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Tokley v. Ricci

United States District Court, D. New Jersey

March 30, 2017

DANA T. TOKLEY, Petitioner,
MICHELLE RICCI, et al., Respondents.


          KEVIN MCNULTY, United States District Judge


         Petitioner, 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.


         Mr. 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 follows:

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. (Id.)
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 follows:
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 Elliot Rosario.

(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).

         In 2000, the jury convicted Mr. Tokley of first-degree armed robbery and second-degree possession of a ...

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