Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Pierre Forbes v. Michelle Ricci

January 3, 2011

PIERRE FORBES, PETITIONER,
v.
MICHELLE RICCI, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Wigenton, District Judge

NOT FOR PUBLICATION

OPINION

Petitioner Pierre Forbes ("Petitioner") filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254(a) challenging a judgment of conviction in the Superior Court of New Jersey. The Court provided Petitioner with Mason notice and directed Respondents to file their answer to the Petition. Respondents duly complied. Petitioner elected not to traverse. For the reasons expressed below, the Court will dismiss the Petition and will decline to issue a certificate of appealability. See 28 U.S.C. §§ 2253(c), 2254(a), (b), (c).

I. BACKGROUND

The underlying events of Petitioner's conviction were defined by the Appellate Division as follows:

Following a joint trial by jury, defendants John Martinez and [Petitioner] were convicted of aggravated manslaughter, a lesser-included offense of murder with which they were charged; and conspiracy to commit aggravated assault. For sentencing purposes, the latter conviction was merged into the former. Martinez was sentenced to a twenty-five year term with an 85% parole disqualifier pursuant to the No Early Release Act (NERA). [Petitioner] was sentenced to a thirty- year term with an 85% parole disqualifier pursuant to NERA. .

The criminal charges arose from the death of forty-six year old Salvatore Salierno on October 25, 1998. At 7:30 p.m. that evening, he was found, unconscious and bleeding, lying face down next to his car in a parking lot adjacent to the apartment building in Parsippany where he lived. He was taken to the hospital and pronounced dead. The autopsy revealed that Salierno had sustained a two-inch laceration in the back of the head, abrasions and bruising to the right side of the neck, internal bleeding in the lumbar area, and a broken nose. The cause of death was bleeding as a result of blunt trauma to the head, administered by an elongated object. According to the State's proofs, Salierno had lived in the same apartment building as Ivette and . . . Martinez who had a troubled marriage. In October 1997, Ivette met Salierno, who was handicapped and walked with a cane, and in March 1998, the two became friends. Martinez became jealous of that relationship. In May 1998, he told his wife that Salierno was interfering in their marriage and that he should stay out of their business. Later that summer, a neighbor heard Martinez yelling at Salierno at close range to "stay the 'F' away from my wife," and on another occasion that he had "friends" who could "take care" of [Salierno]. On August 22, 1998, Martinez accused Ivette of having sex with Salierno after he saw her wearing Salierno's shirt. That same day, Ivette moved out of their apartment, and in September moved in with Salierno. The tension between Martinez and Salierno eventually came to the attention of local police. On August 22, 1998, the same day Ivette moved out of her apartment, Parsippany police responded to a diner, where Officer Joseph Chmura found Salierno outside complaining that Martinez, who was inside the diner with his daughter, had been making harassing calls to his residence. Martinez denied this and told Officer Chmura that his wife was having an affair with Salierno and that he had an active restraining order against Ivette. On the next day, August 23, 1998, Martinez gave a written statement to Parsippany police that "Sal Salierno has, for the past three months that I know about, has been having an affair with my wife in the presence of my daughter." Apparently, Salierno and Martinez filed complaints against each other in Parsippany Municipal Court. The situation did not abate. Between September 18 and 20, 1998, eleven phone calls were made from Martinez's home to Salierno's. On October 6, 1998, Martinez called Salierno's apartment several times complaining that Ivette and Salierno had taken a jeep automobile that contained equipment he needed for work and that had been awarded to him under a restraining order. And on October 21, 1998, Martinez filed a complaint with the Parsippany Police Department accusing Salierno of taking "aggressive action" when Martinez came to pick up the jeep. Earlier, in late August 1998, Martinez had enlisted the aid of Richard Forbes -- a long-time acquaintance who had served six years in federal prison and was living in Queens, New York -- to persuade Salierno to stay away from Ivette. Richard obliged and, before eventually speaking to him, left messages on Salierno's answering machine, to the effect: "You leave my fuckin [sic] people alone or I'm comin [sic] on you. You know who the fuck I'm talkin [sic] about. You got one more time to fuck with em and I'm gonna kill ya." Apparently convinced this approach was not having the desired effect, at the end of August Martinez asked Richard to recruit some people to beat up Salierno. In return, Richard was promised a computer that he could use in a counterfeiting scheme he was concocting with Martinez. Three weeks later, Martinez gave Richard a Polaroid camera and a map with Salierno's address on it, and told him that he wanted Salierno beaten up and his legs broken. Richard in turn recruited his brother, [who was the Petitioner in this action], and an acquaintance, Jeremiah Farmer, who