ofcounsel in violation ofthe Sixth
Amendment. Murray, 477 U.S. at 488-89, 106 S. Ct. 2639.
Johnson v. Pinchak, 392 F.3d 551, 563 (3d Cir. 2004) (emphasis added).
Petitioner has not alleged an external impediment that might have prevented counsel from
raising these claims on review. Furthermore, Petitioner has failed to offer any argument explaining
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how counsel’s failure to appeal these issues rose to the level of ineffective assistance of counsel in
violation ofthe Sixth Amendment. “Strickland makes clear, ‘actual ineffectiveness claims alleging
a deficiency in attorney performance are subject to a general requirement that the defendant
affirmatively prove prejudice.” Palmer v. Hendricks, 592 F.3d 386, 398 (3d Cir. 2010) (quoting
Strickland, 466 U.S. at 693). Petitioner has not done so here. Therefore, the Court will deny Ground
Seven of the petition.
8.

Ground Eight

In Ground Eight, Petitioner contends cumulative trial errors denied him his rights to due
process and a fair trial. The Appellate Division held that because there were no prejudicial trial
court errors, the argument that cumulative errors warrant a new trial must also fail. (Answer, Ex.
5, ECF No. 10-5 at 43.) In reply, Petitioner argued that each of the trial errors he raised were of
sufficient magnitude to warrant relief.
The cumulative error doctrine is a standalone constitutional claim that the cumulative effect
of the errors at trial “so undermined the verdict as lp constitute a denial of his constitutional right
to due process.” Collins v. Secretary of Pennsylvania Dep’t of Corr., 742 F.3d 528, 542 (3d Cir.
2014) (citing Albrecht v. Horn, 485 F.3d 103, 139 (3d Cir. 2007) (holding that petitioner could not
show that the cumulative prejudice of trial errors “undermined the reliability of the verdict”). A
petitioner must show actual prejudice to be entitled to relief. Id. (citing Fahy v. Horn, 516 F.3d
169, 205 (3d Cir. 2008)).
The Appellate Division reasonably concluded that if Petitioner was not prejudiced by any
ofthe individual alleged trial errors, he could not have been prejudiced based on cumulative errors.
The record supports the conclusion that the outcome of Petitioner’s trial was not likely to have
been different absent the alleged errors, because the evidence strongly supported a finding that

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Petitioner went to his wife’s home that evening with the intent of killing her. Therefore, Petitioner
is not entitled to relief on Ground Eight of his petition.
IV.

CERTIFICATE OF APPEALABILITY

This Court must determine whether Petitioner is entitled to a certificate of appealability in
this matter. $çç Third Circuit Local Appellate Rule 22.2. The Court will issue a certificate of
appealability if the petitioner “has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C.

§ 2253(c)(2). Based on the discussion in this Opinion, Petitioner has not made a

substantial showing of denial of a constitutional right, and this Court will not issue a certification
of appealability.
V.

CONCLUSION

For the reasons described above, in the accompanying Order filed herewith, the Court will
deny the petition for a writ of habeas corpus under 28 U.S.C.

Dated:

§ 2254.

2.7 2....017

CLAIRE C. CECCHI
United States District Judge

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