FRANKLIN v. SWEENEY et al

Filing 27

OPINION. Signed by Judge Kevin McNulty on 2/28/2019. (JB, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW .JERSEY

ANThONY DEFAZIO.
Civ. No. 16-1112 (KM)

Petitioner.
V.

CINDY SWEENEY and
THE ATTORNEY GENERAL OF THE
TIlE STATE OF NEW JERSEY.

OPINION

Respondents.

KEVIN MCNULTY, U.S.D.J.
I.

INTRODUCTION

Before this Court is the petition of Anthony Delhzio (“Petitioner’ or Mr. Defhziol for a
writ of habeas corpus pursuant to 28 U.S.C.

§ 2254 (DE

I. cited as Petition”). Mr. Defazio is

presently confined at Northern State Prison in Newark, New Jersey. For the reasons set forth
below, his habeas petition is DENIED. and he is denied a certificate of appealability.
II.

BACKGROUND
A. Factual Background

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

Mr. Defazio met the victim. Darlene Sanders. in May 1994. I he lived with her and her
four children in Virginia from July’ 1994 until April 1995. when Ms. Sanders moved to her own
apartment. Defazio and Sanders had a tumultuous relationship, including: a restraining order

auainst Mr. Defazio: a telephone call about child support in which Delhzio told Sanders that lie

would kiLl her; and Defazio’s statements to others that he wanted to beat Sanders with a crowbar.

dig a grave, put her in a hole, and put lime over her body; and witness testimony at that Dethzio
told them in 1997 that he “got rid” of Sanders. (hi. at 3—4.)
Around midnight on February 21. 1997. Mr. Defazio called a tow truck driver in Forks
Township. Pennsylvania to pull his car from the mud. The tow truck driver found Defazio in a
remote wooded area, became suspicious of Deftizio’s behavior, and called police. (Id. at 4.)
That day. Ms. Sanders’s mother became upset alter she did not return home or call. The
mother contacted police on February 22. 1997. The police initialed an investigation, which
eventually led them to question Defazio on February 24, 1997. lie said lie knew nothing about
Sanders or her disappearance. (Id.)
Mr. Defazio then called his friend Herbert Sandberg and told him that the police had
questioned him. According to Mr. Sandberg. Defazio told him that “something” had happened
and he was going away for a long time. That same night. Defazio’s &iend David Riggin appeared
at Defazio’s house where, according to Mr. Riggin. Defazio asked him to tell the police that on
February 21. 1997 (the date of Ms. Sanders’s death). they had worked together on a job. Riggin
refused. (Id.)
On Wednesday. February 26, 1997. officials in Pennsylvania unearthed Ms. Sanders’s
body. An autopsy revealed bruises indicating signs of a struggle. From the nature of the marks.
the forensic pathologist opined that a person would “need a lot of strength to do this.” lie
determined the cause of death to be manual strangulation. lie testified that it was “impossible for
it to be an accidental injury” because one “cant kill this individual unless [hej continue[d] to
exert pressure” for one to two minutes after she had passed out for lack of air. (hi. at 4—5.)

2

On Friday, February 28. 1997. police arrested Mr. Defazio for the murder of Ms. Sanders.

(Ic!. at 5.)
According to Mr. Defazio. Ms. Sanders had called him on February 20. 1997. They went
to a movie on February 21. 1997. and returned to the victim’s home where a fight ensued.
Sanders slapped Defazi&s ear. hit him with a hair brush, and kicked him. Defazio pushed her
onto the bed, and she grabbed him by the neck when lie jumped on top of her. He then grabbed
her by the neck, “and the next thing he knew. ‘she was limp.” (Id. at 5—6.) lie testified that he
had his hands around Sanders’s neck for what “seemed like a couple (ofl seconds.” (Ic!. at 6.)
Later, he loaded her body into the trunk of the Honda of his then-current girlfriend. Donna
Romano. He drove to Pennsylvania. When he found a deserted area, he dug a hole and put
Sanders’s body in it. When his car became stuck in the mud, he called a tow truck driver. (hi.)
B. Procedural History
Following a jury trial. Mr. Defazio was found guilty of purposeful or knowing murder in
violation ofN.J. Stat. Ann.

§ 2C::l l-3a(1) and 2C:1 1-3(a)2. (DE 10-29 at 2.) lIe was sentenced

to life imprisonment, with a thirty-year period of parole ineligibility. (hi.)
Mr. Defazio appealed his conviction and sentence. (DE 10-6.) The Appellate Division
afliniied his conviction on June 28, 2000. (DE 10-8 at 24.) The New Jersey Supreme Court
denied certification on October 24, 2000. Slate

i’.

Franklin. 762 A.2d 220 (N.J. 2000). On May 2,

2003. he filed a petition for post-conviction relief (tCR”). (DE 10-13; DE 10-14.) Dethzio then
flied a motion to compel production of Ms. Sanderss mental health records, which the
honorable Diane Pincus. J.S.C.. denied on February 16. 2012. (DE 10-50.)
On February 19. 2013. Judge Pincus denied Mr. Defazio’s PCR application. (DE 10-16;
DE 10-22 at 125-152.)

2

On March 11,2013, Mr. Defazio filed a motion for reconsideration of denial ofan
evidentiary hearing in connection with his PCR petition. (DE 10-17; DE 10-IS.) On August 21.
2013, Judge Pincus denied reconsideration. (Dli 10-20.)
On March 27, 2014, Mr. Deftzio appealed from Judge Pincus’s denial of PCR. (Dli 1021.) The Appellate Division affirmed the denial ofPCR on May 28. 2015. (Dli 10-29.)
On January 29. 2016. the New Jersey Supreme Court denied certification. State v.
Franklin, 129 A.3d 328 (2016).
On February 4.2016, Mr. Defazio filed a motion for reconsideration of denial of
certification. (Dli 10-34.) On March 30. 20 16. the New Jersey Supreme Court denied that
motion. State v. Franklin. 129 A.3d 328 (N.J. 2016).
On February 23. 2016. Mr. Defazio flied his §2254 habeas petition with this Court. (Dli I
at 29.) The Petition raises six grounds. most with numerous sub-parts: (1) ineffective assistance
of counsel (“IAC’)

—

presented in live sub-parts (Dli I at 7-20) (“Ground One”)): (2) trial court

errors, improper prosecLitorial comment, and IAC

——

presented in four sub-parts (Id. at 20-23)

(‘Ground Two”); (3) due process violation from the State’s purported withholding of “material

and ihvorable” evidence (Id. at 23-24) (“Ground Three”); (4) deprivation of due process rights as
a result of the trial judges facial expressions at trial and the trial court’s failure to provide a selfdefense jury charge or a limiting instruction regarding Defazio’s pre-arest silence (hi. at 24-26)
(“Ground Four”); (5) the trial judge’s passion/provocation manslaughter instruction was “fatally
flawed” because it impermissibly shifted the burden of proof and inadequately defined
provocation (Id. at 26) (“Ground Five”); and (6) deprivation of a fair trial from the admission of
“highly prejudicial and irrelevant’S evidence of Mr. Defazio’s other bad acts. (Id. at 27-29)
(“Ground Six”).)

4

In July 2016. Respondents filed an answer (DR 9: DR 10), and

iii

April 2017 Mr. Defazio

filed a reply. (DR 23.)
III.

LEGAL STANDARD
Under 28 U.s.c.

§

2254(a). the

district court

“shall entertain an application for a writ of

habeas corpus [o]n behalf ofa person in custody pursuant to the judgment ofa State court only
on the ground that he is in custody in violation of the Constitution or laws or treaties of the
United States.” A habeas petitioner has the burden of establishing his entitlement to relief for
each claim presented in his petition based upon the record that was before the state court. See
E/ep v Erickson, 7)2 F.3d 837, 816 (3d

Cir.

2013): see ct/so Parker

it

Mauhe;icv. 567 U.S. 37.

40-41 (2012). District courts are required to give great deference to the determinations of the
state trial and appellate courts. See Renico

i’.

Len. 559 U.S. 766, 773 (2010).

Where a claim has been adjudicated on the merits by the state courts. the district court
shall not grant an application for a writ of habeas corpus unless the stale court adjudication:
(1) resulted in a decision that was contrary to. or involved an
unreasonable application oL 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)( I )-(2). Federal law is clearly established for these purposes where it is

clearly expressed in “only the holdings, as opposed to the dicta” of the opinions of the United
States Supreme Court. 8cc’ Woods

it

Donald. 135 S. Ct. 1372, 1376 (201 5). “When reviewing

state criminal convictions on collateral review, federal judges are required to afford state courts
due respect by overturning their decisions only when there could be no reasonable dispute that
they were wrong.” id. Where a petitioner challenges an allegedly erroneous factual determination

D

of the state courts, “a determination of a factual issue made by a State court shall be

presumed

to

be correct [and the] applicant shall have the burden of rebutting the presumption of correctness
by clear and convincing evidence.” 28 U.S.C.

§

2254(e)(1).

Under these standards, the relevant state court decision that is appropriate for federal
habeas corpus review is the last reasoned state court decision. See Bond

i

Bean!. 539 F.3d 256,

289-90 (3d Cir. 2008). Additionally. these standards apply “even where there has been a
summary denial” by the state court. (‘u/len v. Pinhuls/er. 563 U.S. 170. 187 (2011). In these
circumstances. [petitioner] can satisfy the unreasonable application’ prong of § 2254(d)( 1) only
by showing that ‘there was no reasonable basis’ for the [state court’s] decision.” h/. at 187-88
(quoting Harringion

‘.

