Chippero v. Attorney Gen. of N.J.

RICHARD CHIPPERO, Petitioner, v. ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, et al., Respondents.

Civil Action No. 3:15-cv-6272 (BRM)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

January 14, 2020

NOT FOR PUBLICATION

OPINION

MARTINOTTI, DISTRICT JUDGE

Before this Court is the Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254 (ECF No. 1) by pro se petitioner Richard Chippero ("Chippero") challenging his criminal convictions and sentences imposed by the State of New Jersey for purposeful or knowing murder and second-degree weapon possession for an unlawful purpose. (ECF Nos. 11; 22-5 at 15; and 16 at 15.) Chippero is presently confined at Northern State Prison in Newark, New Jersey. (ECF No. 1 at 1, 20.) Chippero seeks a writ of habeas corpus, a reversal of his convictions, and a judgment of acquittal. (Id. at 18.) The Court has considered the Petition, the Respondents' Answer (ECF No. 10), and the record of proceedings in this matter. For the reasons stated below, the Court DENIES the Petition in its entirety and DENIES a certificate of appealability.

I. BACKGROUND

A. Factual History

On July 23, 1991, Ermina Rose Tocci was murdered in her North Brunswick mobile home. She had been raped and stabbed in the neck. At the time of the homicide, Chippero resided next door to her. The police initially considered the victim's live-in boyfriend and her brother as suspects. However, two days after the murder, Kevin McMenemy, a former neighbor of Tocci, told the police that on the day of the murder, he saw a man running from the front of the victim's mobile home into the immediately-adjacent mobile home, which was Chippero's residence. The man was perspiring, but there was no blood on the man or his clothing. (ECF No. 16 at 2.) Based on the information from McMenemy, police investigators sought a search warrant for Chippero's mobile home. After the Honorable Robert P. Figarotta, J.S.C issued the warrant ("Premises Warrant"), Chippero's grandmother let detectives into his mobile home. While some detectives searched Chippero's residence, others went to find him. They located him at a nearby lake. (Id. at 3.) One detective approached Chippero and identified himself as a police officer. Chippero acknowledged he was Richard Chippero, waived his Miranda rights, and signed a rights waiver form. After a nine-hour custodial interrogation, Chippero confessed to the crime. Investigators searching his mobile home seized several items, including a pair of Chinese-made T-956 sneakers ("the Sneakers")—one of which had a sole tread pattern that could match a bloody footprint impression left on the victim's back. (Id.)

B. Procedural History

1. First Trial

In Chippero's trial for murder in 1995 (the "First Trial"), he was convicted by a death-qualified jury of capital murder, weapon possession for an unlawful purpose, aggravated sexual assault, and hindering apprehension or prosecution. (ECF Nos. 16 at 3 and 22-8 at 14); State v. Chippero, 753 A.2d 701, 707 (N.J. 2000) ("Chippero I"). Although the jury found Chippero guilty of capital murder, it did not vote to impose the death penalty. State v. Chippero, 987 A.2d 555, 560 (N.J. 2009) ("Chippero II"). The court sentenced him to two concurrent life terms with a fifty-five-year parole disqualifier. (ECF Nos. 17-3 at 1 and 22-8 at 14.) On appeal, Chippero challenged the admissibility of his confession but did not raise the validity of the Premises Warrant. (ECF No.17-3 at 1.) The Appellate Division upheld the conviction and sentence. (ECF No. 11-2 at 4, 24.) The panel accepted, as the factual predicate to the parties' arguments, that Chippero had been subjected to an illegal arrest, but found the passage of time between the arrest and confession broke the causal connection between the two and purged the confession of any taint from the illegal arrest. (ECF No. 11-2 at 11, 19-20.)

However, in a June 30, 2000 written opinion (ECF No. 11-3), the New Jersey Supreme Court reversed Chippero's conviction, concluding: (1) his confession had been impermissibly obtained through the State's arrest of him without probable cause, and (2) therefore the confession should not have been used against him at trial. Chippero I, 753 A.2d 701 (N.J. 2000) (holding defendant's confession, obtained after almost nine unbroken hours of custodial interrogation, was not sufficiently attenuated from his illegal arrest; and remanding for a new trial because: "mere passage of time ordinarily does not purge the taint of an illegal arrest," "[defendant] was arrested without probable cause, as the State acknowledged," and "there is an unbroken causal connection between defendant's arrest and confession"). The case was remanded for retrial with a direction that the confession be excluded. Chippero I, 753 A.2d at 703, 712-13.

