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Erik Re'voal v. Michelle R. Ricci

February 1, 2011

ERIK RE'VOAL, PETITIONER,
v.
MICHELLE R. RICCI, ET AL., RESPONDENTS.



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

NOT FOR PUBLICATION

OPINION

Petitioner Erik Re'Voal, a prisoner currently confined at the New Jersey State Prison, Trenton, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondents are Michelle Ricci, the Administrator of the New Jersey State Prison, and the Attorney General of New Jersey.

For the reasons stated herein, the petition must be denied.

BACKGROUND

A. Factual Background

The relevant facts are set forth in the opinion of the Superior Court of New Jersey, Appellate Division ("Appellate Division"), in Petitioner's direct appeal.*fn1 See Respondents' Appendix "Ra" 3- Ra42.

The evidence against the defendant was strong, notwithstanding some inconsistencies in the testimony of the State's witnesses. The case dealt with a shooting of Willie Green, also known as "Cream Born," during a drug sale or attempted drug transaction.[]

On the early morning of December 20, 1993, Green and Anthony Fields (also known as "KR") were selling drugs on 12th Avenue near the corner of Graham Avenue in Paterson while a mutual friend of theirs, Charneice Forbes, looked on. At about 4:00 a.m. a light blue or bluish-gray four-door Ford Escort came down Graham Avenue and made a left turn onto 12th Avenue. According to KR, the Escort's only occupant was the driver who had "[b]rown skin, kind of medium build, slender, with a not real thick but a nice little sized mustache with [a] black baseball cap and glasses." KR later described the driver's hat as being a black knit "skully cap." Forbes saw only the driver's profile, but noticed that he was wearing a black hat and that the arms of his glasses were brown or black.

The driver stopped the car in the middle of the road, held up two fingers indicating that he wanted "two base," or two ten dollar bags of crack cocaine. As Green approached the car to tell the driver to park, the driver pulled away and drove down the block. KR and Green thereupon expressed concerns that "something [was] not right about this guy." They believed he might have planned to rob Green or take the drugs without paying for them.

About forty-five seconds to one minute later the car returned to the corner of 12th and Graham Avenues. Just as the driver pulled up to the corner for a second time, a mutual friend of both Cream and KR's, known on the street as "Ridge," arrived in his car. KR asked Ridge to move his car in front of the Escort on the opposite side of the street in case the driver attempted to do "something funny." Ridge thereupon moved his car down the block in front of the Escort.

Upon his return, Forbes got a better look at the driver. She said he was "dark skinned, he had brown framed glasses on and a black hat. He was wearing like a black sweater or jacket. He had a red T-shirt on under it." Meanwhile, Green approached the Escort's driver-side window, and KR approached the car in order to back him up.

As KR approached the car, he noticed a Policemen's Benevolent Association-type sticker on the rear glass. He began to look for a police scanner or radio. KR also noticed that Green had been at the driver's window a minute to a minute and a half- a much longer time than the usual drug transaction normally took. KR then walked around the car looking both for evidence that the car might belong to the police and to make sure nothing suspicious was going on.

As KR approached the driver's side window, he saw the driver's "hands going under the seat" and pull out a black .38 caliber revolver. KR shouted "watch out he got a gun" and started to run from the scene. When he heard a shot fired, KR turned around and saw "Cream" lying in the street. He also saw that the driver was pointing the gun out the window before driving away from the scene. As the car drove away, KR saw the vehicle's license plate, "FID 54A."

KR jumped up and ran to a nearby payphone to call 911. He then ran back to Green and looked in his pockets for Cream's remaining drugs so that he would not be arrested for drug dealing upon his arrival at the hospital. Before heading down to the police station, KR gave his drugs to Charneice Forbes, so they would not be found on him.

According to Forbes, KR first approached the car and spoke with the driver. She testified that KR "punched" the driver or "reached in like he was going to hit him" and that Cream was shot by the driver as he "was walking up to the car." Forbes saw the driver "trying to move away from the punch [or fall over from a punch and then] came back up" before shooting. She did not see KR actually punch the driver.

