I. FACTUAL BACKGROUND and PROCEDURAL HISTORY A discussion of the factual and procedural background of this case is set forth in the state appellate court's decision on Petitioner's appeal of post-conviction relief:
Defendant was charged with first-degree murder of Kollin Pimental (Kollin), N.J.S.A. 2C:11-3(a)(1) or (2) (count one); first-degree murder of Lisa Pimental (Lisa), N.J.S.A. 2C:11-3(a)(1) or (2) (count two); first-degree felony murder of Kollin, N.J.S.A. 2C:11-3(a)(3) (count three); first-degree felony murder of Lisa, N.J.S.A. 2C:11-3(a)(3) (count four); first-degree aggravated arson, N.J.S.A. 2C:17-1(a)(1) (count five); third-degree hindering his own apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1) (count six); and fourth-degree contempt of a domestic violence restraining order, N.J.S.A. 2C:29-9(b) (count seven).
The evidence presented at trial established that in September 2000, defendant moved into a home in Sicklerville, New Jersey with his girlfriend Lisa and Kollin, her son by a previous relationship. After a domestic dispute that occurred on October 11, 2000, Lisa obtained a temporary restraining order whichbarred defendant from the home and having any contact with her.
Sometime after midnight on October 29, 2000, a neighbor reported a fire at the home, and observed defendant stumbling along the driveway. Defendant fell to the ground and said that his "wife" and the baby were in the house. According to a police officer who responded to the emergency call, defendant's clothes were on fire and he was "smoldering." Defendant was removed by ambulance and taken to a hospital. Later, the fire marshals found Lisa's and Kollin's burned bodies in the house. Parts of a broken hammer were found near Lisa's body.
The Camden County Medical Examiner performed autopsies on the victims' bodies. He testified that Lisa died from a depressed skull fracture that caused bleeding and bruising to the brain. The Medical Examiner also testified that Kollin died as a result of smoke inhalation and thermal burns, with no other contributing cause.
The Deputy Chief Fire Examiner for Camden County testified that he believed the fire was started with an accelerant and an open flame. He said that the fire began on the first floor of the house and traveled to the second floor. Tests revealed a residue of gasoline on the socks, jeans and sneakers that defendant was wearing at the time of the fire.
Defendant testified about the incident that led to the issuance of the temporary restraining order. Defendant said he was exercising and inadvertently caused Lisa to fall from the bed. He stated that, despite the restraining order, he met Lisa on October 19, 2000, in an effort to resolve their difficulties.
According to defendant, Lisa called him the next day to "work things out." He testified that, several days later, he accompanied Lisa to a store to purchase a washing machine and clothes dryer. Defendant installed the machines in the house. Defendant further testified that, the week before the fire, he performed work around the house.
Defendant also said that on the morning of October 28, 2000, he provided money to Lisa for her car payment,and purchased new tires for Lisa's car. Defendant helped Lisa and Kollin decorate the house for Halloween. Later, defendant and Lisa ordered Chinese food and watched television.
Defendant left the house sometime after midnight. He testified he went to the shed in the rear of the house to get some tools for repairs he was going to make at his father's house. Defendant was returning to the shed when he saw the fire. He denied doing anything to hurt Lisa or Kollin.
The jury found defendant not guilty of the murder of Kollin as charged in count one, but found him guilty of the lesser-included offense of first-degree aggravated manslaughter. The jury found defendant not guilty of the murder of Lisa, as charged in count two, but found him guilty of second-degree passion/provocation manslaughter.
The jury additionally found defendant guilty of first-degree felony murder of Kollin, as charged in count three; not guilty of felony murder of Lisa, as charged in count four; not guilty of first-degree arson, as charged in count five, but guilty of the lesser-included offense of third-degree arson; guilty of hindering his own apprehension or prosecution, as charged in count six; and guilty of contempt, as charged in count seven.
At sentencing, the trial court merged counts one and five with count three, and sentenced defendant to life imprisonment on count three, with a thirty-year period of parole ineligibility. The court imposed a consecutive term of ten years on count two, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also imposed concurrent terms of four years on count six and nine months on count seven.