2. Second Trial

Prior to the start of the second trial, Chippero moved again to suppress the evidence obtained from the search of his mobile home. He re-raised the arguments advanced prior to the First Trial: (1) the search warrant was not supported by sufficient evidence, adding now that his position had support from Chippero I's determination that the State lacked probable cause to arrest him at the time of the search warrant's execution; and (2) the warrant application was based on information known by the State to be false and misleading. Chippero also raised a third argument—i.e., the Premises Warrant did not authorize the seizure of the Sneakers taken from his bedroom. Although the State argued that Chippero could not resurrect his prior challenge to the PremisesWarrant, the court addressed Chippero's challenge on its merits and denied his motion to suppress. Chippero II, 987 A.2d at 560-61.

In Chippero's retrial in 2003 ("Second Trial"), the court excluded his confession but admitted evidence seized from his mobile home. Chippero II, 987 A.2d at 561; (ECF No. 16 at 5.) In all other respects, the State's proof was substantially similar to that used in the First Trial, including evidence admitted over Chippero's objection that one of the Sneakers had a sole pattern that could have caused the footprint imprint on Tocci's back. (ECF No. 16 at 5.) On March 7, 2003, the jury found Chippero guilty of purposeful or knowing murder, N.J STAT. ANN. § 2C:11-3a(1), and second-degree weapon possession for an unlawful purpose, N.J STAT. ANN § 2C:39-4d. (ECF Nos. 22-5 at 15 and 16 at 5.) The judge merged the convictions and imposed a life-term sentence with a thirty-year parole disqualifier. (ECF No. 16 at 5-6.)

3. Direct Appeal of Second Trial & Collateral Relief Proceedings

Chippero appealed from the second conviction. (ECF Nos. 12-2 and 16 at 6.) One of Chippero's direct-appeal contentions was that "the trial court erred by ruling that the search warrant was valid, compelling reversal of [Chippero's] conviction." (ECF No. 16 at 6.) Basing his argument on Chippero I's premise that the State lacked probable cause to arrest him, Chippero contended the lack of probable cause to arrest him eviscerated the legitimacy of the finding of probable cause to search his home the same day. See Chippero II, 987 A.2d at 561. The Appellate Division ordered a telephonic argument and supplemental briefing to address this contention first of the arguments raised in Chippero's direct appeal proceedings. The State argued its Chippero I concession of lack of probable cause to arrest was made only to focus the argument on the attenuation issue. The State contended its concession and the New Jersey Supreme Court's remand had to be understood in that context and did not affect the Premises Warrant's validity. (ECF No. 16 at 6.)

On August 9, 2006, the Appellate Decision issued a decision temporarily remanding to permit the development of a record on the issue of "whether the Supreme Court ruling [of lack of probable cause to arrest] affected the determination of probable cause to support a search warrant which issued before the arrest." (ECF Nos. 13-4 at 10 and 16 at 6.) Specifically, the Appellate Division asked the Law Division to develop the contention the State acknowledged an illegal arrest for purposes of the argument before the Supreme Court only. The Appellate Division also asked the judge to make findings of fact and conclusions of law on the issue of the search of Chippero's mobile home. (ECF Nos. 13-4 at 12-13 and 16 at 6-7.)

On September 28, 2006, on remand, the Law Division found "that any concession by the State that probable cause to arrest was lacking was confined to the arguments relating to the admissibility of the confession and did not affect or impact the validity of [the warrant judge's] determination that probable cause existed to search [Chippero's] [mobile home]." (ECF Nos. 15 at 5-6 and 16 at 7.) In short, the Law Division concluded that the validity of the warrant judge's probable cause determination remained unaffected by what later transpired in Chippero I.

Chippero reasserted his arguments before the Appellate Division (ECF No. 16 at 7), which held on May 13, 2008, that a finding of probable cause to issue a search warrant for Chippero's home could not be supported in light of Chippero I's statement that his arrest was without probable cause (ECF No. 16 at 7-8, 13-14). Given the Appellate Division's holding that "[t]here is no suggestion in the Supreme Court's [Chippero I] opinion or otherwise that the probable cause to arrest, which was lacking, can be distinguished from the probable cause to search" (id. at 13), the court did not reach the other issues that Chippero raised on appeal. The Appellate Division reversed Chippero's conviction and remanded for a new trial (Id. at 14-15).

The State petitioned for certification from the New Jersey Supreme Court; Chipperoopposed it. (ECF Nos. 16-2 and 16-3.) On December 4, 2008, the Court granted the petition. (ECF No. 16-4.)

On December 29, 2009, in a written opinion (Chippero II), the Supreme Court of New Jersey reversed the...