Buccheri v. Nogan, Civil Action No. 17-13373 (JMV)

• Decision Date: 06 August 2019
• Docket Number: Civil Action No. 17-13373 (JMV)
• Parties: LEONARDO BUCCHERI, Petitioner, v. PATRICK NOGAN, et al., Respondents.
• Court: U.S. District Court — District of New Jersey

LEONARDO BUCCHERI, Petitioner, v. PATRICK NOGAN, et al., Respondents.

Civil Action No. 17-13373 (JMV)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

August 6, 2019

HON. JOHN M. VAZQUEZ

OPINION

VAZQUEZ, District Judge:

I. INTRODUCTION

The petitioner in this matter, Leonardo Buccheri, has submitted a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (DE 1.) For the reasons stated herein, Buccheri's petition is denied and no certificate of appealability shall issue. Buccheri's related motion for an evidentiary hearing (at DE 16) is also denied.

II. BACKGROUND

On August 10, 2008, Buccheri's fiancée, Soveira Rojas ("Sophie"), died from a gunshot wound to her chest that she suffered while she and Buccheri were alone in their bedroom. State v. Buccheri, No. A-1086-11T4, 2013 WL 844362, at *11 (N.J. Super. Ct. App. Div. Mar. 8, 2013). Buccheri's position throughout has been that Sophie accidentally shot herself. On November 17, 2009, he was nonetheless formally charged with, among other crimes, "purposefully or knowingly [causing] the death of [Sophie,]" i.e., murder. (See Nov. 17, 2009 Indictment, DE 13-2.)

The Honorable Joseph V. Isabella, J.S.C., presided over Buccheri's subsequent six-day jury trial in New Jersey Superior Court. On August 13, 2010, the jury acquitted Buccheri of the most serious charge he faced, i.e., first-degree murder.¹ (See Aug. 13, 2010 Trial Tr. 3, DE 13-37). That same jury, however, convicted him of the lesser-included offense of second-degree passion/provocation manslaughter, as well as second-degree possession of a firearm for an unlawful purpose and fourth-degree possession of a defaced firearm. Buccheri, 2013 WL 844362, at *1. Then, "[a]fter the verdict was returned, [Buccheri] pled guilty to second-degree certain persons not to have weapons[.]" Id. at *1.

The Appellate Division, on direct appeal, summarized the evidence underlying Buccheri's convictions as follows:²

According to the State's proofs, on August 10, 2008, [Buccheri, Sophie], and their children attended a summertime reunion barbeque for [Buccheri's] motorcycle club. Most people were eating, drinking and having a good time. Toward the end of the day, however, [Buccheri] and another man got into a heated verbal argument. Sophie, who appeared "intoxicated" to Harriet Collazo, the girlfriend of another club member, intervened and tackled [Buccheri] to the ground to prevent him from hitting the other man.

The picnic was winding down at that point, and everyone was packing up. Another couple, Vanessa and Vic, drove [Buccheri's] seven-year-old son and three-year-old daughter, and Sophie's nine-year-old son, back to [Buccheri's] Jersey City home. As [Buccheri] and Sophie were leaving the parking lot, he drove over a concrete parking barrier and got stuck. As several people assisted in lifting the car off the barrier, Sophie got into the driver's seat to prevent [Buccheri], who she believed was drunk, from driving, and locked the door. After arguing with Sophie about who would drive,[Buccheri] eventually got into the passenger's seat and Sophie drove them out of the park.

Collazo and her boyfriend also headed to [Buccheri's] house and arrived about twenty minutes before [Buccheri]. Vanessa, Vic, and the children were already there. When [Buccheri] and Sophie arrived, [Buccheri] was driving. As [Buccheri] exited the car, he looked angry and had "a whole bunch of scars, scratches in his face and head," which he did not have when he got into the car at the park. Sophie's "face was blotchy" as if she had "been smacked"; her ear was red; her chest was scratched; and she was crying and holding her thumb, which was swollen. A portion of her hair had also been ripped out. Collazo consoled her while [Buccheri] brought items from the barbeque into the house. When [Buccheri] heard Sophie complaining about her hand, he said, "That ain't fucking nothing. I'm sorry. But that ain't fucking nothing, I have had worse, it will heal."

Shortly thereafter, Vanessa and Vic left, and about thirty minutes later, Collazo and her boyfriend also departed, leaving only [Buccheri], Sophie, and the three children at the house. On their return to the Bronx, Collazo's boyfriend got a phone call informing him that Sophie had died.