Richter. 562 U.S. 86.98 (2011)). Furthermore. “when the relevant state-

court decision on the merits ...does not come accompanied with

...

reasons

...

[v]e hold that the

federal court should ‘look through’ the unexplained decision to the last related state—court
decision that does provide a relevant rationale.” JViLcon

i’.

Sellers. 138 S. Ct. 1188, 1192(2018).

In addition to the above requirements. a federal court may not grant a writ of habeas
corpus under

§

2254 unless the petitioner has “exhausted the remedies available in the courts of

the State.” 28 U.S.C.

§

2254(b)(1)(A). To do so. a petitioner must “ihirly present’ all federal

claims to the highest state court before bringing them in federal court.” LL’I’’LI v. 11711/ants. 504
F.3d 357. 365 (3d Cir. 2007) (citing S/evens v. Delcnrurc (‘oir. Cm. 295 F.3d 361. 369 (3d Cir.
2002)

). This requirement enstires that state courts “have

an initial opportunity’ to pass upon and

correct alleged violations of prisoners’ federal rights.’” hi. (citing United S/cites v. Bendolph, 409
F.3d 155, 173 (3d Cir. 2005) (quoting Duck1rorth v. Serruno. 454 U.S. 1. 3(1981)).
Nevertheless, to the extent that a petitioner’s constitutional claims are unexhausled, a court can

6

nevertheless deny them on the merits under 28 U.S.C.

§ 2254(b)(2) See Taylor i’. Horn. 504

F.3d 416.427 (3d Cir. 2007); Bronshicin v. Horn. 404 F.3d 700. 728 (3d Cir. 2005).
IV.

DISCUSSION
A. Ground One: Ineffective Assistance of Counsel
In Ground One. Mr. Defazio alleges that his trial counsel, A. Kenneth Weiner. Esquire,

rendered ineffective assistance of counsel (“IAC”). (Petition at 7.)
The Sixth Amendment guarantees the accused the “right

...

to have the Assistance of

Counsel for his defense.” U.S. Const. amend. VI. The right to counsel is the right to the eflèctive
assistance of counsel. and counsel can deprive a defendant of the right by failing to render
adequate legal assistance. See Stnckland

i’.

Washington. 466 U.S. 668. 686 (1984). A claim that

counsel’s assistance was so defective as to require reversal of a conviction has two components,
both of which must be satislied. IS. at 687.
First, a petitioner must “show that counsel’s representation fell below an objective
standard of reasonableness.” IS. at 687-88. To meet this prong. a “convicted defendant making a
claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not
to have been the result of reasonable professional judgment.” IS. at 690. The court must then
determine whether, in light of all the circumstances at the time, the identified errors fell “below
an objective standard of reasonableness.” Kin/on v. :ikiha,,ici. 134 5. Ct. 1081, 1088(2014).
Second. a petitioner must establish that counsel’s “delicient performance prejudiced the
defense so as to deprive the defendant ofa fair trial.” Strickland. 466 U.S. at 669. To establish
prejudice. the defendant must show that “there is a reasonable probability that the result of trial
would have been different absent the deficient act or omission.” IS. at 1083.

7

On habeas review, it is not enough that a federal

jLldge

would have found counsel

ineffective. The judge must find that the state court’s resolution of the IAC issue was itself
unreasonable, a higher standard. Hcn’rinç’tun. 562 U.S. at 101.
1. IAC —Failure To Obtain Decedent’s Medical Records

In Ground One’s first sub-part. Mr. Defazio contends that Mr. Weiner failed to obtain
certain medical records of Ms. Sanders that would have shown a “cardiomyopathy heart
condition that would have impacted the ‘causation’ determination of the manner oldeath.”
(Petition at 9 (“IAC-Medical Records Claim”).)
At trial. Defazio testified that during the fight with Sanders. he jumped on top of her and
grabbed her by the neck to try to control her. The next thing he knew, she went limp and lie
realized that she was dead. (DE 10-8 at 6).
In PCR proceedings, Judge Pincus determined that “[t]he fact that Ms. Sanders suffered
from a heart problem and, as a result, might have succumbed to strangulation more quickly than
someone in perfect health, would not have lessened Defendant’s criminal responsibility for
causing Ms. Sanders’ death.” (DE 10-22 at 142-43.) Judge Pincus ruled that: “While it appears
that Counsel may have been deficient in failing to obtain Ms. Sanders’ medical records in order
to provide them to his expert, and use them to cross-examine the State’s expert, Defendant has
not satisfied the second prong of Strickland in that he cannot demonstrate, to a reasonable
probability, that, but for Counsel’s deficient performance. the result of his trial would have been
any different.” (DE 10-22 at 142.)
Agreeing that Mr. Defazio’s IAC-Medical Records Claim had no merit, the Appellate
Division affirmed ‘ihr the reasons stated by Judge Pincus” (DE 10-29 at 8.) Thc Appellate
Division agreed with the PCR court that Mr, DeI’azio had shown neither deficient performance

8

nor prejudice. First, the Appellate Division correctly set forth the governing Strickland standard.
under which a habeas petitioner

must

demonstrate both: (1) deficient performance by counsel

and (2) that defective performance’s prejudice to the defense. (DE 10-29 at 8-9) (internal citation
and quotation marks omitted). Then, the Appellate Division explained Defazio’s failure io satisfy
Strickland’s first prong:

We agree with the PCR judge defendant did not, through sworn
affidavits or certifications, demonstrate that trial counsel would
have uncovered evidence supporting defendant’s unsubstantiated
assertions regarding the victim’s health which caused her
accidental death. Rather, as Judge Pincus noted, counsel did
consult with a forensic pathologist prior to trial and the doctor’s
opinion was the victim’s death was a homicide
(DE 10-29 at 9-10.) Finally, the Appellate Division explained Mr. Defazio’s failure to satisfy

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

(DE 10-29 at 9-ID.)
9

After reviewing the record and governing law. I find that the state courts’ application of

Strickland to the facts was not unreasonable.
First, as to Stricklancrs deficient performance prong. medical records of Ms. Sanderss
pre-existing heart condition would not have changed the facts about her strangulation

——

or so a

reasonable attorney could have thought. Defense counsel did not merely neglect the medical
issue; he “consult[ed] with a medical pathologist prior to trial[.] [whose] opinion was the
victim’s death was a homicide.” (DE 10-29 at 10.) The cause-of-death facts were established by
Dr. Mihalakis. the forensic pathologist. (DE 10-22 at 131.) Mr. Defazio himself admitted
grabbing the victim by her neck. (DE 10-8 at 6.) Under the deficient-performance prong of
Strick/wuL

I must indulge a presumption that counsel’s choices about the victim’s medical

records were made in furtherance of a legal strategy. An application of common sense to the
cause-of-death evidence and Mr. Defazio’s own testimony here tend to confirm that
presumption. In this context, the state courts’ rulings that Mr. Defazio failed to show Strickland
deficient performance were not unreasonable.
Second, as to Strickland’s prejudice prong. neither Judge Pincus’s decision nor the
Appellate Division’s affirmance of it was an unreasonable application of clearly established
federal law or an unreasonable determination of the facts. Mr. Defazio did not deny grabbing the
victim by her throat or that she died immediately thereafter. The State put forth testimony
establishing the volatile nature of their relationship, including Defazio’s previous threats to kill

Ms. Sanders: witnesses’ testimony that Defazio told them he wanted to kill her; and Mr.
Sandberg’s statement that Delhzio told him, prophetically. that he had done “something” for
which Defazo would he “going away for a long time.” (DE 10-8 at 3-6.) In light of these facts.

10

Defazio has not shown that it is reasonably probable that, if counsel had obtained Ms. Sanders’s
cardiomvopathv medical records, the outcome of his case would have been different.
“Because a convicted defendant must satisfy both prongs of the Sirickiandtest [i.e..
deficient performance and prejudice]. failure to establish either deficient performance or
prejudice makes it unnecessary to examine the other prong.” United States

i’.

Mananwla, 612 F.

App’x 151, 154 (3d Cir. 2015) (citing Strickland. 466 U.S. at 699). 1-lere, Petitioner established
neither, as the state courts reasonably found under a correct application of governing federal
precedent. Accordingly. Ground One’s IAC-Medieal Records Claim is denied.
2. IAC —Failure To Pursue Self-Defense As An Alternative Defense
In Ground One’s second sub-part. Mr. Defazio argues that Mr. Weiner was ineffective in
failing to pursue self-defense as an alternative defense. (Petition at 13 (“IAC Self-Defense
Claim”).) Defazio alleges that ajury. based on an imperfect self-defense theory. could have
convicted him of the lesser offense of second-degree reckless manslaughter. (hi. at 15.) He
charges that a “financial conflict of interest” caused counsel to fail to obtain such evidence. (hi.
at 13.) The Petition suggests that counsel opted to use limited resources to pay himself instead of
experts who would have supported a self-defense theory. (hi. at 8. 20.)
Judge Pincus rejected Mr. Defazio’s claim, citing Strickicnurs principle that “[i]n
hindsight, a court should not question trial counsel’s strategy so long as it was reasonable.” (DE
10-22 at 147.) Judge Pincus explained that self-defense would have been unsupportable on the
facts:
[Am otherwise valid conviction will not be overturned merely
because the defendant is dissatisfied with his or her counsel’s
exercise ofjudgment during trial. As a general rule, strategic
miscalculations or trial mistakes are insufficient to warrant reversal
except in those rare instances where they are of such magnitude to
thwart the fundamental guarantee of a fair trial,
11