both agreed to do it. Farmer had been living in the basement of the Forbes' home from where he and Richard were selling drugs. Richard explained to both [Petitioner] and Farmer that Martinez's wife had been having an affair and Martinez would pay them to beat up her boyfriend, although a specific sum was never discussed. Richard gave them $50 bus fare to Parsippany and a camera, and made them redraw the map, retaining the original himself. Richard described the target Salierno as an Italian man named "Sal," in his mid-forties who walked with a cane, lived on Baldwin Road in Parsippany, and drove a Cadillac. Farmers' and [Petitioner's] first two attempts proved unsuccessful, although on the second occasion, they saw Salierno before he got into his car and drove off. When Farmer and [Petitioner] reported back that the attack had not yet taken place, Richard insisted that it be done before October 27, the scheduled date for a municipal court hearing on the cross complaints of Martinez and Salierno. Consequently, on October 25, 1998, [Petitioner] asked Gerald Gloster, a friend of the Forbes' family, for a ride to Parsippany to "catch up with a person" and "take care of business." Gloster agreed. During the ride, [Petitioner] and Farmer mentioned "kicking somebody's ass." After they arrived at the destination, the two sat in the parking lot for about twenty to thirty minutes until a Cadillac pulled up and Farmer said "that's him." [Petitioner] and Farmer exited the van. [Petitioner] approached Salierno, requesting the time and a cigarette. [Petitioner] then began repeatedly beating Salierno with both a metal pipe and his hands. Although Gloster, who remained in the van, did not see the weapon, Farmer described it as an eight-to-ten pound pipe. Once Salierno had fallen to the ground, unconscious and "in a deep snore," Farmer kicked him and took his wallet, both to prove the assault had occurred and to make it look like a robbery. Farmer asked [Petitioner] why he had killed him, to which [Petitioner] replied, "that's what I wanted to do." When the pair arrived back in Queens, they reported to Richard that [Petitioner] had beaten Salierno with a pipe and after Salierno was "snoring," Farmer joined in and "stomped" him. They gave Richard the wallet and a disposable camera and showed him the metal pipe used to beat Salierno. Richard at first put the camera and wallet in his dresser drawer, but when he later learned that Salierno had been killed, he burned the camera, the wallet and its contents. According to Farmer, Richard telephoned Martinez in front of him, and then asked Farmer to step out of the room. After the phone conversation, Richard said he told Martinez that the mission was completed and asked about payment to which Martinez replied "be patient." Meanwhile, police arrived on the crime scene at 7:53 p.m. There was blood on the ground and on the Honda that was parked next to Salierno's Cadillac. Ed Williams, a detective in the forensic crime scene unit of the Sheriff's Department, and an expert in blood spatter analysis, determined that the blood spatters found on the lower rocker panel of the Honda were medium velocity spatters, which was consistent with blunt force trauma. In his opinion, the cast-off patterns on the rocker panel were caused by an instrument with blood on it, as it was being whipped up and down. A jacket taken from the victim also had medium velocity spatters on the shoulder and neck area. Because of the prior relationship between the two, Martinez became an immediate suspect, and within hours of Salierno's death, police officers were dispatched to his apartment where they conducted a search and found a journal belonging to Martinez, detailing his feelings about the relationship between Salierno and his wife. Two passages in particular read: "I still have a lot of hate for Ivette and Sal," and "God will not let him/her get away with it." The last passage in the journal is dated October 19, 1998, six days before Salierno's death. The investigation also revealed that there was a lot of telephone activity and contact between Martinez and Richard immediately before and after Salierno's homicide. A total of twenty-seven phone calls were made from Martinez's work cellular phone to [Richard and Petitioner's] residence between August 24, 1998 and October 21, 1998. Numerous calls were made from Martinez's extension and another nearby extension at his place of employment --Manhattan Off-Track Betting on Broadway in New York City -- to [Richard and Petitioner's] residence between October 1998 and February 1999. There were also calls made to [Richard and Petitioner's] residence from Martinez's residential phone on October 12, 13, 19 and 31, 1998. Another three calls were made to [Richard and Petitioner's] residence from Martinez's new cell phone, one on November 12, and two on November 15, 1998. Richard also visited Martinez at his Manhattan office on at least three occasions -- November 6, 1998, January 14, 1999, and February 12, 1999 -- using different aliases each time. In fact, on October 26, 1998, the day after Salierno's homicide, Richard called Martinez seeking payment. The two later met at Martinez's office where Martinez told Richard that he would pay him $500 every other week. However, over the next several months, Martinez only paid him $2,000, which Richard apparently never shared with either [Petitioner] or