[Buccheri] called 911 at 7:43 p.m. and told the dispatcher, "I have an emergency, I have a gunshot wound at 312 Webster Avenue" and that "it was an accident." He reported that Sophie "shot herself by accident, she grabbed the firearm . . . she put it to herself, she pulled the trigger" and that "she's bleeding profusely, she's throwing up blood from her mouth." [Buccheri] stayed on the line as the 911 dispatcher told him to continue to monitor her condition and put a clean cloth or towel over her wound. [Buccheri] said that Sophie "was arguing, she was saying that she didn't wanna live anymore but we were at a barbeque and she was drinking a little bit." A few minutes into the call, [Buccheri] reported that Sophie had stopped breathing and that he didn't feel a pulse. He also told the dispatcher, "I don't know where the gun came from. I just empt[ied] the clip out I'm dumping all the bullets." According to the dispatcher, [Buccheri] sounded hysterical and his voice was so high-pitched that she thought he was a woman.

Jersey City police officer Kevin O'Connell was the first to respond at 7:49 p.m. When [Buccheri] eventually answered the door, he was talking on his cell phone—evidently to the 911 dispatcher—and was clearly upset and had blood on his hands, face, and clothing. Shortly thereafter, other police officers and an ambulance arrived, followedby personnel from the Prosecutor's Office. [Buccheri] directed them to the upstairs middle bedroom, where O'Connell and another officer found Sophie lying in a pool of blood, not breathing, on the bedroom floor very close to the doorway. They also observed a gun and shell casing on the floor. The paramedics pronounced Sophie dead at 8:02 p.m.

Thereafter, two officers brought [Buccheri] outside and sat him in a police car with the door left open. Without being questioned, [Buccheri] started talking about the incident to Jersey City Police Detective Keith Armstrong. [Buccheri] said that he had gone down to the car to look for Sophie's ring and when he returned with it, Sophie was on the bedroom floor crying. [Buccheri] was standing in the bedroom doorway and "tried to get to [Sophie,]" but she was on the floor crying and holding the gun, stating something to the effect of "this is what [I] want."

Although [Buccheri] was not under arrest, Detective Armstrong read him his Miranda rights. [Buccheri] continued to talk about the incident, stating that Sophie had stood at the foot of the bed near the closet and held the gun in her right hand with her left hand over the right, and that she had the gun to her chest and cocked it back and that it must have gone off by accident. After the gun had gone off, he grabbed Sophie and held her and tried to stop the bleeding, and then called 911.

Detective Armstrong provided [Buccheri] with a written Miranda rights and waiver form, which he signed at 8:38 p.m. Again, without being questioned, [Buccheri] further explained that he had met Sophie through the Myspace social networking website in January 2010, and that she had been living with him for about a month. He kept the gun, a black .45-caliber handgun, which he had gotten from a former tenant who owed him money, in his top drawer loaded with eight bullets. According to Armstrong, [Buccheri] did not appear drunk or upset, but was "rambling on, stating things over and over."

Crime Scene Investigator Detective Michael Crowe arrived at the scene at around 8:58 p.m., took photographs and collected evidence. He recovered the .45-caliber handgun, which had blood stains on it, and an eight-round-capacity magazine, removed from the handgun, containing three live rounds, three blood-stained live rounds on the floor, one spent shell casing, and one spent bullet. These items were found between Sophie's body near the doorway and the bed, and not at the foot of the bed. Broken jewelry was also on the floor. No suicide note was found.

New Jersey State Police Investigator James Joyce, a firearms expert, examined the handgun, the magazine, the discharged shell and bullet, and the seven unfired cartridges collected from the scene. Joyce found that the gun was in proper working condition, and explained that it would take five-and-one-half pounds of pressure to fire it in single action (with the hammer manually cocked back), and ten pounds of pressure in double action (without the hammer cocked back). He also observed that the gun's serial number had been removed.

Joyce concluded that the bullet recovered from the scene had been discharged from the gun. Of the seven live rounds recovered, one had a small indentation suggesting that it may have been struck by the firing pin, but not with enough force to discharge the cartridge from the gun. Such a small indentation can also be made when a cartridge is cycled in the chamber of the gun. Joyce also conducted a test firing, known as a pattern test, to determine how far the front of the barrel of the gun was from its trigger when it was fired. With the same type of ammunition found at the scene, Joyce fired rounds into a cloth at three-inch intervals, beginning at "contact," where the muzzle actually touches the surface, and ending at 36 inches, at which very few particles are left around the surface. The results of that testing were then photographed and submitted to the medical examiner's office.

On August 11, 2008, Dr. Jennifer Amolat performed the autopsy of Sophie. Regional Medical Examiner/Assistant State Medical Examiner Dr. Lyla E. Perez, who was in charge when the autopsy was conducted, and who testified at trial, also examined the body and reviewed Dr. Amolat's autopsy report, which included photographs taken during the examination. Both Dr. Amolat and

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