[n this case, it was a reasonable tactical decision for counsel to
pursue the accidental nature of the death and passion/provocation
manslaughter. rather than alternative defenses of self-defense.
voluntary intoxication, and/or diminished capacity.
As to Defendant’s suggestion that counsel should have pursued a
strategy of self-defense. N.J.S.A. 2C:3-4(a) provides, in pertinent
part, that the use of force upon or toward another person is
justifiable when the actor reasonably believes that such force is
immediately necessary for the purpose of protecting himself
against the use of unlawful force by such other person on the
present occasion. N.J.S.A. 2C:3-4(b)(2). [Furthermore.] [a] person
max’ not use more force than that which he reasonably believes is
necessary to repel the attack. The amount of force must be
proportionate to what the defendant reasonably believes [us
necessary.
Even accepting Defendant’s testimony as true, the assault was
limited to Ms. Sanders hitting Defendant with a brush and slapping
and kicking him. Other than a scratch on his neck, Defendant did
not sustain any injuries. Strangling Ms. Sanders to death as a result
of her hitting him with a brush and slapping and kicking him was
certainly more force than that which was reasonably necessary to
repel the attack. The amount of force was greatly disproportionate
to what was reasonably necessary. and there is no support for the
idea thut Defendant believes the force was reasonably necessary to
protect himself against death or serious bodily injury, as he only
had a scratch on his neck that did not require any medical
attention.
(DR 10-22 at 147-48.)
After citing the Strickland standard. the Appellate Division affirmed the PCR court’s
ruling. for “substantially the reasons stated by Judge Pincus.” (DR 10-29 at 8.) The Appellate
Division stated: De1’endant failed to offer any support for his contention that his counsel’s
financial difficulties resulted in ineffective assistance of counsel.” (IS. at 10.)
In finding that Mr. Defazio had not demonstrated Strickland’s deficient performance
standard, the state courts’ determinations were not objectively unreasonable. The record
demonstrates that the victim’s conduct towards Mr. Delhzio consisted ofa hair brush thrown at
12

him, a slap, and a kick. (DE 10—8 at 6.) Such non—lethal behavior is a far cry from warranting the
use of deadly force, such as would have been required to argue self-defense under N.J. Stat. Ann.
§ 2C:3-4(a). The evidence at trial showed that Mr. Defazio’s level of force was not
commensurate with the victim’s. Thus, self-defense, especially in the form of deadly force, was
not a viable option under the governing law. In addition, reasonable counsel could have
perceived that pursuing inconsistent defenses, or a blame-the-victim strategy. before the jury
could have seriously backfired. In context, counsel’s decision to pursue the stronger defense of
accident, rather than a weaker theory of self-defense. did not “qa]ll below an objective standard
ofreasonableness.” Jacobs

i

Horn. 395 F.3d 92. 102 (3d Cir. 2005). The state courts reasonably

found that Mr. Weiner was not deficient in failing to pursue a self—defense defense at trial.
Accordingly. the state court rulings on this claim were neither contrary to nor an
unreasonable application of federal precedent. Therefore. Ground One’s IAC Self-Defense Claim
is denied.
3. IAC —Failure To Engage In Plea Negotiations

In Ground One’s third sub-part. Mr. Dethzio contends that Mr. Weiner rendered IAC by
“refus[ing] to approach the State to negotiate or discuss possibility ofa plea, telling Petitioner
that it was not legal to plea bargain a murder case.” (Petition at 15 (“IAC-Plea Claim”).) Defazio
suggests that Weiner Failed to engage in plea negotiations because he was fearful of exposing
himself to criminal and ethical violations and because lie had an interest in proceeding to trial for
monetary gain. (hi. at 15—16.)
In PCR proceedings, Judge Pincus first summarized Mr. Defazio’s IAC-Plea Claim.
which is similar to the one asserted here:
Defendant argues that Counsel was burdened by an actual conflict
of interest that pitted Counsel’s interests directly against those of
13

Mr. Franklin’s, causing Counsel to refrain from entering into plea
discussions/negotiations with the State. According to defendant.
Counsel failed to initiate or engage in pre-trial plea
discussions/negotiations because Counsel was fearful of exposing
himself to criminal and or ethical violations and malpractice
liability. Defendant also argues that Counsel had an interest in
proceeding to trial in order to increase his personal pecuniary gain.
in an effort to support and finance his growing drug and gambling
addictions. According to Defendant. in November of 1997.
Deièndant and his parents requested that Counsel approach the
State to discuss the possibility of a plea agreement. Defendant
contends that Counsel refused to entertain any such possibilities
and refused to broach the subject with the State. Defendant argues
that ethically and professionally there is no question that Counsel
was obligated to listen to Defendant and explore the possibility of
a plea agreement and Counsel’s refusal to even approach the
prosecutor was a violation of his professional obligation
(DR 10-22 at 143.) Judge Pincus then explained the law guiding the court’s decision on the IAC
Plea Claim:
R[ule] [of Professional Conduct] 3:9-3(a) provides in pertinent part
that the prosecutor and the defense may engage in discussions
relating to pleas and sentences and shall engage in discussions
about such matters as will promote a lair and expeditious
disposition of the case. This rule. however, does not mandate that
the State oiler a plea bargain to Defendant.
(DR 10-22 at 144.) Applying this law to the ihcts. Judge Pincus rejected the IAC-Plea Claim:
The certification of Assistant Prosecutor Thomas J. Kapsak makes
it clear that no plea oiler was extended by the State in this case
and, therefore, there is no support for Defendant’s position that
Counsel avoided plea negotiations due to his conflict of interest.
(DE 10-22 at 144.)
In its opinion afflming the denial of PCR. the Appellate Division expressly affirmed the
ruling of Judge Pincus. (DR 10-29 at 10.) In so holding. the Appellate Division correctly noted
that the record conclusively refuted the IAC Plen-Claim:
Defendant failed to offer any support for his contention that his
counsel’s ethical violations, use of illegal drugs, and financial
14

difficu ties resulted in ineffective assistance of counsel. For
example, defendant asserts. without evidential support, these issues
caused counsel to not engage in plea negotiations. As the PCR
judge pointed out in her opinion, the prosecuto(s certification
stated that no plea of/er was extended by the State.
(Ic?.)

(emphasis added). Thus, contrary to the IAC Plea-Claim’s suggestion. there were not even

plea negotiations in which Mr. Defazio’s counsel could have participated. Given the strength of
the evidence and the heinousness of the offense. it is plausible that the State would not have pleabargained. It was not within defense counsel’s power to change that situation.
The state courts’ determination on this issue was objectively reasonable. This is not the
classic claim that the State was prepared to negotiate or had offered a plea bargain, but trial
counsel failed to participate in negotiations or to communicate an offer to the client. Rather. the
State declined to offer a plea bargain, as was its prerogative. Sec New Jersey Rule of Court 3:93(a) (“The prosecutor and the defense nzc engage in discussions relating to pleas and sentences

) (emphasis added). There was nothing for Mr. Weiner to negotiate or communicate to his
client. Accordingly. there is no basis for finding Mr. Weiner’s performance deficient.
The state court rulings that counsel’s performance was not deficient under Strickland
were neither contrary to nor an unreasonable application of federal precedent. Thus. Ground
One’s IAC-Plea Claim is denied.

4. IAC —Failure To Investigate Diminished Capacity / Voluntary Intoxication
Defense
In Ground One’s fourth sub-part, Mr. Defhzio claims that Mr. Weiner knew Defazio was
on pain medication at the time of the crime, vet failed to develop or pursue an intoxication or
diminished capacity defense. (Petition at 16-17 (“[AC-Capacity Claim”).)
After correctly stating the rule of Strickland. Judge Pincus ruled that:

15

[l]t was a reasonable tactical decision for counsel to pursue the
accidental nature of the death and passion/provocation
manslaughter. rather than alternative defenses of self-defense,
voluntary intoxication, and/or diminished capacity
[There is
nothing in the record to support a diminished capacity or voluntary
intoxication defense, other than Defendant’s own certification
which is no more than a bare allegation, upon which PCR relief is
not granted. Furthermore, it was reasonable for Counsel to focus
on one defense, rather than diminishing its strength by suggesting
alternative defenses to the jury.
(ECF 10-22 at 135-36 and 147-48) (internal citations omitted).
The Appellate Division affirmed Judge Pincus’s denial of the IAC Capacity-Claim
without significant discussion, but expressly found that the claim had “no merit.” (DE 10—29 at
8.)
The last reasoned decision on the JAC Capacity-Claim was from Judge Pincus during
PCR proceedings. The Judge laid out the relevant Strickland standard for analyzing that claim.
(DE 10-22 at 135-36.) The record supports the PCR court’s finding, affirmed by the Appellate
Division. that counsel made a tactical decision to pursue an accident defense and forgo an
alternative defense of diminished capacity / voluntary intoxication. Nothing in the record
supported Mr. Defazio’s claim of diminished capacity or voluntary intoxication. “[S]trategic
choices made after thorough investigation of law and facts relevant to plausible options are

virtually unchallengeable.” Knoii’lcs v.

