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Jamor Demby v. Karen Balicki

April 29, 2013

JAMOR DEMBY, PETITIONER,
v.
KAREN BALICKI, ET AL., RESPONDENTS.



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

OPINION

This matter is before the court pursuant to a petition for a writ of habeas corpus under 28 U.S.C. § 2254, filed by petitioner Jamor Demby, challenging his 2006 New Jersey state court conviction. For the reasons stated below, this Court will deny the habeas petition for lack of merit.

I. PROCEDURAL BACKGROUND

Petitioner, Jamor Demby ("Demby"), was indicted by a Camden County grand jury on December 13, 2004, on two counts of first degree armed robbery (Counts 1 and 4), two counts of second degree possession of a weapon for an unlawful purpose (Counts 2 and 5), two counts of third degree unlawful possession of a weapon (Counts 3 and 6), one count of fourth degree aggravated assault (Count 7), and two counts of second degree certain persons not to have weapons offense (Counts 8 and 9). (Ra1 -Indictment No. 4702-12-04).*fn1

Before trial, several motions were heard before the Honorable Samuel D. Natal, J.S.C., including a pro se motion to dismiss the grand jury indictment, which was denied (Rta1,*fn2 June 6, 2005 motion transcript); a pro se motion to act as co-counsel (Rta2, September 19, 2005 motion transcript); and a motion to proceed pro se, which was denied (Rta3, November 9, 2005 motion transcript). Demby's jury trial then commenced on March 28, 2006, with respect to Counts 1 through 7 of the indictment. Counts 8 and 9, the certain persons not to have a weapons offenses, required a bifurcated proceeding to follow in the event of a guilty verdict on Counts 1-7.

At the close of the State's case at trial, the prosecutor moved to dismiss Count 7 (fourth degree aggravated assault), counsel brought several motions, which was granted. (Rta5/5T37:13-23). Demby's counsel then moved for a judgment of acquittal, which the trial court denied. (Rta5/5T38:6-44:5).

On March 30, 2006, the jury returned a verdict of guilty, finding Demby guilty of theft as a lesser included offense on Count 1, as well as the charges set forth in Counts 4, 5 and 6. The jury acquitted Demby on Counts 2 and 3. (Rta6/6T5:18-9:19; Ra3 - March 30, 2006 verdict sheet). The jury was dismissed for a brief recess. At that time, the prosecutor moved to dismiss Count 8 in light of the jury verdict. The motion was granted. (Rta6/6T10:3-11).

The proceedings resumed with a trial on Count 9 of the indictment (the certain persons charge) on March 30, 2006. On that same date, the jury returned a guilty verdict on Count 9. (Rta6/6T40:22-41:21).

Petitioner's sentencing hearing was held on May 5, 2006. At that time, Demby moved for a new trial and the State moved to impose an extended term sentence. Both motions were denied. (Rta7/7T6:3-32:8). The court then sentenced Demby as follows: Eighteen (18) years imprisonment with an 85% parole disqualifier under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, and nine years of parole ineligibility under the Graves Act, N.J.S.A. 2C:43-6(c), on Count 4, to be followed by a consecutive prison term of eight years on Count 9, subject to a five-year parole disqualifier. Count 5 was merged into Count 4. On Count 1, six months imprisonment to run concurrent to Count 4, and on Count 6, a term of five years also to run concurrent to Count 4. (Rta7/7T32:12-20 and 41:11-48:19; Ra4 - May 5, 2006 Judgment of Conviction).

Demby filed a direct appeal from his conviction and sentence to the Superior Court of New Jersey Appellate Division. The Appellate Division affirmed the conviction and sentence on April 4, 2008. State v. Demby, No. A-6039-05T4 (App. Div. April 4, 2008). (Ra11). The New Jersey Supreme Court denied certification on June 12, 2008. (Ra14).

On July 29, 2008, Demby filed a pro se application for post-conviction relief ("PCR") before the sentencing court. (Ra29). By order dated January 5, 2009, the trial court dismissed the PCR petition without prejudice as Demby had advised the court of his desire to withdraw the petition. (Ra19).

Demby filed this federal habeas petition under 28 U.S.C. § 2254 on or about December 4, 2008. The State filed an answer with the relevant record on August 10, 2010, (Docket entry no 11), together with a motion to seal documents. (Docket entry 12). An amended document to the motion to seal also was filed on August 10, 2010. (Docket entry no. 13). This Court granted the State's motion in an Opinion and Order entered on March 22, 2011. (Docket entry nos. 16 and 17). Demby did not file a traverse or reply.