Farmer. On one occasion, Martinez's co-worker, at Martinez's behest, delivered an envelope to an individual who matched Richard's description. Richard received his last payment of $500 in January 1999, when he also secretly recorded a conversation with Martinez. Eventually, Richard grew angry and upset over Martinez's failure to make good on his promises to give Richard a new computer, place him in a job, and start-up their counterfeiting scheme. As a result, he blackmailed Martinez for an additional $10,000, threatening to give law enforcement authorities the tape recording he made in January implicating Martinez in the crime. Fearful somehow that Martinez might confess and believing it more advantageous for him to cooperate, Richard placed an anonymous call to the Parsippany police on January 19, 1999, saying he had evidence concerning the "Sal" murder and wanted to speak with Detective Donna D'Aguino. He placed a second anonymous call on February 3, 1999, telling Officer Russell Arienta that he had a confession to the Salierno homicide on tape, and asked about a reward. On February 24, 1999, once again Richard called anonymously reporting that he had a hand-drawn map given to him by Martinez and that Martinez had asked him to beat up Salierno; that he had Martinez on tape and he himself had nothing to do with the homicide. Richard agreed to meet with Officer Arienta the next day in front of the Off-Track Betting office. The calls were traced to Richard's home in Queens, and Richard admitted to making the calls. On February 25, 1999, the day Richard was supposed to meet Parsippany police at Off-Track Betting, the police instead intercepted him coming out of his home. Richard was not arrested, and gave a statement implicating Martinez and Farmer, but not [Petitioner, who was Richard's] brother, and minimizing his own role. He also agreed to wear a wire to record Martinez. He wore the wire on March 2, 1999, and went to see Martinez at his Off-Track Betting office. During the conversation, the two discussed the map that Martinez supposedly drew of the route to Salierno's home in Parsippany. [Richard] said Farmer had the map and wanted to be paid, to which Martinez replied that he would help Richard as his friend with his lawyer's fees. Martinez was arrested the next day, March 3, 1999. Farmer was arrested in North Carolina, after he turned himself in upon hearing that he was being sought. He had gone there in January 1999 with Richard, who had paid for his bus ticket, and who had let him listen to the tape he made of his conversation with Martinez. Farmer gave a statement implicating himself, Gloster and [Petitioner] and said that Richard was responsible for organizing the attack on Salierno. This was the first time the police learned of [Petitioner's] involvement in the crime. [Petitioner] was arrested on March 9, 1999. Farmer pleaded guilty to reckless manslaughter, conspiracy to commit robbery and conspiracy to commit aggravated assault. He cooperated with police and testified at the trial of [Martinez and Petitioner] with the expectation that the prosecutor would recommend a more lenient sentence for him. Gloster was also charged with murder, but pled guilty to manslaughter and conspiracy to commit aggravated assault. He also cooperated in the investigation and testified against [Petitioner and Martinez]. As a result of [Richard's] cooperation, Richard was never charged with any offenses arising from this incident. [In fact, Richard had] a history of cooperating with law enforcement authorities in exchange for lenity in sentencing for his criminal activity. When he was arrested on federal drug and weapons charges in the early 1990's, he became a cooperating witness. . . . [B]ased on his cooperation in that case, Richard's sentence was reduced from 380 months to 84 months, and North Carolina state charges were also dismissed as part of the deal. On his release in October 1997, he was subject to five years probation. Richard was also arrested in New York in January 1999 and charged with armed robbery and sale of a controlled dangerous substance. Based on his cooperation in an ongoing investigation, he was permitted to plead guilty to coercion and sale of a criminal substance. He was facing fifty years in prison, but believed he would be sentenced to concurrent sentences of four-and-one-half to nine years. In fact, Richard was incarcerated at Riker's Island and had pending New York charges against him for yet another crime at the time he testified in [Martinez and Petitioner's] matter. [Petitioner's] defense theory was that Richard and his associates, in exchange for significant reductions in sentences and in Richard's case, no charges at all, were framing Richard's brother [that is, Petitioner] for their own wrongdoing. To this end, the defense presented Vanyce Forbes [seemingly, Richard and Petitioner's sister], who testified that she had a bad relationship with her . . . Richard, that she had found a map in Richard's room labeled "Parsippany" with instructions for public transportation, but it had disappeared; and that [Petitioner], who Farmer said struck Salierno with a metal pipe in his right hand, [was] left-handed. Evidently crediting the State's proofs, the jury convicted both [Petitioner and] Martinez . . . of the lesser-included offense of aggravated manslaughter and conspiracy to commit aggravated assault.

