United States District Court, D. New Jersey
DANA T. TOKLEY, Petitioner,
MICHELLE RICCI, et al., Respondents.
MCNULTY, United States District Judge
Dana T. Tokley, is a state prisoner proceeding with a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Presently pending before this Court is Mr.
Tokley's application for an evidentiary hearing pursuant
to Federal Rule of Civil Procedure 60(b). (See Dkt.
No. 56) Additionally, Mr. Tokley has filed an application to
appoint pro bono counsel. (See Dkt. No. 63)
Therefore, the Clerk will be ordered to reopen this case for
the sole purpose of deciding these applications. For the
reasons that follow, both applications will be denied and the
file will be re-closed.
Tokley brought this habeas petition to challenge his State
conviction of first-degree armed robbery and second-degree
possession of a firearm for an unlawful purpose. In a
comprehensive 2012 opinion denying the habeas petition (Dkt.
No. 39), the Honorable Katharine S. Hayden set forth the
factual details of Mr. Tokley's crimes and trial as
On November 11, 1996, Jose Martinez and another man he later
identified as Tokley held up Quality Automobiles, a car
dealership in Pennsauken, New Jersey. (Pet'r's
Br.App., State of New Jersey v. Tokley, Appellate
Division, Docket No. A-4725-99T4, Ba 2.) ' Martinez was
the state's key witness at Tokley's trial.
(Id. at Ba 3.) He testified that he, Tokley, and a
third man, Elliot Rosario, planned to rob Quality
Automobiles, but on the night in question, Rosario did not
participate. (Id.) According to Martinez, he and
Tokley, both armed and masked and dressed in camouflage
clothing, drove to the Quality car lot. (Id.)
Martinez entered the trailer and instructed the women inside
to lie down on the ground while Tokley concentrated on the
manager, who they believed was carrying significant cash.
(Id.) According to the manager, Robert Owens, one of
the masked men, presumably Tokley, instructed him to
"give me the money, " and took $900 from him at
gunpoint. (Id. at Ba 2.) Owens was told to open the
safe, but when he explained that there was no safe, Martinez
instructed his accomplice to shoot Owens. (Id. at Ba
3.) There were no shots fired; Martinez grabbed a pocketbook
from one of the women; and both masked men fled the scene.
Martinez was the only witness at Tokley's trial to
identify Tokley as the masked gunman. (Id.) In his
testimony, Martinez explained in detail how the armed robbery
took place and said that he knew Tokley from prior criminal
activities. (Id.) At the time he testified against
Tokley, Martinez was serving a 20 year sentence for
aggravated manslaughter, and Rosario had been murdered.
(Id.) Martinez said he agreed to cooperate with the
government and testify in exchange for a lesser charge and
because he was upset his friend Rosario had been killed and
he had concerns that he might also be killed. (Id.
at Ba 2-Ba 3.) Tokley's defense counsel, Scott Griffith,
vigorously cross-examined Martinez about his long criminal
history, his hatred of Tokley, and his discussions with
others about killing Tokley, in order to impeach his
testimony. (Id. at Ba 4-5.) On redirect, Martinez
began to more fully explain his relationship with Rosario,
whom he described as like a brother. (Id. at Ba 5.)
He said he was very angry with Tokley because he had
influenced Rosario to kill someone in a prior drug
transaction and that person turned out to be the "wrong
guy." (Id.) As a result of this, Martinez
testified that if he could get away with it, he would have
killed Tokley. (Id.) Martinez then blurted out that
Tokley had killed Rosario in front of him. (Id.)
Griffith immediately objected and requested a mistrial.
(Id.) After discussions at sidebar, the court
overruled the objection and denied the request for a mistrial
and instead gave a limiting instruction to the jury as
Ladies and gentlemen of the jury, you just heard the witness,
Jose Martinez, testify that he has enormous animosity towards
Dana Tokley because Dana Tokley shot and killed his, I guess,
best friend, Elliot Rosario.
I have overruled the objection to that testimony and I will
allow you to consider it. But, I want you to consider it for
a very limited purpose. And that is, for the limited purpose
of deciding the credibility and believability of Jose
Martinez' testimony about Dana Tokley's participation
in the Quality Auto robbery.
In other words, you are entitled to consider whether this
witness has so much animosity towards Dana Tokley because of
the alleged death of Elliot Rosario that he would falsely
implicate Dana Tokley in the robbery of Quality Auto. But,
bear in mind that Mr. Tokley is not on trial here for the
murder of Elliot Rosario and you should not hold that
statement against him. You should not assume that because
this witness is saying that Dana Tokley killed Elliot Rosario
you should certainly not conclude that he did so. You are to
consider the statement for the limited purpose and for only
one purpose and that is in deciding whether it may give the
witness, Jose Martinez, a motive to falsely implicate and
falsely accuse Dana Tokley in the robbery at Quality Auto on
November 11, 1996. So, we are here to decide whether the
State has proven Dana Tokley guilty beyond a reasonable doubt
of the armed robbery at Quality Auto. You are certainly not
here to decide whether Dana Tokley is guilty of murdering
(Id. at Ba 5-6.) Neither the prosecutor nor defense
counsel objected to the instruction. (Id. at Ba 6.)
Before continuing with Martinez's testimony, the court
further clarified its instructions:
Ladies and gentlemen, before Mr. Martinez resumes the stand,
let me just add one thing to the limiting instruction I gave
you a few minutes ago. I think it was implicit in what I
said. I want to make it explicit. The testimony Mr. Martinez
gave about Mr. Tokley allegedly killing Elliot Rosario, you
should not assume from that that Mr. Tokley has a propensity
to commit crimes or that he's a bad person or an unlawful
person in any way. Again, it's for the limited purpose of
evaluating the motive of the witness, Jose Martinez, to be
truthful or not truthful.
Tokley v. Ricci, No. 09-4546, 2012 WL 194134, at
*l-2 (D.N.J. Jan. 20, 2012) (internal citations and footnote
omitted), affd, 541 F.App'x 168 (3d Cir. 2013).
2000, the jury convicted Mr. Tokley of first-degree armed
robbery and second-degree possession of a ...