United States District Court, D. New Jersey
KEVIN McNULTY, District Judge.
The petitioner, Yusef Allen, is a state prisoner proceeding prose with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Presently pending before the Court is Mr. Allen's motion for a stay and abeyance of these proceedings pursuant to Rhines v. Weber, 544 U.S. 269 (2005). For the following reasons, that motion will be denied, except that the Court will reserve decision on the Brady/Giglio claim and order the government to make a supplemental submission.
Mr. Allen is currently serving a state sentence for murder and weapons convictions. The factual background giving rise to his convictions is as follows:
On October 15, 1997 at around 6:00 a.m., Ruby Waller was approached by Lannie Silver near West Third Street and Lee Place in Plainfield. Silver was looking for a location to buy drugs and was escorted by Waller to the Mack House on Prescott Place where she regularly purchased crack-cocaine.
Upon arriving at the "Mack House, " Waller proceeded to the window at the front of the house and sat on a bench located in front of the window. The window shade was drawn. However, Waller placed an order for "four nickels" of crack-cocaine and slid $20 through the "cracked" portion of the window to a man she identified as "Ben." [FN 2] After receiving the drugs that she purchased, Waller stood and moved away from the window, allowing Silver to sit on the bench.
[FN 2] Although she could not see his face, Waller testified that she could identify the voice of Ben McNeil, her "little cousin's father."
Silver then asked Ben, "[w]hat you got, " at which point Ben "pulled the shade back and looked out the window" at Silver. After seeing Silver, Ben and defendant exited the house, and Ben yelled at Silver, "get the Fout of here, [we] don't see drugs [here], what mother-f." [FN 3, regardingjury selection, omitted] Silver tried to retreat from the porch with his hands in the air, repeating that he "just want[ed] to buy some drugs. However, defendant and Ben followed Silver, yelling at him and using profane language. According to Waller, at one point defendant stated, "[h]old up, I got something for this mother-f." He then entered the Mack House and returned "a second" later holding a gun "in his hand, down on the side."
Upon seeing the defendant with a gun, Waller testified that she "ran" to her residence a short distance away. As she "approached the stop stairs" to the house, Waller heard a gunshot. Once inside the house she heard "several more" shots and "hear[d] the victim screaming."
After entering her apartment, Waller testified that she looked out a window from which she could view the intersection of West Third Street and Prescott Place. She saw Silver "trying to run" but fall to the ground after "the last shot hit him." Waller further testified that Silver tried to get up but could not and finally "crawled to the middle [of Prescott Place]" before collapsing. Waller indicated that the time between the first and last shots was "like a half second."
After witnessing the victim laying in the middle of the street, Waller saw Ben and defendant "running into the Mack office" located close to the house where she had purchased drugs earlier that morning. Waller immediately phoned 911 and reported the incident to the police.
Rhonda Whitfield, who was serving a sentence in the Middlesex Correctional Facility during trial, testified that she was "[g]oing to buy a bag, " that morning and saw the victim "on the porch" of the Mack House, "[l]ike talking to the screen." Only one person is permitted on the porch of the Mack House at a time, so Whitfield stayed on the street. As the victim was talking, defendant and "Marvin" came out of the house. Whitfield was "dope sick" and paying "no mind, " but "knew something wasn't right." She started to leave the area to buy drugs elsewhere when the defendant and Marvin began "yelling" at the victim, who was "trying to walk" away. As the victim walked away, defendant was "running behind the guy, " holding an object to his side. Whitfield subsequently heard what she thought were "fire-crackers."
Whitfield further testified to having been in an automobile accident subsequent to the date of the shooting and that she had experienced some memory loss due to "head trauma" suffered in the accident. [FN 4]
[FN 4] Defendant argued that he was "incredulous[ly]" not informed of the accident and related memory loss until that fact was brought out during cross-examination at trial. The prosecutor stated that he was told Whitfield had "hurt her head" but "was not aware of any type of failure to remember the incident." To support its position, an investigator testified before the judge, outside the presence of the jury and at the end of the trial, he interviewed Whitfield with the Assistant Prosecutor at the Middlesex County Jail four days before trial, and "[s]he mentioned that she banged her head." According to the investigator's testimony, Whitfield said nothing about a "memory loss, " a related hospitalization, or "being unable to remember the incidents."
Bobby Harris, a high school student, testified on defendant's behalf that, while he was walking his dog on the morning in question, he heard shots and saw that "dude about to fall." He turned around, ran home, but saw a white car "ride pas[t]." [FN 5] The car drove past Harris about fifteen to twenty minutes later, but he did not look inside when an occupant yelled to him.
[FN 5] Waller also saw a van at the scene. However, she described the van as being blue and testified that it swerved to avoid hitting the victim as he lay in the street.
Cynthia Harrison testified for defendant at she saw the victim with a male named John Korman minutes prior to the shooting. Silver asked her "where to find cocaine, " and she gave them directions to "the corner of Prescott."
State v. Allen, 337 N.J.Super. 259, 766 A.2d 1168, 1170-71 (N.J.Super.Ct.App.Div. 2001).
The Appellate Division affirmed the judgment of conviction, but remanded for imposition of a corrected sentence oflife imprisonment with thirty years' parole ineligibility. See id. at 1170. Mr. Allen's application for post-conviction relief was denied.
In July 2013, this Court received this federal habeas petition. The petition raised nineteen claims:
1. The prosecutor transgressed all limits of propriety throughout the entire trial, denying the defendant his federal and state constitutional right to a fair trial.
2. The trial court erred in failing to grant a judgment of acquittal as no reasonable jury could have found that the State had proven its case beyond a reasonable doubt based on the admissible evidence.
3. Defendant was denied his right to a fair trial and his right to due process of law when the trial court ...