When she heard the shot, Forbes ran, but returned to see KR standing over "Cream," and "yelling his name, crying." Forbes then ran to tell Green's mother that he had been shot. When she returned to the scene, she gave a statement to the police. She described "a gray four door car," and described the driver as wearing "a black hat," having a "dark complexion [and wearing] prescription glasses."

Around the same time, Izell Harvey arrived on the scene. He dialed 911 from a local payphone, and told the operator "someone was shot" and tried to repeat the license plate number that KR was "screaming." However, because Harvey was "in shock," he kept giving the wrong numbers, so KR took the phone and gave the police the license plate number himself.

Within a few minutes, the Paterson police arrived. Officer Louis De Old arrived on the scene just after 4:04 a.m., and obtained a description of the Escort and the driver which he reported to the dispatcher. Sergeant Paul Savastano also obtained a description of the driver from Forbes. According to Savastano, Forbes "told me that there was a black male, dark complexion, wearing a black wool hat and glasses that was operating [the Escort] who had driven by the scene." Soon after, an ambulance arrived and took Green to St. Joseph's Hospital where he was later pronounced dead.

The report on the car's license plates indicated that the vehicle belonged to Theresa Shirley of Fair Lawn. Fair Lawn Officer Michael Messina was dispatched to Shirley's residence to find out if the vehicle was there.

At about 4:40 a.m., Shirley informed Messina that she had "lent" the car to defendant and gave him defendant's Paterson address. Shirley described defendant "as approximately five nine in height, thin and wearing glasses, short hair with a beard and mustache and dark skinned." When Messina stated he needed to contact defendant about the car, Shirley told Messina that she had just spoken to him on the phone and he had told her "there's nothing wrong with the car" and it was "where he left it." Shirley called defendant and verified that he was in his apartment in Paterson. Messina returned to the patrol car and relayed the information to headquarters.[ ]

At around 5:00 a.m. Paterson police officer found the Escort in a parking lot behind defendant's apartment. Officer John Boydell noticed that the car's windows were "clear," whereas the other cars in the lot had "fog or ice" on their windows. After the car was secured, Officers Boydell, Izzo and Siedel entered defendant's apartment building.

When the officers got off the elevator on their way to defendant's apartment on the seventh floor, they saw defendant in the hall dressed in a bathrobe. He invited the officers into his apartment.

When Detective Michael McNamara arrived at the apartment, defendant was wearing glasses and was telling the officers that his contact lenses were being cleaned and he had "just put on his glasses." McNamara told defendant that he "was investigating a homicide . . . and that the plate number of [the Escort] was given . . . as being at the scene, and . . . asked him if he was home all night." Defendant stated that he had used the car, but had been "with his girl friend, " next door neighbor Yvonne Pettway. McNamara asked defendant to accompany him to the station to answer some questions. Defendant said "he [d]idn't mind" doing so, and was taken to Paterson police headquarters. The Escort was towed to headquarters and placed in a lot behind the building.

At about 6:13 a.m., while the four witnesses were waiting to give their statements in the station's roll call room, defendant was escorted into the building. Upon seeing defendant, Forbes shouted "over and over," "[t]hat's that m .... f..... right there" and "[t]hat's him right there." In Forbes' words:

Well, we heard the door like open and close and I turned around and I seen the man who shot "Cream Born" there and I was like, "That's the m.... f..... right there."

At trial, when Forbes was further questioned about the incident, the following was developed:

Q: When you heard the door open, you turned and looked at the door?

A: Yes.

Q. Did anybody tell you to look at the door?

A: No. The officer told us not to look at the door, but I'm nosy.

Q: When you looked over at the door, who did you see?

A: I saw the shooter, and I kept saying over and over and over again, "That's him right there."

Q: Did anybody tell you to identify that person? A: No.

Q: Did anybody tell you who that ...


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