State v. Martinez and Forbes, docketed in this matter as Docket Entry No. 6-3, at 30-40 (N.J. Super. Ct. App. Div. May 27, 2003).

II. PETITIONER'S CHALLENGES

Petitioner's five challenges at bar read as follows:

(1) Ground One: the trial court denied petitioner of his Constitutional right to a fair trial under the Due Process clause of the Fourteenth Amendment of the United States Constitution when it granted the State's motion to consolidate the trial of [Petitioner] with . . . Martinez . . . .

Docket Entry No. 1-1, at 3.

In support of that assertion, Petitioner contends that the bulk of evidentiary matter presented during the trial related to Martinez, and that the sheer volume of such evidence was such that the jurors failed to grasp what Petitioner qualifies as "lack of evidence" against him. See id. at 3-4.

(2) Ground Two: the trial court's limitation of the testimony of Vanyce Forbes and cross-examination of Richard . . . denied [Petitioner] of his Sixth Amendment constitutional right to offer any evidence that tended to refute his guilt or bolster his claim of innocence . . . .

Id. at 4.

In support of that claim, Petitioner asserts that he was unable to convey to the jurors Petitioner's position that his brother Richard: (a) was a career criminal who habitually cooperated with law enforcement authorities in order to obtain lenient treatment; (b) was seeking to "frame" Petitioner in exchange for not being charged with a crime; and (c) had a motif to kill Salierno because Richard, Petitioner guesses, must have been upset with the emotions that Salierno and Ivette's affair was causing Martinez, because -- Petitioner guesses -- Richard must have seen this emotions as a destruction to Richard's hopes to have a "counterfeiting" business with Martinez. See id. at 4-6.

(3) Ground Three: the trial court denied [Petitioner] his constitutional right to a fair trial in permitting unnecessary medical testimony by the medical examiner regarding the severity of the undisputed injuries suffered by [Salierno] . . . .

Id. at 6.

In support of that statement, Petitioner maintains that the State presented more evidence that, in Petitioner's opinion, would be necessary to meet the charges against Petitioner, and that excessive evidence (excessive either in volume or in detail, or in both respects) resulted in undue prejudice against Petitioner. See id. at 6-9.

(4) Ground Four: the prosecutor's comments during closing arguments and it's use of Richard . . . as it's primary witness denied Petitioner of his constitutional right to due process and a fair trial

In support of this claim, Petitioner asserts that the prosecutor committed a reversable error during summation when the prosecutor: (1) compared Petitioner's attack on Salierno to the attack on Pearl Harbor; (2) referred to Petitioner's defense theory by utilizing the phrase "sloppy thinking"; and (3) stressed to the jurors that Petitioner's name was disclosed, during the investigation of Salierno's murder, only when Farmer talked to Sergeant Denamen (rather than as a result of Richard's attempt to frame Petitioner, i.e., his brother; and reflected on the Sergeant's testimony). Id. at 8-10. Petitioner also asserts that the prosecutors committed a prosecutorial misconduct by electing to use Richard as the State's primary witness. See id. at 11-12.

(5) Ground Five: trial counsel's failure to investigate and pursue and alibi defense denied Petitioner of his constitutional right to effective assistance of counsel . . . .

Id. at 13.

In support of this final contention, Petitioner asserts that his counsel was ineffective by failing to call a certain "'Bobby' Khan" as Petitioner's alibi witness. Petitioner does not clarify what this Bobby Khan would testify to; he merely alleges that: (a) Khan was the owner of a car lot where Petitioner worked as a night guard; and (b) the car lot was fenced, with the night guard typically being locked inside this fenced area. See id.

III. STANDARD OF REVIEW

Section 2254(a) of Title 28 of the United States Code gives the court jurisdiction to entertain a habeas petition challenging a state conviction or sentence only where the inmate's custody violates federal law:

[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C. § 2254(a).

"In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); 28 U.S.C. § 2254(a); accord Barry v. Bergen County Probation Dept., 128 F.3d 152, 159 (3d Cir. 1997). "Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension." Smith v. Phillips, 455 U.S. 209, 221 (1982). "If a state prisoner alleges no deprivation of a federal right, § 2254 is simply inapplicable. It is unnecessary in such a situation to inquire whether the prisoner preserved his claim before the state courts." Engle v. Isaac, 456 U.S. 107, 120 n.19 (1982). "[E]rrors of state law cannot be repackaged as federal errors simply by citing the Due Process Clause." Johnson v. Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997). Moreover, "it is well ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.