Mirzayance,

556 U.S. 111. 124 (2009) (quoting

Strickland, 466 U.S. at 690). Therefore, the Appellate Division reasonably applied the Strickland

standard in denying the IAC-Capacity claim.
Mr. Defazio bears the burden of establishing his entitlement to relief on each claim. Yet
he has failed to give any support for the IAC Capacity-Claim, aside from a own bare-bones
allegation that his pain medication usage would have justified a diminished capacity defense.
Accordingly, the Court will deny the IAC Capacity-Claim.
16

5. IAC

—

Failure To Investigate Four Witnesses

In Ground One’s filth sub-part. Mr. Defazio contends that Mr. Weiner rendered IAC by
“fail[ing] to conduct any investigation into the facts of Petitioner’s case in order to establish all
available defenses and to obtain evidence and interview witnesses [Herb Sandherg. Iris Edelman.
Victor Gonzalez. and Sharon Glovich]” (referred to as “the Four \/itnesses”)) (ECF No. I at 1720 (“[AC-Witnesses Claim”).)
It is useful to summarize the relation of the Four Witnesses to the facts.
Herbert Sandberg was Mr. Defazio’s “friend [who] testified at trial that in early 1997.
prior to [the victim’s] death. [Petitioner”] told him, on several occasions, that he got rid of Ms.
Sanders and that she would not be appearing at a custody hearing scheduled for January 1997.
Mr. Sandberg also testified that [Petitionerj told him that ifhe wanted to get rid ofa body he

would dig a hole in the woods. bury it. and cover it with lime.” (DE 10-22 at 128.) Mr. Defazio
states that “Sandberg wanted to inform counsel about the way lie was interviewed by police
However. [counsel did not investigate due to] not wanting to pa’ the retainer for [investigative]
services.” (Petition at I?.)
Iris Edelman was the mother of Richard Edelman. a friend of Mr. Defazio’s.’ Richard
Edelman testified that while working on a car in February of 1997, Mr. Defazio “asked him and
Mr. Sandberg how they would dispose of a body if they killed someone
responded that he would bury the body after covering it with lime

...

...

[Petitioner]

At trial,

...

Mr. Edelman

testified that [Petitionerj called him Saturday night and told him that he had killed Ms. Sanders

Petitioner’s PCR application states that Iris Edelman “was a fact witness as she was present for
portion oVa conversation in her garage between her son. Richard Edelman. and his friends. Herb
Sandberg and Steffan Franklin [also known as Anthony Defazio].” (DE 10-14 at 55-56.) The PCR
petition states that Victor Gonzalez is Iris Edelmans brother. (hi. at 56.)
I

17

and buried her. On Sunday night. [Petitionerl called Mr. Edelman to tell him that lie had done a
very bad thing, but did not say what that thing was. On Monday evening. [Petitioner] phoned Mr.
Sandherg and advised him that he had sex with a dead person and was going away for a long
time.” (DE 10-22 at 128-29, 130-31.) Mr. Defazio claims that “Iris Edelman and Victor
Gonzalez were other witnesses that counsel knew about and failed to have interviewed. These
witnesses were critical to a material issue at trial where the State portrayed a conversation that
took place in a garage as evidence that Mr. Defazio premeditated the death.” (Petition at 17.)
Sharon Glovich was “an acquaintance” of Mr. Defazio’s who testified at trial that lie told
her “that he hated [the victim] and if lie had the money he would hirc someone to kill her.” (DE
10-22 at 128.) Mr. Defazio claims that Ms. Glovich “was a significant witness for the State and

counsel was provided with information showing her statement to the police was a total
fabrication.” (Petition at 18.)
With respect to the Four Witnesses. Judge Pincus ruled that Mr. Del’azio had “not
established a prima facie case of ineffective assistance of counsel.” in that he had not met
.s1,iL•kIu,1crs

prejudice prong. The court explained how Mr. Defazjo “ha[d] not demonstrated a

reasonable probability that. but for his attorney’s [alleged] errors, the jury would have returned a
different verdict”:
In this case, it is clear that the State had an extrcmely strong case
against Defendant, which demonstrated that Defendant
premeditated and planned the murder of Ms. Sanders and disposed
of her body. Defendant never denied killing Ms. Sanders. but
rather argued that he accidentally strangled her. The State was able
to establish that Defendant and Ms. Sanders had a tumultuous
relationship in which there was a significant amount of arguing and
fighting. Defendant kicked in the door of Ms. Sanders’s mother’s
home after a light. Defendant previously threatened to kill Ms.
Sanders. Defendant told a witness that he would like to have Ms.
Sanders killed, but since he could not afford to hire someone to do
it. he would do it himself and bury her in a hole and pour I ime on
18

top of her. Defendant told another witness that he would like to get
rid of Ms. Sanders before the next custody hearing. Further.
Defendant described to his friends the best way to kill somebody
and dispose of the body. Defendant was angry at Ms. Sanders due
to issues related to custody and support of [their daughter] Paige.
Defendant did not tell anyone that he was meeting Ms. Sanders on
the day he murdered her. The medical examiner testified that the
cause of death was asphyxia due to some type of strangulation and
the manner of death was homicide. Defendant admitted he killed
Ms. Sanders and did nothing to resuscitate her. Defendant took
many actions to avoid detection. He sent his girlfriend out to do
some errands and advised her to call him before she returned
home. Defendant testified that after instructing his girlfriend not to
return home. Defendant wrapped up Ms. Sanders’ body and placed
it, along with a shovel, in the trunk of his girlfriend’s vehicle.
Defendant then drove to Allentown. Pennsylvania, dug a hole in a
construction site, and disposed of Ms. Sanders’ body. On the night
of the murder Defendant phoned a friend to tell him that Ms.
Sanders was dead and Defendant described the strangulation as
being easier than he thought it would be. Defendant asked the
friend for his help in disposing of the body. The following night.
Defendant phoned another friend to tell him that he had done a
very bad thing. During another conversation. Defendant advised
his friend that lie had sex with a dead person and was going away
for a long time. Moreover. Defendant provided the police with a
false alibi as to where he had been at the time of the murder.
This testimony overwhelmingly demonstrates the strength of the
Stat&s case against Defendant and indicates the vast amount of
evidence presented to the j try that Defendant murdered Ms.
Sanders and attempted to cover it up.
(DE 10-22 at 150-52.)
The Appellate Division found “no merit” to the IAC—Witnesses Claim and “afflrrn[ed]
substantially for the reasons stated by Judge Pincus.” (DE 10-29 at 8.)
In finding that counsel’s performance did not work prejudice. Judge Pinctis

——

and the

Appellate Division’s affirniance of him--did not violate clearly established law. The state court
rulings were not unreasonable in their application of S/ricklcincL Nor were those rulings based on
unreasonable determinations of the facts in light of the evidence presented during Petitioner’s

‘9

state court proceedings. For example, Mr. Defazio “proffered no facts to support a reasonable
probability that the results of the trial would have been different. [W]itnesses [testified at trial]
that [Petitionerl said in efkct he would kill the victim, lie would bury the body in the woods and
cover it with lime. After the murder, defendant told a witness that lie got rid of the victim by
strangling her and that it was neat, bloodless, and easier than lie thoui.ht. At trial. Mr. Defhzio
admitted lie did not try to resuscitate the victim or call anyone For help.” (DIE 10-29 at 11.)
In light of the foregoing, I find that the Appellate Divisioifs rejection of Mr. Defazio’s
IAC-Witnesses Claim constituted a reasonable application of the Strickhmcl standard. Mr.
Defazio did not and cannot establish that he was prejudiced under the .cuiekland test. His trial
counsel’s failure to investigate the Four Witnesses would not have changed the facts of Mr.
Defazio’s premeditated and planned murder of the victim

--

or his failure to deny that he

strangled her. Furthermore, the record is devoid of any material demonstrating
suggesting
different”

——

-—

or even

that ‘there is a reasonable probability that the result of the [case] would have been

Hinton,

134 S. Ct. at 1083, had counsel mbtain[edj evidence [from] and

interview[ed]” (Petition at 17) the Four Witnesses.
Particularly relevant to this case is that “[p]rejudice resulting from ineffective assistance
olcounsel cannot be based on mere speculation as to what witnesses might have said.”
D 4;nario

1’.

UniwdSuues of jlnwricct, 403 F. Supp. 2d 361. 372 (D.N.J. 2005) (citing Duncvn

Morton, 256 F.3d 189. 201—02 (3d Cir. 2001): Lewis

i’.

it

Muzurkwu’wz, 915 F.2d 106. 113 (3d

Cir.1 990)). (And of, what is known about these witnesses’ testimony is that it was highly
damaging to Delhzio.) Here. I cannot conclude that Defazio was prejudiced by counsel’s actions
with respect to the Four Witnesses. Defbzio has failed to provide any supporting documentation,
in the form of affidavits or otherwise, detailing what they would have said or what evidence they

20

would have produced that had any likelihood of changing the outcome of the trial. For example.
Defazio makes a bare claim that Glovich made a statement to police that was fabricated. (Petition
at 18) lIe does not, however, describe the specific facts that were allegedly fabricated: identify
the manner in which Glovich would have aided Mr. Defazi&s defense if counsel had
investigated her; particularize the specific evidence she would have provided to exculpate him;
or set forth how facts in Glovich’s police statement would have impeached her and thereby
affected (lie case’s outcome. Mr. Defazio is therefore not entitled to habeas relief on this claim.
For the reasons expressed above. Ground One of the Petition, including all of its subparts.
is denied.
B. Ground Two: Ineffective Assistance of Counsel (conflicts of interest)

In Ground Two. Mr. Defazio alleges that Mr. Weiner was burdened by “multiple
conflicts of interest” and therefore inefl’ective. (Petition at 7.)
I. Ineffectiveness per cc