State v. Amodio, No. A-4350-10T1, 2012 WL 5381769, at *1, 2 (N.J. Super. Ct. App. Div. Nov. 5, 2012).
Petitioner appealed his conviction. The state appellate court affirmed in part, reversed in part, and remanded for re-sentencing on count two.2 State v. Amodio, 390 N.J. Super. 313, 915 A.2d 569 (App. Div. 2007). The Supreme Court of New Jersey denied Petitioner's petition for certification. State v. Amodio, 192 N.J. 477, 932 A.2d 28 (2007).
Petitioner then filed his first petition for Post-Conviction Relief ("PCR"), which was denied on November 12, 2010. Petitioner appealed the PCR court's decision and, on November 5, 2012, the state appellate court affirmed the PCR court's denial of Petitioner's claims. State v. Amodio, No. A-4350-10T1, 2012 WL 5381769, at *6 (N.J. Super. Ct. App. Div. Nov. 5, 2012). The New Jersey Supreme Court denied his petition for certification. State v. Amodio, 213 N.J. 538, 65 A.3d 263 (2013).
Shortly thereafter, on or about July 18, 2013, Petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1). On September 30, 2013, this case was administratively terminated due to Petitioner's failure to satisfy the filing fee requirement. (ECF No. 3). In the Court's September 30, 2013 Opinion, the Court noted that Petitioner had not filed a true petition for writ of habeas corpus, but had only filed a request for a stay. The Court denied Petitioner'srequest for a stay, and informed Petitioner that if he sought to reopen this matter, he would be required to submit a petition for writ of habeas corpus in order to invoke the jurisdiction of this Court. (ECF No. 2). To the extent he sought a stay, the Court informed Petitioner that he had to explain how a stay was appropriate under Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528, 161 L. Ed. 2d 440 (2005).
On or about November 25, 2013, Petitioner filed an Amended Petition and paid the required filing fee. (ECF No. 4). The case was reopened for review by a judicial officer. (ECF No. 5). In addition to submitting an Amended Petition, Petitioner again requested a stay of these proceedings so that he could return to state court and exhaust the final claim in his Petition, designated as Ground Thirteen.
On February 11, 2016, the Court denied Petitioner's request for a stay. (ECF No. 7). The Court further ordered Petitioner to inform the court within 45 days as to whether he wished to withdraw his unexhausted claim and proceed on the exhausted claim or, in the alternative, to have the Petition dismissed without prejudice as unexhausted. (Id.). On or about March 9, 2016, Petitioner informed the Court that he wished to withdraw his unexhausted claim and proceed on the exhausted claims. (ECF No. 8).
On April 15 2016, the Court entered an Order to Answer the Petition. (ECF No. 9). The Court also dismissed Ground Seven of the Petition with prejudice because that Ground alleged that the state court erred in the application of state law, which is a claim not cognizable on federal habeas review. (Id.).
In his Petition, Petitioner asserts twelve grounds for relief. Specifically, he alleges:
(1) The items seized after the Chief Fire Marshall found two bodies in the burned House should have been suppressed because the state did not obtain a search warrant, and no exigent circumstances were present;
(2) The defendant['s] convictions are against the weight of the evidence and should be set aside because the jury failed to recognize evidence pointing to reasonable doubt;
(3) A trial court must, under the new rule of law weigh the aggravating and mitigating factors unencumbered by the presumptive statutory term when sentencing the defendant;
(4) Defendant was denied effective assistance of trial counsel because the court failed to properly charge the jury as to its duty to continue to deliberate andfailed to correct the jury's impression that they had to reach a verdict;
(5) Under the pre-amendment statue, NERA does not apply to a homicide which would otherwise be murder but for its commission in the heat of passion;
(6) The trial court erred in imposing a consecutive term where it determined the crimes [were] remote and independent from on[e] another;
(7) Defendant['s] Post Conviction Relief Petition should not be procedurally barred;3
(8) Defendant was denied the effective assistance of the trial and/ or appellate coun
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