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Antwone Fosque v. Donald Mee

March 4, 2011


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




Petitioner, Antwone Fosque, a prisoner at the East Jersey State Prison, Rahway, New Jersey, submitted this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondents are Administrator Donald Mee, and the Attorney General of New Jersey.

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


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") 7.

These charges arose out of a robbery at a Burger King on Route 18 in East Brunswick. Defendant was a former employee of the Burger King and friendly with a number of employees who were on duty the night of the robbery, including the manager, Jamila Colbert, and Rashanda Williams. Williams was a close friend of defendant and his girlfriend, co-defendant Rosangela Tiru. Indeed, Williams credited defendant with getting her the job at Burger King.

The robbery occurred as the restaurant was closing. Colbert was in the manager's office counting the day's receipts, and another employee, Terry Bistoquet, was putting garbage in the dumpster behind the restaurant. When Bistoquet attempted to return to the building, a man with a ski mask pointed a gun at his head and demanded that Bistoquet let him into the restaurant. When the two were inside, the masked man, later identified as defendant, herded all of the employees into the walk-in refrigerator, took the money from the manager's office and fled.

Both Colbert and Bistoquet thought that the robber looked and sounded like defendant and identified him to the police. After the robbery, it was learned that defendant had called Williams at work and asked her to leave the drive-thru window open for him to rob the restaurant. She refused. Defendant later offered Williams $200 or $300 to keep quiet about the robbery, but Williams rejected the offer. Defendant's girlfriend, Tiru, called Williams after the robbery and said, "Girl, we did it."

Defendant and Tiru were tried as co-defendants and Tiru was acquitted on all charges. At trial, Colbert and Bistoquet identified defendant from his voice and build.

See Ra 7 at pp. 2-3.

B. Procedural Background

A Middlesex County Grand Jury returned an indictment charging Petitioner with first degree conspiracy to commit armed robbery, first degree armed robbery, third degree possession of a handgun without a permit, second degree possession of a handgun for an unlawful purpose, and third degree tampering with a witness, all in violation of New Jersey state law.

Trial was held in Middlesex County from February 11, 2003 to February 20, 2003. Petitioner, and his girlfriend, co-defendant Tiru, were tried together. Tiru was acquitted of all charges. Petitioner was convicted of armed robbery and witness tampering, and acquitted of all gun possession and conspiracy charges.

On May 5, 2003, Petitioner was sentenced to imprisonment for 16 years on the armed robbery charge, plus a 4-year, consecutive imprisonment term for witness tampering. Petitioner's sentence was pursuant to the No Early Release Act ("NERA"), which requires Petitioner to serve 85% of his term without the possibility of parole.

Petitioner appealed. On January 31, 2005, the Appellate Division affirmed the conviction and sentence. Petitioner filed a petition for certification with the New Jersey Supreme Court, which was denied on July 18, 2005.

On September 22, 2005, Petitioner filed a pro se motion for post-conviction relief (PCR) in the sentencing court. The motion was denied on June 2, 2006. The Appellate Division affirmed the denial on June 4, 2009. Petitioner's petition for certification to the New Jersey Supreme Court was denied on October 8, 2009.

Petitioner filed this habeas petition on December 15, 2009, along with a Memorandum of Law in support of the petition. Petitioner was advised of his rights pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000). Respondents filed an answer to the petition and the available state court record on or about April 12, 2010. Petitioner filed a reply to the answer on June 9, 2010.

C. Petitioner's Claims

Petitioner cites two grounds for relief in his habeas petition: (1) that the verdict was against the weight of the evidence and was inconsistent; and (2) ineffective ...

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