—

disbarment

In Ground Two’s first sub-part. Mr. Defazio contends that Judge Pincus erred in not
finding Mr. Weiner per se ineffective based on “counsel’s disbarment.” (Petition at 20 (“IAC
Disbarment Claim”).)
The PCR court noted that in July of 2004 (over four years after Dcfazio’s conviction
became final), the New Jersey Supreme Court temporarily suspended Mr. Weiner. In 2005. Mr.
Weiner was charged in an indictment with multiple counts of theft by deception. On April 13.
2006. Mr. Weiner pled guilty to two counts of third-degree theft by deception. On June 23, 2006,
Mr. Weiner was sentenced to a term of four years’ probation. In October of 2006, the New Jersey
Supreme Court disbarred Mr. Weiner. (DE 10-22 at 125-26.) Judge Pincus stated that Mr.
Defazio “relies upon Counsel’s disbarment and conviction [for theft b’ deceptioni to support his

21

contention of[IAC.]” (It!. at 136.) Judge Pincus cited to New Jersey case law that rejects any
such per xc

rule

of IAC based on counsels personal misconduct. Relying on this state law, Judge

Pincus ruled that:
The two-part test adopted in .S’tuiekkind is sufficiently protective of
a deFendant’s rights and the critical inquiry is whether, for
whatever reason, counseFs performance was deficient, and
whether the mistakes made, prejudiced the defendant’s right to a
fair trial
[Here.] the inappropriate financial dealings between
Counsel and Defendant’s parents did not have an effect on the
outcome of the trial.
...

(DE 10-22 at 137—38) (internal citations omitted).
The Appellate Division found “no merit” to Mr. Defazio’s IAC—Witnesses Claim and
“aflirmied] substantially for the reasons stated by Judge Pincus.” (DE 10-29 at 8.)
I cannot find fault with those state court rulings.
A federal habeas court ‘may grant relief under the unreasonahle application’ clause [of
2254(d)(1)] if the state court correctly identifies the governing legal principle from our decisions

but unreasonably applies it to the facts of the particular case. The focus of the inquiry is on
whether the state court’s application of clearly established federal law is objectively
unreasonable, and an unreasonable application is different from an incorrect one.” Bell v. (‘one,
535 U.S. 685, 694 (2002). That is, under the “unreasonable application” clause of § 2254(d)(1).
courts look to whether the state court’s application of law was “objectively unreasonable” and
not simply whether the state court applied the law incorrectly. Wi//louis v. Taylor. 529 U.S. 362.
41

(2000). The question on habeas review is not whether a federal court believes the state

court’s determination under Strickland was incorrect but whether the determination was
unreasonable—— a substantially higher threshold Knuii’Iec.556 11.5. at 123:
550 U.S. at 474.

77

Se/it/rn

v. Landrigan.

In finding that Mr. Weiner’s performance was not per se deficient, the state courts did not
violate clearly established law. In fact. Mr. Defazio has not. in the Iirst instance, cited any United
States Supreme Court precedent-- and this Court is not aware of any-- holding that an attorney
is per se ineffective under Strickland by reason of his or her subsequent disbarment.
Furthermore. I am unable to find that the state courts’ rulings were unreasonable in their
application v/Strickland. The only evidence presented by Mr. Defazio to support his claim of per
se ineffectiveness was his contention that Mr. Weiner \vas disbarred for violations of
professional misconduct rules and for purported mishandling of fees in Mr. Defazio’s case.
(Petition at 20.) He does not, however, demonstrate the requisite connection between Mr.
Weiner’s disbarment and Stricklancrs application: Le., Mr. Defazio has not shown how Mr.
Weiner’s disbarment and supposed financial niisconduct were “errors so serious that counsel was
not functioning as the counsel’ guaranteed by the Sixth Amendment” and prejudiced the defense
such that he was “deprive[d] ofa fair trial

...

whose result is reliable.” Strickland. 466 U.S. at

687. In thct. the state courts expressly found that Mr. Weine(s decisions implemented
reasonable trial strategies. especially in a case where the defendant admitted to grabbing the
victim’s neck until she went limp and died. (DE 10—8 at 6.) The state courts properly reviewed
Mr. Defazio’s IAC-Disbarment Claim in accordance with the Strickland standard. Federal
precedent did not warrant a different outcome here. Thus. Mr. Defazio’s claim on this ground
does not justi fv habeas relief
The Court will therefore deny Ground Two’s IAC-Disbarment Claim.
2. IAC Counsel’s Failure To Object And Request A Limiting Instruction
As To Petitioner’s Pre-Arrest Failure To Report The Victim’s Death
—

In Ground Two’s second sub-part. Mr. Defazio argues that Mr. Weiner rendered IAC by

“failing to object to the prosecutor’s improper line of questioning about his failure to report the

death. and for failing to request a hearing barring such testimony and/or requesting a limiting
instruction on the use of such testimony. This line of questioning was improper because it vent
to [Petitione(s] pre-arrest silence.” (Petition at 21 (IAC-Objections Clairn’D.)
At trial, Mr. Defazio testified as ibllows during cross-examination by the prosecutor:
Prosecutor:

Now, when she went limp, did that scare you?

Mr. Defazio: That’s when 1 pulled her off of the bed and put her
on the floor to check if she was breathing.
Prosecutor:

That when you called 9-1-1?

Mr. Defazio: No.
Prosecutor:

Did you call a neighbor?

Mr. Defazio: No.

Prosecutor:

Did you look for help?

Mr. Defazio: No.
(DE 10-44 at 52-53.)
In PCR proceedings, the State argued that Mr. Defazio’s claims involving “issues of
cross—examination

...

[and] the lack of a limiting instruction concerning [Petitioner’sl failure to

report the death” were procedurally barred under New Jersey Rule of Court 3:22-4(a). (DE 10-22
at 133.) That Rule “bars a claim if the defendant could have, but did not, raise the claim in a
prior proceeding.” (itt) Judge Pincus acknowledged the Stat&s procedural-bar arguments. but
noted nevertheless that the claim was asserted in the context of IAC. and that “ineffective
assistance of counsel claims are ordinarily exempt horn the bar of R[ule] 3:22-4

‘\s such.

petitioners are rarely barred from raising such claims on post conviction review.’ (Id. at 133-34
(internal citations omitted).) Accordingly. “to the extent” Petitioner’s IAC—Objcctions Claim was
24

“intertwined with [Petitioner’s] claims of ineffective assistance of counsel.” Judge Pincus said.
he would address those issues. (hi. at 134.)
Undertaking that review. Judge Pincus determined that. “[e]ven assuming [Petitioner] has
satisfied the first prong of Swkklund with regard to some of the issues presented.” he did “not
satisffyj the second prong.” Specifically, Mr. Defazio had not shown a ‘teasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” (hi. at 150-51 (“[1]t is clear that the State had an extremely strong case against
[Petitioner]”).)
The Appellate Division agreed. finding mo merit” to the IAC-Objections Claim and
mflirm[ing] substantially for the reasons stated by Judge Pincus.’ (DE 10-29 at 8.)
Applying controlling federal precedent. I am unable to find fault with the state courts’
rulings. The reasoning of Judge Pincus is persuasive. Even if Mr. Weiner was ineffective for(l)
not objecting to the prosecutor’s questions about Mr. Defazio’s failure to report the death or (2)
not requesting a limiting instruction about that testimony. I cannot realistically see how any such
objection or limiting instruction would have changed trial’s outcome.2 The State “demonstrated
that [Mr. Defazio] premeditated and planned the murder of Ms. Sanders and disposed of her
bod.’ (DE 10-22 at 150.) Mr. Deiazio “never denied killing Ms. Sanders.’ (Id.) In this context.
he simply cannot demonstrate that an objection or limiting instruction about his failure to report
the death would have changed his case’s outcome.
The Court will deny Ground Two’s IAC—Objection Claim.

A key issue, of course. was criniinal intent. Defazi&s failure to report the death or summon
medical help was relevant to the issue of whether the killing sas intended or accidental.

2

25

3. IAC

—

Counsel’s Failure To Investigate The Law And Facts

in Ground Tw&s third sub-part. Mr. Defazio alleges that Mr. \Veiner rendered IAC by
“failing to conduct any investigation into the law and facts of the [Petitionefsj case.” (Petition at
21 (“Ground Two IAC—Investigation Claim”).) In support of this claim. Defazio states that
counsel rendered IAC “[for all of the reasons in Ground One.” (Id.)
Mr. Defazio alleges no new facts or arguments in support of Ground Tw&s IAC
Investigation Claim that were not already addressed by this Court as to the analogous claim
under Ground One. Accordingly. the

Court

will deny Ground Two’s IAC—lnvestigation Claim for

the reasons stated in Section lV(A) of this Opinion.
4. IAC

—

Counsel’s Failure To Request A Self-Defense Jury Charge

In Ground Two’s fourth sub-part. Mr. Defazio argues that Mr. Weiner rendered IAC by
ihiling to request a self-defense jury charge. (Petition at 22 (“IAC-Charge Claim”).)
It appears from the record that he did not specifically raise the self defense charge claim
as an IAC claim during PCR. Rather, he argued that the trial court erred by not sua sponte giving
the jury a self-delènse charge. (DE l0-W at 94-96.) This suggests that Ground Two’s IAC
Charge Claim is unexhausted.
As noted .vupra. to the extent that a petitioners constitutional claims are unexhausted. a
court can nevertheless deny them on the merits under 28 U.S.C.

