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Darrell Foye v. Ronald H. Cathel

February 10, 2011


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


Petitioner Darrell Foye, a convicted state prisoner, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a New Jersey state court judgment of conviction that was entered against him on or about April 27, 2001. For the reasons stated herein, the Petition will be denied for lack of substantive merit.


A. Factual Background

The facts of this case were recounted below and this Court, affording the state court's factual determinations the appropriate deference, see 28 U.S.C. 2254(e)(1), will simply reproduce the recitation as set forth in the unpublished opinion of the Superior Court of New Jersey, Appellate Division, decided on July 11, 2003, with respect to petitioner's direct appeal from his judgment of conviction:

In essence, the evidence showed that defendant organized the endeavor to rob and at least seriously injure the victim in light of his relationship with defendant's former girlfriend. Thus, he is responsible for the crimes as an accomplice or conspirator.*fn1 He asked co-defendant Birt to "beat down" the victim, gave Birt (who announced an intention to "kill" the victim) the firearm with which the victim was shot, and took a shotgun in the car to the scene. He was taking Birt and his other accomplice to the victim's house when, upon seeing the victim, he directed Birt and Adams to exit the car and "go down with [their] business." Moreover, his conduct after the shooting in disposing of the murder weapon and giving "get away" money to Birt supports the finding of culpability. (Re 32,*fn2 July 11, 2003 Appellate Division Opinion at pp. 4-5).

B. Procedural History

On March 22, 2000, petitioner Darrell Foye ("Foye") and co- defendants, Raymond Birt, William Vernon and Stephen Adams, were indicted under Monmouth County Indictment No. 00-03-433 on thirteen counts as follows: (Count 1) conspiracy to commit armed robbery and aggravated assault; (Count 2) armed robbery; (Count 3) murder; (Count 4) felony murder; (Count 5) possession of a weapon for an unlawful purpose; (Count 6) unlawful possession of a weapon; (Count 7) acquiring a handgun without a permit to purchase; (Counts 8 and 9) hindering apprehension of oneself and another (as to Foye only); (Count 10) tampering with physical evidence (as to Foye only); and (Counts 11 (Foye), 12 (Birt) and 13 (Vernon)) certain person not to have a weapon, in violation of N.J.S.A. 2C:39-7b. (Re 2, Indictment # 00-03-433). Before Foye's trial, co-defendants Vernon and Adams entered pleas of guilty on June 5, 2000, and thereafter testified against Foye and co-defendant Birt at their trial.

Before trial, Foye moved for pretrial rulings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966) and Bruton v. United States, 391 U.S. 123 (1968). (Re 6, Petitioner's brief dated October 23, 2000). A hearing was conducted on January 3, 2001 (Re 8, January 3, 2001 Pre-trial hearing transcript). On January 8, 2001, the trial court entered an Order denying Foye's motion to exclude his statements, granting admission of a redacted letter by co-defendant Vernon, and denying Foye's motion to suppress out-of-court identifications. (Re 9, January 8, 2001 Order).

A joint trial of Foye and Birt was held before a jury, with the Honorable Paul F. Chaiet, J.S.C., presiding, on January 9, 10, 11, 16, 17, 18, 22, 23, 24 and 25, 2001. At the conclusion of evidence at trial, the State withdrew Count 7 of the indictment (acquiring a handgun without a permit to purchase). (Re 17, January 23, 2001 trial transcript at 15:10-16). Thereafter, on January 25, 2001, the jury returned a verdict of guilty against Foye and Birt on all of the remaining counts against them. (Re 19, January 25, 2001 trial transcript at 49:14-82:17).

Before sentencing, Foye filed a motion for a new trial. The State also moved for an extended term and for sentencing pursuant to the No Early Release Act ("NERA"). (Re 20, 21 and 22). On April 27, 2001, the trial court heard argument on these several motions, and issued an Order denying Foye's motion for a new trial, denying the State's motion for an extended term, but granting the State's motion for sentencing under NERA. (Re 25-28). Foye was sentenced on April 27, 2001, to an aggregate term of life imprisonment plus 10 years with a 35-year period of parole ineligibility. (Re 25, April 27, 2001 Sentencing Transcript at 39:15-47:4).

Foye filed a direct appeal from his conviction and sentence before the Superior Court of New Jersey, Appellate Division. In an unpublished decision, the Appellate Division affirmed the conviction and sentence on July 11, 2003. (Re 32). The Supreme Court of New Jersey denied certification by Order dated December 11, 2003. State v. Foye, 178 N.J. 376 (2003).

Foye filed a petition for post-conviction relief ("PCR") in state court on December 21, 2004. (Re 33). A hearing was held on November 18, 2005. (Re 37, November 18, 2005 PCR transcript). Judge Chaiet denied the PCR petition by Order dated November 18, 2005. (Re 38). Foye appealed from the denial of his PCR petition. In an unpublished decision, dated February 19, 2008, the Appellate Division affirmed denial of post-conviction relief. (Re 42). The Supreme Court of New Jersey denied certification on May 6, 2008. (Re 44).

Foye initially filed a petition for habeas relief under 28 U.S.C. 2254, on or about December 15, 2004. He filed a motion for a stay of proceedings while he returned to state court to exhaust state court remedies. (Docket entry nos. 1, 2). A stay was granted by Opinion and Order issued by the Honorable Stanley

R. Chesler, U.S.D.J., on August 16, 2005. (Docket entry nos. 3, 4). On or about June 9, 2008, Foye filed a motion seeking an extension of time to stay his habeas case while he pursued further remedies in state court. (Docket entry no. 7). This Court denied Foye's request by Opinion and Order issued on July 22, 2008. The matter was re-opened,*fn3 and Foye was directed to file his one, all-inclusive habeas petition within thirty days. (Docket entry nos. 8, 9). Foye, through counsel, filed his habeas petition on August 19, 2008. (Docket entry no. 12).

The State filed an answer to the petition, together with the relevant state court record, on February 12, 2009. (Docket entry no. 21). Foye, through counsel, filed a traverse or reply on March 13, 2009. (Docket entry no. 23). An amended document was filed by Foye, through counsel, on June 13, 2009. (Docket entry no. 27).


Foye asserts the following claims in his petition for habeas relief:

A. Ineffective assistance of trial counsel in violation of Petitioner's rights under the Sixth Amendment.

B. There was insufficient evidence at trial to support each and every element of the offenses for which Petitioner was convicted, in violation of his right to due process under the Fifth and Fourteenth Amendments.

C. Prosecutorial misconduct in violation of Petitioner's rights under the Fifth and Fourteenth Amendments.

The State essentially contends that the petition should be denied for lack of substantive merit or because it fails to raise claims of federal constitutional dimension. The State also argues that Claims A and C (paragraphs 12(a) ...

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