II. 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 factual recitation as set forth in the unpublished opinion of the Superior Court of New Jersey, Appellate Division, decided on April 4, 2008, with respect to petitioner's direct appeal from his judgment of conviction and sentence:

The charges result from two separate incidents, the first of which occurred on July 15, 2004. On that date, defendant entered an RXD pharmacy in Camden and demanded cigarettes. The sales clerk, Adaliz Santos, responded by saying, "[G]ive me the money first." Defendant lifted his shirt and displayed a brown handle to an object which Santos believed to be a gun, and proceeded to help himself to cigarettes from behind the sales counter.

Two days later, on July 17, 2004, defendant returned to the store and went behind the sales counter. Santos and the pharmacist, Chetal Prajapati, were in the back of the store working. Prajapati noticed defendant and said "excuse me." Defendant replied by lifting his shirt, and exposing a gun tucked into his pants. He pulled it out, put his finger on the trigger, and asked "what?" Having effectively silenced Prajapati and Santos, he put the gun back into his waistband and continued to help himself to cigarettes.

Prajapati, who had some experience with handguns, testified at trial that the gun displayed during the July 17, 2004 incident was a nine millimeter weapon, black, with maybe some brown, and approximately six inches long. She also testified that defendant had actually stolen cigarettes from the store on a prior occasion, on July 13, 2004, while in the company of an unidentified man. No charges were filed as a result of that event.

All the incidents occurred in the morning in broad daylight. Santos, as well as Monica Calderone, a store employee who witnessed the July 15 incident, identified defendant's photo from an array they were shown by police. No gun was ever recovered. At trial, Santos identified defendant as the perpetrator, as did Calderone. (Ra11, April 4, 2008 Appellate Division Opinion, at pp. 2-4).

III. STANDARD OF REVIEW

A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399 U.S. 912 (1970). Thus, because Demby is proceeding as a pro se litigant in this matter, the Court will accord his habeas petition the liberal construction intended for pro se petitioners.

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. 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 Dep't, 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). Generally, "[i]f a state prisoner alleges no deprivation of a federal right, § 2254 is simply inapplicable," Engle v. Isaac, 456 U.S. 107, 120 n. 19 (1982), and "a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus." Bradshaw v. Richey, 546 U.S. 74, 76 (2005).

In reviewing a § 2254 petition, a federal court is not permitted to address a federal constitutional claim pertinent to the facts of the case unless the petitioner asserts the claim as a ground for relief. That is, "errors 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). In addition, "it is well established that a state court's misapplication of its own law does not generally raise a constitutional claim." Smith v. Horn, 120 F.3d 400, 414 (3d Cir. 1997)(citations and internal quotation marks omitted); see also Smith v. Zimmerman, 768 F.2d 69, 71, 73 (3d Cir. 1985).

In addition to the case law, the Antiterrorism and Effective Death Penalty Act ("AEDPA") limits a federal court's authority to grant habeas relief when a state court has adjudicated petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Where a federal claim was "adjudicated on the merits" in state court proceedings, the writ must be denied unless adjudication of the claim either involved an unreasonable application of clearly established federal law, or was based on unreasonable determination of the facts in light of the evidence before the state court. See 28 U.S.C. § 2254(d).

The unreasonableness standards of § 2254(d) govern only claims that were "adjudicated on the merits in State Court proceedings." 28 U.S.C. § 2254(d). "An 'adjudication on the merits' has a well settled meaning: a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground." Rompilla v. Horn, 355 F.3d 233, 247 (3d Cir. 2004)(citations and internal quotation marks omitted), reversed on other grounds sub nom. Rompilla v. Beard, 545 U.S. 374 (2005); see also Rolan v. Vaughn, 445 F.3d 671, 678 (3d Cir. 2006). A state court may render an adjudication on the merits of a federal claim by rejecting the claim without any discussion whatsoever. See Rompilla, 355 F.3d at 247. See also Chadwick v. Janecka, 312 F.3d 597, 605-06 (3d Cir. 2002), cert. denied, 538 U.S. 1000 (2003)(citing Weeks v. Angelone, 528 U.S. 225, 237 (2000)(even a summary adjudication by the state court on the merits of a claim is entitled to § 2254(d) deference)). On the other hand, "[i]f the petitioner's legal claims were presented but not addressed by the state courts, 28 U.S.C. § 2254(d) does not apply." Rolan, 445 F.3d at 678. ...


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