§

2254(b)(2). See Tailor. 504

F.3d at 427: Bronshichi. 404 F.3d at 728. 1 will apply that principle here. and in doing so I find
Ground Two’s IAC-Charge Claim to be without merit.
As noted szqnci as to Ground On&s IAC Self-Defense Claim, the facts at trial showed
that the level of force that Mr. Defazio applied was grossly disproportionate, even if it is

26

assumed that the victim was the aggressor in slapping him or throwing a hair brush. Self-defense.
especially in the form of deadly force, was not a promising strategy. and it had great backfire
potential. Counsel’s decision to forgo a self-defense jun charge did not “flail! below an
objective standard of reasonableness.” Jacobs, 395 F.3d at 102. Under these circumstances. Mr.
Weiner did not furnish deficient representation in failing to request a self—defense jury
instruction. Mr. Defazio has failed to present any facts, context, or other information to suggest
otherwise.
That conclusion is further supported by Judge Pincus’s ruling that Mr. Weiner was
reasonable in requesting a jury charge on passion/provocation manslaughter. Sec DE 10-22 at
147 and 149 (“Counsel explained how, on the day of the murder, Defendant and Ms. Sanders
fought like they never had before. Counsel discussed the volatile chemistry between Defendant
and Ms. Sanders which led to the tragedy”). The turbulent relationship between Mr. Defazio and
Ms. Sanders suggested a jury charge on passion/provocation: his use of disproportionate force
suggested that self-defense was an implausible theory. Indeed, these two scenarios, if put
forward simultaneously, could we]] have weakened each other; to pick the more promising of the
two was a reasonable strategy.
The Court will deny Ground Two’s IAC-Charge Claim.
C. Ground Three: Due Process/Brady Claim
In Ground Three, Mr. Defazio alleges that the State violated his due process rights “by
withholding evidence that was material and favorable to [Petitioner,] [thusi violating [its]
discovery obligation and Brat/i’

i’.

Afw3iain/.” (Petition at 23 (Brady Claim”).)

In his PCR application. Mr. Defazio argtied that the State “withheld various relevant
documents concerning the State’s witnesses that would have been integral to the Defendant’s

27

case. These documents would have given Trial Counsel considerable leverage in

undermining

the credibility of the State’s witnesses’ testimonies at Trial.” (DE 10-14 at 104 (referring to
“significant records and documents relating to the decedent’s violent nature”).) Mr. Defazio
failed to identify the documents allegedly withheld or describe how they were so exculpatory as
to

violate Brady

i’.

Mazy/and. 373 U.S. 83(1963). Instead, he merely string-cited, without

elaboration, to documents in his supporting appendix. (DE 10-14 at 104 (“See Exhibits 45-53,
59-61, 105, 109-110”).) Ground Three’s Bracb’Claim does not provide any furtherdetail. (See
Petition at 23 (referring only to “various relevant records” and “aforementioned information”).)
Judge Pincus rejected Mr. Defazio’s PCR application in its entirety. (DE 10-22.) The Appellate
Division affirmed. (DE 10-29.)
I cannot find those state court decisions objectively unreasonable.
Under Brady

i’.

Maryland, 373 U.S. 83(1963), a violation occurs if: (I) the evidence at

issue is favorable to the accused, because either it is exculpatory or impeaching; (2) the
prosecution withheld it; and (3) the defendant was prejudiced because the evidence was

‘material.”

Breakiron

v. I-font, 642 F.3d 126, 133 (3d Cir. 2011) (citations omitted). Not every

failure to disclose favorable evidence to the defense requires a reversal of the conviction, as the
evidence must be material. See United Stales

i’.

Veks/e,’, 62 F.3d 544, 550 (3d Cir. 1995). As the

United States Court of Appeals for the Third Circuit has explained:
Under Brady, “[elvidence is material if there is a reasonable
probability that, if the evidence had been disclosed, the result of
the proceeding would have been different.” “[T]he question is not
whether the defendant would more likely than not have received a
different verdict with the evidence, but whether in its absence he
received a fair trial, understood as a trial resulting in a verdict
worthy oI’confidence. A reasonable probability ofa different result
is shown when the government’s evidentiary suppression
undermines confidence in the outcome of the trial.’”

28

Breakiron, 642 F.3d at 133—34 (internal citations omitted). Sec ct/so Ky/es v, Vhit/ey, 514 U.S.
419, 433 (1995); Lhnlec/ States
As noted

suprce.

i’.

Bag/er. 473 U.S. 667. 682 (1985).

habeas petitioners have the burden of establishing their entitlement to

relief for each claim presented in their petition based upon the record that was before the slate
court. See Eki. 712 F.3d at $46: see a/so Parker. 567 U.S. at 40-41. Mr. Defazio has failed (I)
to identify precisely which documents the State possessed but failed to produce, and also (2) to
give any legal support for the Brady Claim. Ground Three consists of nothing more specific than
a vague and wholly conclusory contention about the materiality of “various relevant records.”
Some exhibit numbers are cited, but they do not correspond to anything that is before the Court.
The State. in its briel suggests that the reference may be to some records of DYFS pertaining to
child custody and other disputes between Dethzio and Sanders. If that is so. it is by no means
apparent how these records (assuming they were in the State’s possession. and withheld, and not
within Defazio’s possession) would have tended to negate Defazio’s culpability.
Without more, this court cannot undertake the three—pronged Brady analysis

——

Le., the

evidence’s favorable nature. the prosecution’s withholding of it. and prejudice to him .8cc
Breakiron. 642 F.3d at 133. In short. Mr. Defazio has not met his burden of establishing his
entitlement to relief.
The Court will deny Ground Threes Brady Claim

D. Ground Four: Violation Of Due Process And Denial Of Fair Trial
In Ground Four, Mr. Defazio alleges deprivation of his rights to due process and fair trial.
(DE at 24.)
1. Due process

—

Trial Judge’s Facial Expressions

29

In Ground Four’s first sub—part, Mr. Defazio claims that “facial expressions made by the
trial judge in response to defense counsel’s questions of the State’s medical expert were unduly

prejudicial

The trial judge is an imposing figure. As a symbol of experience. wisdom, and

impartiality, jurors have a

natural

tendency to look to the trial judge for guidance

...

Petitioner

was denied his right to a fair trial because the facial expressions ol’ the trial judge showing
disapproval ofdefense counsel were seen by and impacted the jury improperly.” (Petition at 25
(“Expression Claim”).)
Judge Pincus ruled that Mr. Defazi&s Expression Claim “could have been raised on
direct appeal and [is] therefore bared in this Post-Conviction Relief proceeding.” (DE 10-22 at
134.) The Appellate Division affirmed. finding “no merit” to Mr. Defazio’s contention. (DE 1029 at 8.)
A federal court may not grant habeas relief if the state courUs decision rests on a
violation ofa state procedural rule .8cc Johnson v. Pinchak. 392 F.3d 551, 556 (3d Cir. 2004).
This procedural bar applies only when the state rule is “independent of the federal question
[presented] and adequate to support the judgment.” Lei’va. 504 F.3d at 365 (citing A’ara v. Frank.
488 F.3d 187. 196. 199 (3d Cir. 2007); sec also G;ai v. iVcelwrlanct 518 U.S. 152 (1996). and
Coleman v. Thompson. 501 U.S. 722 (1991)). That is. if a petitioner’s claims were denied

because he failed to raise them in accordance with state procedural rules. that is not, generally
speaking. an issue that can be addressed on federal habeas. Rather, the stale court’s rulings may
be said to rest upon “an independent and adequate state ground”-- independent, that is. of any
federal constitutional infirmity. Trevino

i’.

501 tJ.S. at 729 30)8cc also Walker

A’farthi, 562 U.S. 307,316 (2011).

i’.

Thalcr, 569 U.S. 413.421(2013) (citing (‘olcman,

30

When

a

petitioners procedural default has prevented the state courts from reaching the

merits of his claims, federal habeas review of those claims is ordinarily barred. See )Lvi

i’.

Mm,wmake;, 501 U.S. 797. 801 (1991). A federal habeas court ma excuse a claim’s procedural
default only

upon a

showing of “cause and prejudice” or a “Fundamental

Leyva, 504 F.3d at 366 (citing Lities

i

miscarriage ofjustice.”

Larkins. 208 F.3d 153, 166 (3d Cir. 2000)).

To the extent that a petitioner’s constitutional claims are procedurally defaulted, a court
can nevertheless deny them on the merits tinder 28 U.S.C.
427; Bronshlein. 404 F.3d

at

§

2254(b)(2) See Taylor. 504 F.3d at

728.

Applying the controlling federal precedent. F am unable

to

find fault with the state courts’

ruling on the Expression Clain. New Jersey Rule of court 3:22-4(a) precludes collateral relief
on grounds raised for the first time in a PCR proceeding that could have been raised on direct
appeal or prior PCR proceeding. Mr. Defazio had not brought the Expression Claim on direct
appeal. and he did not demonstrate to the state courts that any of Rule 3:22-4(ais three
exceptions applied to excuse the procedural bar (i.e..( 1) the claim “could not reasonably have
been raised in a prior proceeding”; (2) “exceptional circumstances” existed; or (3) “fundamental
injustice” would occur). The state courts’ ruling on the Expression Claim rested on an adequate
and independent state law

ground.

See Trevino, 569 U.S. at 421; Walker, 562 U.S. at 316.

In addition, neither has Mr. Defazio demonstrated-- nor does the record suggest-- (I)
cause and prejudice for procedural default of the Expression Claim or (2) a fundamental
miscarriage of justice if that default is sustained.

Even setting aside the procedural default, the Expression Claim would still fail on the
merits. I labeas petitions alleging general improprieties during the state trial are not subject to
federal court review unless the error resulted in a fundamentally unfair proceeding and thus

31

violated a petitioner’s due process rights.3 Unless a constitutional violation occurs at trial, the
claim is governed by state law and is not subject to habeas review. Mr. Defazio here has neither
(1) particularly described the supposed l’acial expressions of disapprovaF (Petition at 25) nor
(2) demonstrated that they’ in fact resulted in a tiindamentally unfair proceeding. Thus. Mr.
Defazi&s claim on this ground does not justify habeas relief.
The Court will dens’ Ground Fours Expression Claim.
2. Failure To Give Self-Dcfcnsc Charge Suit Sponte

In Ground Four’s second sub—part. Mr. Defazio claims that the trial court erred by not
providing a self-defense charge to the jury sua sponte.” (Petition at 25 (“Ground Four’s Sua
Sponte Charge Claim”).) He suggests that “[t]he evidence in this matter provided the judge with
a rational basis for the applicability ofa self-defense charge.” (Ic!.)
I find that Ground Four’s Sua Sponte Charge Claim must be denied for the same reasons
that Ground Tw&s IAC-Charge Claim must be denied: self-defense, especially in the form of
deadly force.

was

not supportable under the evidence at trial. To forgo it was a reasonable trial

strategy. and indeed to assert it would have been a poor defense strategy. Under the state court
record described .cupra. the trial courfs decision not to sua sponte give a self-defense jury charge
was appropriate. (See DE 10-22 at 118 (“There is no support for the idea that Defendant believed
the force was reasonably necessary to protect himself against death or serious bodily injury”).)
Mr. Deiazio has not identified any United State Supreme Court precedent mandating that the

trial court give an unrequested self-defense charge in these circumstances. For these reasons. I

“Under the Due Process Clause o’ the Fourteenth A mendment, criminal prosecutions must coin port with
prevailing notions of fundamental fairness.” See. e.g.. (‘ufi/binhi v. Tronthenci, 467 U.S. 479. 485 (1984);
Mechnc, v. (‘u/i/hrnhr, 505 U.S. 437 (1992); Monni v. Burhine, 475 U.S. 412, 432 (1986).

32

cannot find that the stale courts’ rulings on this issue amounted to an unreasonable application or
was contrary to federal precedent.
The Court will deny Ground Fours Sua Sponte Charge Claim.
3. Failure To Provide Limiting Instruction As To Petitioner’s Pre-Arrest
Silence
In Ground Four’s third sub—part, Mr. Defazio claims that the trial court “should have
provided an instruction limiting use of Defendant’s pre-arrest silence.” (Petition at 25 CSilence
Claim”.) In support. Mr. Defazio relies on “the reasons discussed in Ground Two. B [I.e.. the
IAC-Objections Claim4].” (hi.)
Judge Pincus ruled that “the lack of a limiting instruction could have been raised on
direct appeal and

[isi

therefore barred in this Post-Conviction Relief proceeding.” (DE 10-22 at

134.) The Appellate Division affirmed. (DE 10-29 at 8.)
Mr. Defazio alleges no new facts or arguments

in support of Ground Four’s

Silence

Claim that were not already addressed herein as to Ground Tvos IAC-Objections Claim. Thus. I
will deny the Silence Claim for all of the reasons stated supzv in Section (V(B)(2)?
E. Ground Five: Passion/Provocation Manslaughter Instruction
Mr. Defazio claims that the trial court’s passion/provocation manslaughter instruction
‘as “fatally flaed because it shifted the burden of proof on the issue of provocation and failed
to adequately define provocation in the context of the facts of the case.” (Petition at 26
(“Passion/Provocation Claini).)
At trial, the judge instructed the lury as follows:

In Ground Two’s IAC—Objections Claim, Petitioner argued that Mr. Weiner rendered IAC by “Failing to
about his [silence] [when]
request [] a limiting instruction on the use of [Petitioner’s] testimony
fail[ing] to report the death.” (DL I at 21.)
. . .

Tpomhcqtc,, 467 U.S. at 485: Afedllnci, 505 U.S. 437: Alonu?. 175 U.S. at 132.
3,

Now, if you find beyond a reasonable doubt that the defendant
purposely or knowingly caused Darlene Sanders’s death or that lie
purposely or knowingly caused serious bodily injury resulting in
death and that lie did not act in the heat of passion resulting from a
reasonable provocation the defendant would be found guilty of
murder. If’. however, you find that the defendant purposely’ or
knowingly caused death or serious bodily injury resulting in death
and that he did act in the heat of passion resulting in a reasonable
provocation the defendant would be guilty of passion provocation
mans laughter.
(DIE 10-8 at 8.) The trial judge then defined the essential elements in detail:
In order for you to find the defendant guilty of murder as charged
the State is required to prove each of the following elements
beyond a reasonable doubt. One. That the defendant Steff’an
Franklin caused Darlene Sanders’s death or caused serious bodily
injury resulting in her death and, two, that the defendant did so
purposely or knowingly. And that’s in the alternative, lie doesn’t
have to. The State doesn’t have to show that it was purposeful and
knowing but purposeful or knowing, and I will define those terms
for you. And the third element that the State must prove beyond a
reasonable doubt is that the defendant did not act in the heat of
passion resulting from reasonable provocation. That is the State’s
burden,
(Id.) The trial judge then defined “purposely’.” “knowingly,” and “serious bodily injury resulting
in death,” (Id.) The trial court concluded this section by stating:

Now. whether the killing is committed purposely or knowingly
causing death or serious bodily injury resulting in death must be
within the design or contemplation of the defendant, The third
element that the State must prove beyond a reasonable doubt to
find the defendant guilty oI’murder is that the defendant did not act
in thc heat of passion resulting fl’oni a reasonable provocation.
(Id. at 9.)
The trial judge then transitioned to the offense of passion/provocation
manslaughter.
In order for you to find the defendant guilty of murder the State
need only disprove one of them. one of those four factors beyond a
reasonable doubt, And again, be clear. In order for you to find the
34

defendant guilty of murder the State need only disprove
those four factors beyond a reasonable doubt.

one of

(Id. at 9.) The judge then explained each of the four factors of passion/provocation manslaughter.

includinu:
First you must determine the provocation was adequate.
Whether the provocation is adequate essentially amounts to
whether loss of self-control is a reasonable reaction to the
circumstances. The provocation must be sufficient to arouse
the passions of the ordinary person beyond the power of his
control. For example, words alone do not constitute adequate
provocation. I can imagine that one is hurt but they don’t
constitute adequate provocation under provocation
manslaughter, passion manslaughter.
On the other hand, the threat of a gun or a knife with a for a
significant physical confrontation might be considered
adequate provocation. That is for you to decide, ladies and
gentlemen. But the provocation must be sufficient to arouse the
passions of any ordinary person beyond the power of his
control.
--

(Id. at 10) (These two highlighted paragraphs are referred to as the “Challenged Charges.”)
The judge then concluded:
If you determine that the State has disproved beyond a reasonable
doubt that there was adequate provocation or that the provocation
actually impassioned the defendant or that the defendant did not
have a reasonable time to cool off or that the defendant did not
actually cool off and in addition to disproving one of those four
factors you determine that the State has proven beyond a
reasonable doubt that the defendant purposely or knowingly caused
death or serious bodily injury resulting in death you must find the
defendant guilty of murder.
If. on the other hand. you determine that the State has not
disproved at least one of those four factors of passion provocation
manslaughter beyond a reasonable doubt but you are satisfied that
the State has proven beyond a reasonable doubt that the defendant
purposely or knowingly caused death or serious bodily injury
resulting in death then you must find him guilty of passion
provocation manslaughter.

35

(Id. at 9-10.) The judge thereafter gave charges on lesser-included offenses and gave the jury
special verdict intetTogatories. which again underscored that the State

must

disprove beyond a

reasonable doubt at least one of the four passion/provocation factors as a prerequisite to finding
the defendant guilty of murder. (Id. 10.)
Mr. Defazio raised the Passion/Provocation Claim on direct appeal. (DE 10-6 at 2,2836.) lIe argued that the Challenged Charges. referring to “adequate provocation, suggested that
he bore the burden to prove that he was, in fact, provoked.” (DE 10-8 at 10.)
Relying on Slate

i’.

Brooks, 706 A.2d 757, 768 (N.J. App. Div.), ceutif denied. 718 A.2d

1215 (N.J. 1998), the Appellate Division rejected Mr. Defazio’s Passion/Provocation Claim.
explaining as follows:
[In Brooks.] [b]etween the[j repeated instructions and defendant’s
failure to object. we found no plain error. So too here. Defendant
did not object to this part of the charge. Moreover, as in Brooks.
defendant in this case focuses on a limited portion of the jury
instruction, and not the charge as a whole. When the charge as a
whole is reviewed, it is clear that the trial judge repeatedly
emphasized the State’s burden to prove all of the elements of
murder, including the absence of the four elements of
passion/provocation. Although the verdict sheet did not refer to the
State’s burden to disprove one of the passion/provocation
elements, there is no requirement that the verdict sheet repeat all of
the judge’s instructions. In short, under no reading of the charge as
a whole could the jury have understood that the burden of proving
provocation was on the defendant.
(DE 10-8 at I 1-12.) On October 24, 2000, the New Jersey Supreme Court denied certification.
(DE 10-12.)
Generally, questions relating to jury instructions are matters of state law not subject to
review by a habeas court. See Enale v. Isaac 456 U.S. 107 (1982); Henderson

i’.

Kthhe, 431 U.S.

145 (1977). Thus, even ajury instruction (or lack of one) that contains an error of state law does
not necessarily merit federal habeas relieE Instead, petitioner who challenges state jury

.5

instructions must “point to a federal requirement that jury instructions

...

must include particular

provisions” or demonstrate that the jurY” instructions deprived him ofa defense which federal

law provided to him.”

Johnson

v. Rosemeuer. 117 F.3d 104. 110 (3d Cir. 1997). Under these

principles, in cases where a federal habeas petitioner seeks relief based upon the jury instructions
given in a state criminal proceeding:

The only question for us is whether the ailing instruction by’ itself
so infected the entire trial that the resulting conviction violates due
process.” It is well established that the instruction “may not be
judged in artificial isolation.” but must be considered in the context
of the instructions as a whole and the trial record. In addition, in
we inquire “whether there
reviewing an ambiguous instruction
is a reasonable likelihood that the july has applied the challenged
instruction in a way’ that violates the Constitution. And we also
bear in mind our previous admonition that we “have defined the
category of infractions that violate ‘fundamental fairness very
narrowly.” “Beyond the specific guarantees enumerated in the Bill
of Rights. the Due Process Clause has limited operation.”
....

S,,,//Ij

Este//e v. AleGuire. 502 U.S. 62. 72—73 (1991) (internal citations omitted).
The Due Process Clause is violated only where “the erroneous instructions have operated
to lift the burden of proof on an essential element olan offense as defined by state law

v.

Horn, 120 F.3d 400, 416 (1997). See a/so In re Wmslnp. 397 U.S. 358, 364 (1970) (“the Due

Process Clause protects the accused against conviction except upon proof beyond a reasonable
doubt ofevery fact necessary to constitute the crime with which he is charged”): Sands/rum v.
Montana, 442 U.S.

Mo. 523 (1979) (jury instructions that suggest a jury may convict without

proving each element of a crime beyond a reasonable doubt violate the constitutional rights of
the accused).
And even when such a constitutional error has occurred, it is subject to “harmless error”
review under the specialized standards applicable to habeas petitions. cee Bredil v. Abruhumson,
507 U.S. 619 (1993): Nec/err. United States. 527 U.S. 1.8-11(1999). “[l]fthe [federal habeas]
37

court concludes from the record that the error had a substantial and injurious efl’ect or inlltienc&
on the verdict, or if it is in ‘grave doubt’ whether that is so. the error cannot be deemed
harmless.’ Smith

i’.

Horn, 120 F.3d at 418 (citing

(‘ali/önnct v. Roi’. 519 U.S. 2, 5 (1996)).

[Aj single instruction may not be judged in arti flcial isolation.
but must be viewed in the context of the overall charge. If the
charge as a whole is ambiguous. the question is whether there is a
reasonable likelihood that the jury has applied the challenged
instruction in a way that violates the Constitution.
...

Middle/on v. McNeil, 541 U.S. 433. 437 (2004) (internal quotation marks and citations omitted).
Thus, even if there is “ambiguity. inconsistency, or deficiency’ in the instruction, such
an error does not necessarily- constitute a due process violation. Rather. the defendant must show
both that the instruction was ambiguous and that there was ‘a reasonable likelihood that the jury
applied the instruction in a way that relieved the State of its burden of proving every element of
the crime beyond a reasonable doubt.” Ivuddingion v. Sarausad, 555 U.S. 179, 190—91(2009)
(internal citations omitted).
The Appellate Division authoritatively rtiled that the challenged jury instructions
comported with the requirements of state law and were not ambiguous. Even standing alone, that
would ordinarily be a sufficient basis to deny habeas relief. See Wadding/on, 555 U.S. at 190-91.
Deference aside, however. I concur with the state court’s analysis. There is no credible argument
that the instructions, as delivered, relieved the State of its burden to prove the essential elements
of the offense beyond a reasonable doubt. Viewed as a whole, they left the burden where it
belonged, on the prosecution. Nor are the challenged state court rulings contrary to or an
unreasonable application of controlling United States Supreme Court precedent. The Challenged
Charges fairly preseiited the passion/provocation issue to the jury. did

not

undermine the burden

of proof. and did not render Mr. Delhzio’s trial unfair. Based on the record. I conclude that the

2

Appellate Division’s denial of this claim was not contrary to. or an unreasonable application oL
clearly established federal law.
The Court will deny Ground Fiv&s Passion/Provocation Claim.
F. Ground Six: Prejudicial And Irrelevant Bad Acts Evidence

Mr. Defazio claims that the “admission of highly prejudicial and irrelevant evidence of
other bad acts deprived defendant of a fair trial.” (Petition at 27 (“Bad Acts Evidence Claim”.)
Mr. Defaiio raised the Bad Acts Evidence Claim on direct appeal. (DE 10-6 at 2. 37-46.)

He argued that the trial judge improperly admitted the following evidence of his bad acts: (a)
speeding with Ms. Sanders and their children in the van, threatening to kill them, and then
kicking in the door of Ms. Sanders’s mother’s house in an attempt to see Sanders; (b) taking Ms.
Sanders’s car and forcing her to move back to New Jersey in order to see her children; (c)
isolating her after they moved back to New Jersey: (d) failing to pay child support. causing Ms.
Sanders to be evicted and work two jobs: and (e) pushing Ms. Sanders out of a car. (DE 10-8 at
13.)
The Appellate Division rejected the Bad Acts Evidence Claim. (DE 10-8 at 13-17.) The
court cited New Jersey Rule of Evidence 404(b), which renders bad-acts evidence admissible for
purposes such as motive, intent, preparation. and opportunity. Citing to Mr. Defazio’s testimony
that the victim’s death “was an accident.” the Appellate Division found the bad-acts evidence
admissible under Rule 404(b):
Defendant’s prior acts were relevant because they demonstrated
the deteriorated relationship between defendant and the victim.
part of the “mosaic” against which the killing must be judged. All
of defendant’s statements and conduct defined the foundering state
of his relationship with the victim and thus were admissible as
background

j

In this case, the State’s theory was that defendant intended to
murder Darlene. while defendant testilied that the death was an
“accident.” Therefore. the disputed accident theory was before the
jury. Even if we discard the “accident” defense and focus on
passion/provocation, defendant’s prior acts of violence and threats
even toward the children, and his refusal to pay- child support
were highly relevant to the State’s theory that this was a planned
murder, rather than a death resulting from reasonable provocation.
A jury could reasonably infer from the evidence that defendant’s
intense animosity toward Darlene fueled his motive to oblain
custody of their child through violent means rather than the judicial
process. thus supporting the State’s theory that the murder was
purposeftil or knowing.
——

(DE 10-8 at 15-17.) The New Jersey Supreme Court denied certification. (DE 10-12.)
It is well-established that the violation of a right created by state law is not cognizable as
a basis for federal habeas relief. Eatelle v. \JeGuire. 502 U.S. 62. 67—68 (1991) (‘\\‘e have stated
many times that ‘federal habeas corpus reliel’does not lie for errors of state law.”) (quoting
Lewis v. ic/jets, 497 U.S. 764, 680 (1990)). However, the Bad Acts Evidence Claim is entirely
based on state law. Thus. Mr. Defazio cannot obtain relief for any purported errors in the state
law evidentiary rulings at his criminal trial, unless they rise to the level of a deprivation of due
process. Es/el/c, 502 U.S. at 70 (“[TIhe Due Process Clause guarantees fundamental elements of
fairness in a criminal trial”) (quoting %,e;wer v, Texa,s 385 U.S. 554. 563—64 (1967)). For a
habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due
process. he must show that the error was so pervasive as to have denied him a fundamentally fair
trial. Keller v. Lorkins. 251 F.3d 408.413 (3d Cii’. 2001) (holding that admission of evidence
may violate due process where the evidence is so inflammatory as to “undermine the
fundamental fairness ol’ the entire trial”). See uLw (ox v. Ilarren. No. 11—7132. 2013 WI.
6022520. *8 (D.N.J. Nov.13, 2013).

40

The state courts determined that the admission of Mr. Delhzio’s prior had acts at trial was
appropriate tinder the New Jersey Rule of Evidence 404(b). The evidence was relevant to the

issues of whether die killing was an accident, and/or whether it resulted from the heat of
provocation. Each is a permissible purpose tinder Ride 404(b). I find nothing

iii

the record to

demonstrate that this evidence was so irrelevant and inflammaton’ as to deprive Defazio of a
ftmdamenwlly fair trial. The state courts’ decisions as to the Bad Acts Evidence Claim were
neither contrary to nor an unreasonable application of federal precedent.
Therefore, the Court will deny Ground Six’s Bad Act Evidence Claim.
V.

CERTIFICATE OF APPEABILITY
A certificate of appealability may issue “only ifthe applicant has made a substantial

showing of the denial ofa 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.” Mi/kr-El v. (‘ockrell. 537 U.S. 322. 327
(2003). Appiying this standard, the Court finds that a certificate of appealability shall not issue in
this case.
VI.

CONCLUSION
For the foregoing reasons. Mr. Del’azio’s

§

2254 petition will be denied on the merits.

The Court declines to grant a certificate of appealability. An appropriate order will be entered.

DATED: February 28. 2019

/m

/J

‘EVIN MC\ULTY
United States District Judge

41